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2007 CHRT 2

CHRT

Warman v. Tremaine

en

2007-02-02

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6486/index.do

2023-12-01

Warman v. Tremaine Collection Canadian Human Rights Tribunal Date 2007-02-02 Neutral citation 2007 CHRT 2 File number(s) T1104/8505 Decision-maker(s) Doucet, Michel 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 REASONS FOR DECISION Member: Michel Doucet 2007 CHRT 2 2007/02/02 I. INTRODUCTION II. PRELIMINARY ISSUES A. Motion of the Commission to have the Respondent's representative excluded (i) Background for the motion (ii) The issues on this preliminary motion (iii) Analysis a) Does the Tribunal have jurisdiction to prohibit a person from appearing before it as an agent for a party? b) Should the Tribunal exercise its discretion and prohibit Mr. Fromm from appearing before it? B. The post-referral evidence III. THE FACTS RELATING TO THE COMPLAINT IV. THE SECTION 13 COMPLAINT A. INTRODUCTION: Hate propoganda and free speech B. The general purpose of section 13(1) of the Act C. Did Mr. Tremaine communicate, or cause to be communicated, repeatedly, the messages found on the various websites in issue? D. Were these messages communicated in whole or in part by means of a telecommunication undertaking within the legislative authority of parliament? E. 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? F. Conclusion on the section 13(1) complaint G. Remedies (i) Cease and desist order (ii) Compensation pursuant to paragraph 54(1)(b) of the Act (iii) An order to pay a penalty under paragraph 54(1)(c) V. ORDER I. INTRODUCTION [1] On October 13, 2004, Richard Warman (the Complainant) filed a complaint under section 13 of the Canadian Human Rights Act (the Act) with the Canadian Human Rights Commission (the Commission) against Terry Tremaine (the Respondent). The Complainant alleges that the Respondent has engaged in a discriminatory practice on the ground of religion, national or ethnic origin, race and colour, in a matter related to the usage of a telecommunication undertaking. [2] The Commission fully participated at the hearing into the complaint and was represented by legal counsel. The Respondent also participated at the hearing. II. PRELIMINARY ISSUES A. Motion of the Commission to have the Respondent's representative excluded [3] On the first day of the hearing, the Commission filed a motion requesting an order prohibiting Mr. Paul Fromm from appearing before the Tribunal as an agent for a period of at least three years, or in the alternative, an order prohibiting Mr. Fromm from appearing in this proceeding as an agent for the Respondent. [4] The Commission argued that the Order should be granted because of comments Mr. Fromm made about the Canadian Human Rights Tribunal (the Tribunal), and the Canadian judicial system. According to the Commission, these comments are contemptuous. It further argued that the presence of Mr. Fromm before the Tribunal would compromise the integrity, fairness and efficiency of the hearing. The Commission added that Mr. Fromm's participation would hinder rather than facilitate the process. (i) Background for the motion [5] At a case management conference, held on March 10, 2006, the Respondent informed the Tribunal that he would be representing himself during the proceedings. Then, on May 16, 2006, in his written particulars, he requested permission to have Paul Fromm appear as his representative. He further requested that they both be allowed to cross-examine the Complainant and the witnesses of the Commission and of the Complainant. [6] The Commission opposed this request on various grounds. It referred to the fact that the Complainant and the Respondent are currently involved in a civil litigation. It also made reference to various postings on the internet by Mr. Fromm in which he strongly criticized the Tribunal, its members, members of the judiciary and the Commission. [7] According to the Commission's evidence, which was not challenged, Mr. Fromm has made contemptuous comments directed at the Canadian judicial system, the Canadian Human Rights Tribunal, members of the Tribunal and towards the Commission. He has described the Tribunal as a Soviet style kangaroo court and its decisions as Stalinist lunacy. He has also stated that the Tribunal's decisions in hate speech cases are leading Canada to become a Third World banana republic. [8] Mr. Fromm has appeared in other cases before the Tribunal as representative of other Respondents. (ii) The issues on this preliminary motion [9] The issues on this preliminary motion are as follows: Does the Tribunal have jurisdiction to prohibit a person from appearing before it as an agent for a party? Should the Tribunal exercise its discretion to prohibit Mr. Fromm from appearing before it? Should the Tribunal exercise its discretion to issue a general order of prohibition against the participation of Mr. Fromm as agent in all Tribunal hearings for three years? (iii) Analysis a) Does the Tribunal have jurisdiction to prohibit a person from appearing before it as an agent for a party? [10] To support its position, the Commission referred to two decisions, one from the Court of Appeal of New Brunswick, in Thomas v Assn. of New Brunswick Registered Nursing Assistants (2003), 230 D.L.R. 337 and the Tribunal's decision in Filgueira v. Garfield Container Transport Inc., [ 2005] C.H.R.D. No. 31 (QL). [11] In the Thomas decision, the New Brunswick Court of Appeal states, at paragraph 10: As stated at the outset, the general rule is that parties appearing before adjudicative tribunals are entitled to representation from an agent of their choosing. But tribunals retain a residual discretion to override this general right, provided the discretion is properly exercised. It is because tribunals are the masters of their own procedure that they retain a right to veto a party's choice of counsel. For this reason, a party to a tribunal proceeding does not have an absolute right to be represented by a person of their choosing, unless the enabling legislation states otherwise. [12] In Filgueira, the Tribunal followed the New Brunswick Court of Appeal's decision and added that in cases where complex legal issues are raised the participation of a lay person as a representative may only confuse matters further. [13] Subsection 50(1) of the Act provides: 50. (1) After due notice to the Commission, the Complainant, the person against whom the complaint was made and, at the discretion of the member or panel conducting the inquiry, any other interested party, the member or panel shall inquire into the complaint and shall give all parties to whom notice has been given a full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make representations. (The emphasis is mine.) 50. (1) 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. (Non souligné dans l'originale.) [14] Section 48.9 of the Act, is also relevant. It provides, inter alia, that the proceedings before the Tribunal are to be conducted as informally and expeditiously as the requirements of natural justice and the rules of procedure allow. Generally speaking, representation by non-lawyers is consistent with this purpose which is to facilitate access to the Tribunal and decrease the need for formalities. This section must however be read in conjunction with section 50 in order to determine who can act for a party in a proceeding before the Tribunal. [15] Section 50, by recognizing a statutory right to be represented by counsel, eliminates any question whether a party to a proceeding before the Tribunal has the right to retain counsel. What the section does not tell us is whether the right to counsel excludes the right to lay representation. In the French version the word used for counsel is avocat which clearly refers to legal counsel. The French word avocat reinforces and indeed restricts the ordinary meaning of the English term counsel. Taking into consideration the French expression, one could conclude that the word counsel, in the English version, refers to a lawyer. [16] This conclusion does not mean that a lay-person cannot appear as an agent before the Tribunal. In Re Men's Clothing Manufacturer's Association et al and Arthurs et al (1979), 26 O.R. (2d) 20 (H.C.J.) and again in Thomas v. Association of New Brunswick Registered Nurses Assistants, supra, the courts have recognized that there is a common law right to be represented by an agent, quite distinct from any statutory right to counsel. The fact that the Act expressly allows for legal representation by lawyers does not support the inference that the right to lay representation is not allowed. Section 50 of the Act should not be read as restricting or prohibiting any party from attending the hearing with a representative of his or her choice. In the interest of respecting the purpose of section 48.9, parties should be allowed to be represented by a lay-person, even though that person may not be legally trained or qualified. I agree with the comments of Judge Robertson, of the New Brunswick Court of Appeal, in the Thomas case when he stated, at paragraph 19 of the decision: Accordingly, the courts have generally been reluctant to construe statutory directions providing for representation by counsel to exclude persons who are not lawyers. [17] Just as section 50 of the Act does not abrogate a party's right to appear with a non-lawyer, neither does any section of the Act abrogate the right of the Tribunal to exercise its discretion to exclude non-jurists. Following the purpose set out in section 48.9, the participation of an agent or representative must be consistent with the proper functioning of the Tribunal and not be an impediment. It is also important to reiterate that an agent appears only with the permission of the Tribunal. [18] This is the approach which was taken by the Tribunal in Beaudet -Fortin v. Canada Post Corporation, 2004 CHRT 23. In that case the Tribunal allowed the Complainant to be represented by an individual who was not a lawyer. The Tribunal stated that it was reluctant to deny less financially fortunate Complainants the opportunity to be represented by a non-jurist who would generally be more affordable. The Tribunal felt that no prejudice would be caused to the Respondent by allowing a non-jurist to represent the Complainant and that this would not be a hindrance to the proper administration of justice. [19] In Fry v. Department of National Revenue, interim ruling, Transcript, pp. 23-25, March 9, 1993, the Tribunal allowed a disbarred lawyer to represent a Complainant. The Tribunal ruled that it would limit the individual to presenting evidence that the Canadian Human Rights Commission would not be presenting and to cross-examining witnesses. The individual was not permitted to make representations of fact or law. [20] Again in Filgueira v. Garfield Container Transport Inc, [2005] C.H.R.D. No. 31, the Tribunal accepted that the Complainant be represented by an agent. The Tribunal added that the Complainant had an obligation to satisfy the Tribunal, if the Tribunal deemed it necessary, that the agent was in a position to facilitate the process. [21] There are also other examples where the Tribunal allowed non-jurists to represent parties. In the recent case of Warman v. Harrison 2006 CHRT 30, Mr. Harrison, the Respondent in that case, was allowed to be represented by his common law wife, who was not a lawyer. [22] In summary, a person appearing before the Tribunal possesses the right to be represented by an agent of their choosing. But this right is not absolute. The Tribunal retains a residual discretion to limit participation to those persons the Tribunal believes will facilitate, rather than hinder, the adjudicative process. In exercising that discretion the Tribunal is required to justify its decision. The Tribunal should exclude non-lawyers when it is convinced that their participation is likely to hamper, rather than facilitate, the hearing process. (Thomas v. Association of New Brunswick Registered Nurses Assistants, supra, at para. 25). [23] The answer to the first question is therefore yes, the Tribunal has jurisdiction to allow or to prohibit a person to act as an agent for a party. b) Should the Tribunal exercise its discretion and prohibit Mr. Fromm from appearing before it? [24] The Commission suggested three reasons why the Tribunal should exercise its discretion and prohibit Mr. Fromm from appearing before it. First, it suggested that he had clearly demonstrated a blatant disrespect for the law. Secondly, that his participation would hinder, rather than facilitate the adjudication. Finally, it referred to the acrimonious relationship between Mr. Fromm and the Complainant which creates a conflict of interest that would hinder the Tribunal's process. [25] I will deal first with the second and third reasons given by the Commission. Regarding the third reason, although I agree that the relationship between Mr. Fromm and the Complainant is acrimonious, I fail to see how this could be a justification to exclude Mr. Fromm from appearing as agent for the Respondent. The Tribunal is well capable of dealing with any issues that may arise from the hostile relationship that the parties and their agent might have towards each other. The Tribunal also notes that neither the Commission, nor the Complainant explained exactly what conflict of interest would be created and for whom. [26] Regarding the second issue, whether the participation of Mr. Fromm would hinder, rather than facilitate the hearing, no evidence was presented to support this allegation. The Tribunal cannot make a decision on insinuations or allegations which are not supported by facts. [27] Finally, the last reason given by the Commission to support its request for the exclusion of Mr. Fromm is more compelling although it will not be enough to convince the Tribunal to grant the order sought. There is no question, from a review of the evidence presented, that in many of his writings, Mr. Fromm has shown a blatant disrespect for the Tribunal and its members. He has also on many occasions manifested disrespectful views towards the Canadian judiciary. The Tribunal is of the opinion that these matters would be better dealt with in another forum and as long as Mr. Fromm accepts the procedure and authority of the Tribunal and acts in a respectful manner towards it, there is no reason to exclude him from acting as a representative in these proceedings. [28] The Commission's motion that the Tribunal exercise its discretion to prohibit Mr. Fromm from appearing before it in these proceedings is denied. [29] Because of this decision there is no need to deal with the third issue in which the Commission is seeking an order preventing Mr. Fromm from appearing before it as a representative for a period of three years. The Tribunal wishes to make one comment on the procedure used by the Commission to bring this motion forward. The Commission failed to notify Mr. Fromm personally of its intention, although the order sought would directly affect him. This omission alone would have been sufficient to reject the motion or to adjourn the hearing with leave to regularize service. B. The post-referral evidence [30] During the proceedings, the Respondent took objection to the fact that the evidence submitted at the hearing referred to postings which were not included specifically in the complaint. The same issue was raised in Warman v. Winnicki, 2006 CHRT 20. In that decision, the Respondent had not raised any objections to the introduction of post-referral evidence by the Commission during the hearing, but had argued in its final submissions that the Tribunal could not consider this evidence since it essentially constituted the basis for a new complaint. [31] In Winnicki, the Tribunal rejected this argument. Firstly, the Tribunal referred to the fact that a motion to amend the s. 13(1) complaint had been granted on the basis of the post-referral evidence. In deciding that an amendment to the original complaint was appropriate, the issue whether the new allegations constituted the basis for a new complaint was conclusively determined, therefore it could not be argued that the post-referral evidence relating to those allegations could only be presented in support of a new complaint. In the present case, neither the Commission, nor the Complainant filed a motion to have the complaint amended. [32] Although no motion was filed or granted, the Tribunal is of the view that the post-referral evidence in this case could be considered. The evidence goes directly to the issue before the Tribunal of whether the Respondent was engaging in an ongoing violation of section 13(1) of the Act. Even if the complaint form does not specifically include the words and ongoing, as was the case in Winnicki and in LeBlanc v. Canada Post Corporation (1992), 18 CHRR D/57, it did contemplate the possibility that additional evidence would be submitted. In his complaint, the Complainant mentions that the two postings which were listed constituted samples of the evidence which would accompany the complaint. In the Leblanc ruling, the Tribunal properly set out that in such a situation, 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 this evidence relates to matters such as the one submitted in the complaint, then it would be difficult to argue that the admission of this post-referral evidence will cause him prejudice. [33] In the present case, there is no evidence that the Respondent was caught by surprise by the introduction of the evidence. The evidence was disclosed to the Respondent prior to the hearing and he admitted that he was the author of these postings. These postings are sufficiently similar to the allegations in the complaint, such that it does not effectively constitute a new or separate complaint. The Tribunal therefore rules that the post-referral evidence was properly admitted. III. THE FACTS RELATING TO THE COMPLAINT [34] For many years, the Complainant has been monitoring activities of what he describes as White Supremacist and neo-Nazi groups, both in Canada and internationally. By white supremacist, he refers to people or groups who assume that there is some inferiority within the races that are traditionally referred to as non-white or non-Aryan. When he uses the term neo-Nazi, he refers to groups or individuals who share similar beliefs as those of the National-Socialist Regime of Germany during the World War II era. [35] From 2002 to 2004, the Complainant was employed by the Commission as a Human Rights Officer. His duties would involve the investigation of human rights complaints. He specified that his duties at the Commission were explicitly separate from the investigation he was then conducting on internet hate files. During his cross-examination he admitted that given that he had been employed by the Commission during the relevant time of this complaint, he would probably have been monitoring the activities of the Respondent during this period but he added that it was on his own time. [36] The Complainant explained that for a number of years he has been monitoring the Canadian postings on a U.S. website called stormfront.org, which he qualified as white supremacist. This website provides forums where people can communicate and exchange ideas about issues relating to white supremacy and neo-Nazi ideology. This website is readily accessible to the public. Anybody that has access to the Internet can log on to this site and read the messages posted, although posting is reserved to members. [37] The Stormfront website is organised in the form of a pyramid. There is a forum where the user can have access to different categories of subject matter. When the user clicks on one of the subjects, a thread appears allowing the user to read and the members to participate in the discussion about the chosen topic. The nature of the postings and their content vary enormously on these threads. [38] During his monitoring of this website, the Complainant noticed postings by an individual using the pseudonym mathdoktor99 that began to concern him. He did further research into the nature of that person's postings. Having viewed other postings by the individual using this pseudonym, he said that he was convinced that these were likely to violate section 13 of the Act. He began compiling information with a view to identifying that person and ultimately filing a complaint with the Commission. [39] An individual who uses a pseudonym to post on Stormfront will also have to provide a profile to the administrator of the website. The profile of the individual identified as mathdoktor99 provided an email address. It also indicated that this person lived in Saskatoon, Saskatchewan, and that he was a self-employed programmer/analyst. [40] The Complainant did a Google search of the e-mail address. This search established that the e-mail address of mathdoktor99 was affiliated with an individual named Terry Tremaine. The Respondent does not deny that he had made these postings under the pseudonym mathdoktor99. [41] Terry Tremaine holds a Bachelors Degree in Mathematics and Philosophy and a Master's Degree in Science. He also holds a diploma in Computer Programming Analysis. He held for a period of time a part-time position as lecturer in the Department of Mathematics at the University of Saskatchewan and, according to his evidence he has been pursuing a career in information technology as a programmer. [42] The Respondent testified that he formed the basis of the ideas found in his postings while studying for his Master's degree, in Montreal, in 1982. After obtaining his Master's degree, he took a teaching position in Red Deer, Alberta. It just so happened that the James Keegstra trial was then proceeding in Red Deer. Mr. Keegstra had been charged under the hate crime laws in force at the time. Mr. Tremaine said that he attended the hearing and saw Mr. Keegstra testify. He added that he was very impressed by what he heard. He further added that this got him thinking about what you might call the Jewish problem. [43] After his experience in Alberta, he began doctoral studies in a Canadian university, which he stopped before completing them to accept a teaching position in the Bahamas. While there, he testified that he developed some fairly negative views towards blacks and black culture. He stayed there for two years, then returned to Canada. He testified: By then I was a racialist. He has also described his political beliefs as those of National-Socialism. [44] On his return to Canada, he pursued a career in information technology and completed a computer diploma. After having obtained this diploma, he opened up a programming company in Saskatoon, Saskatchewan. [45] During this period, around 2001, he became interested in what he described as white nationalism. It is also during this period that he found the Stormfront website. For a while, he was just a reader but, after a couple of months, he decided to become a member of the website and started his postings. At the hearing, he testified that he has posted at least 1,900 messages on this site. [46] The Respondent was served with the complaint on April 8, 2005. On April 11, 2005 and again on July 23, 2005, the Complainant wrote to the President of the University of Saskatchewan, the Respondent's employer at the time, providing information regarding the Respondent's activities. On August 4, 2005, the Vice-Provost of the University wrote back to the Complainant informing him that the matter had been investigated by the Human Resources Division of the University and that the position of the Respondent with the University had been terminated on April 30, 2005. [47] Following his dismissal from the University, the Respondent moved to the west coast (British Columbia). He said that he then felt frightened and depressed. In September of 2005, he returned to Saskatchewan and admitted himself to the Regina Qu'Appelle psychiatric facility to be treated for depression. While there he wrote, on September 30, 2005, a four page letter to the Commission. In this letter he indicated that his postings on Stormfront were attributable to mental health issues. The letter stated that he ...became delusional and began imagining grand conspiracies behind world events. Part of my delusional thinking was the notion of a `Jewish world conspiracy'. He goes on to add: I emphasize that this was delusional thinking for which I am profoundly ashamed and guilt ridden. Words cannot describe the depth of my shame. I am tormented by it daily. I despise and detest everything I wrote on Stormfront and wish I had never heard of Stormfront. The commission need have no concerns about any future activity on my part on Stormfront or anywhere else. [48] He continues: Prior to March 2001, I was a normal decent person without any racist or intolerant attitudes. In 2001 I underwent a destructive personality change that I can now only describe as sick and deranged. That eventually led to my posting on Stormfront. He further adds: In the months since I was confronted with the Human Rights complaint against me the shame and remorse has grown within me to the point where it has become unbearable and resulted in a further mental breakdown. [49] He then expresses his remorse and his hope that he will regain his true moral and decent self and concludes with his ...profoundest regret, shame, and remorse to all members of the Jewish community against whom many of my posts were directed. I truly regret to the utmost all that I wrote on Stormfront, especially as it pertains to the Jewish community. [50] The Commission never answered this letter and no explanation was given for its failure to do so. The Complainant for his part explained on cross-examination that he could not recall whether he actually saw the letter or whether the Commission had provided him with a summary of its content. He added that he had indicated to the Commission that if the Respondent's letter was sincere that it was of great interest to him. He said that he was essentially willing to negotiate a settlement of the complaint with the precondition that there be a permanent cease and desist order and other appropriate remedies. Nothing resulted from this and there is no evidence of any contact with the Respondent to further discuss the matters raised in the letter. [51] During his examination, the Respondent emphatically repudiated the content of this letter and never challenged its admissibility. He referred to a retraction that he posted on Stormfront on February 5, 2006. He further stated that, but for some minor modifications, he now stands by everything he wrote on Stormfront. In the course of his cross-examination the Respondent confirmed his state of mind about his posting on Stormfront and his views about Jews and Blacks. He certainly showed no remorse for these statements and, given the opportunity, he stated that he would enthusiastically repeat them. [52] The question of the identity of the author of the postings which form the basis of this complaint as well as the post-complaint postings was not in dispute; the Respondent admits that all these postings are his. The Respondent was a very prolific and prolix author, who in most of his postings camouflaged his ideas under the disguise of academia, using, in many instances, what he purported to be historical references and facts to support his allegations. His postings essentially fall into one of two categories: those that purport to be quasi scholarly articles, and those that constitute direct communications with other participants. The tone of some of these postings, although they did not in any way follow the strict standards of academic writing, could lend an air of legitimacy to their content for a credulous mind. [53] The first document submitted in evidence was posted on February 14, 2004, on the Stormfront website. The Respondent was participating in a discussion on a thread entitled A Real Holocaust Coming? He then posted the following: The Jew cannot help being a Jew any more than a rat can help being a rat. He went on to refer to Jews as a parasitic race. He added that no healthy host population can tolerate a parasite feeding on it without eventually rejecting it. Finally, he concluded that no conferences on `anti-Semitism' will help the Jew avoid his long-overdue fate. [54] Again on February 17, 2004, he made another posting on a thread entitled Re: A view from the inside (for all anti's). In this posting, the Respondent again refers to Jews as a parasitic race that depends on word weaving, crafty financial dealings, and a total lack of ethics toward non-Jews. [55] In a posting dated February 19, 2004, on a thread entitled Your Awakening?, the Respondent explains how he came to espouse the ideas of the White Nationalist Community. He refers to the fact that in the early nineties, he took a teaching job in a Caribbean country: I was not a racialist when I moved there but became one while there. Firstly, I discovered that blacks are intellectually inferior to Whites. This was evident everywhere and in all walks of life. I do not mean they were less educated (which they were), I mean they were intellectually inferior at a more fundamental level. In my job I encountered blacks who were well educated on paper but seemed to lack a certain intellectual spark which most, even relatively uneducated whites possess. I also came to see black culture as fundamentally depraved and disgusting. It is only fit for blacks and is certainly not anything a self-respecting white person should associate with or emulate. [56] Later in the same posting, talking about an unnamed Jewish author, he refers to him as the weasel Jew author. In his conclusion he affirms Hitler was right about the Jews. [57] On March 23, 2004, on a thread which purported to post the political testament of Adolph Hitler, the Respondent, again referring to Jews, wrote: The hatred for that race of parasitic vermin is growing everywhere. [58] In another posting, entitled The Greatness of Adolf Hitler, the Respondent wrote on April 9, 2004: Hitler stood in opposition to international Jewry and Marxism. He regarded Marxism as being the most recent vehicle to secure the long term goal of international Jewry - the destruction of independent nation states. It represented the obliteration of all national and ethnic distinctions and the formation of a worldwide mongrelized proletariat without any ethnic identity or loyalty. [...] Hitler's original intention for the Jews was that they be expelled from Europe voluntarily or involuntarily. The original destination mentioned was Madagascar. [...] Once the war began that became impractical. The only options available were to confine them or allow them to roam free. The latter option was deemed inappropriate since they were regarded as potential enemy combatants, much like the Japanese in North America who were also interned. It cannot be denied that some, perhaps many, Jews were killed deliberately. The exact number may never be determined but that number would almost certainly fall short of the six million figures which has been part of post-war anti German propaganda for over sixty years. [59] Referring to the concentration camps used during the Second World War by the Nazis and, in particular, to the infamous Auschwitz camp, he describes it as a labour camp not a death camp and adds that the gas chambers were used to delouse clothing to prevent the spread of typhus - not for the extermination of human beings. He disputes the figures regarding the number of people who died in these camps: We still do not have objective evidence that six million Jews died. The best available evidence is from the Red Cross which indicates that slightly over 400,000 Jews died in the interment(sic) and labour(sic) camps from all causes... [60] On another topic, in a thread entitled HIV/AIDS and Indians in Saskatchewan that the Respondent initiated, referring to the propagation of AIDS within the First Nation population of that province, he wrote on May 2, 2004, Now, I don't really care if AIDS wipes out the whole lot of them. It would make our job easier. [61] On July 5, 2004, on a thread entitled Questions from a black man, the Respondent wrote: Speaking for myself only I expect this white nation to comprise most of what is now Canada with most of what is now the US. Non-white immigration would be banned. Non-whites living within our borders would be encouraged to leave or submit to voluntary sterilization. Under such a plan our nation would be 100% White within one generation. It could be accomplished without significant bloodshed if non-whites were willing to co-operate in the endeavour. Blacks could be repatriated to Africa. The foreign aid now being doled out to Israel would instead go towards this repatriation plan. Educated Blacks from America could help Africa get back on its feet (if that is possible). Asians would be sent back to their country of origin. If that were impossible then the sterilization plan would kick in. In no case would a Jew be allowed to remain on our territory. They would be allowed to leave peacefully with whatever goods they could put in a suitcase. [62] In responding to a post entitled My feelings on Jews, the Respondent wrote on September 11, 2004: You did not mention their [referring to the Jews] compulsive deceitfulness. Hitler called them the Masters of the Lie and he was right on that. You did not mention their parasitic nature. They despise real work and live only to get money and do not really care how. You did not mention that they gravitate towards all that is disgusting and depraved. You can see this from their art. 4) You did not mention their involvement in organised crime, drugs, and white slavery. 5) You did not mention their subversion of all our institutions (mass media, academic, financial, political, judicial, law enforcement) and their subsequent redirection towards Jewish goals. 6) You did not mention the cancer of Zionism. Etc. Etc... [63] On a Stormfront thread entitled Did you Know that one million Germans were murdered...after the war, the Respondent contributed this posting on September 12, 2004: The more a person researches the events surrounding WWII (before, during and after) the more one is led to the conclusion that the real holocaust was against the German people and instigated by the Jews. The holohoax story attempts to invert that and portay(sic) the juden as victims of the `evil Nazis'. As time passes we are learning more and more the real truth. [64] On September 18, 2004, in a thread he initiated, The `Sacred' Parasite, he again describes the Jews as parasite. On that same day, he also initiated another thread entitled Hanadi Jaradat. According to the Respondent's posting, Hanadi Jaradat was a Palestinian woman who blew herself up in a restaurant in Haifa, Israel, killing and injuring a number of people. Referring to her action the Respondent wrote: [...]Her country is occupied by the same parasitic race that controls our formerly White countries. As Dr Pierce used to say: SHE HAD HAD ENOUGH!!. So, she decided to do something about it. It is nearly one year since Hanadi Jaradat struck a blow against ZOG. I know there are WNs who will criticize me for honouring a muslim in this way but I do not honour her as a muslim or arab, as such, but as a dedicated soldier fighting against ZOG. Nor do I suggest we all strap bombs to ourselves and start blowing up Jews. My only intention is to draw attention to her courage and self-sacrifice (literally) and hope for the day when we have a thousand WN [White Nationalist] equally dedicated to destroying our enemy. [65] On September 19, 2004, he wrote: The more the Jews try to stamp out anti-semitism the more it will increase. That is guaranteed. It will increase until the Jews themselves realize thay(sic) are the cause of anti-semitism (which will never happen). Just as a healthy body attempts to identify and repell(sic) foreign destructive organisms so too any healthy society will react to the Jew with revulsion and disgust and will desire to have them expelled. The Jews attempt to undermine this healthy response the same way the AIDS virus interferes with the body's rejection of foreign organisms. But for the Jews that will not work. There are too many people aware. We are like the White blood cells in certain people that are immune to the effects of the AIDS virus. [66] On that same day, but on another thread, the Respondent posted: As someone (I cannot remember who) once said, when the end of the Jews finally comes they will wish they had the SS there to protect them. [67] The Respondent also participated in a thread entitled Re: If it took a police state, which purported to discuss the advantages of establishing a white nation. In one of his many and long postings on this thread, dated September 20, 2004, he stated: NS [National Socialist] policy toward Jews was quite restrained. Hitler was a lot nicer to the Jews than they deserved. His original intention was to simply deport them all. However, nobody wanted them (no surprise there). Later on in another posting he stated in part, in answer to a question asked about whether he would be ready to pay the price of a totalitarian police state for an all white nation: In fact, I would not support it unless it were actively engaged in the expulsion of all Jews from our territory. In another posting on the same subject, in which he was referring to the fracture of our multi-racial countries, he suggested that white nationalists should be ready to seize power by whatever means available. He then added Our people will then be in charge of the existing police state apparatus and will begin the process of cleaning up the mess (expelling the Jews, repatriating the other non-whites, etc.) [68] On January 17, 2005, the Respondent posted the following: The Arabs are NOT the new juden. The juden are the juden!! As Dr. Pierce used to say, once we deal with the Jews everything else will just be mopping up. The last posting put into evidence by the Complainant from the period before the Respondent was served with the complaint on April 8, 2005, was posted on March 23, 2005, and it deals with the subject matter contained in a thread entitled Gambling at the Public Library. In this posting the Respondent makes derogatory remarks about Aboriginal persons. [69] The next posting put into evidence appears in early February 2006, ten months after the complaint was served and some five months after the letter of apology referred to earlier in this decision. This posting appeared following the Tribunal's decision in Warman v. Kulbashian et al, 2006 CHRT 11, which was issued on January 30, 2006. In this posting, the Respondent, referring to the Tribunal member who rendered the decision, had this to say: Notice that we don't even have White tribunal decision makers but someone who crawled out of some third-world hell hole. [70] In the next posting, dated February 27, 2006, the Respondent asserts: We must never forget that communism was, is, and always will be Jewish. It is the best example of what would happen to our people if and when the Jews attain the kind of absolute control of our countries that they so much lust after. In another posting, on March 3, 2006, the Respondent stated : The Jews rely on their shabbos goy helpers to implement their plans. The Jews are simply following their instinct as a parasitic race but their White helpers are making a choice to betray their race. The Jews set up innumerable front organizations to recruit their shabbos goy helpers who, at best, think they are working for some noble cause to help this or that. At worst, they know they have been recruited to the Judaic cause but believe it is their path to riches and/or power. [71] On May 8, 2006, the Respondent's attacks become more spiteful. Referring to a world conspiracy by the Jews, he affirms: The Jews are the poisoners(sic) of all nations. One reason they promote multi-culturalism (which is really multi-racialism) is to create a country of mulatos(sic), whom the Jews find easy to control and a bunch of squabbling ethnic groups whom they can divide and conquer. In a multi-racial country the racial group with the strongest ethic solidarity will rule. The Jews believe, in all likelihood truly, that they have sufficient internal cohesion amongst themselves to rule, especially considering their current grip on the financial, political, educational, and cultural (media) institutions. Every ethnic group must recognize the above to be true. We, as WNs, can form strategic alliances with other national groups but we must be wary of trying to get others to fight our battles for us. In such a case, those other groups will determine the configuration of a final victory. We must determine that configuration ourselves. In practical terms, the final configuration must not involve the breakup of any of our formerly White countries. Rather than trying to create some little White-only national territory, we should have a grande view. Kick the Jews out and have no more to do with them regardless where they end up. Then help the other ethnic groups towards repatriation. ... They do not share our values, which is (sic) demonstrated by their tendency to gang activities and crime in general. And even if they did share our values we do not want them here because we want our territory for the advancement of our own race to achieve our racial advancement. We can establish an agreement among other national groups to ensure the Jews have no safe haven to re-establish another base of operations such as America and Britain. [...] Fundamentally we (and all ethnic groups and races) must see the Jews as alien poisoners (sic) who always try to get others to do their dirty work. That way they can always claim innocence and do not get their hands dirty. Nor do they have to spend any of their own precious gold. They have openly declared that they would rather destroy the world than have their own national existence threatened (the Samson Option). We must accept that they are serious about that. We must turn that around and say, better that the Jews and Israel be destroyed than have the world destroyed. [72] Then on June 27, 2006, the Respondent proposes a National-Socialist Constitution for Canada. This constitution would be based on what the Respondent describes as the seven principles of National Socialism. The seventh principle declares that Adolph Hitler was a gift to the world which was on the brink of a Jewish-Bolshevik catastrophe. This document proposes that, in this imaginary national socialist state of Canada, the citizens be of at least 75% White European extraction. Jews and people of the Jewish faith would be denied citizenship. [73] In another posting on July 8, 2006, the Respondent talking about the Complainant had this to say: I think Warman is a Jew simply because of his unrestrained capacity for malevolence. He does not appear to have a White man's conscience. In a posting referring to his case before this Tribunal, the Respondent writes: Hitler said that Jews are the bacillus of social disintegration. Today we might consider them like the AIDS virus and the influx of other non-White populations in our country as opportunistic infections. The disease is multiculturalism and Jews are the cause. [74] On the internet site, http//mathdoktor99.htmlplanet.com, the Respondent comments on what he describes as the Jewish world-wide conspiracy. He makes reference to a purported article written by Winston Churchill, which he claims was published in the London Sunday Herald, on February 8, 1920, whose content is clearly anti-semitic. He also refers to a document, allegedly prepared by the International Red Cross in 1947, which numbers the Jewish deaths in the various camps under German control during World War II at 271,000 deaths. He further quotes the headline of an article supposedly published in the Daily Express, of London, on March 24, 1933, and concludes that the Jews were the one who declared war on the Third Reich. He also makes reference to the Russian author Alexander Solzhenitsyn as having declared the Jew Bolsheviks to be the stranglers of Russia and the genocide against millions of Russians was planed (sic) by Jews in 1919. [75] The Respondent's attacks are not limited to the Jewish community; he also writes disparaging remarks against the Black community. In one of his postings on Stormfront, dated August 2, 2006, entitled My Story, he relates his experience in the Bahamas where he had taken a teaching position in 1993: That country is about 98% Negro. The same proportion held among my students, some of whom did have some natural talent in Mathematics. When I went there I was NOT a racialist. In fact, there were times when I forgot I was White. You could say I went native to a degree. I even became deeply tanned to the point where I was quite dark. However, by the time I was there a year I had come to the conclusion that most of the Negroes in the Bahamas were innately stupid. Not all were, of course. I remember a few intelligent conversations among the Negro men in the liquor store, more intelligent than most of the talk among educated Negroes at the College. But, I formed the estimate that the average IQ there was somewhat around 75 to 85 and after six months of accumulated experience there that opinion solidified. Over the next 3½ years that estimate would go up or down a few points but eventually averaged out to about 80. I kept thinking that the average truck driver in Canada has more brains than 99% of the Negroes in that country. So my views on race began to change. I did not think the 80 IQ could be explained culturally, though no doubt some would like to make that case. The Bahamians do not have the same excuse for being stupid as the American Negroes. They are an overwhelming majority in that country and have run their own show since 1973. Slavery was abolished in the Bahamas in 1837, But they are still stupid. Not all but most. [76] He then goes on to add: If Negroes were only stupid, collectively speaking, but otherwise innocent we could regard them like children. Unfortunately, that is not the case. I found them to have a natural tendency to violence as a first resort and to be natural born thieves. In the four years I was in the Bahamas I had maybe half a dozen disputes with Negro males over what would normally be considered minor issues. In each case I was threatened with physical violence. They are cowards as well, brave only in packs like hyenas, since each case I did not back down and the other guy scurried away. I found that even the educated among them are natural born thieves.[...] The rule when you are among Negroes : If it isn't nailed down, glued down, or welded down to the floor it will disappear. [77] One of the themes of the document revolves around the idea that the Jews are trying to take over every aspect of society and to dominate the world. Quoting from Adolph Hitler, the Respondent divides races into three categories: Those who can create and maintain civilization; those who can maintain but not create civilization; and those who can do neither but are destroyers of civilization. The Aryan (=Whites) people created civilization. Asians and some Semites are able to maintain civilization. Jews and Negroes are destroyers of civilization. The Jews are especially dangerous because not only are they destroyers but of the worst kind, parasites. [78] He concludes: [D]o I want to live in a world owned and operated by Jews for the benefit of Jews? Do I want to live in a world controlled by the world destroying parasites or do I want to do something about it? Do I want to just sit and watch while Whites are destroyed as a people with no other alternative but to merge with - and eventually disappear into - the great brown swamp of Third World biomass? I decided to do something about it. [79] Finally, on July 27, 2006, the Respondent posted the following on Stormfront: Warman [referring to the Complainant] is just the front man, the performing monkey, for the B'nai Brith and the Canadian Jewish Congress. They run this country and it is sinking into the bottomless pit of Jew Hell. [80] In 2006, the Respondent also set up and maintained a website nspcanada where he posted what he purported to be the political program of the National-Socialist Party of Canada (the NSPC). This website is readily accessible to everybody. [81] The home page of this website indicates that the NSPC is dedicated, amongst other things, to stopping and reversing the effects of multiculturalism, resisting the Jewish/Zionist takeover of the most important social institutions of Canada, restoring White sovereignty in Canada, implementing a new constitution for Canada [and] building up the White birth rate to replacement levels so that non-White immigrants are not required for our labour force. [82] He mentions that the NSPC is dedicated to the creation of a White racialist state in Canada which would restore the White sovereignty within Canada which has been lost through multiculturalism and Marxist Political Correctness. To accomplish this goal, he recommends various steps which include challeng[ing] by any and all legal means the Jewish influence on our news and entertainment mass media through developing our own media and utilizing the media of cooperating White organizations. He also called for the establishment of local units throughout Canada which can be rapidly transformed into resistance cells as the future need arises. [83] The Respondent then goes on to elaborate on the seven points of National Socialism which would form the basis of the constitution of national-socialist Canada. The seventh principle states: Adolf Hitler was the gift of an inscrutable Providence to a world on the brink of Jewish-Bolshevik catastrophe, and that only the blazing spirit of this heroic man can give us strength and inspiration to bring the world a new birth of radiant idealism, realistic peace, international order and social justice for all men. [84] Regarding firearm ownership, he states that this will be a fundamental right of law-abiding citizens but adds [n]ever again will Jews control this land! We MUST have a well armed citizen militia to ensure that multiculturalism is never again forced down our throats. Non-citizens (i.e. non-Whites) will not be allowed to own or possess firearms. The only exception to this will be native Indians living on their own reserve lands. They will be allowed firearms for hunting purposes only. The Respondent also refers to multiculturalism as a poison and proposes to clean up the multicultural mess. [85] In a National-Socialist Canada, we can read, that loyalty to Zionism and the Zionists entity in Palestine (the terrorist state of Israel) will be regarded as treason to Canada and will be dealt with as such. [86] According to the Respondent, homosexuality may or may not be genetically determined. He goes on to add that [a]ccording to the best available science on the subject, something goes wrong in the wiring of the brain during fetal development. He states that homosexuality is clearly a pathology whether recognized by the Psychiatric Association or not. [...] It is the position of the NSPC that homosexuals not be allowed to work in environment where children or young adolescents will be present. They will not be allowed to adopt or care for foster children. They will not be allowed to serve in the military and evidently they will not be allowed to marry as marriage is, according to the Respondent between a man and a woman. [87] Under a NSPC Canada, the military would be used to assist other White nations in their defense (sic) against non-White aggression. At the end of their compulsory military service the male citizens would maintain possession of their assault weapons to further the existence of a well armed citizen militia. [88] Citizenship under the NSPC would be only for people of at least 75% White European extraction. They cannot be Jews or of the Jewish religion. Only citizens will have the right to vote, to stand for elected office or the judiciary. The residents of Canada who do not qualify for citizenship will be either voluntarily or forcibly repatriated. Aboriginal people will not be citizens, nor will they have the right to vote but they will be given self-government over their own territories. [89] The document also states: We are dedicated to peaceful revolutionary struggle for National Socialism and White sovereignty within Canada. However, it must be remembered that Canada is not currently a free country but is under Jewish/Zionist control. We are suffering under Judeo-Liberalism and drifting toward Judeo-Fascist tyranny, We support the right of political dissent for all White people in all land. This implies resistance to the current status quo. We must be prepared for all eventualities, as much as that is humanly possible. We propose that our local units structure themselves as resistance cells modelled after the Committees of Correspondence prior to and during the American Revolution. [90] The website then goes on to give a list of other pro-white groups with their web address. It also lists the name of companies and businesses that should be boycotted because of what the Respondent qualifies as Zionist connections. [91] There are also a number of quotations on different pages of the website where we can read, for example, Negroes Back to Africa? Yes!!!; No amount of special programs or incentives can change the basis genetic nature of a race. The only solution to the plague of Negro crime is the repatriation back to Africa.; International Jewry is the enemy of all humankind and the poisoners(sic) of all nations; Multiculturalism is the displacement, marginalization, and eventual destruction of the host population - The White Race!!! [92] There is also a series of what we could be described as short commentaries entitled, for example, Zionism is Treason, Removing Negroes Back to Africa? Yes!!!, Jew Tube, Negro Crime. The Respondent also purports to reproduce a series of documents which he presents as being historically correct. [93] It is clear that the Respondent wants nothing less than a totally white Canada. He argues that whites and non-whites, including Jews, can never live together in harmony in the same country. He considers Blacks despicable but too feeble-minded to pose a threat to whites. Jews, on the other hand, are considered more clever, but they are dangerous, amoral, vermin, conspiring to take control of the world. The most important themes running through most of his writing are the supremacy of the white race and anti-Semitism. IV. THE SECTION 13 COMPLAINT A. INTRODUCTION: Hate propoganda and free speech [94] Freedom of expression is held especially dear in a free and democratic society such as ours. The Canadian Charter of Rights and Freedoms makes it one of the fundamental rights guaranteed to all Canadians. It is the foundation on which our democratic and political process has been built. It allows individuals to shape their personal development and in so doing it ensures the fostering of a vibrant democracy where the participation of all, no matter what their ethnic or religious background might be, is not only welcomed but accepted and encouraged. (Canadian (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892, at para. 47.) [95] It is because of our attachment to this fundamental value that matters, such as those raised in the present instance, present some difficulty. In rendering its decision, the Tribunal must take into consideration two fundamental values which, in some cases, are difficult to reconcile. On the one hand, we have the interest of a democratic society to promote freedom of expression and, on the other hand, we have the importance for the same society to promote the equality rights of all its citizens as well as the inherent dignity of all human beings. [96] Some of the ideas expressed by the Respondent in his postings may be seen as forming part of a legitimate political discourse, although they might seem repugnant to the values of a majority of Canadians. This is why we must be careful, when dealing with issues such as these, not to let our judgment be clouded by the general disapproval and the offensiveness of the political ideas advocated by the Complainant. We might not like what he is saying and would prefer not to hear it, but in a democratic society, people are free to express their opinions, unpopular as they might be, as long as it does not demean and humiliate others. [97] Although freedom of expression is an important fundamental value, we in Canada value just as much the equality rights of all individuals. Equality means a respect for the inherent dignity of all human beings whatever their colour, race, language, sex or religion. Freedom to express one's idea ceases to be freedom of expression or opinion when it is used to stand in the way of the promotion of equality. Freedom of expression ceases to be a fundamental characteristic of democratic values when it becomes a vehicle for the promotion of hate. (See Canada (Human Rights Commission) v. Canadian Liberty Net, [1992] 3 F.C. 155, at para. 60) [98] In Citron et al v. Zündel, T.D. 1/02, 2002/01/18, the Tribunal stated, at paras. 153 and 154: In any event, even if we accept that there can be legitimate debate on this topic, we have focussed on the manner in which the Respondent has expressed his views and not the mere fact he chooses to engage in this debate. Our conclusion is based on the way in which these doubts are expressed, and not on the fact that challenges are raised regarding the historical accuracy of these events. Although it might always be hurtful to raise these questions, we accept that the standard for determining the promotion of hatred or contempt must be applied with care so that it remains sensitive to free speech interests. If this truly were a neutrally worded, academic debate, our analysis might be quite different. The tone and extreme denigration of Jews, however, separates these documents from those that might be permissible. We have found that it is the linkage between the author's view of these events and the extreme vilification of Jews as a consequence: it is their denunciation as liars, racketeers, extortionists and frauds that is likely to expose them to hatred and contempt. [99] In Canada (Human Rights Commission) v. Taylor, supra, at para. 2, the Supreme Court of Canada defined the term hate propaganda as an expression intended or likely to circulate extreme feelings of opprobrium and enmity against a racial or religious group. Hate propaganda or messages lie at the outer margins of the values that form the core of freedom of expression. It is fundamentally inimical to the rationale of freedom of expression. That is why Parliament adopted section 13(1) of the Act. Parliament has clearly indicated, when it adopted this section, that it viewed the activities described therein as contrary to the furtherance of equality. The objective behind this section is obviously one of substantial importance sufficient to warrant some limitation upon freedom of expression. (Canada (Human Rights Commission) v. Taylor, supra, para. 43.) [100] In the Taylor case, the Supreme Court concluded that while s. 13 infringed the freedom of expression right, this infringement was justified in light of the international commitments to eradicate hate propaganda, and Canada's commitment to the values of equality and multiculturalism. [101] In his closing remarks, the Respondent's representative based part of his argument on fair comment and free speech. Although, I agree that all individuals, including the Respondent, have a right to express by whatever means they choose their political ideas, they must do so in a manner that does not offend s.13(1) of the Act. As the Tribunal stated in Warman v. Kyburz, 2003 CHRT 18, at para. 54: While the right to hold and express one's opinions is a cornerstone of a free and democratic society, such a right is not unlimited. In some situations, the protection of society mandates limits on what individuals may say. Calumny against and the calling for the expulsion of Canadian citizens on the basis of their colour or religion cannot be protected by free speech or fair comment. [102] Mr. Fromm also requested that the Tribunal not consider the information posted on the National-Socialist Party of Canada website. He argued that this political platform ought to be dealt with in a political arena. I disagree. The importance in our democracy of maintaining free public opinion and discussion is not a right which is absolute. The Courts have recognized that these values are subject to legal limits, under the provisions of the Criminal Code, the common law, the Charter of Rights and Freedom and the Act. Parliament and Canadian society in general have decided to impose legal limits on free public opinion and discussion. They have decided that one cannot promote hate and contempt even if he pretends it to be political speech. B. The general purpose of section 13(1) of the Act [103] The complaint alleges that the Respondent discriminated against persons or a group of persons on the basis of religion, race, colour and national or ethnic origin by repeatedly communicating messages over the Internet which would likely expose Blacks, Asians, Aboriginal, other non-whites and Jews to hatred or contempt contrary to subsection 13(1) of the Act. [104] Section 13(1) 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. [105] 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. [106] Section 13 of the Act is especially designed to prevent the spread of prejudice and to foster tolerance and equality. In denoting the activity described in this section as a discriminatory practice, Parliament has indicated that it views hate propaganda or messages as contrary to the furtherance of equality. In 1966, the Special Committee on Hate Propaganda in Canada, commonly known as the Cohen Committee, had identified the serious harm caused by hate messages. It noted that individuals subjected to racial or religious hatred may suffer substantial psychological distress, the damaging consequences including a loss of self-esteem, feelings of anger and outrage and strong pressure to renounce cultural differences that mark them as distinct. (Canada (Human Rights Commission) v. Taylor, supra, para. 40.) [107] The purpose of section 13 is to remove hate messages from the public discourse and to promote equality, tolerance and the dignity of the person. The views expressed in these messages inevitably result in prejudice, discrimination and can also lead to physical violence against members of the targeted groups. [108] Hate messages can also operate to convince their listeners or readers that members of certain racial or religious groups are inferior. The result may be an increase in acts of discrimination or even incidents of violence towards these groups. Hate messages undermine the dignity and self-worth of targeted groups' members and 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. (Canada (Human Rights Commission) v. Taylor, supra., para. 41). [109] Under section 13(1), the 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). 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... [110] In Nealy v. Johnson (1989), 10 C.H.R.R. D/6450, at para. 45697, the Tribunal stated that the use of the word likely in section 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 discussed by the Tribunal in Warman v. Winnicki, 2006 CHRT 20, at paras. 46 and 49: 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.[...] 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. [111] Again in Taylor, supra, at para. 74, the Supreme Court of Canada added that the truthfulness of the impugned statement did not provide a defence to the discriminatory practice prohibited by section 13(1): One must remember that truth may be used for widely disparate ends, and I find it difficult to accept that circumstances exist where factually accurate statements can be used for no other purpose than to stir up hatred against racial or religious groups. [112] Hate messages undermine the dignity and self-worth of the targeted group members and 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. 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). (Winnicki, supra, at para. 51) [113] 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 precluding their full participation in Canadian society and the achievement of their full potential as human beings. [114] How is the likelihood of exposure to harm to be determined? In Citron v. Zundel (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. [115] There are three issues that must be considered in determining whether the complaint has been made out: 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? C. Did Mr. Tremaine communicate, or cause to be communicated, repeatedly, the messages found on the various websites in issue? [116] The Respondent does not deny that he communicated the material which is the subject of this complaint including the post-complaint material. He also admitted that all of the material was authored and signed either under his real name or under his pseudonym, mathdoktor99. [117] His representative took issue with the characterisation of these messages as having been repeatedly communicated. He referred to the Supreme Court of Canada's decision in Taylor and suggested that the reason the Court found that the communications were repeated in that case was that there was a deliberate effort to call public attention to them. He added that there was no evidence that the Respondent attempted to call attention to or advertised his postings on the Internet and consequently the Tribunal should rule that they were not repeated. [118] The requirement that there be repeated communication is a constituent element of s. 13(1) and the Tribunal finds as a fact that there was, in this case, repeated communication of the material posted. 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 it 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. [119] In this case, the material was posted on the Internet which is designed to facilitate repeated transmission of material posted on a chosen site. The Internet provided an inexpensive means of mass distribution. One of the purposes sought by posting messages on a website is that it will be available for transmission and display by a user who requests it. This characteristic of the Internet satisfies the requirement of repeatedly found in section 13(1). The Respondent did not need to call public attention to his postings, the mere fact of putting them on the Internet which is accessible to almost everyone was sufficient to attain this objective. D. Were these messages communicated in whole or in part by means of a telecommunication undertaking within the legislative authority of parliament? [120] The substantive evidence against the Respondent consists primarily of copies of postings on the Internet. [121] 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), which deals expressly with matters communicated by means of the Internet. [122] 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. [123] In his closing arguments, Mr. Fromm insisted that the Tribunal should consider postings on an internet site dedicated to persons sharing the same basic ideology, as similar to a private communication. He characterised the postings on Stormfront as in-house conversation. The Tribunal does not accept this argument. In an article written by L. B. Lidsky, Silencing John Doe: Defamation and Discourse in Cyberspace (2000), 49 Duke L. J. 855, cited with approval in the decision of Barrick Gold Corporation v. Lopehandia, [2004] O.J. N° 2329 (Ont. C.A.) at para. 31, the author states: Although Internet communications may have the ephemeral qualities of gossip with regards to accuracy, they are communicated through a medium more pervasive than print, and for this reason they have tremendous power to harm reputation. Once a message enters cyberspace, millions of people worldwide can gain access to it. Even if the message is posted in a discussion forum frequented by only an handful of people, any one of them can republish the message by printing it or, as is more likely, by forwarding it instantly to a different discussion forum. And if the message is sufficiently provocative, it may be republished again and again. The extraordinary capacity of the Internet to replicate almost endlessly any defamatory message lends credence to the notion that the truth rarely catches up with a lie. [124] Internet has had a profound impact on modern society. It has made accessible to all information which in the past was only available to a few. It has also allowed individuals to exchange ideas and to discuss important issues but it has also raised serious concerns about the content found on many sites. Issues have arisen regarding the preservation of legitimate free speech, on the one hand, and the need to control the proliferation of hate sites, on the other hand. Cyberspace cannot and should not be seen as a frontier society where everything is allowed and where the constraints which limit discourse in the real world have no place. The fact that the user employs a pseudonym does not mean that anything goes. Also, the fact that he is printing his messages on a site which is essentially used by like-minded individuals does not make it a private communication. Once the message has entered cyberspace it can be read by millions of people, it is part of the public domain. [125] In this case, the evidence clearly establishes that the websites used by the Respondent were readily accessible to the public. The Complainant testified that to have access to the messages posted on these sites, a person did not have to be a member - although on Stormfront, you could not post a message without being a member. Anyone could easily access the Stormfront and the nspcanada websites, no password required. [126] The Tribunal therefore sees no merit in the Respondent's argument on this point. [127] The Respondent's representative also expressed the opinion that common sense would suggest that since the postings were made on a website where like-minded people communicated amongst themselves then they were not exposing the targeted groups to hatred or contempt. He also 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 had fair warning of the content of the messages by the nature of the banners on the home page of the sites. Therefore, people had a choice whether to read the messages or not. [128] Again, the Tribunal cannot accept this argument. Although, it might be true to conclude that an individual who posts or reads the posting on these sites might be considered an adherent to the opinion they espouse and consequently might already possess feelings of hate and contempt for minority groups, it is conceivable that these feelings might be inflamed further by these messages. In any event, we should remember that the preconceived feelings of the individual who post or reads such posting is not in issue in the interpretation of s. 13. The question is whether the matter communicated is likely to expose a person or persons to hatred or contempt. The fact that the banners provided some vague indication of the content of the websites does not put the messages beyond reach of s 13(1). E. 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? [129] The issue here is whether the messages are indeed 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 or whether they are simply, as Mr. Fromm has categorized them, strong opinions expressed by the Respondent. [130] In defining hatred or contempt, the Tribunal, in Nealy v. Johnson (1989), 10 C.H.R.D. No. 10, at para. 45653, applied the definition found in the Oxford English Dictionary (1971 ed.). Hatred is defined as active dislike, detestation, enmity, ill-will, malevolence. Contempt is the condition of being condemned or despised; dishonour or disgrace. [131] In that same decision, the Tribunal further added, at para. 45654 : 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 of 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. This is captured by the dictionary definition relied on in Taylor...in the use of the terms despised, dishonour or disgrace. Although the person can be hated (i.e. actively disliked) and treated with contempt (i.e. looked down upon), the terms are not fully coextensive, because hatred is in some instances the product of envy of superior qualities, which contempt by definition cannot be. [Canada (Human Rights Commission) v. Taylor, supra, para. 60] [132] Hatred thus refers to extreme ill-will and an emotion which allows for no redeeming qualities in the person at whom it is directed. For its part, contempt describes circumstances where the person is looked down upon. [133] 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 groups to hatred and 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? In his closing arguments, the Respondent's representative stated that there was no evidence before the Tribunal that the messages were likely to expose targeted groups to hatred or contempt as no expert evidence had been called by the Complainant to help the Tribunal answer these questions. [134] In Citron v. Zundel, supra, at para. 141, the Tribunal stated that, although expert evidence might be helpful, it is the language used in the messages themselves that will allow it to determine whether the material offends s. 13(1). Similarly, in Warman v. Kyburz, 2003 CHRT 18, the Tribunal, while taking note of the expert's evidence, found that it was evident from the messages themselves that they were contrary to s. 13(1). The fact that no expert evidence was called is not in itself fatal to the complainant's claim. [135] The messages submitted in evidence are principally directed at two groups, Blacks and Jews. People of the Black community are portrayed as intellectually inferior, violent, criminal and stupid - in short, they are represented as devoid of any redeeming qualities. [136] The messages directed towards Jews characterize them as the enemy of humanity, as a parasitic race, as pure evil, hideous parasites, as a disease, vermin, as deceitful, liars, depraved, criminals involved in organised crime, drugs and white slavery. The Respondent refers to the holocaust as the holohoax which he describes as an attempt to portray the Jews as victims of the Nazis, which he asserts to be an inversion of the truth. He recommends that Jews be deprived of their Canadian citizenship and even expelled from this country. The basic theme of the material is that Jews have no redeeming qualities and they are destroying the white race. The messages reinforce the classic anti-semitic myths that Jews have a disproportionate degree of power and that they pose a menace to the civilized world. They have foisted multiculturalism on White society and are responsible for the damage it has done. In addition they are dangerous Communists Marxists. The tone and extreme denigration of Jews in these messages does not form part of a legitimate political debate, because it is incompatible with the basic tenets of equality enshrined in the Act. [137] The messages even insinuate that violence against Canadian minorities and especially Jews is acceptable. They contain in many instances an aggressive overtone. [138] In the NSPC website, the Respondent clearly asserts that Jews, Blacks and other non-whites are destroying the country, should be denied citizenship, sterilized and even deported. These messages point out that non-white people bring poverty, crime and corruption to our society. The messages also offer readers reasons to hate them and to be suspicious of them. [139] The messages clearly expose the people of the Jewish faith, Blacks and other non-white minorities to hatred and contempt contrary to section 13 of the Act. F. Conclusion on the section 13(1) complaint [140] Having looked at these messages in context, I have no doubt that they are likely to expose persons of the Jewish faith, Blacks and other non-white minorities to hatred or contempt. The underlying theme in the Respondent's messages is that Jews, Blacks and other non-whites are destroying the country and that they should either be deported or segregated. They also refer to the threat they represent for white civilization. Members of the targeted groups are described as vermin, a disease, parasites, criminals, scoundrel, embezzlers and liars. They are portrayed as dangerous and, in some cases, intellectually inferior. [141] These messages convey extreme ill-will to the point of violence towards the targeted groups. Nothing in these messages allows for any redeeming qualities for members of these groups. The members of the groups have been completely dehumanized. Consequently they may likely be the object of hatred and contempt. [142] The Tribunal therefore concludes that these messages are likely to expose a person or persons to hatred or contempt by reason that that person or those persons are identifiable on the basis of race, national or ethnic origin, colour or religion under section 13(1) of the Act and that a discriminatory practice has been established. G. Remedies [143] Having found that Mr. Warman's section 13 complaint was substantiated, the final issue to be determined is that of remedy. The remedies sought by the Complainant are: An Order that the Respondent cease the discriminatory practice, pursuant to section 54(1)(a) of the Act; An Order that the Respondent pay compensation pursuant to section 54(1)(b) of the Act; An Order that the Respondent pay a penalty pursuant to section 54(1)(c) of the Act. (i) Cease and desist order [144] 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. 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 to the eradication of racial and religious intolerance. (See Taylor, supra, at para. 53, and Winnicki, supra, at para. 192.) [145] 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. [146] Messages posted by individuals on the Internet present a particular challenge for the Tribunal in crafting a meaningful remedy. As the Tribunal stated in Warman v. Kyburz, supra, at para. 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. Notwithstanding this observation, the Tribunal in Kyburz still issued a cease and desist order. The difficulty in crafting a meaningful remedy should not in any way prevent the Tribunal from making such an order if it deems fit to do so. [147] In the Zündel decision (supra), the Tribunal stated, 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. [148] 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 over the Internet 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 and, also, there is an important educational value in such an order. [149] Having regards to the postings of the Respondent, the Tribunal is of the view that a cease and desist order is entirely appropriate. It is therefore ordered that the Respondent, Terry Tremaine, cease the discriminatory practice of communicating or causing to be communicated, by the means described in s. 13 of the Act, namely the Internet, material of the type which 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 is identifiable on the basis of a prohibited ground of discrimination. (ii) Compensation pursuant to paragraph 54(1)(b) of the Act [150] Paragraph 54(1)(b) of the Act provides that the Tribunal may order the payment of special compensation to the victim, of a sum that is not to exceed $20 000, where a victim is specifically identified in the communication that constituted the discriminatory practice and if the Tribunal determines that the Respondent engaged in the discriminatory practice wilfully or recklessly. The Complainant is seeking special compensation in the amount of $10 000, from the Respondent. [151] The Complainant argues that to order compensation under this section, the Tribunal need only be satisfied that the victim is specifically identified in the discriminatory messages and that the Respondent engaged in the practice wilfully or recklessly. He argues that no other factors should be taken into consideration. [152] The first paragraph of section 54 gives the Tribunal the discretion to order one or more of the remedies enumerated therein. The paragraph states that The member or panel may make only one or more of the following orders/le membre instructeur...peut rendre. (The emphasis is mine.) Subsection 53(3), to which paragraph 54(1)(b) makes reference, also uses the expression may/peut. [153] When may is used in legislation there is rarely any doubt about what the word means (See Interpretation Act, R.S. 1985, c. I-21, s. 11.). It means that Parliament authorizes a person to do something that he would otherwise not be able to do or to do something that would otherwise be legally ineffective. In this case, Parliament as empowered the member or panel of the Tribunal to order certain remedies including special compensation to the victim. When a statutory power is conferred using the word may, the implication is that the power is discretionary and that the person or persons authorized to exercise this power can lawfully decide whether or not to exercise it. This discretion must, though, be exercised judicially and in light of the evidence before the Tribunal. (See Canadian Human Rights Commission v. Dumont, 2002 FCT 1280, at paras. 12-15). [154] In this case, paragraph 54(1)(b) provides that compensation may be ordered where: a victim; is specifically identified in the communication that constituted the discriminatory practice; and the Respondent engaged in the practice wilfully or recklessly. [155] The first requirement is that the Respondent pay a compensation to a victim. The Tribunal must determine if the Complainant in this particular case is a victim of the discriminatory practice. [156] In her closing arguments the Commission's lawyer addressed this issue. She referred to subsection 40(1) of the Act which states: 40. (1) Subject to subsections (5) and (7), 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 with the Commission a complaint in a form acceptable to the Commission. 40. (1) Sous réserve des paragraphes (5) et (7), un individu ou un groupe d'individus ayant des motifs raisonnables de croire qu'une personne a commis un acte discriminatoire peut déposer une plainte devant la Commission en la forme acceptable pour cette dernière. [157] Interestingly, paragraph 40(5)(b) of the Act contemplates specifically a situation such as the present one when it states: 40(5) No complaint in relation to a discriminatory practice may be dealt with by the Commission under this Part unless the act or omission constitutes the practice (b) occurred in Canada and was a discriminatory practice within the meaning of section 5, 8, 10, 12 or 13 in respect of which no particular individual is identifiable as the victim. (The emphasis is mine.) 40(5) Pour l'application de la présente partie, la Commission n'est validement saisie d'une plainte que si l'acte discriminatoire: b) a eu lieu au Canada sans qu'il soit possible d'en identifier la victime, mais tombe sous le coup des articles 5, 8, 10, 12, ou 13. (Non souligné dans l'original) [158] The Commission, in its closing arguments, rightly added, in light of this subsection, that there is no need to be a victim in order to file a complaint under section 13 of the Act. It also referred to the case of Warman v. Winnicki, supra, where at para. 46, the Tribunal indicated that, under section 13, it was not necessary to show that, in fact, anyone was victimized by the hatred or contempt directed to the targeted group. The Commission concluded by stating that the case law and particularly the Act clearly authorize any individual or group of individuals to file a human rights complaint under this section whether or not they are the victims of the discriminatory practice which is alleged. The Commission did not think that the question of whether or not the Complainant was a victim was an issue in this case. [159] The Complainant, for its part, did not present, during the hearing, any evidence which could establish that he was a victim of the discriminatory practice of the Respondent. He didn't have to in order to file his complaint. In his original complaint, the Complainant had sought relief under section 14.1 of the Act for retaliation. At the start of the hearing, he chose to abandon this claim. He cannot now resurrect this claim by seeking special compensation under paragraph 54(1)(b). The Tribunal therefore concludes, for the above given reason, that the Complainant has not met the burden under this paragraph. [160] The Tribunal therefore concludes that the Complainant's claim to compensation under paragraph 54(1)(b) is unfounded. (iii) An order to pay a penalty under paragraph 54(1)(c) [161] Paragraph 54(1)(c) provides that the Tribunal may order the Respondent to pay a penalty of not more than $10,000. In deciding whether to order the payment of the penalty, the Tribunal must, according to subsection 54(1.1), take into account: the nature, circumstances, extent and gravity of the discriminatory practice; the wilfulness or intent of the person who engaged in the discriminatory practice; any prior discriminatory practices that the person has engaged in; the person's ability to pay the penalty. [162] The numerous hate messages posted by the Respondent were highly contemptuous and injurious. They portrayed members of the targeted groups as evil and criminal. They referred to Jews as parasites and vermin. They claimed that Blacks were intellectually inferior to Whites. They called for the expulsion of Jews, Blacks and other non-whites from Canada. These messages are malicious, vicious and extreme in the violent nature of their overtone. [163] The active promotion of hatred and contempt towards members of the targeted groups by the Respondent 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 may benefit from equal opportunity regardless of personal traits such as race, national or ethnic origin, colour, and sexual orientation. [164] On the positive side for the Respondent, there was no information that he had engaged in any prior discriminatory practices before he started posting on the Stormfront website in 2004. Also, the fact that for a period of about ten months, after he was served with the complaint, he refrained from posting any messages and that at one point he even disavowed and repudiated all of his messages should be taken into consideration when determining the amount of the penalty to be imposed. [165] In terms of the extent of the hate messages, the evidence indicates that the Respondent had posted almost 1,900 messages on the Stormfront site, as of July 28, 2006. Since the Tribunal has not seen nor read all of these messages, it cannot, in all fairness to the Respondent, conclude that they all contain hate messages of the nature of those put into evidence in this case. Consequently, the Tribunal cannot come to the conclusion that the number of messages posted favours a penalty at the highest end of the spectrum. [166] The Respondent's wilfulness and intent in engaging in the discriminatory practice, is self-evident from the vicious tone of the messages themselves. His reaffirmation at the hearing that he stood by all his postings, his refusal to utter any remorse and the fact that he has not shown any indication that he has any intent of stopping. [167] The Respondent gave evidence regarding his financial situation. He testified that he did not own a car or a house. He has lost his job at the University of Saskatchewan. He testified that he is presently working 20 hours a week at a minimum wage job, clearing about $600 a month. This evidence went unchallenged and the Respondent was not cross-examined on this matter neither by the Commission, nor by the Complainant. [168] Taking into account the nature, circumstances, gravity and intentional nature of the communication, and taking all the other factors into consideration, I find that a penalty of $4,000, would be reasonable in these circumstances. V. ORDER [169] For the foregoing reasons, the Tribunal finds that the complaint against Terry Tremaine is substantiated and orders that: 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 that 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. 2 Terry Tremaine shall pay a penalty in the amount of $4,000. 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. Tremaine's being notified of this decision. signed by Michel Doucet OTTAWA, Ontario Febraury 2, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1104/8505 STYLE OF CAUSE: Richard Warman v. Terry Tremaine DATE AND PLACE OF HEARING: August 8 to 11, 2006 Ottawa, Ontario DECISION OF THE TRIBUNAL DATED: February 2, 2006 APPEARANCES: Richard Warman For himself Ikram Warsame Giacomo Vigna For the Canadian Human Rights Commission Terry Tremaine Paul Fromm For the Respondent

2007 CHRT 20

CHRT

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

en

2007-05-18

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7045/index.do

2023-12-01

Center for Research-Action on Race Relations v. www.bcwhitepride.com Collection Canadian Human Rights Tribunal Date 2007-05-18 Neutral citation 2007 CHRT 20 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 MEMBER: Pierre Deschamps 2007 CHRT 20 2007/05/18 I. INTRODUCTION II. POSITION OF THE PARTIES III. ISSUES IV. THE EVIDENCE A. The e-mail correspondence B. Chat discussions C. The pictures D. Additional information V. ANALYSIS A. Mr. John Beck B. Bcwhitepride.org C. BC White Pride Group D. White Renegade Group VI. RULING I. INTRODUCTION [1] On March 23, 2004, the Center for Research-Action on Race Relations (CRARR) filed a human rights complaint against www.bcwhitepride.com under sections 13(1) and 13(2) of the Canadian Human Rights Act (CHRA). The complaint was referred to the Tribunal on January 24, 2006. [2] On May 11, 2006, the Commission filed a motion to modify the style of cause and add a party to the proceedings. More specifically, in its motion, the Commission stated that it was seeking to attain a triple objective: to modify the name of the respondent from what it is presently, that is www.bcwhitepride.com to the BC White Pride Group associated to the website www.bcwhitepride.com in order to clarify any ambiguity in the event that the complaint is upheld and enforcement would be required; to add White Renegade Group associated with the website www.whiterenegade.com and to add the name of John Beck as a Respondent associated to the said website. [3] This motion was first presented to my colleague, Ms. Karen Jensen, who, in a ruling rendered on June 26, 2006, ordered that the motion be decided by the member assigned to hear the merits of the complaint. [4] It must be noted here that Ms. Jensen later authorised the issuance of a subpoena duces tecum at the request of the Commission to secure Mr. Beck's attendance at the hearing. Mr. Beck was present throughout the hearing of this motion as well as Mr. Paul Fromm. [5] At the commencement of this hearing, the Tribunal asked Mr. Fromm if he was representing the current respondent www.bcwhitepride.com or Mr. Beck. After consulting with Mr. Beck, Mr. Fromm informed the Tribunal that he was acting as Mr. Beck's agent, and not as an agent for www.bcwhitepride.com. The Tribunal thus concludes that, in these proceedings, the respondent, www.bcwhitepride.com is not represented by counsel. [6] Furthermore, the Tribunal sought clarification on the part of the Commission as to which parties it wanted to add as respondent. It appears now that the Commission wishes to add four new respondents to the current proceedings, i.e. bcwhitepride.com, namely Mr. John Beck, White Renegade Group, BC White Pride Group and www.bcwhitepride.org. [7] In his initial address to the Tribunal, Counsel for the Commission argued that the evidence tendered in the course of this motion could also serve for the merits of the case. [8] The Tribunal is of the view that it would be a serious breach of procedural fairness if the evidence heard in the course of a motion to add new respondents was to be part of the evidence on the merits. This would mean that if the Tribunal was to add a new respondent to the style of cause, the latter would be bound by the evidence already tendered and for which, as a respondent, he would not have had the possibility of fully defending himself against. II. POSITION OF THE PARTIES [9] The Commission as well as the Complainant submit that www.bcwhitepride.org BC White Pride Group and White Renegade Group as well as Mr. John Beck should be added as parties to the present proceedings and argue that their presence is necessary in relation to the conduct of the present inquiry. [10] Mr. Fromm, as Mr. Beck's representative and not as www.bcwhitepride.com's representative, argues that Mr. Beck should not be added as a party and that, in any case, www.bcwhitepride.com is not a legal entity, but an Internet address and has no legal standing. III. ISSUES [11] What the Tribunal has to decide in the context of the present motion is, on the one hand, whether or not Mr. John Beck is the person identifying himself as John in his e-mail exchanges and chat conversations with Rachel and using the alias David Drolet or Renegade1488ca. [12] On the other hand, the Tribunal has to determine whether or not BC White Pride Group, White Renegade Group and www.bcwhitepride.org exist and are related to www.bcwhitepride.com, the present respondent, as well as Mr. Beck. [13] In this regard, the Tribunal has to determine if adding Mr. John Beck, BC White Pride Group, White Renegade Group and www.bcwhitepride.org as respondents in the present proceedings is necessary to make a full and ample inquiry into the complaint. [14] At this stage of the proceedings, the Tribunal does not have to decide the merits of the case and rule on the content of the bcwhitepride website. IV. THE EVIDENCE [15] The Commission called one witness, Mr. Shane Martinez. Although subpoenaed by the Commission, Mr. Beck was not called as a witness. The Tribunal also heard Mr. Bernard Klatt, called as an expert witness by Mr. Fromm. [16] Mr. Martinez testified that, in the spring of 2004, while in the Dominican Republic, he conducted an investigation on two websites, namely, www.bcwhitepride.com and www.whiterenegade.com. Mr. Martinez stated in his testimony that what triggered his interest in these websites was a search on the Stormfront website, a neo-Nazi and white supremacist site, according to Mr. Martinez. There, Mr. Martinez came across postings from a user who was using the moniker Renegade, postings which related to issues in British Columbia and Canada in general. [17] Mr. Martinez testified that, at the time he was collecting the information, it was not with the intent of filing a human rights complaint. His purpose for collecting the information was to identify the individual involved in the two websites so that some measure of community education and awareness could be brought about to expose that individual for the kind of activities that he was engaging. [18] Given that there was no identifying information which appeared on the bcwhitepride and whiterenegade sites, Mr. Martinez was not able to identify the person or persons who had created these sites. However, in order to discover their identity, Mr. Martinez decided to establish an online relationship with the person using the moniker Renegade whose e-mail address was posted at the whiterenegade.com site. Mr. Martinez hoped that, by establishing such a relationship, he would learn more about the person or persons who were operating the website. [19] In order to lure the creators of the above-mentioned websites into providing him with the information he was seeking, Mr. Martinez decided to use a ploy, a ruse, a strategy which, he stated, was quite common with respect to the type of investigation he was conducting. [20] Thus, Mr. Martinez did not utilize his personal identity in his quest to secure the identity of the creators of the websites but the persona of a fictitious character who was involved in similar topics or shared similar views as those listed on the whiterenegade website so as to build a bond of communication between himself and the person or persons responsible for the whiterenegade website. [21] Mr. Martinez thus used the pseudonym Rachel and the moniker Swedish Pride 1488 as contact information. Mr. Martinez wanted to have the person he was corresponding with to believe that he was a woman interested in issues affecting the maintenance of the status of white people in society. [22] Mr. Martinez also used pictures of a young woman to give more credibility to his persona. The pictures he used were taken from a website and are those of a woman who, according to Mr. Martinez, was involved in the type of activities and issues that are addressed at whiterenegade.com and bcwhitepride.com. [23] Mr. Martinez also testified that when he created Rachel's profile on his Yahoo account, he associated with the character Rachel other features, such as music preferences, which espoused certain beliefs of people interested in the same political issues as the websites he was investigating, as well as her marital status, single so that people would be more inclined to engage in conversation, hobbies, the fact that she was living in Ontario. [24] Mr. Martinez, using the moniker Rachel, used the e-mail address swedish4life@cyber-rights.net to establish contact with Renegade through the latter's e-mail address found on the whiterenegade.com website, i.e. whiterenegade@whiterenegade.com. According to Mr. Martinez, when writing to the e-mail address whiterenegade@whiterenegade.com, the e-mail sent was automatically forwarded to a different address, in this case renegade1488ca@yahoo.com. [25] Through renegade1488ca@yahoo.com, Mr. Martinez, identifying himself as Rachel and using the e-mail address swedish4life@cyber-rights.net, was able to establish contact with an individual identifying himself at first as John. Mr. Martinez was not only able to communicate with John through e-mails but also through chats. Mr. Martinez was furthermore able to obtain pictures of John. In addition, Mr. Martinez made certain searches on the web in order to get more information as to the identity of John. [26] In his testimony, Mr. Martinez explained what information he was trying to preserve in the course of his investigation. He stated that the information he tried to capture, aside from the content of the discussions which were taking place in the e-mails and chat conversations, was the name of the sender, the name of the recipient, the date that the e-mail was sent, as well as the subject matter of the e-mail, the internet provider addresses of the servers through which the e-mail went through the Internet in order to arrive at the destination and from where it was sent. [27] At the hearing, Mr. Martinez explained how he went about saving the e-mail correspondence and chat conversations with Renegade. This would include copying and pasting e-mails in a word processing program as well as chat transcripts. Mr. Martinez stated that, while in the Dominican Republic, he saved the documents to an external drive whenever possible. This, he stated, was to avoid corruption of files given the rudimentary nature of the systems he was using and the constant power outages he was experiencing in March 2004 when conducting his investigation. [28] In the course of his correspondence with the person at renegade1488ca@yahoo.com, Mr. Martinez was able to save not all but some of the material that relates to the exchange of e-mails and chats. Because of the power outages, some of the chat conversations were lost. Mr. Martinez further testified that, as he was doing his investigative work, he would jot notes down by hand as well, notes that he would later use to compose a general profile of the investigation he was conducting. A. The e-mail correspondence [29] Two e-mails between John, a.k.a. David Drolet at renegade1488ca@yahoo.com, and Rachel at swedish4life@cyber-rights.net were filed as exhibits. According to the documents tendered in evidence, these two e-mails exchanges took place on March 8, 2004. [30] The relevant information that Mr. Martinez was able to get out of John, a.k.a. Renegade, from these two e-mails is the following: John states that he does not drink, that he goes to the gym five days a week, that he is 36 but looks 26, that he is a philosopher, athlete, and mentor, that he is in the Pacific time zone, that his birthday is March 8, (1968) that he lives in the Okanagan, that he is from Kelowna, that his nickname on Stormfront is Renegade, that is avatar is a drawing of a little shark, [31] Furthermore, in the e-mails, John states about the whiterenegade.com site that it is his own personal online manifesto, that it is not a group, that he had however co-founded a group called BC White Pride, that he helped write much of the content on the site at www.bcwhitepride.com. B. Chat discussions [32] Following the March 8, 2004 e-mail exchange, Rachel and John continued corresponding through online chatting on Yahoo Messenger. The chatting took place between Swedishpride1488 - Rachel - and Renegade1488ca - John. [33] Transcripts of the chat conversations were put in evidence by Mr. Martinez. The chat conversations, according to the transcripts, took place between March 10 and March 29, 2004. [34] The chat conversations refer to pictures sent by Renegade1488ca to Swedishpride1488. They reveal that Renegade1488ca's middle name was David. The transcripts also show that Renegade1488ca had, with the help of his friend and comrade Craig, co-founded BC White Pride, that he loved dogs. The chat transcripts moreover show that Renegade1488ca, a.k.a. John, had never been married and that he was five feet, seven inches tall. [35] Mr. Martinez used all the information he was able to gather in the course of the e-mail exchanges and chat talks to create a profile that, he submits, matches Mr. Beck's profile. C. The pictures [36] The evidence shows that, in the course of his e-mails exchange with John, a.k.a. Renegade, the latter sent to Mr. Martinez pictures of himself. These pictures were filed as Exhibit PH-4B (black and white pictures) and PH-4E (colour pictures). Two of the pictures represent a man in an athletic posture, and two are of a man coming out of the water. The last one represents a man smiling. [37] Asked in the course of his testimony if he saw the person in the pictures in the hearing room, Mr. Martinez pointed to Mr. Beck. Asked if he saw any difference with respect to the pictures, Mr. Martinez pointed out that Mr. Beck had grown a beard. D. Additional information [38] Apart from the e-mails, the chat transcripts and the pictures sent to Mr. Martinez using the persona of Rachel, there are other pieces of information which are relevant to the issues to be decided in relation to this motion. [39] The Commission filed as exhibits Mr. Beck's income tax reports for the year 2004 and 2005. These reports show that Mr. Beck lives in Kelowna and identify his home address. [40] In his testimony, Mr. Martinez asserted that this information, Mr. Beck's address, was provided to him by John when he was conducting his investigation in the Dominican Republic but that, unfortunately, he was not able to save the chat transcript related to that information. Mr. Martinez further stated that John had provided Rachel with his address so that the latter could send him a postcard. [41] Mr. Martinez stated in his testimony that when he obtained John's address, he made a reverse check through 411.ca on the address online to see if that address actually existed. The check confirmed the existence of the address. The income tax return forms filed by the Commission with respect to Mr. Beck show that the latter lives at the address that Mr. Martinez asserts he obtained from John in the course of his investigation. [42] Finally, it appears from the website pages tendered in evidence by Mr. Martinez that www.bcwhitepride.org is a website that is now situated in the USA and, as www.whiterenegade.com, has been owned since November 24, 2006, that is a few days before the commencement of this hearing, by Hal Turner Radio Network. The documentary evidence also shows that BC White Pride is associated with the website www.bcwhitepride.org. V. ANALYSIS [43] In the present proceedings, the Commission wishes to add as respondents Mr. John Beck, B.C. White Pride Group, White Renegade Group and www.bcwhitepride.org. Of these four entities, none were served with the Commission's motion. Mr. Beck was however served with a subpoena duces tecum, ordering him to appear as a witness in relation to the present motion. As stated previously, Mr. Beck attended the present proceedings and made representations through his agent, Mr. Fromm. [44] Mr. Beck is a clearly identified individual. As for B.C. White Pride Group and White Renegade Group, they are undefined groups. Www.bcwhitepride.org is a website. [45] The Tribunal's Rules of Procedure contemplate the addition of a party to an inquiry on motion of another party. Section 8 (3) of the Rules provide that: Where the Commission, a respondent or a complainant seeks to add a party to the inquiry, it may bring a motion for an order to this effect, which motion shall be served on the prospective party, and the prospective party shall be entitled to make submissions on the motion. [46] In Syndicat des employés d'exécution de Québec-Téléphone v. Telus Communications (Québec) Inc., 2003 CHRT 31, the Tribunal stated that the forced addition of a new respondent once the Tribunal has been charged with inquiring into a complaint is appropriate, in the absence of formal rules to this effect, if it is established that the presence of this new party is necessary to dispose of the complaint of which the Tribunal is seized 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, para. 30. This ruling was followed by this Tribunal in Brown and the Canadian Human Rights Commission v. National Capital Commission, 2003 CHRT 43. [47] The evidence presented in relation to the Commission's motion is both testimonial and documentary. It consists of Mr. Shane Martinez's testimony, the file he created with respect to bcwhitepride and Mr. Beck as well as webpages. It also consists of the testimony of Mr. Bernard Klatt, called by Mr. Fromm as an expert witness. [48] In his cross-examination of Mr. Martinez, Mr. Fromm attacked Mr. Martinez's credibility as well as the reliability of the documents he prepared in 2004 while he was in the Dominican Republic. Mr. Fromm criticized the way Mr. Martinez went about collecting information on bcwhitepride.com and whiterenegade.com, using deception, impersonation. Mr. Fromm argued that, given Mr. Martinez's ideology and background, he should not be seen as a trustworthy witness. [49] The evidence shows that Mr. Fromm and Mr. Martinez have a long history of violent confrontation. Excerpts from a DVD viewed by the Tribunal attest to that. To say the least, they have never entertained a peace-love relationship. [50] The Tribunal must say that Mr. Martinez was, at times, in his testimony, evasive, unresponsive and forgetful in relation to questions pertaining to his political views and postings he might have made on certain websites, such as Stormfront. Mr. Martinez's calm and polite demeanour before the Tribunal is in stark contrast with his behaviour in protests, rallies and other events which occurred in Toronto in 2004. His actions, in many ways, are not in tune with what he says. [51] Mr. Fromm called as a witness Mr. Bernard Klatt. Mr. Klatt was qualified by the Tribunal as an expert in internet services. In the course of Mr. Klatt's qualification as an expert, Counsel for the Commission challenged Mr. Klatt's credibility and objectivity by suggesting the he was a close friend of Mr. Beck, Mr. Fromm, as well as a friend of Ernst Zündel. [52] Mr. Klatt acknowledged that he has known Mr. Fromm since 1996, that he has known Mr. Beck since 1998, that he got to know Mr. Beck in the context of media publicity that arose with respect to what was referred to as the Oliver controversy. The Oliver controversy had to do with an individual taking exception to the fact that Mr. Klatt was hosting websites which were considered hateful. [53] Generally speaking, Mr. Klatt was, to say the least, evasive in his answers as to his links and association with the White supremacy movement, Mr. Beck and Mr. Zündel. As for his ties with Mr. Beck, Mr. Klatt had difficulty remembering the type of conversations he has had with Mr. Beck over the past 8 years. This is quite surprising given their long lasting relation. [54] As for his expert evidence, Mr. Klatt expressed the view that the material supplied by Mr. Martinez had significant flaws and drawbacks associated with it, that the value of the material was questionable and raised significant doubts. According to Mr. Klatt, Mr. Martinez could have done a better job in saving the e-mails and the transcripts of the chat conversations which were tendered in evidence, that a more reliable form of evidence in terms of the e-mail exchange and the chat messages could have been provided. [55] The Tribunal finds Mr. Klatt's testimony not persuasive enough for this Tribunal to conclude that the content of the e-mails and chat conversations between Rachel and John, as saved by Mr. Martinez, was in any way altered by Mr. Martinez. [56] This said, in the present case, the documentary evidence supports Mr. Martinez's testimony. On the one hand, there is no reason for the Tribunal to find that Mr. Martinez tampered in any way with the content of the e-mails and chat transcripts put in evidence. In his testimony, Mr. Martinez clearly explained the process he used to collect the information on www.bcwhitepride.com, BC White Pride and John, a.k.a. David Drolet, a.k.a. Renegade1488ca, that Mr. Martinez believes to be Mr. John Beck. [57] The Tribunal thus finds that the content of the e-mails tendered in evidence as well as the chat transcripts are, on a balance of probabilities, truthful and trustworthy and can be relied upon to determine the identity of the entities that the Commission wishes to add as parties to the present inquiry. A. Mr. John Beck [58] Although in attendance throughout the hearing of the motion, Mr. Beck was not called as a witness. Thus, there is no direct testimonial evidence establishing conclusively that John Beck is the John, alias Renegade, alias David Drolet with whom Rachel was in contact through e-mails or chat conversations. The link between John Beck and John, and his different alias, can thus only be established through circumstantial evidence. [59] The evidence shows that Renegade1488ca, John or David Drolet never identified themselves as John Beck. The record shows John, David Drolet, etc. were the identifiers used by someone who corresponded with Rachel in March 2004. [60] Mr. Martinez assumes and strongly argues that the John, David Drolet, Renegade with whom he corresponded, using the alias Rachel, was in fact John Beck. He relies on a number of physical features, such as the height, the color of the eyes, the color of the hair, the shoulder size. According to Mr. Martinez, the profile he created, using information gathered from different sources, fits Mr. Beck's overall description. [61] Mr. Martinez is not an expert in forensic identification, nor is the Tribunal. The Tribunal was however able to assess that Mr. Beck's height is about five feet, seven inches when compared to other individuals, that he has blue eyes, and looks like in his late 30's. The Tribunal was also able to compare the pictures tendered in evidence by Mr. Martinez, pictures that were sent to him by John, a.k.a. Renegade. Two of the pictures show a man in a swimsuit in an athletic posture. The facial features, when compared to those of Mr. Beck, strongly resemble those of Mr. Beck. [62] That Mr. John Beck is probably the person with whom Mr. Martinez, using the persona of Rachel, corresponded with in 2004 is further supported by other pieces of evidence, such as the fact that Mr. Beck, according to a reverse search on 411.ca done by Mr. Martinez, lives in Kelowna BC. This information, as well as Mr. Beck's address is confirmed by Mr. Beck's 2004 and 2005 Tax Return Summary which was put in evidence by the Commission. [63] The Tribunal finds that, in the present case, the circumstantial evidence is strong enough to establish, on a balance of probabilities, that Mr. John Beck is the person with whom Mr. Martinez corresponded with in 2004 and to link Mr. John Beck to BC White Pride, whether the group or the website. The Tribunal concludes that Mr. Beck should be added as a party to the present inquiry, his presence being necessary to dispose fully of the complaint. [64] This said, it will always be opened for Mr. Beck to show that he is not the John with whom Rachel corresponded with in 2004 and that he is not, in any way, associated with BC White Pride, www.bcwhitepride.com, or www.bcwhitepride.org. B. Bcwhitepride.org [65] The evidence shows that Mr. Martinez was able to access a website called www.bcwhitepride.org and download many webpages from the site, webpages which, with regard to their content, resemble, in many ways, pages that used to be on the bcwhitepride.com website. [66] A search on BetterWhois.com as well as Whois.net shows that the domain name bcwhitepride.org was created in July 2004. According to Mr. Martinez, this information is reliable given that it is generated automatically. [67] In the present context, it appears that bcwhitepride.org is in fact intimately associated with bcwhitepride.com. In the course of his testimony, Mr. Martinez stated that it was not uncommon for someone who creates a website to use different dot, such as .com, .net, .ca, etc. [68] Whether or not either or both of these sites are legal entities are issues which still have to be decided. At the hearing, Mr. Fromm indicated that this issue was still a live issue which might be raised in the future. [69] Without deciding, for now, whether or not a website is an entity which has legal status or standing, the Tribunal finds that www.bcwhitepride.org is a website that exists and is most probably an offshoot of www.bcwhitepride.com. The Tribunal finds that www.bcwhitepride.org's presence in the present proceedings is necessary to fully dispose of the complaint. C. BC White Pride Group [70] The Commission contends that there exists, in British Columbia, a group called BC White Pride. Many exhibits tendered in evidence refer to the existence of such a group. [71] For example, one can find many references to BC White Pride on the bcwhitepride.org site. A webpage found on the bcwhitepride.org site contains the following text: Welcome to BC White Pride There's a bold new movement being championed in British Columbia focused specifically on educating White people regarding issues of concern such as immigration [72] The existence of a group called BC White Pride is furthermore confirmed by John, alias Renegade. In an e-mail dated March 8, 2004 sent to Rachel, John states that whiterenegade.com is his own personal online manifesto and not a group. He however acknowledges having co-founded a group called BC White Pride. In a chat conversation with Rachel on March 10th, 2004, John again refers to the fact that he co-founded BC White Pride with a friend and comrade called Craig. [73] The Tribunal finds that, on a balance of probabilities, there exists such a group calling itself BC White Pride and that its presence is necessary to fully dispose of this complaint. D. White Renegade Group [74] The Commission contends that there exists, in British Columbia, a group called White Renegade. The evidence does not reveal that such a group exists. It however shows that a website www.whiterenegade.com exists and that it is the online manifesto of John which whom Rachel corresponded. [75] It must be noted here that www.whiterenegade.com is not a party to the present proceedings. [76] Given the absence of any evidence showing that White Renegade is a group, the Tribunal cannot conclude to the existence of a group called White Renegade. Hence, the Commission's request to add this group as a party in the present proceedings is denied. VI. RULING [77] Given that Mr. Beck was present throughout the present proceedings and made submissions through Mr. Fromm as to why he should not be added as a party and given the evidence, the Tribunal orders that Mr. John Beck be added as a party to the present proceedings. [78] Given that the evidence shows that BC White Pride Group and www.bcwhitepride.org are entities which exist, the Tribunal orders that they be served with this ruling so that they can, in due course, make submissions on the Commission's motion to add them as parties. [79] Given the lack of evidence as to the existence of White Renegade Group, the Commission's request to add White Renegade Group as a party is denied. Signed by Pierre Deschamps OTTAWA, Ontario May 18, 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: November 28 to 30, 2006 and April 10 to 13, 2007 RULING OF THE TRIBUNAL DATED: May 18, 2007 APPEARANCES: Fo Niemi For the Complainant Giacomo Vigna For the Canadian Human Rights Commission Paul Fromm For the Respondent

2007 CHRT 21

CHRT

Warman v. Lemire

en

2007-05-17

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7046/index.do

2023-12-01

Warman v. Lemire Collection Canadian Human Rights Tribunal Date 2007-05-17 Neutral citation 2007 CHRT 21 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 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 2007 CHRT 21 2007/05/17 MEMBER: Athanasios D. Hadjis [1] Marc Lemire has requested that I issue a subpoena to be served on Bell Canada for all documents and information concerning the IP Address 70.48.181.203. [2] During the examination of Canadian Human Rights Commission employee, Dean Stacey, on May 10, 2007, evidence was adduced regarding postings on the Stormfront.org message board that were made by someone using the account identified as Jadewarr. Mr. Lemire claims that this person is in fact a Commission employee. His conclusion is based on the testimony given by Richard Warman in another Tribunal hearing, as well as a number of documents that have been produced in the present case. According to Mr. Lemire, this evidence demonstrates that the Commission has been actively engaging on message boards with him and other individuals who are respondents in similar human rights cases. This indicates, he argues, that the Commission's activities are going far beyond attempting to ameliorate discrimination, and are impacting the fairness of its procedures, the rights of complainants and respondents both, and the guarantees to Charter rights. In addition, this evidence would contradict the testimony of Mr. Steacy to the effect that the Commission does not participate in message board discussions. [3] Apparently, Mr. Lemire has additional documentation in his possession indicating that the IP Address assigned to the computer from which Jadewarr posted was 70.48.181.203. I gather that the Internet Service Provider who assigned this address to the end user was Bell Canada. Mr. Lemire wishes, therefore, to summon a Bell Canada representative to bring all documents and information concerning the IP Address to the hearing, and perhaps definitively establish whether a Commission employee was posting on the message board under the Jadewarr account. [4] The Commission has filed a formal objection to the disclosure of this information, pursuant to s. 37 of the Canada Evidence Act, R.S.C. 1985, c. C-5. In a letter from its Acting Senior Counsel, Philippe Dufresne, the Commission certifies to the Tribunal that this information should not be disclosed on the basis of the public interest as the disclosure of this information would be prejudicial to the Commission's investigative process. [5] The relevant provisions of s. 37 of the CEA are the following: SPECIFIED PUBLIC INTEREST 37. (1) Subject to sections 38 to 38.16, a Minister of the Crown in right of Canada or other official may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information by certifying orally or in writing to the court, person or body that the information should not be disclosed on the grounds of a specified public interest. (1.1) If an objection is made under subsection (1), the court, person or body shall ensure that the information is not disclosed other than in accordance with this Act. (2) If an objection to the disclosure of information is made before a superior court, that court may determine the objection. (3) If an objection to the disclosure of information is made before a court, person or body other than a superior court, the objection may be determined, on application, by the Federal Court, in the case of a person or body vested with power to compel production by or under an Act of Parliament if the person or body is not a court established under a law of a province; or the trial division or trial court of the superior court of the province within which the court, person or body exercises its jurisdiction, in any other case. [...] RENSEIGNEMENTS D'INTÉRÊT PUBLIC 37. (1) Sous réserve des articles 38 à 38.16, tout ministre fédéral ou tout fonctionnaire peut s'opposer à la divulgation de renseignements auprès d'un tribunal, d'un organisme ou d'une personne ayant le pouvoir de contraindre à la production de renseignements, en attestant verbalement ou par écrit devant eux que, pour des raisons d'intérêt public déterminées, ces renseignements ne devraient pas être divulgués. (1.1) En cas d'opposition, le tribunal, l'organisme ou la personne veille à ce que les renseignements ne soient pas divulgués, sauf en conformité avec la présente loi. (2) Si l'opposition est portée devant une cour supérieure, celle-ci peut décider la question. (3) Si l'opposition est portée devant un tribunal, un organisme ou une personne qui ne constituent pas une cour supérieure, la question peut être décidée, sur demande, par : la Cour fédérale, dans les cas où l'organisme ou la personne investis du pouvoir de contraindre à la production de renseignements sous le régime d'une loi fédérale ne constituent pas un tribunal régi par le droit d'une province; la division ou le tribunal de première instance de la cour supérieure de la province dans le ressort de laquelle le tribunal, l'organisme ou la personne ont compétence, dans les autres cas. [...] [6] Section 36.1 of the CEA states that the term official has the same meaning as in s. 118 of the Criminal Code, which in turn provides that an official means a person who holds an office or who is appointed to discharge a public duty. I am satisfied that Mr. Dufresne, in his capacity as Acting General Counsel for the Commission, is a person appointed to discharge a public duty, within the meaning of s. 118. I would note, furthermore, that this is not the first time that Commission lawyers have invoked s. 37 to prevent the disclosure of information in this case. At no time has any party argued on those occasions or the present one, that Commission counsel is not an official within the meaning of s. 37. [7] Once an official has made an objection under s. 37(1) of the CEA, the court, person or body in receipt of the objection is required to ensure that the information is not disclosed other than in accordance with the CEA (s. 37(1.1)). In hearings before the Canadian Human Rights Tribunal, the objection may only be determined, on application, by the Federal Court (s. 37(3)(a)). [8] One of the interested parties in this case, the Canadian Association for Free Expression (CAFE), submits that the Commission's objection is premature. It contends that the words of s. 37 do not preclude the obtaining of information, only its production as evidence. I disagree. Section 37(1) states that an official may object to the disclosure of information before a court, person or body. The restriction is not limited to production as evidence. Moreover, the Tribunal's power to issue the subpoena being sought by Mr. Lemire is derived from s. 50(3)(a) of the Canadian Human Rights Act, which provides that the Tribunal may 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. Thus, the subpoena that Mr. Lemire is seeking would compel the Bell Canada representative to attend the hearing and produce the documents relating to the above noted IP Address, not to merely enable Mr. Lemire to obtain information. [9] For his part, Mr. Lemire contends that since s. 37(1) states that an official may object to the disclosure of information before a court, person or body with jurisdiction to compel the production of information, the objection can only be made when the Bell Canada witness physically appears before the Tribunal at the hearing. [10] I do not agree with this submission either. Section 37(1) is, in my view, explicit in this regard. The phrase before a court, person or body relates to the disclosure of information. It is the act of disclosing the information before the court, person or body, to which the officer may object. In addition, according to s. 37(1), an official may certify the objection orally or in writing. If an objection under s. 37 was only intended to be made in open court, why would the legislator have given officials the option of certifying their objections in writing? Logically, this provision must contemplate the possibility of an official making his or her objection known in advance of the moment when the information is to be disclosed. Mr. Dufresne's objection is therefore not premature. [11] Furthermore, Mr. Dufresne's certification in writing of the objection states that the specific information referenced in the subpoena request should not be disclosed on the grounds of a specified public interest. In these circumstances, it would be absurd for the Tribunal to summon the witness and compel him or her to produce documents that we know are the object of a s. 37 objection. Given that the witness, according to the subpoena request, would not have any other evidence to present, I do not consider his or her evidence or documents as necessary for the full hearing of the complaint, within the meaning of s. 50(3)(a) of the Canadian Human Rights Act. As is noted in the text of Alan W. Mewett & Peter J. Sankoff, Witnesses, looseleaf (Toronto: Carswell, 2004) at 7-17, n. 104, where it is clear that a witness cannot offer any admissible evidence because, for example, any such evidence would be privileged, the subpoena may be quashed. [12] Mr. Lemire's request for a subpoena of Bell Canada for all documents and information concerning the IP Address 70.48.181.203 is therefore denied. Signed by Athanasios D. Hadjis OTTAWA, Ontario May 17, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1073/5405 STYLE OF CAUSE: Richard Warman v. Marc Lemire RULING OF THE TRIBUNAL DATED: May 17, 2007 APPEARANCES: Richard Warman For himself Giacomo Vigna / Philippe Dufresne 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 22

CHRT

Montreuil v. Canadian Forces

en

2007-05-23

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7027/index.do

2023-12-01

Montreuil v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2007-05-23 Neutral citation 2007 CHRT 22 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 23, 2007 Citation: 2007 CHRT 22 [1] When the hearing resumed in the afternoon of May 17, 2007, Mr. Guy Lamb, one of the respondent’s counsel, the Canadian Forces, brought to the Tribunal’s attention an event which had occurred during the morning recess. This event involved an exchange which allegedly took place between Ms. Montreuil, the complainant, and one of the respondent’s experts. [2] The Tribunal deemed that the event was serious enough to warrant hearing the expert for the respondent concerned, i.e. Dr. Marylin Wilchesky. [3] From Dr. Wilchesky’s sworn testimony, it appears that sometime during the morning recess, while Dr. Wilchesky was alone at the back of the hearing room, Ms. Montreuil allegedly approached her and asked her in French whether she was prepared to endure the same torture (suggesting mental torture) as the current witness (Dr. Pierre Assalian), and also added some other remarks about her prospective testimony. [4] Dr. Wilchesky testified that she understood from Ms. Montreuil that she was referring to the scrutiny of every document, every word of every document submitted in evidence. [5] In her testimony, Dr. Wilchesky stated that she felt she was being pressured not to testify as an expert witness in this matter. She also stated that she sensed dread and found that the remarks made were threatening (the words were threatening), not physically but mentally. She, however, stated that when Ms. Montreuil approached her, she did not feel physically threatened. [6] Ms. Montreuil did not deny the essence of the facts reported by Dr. Wilchesky. She did not deny using the word torture when she spoke to Dr. Wilchesky. She contended that, in making these remarks, she wanted to make it clear to Dr. Wilchesky that her testimony would not add anything to Dr. Assalian’s testimony, given that she had signed a joint report with Dr. Dufour and Dr. Assalian. [7] The respondent’s counsel argued that Ms. Montreuil’s remarks, specifically the use of the word torture, was a form of intimidation of a person who could potentially testify in this matter. [8] The expert witnesses whose services have been retained by a party are supposed to enlighten the Tribunal on technical or scientific points which are not of judicial knowledge. They must be given the utmost respect, as with any other witness. [9] Nobody can upset the peace of mind of these witnesses during the proceedings. This cannot serve the interests of justice in any way. To the contrary, improper remarks can only compromise the proper administration of justice. [10] In this case, regardless of Ms. Montreuil’s exact words to Dr. Wilchesky on May 17, 2007, Dr. Wilchesky’s uncontradicted testimony indicated that Ms. Montreuil used the word torture in reference to her prospective testimony, that Dr. Wilchesky perceived the words as a threat, and that they aroused some fear in her. [11] The Tribunal considers that Ms. Montreuil’s conduct vis-à-vis Dr. Wilchesky in the hearing room during the morning recess on May 17, 2007, was inappropriate, as were even more inappropriate the words that she was alleged to have used, namely, the use of the word torture in reference to Dr. Wilchesky’s prospective cross-examination. [12] It is unfortunate that counsel would perceive the cross-examination of a witness as a form of mental torture and that counsel would share this with a potential witness of the opposing party. Even more unfortunate is the fact that a witness was made to feel that her testimony was not welcome. [13] Ms. Montreuil’s intention may not have been to intimidate Dr. Wilchesky. Dr. Wilchesky nevertheless perceived the remarks made as intimidating. In this case, there was absolutely no need for Ms. Montreuil to discuss the prospective cross-examination of Dr. Wilchesky outside the presence of the respondent’s counsel. Had counsel been present, Ms. Montreuil would not have allowed herself to say such things. [14] Accordingly, the Tribunal reiterates the order dated May 17, 2007, to the effect that, in these proceedings, Ms. Micheline Montreuil is forbidden to approach the opposing party’s expert witnesses to speak to them unless the respondent’s counsel are present. This order also applied to other persons who the respondent could later call as witnesses in regard to the hearing of this complaint. 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 23, 2007 Date and Place of Hearing: May 23, 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 23

CHRT

Warman v. Canadian Heritage Alliance

en

2007-05-29

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7030/index.do

2023-12-01

Warman v. Canadian Heritage Alliance Collection Canadian Human Rights Tribunal Date 2007-05-29 Neutral citation 2007 CHRT 23 File number(s) T1089/7005, T1090/7105 Decision-maker(s) Deschamps, Pierre 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 Responden RULING 2007 CHRT 23 2007/05/29 MEMBER: Pierre Deschamps [1] The Tribunal is seized of a complaint under section 13 of the Canadian Human Rights Act brought by Mr. Richard Warman against the Canadian Heritage Alliance and Ms. Melissa Guille. [2] The hearing into this complaint began on November 21, 2006 in Toronto. On November 25, 2006, the hearing was adjourned, the date of its resumption to be determined at a later time. [3] On January 4, 2007, a conference call took place in relation to the resumption of the present hearing. Participating were the Chairperson; the Registrar; Mr. Warman, the Complainant; Ms. Snider, the Commission's Counsel; Ms. Guille, one of the two Respondents; Mr. Fromm, as agent for the Respondent Canadian Heritage Alliance as well as Mr. Kulbashian, as agent for Ms. Guille. [4] Initially, the purpose of the conference call was to consider how many days needed to be set aside in order to complete the hearing as well as when the hearing could resume, given that Ms. Guille had stated that she had difficulties freeing herself from her work for more than 2 days in a row in a month and that she would not be able to do so before the month of August 2007, at the earliest. [5] At the time, Mr. Warman and Ms. Snider expressed their disagreement with respect to Mr. Guille's request that, given her employment limitations, the hearing only resume in the fall and that it be for a few days here and there. [6] During the January 4, 2007 conference call, many possibilities were examined with respect to the resumption of the hearing. It appeared then that Mr. Fromm, Mr. Warman and Ms. Snider were not available in February because of another human rights hearing, that the Tribunal member chairing the hearing was not available in March, April, May and July due to already scheduled or to be scheduled hearings, and had limited availability in June. As for Ms. Snider, she was not available in August. [7] Thus, because of the lack of availability of the Tribunal member chairing the hearing as well as of the parties throughout the months of February to August, it became apparent that the hearing could not unfortunately resume before the month of September 2007. [8] At the end of the conference call, which lasted for one hour and a half, after having explored and discussed the availability of the parties in the fall, everyone, Ms. Guille and Mr. Kulbashian included, agreed that the hearing could resume in September 2007. Four days were then set aside for the completion of the evidence, i.e. September 4 to 7 and two days, at the end of September, for oral pleadings, i.e. September 24 and 25. Everyone present on the conference call agreed with these dates. [9] After the conference call, Mr. Kulbashian and Ms. Guille wrote to the Tribunal stating that they had felt pressured by the Tribunal to agree to the resumption of the hearing in September and asked that the Tribunal reconsider its decision. [10] Following the January 4, 2007 conference call, many attempts were made by the Tribunal to arrange a second conference call to deal with dates and disclosure issues. However, given that it became close to impossible to have all the parties available at the same time, the Tribunal ordered that any request that any of the parties wished to submit to the Tribunal be made in writing. [11] In a letter sent to the Tribunal, on March 27, 2007, Mr. Kulbashian indicated dates in the months of August, September, October and November 2007 where Ms. Guille would be available to attend the hearing with an indication of how many days in a row she could free herself. Mr. Kulbashian indicated in his letter that, in the month of September, Ms. Guille would be available September 5 to 7, 2007 or September 24 to 26, 2007. Mr. Kulbashian also suggested that the hearing be held in Toronto or Oakville. [12] Human rights hearings should not be spread over long periods of time. The Tribunal's Rules of Procedure state that hearings should be conducted as expeditiously as possible. Hearings should thus be scheduled so as to have the hearing completed within a relatively short period of time. [13] This said, there may be circumstances where, because of the lack of availability of the Tribunal member chairing the hearing as well as the parties and their counsel, hearing dates have to be set far apart which is the case in the present proceedings. This is not ideal. [14] In the present case, the Tribunal considers that Ms. Guille has and has had ample time to make arrangements with her employer in order to be able to be present at the hearing on the already set dates. Ms. Guille cannot hold the present hearing at bay for ever and have her personal situation determine the hearing schedule irrespective of other considerations. [15] Mr. Warman and the Commission have indicated that they expect to have completed the presentation of their evidence within two days. At the present time, the only witness left to be heard is Mr. Warman. This said, Ms. Guille has yet to indicate if she will testify or not. Nonetheless, two days have been set aside in case she decides to do so. [16] Thus, four days are scheduled for the parties to complete the presentation of their evidence. Given Ms. Guille's time constraints, the Tribunal does not exclude the possibility for the Tribunal, when the hearing resumes, to sit longer hours in order to have the hearing completed within three days. [17] Furthermore, taking into consideration Ms. Guille's limited availability in September, i.e. a period of three days either at the beginning of the month or at the end of the month, the Tribunal finds that written submissions are warranted in the present circumstances instead of oral submissions. This measure will in fact eliminate the necessity for Ms. Guille to attend two hearing sessions in the month of September. [18] For the above mentioned reasons, the hearing dates previously set with respect to the resumption of the hearing in Toronto, i.e. September 4 to 7, 2007, are confirmed. The hearing dates previously set aside for oral submissions, i.e. September 24 and 25, 2007, are cancelled. The parties will be requested to file written submissions. Signed by Pierre Deschamps OTTAWA, Ontario May 29, 2007 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: May 29, 2007 APPEARANCES: Richard Warman For himself Ceilidh Snider For the Canadian Human Rights Commission Alexan Kulbashian Paul Fromm For Melissa Guille For the Canadian Heritage Alliance

2007 CHRT 24

CHRT

Warman v. Canadian Heritage Alliance

en

2007-05-29

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7031/index.do

2023-12-01

Warman v. Canadian Heritage Alliance Collection Canadian Human Rights Tribunal Date 2007-05-29 Neutral citation 2007 CHRT 24 File number(s) T1089/7005, T1090/7105 Decision-maker(s) Deschamps, Pierre 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 Respondent RULING MEMBER: Pierre Deschamps 2007 CHRT 24 2007/05/29 [1] In a letter dated March 27, 2007, Mr. Kulbashian, Ms. Guille's agent, requests that Mr. Warman disclose to him documents that are arguably relevant to the present proceedings. More specifically, Mr. Kulbashian states in his letter that: Mr. Warman has still failed to disclose notes from his speech on January 18, 2007; Mr. Warman has not disclosed his notes from other speeches that mention the respondents; Mr. Warman has still to disclose a list of accounts that he has created on ANY of the Canadian Heritage Alliance forums or bulletin board systems. [2] The parties are reminded that it is their obligation to disclose every document which is arguably relevant to the issues to be decided in relation to the present complaint. [3] Hence, the Tribunal directs Mr. Warman to disclose to Mr. Kulbashian any document that he has in his possession which is arguably relevant to the issues to be decided in the present proceedings. More specifically, the Tribunal orders that Mr. Warman disclose, if he has not yet done so, to the respondents through the Tribunal: any document that mentions the respondents; a list of names of forum accounts that Mr. Warman might have created which gives him the ability to post messages on any Canadian Heritage Alliance forum. [4] Further, the Tribunal directs Mr. Warman to provide to the Tribunal speech notes, text or audiotapes related to an event which took place on January 18, 2007 in relation to an anti-racist gathering in Toronto. The Tribunal will determine if they are arguably relevant to the present proceedings, and if so, disclose them to the respondents. Signed by Pierre Deschamps OTTAWA, Ontario May 29, 2007 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: May 29, 2007 APPEARANCES: Richard Warman For himself Ceilidh Snider For the Canadian Human Rights Commission Alexan Kulbashian Paul Fromm For Melissa Guille For the Canadian Heritage Alliance

2007 CHRT 25

CHRT

Witwicky v. Canadian National Railway

en

2007-07-06

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7036/index.do

2023-12-01

Witwicky v. Canadian National Railway Collection Canadian Human Rights Tribunal Date 2007-07-06 Neutral citation 2007 CHRT 25 File number(s) T1123/0506 Decision-maker(s) Doucet, Michel Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE WILLIAM CARL WITWICKY Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN NATIONAL RAILWAY Respondent DECISION 2007 CHRT 25 2007/07/06 MEMBER: Michel Doucet I. INTRODUCTION A. The Facts II. THE EVENTS OF DECEMBER 31, 2001 III. THE RCMP REPORT IV. FOLLOW UPS TO THE EVENTS OF DECEMBER 31, 2001 (i) Employees Statements a) The Complainant's Statement b) Larry Hindle's Statement V. THE EVENTS FOLLOWING THE COMPLAINANT'S DISMISSAL VI. THE REINSTATEMENT CONTRACT VII. THE ALLEGATIONS OF HARASSMENT AND RETALIATION VIII. ANALYSIS A. The Sections 7 and 10 Complaints B. Was a prima facie case made out? C. Conclusion Regarding the Complainant's Sections 7 and 10 Complaints D. The Section 14 Complaint E. The section 14.1 Complaint: Has the Respondent retaliated against the Complainant? IX. CONCLUSION I. Introduction [1] On August 8 and October 25, 2003, William Carl Witwicky (the complainant) filed two complaints under Sections 7, 10, 14 and 14.1 of the Canadian Human Rights Act (the Act) against Canadian National Railway (the respondent). The complaints allege that the respondent has engaged in a discriminatory practice on the ground of disability and retaliation in a matter related to employment. A. The Facts [2] The complainant grew up in the town of Jasper, Alberta, where he lived for thirty five years. He came from what he described as a railway family. He began working for the respondent on July 2 nd, 1975, as a part-time employee. He got hired on a full time basis on July 22, 1977. He has since been working for the respondent, at the exclusion of a period of eight months, during which he had been dismissed. [3] The complainant is a train conductor. Conductors are part of a group of employees commonly called the running trades. These employees operate the trains. The complainant works out of Kamloops, British Columbia, where he also resides. II. THE EVENTS OF DECEMBER 31, 2001 [4] On December 30, 2001, the complainant was called to work a train from Kamloops to Jasper, Alberta. The trip to Jasper took close to twelve hours. The train arrived in Jasper at 12:15 p.m., on December 31, 2001. Jasper being the final terminal, the complainant booked an eight (8) hours rest period This rest period would have ended at 10:15 p.m. at which time he would be subject to a call for work. [5] The complainant received excessive layover pay1 for the period between 11:15 p.m., on December 31, and 6:55 a.m., on January 1, 2002. For this period, he received a compensation of $126.90. During his cross-examination, he said that he first became aware, on March 28, 2002, that he had been paid excessive layover pay for that period. He added that he had offered to return the money, but that the respondent had refused. [6] Upon arriving in Jasper, the complainant booked a room at the bunkhouse. The bunkhouse is a facility where employees can book a room to rest before returning to work. While there he phoned his wife with whom he had recently separated. According to his own words, this conversation went sour and she informed him that she was going to file for divorce. He said that this information left him devastated. [7] The complainant's sister lives in Jasper. After his conversation with his wife, he went over to her house to talk to her about his marital problems. They discussed his emotional state. He described himself as very distraught and upset. He added that he had been up all night and still hadn't had anything to eat. In his own word he was basically a mess. [8] After talking with his sister, he decided to book himself off as unfit for duty. He had decided to stay in Jasper for a few days, as this was his last trip prior to his holidays. [9] In order to book himself off, he telephoned the Crew Management Centre (CMC) in Edmonton, Alberta. The CMC oversees the day-to-day assignment of the manpower for the respondent's trains. The CMC works off a computer system referred to as the CATS, an acronym which stands for Crew Accountability and Timekeeping System. This system is used to help the CMC identify which employees are available for work at all time. According to the evidence of Richard Froment, the manager of CMC for Western Canada, the computer system ties into a train line-up and shows at what time the train is scheduled to run. CMC then identifies which employees will be working on those trains. [10] Mr. Froment testified as to the procedure used by employees to book on or off the system. Booking off requires that the employee call CMC and tell them that he wants to be placed on a status other than available. The respondent is thereby informed that that employee is not available for work. The dispatcher will enter this information into the system. When this is done, it creates a permanent record that remains in the system for three years. After that period, the information is archived electronically and is available on request. [11] The CATS does not show whether an employee booked off at his at-home terminal or at an away-from-home terminal. According to Mr. Froment, if an employee books off at the away-from-home terminal, the system automatically transfers the employee's turn back to his home terminal. By this, he means that the system will indicate that the employee is located at this home terminal. The crew dispatcher will also notify the Chief Rail Traffic Controller who is responsible to line up the manpower at the away-from-home terminal, so that he can find a replacement for the employee booking-off. Mr Froment indicated that booking off at the away-from-home terminal is very rare. [12] An employee who has booked off is not subject to be called to work. In order to book-on again the employee has to call the CMC and request to be booked available. Mr. Froment explained that an employee who asks to be booked back on at an away-from-home terminal would, as a rule, be booked back on at his home terminal, although he accepted that it was possible to do it at the away-from-home terminal. CMC has the ability to take the employee's turn and move it to the away-from-home terminal but Mr. Froment added that in his twelve years at the CMC, he had never seen an employee book back on at the away-from-home terminal. [13] When booking on or off, an employee must communicate with CMC by telephone. As indicated earlier, these phone calls are handled by crew dispatchers. There are eight crew dispatchers per shift working at the CMC, in Edmonton. Each dispatcher is assigned a specific territory. The employee will call a central number and will be directed to the dispatcher for his region. Mr. Froment explained that two methods are used to record the information when an employee calls in: first, the CATS system will stamp a permanent record into the system when the employee calls and secondly, their will be an audio recording of the call. Mr. Froment added that the crew dispatchers are told to keep the employee on the phone until all the information is taken down and recorded in the system. CMC wants to make sure that all the actions necessary to book an employee off are completed before the dispatcher moves on to another task. This method of recording calls was in place on December 31, 2001. At that time, the system used for recording the calls was described by Mr. Froment as a reel-to-reel system. Each tape would contain approximately one week's worth of data. It recorded the calls as they were received; so finding a specific call on the tape could be difficult. [14] It would appear that in the case of the purported conversation between the complainant and CMC on December 31, 2001, no recording could be found. When cross-examined on this point, Mr. Froment acknowledged that a tape of the calls received on that day existed. He also said that he could not explain why a copy of this tape was not provided to the union when requested. Finally, he added that he had not reviewed the tape for that day before the hearing. [15] During his cross-examination, Mr. Froment accepted that errors did happen and that employees were not booked-off or booked-on when they should have been. He also indicated that this was normal considering that CMC receives over a million calls per year. He further specified there would be probably six incidents a month on average where an employee was booked off incorrectly. [16] A printout of the complainant's work history for December 30, 2001 to January 3, 2002, as recorded on the CATS system, was entered in evidence. There was no record on the work history of the complainant booking off unfit on any of those dates. [17] Coming back to the evening of December 31, after his sister had left with some friends, the complainant went out for dinner with a friend. He acknowledges that he had some drinks of alcohol during that evening. He testified that to the best of my recollection it was maybe a total of six or seven drinks. [18] Later during the evening, at around 10:30 p.m., the complainant was taken into custody by the RCMP when he was found passed out in a stolen vehicle. According to the complainant's recollection, when he left the restaurant there was a long wait for taxis. He said that he was offered a drive by an individual whom he believed worked at the restaurant. After a couple of blocks the driver abandoned the vehicle and that is where the RCMP officers found him. [19] He spent the night of January 1, 2001, in police custody. The next morning, at 7:25 a.m., he provided a statement to the police. According to the police document, this interview ended at 7:52 a.m. The complainant was initially charged with possession of stolen property. This charge was later dropped. [20] The complainant was released from police custody on the morning of January 1, 2002, a little before 8:00 a.m. He got a ride with an off-duty RCMP officer to the bunkhouse to retrieve his belongings. He arrived at the bunkhouse a little after 8:00 a.m. He was then told that a supervisor was looking for him to take a call for duty on a train leaving for Kamloops. [21] According to David James, who was the on-duty supervisor in Jasper, the complainant was ordered on a train for 7:10 a.m. At the away-from-home terminal, the employee is responsible to provide the CMC with a room number where he or she can be reached. In this particular case, when it came time to call the complainant, he was nowhere to be found. CMC was notified and the MCO (Manager of Corridor Operations) contacted Mr. James at his home to advise him of the situation. Mr. James testified that he made a few phone calls. One to the hospital, in Jasper, and another to the RCMP, to see if they had any knowledge of where the complainant might be, but to no avail. The call to the RCMP was automatically forwarded to the Edson detachment, a town about 160 kilometres away, because there were no on-duty RCMP officers at Jasper at the time. This is surprising since Mr. James testified that he made the calls between 7:00 and 7:30 a.m., and the complainant at that time was still detained at the Jasper detachment. The answer given by the Edson detachment, according to Mr. James, is also surprising since it appears that they did not bother checking with the detachment in Jasper where they would have found an answer to their queries. [22] Mr. James added that he also spoke to Larry Hindle, the engineer who had worked the train with the complainant the previous day to see if he knew about the complainant's whereabouts. Mr. Hindle answered that did not know where the complainant was. [23] At approximately 8:10 a.m., just before he was getting ready to drive to Jasper, Mr. James got a call from the bunkhouse attendant indicating that the complainant had just showed up. He then asked to speak to the complainant. He said that he asked him where he had been and the complainant answered I spent the night at a friend's place. He also added that he had asked him why he had not let anybody know where he could be reached. The complainant answered I screwed up and would in the future do this.. He finally asked the complainant if he was fit to go to work, to which he answered that he was. Based on this answer and on the fact that the complainant sounded normal, Mr. James told him to get on the train as soon as possible. On cross-examination, the complainant conceded that at no time during this conversation did he mention that he had booked himself off as being unfit the night before, nor did he later contact the CMC to book himself back on, as it would be the normal procedure. [24] Later that same morning, Mr. James phoned Mr. Mitch McAmmond, the on-duty train master in Kamloops, and told him that the complainant had been late for his assignment at Jasper. He also informed him that the train had been delayed as a result. He suggested that Mr. McAmmond may want to speak to the complainant upon his arrival in Kamloops. [25] The train got into Kamloops at about 7:00 p.m. on January 1, 2002. On arriving at destination, the locomotive engineer, Larry Hindle, and the complainant proceeded to do their time return tie up in the computer room. At that time, according to the complainant, supervisor McAmmond walked through the room. He wished them both a happy New Year and then inquired how the trip had gone. He never questioned the complainant. Larry Hindle corroborated this version of the events. [26] The version of Mr. McAmmond is quite different. He testified that when he saw the train arriving, he walked towards it to meet the crew. He said that he saw Mr. Hindle get off and that he waited for the complainant to come off but he never did. Mr. McAmmond got on board the train to see if the complainant was still there but he did not find him. He then went back into the building and asked Mr. Hindle if he knew where the complainant was, Mr. Hindle answered that he did not. He added that he was never able to locate the complainant on January 1, 2002. If the version of Mr. McAmmond is correct, then the complainant would have had to have gotten off the train before it pulled into the station at Kamloops. This certainly would be very unusual and one would expect the respondent to investigate such an incident. It is curious that Mr. McAmmond did not pursue this matter further by interviewing the complainant as to his whereabouts when the train pulled into the station on that day. Considering Mr. McAmmond's recollection of what happened on that day, I will, if it is relevant to my decision, accept the complainant's version of what happened. [27] On January 7, 2002, the complainant left for a month and a half vacation to Australia. III. The RCMP Report [28] Constable Benoit Lecuyer of the Royal Canadian Mounted Police ( the RCMP) was one of the officers on duty on the evening of December 31, 2001. At around 10:00 p.m., the detachment received a complaint regarding a stolen pick-up truck. The truck was parked outside a restaurant in Jasper and when the delivery person for the restaurant came out to use it, it was gone. The vehicle was later located in a parking lot in front of a gas station. An individual was passed out in the passenger seat and the engine of the vehicle was still running. [29] At around 10:48 p.m., Constable Lecuyer arrived on the scene where the stolen vehicle had been located. He testified that he noticed that there was one male individual, who appeared to be sleeping on the passenger side. As he approached the truck, he said that he could smell a strong odour of alcohol. He added that he tried to wake the male occupant up for approximately five minutes, but to no avail. Constable Lecuyer and another colleague then pulled the individual out of the vehicle in order to proceed to his arrest. According to Constable Lecuyer, the individual was highly intoxicated. [30] Constable Lecuyer testified that they were able to identify this person by his British Columbia driver's licence as William Witwicky, the complainant. At the detachment, the complainant was put into a holding cell. During all this time, he was still passed out. [31] At around 1:16 a.m., Constable Lecuyer was informed by the cell block guard that the complainant was now awake and standing up. He said that he then approached the cell and tried to determine his level of consciousness. He added that he noticed that the complainant was using the walls of the cell for balance which indicated that he was still intoxicated. He then tried to explain to the complainant where he was and why he was there. The complainant just nodded his head but did not reply. According to the officer, the complainant did not appear to understand what was happening. [32] Constable Lecuyer returned to check on the complainant at around 3:01 a.m. and found him wide awake but agitated. He said that he tried to calm him down. The constable again concluded that the complainant was still too intoxicated to understand fully what was happening. [33] His next dealing with the complainant was around 7:25 a.m. on the morning of January 1, 2002. He noticed that, at this time, the complainant was calm and in a better condition to understand why he was being detained. He decided at this point to let him out of the cell and proceeded to lead him to the interview room where his rights and police caution were read to him. The complainant advised the officer that he did not want to call a lawyer. He added that he hadn't done anything wrong and that he wanted to apologize for his behaviour. He then proceeded to give a recorded statement to the officer. [34] The complainant was later charged with possession of stolen property and released, at around 8:00 a.m., on his own recognizance. The follow-up investigation was conducted on January 2, 2002. It mainly consisted of going back to the restaurant from where the truck had been taken. Constable Lecuyer stated that, during this investigation, he spoke with the owner of the restaurant and two other employees. According to these interviews, the complainant arrived at the restaurant at around 8:00 p.m. with two other individuals. The owner of the restaurant also informed the constable that he did not want to pursue this matter any further. Following this, the constable informed the complainant that the charges relating to stolen property had been dropped. [35] The Continuation Report prepared by Constable Lecuyer indicates that on January 9, 2002, Constable Benoit Tessier, a policeman with the respondent, had contacted the Jasper detachment of the RCMP and had requested a copy of the complainant's statement as soon as possible. On January 24, 2002, a transcription of this statement was forwarded to Constable Tessier. IV. Follow ups to the events of December 31, 2001 [36] On the complainant's return to Kamloops from his Australian vacation in late February 2002, he contacted Mr. Gary George Kopp, Chairperson for the Local Committee of Adjustment of the United Transportation Union, to see how things were going. Mr. Kopp informed him of a conversation he had with Hans Nederpel, a supervisor with the respondent. He said that Mr. Nederpel had approached him and had brought up the subject of the complainant's conduct on December 31, 2001. According to Mr. Kopp, Mr. Nederpel said that the complainant had a drinking problem and that he wanted to see him in a program for alcohol abuse. [37] The complainant was suspended from work on March 22, 2002. A formal investigation of the matter was then undertaken by the respondent. Two employee statements, one of the complainant and the other of Mr. Larry Hindle, were conducted. The first one, with the complainant, was conducted on March 28, 2002, while the second, with Mr. Hindle, took place on April 17, 2002. (i) Employees Statements a) The Complainant's Statement [38] The complainant's statement lasted from 10:00 a.m. to 6:30 p.m., with a break for lunch. The employee statement is not a transcript of everything that is said during the investigation. It is a résumé of the questions asked and the answers given. The statement is prepared by an investigator chosen by the employer. At the end of the investigation, the employee and his representative are asked to read the document and to sign it. [39] Mr. Kopp was the complainant's representative at his employee statement. The investigation was conducted by Mr. John Gosse. Before the start of the procedure, Mr. Kopp had requested that certain documents be made available for inspection including [a]ll transactions and/or all tapes of any conversations between Mr. Witwicky and the involved Transportation Supervisor and/or any Yardmaster and/or any other employees of the railroad on the evening and day that the incident took place. Mr. Kopp testified that he was never provided with the tapes requested. He added that he had also objected to the excessive delay in holding this investigation. [40] The statement indicates that the complainant arrived in Jasper at 12:15 p.m., on December 31, 2002. He had booked eight (8) hours rest, placing himself ready for duty at 8:15 p.m. He had a room at the bunkhouse. He said that after checking, he went over to his sister's home and there, called his estranged wife. This is a different version of events than what the complainant had testified to at the hearing. He then said that he had called his wife from the bunkhouse before going over to his sister. [41] During this conversation, his former wife informed him that she would be asking for a divorce. He said that this information left him emotionally distraught and that he didn't feel mentally capable of doing his job. He added that he then phoned his employer to book himself unfit for work. The complainant said that he spent the rest of the afternoon at his sister's house. [42] At around 6:30 or 7:00 p.m., a friend came over to pick him up and they went to a restaurant. He said that he had several drinks there and had something to eat, although later he adds the he had several drinks on an empty stomach. [43] During the statement, Mr Gosse asked the complainant to explain, if he had indeed booked himself unfit, why he had been placed on excessive layover pay from 11:15 p.m to 6:55 a.m., on the night of December 31 to January 1st. The complainant answered: It never occurred to me. Now in retrospect I should have contacted them and have it removed. [44] Asked by the investigating officer why he had taken the January 1st call, if he had indeed booked unfit the day before, the complainant answered: When I arrived at the station, I found out that I was called for 0710 and that the crew office had held the call for me. The train was there. I felt that it was in my best interest given the fact that I was totally sober and fit for duty, that I was responsible to do my job without delaying the train or getting myself in deeper trouble. I realize that I never should have booked unfit at the away from home terminal but giving my state of mind, I felt it was the right thing to do at the time. [45] On the morning of January 1, 2002, at around 8:10 a.m., the complainant spoke with supervisor Dave James who asked him if the was fit for duty and the complainant answered, yes. The record indicates that he did not inform supervisor James that he had booked unfit the day before, nor did he informed him that he had spent the night at the police station. The complainant explained that he didn't think he needed to, since Mr. James had told him that he had talked to the RCMP and that the complainant would have questions to answer on his arrival in Kamloops. [46] Asked how he could have said that he was fit for duty on the morning of January 1st 2002, when according to the RCMP reports he was still intoxicated at 3:01 a.m., the complainant answered that by the morning he felt totally sober. He added that he had had several hours to sober up and that he had realized that he should never have booked himself unfit for duty. He felt that what had happened during that evening was an isolated incident and a big mistake which could be explained by the very difficult time he was going through in his personal life. He said that he felt very remorseful and embarrassed by the whole situation. [47] The employee statement report was signed by the complainant and by his representative, Mr. Kopp. b) Larry Hindle's Statement [48] Larry Hindle is a locomotive engineer. On April 17, 2002, he gave an employee statement in connection with his tour of duty on December 31, 2001, and January 1, 2002, while operating the train from Jasper to Kamloops. The statement was conducted by Mr. John Gosse before Mr. Kopp, who was acting as the complainant's representative, and Mr. Jim Manson, Mr. Hindle's representative. [49] Mr. Hindle was the locomotive engineer on train Q103, on January 1, 2003, on the return trip to Kamloops. He indicated that, during this trip, the complainant had operated the locomotive on the stretch between Blue River and Kamloops. Mr. Hindle added that the complainant seemed fine when he arrived for work. He also indicated that he had told him that he had booked himself off unfit for duty on the previous night without giving any explanation as to the reasons why. [50] Mr. Hindle also mentioned that upon the train's arrival in Kamloops, he was approached by supervisor Mitch McAmmond with whom he said he exchanged New Year's greetings. He also indicated that the complainant was present during this encounter. [51] Finally, in response to a question asked by Mr. Kopp, Mr. Hindle mentioned that he had been interviewed about the events of December 31, 2001, on January 28, 2002, by supervisor Dave James in Jasper. He also added that, at that time, the supervisor had in his possession a transcript of the complainant's statement to the RCMP. [52] Following his investigation, Mr. Gosse prepared a summation of these two employee statements. He concluded: In view of the above information and investigation, it is recommended [...] that [the complainant's] employment with the [respondent] be terminated for violation of CROR General Rule G and violation of GOI Section 8, part 3.1 including violations of CN Policy to Prevent Workplace Alcohol and Drug Problems. This summation was forwarded to Eric Blokzyl, the then District Superintendent for British Columbia South. Mr. Blokzyl testified that, because of the severity of the violation, he immediately contacted his superior, Mr. James Fitzgerald, General Manager Operations Pacific Division - British Columbia, to discuss the matter. After this discussion with Mr. Fitzgerald, Mr. Blokzyl told Mr. Gosse to proceed with his recommendation. V. The Events Following the Complainant's Dismissal [53] The complainant was dismissed, on April 19, 2002. [54] The Union filed a grievance contesting the complainant's dismissal. It took the position that the respondent had disciplined the complainant on improperly obtained evidence. Consequently, it submitted that the investigation was flawed and requested that the discipline assessed to the complainant be cancelled. [55] On July 19, 2002, the complainant was diagnosed with squama cell carcinoma. He had a tumour on his tonsil and it had spread into several lymph nodes in his neck. His medical condition was very serious and his doctor decided to operate immediately to have this tumour removed. On July 24, he underwent a neck surgery to have the lumps removed. After the operation, he received thirty treatments of radiation. These treatments lasted until around the middle of October 2002. [56] The complainant's also testified that his dismissal left him devastated and that, at that time, he solicited counselling from the Employee Family Assistance Program (EFAP). He also sought other employment. He filed for unemployment insurance and received these benefits until his cancer was diagnosed, at which time Human Resources put him on sick leave benefits. VI. The Reinstatement Contract [57] In October 2002, the vice general chairperson for the United Transportation Union, Mr. Ron Hackle, contacted the complainant. Mr. Hackle told him that Mr. Robert Reny, from the Labour Relations department of the respondent, had indicated that the respondent would be prepared to reinstate the complainant, conditional on him agreeing to the terms outlined in a Reinstatement Contract. [58] Several days later, Mr. Hackle contacted the complainant and informed him that he had a deal with the respondent. He explained that the complainant could return to work immediately if he passed the respondent's medical requirements and signed a Reinstatement Contract. The complainant said that he then contacted Mr. Kopp to discuss his options. He testified that although he felt that this was a violation of his human rights, he had no other option but to sign the document if he wanted his job back. [59] The complainant signed the Reinstatement Contract on November 2, 2002. The contract was also signed by Barry Henry, the General Chairperson of the United Transportation Union, the complainant's union, and an officer of the respondent. [60] A week after he had signed the Reinstatement Contract, the complainant was contacted by a nurse from the respondent's health provider, Medisys. She informed him that he would have to pass a medical before returning to work. On November 16, 2002, the complainant saw the respondent's doctor who did a complete physical examination. The doctor did not require, at this time, that any alcohol or drug testing be administered. He cleared the complainant for his return to work. [61] On November 22, 2002, the complainant met Eric Blokzyl, Superintendent Operations, who welcomed him back to work. At around one o'clock in the afternoon, he was put back on the furlough board2. Later, on the same day, at around 5:30 p.m., the complainant got a call from supervisor Mitch McAmmond informing him that he was pulled out of service following the instructions of supervisor Gosse. Supervisor McAmmond told the complainant that he had no idea as to the reasons why he was being pulled off and that he should call supervisor Gosse if he wanted more information. [62] The complainant immediately called supervisor Gosse whom, according to the complainant said Mr. Witwicky, I hear you're trying to pull a fast one by trying to get yourself back on the working board. The complainant told him that the had been cleared to return to work by supervisor Blokzyl, to which Mr. Gosse answered that Mr. Blokzyl was not his immediate supervisor, that he was and that he would decide whether the complainant could go back to work or not. [63] On that same day, Mr. Kopp testified that he had a conversation with Mr. John Gosse. He stated that Mr. Gosse had asked him if the complainant had provided a blood sample or a urine sample to the respondent's medical provider, prior to being cleared to come back to work. Mr. Kopp answered no. [64] Mr. Gosse did not deny removing the complainant from the working board on that day. He explained that the complainant's Reinstatement Contract provided that certain things had to be done before he would be allowed to return to work. Mr. Gosse said that he had not been informed that the complainant had met with Mr. Blokzyl. He added that he pulled the complainant from the working board for a short period of time in order to confirm that he had indeed complied with these obligations under the contract. Once the meeting with Mr. Blokzyl had been confirmed, he put the complainant back on the working board. He added that not more than a couple of hours had elapsed between him pulling the complainant off work and then putting him back on. No pay was deducted from the complainant's salary during this time. VII. The allegations of Harassment and Retaliation [65] Most of the facts surrounding the allegations of harassment have to do with the tenuous relationship that existed between the complainant and his supervisor, Mr Gosse. This strained relationship certainly showed during Mr. Gosse's cross-examination by the complainant. Mr. Gosse was a very uncooperative witness with significant memory lapse whenever the questions of the complainant did not seem to please him. He was argumentative and somewhat provocative in the way he answered the questions. [66] Mr. Gosse was, at all time relevant to the present case, the Assistant Superintendent, Manager Train Service, for the respondent in Kamloops. His duties were the overall running of the terminal. He was responsible for all the running trade employees. He characterized his position as a frontline supervisor. Mr. Gosse resigned his position with the respondent on June 30, 2006. He now works for Via Rail. [67] The first allegation of harassment raised by the complainant occurred on March 14, 2002. The complainant was then representing Mr. Plante, a co-worker, at a formal investigation. During these proceedings, the complainant claims that Mr. Gosse came into the room and stated: I have been reading some very funny stuff about you on the [bathroom] walls. None of the individuals present during this statement could recall this exchange. [68] According to the complainant, Mr. Gosse was referring to a document entitled Procedures and Protocols for use of the Jasper Pizza Truck which was a parody of the December 31, 2001 events. The document did not specifically refer to the complainant by name but the events it narrated were certainly referable to what had happened in Jasper. The complainant testified that he found these documents posted on various bathroom walls in the respondent's workplace. The complainant made enquiries to various employees whether they knew where the bulletin had originated from, but to no avail. The complainant provided the respondent with the name of a fellow employee who had been seen with copies of this document which he had handed out to another employee. For an unexplained reason, during its investigation of these allegations, the respondent did not interview this employee. [69] It is interesting to note that, during his cross-examination, Mr. Gosse admitted that he had been informed by an employee that this document was being distributed but never investigated the matter further. [70] Another incident occurred on January 17, 2003. On this day, the complainant was required to attend a CN medical appointment for drug and alcohol testing. He had obtained proper authority from supervisor J. Power to attend this medical. The complainant took the time off, went to his medical appointment and when supervisor Gosse was informed of this, he penalized the complainant one day's pay. A grievance was filed by the complainant following this incident. [71] Mr. Gosse explained that Mr. Power was a supervisor who had come up to Kamloops on loan since they were short of supervisors at the time. He added that he came from Vancouver where they did not have a Furlough Board, so he was not aware of the policies and procedures for employees on the board. He explained that while on the Furlough Board, the complainant was paid a set daily rate. If he was allowed to book for the medical, as requested, he would, under the collective agreement, be paid a different daily rate which would be higher than what he would normally receive on the Furlough Board. Allowing the complainant to book off was, according to Mr. Gosse, contrary to these policies and procedures and that is why he intervened to reverse the decision and take away the part of the payment to which the complainant was not entitled to. [72] One month later, on February 17, 2003, the complainant was once again called by Medysis to provide another drug and alcohol test. At that time, the complainant was on what is referred to as the protected Furlough Board. He phoned his supervisor Mr. Gosse to get authorization to attend the appointment. He explained to Mr. Gosse that he was required to attend the medical appointment and that he needed his authorisation to be off because he was on a working board. Mr. Gosse asked him when the appointment was, what it was for and how long it would take. According to the complainant, when informed of the reasons for the appointment, Mr. Gosse started laughing uncontrollably. The complainant added that he felt degraded by his supervisor's conduct. [73] According to the respondent, this request was declined on account of the complainant's position on the Furlough Board at that specific time. Mr. Gosse explained that he considered where the complainant was on the Furlough Board and since he was not in a position to be called to work, he decided not allow the request. The respondent further adds that it is its policy that medical appointments be scheduled during employee's time off. [74] The complainant stated that he had no choice but to attend this appointment since this was one of the condition set out in the Reinstatement Contract. He explained that if he did not attend he could be fired for not respecting the terms of the contract. According to the complainant, Mr. Gosse told him you can take your chances, Mr. Witwicky and see what happens. Finally, he did not give the complainant authorization to take time off for this appointment. [75] In February 2003, the complainant held the position of vice-local Chairperson of Local 691 of the United Transportation Union, in Kamloops. Sometime during that month, he was contacted by a supervisor D. Savage to attend a company-initiated meeting. The complainant informed supervisor Savage that he would attend the meeting provided supervisor Gosse authorised his booking off on company business. Supervisor Gosse did not give his consent and the complainant did not attend the meeting. Following the complainant's refusal to attend the meeting, he was penalized one day's pay. [76] The complainant also referred to a mentoring program that the respondent had put in place. According to this program, each employee of the running trades was assigned a mentor. The mentor was somebody the employee could go to if he had a problem. Prior to being terminated, the complainant's mentor was an individual named Elio Marrelli. Upon his return to work after having been dismissed, the complainant learned that his mentor was going to be Mr. Gosse. [77] On March 17, 2003, he wrote a letter to Mr. Blokzyl requesting that he be assigned a new mentor. In a letter addressed to the complainant, dated June 10, 2003, Mr. Blokzyl states that the request by the complainant to have a mentor change had been complied with in accordance with your wishes. The complainant testified that there was never any change in mentor and that Mr. Gosse continued to act as such until July 2006. [78] The complainant wrote a letter to Mr. Gosse on March 18, 2003, in which he requested that Mr. Gosse stop harassing [him]. A copy of this letter was send to Mr. Blokzyl. Mr. Blokzyl replied to this letter on April 8, asking for more details regarding the allegations contained in the complainant's letter. [79] On April 29, 2003, in accordance with the respondent's Human Rights Policy for a Harassment Free Environment, Mr. Roger Worsfold, a Transportation Officer, for the respondent, was mandated to conduct an investigation regarding the complainant's allegations of harassment. For this, Mr. Worsfold conducted an interview of Mr. Gosse and interviewed the witnesses that the complainant had identified, namely Hans Nederpel, Jerry Plante, Jim Manson and Mike Robinson. Following these interviews, he proceeded to interview the complainant. Based on these interviews and on various documents that he had, he concluded that the allegations of harassment were unfounded. [80] The allegation of retaliation pertains to a situation regarding an employment opportunity with the Union Pacific Railway, a United States based company, who had canvassed the respondent's employees in the fall of 2003. Union Pacific was short of employees during this period, while the respondent had a surplus of employee in Western Canada. Union Pacific had approached the respondent to see if it would be possible to hire some of these employees to work for Union Pacific in the U.S. Mr. Kopp testified that all Kamloops employees had applied, except one who was needed as a yard master, so the respondent did not want to let him go. The complainant, who had manifested his interest, was denied the opportunity to apply. The explanation given by the respondent was that they could not monitor the complainant's Reinstatement Contract if he was allowed to work in the U.S. VIII. Analysis [81] This is not an arbitration proceeding where an arbitrator must decide whether the employer has or not violated the collective agreement. Also, it is not an action for wrongful dismissal. Therefore, it is not in my mandate to determine whether the respondent has shown just cause for its decision to dismiss the complainant following the events of December 31, 2001. The procedure provided by the Act for the treatment of complaints cannot be seen as an alternative for the grievance procedure provided by the Collective Agreement. [82] In order to benefit from the protection afforded by the Act, a complainant must demonstrate the involvement of one or more of the proscribed grounds listed in section 3 of the Act. Consequently, the analysis which follows will deal only with issues relevant to the Act. A. The Sections 7 and 10 Complaints [83] Mr. Witwicki's complaints are brought pursuant to sections 7 and 10 of the Act. Section 7 makes it a discriminatory practice to refuse to employ, or to continue to employ, an individual, on a prohibited ground of discrimination. Section 10 makes it a discriminatory practice for an employer to establish or pursue a policy that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination. In contrast to complaints under section 7 of the Act, which relate to employer actions affecting specific, named individuals, section 10 of the Act addresses the discriminatory effect that employer policies or practices may have on an individual or a class of individuals. [84] For its part, section 3 of the Act designates disability as a prohibited ground of discrimination. Section 25 of the Act makes it clear that the term disability includes previous or existing dependence on alcohol or a drug. Furthermore, it is well-established that the protection of the Act extends to those who are mistakenly perceived to have a disability. (See Québec (Commission des droits de la personne et des droits de la jeunesse) c. Montréal (Ville), [2000] 1 S.C.R. 665, at para. 49.) [85] As a result of the Supreme Court of Canada decisions in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [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), the historic distinction between direct and indirect discrimination has been replaced by a unified approach to the adjudication of human rights complaints. Under this approach, the initial onus is still on a 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 absence of an answer by the respondent. ( See Ontario Human Rights Commission and O'Malley v. Simpson Sears Limited, [1985] 2 S.C.R 536, at p. 558.) B. Was a prima facie case made out? [86] The complainant submits that he was subjected to differential treatment. He alleges that he has been discriminated against on the basis of a perceived disability, namely the perception that he suffered from a substance abuse disorder and that he was perceived as being an alcoholic. The complainant bears the onus of establishing on a balance of probabilities that the respondent perceived him as disabled. [87] The evidence before me does not establish that the respondent perceived the complainant to suffer from a substance abuse disorder or that it perceived him as being an alcoholic. The evidence shows that the reason why the complainant's employment was terminated is because the respondent felt that he had violated CROR General Rule G and GOI section 8, part 3.1 including violations of CN Policy to Prevent Workplace Alcohol and Drug Problems. Rule G)(a) of the Canadian Rail Operating Rules (the Rules or CROR), states that [t]he use of intoxicants or narcotics by employees subject to duty, or their possession or use while on duty, is prohibited. Rule 3.1(a), under the heading Responsibility for Safety, declares that [e]veryone (Management, Employees, Contractors, Visitors, etc.), must: a) Report fit for duty, alert and able to perform safely. For specific rules on alcohol, drugs, prescriptions and medication, see CN handbook entitled Policy to Prevent Workplace Alcohol and Drug Problems. These rules were in force on December 31, 2001. [88] According to Robert Reny, the respondent's Senior Manager, Human Resources, the reason for these rules is to ensure the employees' health and safety, as well as the safety of the public. In his words, the rules are designed to set very clear expectations for all employees as to what their obligations are. Their objective is to prevent the use of drugs and alcohol and to punish specific conducts on the job. Whether the respondent was right or wrong in its conclusion that the complainant had violated this policy is not for me to decide. This is a matter to be decided by an arbitrator under the grievance procedure provided for in the Collective Agreement. [89] The complainant might have some legitimate issues with the time the respondent took in processing its investigation. He might also have some issues with the procedure used by the respondent in investigating the events. But these have no relation to an alleged violation of the Act. In order to benefit from the protections afforded by the Act, the complainant must demonstrate the involvement of one or more of the proscribed grounds listed in section 3 of the Act. [90] Having reviewed all of the evidence, I conclude that the complainant has not established that when the respondent dismissed him, it did so because it believed or perceived him to be an alcoholic. I find that the reason why he was dismissed was because the respondent felt, rightly or wrongly, but that is not for me to decide, that he had violated its rules and policies. [91] I will now address the issue of the Reinstatement Contract. The complainant is asking that the Tribunal conclude that the terms of this contract created the perception that he is an alcoholic and that this is a discriminatory practice. The respondent argues that the only label which is placed on a person who is subject to a Reinstatement Contract under the policy is that they contravened the work rules. [92] To better understand the reasons for the Reinstatement Contract, it is important that we look at the respondent's document entitled Prevention our Safe Choice. Policy to Prevent Workplace Alcohol and Drug Problems - Policy and Guidelines. This policy provides: Alcohol Possession, distribution or sale of beverage alcohol, and the use of any form of alcohol, is prohibited while on duty (including during breaks on or off CN property), on company business, or on company premises, including vehicles and equipment. Limited exceptions to this restriction will be allowed with prior approval of a Vice-President. This does not limit retail outlets and licensed business establishments form carrying out their normal operations. Presence in the body of alcohol above BAC of 0.04 when on duty or on company business or premises, is also prohibited for all employees. In any situation where employees are to be tested with reasonable cause including after an accident or incident, they are prohibited from using alcohol within eight hours of the accident or incident, or until tested or advised that a test will not be necessary. [93] This document also defines what a safety sensitive position is. It states that safety-sensitive positions are those which the company determines have a key and direct role in rail operation where impaired performance could result in a significant incident affecting the health and safety of employees, customers, the public, property or the environment. It also establishes that engineers, brakemen and conductors are positions designated as being safety critical. [94] The document also provides that if an employee violates its provisions or does not meet the company's satisfactory standards of work performance as a result of alcohol or other drug use, then appropriate corrective actions may be taken. These corrective actions will depend on the nature of the violation and the circumstances surrounding the incident. Some violation, if considered sufficiently serious, can result in dismissal of the employee on a first occurrence. [95] The document also provides for the reinstatement of an employee following a policy violation. It states: Depending on the circumstances, employees may be permitted to continue their employment with the company. Such employees will be advised of the conditions governing their continued employment, which will include at a minimum, the following: Assessment by a substance abuse professional Completion of any recommended treatment and compliance with medically recommended relapse prevention programs after treatment Abstinence from using any drugs or alcohol for at least 2 years Unannounced testing for a period of a least two years No further policy violations during the monitoring period ; Maintenance of job performance according to expectations. Continuing employment in safety sensitive jobs will be subject to requirements for medical fitness for duty for that position. [96] The policy also states that the respondent could investigate off-duty activities where these involved alcohol or drugs and had an implication for the workplace. As regards to an employee's return to duty following a positive test for alcohol or drugs or any significant policy violation, the policy provides that testing might be required. More specifically the policy states: Any employee dismissed after a policy violation, including those not in safety sensitive positions and those who are not diagnosed as having a substance use disorder, may be required to undergo drug and alcohol testing as terms of continuing employment or reinstatement. In these cases, testing will be conducted on an unannounced basis for at least two years and will be done according to the terms of the continuing employment or Reinstatement Contract agreed to by the Company and the union. The test dates will be determined on an unannounced basis through Medical Services. The site manager will be informed that an individual is required to report for a test, and arrangements will be made to complete the collection process as soon as possible after the site management has been notified. The scheduling will remain unannounced to the employee until the collection can be arranged. [97] The evidence clearly establishes that the complainant is not an alcoholic. However, would it be possible to argue that, under the respondent's policy, any incident of possession or consumption of alcohol in the workplace or during off-duty activities results in a person being treated as though they were prone to alcohol dependency and therefore, subject to termination? The policy states that if an employee violates its provisions as a result of alcohol use, then appropriate corrective actions may be taken. These corrective actions will depend on the nature of the violation and the circumstances surrounding the incident. Some violation, if considered sufficiently serious, can result in dismissal of the employee on a first occurrence. According to the respondent, the events of December 31, 2001 were of this nature. [98] Could we compare the respondent's policy with that of Imperial Oil in Entrop v. Imperial Oil Ltd (2000), 189 D.L.R. (4th) 14? In that decision, the Ontario Court of Appeal stated, at paragraph 92: Thus, though the social drinker and casual drinker are not substance abusers, and, therefore, not handicapped, Imperial Oil believes them to be substance abusers for the purpose of the policy. In other words, Imperial Oil believes that any person testing positive on a pre-employment drug test or a random drug or alcohol test is a substance abuser. Because perceived as well as actual substance abuse is included in the definition of handicap under the Code, anyone testing positive under the alcohol and drug testing provisions of the policy is entitled to the protection of ...the Code. Imperial Oil applies sanctions to any person testing positive - either refusing to hire, disciplining or terminating the employment of that person - on the assumption that the person is likely to be impaired at work currently or in the future, and thus not fit for duty. Therefore, persons testing positive on the alcohol or drug test - perceived or actual substance abusers - are adversely affected by the policy. The policy provisions for pre-employment drug testing and for random alcohol and drug testing are, therefore, prima facie discriminatory. Imperial Oil bears the burden of showing that they are bona fide occupational requirements. [99] Also, is there any similarity with the Federal Court of Appeal's decision in Canadian Civil Liberties Assn. v. Toronto-Dominion Bank (1998), 163 D.L.R. (4th) 193, where the court stated at paragraph 24: I do not see how one can avoid the conclusion that the Bank's drug testing policy constitutes a prima facie discriminatory practice. I say this because the Bank's policy raises the likelihood of drug dependent employees losing their recently acquired employment. An employment policy aimed at ensuring a work environment free of illegal drug use must necessarily impact negatively on those who are drug dependent. [100] I do not believe that these decisions apply to this case. For example, in the Canadian Civil Liberties Assn case, the Court found that the drug testing policy raised the likelihood of drug-dependent employees losing their employment. Consequently, the discrimination was against those employees who were drug dependent. The complainant in this case is not alcohol or drug dependent. Therefore, the respondent's policy does not impact on him in the same manner that the drug testing policy impacted on the employees tested in the Canadian Civil Liberties Assn. case. [101] Again in Entrop, the Court accepted that substance abuse was a handicap under the statute and found a prima facie case of discrimination because all users were perceived to be substance abusers under the policy. Through its policy, the employer used drug and alcohol testing to identify employees or prospective employees who had consumed alcohol or drugs and applied sanctions to them based on the assumption about what they were likely to do in the future. [102] In this case, the respondent's policy is not directed at identifying all users of drugs or alcohol. Rather, it imposes sanctions against those whose are identified as possessing or consuming drugs or alcohol on the job. There is nothing in the policy preventing employees from using alcohol as long as they do not do so on the job or as long as it does not affect their capacity to perform their duties. (See also, Middlemiss v. Norske Canada Ltd, 2002 BCHRT 5, at par. 25.). [103] Turning our attention to the Reinstatement Contract, its purpose was to give details of the conditions under which the complainant could resume his employment with the respondent. According to Article 1 of the contract, its duration was two years from the date of the complainant's signature unless there was medical evidence indicating that follow-up should be extended beyond two years, as determined by the respondent's Chief Medical Officer. Article 2 provided that the complainant had agreed to be medically examined and this included being tested for drugs and alcohol prior to reinstatement. The complainant also agreed to unannounced tests for drugs and alcohol use for a period of two years or more, as may be determined by the Chief Medical Officer. [104] Article 3 specified that if the complainant failed to pass the drugs and alcohol testing, he would not be eligible for reinstatement and his file with the respondent would be closed. Article 4 provided that the complainant was expected to fully comply with the requirements of the Policy to Prevent Workplace Alcohol and Drug Problems, the General Safety Rule 1.1. and CROR General Rule G, including complete abstinence from alcohol and drugs. [105] Article 5 stated that during the term of the contract, the complainant was to abstain from drugs and alcohol use and to comply with the condition of the contract, failure to do so could result in his discharge or make him ineligible for reinstatement. He was also to be subject to frequent performance observations by his supervisor which would be documented and shared with the Chief Medical Officer. [106] Finally, Article 7 provided that the complainant was required to attend a meeting with Eric Blokzyl for the respondent, prior to returning to work. This contract was signed by the complainant, the General Chairperson of the United Transportation Union and a CN Officer. [107] The contract was part of a proposal regarding the resolution of the grievance relating to the termination of the complainant's employment. In order to better understand the origin of this document, I intend to go through the process which culminated in its conclusion. [108] Following the discharges of the complainant, the United Transportation Union filed a grievance in which it stated its position as follows: [I]t is the Union's position that the Company has disciplined W.C. Witwicky based on improperly obtained evidence. Accordingly, the Union submits that the investigation is flawed and request that the discipline assessed to W.C. Witwicky be expunged and he be made whole. In the alternative, and without prejudice to the foregoing, the Union submits that the very fact that the Grievor was released from police custody is evidence of his sobriety. Accordingly, no violation of the rules can be demonstrated, and the Union requests that the discipline assessed be expunged and W.C. Witwicky, be made whole. [109] It is interesting to note that nowhere in the grievance is there any mention of a violation of the complainant's human rights or that his dismissal was motivated by a perception that he was an alcoholic. The reason for the grievance is founded solely on what the Union characterises as improperly obtained evidence. [110] The grievance was ultimately resolved on the terms set out in a letter from D. Edison, Vice-President - Pacific Division for the respondent, concurred with by B. J. Henry, General Chairman of the Union. In this letter, the respondent agreed to reinstate the complainant, conditional on him agreeing to the terms and conditions of the Reinstatement Contract. The complainant agreed to these terms and conditions on November 2, 2002. [111] The fact that the grievance was resolved to the satisfaction of the parties does not prevent the complainant from bringing forward a human rights complaint. Therefore, I must now answer the following question: Is the Reinstatement Contract in violation of the complainant rights under the Act? Arbitrator Michel G. Picher expressed the applicable law in such circumstances in Canadian Railway Office of Arbitration & Dispute Resolution, Case No. 3598, an arbitral award dated December 13, 2006. In this award, he stated that where an employee has been reinstated following a violation of the respondent's drug and alcohol policy, [h]is reinstatement shall be conditional upon his accepting to be subject to full medical assessment for the purposes of determining whether he is subject to any drug or alcohol addiction or dependence. Should the assessment indicate that he is, his reinstatement shall be conditional upon his following any course of treatment that is directed by the assessing authority and any documentary or reporting obligations which might be related thereto. (The emphasis is mine.) [112] We will never know what the respondent's reaction would have been had the complainant tested positive or had he breached his obligations under the Reinstatement Contract because the complainant at the beginning and during the duration of this contract abstained from drug and alcohol and never failed any of the tests. In Milazzo v. Autocar Connaisseur Inc., [2003] C.H.R.D. No. 24, paras. 177 to 180, this Tribunal stated: 177 In accordance with Autocar Connaisseur's drug testing policy, any employee testing positive for either alcohol or drugs will be summarily terminated. Where a prospective employee tests positive, Autocar Connaisseur's offer of employment will be withdrawn. 178 It will be recalled that Mr. Devlin testified that Autocar Connaisseur was of the view that these actions are necessary because an employee who knowingly comes to work with alcohol or drugs in his system so fundamentally breaches the trust between employer and employee that there is no alternative but to terminate the employment relationship. It may well be that such a course is open to Autocar Connaisseur (at least from a human rights perspective) where employees use alcohol or drugs as a matter of personal choice, and voluntarily breach the company's alcohol and drug policy. 179 The situation is different, however, in cases where the individual suffers from a condition that qualifies as a disability. In such cases, an employer has an obligation to accommodate the employee to the point of undue hardship, unless it is impossible to do so. 180 The fact that an employee tests positive in an employer-sponsored drug test does not automatically mean that the employee is disabled. In order to distinguish between employees who suffer from a substance-related disability and those who do not, it may well be necessary to require that the employee submit to a professional assessment by an appropriate health care practitioner. While employers must be sensitive to the role that denial can play in substance abuse disorders, ultimately, the onus is on the employee or prospective employee to demonstrate that they are entitled to the protection of the Canadian Human Rights Act. (The emphasis is mine.) [113] In this case, since it wasn't established that the complainant suffered from a disability, real or perceived, the duty to accommodate referred to in the Milazzo case was not triggered. Furthermore, since there was no breach of the Reinstatement Contract, there is nothing for this Tribunal to assess in terms of failure to accommodate. [114] In his closing arguments, the complainant referred to the fact that since the Reinstatement Contract provided for blood samples, this was a violation of his human rights. In this case, the blood samples were provided with the consent of the complainant. There was no evidence provided to establish that he was coerced into providing these samples. In these circumstances, I cannot conclude that there was a violation of the complainant's human rights. (See. R. v. Dersch, [1993] 3 S.C.R 768.) C. Conclusion Regarding the Complainant's Sections 7 and 10 Complaints [115] Having failed to establish that he was either disabled or perceived by the respondent to be disabled, the complainant has not established a prima facie case of discrimination and accordingly, his section 7 complaint is dismissed. [116] Regarding the section 10 complaint, considering the evidence before me, I cannot conclude that the respondent's policy regarding alcohol or drugs in the workplace and the Reinstatement Contract with the complainant violates this section. This is not a situation where an individual suffers from a disability. In such a case, an employer would have an obligation to accommodate the employee to the point of undue hardship, unless it is impossible to do so. What we are dealing with here is a policy which imposes sanctions against those who are identified as possessing or consuming drugs or alcohol on the job. There is nothing in the policy preventing employees from using alcohol as long as they do not do so on the job or in a way that renders them unfit to perform their duties. Accordingly, the section 10 complaint is also dismissed. D. The Section 14 Complaint [117] According to section 14, it is a discriminatory practice to harass an individual on a prohibited ground of discrimination. As explained previously, prohibited grounds under the Act include a perceived physical disability such as alcoholism. Considering my conclusion that the complainant has not established that he suffers from a disability, real or perceived, there is no reason for me to consider this matter any further since, if there was harassment, and I am not concluding that there was, it was not on a prohibited ground of discrimination as provided for by section 14. [118] The evidence did establish that there was a very strained relationship between the complainant and his supervisor, Mr. Goose. I have no doubt that the complainant was bothered and annoyed by the attitude and behaviour of his supervisor and he might have had reason to be. He might also have had reasons to be exasperated at what he considered as the respondent's lack of response to his complaints but this is not sufficient under the Act. For the Act to be triggered, the alleged conduct must relate to a prohibited ground. [119] For this reason, the complaint under section 14 is dismissed. E. The section 14.1 Complaint: Has the Respondent retaliated against the Complainant? [120] Section 14.1 of the Act provides that it is a discriminatory practice for a person against whom a complaint has been filed to retaliate or threaten retaliation against the individual who filed the complaint. [121] This Tribunal has taken two slightly different approaches to the legal framework under which a claim of retaliation should be examined. These approaches are illustrated in two cases: Wong v. Royal Bank of Canada, [2001] C.H.R.D. No.11 and Virk v. Bell Canada (Ontario), [2005] C.H.R.D. No.2. The primary difference between these two approaches is the emphasis placed on the intention of the alleged retaliator. [122] In Wong, the Tribunal determined that given the remedial nature of the Act, the complainant should not be required to prove that the respondent intended to retaliate against the complainant. Rather, the focus of the analysis is on the perception of the complainant and whether or not the complainant could reasonably have viewed the respondent's conduct as an act of retaliation: 219 According to Entrop, to prove a violation under this section, there must be a link between the alleged act of retaliation and the enforcement of the complainant's rights under the Act. Where there is evidence that the respondent intended the act to serve as retaliation for the human rights complaint, the linkage is established. But if the complainant reasonably perceived that the act to be retaliation for the human rights complaint, this could also amount to retaliation, quite apart from any proven intention of the respondent. Of course, the reasonableness of the complainant's perception must be measured. Respondents should not be accountable for unreasonable anxiety or undue reaction of the complainant. 220 There have been a number of provincial human rights tribunals that have not agreed with the Entrop analysis. These tribunals have taken the position, that under the retaliation/reprisal provisions of their legislation, the complainant must prove an intention to retaliate on the part of the respondent. The retaliation/reprisal provision is not like the other provisions in the legislation that confer rights and should not be interpreted as extending to apparently neutral actions of the respondent that may have an adverse impact on the complainant. 221 As the Supreme Court of Canada stated in Robichaud v. Canada (Treasury Board)5, the Canadian Human Rights Act is aimed at eliminating invidious discrimination. The Act is remedial and not punitive and, therefore, the motives or intention of those who discriminate are not central to the concerns of the Act. 222 In my opinion, the logic of Robichaud tells us that section 14.1 should not be interpreted as requiring a complainant to prove an intention to retaliate. Nor, in my opinion, should section 14.1 be viewed as different in operation from those sections in the Act that confer rights. The language of section 14.1 makes it a discriminatory practice to retaliate. The remedies for a contravention of this section are the same as for any other discriminatory practice under the Act. In this respect, section 14.1 should be contrasted to section 59 of the Act. [123] This approach has been adopted in other Tribunal decisions. (See Bressette v. Kettle and Stony Point First Nation Band Council, [2004] C.H.R.D. No. 26 and Warman v. Winnicki [2006] C.H.R.D. No. 18). [124] The other approach is set out in the Virk case: 155 Under section 14.1 of the Act, 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. 156 Retaliation implies some form of wilful 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 form any proven intention of the respondent. 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. Retaliation being a form of discrimination under the Act, the same evidentiary burden should apply to allegations of discrimination and retaliation. 159 Thus, proof on the part of the complainant that the person who is alleged to have retaliated knew of the existence of the complaint and that he or she acted in an inopportune way may give rise to a prima facie case of retaliation requiring the alleged retaliator to come forth with a reasonable explanation as to the reasons for his actions. If the explanation given is not credible, the Tribunal should find the allegation of retaliation substantiated. [125] This approach has since been applied in Shulyer v. Oneida Nation of Thames, [2006] C.H.R.D. No. 35. [126] Whether we apply one or the other of these approaches, the conclusion is the same: there is no evidence to support the allegations of the complainant that the respondent retaliated against him because he had filed a complaint under the Act. The only evidence of retaliation brought forward by the complainant was that he was denied the opportunity to apply for a position with Union Pacific Railway, in the fall of 2003, because he had filed a complaint under the Act. Unfortunately for the complainant, there is nothing in the evidence to support this contention. The only evidence on this issue was put through the respondent's witness, Mr. Blokzyl. Cross-examined on the reason why the complainant's request had been denied, Mr. Blokzyl explained that the respondent felt that it could not properly monitor the conditions of the Reinstatement Contract should he be allowed to work in the United States. There is no evidence that the respondent's refusal had anything to do with the complainant's filing of a human rights complaint. Mr. Blokzyl was not challenged in cross-examination with respect to this allegation and no other witnesses were questioned on this point. [127] The complainant has not proven on a balance of probabilities, that the respondent was motivated in its decision to deny his request by the filing of a human rights complaint or that it can be concluded that it intended to retaliate against him because he filed the complaint. [128] For this reason the complaint under section 14.1 is denied. IX. CONCLUSION [129] For all of the forgoing reason, it is my decision that the complaints of William Carl Witwicky, filed with the Canadian Human Rights Commission, on August 8 and October 25, 2003, should be and are hereby dismissed. Signed by Michel Doucet OTTAWA, Ontario July 6, 2007 1 An excessive layover pay is paid to an employee who is at an away-from-home terminal and is not called back on another train within eleven hours. The employee will remain on this excessive layover until he accepts a call to his home terminal. 2The respondent's workforce is divided into two boards and the employees are divided equally between these boards. One board is referred to as the protecting Furlough Board while the other is referred to as the non-protecting Furlough Board While occupying the protecting Furlough Board, the employee is subject to calls seven days a week, twenty four hours a day, for a period of fourteen day. On completion of a trip, an employee is allowed to take a maximum of twenty four hours rest and during this rest period he is not subject to be called to work. Once the employee has completed his two weeks on the protecting Furlough Board, he is put on the non-protecting Furlough Board for a period of two weeks. During this period, the employee is not subject to being called in for work but he still receives a daily rate of pay. The reason for this workforce organisation is due to the fact that the respondent's had, at a certain time, a surplus of employees and could not guarantee work to everybody at the same time. PARTIES OF RECORD TRIBUNAL FILE: T1123/0506 STYLE OF CAUSE: William Carl Witwicky v. Canadian National Railway DATE AND PLACE OF HEARING: November 20 to 23, 2006 December 5 to 7, 2006 January 15 and 17, 2007 Kamloops, British Columbia DECISION OF THE TRIBUNAL DATED: July 6, 2007 APPEARANCES: William Carl Witwicky assisted by Gary Kopp For himself (No one appearing) For the Canadian Human Rights Commission Joseph H. Hunder assisted by Adrian Elmslie For the Respondent

2007 CHRT 26

CHRT

Telecommunications Employees Association of Manitoba Inc. v. Manitoba Telecom Services

en

2007-07-05

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7038/index.do

2023-12-01

Telecommunications Employees Association of Manitoba Inc. v. Manitoba Telecom Services Collection Canadian Human Rights Tribunal Date 2007-07-05 Neutral citation 2007 CHRT 26 File number(s) T1161/4306 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE TELECOMMUNICATIONS EMPLOYEES ASSOCIATION OF MANITOBA INC., BARBARA CUSTANCE, CARMEN GIROUX, CHUCK HANDO, KATHLEEN MULLIGAN, JANICE SIRETT Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - MANITOBA TELECOM SERVICES Respondent RULING 2007 CHRT 26 2007/07/05 MEMBER: J. Grant Sinclair I. INTRODUCTION II. BACKGROUND A. The CHRA Inquiry B. Legal Principles C. Application to the current matter I. INTRODUCTION [1] The respondent, Manitoba Telecom Services Inc. (MTS) has brought a motion for an order that: the parties are bound by the factual and legal conclusions of a 2004 arbitrator's award (Graham Award) and barring the complainants from leading any evidence inconsistent therewith; the complainant Hando, having submitted a grievance and subsequently withdrawing it from the Graham arbitration, is barred from proceeding with his complaint before this Tribunal; the Telephone Employees' Association of Manitoba (Union) should be added as a respondent to the complaint; and the Union has no standing as a complainant under ss. 40(1) and 40(2) of the Canadian Human Rights Act. II. BACKGROUND [2] The complainants in this inquiry are the Union and five individuals who are members of the Union, Hando, Mulligan, Giroux, Sirett and Custance. The five complainants were all laid off by the MTS in January of 2003. The Union contested the lay-offs through the grievance process. [3] One grievance, filed on behalf of Hando (Hando grievance) was withdrawn by the Union. In so doing, the Union asserted that the withdrawal was without prejuduice to Hando's pursuit of a human rights allegation against MTS with the Canadian Human Rights Commission (CHRC). There was no alleged violation of the CHRA in the Hando grievance. [4] The Union filed another grievance on behalf of a group of 14 individuals which included Mulligan, Giroux, Siret and Custance (group grievance). The Graham Award dismissed the group grievance. [5] The scope of the group grievance narrowed over time leading up to the arbitration. At the time it was signed, it alleged violations of the collective agreement as well as the CHRA. Yet reference to the CHRA was excluded from the grievance synopsis appearing in the Graham Award and it was not discussed elsewhere in the document. [6] Similarly, the group grievance in its original form alleged that some of the laid off employees were improperly targetted for layoff due to their record of absence due to illness and/or the fact that they recently claimed long-term disability benefits. However, prior to arbitration, the Union indicated that it would not be arguing the issue of improper targetting due to record of absence. [7] Moreover, the Graham award notes that the Union chose not to proceed with 14 individual grievances in which the individual grivors would attempt to prove that their individual skills abilities, performance and qualifications, waranted that they be retained in preference to other specifically identified employees. While it is unclear if this was ever the Union's intention, the Graham Award suggests it was an option open to it. [8] Thus, the group grievance focussed only on the process used by MTS to identify which employees were being laid off, as determined by article 26.03 of the collective agreement. Article 26 essentially states that when identifying which incumbents in a position were to be laid-off, seniority would only become a factor where there were no differences between the incumbents on the basis of skill, ability, performance and qualifications. The implication of this article is that MTS was allowed to lay-off those employees who were judged to be most wanting in the above qualities. [9] In the course of determining the grievance, the Graham Award examined MTS's lay-off exercise with a view to determining (1) whether there was compliance with the collective agreement; (2) whether the procedure by which the article 26 standards were applied was fair, appropriate and unbiased; (3) whether the lay-off decision was reasonable. [10] In particular, the Graham Award examined a number of allegations by the Union, and evidence in support thereof, that the MTS lay-off exercise was based on incomplete or inaccurate information which led to a flawed comparative analysis of the laid-off employess vis-à-vis the other incumbents. A. The CHRA Inquiry [11] Before this Tribunal, the complainants are seeking to re-activate the discrimination component of the group grievance which was for whatever reason, not pursued at arbitration. The complaints of Mulligan, Giroux, Sirett and Custance filed with the CHRC, make reference to the individual complainants having been deliberately targetted for lay-off by MTS on the grounds that they were perceived to be disabled. The Hando complaint and the complaint filed directly by the Union, are to the same effect. [12] Furthermore, in their joint statement of particulars the complainants take direct aim at the comparative analysis conducted by MTS under article 26. For example, in para. 20 of their statement they assert that Sirett, Mulligan, Giroux and Custance possess the skills, abilities and qualifications that were at least equal to or greater than other employees with lesser seniority who were not laid off. [13] The respondent MTS says that the complainants should not be allowed to question the validity of the article 26 lay-off exercise, as it was already challenged in the arbitration process and upheld in the Graham Award. Moreover, to the extent Hando was not governed by the Graham Award (he was not a member of the group grievance), Hando should be similarly bound as he abandoned his right to arbitration. [14] The complainants reply that the group grievance was a policy grievance focussed on the process; it did not address the comparative analysis as it affected the individual complainants. Moreover, the requisite evidentiary basis for doing so was not put forward. Finally, Hando's grievance deliberately did not contain any allegation concerning any discrimination contrary to the CHRA. B. Legal Principles [15] The question of mulitple proceedings in different fora exposes a key tension in the administion of the CHRA. On the one hand, there is abundant jurisprudential doctrine, espoused in cases such as Weber v. Ontario Hydro, [1995] S.C.R. 929 and Danyluk v. Ainsworth Technologies, [2001] 2 S.C.R. 460 that would limit an empolyee's right to litigate an employment dispute that has previously been determined, or that could have been determined, by a labour arbitrator. There are clear public policy grounds behind these doctrines, including the need for finality of litigation, and the avoidance of contradictory results. [16] On the other hand, there is the apparent expression by Parliament that the recourse set out in the CHRA is cumululative, or concurrent with other forms of recourse. See Sherman v. Canada (Canada Customs and Revenue Agency) 2006 FC 715 at paras. 23-24. In a similar vein, Sopinka J. has described human rights legislation as the final refuge of the disadvantaged and the disenfranchised (Zurich Insurance v. O.H.R.C [1992] 2 S.C.R. 321). [17] The Federal Court has held that this Tribunal has the jurisdiction to dismiss a complaint by way of preliminary motion on the grounds of abuse of process, assuming there are valid grounds to do so. Moreover, res judicata is one of the means by which a tribunal can prevent abuse of its process. (C.H.R.C. v. Canada Post 2004 FC 81, at paras, 19, 31). [18] Res judicata not only prevents parties from re-litigating issues that have been finally decided between them (issue estoppel). It also serves to prevent litigation by instalment where parties had the opportunity to have the issues between them adjudicated in an earlier proceeding, but chose not to do so in favour of later prosecution. In this latter manifestation, it is often referred to as cause of action estoppel. (Canada Post, at paras. 29-32; Desormeaux v. Ottawa-Carleton Regional Transit Commission, 2002 CanLII 45932 (C.H.R.T.) at para. 35) C. Application to the current matter [19] In the current matter, the record suggests that the Union made a pre-meditated decision not to fully air at arbitration its concerns regarding the potentially discriminatory nature of the lay-offs. It also appears from the material that the Union made a deliberate choice in the group grievance arbitration not to directly impugn the comparative lay-off exercise under article 26 as it affected Sirett, Mulligan, Giroux and Custance. And there does not appear to be any explanation of the Union's decisions in the motion record. [20] To the degree that the the arbitration led to general findings in the Graham Award that the comparative lay-off process was in compliance with article 26, the Union and the other complainants now seek to contradict those findings. Presumably by introducing evidence that employee absences were a factor in determing whether an employee would be laid off. [21] If the Tribunal were to grant the motion, certainly the individual complainants' ability to present their case as expressed in the statement of particulars could be significantly curtailed if not eliminated. It was the Union that had carriage of the grievances. And in granting the motion the Tribunal would be attaching consequences to decisions taken by the Union, namely, decisions not to go forward to arbitration with the CHRA aspects of their claims. In these circumstances, it would be inequitable to expose these individuals to the application of the doctrine of res judicata. [22] As to the respondent's request to add the Union as a respondent, I do not see the need to do so. The Union is already a party to the complaint. I agree with the complainants' position (set out on page 9, para. 31 of the complainants' Supplemental Motion Brief dated June 26, 2007) that the respondent can seek contribution/indemnification from the Union should the Tribunal find a discriminatory practise by the respondent in which the Union was also implicated. [23] The standing of a union to bring a complaint under s. 40 of the CHRA was dealt with by the Tribunal in CTEA v. Bell Canada, [1999] C.H.R.D no.3. There the Tribunal concluded that a union, for the reasons stated in the decision, can file a complaint under s. 40 of the CHRA. In this case, the Union's complaint alleges a breach of s. 10 of the CHRA. The relief the Union is seeking is a systemic order as contrasted to the individual complainants' request for a personal remedy. To this extent the Union's complaint is independent and starts apart from the complainants (although the complainants also allege a breach of s. 10, they do not pursue this by way of remedy), the Union should have the standing to pursue this claim. [24] For all of these reasons, the motion of the respondent MTS is dismissed. Any costs relating to the motion should be dealt with, if necessary, by the Tribunal hearing the complaints. Signed by J. Grant Sinclair OTTAWA, Ontario July 5, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1161/4306 STYLE OF CAUSE: Telecommunications Employees Association of Manitoba Inc., Barbara Custance, Carmen Giroux, Chuck Hando, Kathleen Mulligan, Janice Sirett v. Manitoba Telecom Services RULING OF THE TRIBUNAL DATED: July 5, 2007 APPEARANCES: R. Ivan Holloway For the Complainants No one appearing For the Canadian Human Rights Commission Gerry Parkinson Paul McDonald For the Respondent

2007 CHRT 27

CHRT

Warman v. Wilkinson

en

2007-07-10

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7040/index.do

2023-12-01

Warman v. Wilkinson Collection Canadian Human Rights Tribunal Date 2007-07-10 Neutral citation 2007 CHRT 27 File number(s) T1095/7605 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 - BOBBY WILKINSON Respondent REASONS FOR DECISION 2007 CHRT 27 2007/07/10 Member: Athanasios D. Hadjis I. INTRODUCTION A. The Respondents failed to appear at the hearing B. Section 13 of the Act C. What is the material that Mr. Warman alleges constitutes hate messages within the meaning of s. 13 of the Act? (i) What is the material that was posted by Rocket440? a) September 30, 2003 - Name of discussion: The People's Voice b) October 1, 2003 - Name of discussion: America's media controlled by Jews c) October 20, 2003 - Name of discussion: Heil Hitler d) November 17, 2003 - Name of discussion: Alberta's need for a strong Nazi party e) November 24, 2003 - Name of discussion: Join the National Nazi Socialist Movement f) December 12, 2003 - Name of discussion: Ah Bliss (ii) What is the material that was posted by persons using monikers other than Rocket440? (iii) Is the material likely to expose members of the targeted groups to hatred or contempt, within the meaning of s. 13(1)? D. Were the impugned messages communicated repeatedly? E. Does the evidence establish that the Respondent Bobby Wilkinson communicated or caused to be communicated the impugned messages on the Internet? F. Has a case of discrimination been established against the Canadian Nazi Party? G. Remedies (i) An order that the discriminatory practice cease (s. 54(1)(a)) (ii) Penalty (s. 54(1)(c) I. INTRODUCTION [1] The Complainant, Richard Warman, alleges in his complaint that the Respondents, Bobby Wilkinson and the Canadian Nazi Party (CNP), engaged in a discriminatory practice, within the meaning of s. 13 of the Canadian Human Rights Act, by communicating repeatedly hate messages through an Internet website. The discrimination is alleged to have been based on disability, religion, race, colour, sexual orientation, and national or ethnic origin. Mr. Warman claims that the messages communicated matter that would likely expose mentally disabled persons, Jews, Hispanics, blacks, gays and lesbians, Roma (a.k.a. gypsies), Pakistanis, Arabs, Chinese, and Japanese, to hatred and/or contempt. A. The Respondents failed to appear at the hearing [2] At the opening of the hearing, which was conducted at the Tribunal's offices in Ottawa, the Tribunal called for appearances. Mr. Warman was present as was the lawyer representing the Canadian Human Rights Commission. The Tribunal asked if the Respondents were in the hearing room. There was no response. The Tribunal's registry officer stepped outside of the hearing room into the waiting area and again asked if the Respondents were present. There was no response. [3] The Tribunal then adjourned for 15 minutes. During the break, the staff at the Tribunal's reception desk confirmed to the registry officer that no one had telephoned in on behalf of the Respondents. When the hearing reconvened, there was still no sign of the Respondents or their representatives. [4] The Tribunal Registry's record of activity in this case demonstrates that the Respondents were made aware of these proceedings or reasonably ought to have been aware of them. When the Commission notified the Tribunal of its decision to refer Mr. Warman's complaint for hearing, it enclosed with its letter a copy of the complaint together with a form completed by the Commission entitled Summary of Complaint. This form indicated the same address for both Mr. Wilkinson and the CNP. The Commission subsequently informed the Tribunal that the original address given was incorrect (for reasons that I explain later in this decision), and on June 6, 2006, provided the Tribunal with Mr. Wilkinson's new address. [5] It is the Tribunal's practice, following the referral of a complaint, to send a number of letters to the parties. In the present case, the first letter, which was mailed on July 7, 2006, asked the parties if they were interested in participating in the Tribunal's mediation process. Although the letter was mailed to the updated address, the Tribunal did not receive any response from the Respondents. The Tribunal, therefore, followed up with a second letter on July 31, 2006. This letter did not elicit a response either. Consequently, the Tribunal retained a process server to serve both letters. In the process server's Affidavit of Attempted Service, which was produced as an exhibit at the hearing, the process server stated that between August 29 and September 12, 2006, he made five attempts to personally serve at Mr. Wilkinson's home over several days at varying times. On each occasion, the process server found no one at home. The documents could therefore not be served. During one of these visits, a neighbour confirmed to the process server that Mr. Wilkinson resided at that address. [6] The Tribunal retained a process server to serve a subsequent letter, dated November 23, 2006, inviting Mr. Wilkinson to participate in a case conference call with the Tribunal. The process server indicated in his Affidavit of Attempted Service that he made three attempts to serve the letter at Mr. Wilkinson's address but there was no answer at the door. The process server stated that on the third attempt, he spoke to a neighbour who confirmed that he had just spoken to Mr. Wilkinson and that he was still in his home. The neighbour described Mr. Wilkinson's car and it matched the description of the car parked in the front yard of the home. The process server knocked on the door and identified himself. He announced that he had papers to deliver from the Canadian Human Rights Tribunal. He could hear someone inside the home telling a dog to be quiet. The process server then placed the documents in a sealed envelope and taped it to the front door. [7] Subsequent affidavits from the process server indicate that there was no answer at the door when he made several attempts to serve a letter summarizing the case conference call as well as another letter containing the Notice of Hearing, which indicated the date, time and location of the hearing. Both letters were therefore placed in sealed envelopes and taped to the front door of the dwelling. [8] Given this information, and the fact that the Respondents or their representatives failed to present themselves at the opening of the case, I decided to proceed with the hearing in their absence. They did not appear at any time during the course of the one-day hearing, nor did they notify or contact the Tribunal Registry following the hearing. [9] The Respondents have not provided the Tribunal with any submissions or other documents. The recitation of the facts in this decision is therefore based solely on the evidence adduced by the Commission and Mr. Warman. B. Section 13 of the Act [10] In order to substantiate a complaint of discrimination under s. 13(1), it must be established that: a person or group of persons acting in concert communicated telephonically or caused 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. [11] Section 13(2) specifies that s. 13(1) applies to matter that is communicated by means of the Internet. C. What is the material that Mr. Warman alleges constitutes hate messages within the meaning of s. 13 of the Act? [12] Mr. Warman states in his complaint that the alleged hate messages were found on a message board (or forum) that he claims forms part of the CNP's website. I will be referring to this message board as the CNP Forum. The Internet address of the CNP's website is said to be pub68.ezboard.com/bcanadiannaziparty. The Commission and Mr. Warman allege that Mr. Wilkinson administered and maintained the website, including the CNP Forum, and that he was also personally responsible for some of the impugned postings thereon. [13] The alleged hate messages can be divided into two categories. The first consists of material that has been posted on the CNP Forum by someone using the moniker Rocket440, and the second consists of material that has been posted by person(s) using other monikers. As I explain later in this decision, the evidence establishes that the postings by Rocket440 were in fact made by the Respondent Bobby Wilkinson, and that Mr. Wilkinson administered the CNP website (i.e. pub68.ezboard.com/bcanadiannaziparty), including its message board, the CNP Forum. (i) What is the material that was posted by Rocket440? [14] The following material was posted by Rocket440 on the CNP Forum. Postings on the CNP Forum were organized under a number of discussion groupings. I have therefore indicated the date of the posting and the name of the discussion under which the posting was made. a) September 30, 2003 - Name of discussion: The People's Voice [15] On September 30, 2003, Rocket440 made four postings within five minutes of each other. These postings did not form part of a conversation with other people who were also posting messages, as is a common practice on message boards. Instead, each posting appears to have been made up of a large number of email messages that were sent by numerous persons to some unnamed individual. The email messages were grouped within Rocket440's four postings according to year - 1997, 1999, 2001, and 2002-2003. Certain comments were inserted between the email messages, the content of which would suggest that all of this material had been previously posted on some other website. It appears that Rocket440 had copied this material from the other website and posted it on the CNP Forum. [16] A total of 49 pages (single-spaced) of these postings were filed by Mr. Warman. The general theme of this material is fairly consistent. I have included a number of excerpts from the passages highlighted by Mr. Warman during his testimony. There are numerous grammatical and typographical errors in the postings, which I have opted not to remove or correct: You MORON! I can tell you this much, you buttfucking jewlover, you'll burn in hell. By protecting the jewish scum, that we know Our Lord Jesus Christ hated so much, you act like the devil himself. You know as well as I do that no one was gassed in Auschwitz, and most of the LIE they call Holocaust is just that, a lie. Here in America, we have Niggers who don't want to get a fucking job, their lazy black asses do nothing but collect social security, welfare, and food stamp! We put those monkeys in fucking houses, we pay for their fucking bastard kids, we buy their cars! [...] The NIGGERS! Those porch monkeys don't want to fucking work, they just smoke crack, and leech off an already oxidised system. [...] Sure a few kikes fried in Hitlers rule, who says they didn't ask for it? They served a devine perpase in the war, their skin made nice boots, and they help the medical field out tremendasly! What do the niggers help us do? [...] They drive down the road with fucking jungle bunny music blasting away. They are the scourge of the nation, and yet, nothing is done. You want to kill a nigger? Stop welfare! You want to scare one? Take the bastard to an auction! [...] They are all the time talking about Free Africa send those fucking niggers back there, we don't need them! Fuck, send back all the towel heads, kikes, spics, wetbacks send them all in a big boat, then sink the fucking thing! Watch them scurry like rats fighting each other for survival, then shoot each one who just about makes it! [...] You are a trator to your race and your country if you think that the niggers will ever do shit to benefit mankind other than dieing! Message from the KKK-Colition of USA, Niggers we own you... we owned your grandfathers coons and grandmother coons, and they had your nigger parents and your counsive nigger selfves and therfor I own all you niggers and nigglits so bow down and suck my cock!!! [...] THE CONSTITUTION OF THE WHITE UNITED STATES OF AMERICA WERE WROTE BY WHITE MEM FOR WHITE MEN! AND NOT YOU EVIL NIGGERS! SO I DECLARE INDEPENDECE DAY IS THE OPENING DAY FOR NIGGER HUNDING DAY [...] White Power For ever, kill all niggers, jews and faggots... they all can burn in hell... Hitler should have finished the job as far as the Jewish race is concerned!!! DEATH TO ALL THE JEWS AND NIGGERS!!!!!!! WHITE POWER!!!!!! SIEG HEIL!!!!!!! You are a fucking cock sucking jew and I hope you burn in a nazi jew burning oven with the rest of those inferior jews and niggers. Niggers are no better than my dog that I kick at night, my dog doesn't get to roam the streets why should any nigger. Niggers should be where they astarted, either on a farm picking cotton or in Africa and trying to do things by themselves. I pray one day soon that a führer will come and lead our people and rid of all the fucking kikes, niggers, spics, chinks, japs, etc... and our world will be once again the fatherland. I strongly urge my government and any other mostly white country to rise up and kill all Arabs, African, Indian asian, or anyother not white person in the world. Arabs. They are sub-humans who do not deserve to share this planet with us. Why can a nigger who isn't qualified for a job get it just because he's black; that's discrimination to the white man. The only faith I have left in this country is that the KKK and White Power grops all across the nation will fix this terrible mess with genocide. b) October 1, 2003 - Name of discussion: America's media controlled by Jews [17] On this date, Rocket440 posted a text that ran for almost two full pages single-spaced, under the discussion entitled America's media controlled by the Jews. The text itself is entitled Three Jewish Newspapers. I have excerpted a number of sections from this text: The suppression of competition and the establishment of local monopolies on the dissemination of news and opinion have characterized the rise of Jewish control over America's newspapers. The resulting policy could hardly be better illustrated than by the examples of the nation's three most prestigious and influential newspapers: the New York Times, the Wall Street Journal, and the Washington Post. [...] They are the ones that decide what is news and what isn't, at the national and international levels. They originate the news; the others merely copy it. And all three newspapers are in Jewish hands. [...] The New York Times was founded in 1851 by two Gentiles [...]. After their deaths, it was purchased in 1896 [...] by a wealthy Jewish publisher, Adolph Ochs. His great-great-grandson, Arthur Sulzberger, Jr., is the paper's current publisher and the chairman of the New York Times Co. The executive director is Joseph Lelyveld, also a Jew (he is a rabbi's son). [...] The Washington Post, like the New York Times, had a non-Jewish origin. [...] It was [later] purchased at a bankruptcy auction by Eugene Mayer, a Jewish financier and former partner of the infamous Bernard Baruch, industry czar in America during the First World War. The Washington Post is now run by Katherine Meyer Graham, Eugene Mayer's daughter. [...] The Washington Post Co. has a number of other media holdings in newspapers [...], in television [...], and in magazines, most notably the nation's number-two weekly newsmagazine, Newsweek. The Wall Street Journal, which sells 1.8 million copies each weekday, is the nation's largest-circulation daily newspaper. It is owned by Dow Jones & Company, Inc., a New York corporation that also publishes 24 other daily newspapers and the weekly financial tabloid Barron's, among other things. The chairman and CEO of Dow Jones is Peter R. Kann, who is a Jew. Kann also holds the posts of chairman and publisher of the Wall Street Journal. Most of New York's other major newspapers are in no better hands than the New York Times and the Wall Street Journal. In January 1993 the New York Daily News was bought from the estate of the late Jewish media mogul Robert Maxwell (born Ludvik Hoch) by Jewish real-estate developer Mortimer B. Zuckerman. The Village Voice is the personal property of Leonard Stern, the billionaire Jewish owner of the Hartz Mountain pet supply firm. And, as mentioned above, the New York Post is owned by News Corporation under the Jew Peter Chernin. Forum Administrator c) October 20, 2003 - Name of discussion: Heil Hitler [18] On this date, Rocket440 posted a reply to another participant on the CNP Forum, who had adopted Fuhrer as his moniker. Fuhrer's initial posting on a discussion that he had entitled Heil Hitler was: I am High school student who believes in Nazism, and has Adolph Hitler as his Hero. The first posting following this entry on the forum was made by Rocket440, who simply said great. Mr. Warman filed in evidence a whole series of subsequent postings in this discussion attributed to different monikers, but there is no evidence that any of these entries were made by Rocket440. d) November 17, 2003 - Name of discussion: Alberta's need for a strong Nazi party [19] On this date, Rocket440 made a posting in a discussion that another participant in the CNP Forum had opened, entitled Alberta's need for a strong Nazi party. He wrote the following: Niggers are becoming a household object...but no matter what, parents will always cringe when their sons/daughters bring home a Nigger. Why is it it's ok to openly advertise the fact that you love Niggers, but a moral sin to even dare put down a Black. Forum Administrator/Napkin Monitor The term Napkin Monitor was not explained or defined in the evidence. However, I did receive evidence regarding the functions of a forum administrator, on which I elaborate later in this decision. e) November 24, 2003 - Name of discussion: Join the National Nazi Socialist Movement [20] On this date, Rocket440 made what appears to be the initial posting of a new discussion entitled Join the National Nazi Socialist Movement: Info on Joining the National Nazi Movement. The posting begins with the following paragraphs: At a time when only deeds count and words are of little importance Adolf Hitler- In a time when racism is so considered an act of utter atrocity, and the thinkings of narrow minded people, why does the white race allow so much of it to be directed towards us? It's perfectly acceptable for one Black to call another Black a Nigger. It's acceptable for Blacks to even have a television station for themselves entitled Black entertainment television. Who could also forget about Black History Month, Kwanza, and even the Black Panthers. It has even stretched into sexuality. Gay pride parade, something most of us are familiar with, well why can't we have a straight pride parade? or heterosexual pride parade? The gay community would not stand for it just as the Black community doesn't stand for the KKK, though the Black Panthers are perfectly acceptable. It's time to take a stand, the last stand. It's time for the 4th coming. Are you not tired of interracial relationships? The white race is being sullied and in a matter of time will completely wiped out. Are you not tired of immigration laws? Simply being angry will not stop these great annoyances. We must band together as a single nation of Whites, and reclaim what is due as the master race. We have plans to do it right this time. We will gain power through numbers, and by Government. If we can have members in Government of all states, and Countries there will be no need for war, and even if there is a need no one can declare war on the world. Join us today, and help out in any way you can. Rocket440 then set out the prerequisites for joining the National Nazi Movement as follows: -at least 17 years of age -Pure white background -Supporter of the Nazi, and socialist movement -Prepared to take action -Love your race Please post the following vitals in this forum -Name -Age -Location -Race -Email Thanks goes out to all supporters. Remember you're not supporting this forum, but you're supporting the greater good and your race. Heil Hitler Forum Administrator/Napkin Monitor f) December 12, 2003 - Name of discussion: Ah Bliss [21] Rocket440's posting on this day was a quick reply to another person's prior posting in the same discussion, which had said: We need to Elect a Nazi/socialist party, get rid of all the foreigners (niggers, paki's, jews etc...) and restore Canada to a country that is not just sitting idly bye and waiting for others to make decisions for us. Canada needs a good kick in the knickers to get itself out of the rut that democracy and equality of peoples has dug us into. Rocket440's reply was simply: Couldn't have said it better myself! Forum administrator/Napkin Monitor. (ii) What is the material that was posted by persons using monikers other than Rocket440? [22] Mr. Warman highlighted a number of other excerpts from the pages that he viewed and printed from the CNP Forum, which were written by persons using monikers other than Rocket440. Mr. Warman contends that Mr. Wilkinson, as administrator of the website, is liable under s. 13 of the Act for any matter found on the website that offends this provision. Some of these excerpts are as follow: October 21, 2003 - Posting by 1488 EffeKt 1488 in the discussion entitled Where do you stand?: Blacks: it's a known fact they brings [sic] crime, they are nothing but trouble. Kill them all I say. Jews: Do I even need to say why? Kill em all I say. November 5, 2003 - Posting by furhrer in the discussion entitled Heil Hitler: In the dawn of Nordic civilization, lesser races used to cringe in their rude huts and pray, `Lord, save us from the fury of the men of the North!' It was THAT kind of man who built Western civilization. If civilization is now to be saved from the swarms of degenerate Jews, their cannibal accomplices and their unspeakably depraved liberal friends, it will be THAT kind of man who saves it, NEVER sneaks. (iii) Is the material likely to expose members of the targeted groups to hatred or contempt, within the meaning of s. 13(1)? [23] To be caught by s. 13(1) of the Act, it must be established that the impugned matter 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. [24] In Nealy v. Johnson (1989), 10 C.H.R.R. D/6450, the Canadian Human Rights Tribunal found that the term 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. The Tribunal added that contempt suggests looking down upon or treating as inferior the objects of one's feelings. The two terms are not necessarily co-extensive. In some instances, hatred may be the result of envy of superior qualities such as intelligence, wealth and power, which contempt, by definition, cannot be. [25] The Nealy Tribunal 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 of the communication 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. [26] These findings were later endorsed by the Supreme Court of Canada in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892. The Court added that the terms hatred or contempt in s. 13(1) refer to unusually strong and deep-felt emotions of detestation, calumny and vilification. [27] I find that the material presented in this case is likely to expose the targeted groups to hatred or contempt within the meaning of s. 13(1). In Warman v. Kouba, 2006 CHRT 50, the Tribunal analyzed the growing body of s. 13 jurisprudence and observed that there a number of hallmarks of material that is more likely than not to expose members of a targeted group to hatred or contempt. In my view, many of these hallmarks can be found in the material that is before me in the present case. [28] One of the hallmarks identified in Kouba is the communication of the idea that members of the targeted group are devoid of any redeeming qualities and are innately evil, or the idea that nothing but banishment, segregation or eradication of the targeted group will save others from the harm being done by this group. The September 30, 2003, postings contain comments reflecting these hallmarks. Many of the messages call for getting rid of minority groups and the death of all Jews and Niggers. Another message urges government to rise up and kill all Arabs, African, Indian, Asian or any other not white person in the world. Elsewhere in these postings, Arabs are said to be non-humans who do not deserve to share the planet with us. [29] In Rocket440's posting of November 24, 2003, he calls for the segregation, if not banishment, of all non-whites, by exhorting others to band together as a single nation of Whites, and reclaim what is due to the master race. [30] Calls for the annihilation of a targeted group are found in the messages on the CNP Forum posted by persons other than Rocket440. On October 21, 2003, 1488EffeKt1488 wrote, Kill [all Blacks] I say. Jews : Do I even need to say why? Kill em all I say. [31] The Kouba decision points out that another common hallmark of hate messages is the dehumanization of targeted groups through comparisons to and associations with animals, vermin, excrement and other noxious substances. Similarly, the use of highly inflammatory and derogatory language, creating a tone of extreme hatred and contempt, is also indicative of hate messages. [32] The September 30, 2003, postings are replete with such messages. Blacks are referred to as porch monkeys and are compared to dogs. People of Arabic origin are described as sub-humans. Disparaging language regarding numerous targeted groups is used throughout these texts (e.g. fucking kikes, niggers, spics, chinks, japs, fucking cock sucking jew, kill ass niggers, jews and faggots, niggers and nigglets, towel heads). In Rocket440's postings of November 17 and 24, 2003, he repeatedly referred to Blacks as niggers. [33] The trivialization or celebration of past persecution or tragedy involving members of a targeted group are also hallmarks of hate messages. One can find messages of this sort in the September 30, 2003, postings. One remark states that no one was `gassed' in Auschwitz, and most of the LIE they call `Holocaust' is just that, a lie. Another excerpt mocks the victims of the Holocaust and celebrates their victimization by stating a few kikes fried in Hitlers rule [...] they served a divine purpose in the war, their skin made nice boots, and they help the medical field out tremendasly [sic]. Elsewhere in these postings, the slavery of African Americans is mocked: You want to scare one? Take the bastard to an auction, and Niggers we own you ... we owned your grandfather coons and grandmother coons [...]. [34] Calls to take violent action against a targeted group are also a hallmark of hate messages. There are many such incitements to be found in the material put before me in this case. In the postings of September 30, 2003, there are calls to kill all niggers, jews and faggots, and messages wishing that another participant on the message board burn in a nazi jew burning oven with the rest of those inferior jews and niggers. As I noted earlier, in the posting of October 21, 2003, 1488EffeKt1488 asserts that Blacks and Jews should be killed (Kill them all I say). [35] Another hallmark identified in Kouba relates to the portrayal of the targeted group as a powerful menace that is taking control of major institutions in society and depriving others of their livelihoods, safety, freedom of speech and general well-being. The material posted on October 1, 2003, under the discussion America's media controlled by Jews falls within these categories. The article argues that Jews have taken over control of major media outlets in America from Gentiles. It links the evidently undesirable phenomenon of the suppression of competition and the establishment of local monopolies on the dissemination of news and opinion with the rise of Jewish control over America's newspapers. It relies upon purported facts regarding the ethnic and religious backgrounds of persons involved in news media to advance these negative generalizations, which is another hallmark identified in Kouba. [36] One could argue that the concentration of media ownership constitutes a legitimate object of public discourse. However, given the context of the other material regarding Jews that Rocket440 had posted on the CNP Forum (e.g. fucking cock-sucking Jew, death to all the Jews, ...burn in a Nazi Jew burning oven with the rest of those inferior Jews and niggers), it is evident that the posting is not a discussion about the state of capitalism in North America, but rather a portrayal of Jews as a menace to Canadian society. [37] In sum, therefore, messages found on the CNP Forum, posted by Rocket440 and others, bear one or more of the hallmarks of hate messages, within the meaning of s. 13 of the Act. I therefore conclude that this material is likely to expose members of the targeted groups (including Blacks, Jews, Asians, homosexuals, and Latin Americans) to hatred or contempt by reason of the fact that they are identifiable on the basis of a prohibited ground of discrimination. D. Were the impugned messages communicated repeatedly? [38] According to s. 13(1) of the Act, the communication of hate messages must occur repeatedly to constitute a discriminatory practice. Mr. Warman testified that any member of the public would have been able to access the CNP Forum via the Internet. Since the messages could be viewed at any time by anyone using the Internet, in my view, they were indeed being communicated repeatedly (see Warman v. Kulbashian, 2006 CHRT 11 at para. 62; Schnell v. Micka (20 August 2002: CHRT), para. 129; Canadian Human Rights Commission v. Winnicki; 2005 FC 1493 at para. 32). E. Does the evidence establish that the Respondent Bobby Wilkinson communicated or caused to be communicated the impugned messages on the Internet? [39] In order to establish the link between the impugned messages found on the CNP Forum and the Respondent Bobby Wilkinson, Mr. Warman produced discussion excerpts from the CNP Forum as well as from another online forum that is found on a website called Stormfront.org, which is based in the United States. [40] One of the discussion participants on Stormfront.org used the moniker MeinStruggle. Participants to this forum could indicate their location in the margin next to their postings. Meinstruggle gave Canada as his location. In a posting on the Stormfront.org forum, dated October 2, 2003, MeinStruggle wrote the following: I am attempting to start my own movement. Visit our board for more info. He then identified the board as pub68.ezboard.com/bcanadiannaziparty, which is the address of the website where Mr. Warman says he viewed the hate messages discussed earlier in this decision, i.e. the CNP Forum. [41] On November 23, 2003, a message was posted on the CNP Forum by two Italian Nazi guys, seeking advice on how to immigrate to Canada. Someone using the moniker Rocket440 responded to the message on November 26, 2003, and suggested that they communicate with him directly by email to his email address, bobby.wilkinson@sympatico.ca. At the end of Rocket440's message appeared the words Forum Administrator/Napkin Monitor. [42] Bell Sympatico is an Internet Service Provider that is operated by Bell Canada. Mr. Warman testified as to his understanding that Bell Sympatico allows its clients to whom it provides Internet access, to use a small amount of space on its website (sympatico.ca) where they can establish their own small Internet website. These small websites are typically registered under the client's email address. Mr. Warman claims that he gained this understanding from the evidence that was adduced in another Tribunal case in which he was involved, Warman v. Winnicki, File T1021/0205. These client websites can be accessed via a Bell Sympatico website known as www3.sympatico.ca. On December 8, 2003, Mr. Warman submitted the name bobby.wilkinson to this website, and a web page identified as the Index of /bobby.wilkinson/ appeared. There were no folders or files listed under the index, but Mr. Warman testified, based on his understanding of how this Bell Sympatico service functioned, that for the index to exist, there must have been an active Bell Sympatico client using the name bobby.wilkinson. Given the Respondents' absence from the hearing, Mr. Warman's evidence on this point was not contradicted. [43] On November 29, 2003, Rocket440 posted a message on the CNP Forum, in response to a posting by someone from Toronto who had just joined the forum. Rocket440 replied, Welcome! I'm from Ottawa, but I visit T.O. regularly. He signed off his message again as the Forum Administrator. [44] Mr. Warman produced a printout of what he described as the home page of the Canadian Nazi Party's website and forum. It consists principally of a table of contents listing the various topics of existing discussions that were present on the CNP Forum. At the top of the page, there is an image of a Swastika. At the end of the home page is a link on which a visitor can click to Contact [the] Administrator. Mr. Warman testified that by clicking on this link, his email program automatically generated a window for a new email message, the addressee of which was bobby.wilkinson@sympatico.ca. [45] Mr. Warman stated in his evidence that the last time he had managed to view the CNP Forum on the Internet was on December 21, 2003. When he attempted to access the website on February 23, 2004, he was denied entry. Instead, a system message from ezboard appeared stating that the website was Banned and Locked Down! The message went on to say: (canadiannaziparty) has been locked down in accordance with ezboard's Terms of Use Reason: hate speech [46] Mr. Warman testified that ezboard is an Internet web hosting service that is available from a website known as ezboard.com. It enables users to set up websites and forums for free. I gather from the wording of the CNP Forum's Internet address that this message board was hosted by ezboard.com (i.e., pub68.ezboard.com/bcanadiannaziparty). [47] On August 28, 2004, MeinStruggle made a posting on the Stormfront.org forum. The title of his posting was Calling All Aryans in Canada, Please Help. He stated in his first paragraph: My name is Bobby, I formerly ran the Canadian Nazi/Socialist forum off of ezboard until it was shutdown due to Hate Speech. This was early last year, and the forum was shutdown around January of this yr. The shutdown date falls between the date when Mr. Warman was last able to view the CNP Forum (December 23, 2003) and the date when he was denied entry to the website (February 23, 2004). [48] In the same August 28, 2004, Stormfront.org posting, MeinStruggle wrote the following paragraph referring to a human rights complaint having been filed against him but served on his grandfather: This morning a letter arrived addressed to my grandfather (whom which the home in which I operated this site belonged to) ...now here's the good part addressed to my grandfather but flat out accusing me of being a bigot, and uttering hate speech, which violates section 13(1) of the human rights act. Remember addressed to my grandfather the internet connecting is in my name, and the email address used for correspondence on the forum was in my name, as well as the user name on ezboard. All allegations pertaining to this case are directed at me, but addressed to my grandfather? [sic throughout] [49] The Commission filed documents at the hearing indicating that Mr. Warman's complaint in the present case was initially served by error on someone named Robert P. Wilkinson, who is not one of the Respondents. A memorandum to the Commission's file prepared by one of its human rights investigators, dated November 3, 2004, states that she had been contacted by a lawyer representing Robert P. Wilkinson. The lawyer explained that his client was the grandfather of the Respondent, Bobby James Wilkinson. He added that the younger Mr. Wilkinson had been living at his grandfather's home, and that the grandson owned a computer that he kept in the basement. On November 8, 2004, the Commission received a letter from the lawyer confirming that his client, Robert P. Wilkinson, is not the same person as Bobby James Wilkinson, whose website and on whose computer the material complained of originated. [50] The Commission apparently learned subsequently that the Respondent Bobby Wilkinson had at some point thereafter moved out of his grandfather's house. Consequently, the Commission hired a process server to trace his new address. On May 29, 2006, the process server notified the Commission that he had located Mr. Wilkinson at an address in the Ottawa area. This information was eventually conveyed to the Tribunal. It was at this new address that the Tribunal's process server attended to serve the letters referred to earlier in this decision. [51] Based on all of this evidence, I draw the following inferences. To begin with, someone named Bobby was posting on the Stormfront.org message board under the name MeinStruggle. Bobby claimed to run a message board of his own, which had the Internet address pub68.ezboard.com/bcanadiannaziparty. This is the Internet address that appears on the printouts of the CNP Forum's pages, where Mr. Warman found and viewed the alleged hate messages. Bobby declared on Stormfront.org that his message board had been shut down by ezboard in a period that is consistent with the date when Mr. Warman testified that he could no longer access the website. I therefore conclude that Bobby was the CNP Forum's administrator. [52] The forum's administrator (i.e., Bobby) posted messages on the board using the moniker Rocket440 and had an email address comprised of the name bobby.wilkinson. The August 28, 2004, posting on Stormfront.org by Bobby (a.k.a. MeinStruggle) together with the information provided by Robert P. Wilkinson's lawyer lead me to conclude that the same individual (Bobby) is the grandson of the person mistakenly served with Mr. Warman's complaint (Robert P. Wilkinson). The grandson's name is Bobby Wilkinson. [53] I have already determined that a number of the messages posted by Rocket440 (i.e., the forum administrator, Bobby Wilkinson) constitute hate messages within the meaning of s. 13 of the Act, as do several other messages posted on the CNP Forum under different monikers. While the evidence does not suggest that Mr. Wilkinson authored the posts issued under the monikers other than Rocket440 (i.e. it has not been shown that he communicated this matter), he may still be found to have engaged in a discriminatory practice under s. 13 if he caused these messages to be communicated. I have determined that Mr. Wilkinson was the administrator of the CNP Forum. Mr. Warman filed in evidence an excerpt from ezboard.com's online help page regarding the role of forum moderators on message boards. This document indicates that message board administrators apparently have the ability to edit or delete postings or the content of entire discussions. The administrator may also set the forum security settings so that posts are screened before they can be viewed by the public. [54] On the basis of this evidence, I conclude that Mr. Wilkinson, as the CNP Forum's administrator, had the means to ensure that the impugned postings made by other participants were never viewed publicly or were subsequently removed. Moreover, since Mr. Wilkinson personally contributed to some of the discussion groups in which these postings were made (e.g. the discussion in which 1488EffeKt1488 posted the October 21, 2003, message), Mr. Wilkinson must have viewed them. He nevertheless allowed these messages to remain publicly posted. As such, I am satisfied that Mr. Wilkinson caused these messages to be communicated within the meaning of s. 13 (see Warman v. Kulbashian, supra, at paras. 111-2.). [55] In my view, therefore, a prima facie case of discrimination by the Respondent Bobby Wilkinson has been established. These inferences, if believed, are complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the Respondent Bobby Wilkinson (Ontario (Human Rights Commission) v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536 at 558 (O'Malley). Given Mr. Wilkinson's absence from the hearing, no answer to the case made against him was provided, nor does any such answer or explanation emerge from the evidence that was produced by the other parties in this case. [56] Furthermore, no evidence has been presented to me to contradict the inference that the individual named Bobby Wilkinson who has been served with numerous documents in these proceedings is the Bobby Wilkinson who administered the CNP Forum and who posted messages on this forum under the moniker Rocket440. F. Has a case of discrimination been established against the Canadian Nazi Party? [57] Mr. Warman has named the Canadian Nazi Party as a party in his complaint. He points out that the CNP Forum was found on a website whose name incorporated the words Canadian Nazi Party (i.e. pub68.ezboard.com/bcanadiannaziparty). The actual name used to describe the CNP Forum on the website was National Nazi and Socialist Forum. When Mr. Wilkinson posted messages on the Stormfront.org message board in October 2003, he stated, I'm attempting to start my own movement. Please visit the board for more info. The Internet address given in the messages was that of the CNP Forum. [58] On the CNP Forum's main page, one could view a list of links to the forum's various discussions. One of those discussions was entitled Join the National Nazi Movement - Information on joining the National Nazi Socialist movement. Clicking on the link brought the visitor to another page, at the bottom of which the Prerequisits [sic] for joining the National Nazi Movement were set out, as follows: At least 17 years of age Pure white background Supporter of the Nazi and socialist movement Prepared to take action Love your race. The page then asks the visitor to provide the following vitals: Name Age Location Race Email [59] No evidence was led demonstrating that the Canadian Nazi Party exists as a legal entity. The only mention of this name in the evidence is found in the above-noted Internet address. Elsewhere on the website, there is some mention made of the National Nazi Movement and the National Nazi Socialist Movement. [60] It is a discriminatory practice for a group of persons acting in concert to communicate or cause to be communicated repeatedly hate messages over the Internet (ss. 13(1) and 13(2) of the Act). The group of persons contemplated in these provisions need not necessarily be organized within a distinct entity having a formal legal status (see Nealy v. Johnston (1989), 10 C.H.R.R. D/6450 at D/6464). [61] On the home page of the website, there is a list of the various main discussions found on the CNP Forum. One of the discussion topics is entitled Members. The description given of this discussion is Member of the Nazi/Socialist Party. Mr. Warman entered into evidence a printout of a posting on this discussion by Rocket 440. The subject heading of the posting is Welcome to our newest member, following which is listed the name of an individual, his age, his background (Scottish), his gender (male), his location (Toronto) and email address. Mr. Warman notes that this information matches precisely the details requested on the Join the National Nazi Movement form. [62] However, in my view, this evidence establishes nothing more than that this supposed new member filled out the questionnaire on the CNP Forum website. Even if one were to accept that this individual was an actual member of Mr. Wilkinson's movement, s. 13 of the Act contemplates more than the mere existence of a group of persons. The persons must be acting in concert to communicate or cause to be communicated the impugned messages. There is no evidence that this supposed new member was in any way involved in the communication of the messages, nor is there any evidence, for that matter, of any meetings, gatherings or organizational structure of any sort, associated with this alleged group. [63] Mr. Warman pointed out that the website's home page lists the monikers of the moderators for the CNP Forum discussion groups. There are two monikers listed: Meinstruggle (presumably Mr. Wilkinson) and Landser88, whose actual identity if he is someone other than Mr. Wilkinson, cannot be determined from the evidence before me. In my view, this information is not sufficient to demonstrate that two or more individuals were acting in concert to administer and/or moderate the content of the CNP Forum, through which the impugned hate messages were caused to be communicated. I am not persuaded that the Canadian Nazi Party ever existed in any form nor that it was anything more than Mr. Wilkinson's alter ego. The evidence does not establish that anyone other than Mr. Wilkinson acting alone administered the website. [64] The complaint against the Canadian Nazi Party has therefore not been substantiated and is dismissed. G. Remedies [65] The Commission and Mr. Warman request that the Tribunal issue several orders pursuant to s. 54 (1) of the Act. (i) An order that the discriminatory practice cease (s. 54(1)(a)) [66] 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. [67] Accordingly, I order Mr. Wilkinson to cease and desist from communicating or causing to be communicated, by the means described in s. 13 of the Act, and particularly the Internet, any matter of the type contained in the messages at issue in this case 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. (ii) Penalty (s. 54(1)(c) [68] The Tribunal may order a respondent who engaged in a discriminatory practice set out in s. 13 of the Act, to pay a penalty of up to $10,000, pursuant to s. 54(1)(c). Section 54(1.1) enumerates 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 or she has engaged in, and his or her ability to pay the penalty. The Commission and Mr. Warman have requested that a penalty of $6,000 be imposed against each of the respondents. [69] Commission counsel stated, in her final arguments, that the content of the hate messages was both vicious and extreme. She pointed out that not only did the messages attribute numerous and varied criminal acts to the [targeted] groups, described them as corrupt and devious, but some messages went so far as to openly advocate the extermination of Jews, Blacks and other non-whites. She concluded that this ought to weigh heavily in favour of the assessment of a significant penalty. The evidence, in my view, supports this submission. [70] I would add, further, that it does not matter whether Mr. Wilkinson actually authored some of the hate messages, including those of September 30, 2003. It was ultimately he who decided to post this material on the message board, irrespective of its origin. Besides, Mr. Wilkinson wilfully caused to be communicated repeatedly all of the impugned hate messages by establishing and administering the CNP Forum on which the messages were placed (see by analogy, Warman v. Kulbashian, supra, at para. 144). [71] I have no direct evidence before me of Mr. Wilkinson's ability to pay a penalty, although from the fact that he was residing in the basement of his grandfather's home until some time between 2004 and 2006, it may be inferred that he is a relatively young person of modest means. I note as well that no evidence was introduced demonstrating that Mr. Wilkinson had engaged in prior discriminatory practices. [72] Taking all of these factors into account, I order Mr. Wilkinson to pay a penalty of $4,000. 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 date on which this decision is served on Mr. Wilkinson. Signed by Athanasios D. Hadjis OTTAWA, Ontario July 10, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1095/7605 STYLE OF CAUSE: Richard Warman v. Bobby Wilkinson DATE AND PLACE OF HEARING: January 24, 2007 Ottawa, Ontario DECISION OF THE TRIBUNAL DATED: July 10, 2007 APPEARANCES: Richard Warman For himself Judith Parisien For the Canadian Human Rights Commission No one appearing For the Respondent

2007 CHRT 28

CHRT

Telecommunications Employees Association of Manitoba Inc. v. Manitoba Telecom Services

en

2007-07-16

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7041/index.do

2023-12-01

Telecommunications Employees Association of Manitoba Inc. v. Manitoba Telecom Services Collection Canadian Human Rights Tribunal Date 2007-07-16 Neutral citation 2007 CHRT 28 File number(s) T1161/4306 Decision-maker(s) Doucet, Michel Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE TELECOMMUNICATIONS EMPLOYEES ASSOCIATION OF MANITOBA INC., BARBARA CUSTANCE, CARMEN GIROUX, CHUCK HANDO, KATHLEEN MULLIGAN, JANICE SIRETT Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - MANITOBA TELECOM SERVICES Respondent RULING MEMBER: Michel Doucet 2007 CHRT 28 2007/07/16 [1] The Complainants filed a motion for an Order compelling the Canadian Human Rights Commission and the Respondent to produce a complete, uncensored copy of the Employment Equity Compliance Report of Manitoba Telecom Services, dated May 26, 2004, and, in particular for the production of the Interim Report mentioned in Appendix D of said Report. This motion had been presented to the Tribunal on July 3, 2007, and the Tribunal Chairperson, Grant Sinclair, who was the assigned case manager, directed that it be dealt with at the opening of the hearing on July 9, 2007. [2] The Respondent opposes the production of this document. It argues that this document contains privileged information protected by section 34 of the Employment Equity Act, S.C. 1995, c. 44, which states: 34 (1) Information obtained by the Commission under this Act is privileged and shall not knowingly be, or permitted to be, communicated, disclosed or made available without the written consent of the person from whom it was obtained. (2) No member of the Commission or person employed by it who obtains information that is privileged under subsection (1) shall be required, in connection with any legal proceedings, other than proceedings relating to the administration or enforcement of this Act, to give evidence relating to that information or to produce any statement or other writing containing that information. (5) No information obtained by the Commission or a Tribunal under this Act may be used in any proceedings under any other Act without the consent of the employer concerned. [3] The Respondent further argues that any information contained in this document would not be relevant and would constitute hearsay evidence. [4] I will deal briefly with the second argument. The production of documents is subject to the test of arguable relevance, not a particularly high bar to meet. There must be some relevance between the information or document sought and the issue in dispute. There can be no doubt that it is in the public interest to ensure that all relevant evidence is available in a proceeding such as this one. A party is entitled to get information or documents that are or could be arguably relevant to the proceedings. This does not mean that these documents or this information will be admitted in evidence or that significant weight will be afforded to them. [5] Does section 34 of the Employment Equity Act prevent the disclosure of this document? The purpose of the Employment Equity Act is to ensure equal representation in the workplace of persons who fall within the four designated groups -- women, Aboriginal peoples, persons with disabilities, and visible minorities. Pursuant to its mandate under section 22, the Commission may initiate an employment equity compliance review audit on any employer subject to the Employment Equity Act. Subsection 34(1) provides that information obtained by the Commission from employers during an audit is privileged and shall not knowingly be communicated, disclosed or made available without the consent of the person from whom it was obtained. [6] The Respondent argues that the public benefit to be fostered by ensuring that the information contained in the Interim Report remains confidential is to promote a full and frank exchange of information between employers and the Commission. [7] In considering the public interest in keeping information confidential, it is necessary to consider the purpose of the Canadian Human Rights Act and the Employment Equity Act. Both are quasi-constitutional in nature: see Gould v. Yukon Order of Pioneers, [1996] 1 S.C.R. 571, Ontario (Human Rights Commission) v. Simpson-Sears, [1985] 2 S.C.R. 536. The purpose of Employment Equity Act is to bring about equal representation in the workplace of members of designated groups. While the purpose of the Canadian Human Rights Act is to give effect 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. Both purposes as we can see are very similar and they both seek to attain very important social goals. [8] The Complainants are not seeking disclosure of the documents or information provided by the Respondent to the Commission, which information would be privileged under section 34 of the Employment Equity Act. Rather, the document requested is the Interim Report, a document prepared by the Commission, which is an Appendix to the Final Report, prepared by the Commission. The Final Report was disclosed without any objections neither by the Commission, nor by the Respondent. [9] The Respondent argued that some part of the Interim Report contained information which had been provided to the Commission and was therefore protected under section 34 of the Employment Equity Act. The Respondent provided a copy of the Interim Report to the tribunal in which it had highlighted the passages which, according to them, made reference to such information. I have had the opportunity to review this document and the highlighted passages. [10] Upon considering the evidence before me, I come to the conclusion that, putting aside the passages that have been highlighted, there is no reason why the document should not be disclosed to the Complainants. [11] I therefore order that the Respondent provide forthwith to the Complainant a copy of the Interim Report in Appendix D of the Employment Equity Compliance Review Report, dated May 26, 2004 and that the following information, which is privileged under section 34 of the Employment Equity Act, be blanked out : Page 3 - Section entitled II Audit Methodology and Status Page 4 - The first line in the first paragraph of Section B. Employer Accomplishments Page 10 - The paragraph following the heading Methodology for 2002 Employment Systems Review Page 10 - The First paragraph following the heading - Areas Selected for the Assessment of MTS's Employment System Review [12] The conditions contained in Chairperson Sinclair's Order of June 29, 2007, apply to this Order. Signed by Michel Doucet OTTAWA, Ontario July 16, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1161/4306 STYLE OF CAUSE: Telecommunications Employees Association of Manitoba Inc., Barbara Custance, Carmen Giroux, Chuck Hando, Kathleen Mulligan, Janice Sirett v. Manitoba Telecom Services DATE AND PLACE OF HEARING: July 9 to 11, 2007 Winnipeg, Manitoba RULING OF THE TRIBUNAL DATED: July 16, 2007 APPEARANCES: R. Ivan Holloway Luke Bernas For the Complainants No one appearing For the Canadian Human Rights Commission Gerry Parkinson Paul McDonald For the Respondent

2007 CHRT 29

CHRT

Telecommunications Employees Association of Manitoba Inc. v. Manitoba Telecom Services

en

2007-07-16

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7044/index.do

2023-12-01

Telecommunications Employees Association of Manitoba Inc. v. Manitoba Telecom Services Collection Canadian Human Rights Tribunal Date 2007-07-16 Neutral citation 2007 CHRT 29 File number(s) T1161/4306 Decision-maker(s) Doucet, Michel Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE TELECOMMUNICATIONS EMPLOYEES ASSOCIATION OF MANITOBA INC., BARBARA CUSTANCE, CARMEN GIROUX, CHUCK HANDO, KATHLEEN MULLIGAN, JANICE SIRETT Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - MANITOBA TELECOM SERVICES Respondent RULING 2007 CHRT 29 2007/07/16 MEMBER: Michel Doucet [1] The Respondent made an oral motion at the start of the hearing asking the Tribunal not to allow the Complainants to lead evidence or argue in the alternative to their main arguments that they were perceived to be disabled in the manner in which the layoffs were implemented. The Respondent took specific issue with the Complainants' solicitor's argument in a letter dated July 6, 2007, in which they suggested that the Respondent had a duty to accommodate to the point of undue hardship. [2] The solicitor for the Respondent argued that these allegations constituted additional allegations which had the effect of amending the complaints. [3] Having reviewed the Complaints and the Statement of Particulars and Amended Statement of Particulars, I note that in every one of these, the Complainants referred to a perceived disability. This being the case, I fail to see how the Respondent would be prejudiced by the allegations or the arguments contained in the letter of July 6, 2007. [4] On the issue of undue hardship and accommodation, I think it is important that we review the law as it relates to human rights. The complaints are brought pursuant to sections 7 and 10 of the Act. Section 7 makes it a discriminatory practice to refuse to employ, or to continue to employ, an individual, on a prohibited ground of discrimination. Section 10 makes it a discriminatory practice for an employer to establish or pursue a policy that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination. In contrast to complaints under section 7 of the Act, which relate to employer actions affecting specific, named individuals, section 10 of the Act addresses the discriminatory effect that employer policies or practices may have on an individual or a class of individuals. [5] Section 3 of the Act designates disability as a prohibited ground of discrimination. Furthermore, it is now well-established that the protection of the Act extends to those who are mistakenly perceived to have a disability. (See Québec (Commission des droits de la personne et des droits de la jeunesse) c. Montréal (Ville), [2000] 1 S.C.R. 665, at para. 49.) [6] Since the Supreme Court decisions in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3 [also called Meiorin] and British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 [also called Grismer], the conventional distinction between direct discrimination and indirect discrimination has given way to a unified approach to processing human rights complaints. According to this approach, it is incumbent first 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 favour of the complainant, in the absence of an answer from the respondent. To do this the Complainant must satisfy the Tribunal that the Respondent has acted in a discriminatory manner in regards to the Complainant's disability or perceived disability. [7] Once a prima facie case of discrimination has been established, the onus shifts to the Respondent to prove, on the balance of probabilities, that there is a bona fide justification for the discriminatory policy or standard. Thus, the Respondent must prove that: it adopted the standard for a purpose or goal rationally connected to the performance of the job. The focus at this step is not on the validity of the particular standard, but rather on the validity of its more general purpose, such as the safe and efficient performance of 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 good faith, in the belief that it was necessary to the fulfillment of the legitimate work-related goal, with no intention of discriminating against the claimant. At this stage, the focus shifts from the general purpose of the standard to the standard itself; the impugned standard is reasonably necessary to accomplish its goal, that is, the safe and efficient performance of the job. The employer must demonstrate that it cannot accommodate the claimant and others affected by the standard without suffering undue hardship. It must ensure that any procedure that has been adopted to assess the issue of accommodation considers the possibility that it may unduly discriminate on a prohibited ground of discrimination. Moreover, the substantive content of a more accommodating standard offered by the employer must be adapted to each case. Subsidiarily, the employer must justify why it has not offered such a standard. [8] The Meiorin and Grismer decisions include parameters for determining whether a defence based on undue hardship has been established. In Meiorin, the Supreme Court pointed out that the use of the term undue infers that some hardship is acceptable. In order to meet the standard, the hardship imposed must be undue. It may be ideal from the employer's perspective to choose a standard that is uncompromisingly stringent. Yet the standard, if it is to be justified under the human rights legislation, must accommodate factors relating to the unique capabilities and inherent worth and dignity of every individual, up to the point of undue hardship. [9] Considering the state of the law and considering the fact that the Complainants have referred to perceived disabilities from the start, I reject the Respondent's argument that the letter of July 6, 2007, raises new grounds. Signed by Michel Doucet OTTAWA, Ontario July 16, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1161/4306 STYLE OF CAUSE: Telecommunications Employees Association of Manitoba Inc., Barbara Custance, Carmen Giroux, Chuck Hando, Kathleen Mulligan, Janice Sirett v. Manitoba Telecom Services DATE AND PLACE OF HEARING: July 9 to 11, 2007 Winnipeg, Manitoba RULING OF THE TRIBUNAL DATED: July 16, 2007 APPEARANCES: R. Ivan Holloway Luke Bernas For the Complainants No one appearing For the Canadian Human Rights Commission Gerry Parkinson Paul McDonald For the Respondent

2007 CHRT 3

CHRT

Lavoie v. Treasury Board of Canada

en

2007-02-05

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6489/index.do

2023-12-01

Lavoie v. Treasury Board of Canada Collection Canadian Human Rights Tribunal Date 2007-02-05 Neutral citation 2007 CHRT 3 File number(s) T1154/3606 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE BRIGITTE LAVOIE Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - TREASURY BOARD OF CANADA Respondent RULING 2007 CHRT 3 2007/02/05 MEMBER: Karen A. Jensen [1] This is a ruling on a preliminary motion to dismiss a complaint against the Respondent, Treasury Board of Canada, without a hearing. The Complainant, Ms. Brigitte Lavoie, filed a complaint against Treasury Board alleging that its new Term Employment Policy is discriminatory. The Policy does not allow maternity and parental leave time to count towards the three year cumulative service requirement needed to advance from term to indeterminate (permanent) employment status in the Federal Public Service. [2] Treasury Board argues that the Tribunal does not have the jurisdiction to hear the complaint because, as a result of a settlement in a previous complaint, there is no longer a live controversy to be resolved. Therefore, according to the Respondent, the Supreme Court of Canada's decision in Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, applies, and the complaint is moot. Background [3] Ms. Lavoie was hired on a one year contract with Industry Canada as a programmer-analyst in August 2000. Her contract was renewed in August 2001, and again in August 2002. On August 19, 2002, Ms. Lavoie went on maternity leave. She returned to work from her leave on or about August 5, 2003. [4] Prior to her return to work, Ms. Lavoie was informed by her employer that she would be given an opportunity to compete for several permanent (indeterminate) positions within Industry Canada. Those who were unsuccessful would be given three weeks to find a new position. Ms. Lavoie was unsuccessful in the competition for the indeterminate positions. Her contract with Industry Canada ended in August 2003, and was not renewed. [5] Prior to her departure on maternity leave, Ms. Lavoie's employment was subject to a Treasury Board Policy regarding Term Employment. That Policy stipulated that where a person had been employed in the same department as a term employee for a cumulative period of five years without a break in service longer than sixty days, the department was required to appoint the employee indeterminately at the level of his or her substantive position. Time spent on unpaid leave counted towards the cumulative five year working period that was required to become an indeterminate employee. Maternity and parental leave were considered to be unpaid leave. [6] While Ms. Lavoie was on maternity leave, however, the Treasury Board Term Employment Policy changed. The five year requirement was reduced to three years, but time on unpaid leave no longer counted towards the cumulative working period. Were it not for the fact that she was on maternity and parental leave for a year, Ms. Lavoie would have qualified, under the new Treasury Board Policy, for an indeterminate position. [7] In July 10, 2003, Ms. Lavoie filed a complaint with the Canadian Human Rights Commission against Industry Canada alleging that the new Treasury Board Policy was discriminatory. She also alleged that the way in which Industry Canada handled the competitions for the indeterminate positions was discriminatory. Among the remedies that she requested was an appointment to an indeterminate position in Industry Canada. [8] On October 20, 2003, Ms. Lavoie entered into a settlement agreement with Industry Canada in which she agreed to withdraw her complaint in exchange for certain concessions. Specifically, Industry Canada granted her an indeterminate position as a programmer-analyst effective November 17, 2003. Ms. Lavoie agreed that the settlement constituted full and final compensation for all of the incidents alleged in her complaint against Industry Canada. In the settlement agreement, however, Ms. Lavoie reserved the right to file a complaint against Treasury Board regarding the new Term Employment Policy. [9] On January 19, 2004, Ms. Lavoie filed another complaint with the Canadian Human Rights Commission, this time against Treasury Board, in which she has alleged that the new Term Policy is discriminatory. Although one of the consequences of the allegedly discriminatory Policy has been remedied since she now holds an indeterminate position with Industry Canada, Ms. Lavoie claims that she continues to suffer other negative consequences as a result of the Policy for which she has not received compensation. In addition, she seeks an order from the Tribunal requiring Treasury Board to amend its Term Employment Policy to permit maternity and parental leave to count towards the cumulative working period. Analysis [10] The Respondent argues that by virtue of the settlement of October 2003, with Treasury Board, the Complainant relinquished the right to claim any personal remedies flowing from the allegations made in the first complaint. Given that the allegations and the relief claimed in the first complaint are similar, if not identical, to those in the second complaint, the Respondent argues that the Complainant cannot claim a personal remedy in the second complaint. The Respondent also bases its argument on the principle of the indivisibility of the Crown. [11] Thus it is argued that, even though the Complainant reserved the right to file a complaint against Treasury Board regarding the Term Employment Policy, there is no longer a live controversy between the Complainant and the Respondent because the Complainant does not have a personal interest in the resolution of the complaint. Without that, Treasury Board argues, the complaint is moot and should not be heard by this Tribunal. Finally, the Respondent argues that the allegations regarding the discriminatory nature of the new Policy have been conclusively determined in other forums and thus, there is no public interest in having the Tribunal examine this issue. [12] For the following reasons I find that these arguments are without merit. [13] Firstly, the Act does not require a complainant to pursue a personal remedy against the respondent in order to bring a complaint. Indeed, the Act does not require the complainant to be the victim of the alleged discriminatory practice. Section 40 of the Act stipulates that 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. Moreover, section 53 of the Act provides the Tribunal with the authority to issue orders, in the event that the complaint is substantiated, that are not necessarily of a personal nature, but serve a broader public purpose in their remedial goals. Therefore, it is not necessary that the complaint be filed in pursuit of a personal remedy in order for the Tribunal to have the jurisdiction to hear it. [14] Secondly, this Tribunal has held that a change in circumstances following the filing of a complaint or the settlement of the personal interests in a complaint does not necessarily deprive the Tribunal of the jurisdiction to hear the complaint (Parisien v. OC Transpo 15 July 2002; CHRT, at para. 42; and Kavanagh v. Canada (Correctional Services) 31 August 2001; CHRT, at paras. 7-9). Rather, these may be issues that will go to the question of the appropriate remedy in the event that the complaint is substantiated. [15] It appears from the complaint form that Ms. Lavoie is asking for additional remedies that were not claimed in the first complaint. Whether she is barred from doing so in light of the settlement that she obtained from Industry Canada is an issue to be determined by the Tribunal in the event that the complaint is substantiated. [16] In the settlement agreement, Ms. Lavoie specifically reserved the right to file a complaint against Treasury Board with regard to the new Term Employment Policy. The question of whether the new Policy is discriminatory has not therefore, been settled. Furthermore, I agree with the submissions of counsel for Ms. Lavoie that there has, to date, been no binding determination regarding the precise question that has been put before this Tribunal in Ms. Lavoie's complaint. Other than Braconnier v. Treasury Board, 2006 CRTFP 109, none of the authorities provided by the Respondent deal with the Policy in question in this complaint. In Braconnier, the arbitrator did not deal with the question of whether the new Policy was discriminatory since he found that he did not have jurisdiction to deal with this issue as a result of s. 7 of the Public Service Labour Relations Act. Thus, the question of whether the Treasury Board Policy on Term Employment is discriminatory is a live issue that has yet to be decided. [17] For all of these reasons I find that the Respondent's motion to dismiss the complaint on the grounds that the issues raised have been settled and are now moot cannot succeed. The motion is therefore, dismissed. Signed by Karen A. Jensen OTTAWA, Ontario February 5, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1154/3606 STYLE OF CAUSE: Brigitte Lavoie v. Treasury Board of Canada RULING OF THE TRIBUNAL DATED: February 5, 2007 APPEARANCES: Lise Leduc For the Complainant Giacomo Vigna For the Canadian Human Rights Commission Vincent Veilleux For the Respondent

2007 CHRT 30

CHRT

Culic v. Canada Post Corporation

en

2007-07-19

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7007/index.do

2023-12-01

Culic v. Canada Post Corporation Collection Canadian Human Rights Tribunal Date 2007-07-19 Neutral citation 2007 CHRT 30 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 2007 CHRT 30 2007/07/19 MEMBER: Karen A. Jensen [1] On March 18, 2003, Sandy Lipp (née Culic) brought a complaint against Canada Post Corporation alleging that Canada Post had discriminated against her on the basis of her disability. In its decision dated January 24, 2007, the Tribunal considered five allegations. Of the five allegations, the Tribunal found that three were substantiated. With regard to one of the two allegations that were not substantiated, the Tribunal found that Ms. Lipp had established a prima facie case. However, the Respondent demonstrated that the requirement was a bona fide occupational requirement. [2] The Tribunal held that it had the authority to award legal costs and ordered 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 the complaint. The Tribunal directed the parties to attempt to come to an agreement on the quantum. However, jurisdiction was retained on this issue in the event that the parties were unable to reach such an agreement. [3] The parties notified the Tribunal that they could not come to an agreement. A hearing on this issue was held by videoconference on July 16, 2007. [4] Counsel for Ms. Lipp argued that s. 53(2)(c) of the Canadian Human Rights Act authorizes the Tribunal to provide full indemnity for the legal costs incurred by Ms. Lipp. Section 53(2)(c) stipulates that if the complaint is substantiated, the Tribunal may make an order that the person who engaged in the discriminatory conduct compensate the victim for any expenses incurred by the victim as a result of the discriminatory practice. [5] Counsel for Ms. Lipp cited Nkwazi v. Correctional Service Canada [2001] C.H.R.D. No. 29 in support of her argument. In that case, the Tribunal held 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. The Tribunal stated that a victim of a discriminatory practice could hardly be said to have been made whole if she were unable to seek reimbursement for the legal expenses associated with the pursuit of her complaint. [6] Counsel for Ms. Lipp argued, therefore, that the Tribunal should award full indemnity for all of the legal costs incurred in preparing for the hearing, representing Ms. Lipp during the hearing and in preparing the final written argument. This amounted to a total of 165 hours and a total legal bill of $52,197.75. In the alternative, counsel for Ms. Lipp stated that the Tribunal should assess costs on the basis of the degree of success achieved by the Complainant and by the amount of time spent on each allegation was substantiated. She argued that assuming that the discussion of each issue in the decision corresponds roughly with the time spent in preparation for and at the hearing, roughly 84% of the time spent and costs incurred were on the allegations which were substantiated. Therefore, reasonable legal costs would amount to 84% of the total expenses incurred. [7] Counsel for Canada Post argued that according to the Act, and the wording of the Order in the present case, the costs for which compensation is to be provided relate only to those allegations of discriminatory conduct that were substantiated. Given that not all of the allegations in the present case were substantiated, compensation for all of the legal expenses incurred cannot be awarded. [8] Counsel for Canada Post argued that the general rule in civil litigation is that the successful party is awarded costs on a party and party basis, which is assessed according to the tariffs established in the relevant jurisdiction. This usually amounts to 30-50% of the total legal costs incurred. He stated that if a victim of sexual assault can only hope to be reimbursed for 30-50% of his or her legal costs in the civil courts, there is no reason why a victim of discrimination should expect to be reimbursed for the full quantum of his or her legal costs. [9] Counsel for Canada Post argued that the Tribunal should consider the time spent on the successful allegations and reimburse the Complainant for 30-50% of that time. He stated that, in his view, 50% of the hearing and preparation time was spent on the substantiated allegations. Ms. Lipp should, therefore, be awarded 50% of that, or 25% of the total legal expenses incurred. [10] There are no hard and fast rules about how to assess reasonable legal costs in a human rights complaint. [11] In Brooks v. Department of Fisheries and Oceans 2005 CHRT 26, the Tribunal adopted the practice of the Federal Court on the assessment of costs and stated it was using the Federal Court Rules as a guideline in this regard. The respondent in that case applied for judicial review of the Tribunal's award on costs. In its decision on the application, the Federal Court did not comment on the Tribunal's use of the practice of the Federal Court on the assessment of costs, but held that the Tribunal had erred in failing to properly take into account the offers to settle that were made in that case (Canada (Attorney General) v. Brooks 2006 FC 500, at para 25). [12] In Mowat v. Canadian Armed Forces 2006 CHRT 49, the Tribunal stated that there was nothing in the Federal Court's decision in Brooks that required the Tribunal to apply or even to refer to the Federal Court Rules when making an award of costs. In Mowat, the Tribunal decided not to refer to the Federal Court Rules. Rather, three sources were considered: 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 which was found to be substantiated, relative to the total evidence and exhibits for the dismissed allegations; and the Bill of Costs submitted by each party calculated on a party and party basis. [13] In the Nkwazi case, the Tribunal ordered that the Complainant be reimbursed for reasonable legal costs incurred on a solicitor and client basis, since the Respondent's conduct that gave rise to the litigation, as well as its conduct during the litigation, was so reprehensible, scandalous and outrageous, that such an order was warranted. [14] In my previous decision in the present case, I stated that I did not think that the Tribunal had the statutory authority to order costs on a solicitor and client basis (Culic v. Canada Post Corporation 2007 CHRT 01, at para. 318). Moreover, I would now add that even assuming the Tribunal had the jurisdiction to order solicitor client costs, the Respondent's conduct in the present case does not come close to the scandalous nature of the Respondent's conduct in Nkwazi. Therefore, such an order would not be appropriate in the circumstances. [15] In my view, the Tribunal's authority under s. 53(2)(c) to award compensation for expenses incurred as a result of the discriminatory practice means that compensation must be limited to that portion of the costs that may be allocated to the preparation for and litigation of the substantiated allegations. [16] While I agree, in general, with the approach of the Tribunal in Mowat, I see nothing in the statute that requires the Tribunal to assess those costs on a party and party basis. On the contrary, depending upon the facts of the case, such an award might well be inappropriate. As the Tribunal noted in Nkwazi, supra, not every human rights complaint involves monetary issues. Individuals with complaints relating to the denial of access to services, for example, may not have sustained any financial loss, and thus will have no prospect of a monetary remedy beyond, perhaps, a nominal award for their pain and suffering. Most complainants in human rights cases are people of very modest means. Therefore, they might well be discouraged from bringing complaints if faced with the likelihood of paying large legal bills for which they will receive only very modest indemnification. [17] This is particularly so in light of the fact that in recent years the Canadian Human Rights Commission has chosen not to participate in many hearings before the Tribunal. Complainants, most of whom have no legal training whatsoever, often now find themselves facing off against very experienced legal counsel for the Respondent. It is not surprising that many choose to retain legal counsel. [18] In the present case, Ms. Lipp chose to retain legal counsel on the eve of the hearing. Therefore, the legal costs incurred were limited to a modest amount of preliminary preparation, representation during the hearing and work on the written submissions that were provided to the Tribunal on August 21, 2006. [19] Ms. Lipp was successful in substantiating three of the five allegations raised in her complaint. While I do not agree that 84% of the time spent during the hearing and in closing submissions was devoted to dealing with the substantiated allegations, I also do not agree with the Respondent that it was only 50%. The three substantiated allegations involved complex factual circumstances and required careful analysis and presentation. However, I agree with counsel for the Respondent that the first allegation, which involved an issue of systemic discrimination in the scheduling process at Canada Post and which was not substantiated, occupied a good deal more time in the hearing and the closing submissions than counsel for Ms. Lipp allowed. [20] Based on my review of the evidence and the submissions of the party, my estimation of the time and resources devoted to dealing with the substantiated allegations is 65%. This is the percentage of the costs that I think were incurred as a result of the discriminatory practices. Ms. Lipp is therefore entitled to 65% of the legal costs that she incurred. That sum is $33,928.54. [21] Pursuant to s. 53(1)(c), Canada Post is ordered to pay Ms. Lipp the sum of $33,928.54 in compensation for reasonable legal costs incurred as a result of the discriminatory conduct. Signed by Karen A. Jensen OTTAWA, Ontario July 19, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1083/6405 STYLE OF CAUSE: Sandy Culic v. Canada Post Corporation DATE AND PLACE OF HEARING: July 16, 2007 Regina, Saskatchewan Ottawa, Ontario (by videoconference) RULING OF THE TRIBUNAL DATED: July 19, 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 31

CHRT

Moore v. Canada Post Corporation

en

2007-07-25

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7003/index.do

2023-12-01

Moore v. Canada Post Corporation Collection Canadian Human Rights Tribunal Date 2007-07-25 Neutral citation 2007 CHRT 31 File number(s) T899/1904 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE B. RICK MOORE Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADA POST CORPORATION - and - CANADIAN UNION OF POSTAL WORKERS Respondents REASONS FOR DECISION 2007 CHRT 31 2007/07/25 MEMBER: J. Grant Sinclair I. INTRODUCTION II. DECISION III. FACTS (i) 1981-1994 A. Temporary Modified Duties / PPD Restrictions (i) 1995-1998 (ii) Occupational Health Services Memoranda B. Prelude to Mr. Moore's Permanent Assignment to S/L Prime and PO4 (i) The 1999 Shift Bid (ii) CPC/CUPW 1999 Memorandum of Agreement (iii) The 2000 Shift Bid C. Mr. Moore's Grievances D. The 2000 and 2001 Shift Bids - Mr. Moore to the Graveyard Shift E. Has Mr. Moore Established a Prima Facie Case of Discrimination? F. Prima Facie Case - S. 7(a) of the CHRA IV. CONCLUSION A. Prima Facie Case - S. 7(b) of the CHRA B. Prima Facie Case? - Restricting Mr. Moore's Bidding Rights, s. 7(b) of the CHRA V. REMEDY A. Mr. Moore's S. 10 Complaint B. Liability of CUPW I. INTRODUCTION [1] The complainant in this case is Brian Rick Moore. He works for Canada Post Corporation (CPC) in the Vancouver Mail Processing Plant (VMPP). [2] Mr. Moore filed a complaint dated July 12, 2001 with the Canadian Human Rights Commission against CPC. He alleges that CPC contravened ss. 7 and 10 of the Canadian Human Rights Act. The prohibited ground of discrimination is disability. [3] On the motion of CPC, the Canadian Union of Postal Workers (CUPW) was added as a respondent to his complaint. [4] There are two elements to his complaint. First, Mr. Moore alleges that CPC discriminated against him by permanently assigning him to the Manual section and reclassifying him from a PO5 to a PO4, at a lower wage rate, because of his disability; and [5] Second, Mr. Moore claims that in 1999, CPC adopted a policy that adversely differentiated between permanently, partially disabled (PPD) employees and other employees by limiting the shift bid choices of PPD employees. This resulted in Mr. Moore having to work the graveyard shift (12 a.m.-8 a.m.) in 2001 and 2002, which caused him physical and emotional difficulties. [6] Mr. Moore claims damages for lost wages and other benefits resulting from being reassigned and reclassified and for the difficulties he experienced because he had to work the graveyard shift. And for both elements, he claims damages for the loss of the right to be free from discrimination. II. DECISION [7] For the reasons that follow, the Tribunal has concluded that Mr. Moore has not substantiated the first element of his claim. As to the second element, the Tribunal concludes that CPC did engage in a discriminatory practise. But Mr. Moore has not demonstrated that, but for the discriminatory practise, he had the seniority to successfully bid on the day shift or afternoon shift. Accordingly, the Tribunal has not made any award of compensation. III. FACTS (i) 1981-1994 [8] Mr. Moore was first hired by CPC in May 1981 as a mail handler. This job consisted of sorting parcels and mail bags into containers, dispatching mail and transporting mail containers to loading areas. [9] In April 1989, Mr. Moore injured his back lifting a heavy mail bag. He was off work for about 3 weeks and when he returned to work, he was on modified duties. [10] Mr. Moore's return to work was based on an Occupational Fitness Assessment (OFA) completed by his doctor, Dr. Taylor, dated November 7, 1989. In the OFA, Dr. Taylor indicated that Mr. Moore was able to perform his usual duties but may require adjustment of his workload from time to time because of his back problem. On November 11, 1989, he returned to full duties. [11] In May 1990, CPC reclassified all the Mail Handler PO2 positions to Despatcher, PO5. [12] In September 1992, Mr. Moore again injured his back while at home. He was off work until November 1992, returning to modified duties outside of his PO5 duties. [13] Dr. Taylor completed another OFA for Mr. Moore on June 30, 1993. In this assessment, he indicated that Mr. Moore was restricted to standing for not more than 15 minutes, he should avoid any bending or twisting and was restricted to lifting not more than 25 pounds. Dr. Taylor also indicated that Mr. Moore was fit to return to work full time but on modified duties within these restrictions. [14] In August 1993, seeking to better understand Mr. Moore's fitness for work, CPC's medical consultant, Dr. Haakonson, requested additional medical information from Dr. Taylor. [15] Dr. Taylor provided this information on August 14, 1993. His assessment was that Mr. Moore had a history of lower back problems and was prone to injury. He also outlined what he considered to be Mr. Moore's work limitations. [16] This information was given to Dr. Haakonson. He reviewed Dr. Taylor's medical assessment and concluded that Mr. Moore should be designated as permanently, partially disabled with the following work limitations: Standing - not more than 30 minutes at one time, Bending and twisting - must avoid repetitive forward bending, Lifting from the waist - not more than 55 pounds, Lifting waits to head - not more than 55 pounds, Carrying - not more than 55 pounds. He advised the Director, Plant Operations on August 26, 1993, of Mr. Moore's restrictions and recommended that Mr. Moore be assigned to permanent work within these restrictions. He also wrote to Mr. Moore telling him of the designation and limitations and also that the specified limitations would be used to determine his position. A. Temporary Modified Duties / PPD Restrictions [17] There are two categories of injured workers at CPC. The employee who is injured but is expected to recover within a short period of time and who will be assigned temporary modified duties. And the PPD employee who has been assessed as having a permanent partial disability and who is assigned to work within specified PPD restrictions. [18] The procedure for employees who require temporary modified duties is that they would provide a note from their doctor. If the medical note is sufficient, they are assigned the appropriate modified duties by their supervisor. If CPC requires more information, the supervisor would request that the employee obtain a more detailed medical note, usually an OFA which would indicate the nature of their injury, and give an estimate of how long modified duties are required. [19] Most temporary modified duties are for two to three months, but could be extended for up to six months. In such case, a further medical assessment would be required. [20] If the need for modified duties continues beyond six months, the matter is discussed with CPC's Occupational Health Services (OHS). Additional medical information (AMI) would be requested and reviewed by the CPC's medical consultant. The extension may be granted or the employee may be designated as PPD if so warranted by the medical information. [21] If an employee is classified as PPD, CPC's medical consultant will provide to the Director, Plant Operations, a field summary setting out the PPD restrictions. He will pass this on to inform the employee's manager or supervisor so that the PPD employee will be assigned work appropriate to the restrictions. [22] The PPD restrictions are ongoing in the absence of any new medical information. If a PPD employee brings in new medical information, this would be given to the CPC medical consultant who would decide whether the PPD restrictions should be modified or removed. If so, a new field summary would be issued. [23] In October 1993, Mr. Moore met with his supervisor and manager to discuss his assignment as a PO5 within his PPD restrictions. He was assigned to operating motorized equipment (forklift) which was one of the PO5 duties of the rotation of duties. Mr. Moore was to operate the forklift to the exclusion of all of the other PO5 rotation of duties. [24] Mr. Moore worked on the forklift from October 1993 until December 1994. Apparently, this caused considerable resentment among Mr. Moore's co-workers who felt that he was getting special treatment. They believed that if he was fit enough to work on the Despatch dock, he should work more of the PO5 rotation. Some of his co-workers took this up with Mr. Moore's manager and requested that Mr. Moore be assigned elsewhere. [25] In December 1994, Mr. Moore's supervisor asked him to step down from the forklift duties because of these complaints. He voluntarily agreed to do so to reduce the tensions and he was assigned to Letter Carrier Pre-sort (LCP) which is in the Manual section. (i) 1995-1998 [26] Mr. Moore worked in LCP for about six weeks, but he felt that he was not getting the opportunity to work on the motorized equipment in LCP. So he asked to return to the Despatch dock. [27] His supervisor agreed and Mr. Moore returned to the PO5 rotation in early 1995 on modified duties. The PO5 rotation of duties on the Despatch dock were as follows: North fork: loading & unloading annex trailers. Well fork: unloading trucks and transporting mail between the receiving & dispatch dock Rover fork: transporting & organizing the containers of mail on the dispatch-dock AMF Fork: loading and unloading Airmail trailers to and from the airport City Fork: loading 5 ton trucks and organizing monotainers and mail on 1st floor. City Mono Dumper: dumping monotainers of City mail down the chute Forward Mono Dumper: dumping monotainers of forward mail on belt Transport pallet lifter: transporting mail form the dispatch-dock mainly to and from 1st, 3rd, and 4th floor via elevator. 3rd Fwd pallet lifter: transporting fwd mail on the 3rd floor, and between the 3rd and 2nd floor via elevator. 4th floor pallet lifter: transporting monotainers of mail on the 4th floor. Letter Carrier Presort: manually breaking down and sorting mail bags and bundles of mail from monos Dock cleanup: mostly sorting and breaking down heavy domestic, USA and International mail coming from the airport Relief Positions: these relief positions are used to cover any absentee due to a regular day off, sick leave or vacation etc. The rotation list was prepared at least six weeks in advance and each employee would rotate through the list [28] Mr. Moore testified that the only job that he could not do was the dock cleanup. He said he was able to do the other jobs on the PO5 rotation, sometimes with self-accommodation, when necessary. [29] It was common practice on the Despatch dock to trade jobs. Usually, Mr. Moore was able to trade the dock cleanup job for another job with a co-worker. If he was unable to trade the dock cleanup which happened occasionally, Mr. Moore would advise his supervisor and he would be relieved from this duty. [30] Mr. Moore worked the PO5 rotation from early 1994 to early June 1998. On June 14, 1998, he went on sick leave because of back pain. He went to see Dr. Taylor on June 24, 1998 who completed another OFA. Dr. Taylor indicated restrictions on walking, lifting, carrying etc, which essentially were the same as Mr. Moore's restrictions from August 1993. Dr. Taylor said that Mr. Moore could return to work on June 29, and that he could resume his PO5 duties in two to three months. [31] Mr. Moore did return to work on June 29, but was assigned to the Manual section, S/L Prime, one of the most sedentary jobs in the VMPP. He was there for about two weeks and then went on vacation for five weeks, returning to work on August 17, 1998 to his regular PO5 duties. [32] However, on September 24, 1998, he went on sick leave again because of back pain. He returned on September 29 and worked for about one hour on the Despatch dock but could not continue because of his back pain. He was assigned again to, S/L Prime. [33] At the request of CPC, Mr. Moore obtained another OFA from Dr. Taylor on October 6, 1998. In this OFA, Dr. Taylor indicated that Mr. Moore was not to operate the forklift, as bouncing would aggravate his back. Dr. Taylor indicated that Mr. Moore could return to the PO5 rotation within his limitations in 15- 28 days. (ii) Occupational Health Services Memoranda [34] Following Dr. Taylor's June 24, 1998 OFA, there were a series of memorandums from Sharon Harlos, the OHS nurse to various Superintendents between June 1998 and November 1998. In her June 30, 1998 memo, Ms. Harlos inquired whether Mr. Moore had returned to work and she was advised that Mr. Moore had returned to work on June 29, 1998 and was assigned to S/L Prime. [35] On July 22, 1998, the OHS nurse asked for an update on Mr. Moore's status and was told that he was on annual leave for another month. [36] In a September 25, 1998 memorandum to Ms. Harlos, Andrew Langdon, Area Superintendent, said that Mr. Moore had been off from June 14-25, was on modified duties in S/L Prime until July 13 when he went on annual leave. He returned on August 17, 1998 to his PO5 duties. [37] Mr. Langdon noted that Mr. Moore booked off sick on September 24 because of his bad back and was still off on September 25. Mr. Langdon went on to say that Mr. Moore indicated to him that if he were to return, he would require modified duties indefinitely. Mr. Langdon suggested to OHS that Mr. Moore be asked to complete an OFA if he is not able to return. And perhaps, given Mr. Moore's condition, CPC should explore the possibility of a permanent reassignment for him. [38] Mr. Langdon also had a discussion with Mr. Moore sometime in early October 1998 about assigning him permanently to Manual because of his limitations. Mr. Moore recalled this discussion. He said that Mr. Langdon asked him if he was interested in being reassigned to Manual and becoming a PO4. Mr. Moore told him that he was not interested, but if he changed his mind, he would let him know. [39] On November 2, 1998 Ms. Harlos wrote to Martin Osborne, Area Superintendent, asking whether Mr. Moore was working up to his PPD restrictions. If he was not back to his previous restrictions, he needed to be reassessed. Mr. Osborne's reply was that Mr. Moore was not back on PO5 duties. [40] This exchange led to Mr. Moore's OFA in November 9, 1998, in which Dr. Taylor reaffirmed his previous recommended restrictions and added that Mr. Moore was to avoid operating the forklift and pallet lifter. If this was so, Mr. Moore would be restricted from doing more than half of the PO5 duties. [41] Mr. Moore testified that by the end of 1999, he still did not feel that he was capable of going back to his PO5 duties. He continued to see Dr. Taylor for his back problems in 2002, 2003, 2004 and 2005. He also said that because his back was so sore, Dr. Taylor sent him to a physiotherapist who treated him over the period from December 2000 to 2003. During that period he experienced back pain although he was doing one of the most sedentary jobs at the VMPP. B. Prelude to Mr. Moore's Permanent Assignment to S/L Prime and PO4 [42] In 1998, Neil McClure was A/Manager, Production Control & Reporting. His job was to ensure that the VMPP operated to meet its delivery commitments to its customers. His many responsibilities included work schedules, annual leave, vacation, equal opportunity, scheduling, health and safety and consultations with CUPW with respect to these matters. [43] At that time, there were problems with CPC meeting its customer commitments. CPC had to bring in casual workers and pay overtime to process the mail. In his wanderings around the plant, Mr. McClure noticed that at one point, there were only four or five persons working in City Parcels on the day shift, but the work schedule showed 25 positions. [44] When Mr. McClure asked why there were so few people working there, he was told that employees had bid into City Parcels but were not able to do the work. So they had to be accommodated elsewhere, and most of them had been assigned to S/L Prime. Mr. McClure was concerned about this because CPC was spending a lot of extra money on overtime and casual hours to meet customer commitments. (i) The 1999 Shift Bid [45] The collective agreement between CPC and CUPW provided that CUPW could request that an annual shift bid be held for certain groups of employees in the VMPP. The bidding process took place between September and November for shift assignments which commenced on the second Sunday of the following calendar year. [46] The collective agreement also provided for consultation between CPC and CUPW relating to changes in the system of work and other matters. In August 1998, CUPW requested a shift bid and advised CPC that it was available for consultation relating to CPC's staffing proposals. [47] Mr. McClure first raised his concerns about the imbalance, particularly on the day shift at the first consultation with CUPW on October 2, 1998. He pointed out that, there were 118 PPD employees at the VMPP. Of these employees, approximately 43% worked on the day shift. (4 p.m.-12 a.m.). [48] Mr. McClure suggested two options that CPC was considering. One would allow employees to bid only into sections where they could be accommodated. The other would allocate employees on modified duties evenly, over all three shifts. [49] The reason for this imbalance was because of the shift bid procedures that were in place. Employees would bid into a work center that involved heavy work. They did so knowing that they could not do the work and would have to be accommodated elsewhere, for example, in Manual where the work is easier. [50] But they would have enough seniority in that work center to successfully bid for their preferred shift, usually #2 shift or #3 shift. When accommodated they would bring their bids with them to their accommodated position. [51] The effect was two-fold. It resulted in too many employees in one work center and insufficient number in another. Secondly, it created animosity among able-bodied employees who worked in the work center where the accommodated employees were assigned, who had more seniority. [52] At the next consultation on October 21, 1998, CUPW agreed that PPD employees could not bid into a section where they could not be accommodated. But CUPW wanted to review the situation for each PPD employee. CPC agreed to give CUPW a list of PPD employees showing where they had bid and where they were accommodated. [53] The question of PPD employees and shift bids was again discussed at the October 28, 1998 consultation. CPC indicated that there were about 120 PPD employees. Approximately 50% had bid into positions where they could not be accommodated and had asked to be assigned to other areas. [54] On December 1, 1998, CPC provided CUPW with a list of employees who could not be accommodated in the section/work center in which they had bid. The list included Mr. Moore and showed his current bid result to be Despatch dock, #3 shift and his accommodation S/L Prime, #3 shift. [55] At the next consultation on December 7, 1998, CUPW asked and CPC agreed that the current staffing of PPD employees would remain the same for 1999 because employees had not been given sufficient notice of CPC's proposal to change the shift bid procedures. But for the 2000 shift bid. PPD employees could only bid into areas in which they could be accommodated. (ii) CPC/CUPW 1999 Memorandum of Agreement [56] Following the 1998 consultations, CPC and CUPW entered into a Memorandum of Agreement (MOA) dated January 8, 1999. The MOA set out procedures for accommodating PPD employees after s. 54.02 of the collective agreement was applied. [57] Under the MOA, CPC and CUPW were to consult on the appropriate placement of PPD employees into positions where they could be accommodated. PPD employees would be carried over complement and considered part of the work schedule for which they were assigned and would be assigned to any vacancy in the work schedule where they were being carried over complement. [58] Upon assignment, PPD employees would be red circled within their work schedule. This meant that, if PPD employees were accommodated and assigned to a position with a lower rate of pay, they would continue at their former pay rate until the rate for their accommodated position reached that level. This was to ensure that PPD employees would not suffer any wage loss because of the accommodation. [59] As to future shift bids, PPD employees would bid their seniority only into the work schedule where they were being accommodated. PPD employees could apply to have their situation reassessed if their physical limitations changed. [60] The accommodation of disabled or injured employees was an ongoing issue between CPC and CUPW. It was solely CPC's decision as to where a PPD employee would be accommodated. CUPW could not veto the decision. It could only grieve it if it disagreed. [61] CUPW wanted a process which would allow it to consult and give its input into accommodation decisions to PPD employees. The MOA allowed input of CUPW in the accommodation process. (iii) The 2000 Shift Bid [62] On September 29, 1999, CPC wrote to CUPW about its 2000 shift bid proposal. PPD employees who were assigned to a specific area in last year's bid would remain in that section unless their PPD status changed. And their seniority would decide the shift they would work. All other PPD employees would bid only in an area where they could be accommodated and seniority would govern. [63] There were a number of consultations in the Fall 1999, leading up to the last consultation on November 2, 1999. At that time, CPC had provided CUPW with an up-to-date list of PPD employees and their PPD restrictions in relation to the annual bid. There were 50 PPD employees, and for each one, the list showed how they were to be dealt with. Mr. Moore was listed as being accommodated in S/L Prime and shown as red circled. [64] CPC was to notify these employees by letter which would identify their PPD status, limitations and which areas they would be allowed to bid for a position. [65] The new shift bid for 2000 procedure was announced to the employees both by CUPW and by CPC. In its November 3, 1999 Bulletin, CUPW announced that CPC and CUPW had spent considerable time at consultations, reviewing how to accommodate disabled employees. PPD employees would be contacted by the CUPW to confirm their placement and/or bidding restrictions based on their limitations. [66] For CPC, Mr. McClure sent a letter dated November 12, 1999 to all VMPP employees outlining the changes for the 2000 shift bid. He also sent a letter to individual PPD employees as to their situation. [67] Mr. McClure sent Mr. Moore a letter dated November 15, 1999, in which he advised Mr. Moore that he had been permanently assigned to the Manual section since he was being accommodated in that area. His shift bid choices were Manual Prime #1, #2 or #3 shifts. He was also advised that his PO5 wage rate was red circled until the PO5 rate reached the PO4 rate. [68] As to why Mr. Moore was permanently reassigned, Mr. McClure said that CPC considered that his PPD limitations prevented him from doing any PO5 duties on the Despatch dock. And that Mr. Moore had been working in S/L Prime since September 1998. [69] It is clear that CUPW was not involved in the decision to accommodate Mr. Moore in S/L Prime in September 1998. It is also clear, that although CUPW had input into the accommodation for PPD employees through the consultation, CUPW did not make the decision with CPC to permanently assign Mr. Moore to Manual and reclassify him from PO5 to PO4. C. Mr. Moore's Grievances [70] After receiving Mr. McClure's November 15, 1999 letter, Mr. Moore contacted CUPW and completed an internal grievance form in which he claimed that his rights under the collective agreement had been violated. The reason he gave was that CPC had reclassified him from PO5 to PO4 without his consent by assigning him permanently to the Manual section because he was PPD. He concluded by stating that at this time, I do not feel confident at returning to my previous modified duties on the RT&D (Despatch dock), but would like the right to exercise my options in the future. [71] CUPW filed a formal grievance dated January 5, 2000. In the grievance, CUPW set out that in its November 15, 1999 letter, CPC improperly reclassified Mr. Moore from PO5 to PO4 and improperly changed his status. The remedy sought by CUPW was that Mr. Moore retain his PO5 status and be paid as a PO5. [72] In his February 1, 2000 letter to Mr. Moore, Mr. McClure officially confirmed his permanent reassignment to Manual S/L Prime and that his wage rate would be red circled until the catch up to the PO4 rate. [73] CUPW filed a second grievance on behalf of Mr. Moore dated May 19, 2000. In this grievance, CUPW alleged that CPC improperly reduced Mr. Moore's rate of pay from PO5 to PO4. CPC was to compensate Mr. Moore for all lost wages and benefits and maintain Mr. Moore's rate of pay at the current level. [74] Both grievances were withdrawn by settlement agreements between CUPW and CPC. The January 5, 2000 grievance on June 13, 2003; the May 19, 2000 on February 6, 2001. [75] In his internal grievance form and in both CUPW grievances, Mr. Moore's accommodation to S/L Prime was never challenged. Mr. Moore appeared to be content to work as a PO4 and receive the PO5 wage rate. It was only when his wage rate was red circled did he become concerned. But his concern and that of CUPW related to the change in his rate of pay, not the accommodation to S/L Prime. [76] Ken Mooney was the CUPW grievance officer at the time and was responsible for grievances and arbitrations. He testified that CUPW withdrew the grievances because it had concluded that the grievances would not be upheld at arbitration. [77] There was arbitral jurisprudence that if an employee cannot perform the duties of a higher classification, the employer should not have to pay the wages of the higher classification. Mr. Mooney said that he had specifically discussed these arbitration decisions with Mr. Moore. When CUPW withdrew Mr. Moore's grievances in 2001 and 2003, a number of years had passed since Mr. Moore had done PO5 duties. And Mr. Moore had not provided any current medical evidence showing that he could return to work as a PO5. D. The 2000 and 2001 Shift Bids - Mr. Moore to the Graveyard Shift [78] Mr. Moore's 2000 bid form restricted his shift bid to Manual Prime #1, #2 or #3 shifts. He had consistently worked the #3 shift as a PO5 and from the time he was accommodated in S/L Prime in September 1998. [79] For the 2000 shift bid, there were 292 positions available for bid in the Manual section distributed over the four work centers/schedules: Manual Prime (S/L and O/S); FSM, LCP and City Finals. Of these, Mr. Moore was restricted in bidding for 158 positions or 54% of the total. Other employees in the Manual section were able to bid on all of the positions. In spite of the limitations, Mr. Moore successfully bid for his preferred #3 shift, afternoons. [80] In 2001, CPC separated Manual into S/L and O/s into two schedules (except on the #2 shift where they remained combined). Mr. Moore's shift bid was restricted to S/L Prime, #1 and #3 shifts and Manual Prime #2 shift. [81] For the 2001 shift bid, there were 301 positions in the Manual section, but the number of positions available to Mr. Moore was 119 or 40% of the total. This was because S/L and O/S were now two schedules. [82] Mr. Moore did not have the seniority for the #2 or #3 shifts and the result was that he was bumped from #3 shift to #1 (graveyard) shift for 2001. [83] For Mr. Moore, his 2002 shift bid results were the same. In 2002, there were 278 positions in Manual. Mr. Moore was restricted to bidding for 84 or 30%. Again he ended up on the graveyard shift for that year. [84] In 2003, CPC restructured the VMPP. A number of sections were consolidated with the S/L Prime so that the number of positions that Mr. Moore could bid on was increased. This allowed Mr. Moore to get the shift of his choice. So in January 2003, Mr. Moore returned to S/L Prime #3 shift, where he remains today. E. Has Mr. Moore Established a Prima Facie Case of Discrimination? [85] In a human rights case before this Tribunal, the complainant must first establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if believed, i.e. credible, is complete and sufficient for a decision in the favour of the complainant, in the absence of a reasonable answer from the respondent. The respondent's answer should not figure in the determination of whether the complainant has made a prima facie case of discrimination. (See Ontario (Human Rights Commission and O'Malley v. Simpson Sears Ltd., [1985] 2 S.C.R 536; and Lincoln v. Bay Ferries Ltd., 2004 FCA 2004; Dhanjal v. Air Canada, (1997) 139 F.T.R. 37 at para. 6) [86] In his complaint, Mr. Moore alleges that CPC discriminated against him by failing to accommodate his disability. I cannot emphasize enough that failure to accommodate is neither a prohibited ground of discrimination nor a discriminatory practise under the CHRA. There is no free-standing right to accommodation under the CHRA. [87] The duty to accommodate only arises in the context of s. 15(2) of the CHRA and only when a respondent raises a bona fide justification by way of defense to an allegation of discrimination. For Mr. Moore to show a prima facie case, he must rely on something other that the failure of CPC to accommodate him. [88] Mr. Moore's allegations of discrimination against CPC are: CPC discriminated against him because of his disability by permanently reassigning him to the Manual section and by reclassifying him from PO5 to PO4; CPC differentiated adversely in relation to him by restricting his shift bid choices because of his disability. To establish a prima facie case, Mr. Moore must show that his reassignment and reclassification contravened either s. 7(a) or s. 7(b) of the CHRA. F. Prima Facie Case - S. 7(a) of the CHRA [89] In terms of s. 7(a), it is clear that CPC did not refuse to employ Mr. Moore. It could be argued however, that CPC refused to continue to employ Mr. Moore as a PO5 by reclassifying him to PO4. [90] But CPC maintained Mr. Moore's PO5 rate of pay as a PO5 from September 1998 to January 2000, even though he was doing PO4 work. Mr. Moore did not ask at any time during this period to return to his duties. [91] It was only after November 15, 1999, when Mr. Moore was advised by Mr. McClure that he would be permanently assigned to Manual and red circled, that he raised an objection through his grievances. [92] In so doing, Mr. Moore never disputed the accommodation. By his own admission in his 1999 internal grievance form, Mr. Moore was not confident that he could return to his duties on the Despatch dock. At this point in time, CPC did not refuse to continue to employ Mr. Moore as a PO5. He could not do PO5 work then. [93] At the hearing before the Tribunal, Mr. Moore testified that his back had improved sufficiently to allow him to return to his PO5 duties in January 2000. Coincidentally, this is the same time he was officially reassigned and reclassified. But Mr. Moore never asked to return to PO5 duties. He did not speak to his supervisor or anyone else at CPC that he was ready to do so. Nor did he offer any medical evidence that he could do so. [94] Mr. Moore's explanation was that he believed his reclassification to PO4 removed the possibility of being able to resume his PO5 duties. But Mr. Moore could have taken steps to return to his PO5 duties if he felt capable. The collective agreement contains detailed provisions for transferring jobs and in fact, imposes an obligation upon an employee who wishes to do so to file a written application with their immediate supervisor indicating his/her desire to transfer. [95] It was also Mr. Moore's evidence that he continued to see Dr. Taylor regarding his back problems in 2002, 2003, 2004 and 2005. And on Dr. Taylor's recommendation, Mr. Moore went to physiotherapy between 2000 and 2003 because of his back was so sore. At no time in those years did Mr. Moore ask Dr. Taylor for medical assessment that would allow him to return to PO5 duties. IV. CONCLUSION [96] I find that when CPC reclassified Mr. Moore to a PO4 and reassigned him to Manual in January 2000, Mr. Moore was not capable of PO5 duties at that time. Nor does the evidence demonstrate that he could do PO5 work at any time thereafter. [97] I accept the proposition that has been enunciated in the arbitral decisions if an employee is not capable of performing the essential functions of his/her job, an employer is justified in reclassifying the employee to a lower rated position. (see Ontario English Catholic Teachers Association v. OPEIU, b1 LAC (4th) 109; Chamberlin v. 599273 Ontario Ltd., 11 C.H.R.R. D/110) [98] CPC did not refuse to continue to employ Mr. Moore by reclassifying him to PO4. Mr. Moore has failed to establish a prima facie case under s. 7(a) of the CHRA. This aspect of Mr. Moore's complaint has not been substantiated. A. Prima Facie Case - S. 7(b) of the CHRA [99] Did the reclassification and reassignment of Mr. Moore give rise to a prima facie case under s. 7(b) of the CHRA? I think not. It is not adverse differentiation to lower the wages of a disabled employee to correspond to the value of the work performed. [100] Further, as compared to those able-bodied PO4 employees who are doing PO4 work, Mr. Moore was paid the same. As for those employees receiving PO5 pay, their situation was not comparable to Mr. Moore. They were doing PO5 work and Mr. Moore was not. [101] For these reasons, Mr. Moore has not shown a prima facie case of discrimination under s. 7(b) of the CHRA because of his reclassification. B. Prima Facie Case? - Restricting Mr. Moore's Bidding Rights, s. 7(b) of the CHRA [102] Mr. Moore as a PPD employee was restricted to bidding only on some, not all of the positions in the Manual section. Able-bodied employees in the Manual section were not so restricted. Mr. Moore was so limited because of his disability. This is enough to establish a prima facie case on this aspect of his complaint. [103] The obligation is then on CPC to show that this restriction amounted to a bona fide justification and Mr. Moore was accommodated to the point of undue hardship as mandated in s. 15(2) of the CHRA. [104] CPC's proffered justification was that it was experiencing serious problems in meeting its customer commitments. This was because PPD employees would bid into work centers where they could not do the work and required accommodation in another work center. This led to an imbalance in some sections in the VMPP and not enough employees in other sections. Thus, CPC adopted the policy that an employee could only bid into the work section or schedule where they could be accommodated. [105] But CPC had the obligation to show that Mr. Moore was not capable of doing the work in any of the Manual work centers except S/L Prime. There is no specific evidence that when Mr. Moore's shift bid was restricted, CPC made an assessment of Mr. Moore's ability to work in any of the Manual work centers other than S/L Prime. [106] Rather, it appears that the decision was made on impressionistic evidence, namely, that Mr. Moore had been accommodated in S/L Prime for a number of years. This is not a sufficient answer to meet Mr. Moore's prima facie case. This being the case, I conclude that CPC has engaged in a discriminatory practise. V. REMEDY [107] Mr. Moore asked for $2,500 as compensation for the loss of the right to be free from discrimination for the restrictions on his right to bid during the 2001 and 2002 shift bids; $2500 for the reckless way in which CPC reassigned and reclassified him and restricted his bidding rights; and $1,500 for the physical and emotional difficulties he experienced as a result of being bumped to the graveyard shift in 2001 and 2002. [108] The Tribunal has no jurisdiction under the CHRA to award compensation for the loss of the right to be free from discrimination. As to his claim for reckless conduct by CPC, I find that CPC took the decision to reclassify and reassign Mr. Moore as part of the overall business strategy to deal with its failing obligation to meet customer commitments. Consequential to this was the CPC's policy to assign employees where they could be accommodated. I do not find that, in doing so, CPC acted in reckless manner. [109] As to Mr. Moore's claim for physical and emotional difficulties, the Tribunal can recognize this through an award for pain and suffering. Mr. Moore's evidence is that working the graveyard shift made it very hard for him to sleep when he was off work. He says that he could only sleep three to four hours. Dr. Taylor recorded in his April 27, 2001 notes, insomnia, working graveyard shift permanently, whereas not sleeping well and gets palpitations. He prescribed Mr. Moore medication to aid his sleeping. [110] Mr. Moore also testified that graveyard shift affected his home life. It made him moody and confrontational in family affairs. This caused a lot of people to get uptight when they were around him at home. He said he felt like he was in a daze for most of the time except maybe on the weekend when he could catch up with his sleep. [111] I accept that Mr. Moore experienced some physical and emotional difficulties as a result of working the graveyard shift. But to receive any compensation Mr. Moore must show there was a serious possibility that, but for the discrimination, he would have obtained the #3 shift (his first choice) or the #2 shift (his second choice). (Sangha v. McKenzie Valley Land and Water Board, 2006 CHRT 9 at para. 216; Brooks v. Canada, 2006 F.C. 1244, paras 40-45). [112] Mr. Moore did not present any evidence that his seniority would have carried him beyond the #1 shift. For this reason an award for pain and suffering is not appropriate. A. Mr. Moore's S. 10 Complaint [113] In his complaint, Mr. Moore also alleged a contravention of s. 10 of the CHRA. But he did not point to any evidence to support this allegation or make any final submissions on this question. I assume he has abandoned this allegation. If not, it has not been substantiated. B. Liability of CUPW [114] As to any liability of CUPW on the question of reassigning and reclassifying Mr. Moore and limiting his shift bid, it is true that CUPW participated in the consultations that led to the MOA. But it was CPC that had the final decision as to Mr. Moore's fate. CUPW's role was to consult to ensure if possible that PPD employees were properly accommodated. CUPW did not make the final decision. [115] I conclude that CUPW has no liability arising out of Mr. Moore's complaint. Signed by J. Grant Sinclair OTTAWA, Ontario July 25, 2007 PARTIES OF RECORD TRIBUNAL FILE: T899/1904 STYLE OF CAUSE: B. Rick Moore v. Canada Post Corporation and Canadian Union of Postal Workers DATE AND PLACE OF HEARING: August 8 to 11, 2006 October 30 to November 2, 2006 Vancouver, British Columbia DECISION OF THE TRIBUNAL DATED: July 25, 2007 APPEARANCES: B. Rick Moore Assisted by Kathy Roczkowskyj For himself No one appearing For the Canadian Human Rights Commission Zygmunt Machelak Assisted by Bob Jasamanidse For the Respondent, Canada Post Corporation Gina Tessaro Assisted by Robert Mulvin For the Respondent, Canadian Union of Postal Workers

2007 CHRT 32

CHRT

Tanzos v. Az Bus Tours Inc.

en

2007-08-08

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7004/index.do

2023-12-01

Tanzos v. Az Bus Tours Inc. Collection Canadian Human Rights Tribunal Date 2007-08-08 Neutral citation 2007 CHRT 32 File number(s) T832/8203 Decision-maker(s) Doucet, Michel Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE BARBARA TANZOS Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - AZ BUS TOURS INC. Respondent RULING 2007 CHRT 32 2007/08/08 MEMBER: Michel Doucet [1] At the hearing, the complainant, Barbara Tanzos, sought to introduce in evidence a transcript and tapes of a telephone conversation she had on March 24, 2001, with Mr. Ron Roffey, the Operations Manager of the respondent, AZ Bus Tours Inc., and of a meeting with Terry Barnett, the respondent's General Manager, held on September 6, 2001. [2] The respondent objected to the introduction of these tapes and of the transcript of these conversations. It argued that these conversations had been taped without the knowledge and consent of Mr. Barnett and Mr. Roffey. The respondent added that the action of the complainant constituted a recording of private conversations between individuals done without their consent. It further argued that these taped conversations violated paragraph 7(b) of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 and paragraphs 5(1) and (2) of the Canadian Evidence Act, R.S. 1985, c. 5. Counsel for the respondent finally added that the probative value of the information contained on these tapes is outweighed by the prejudicial effects that its introduction would have on the respondent, although she never identified what these prejudicial effects were. [3] I have reviewed the authorities on this matter and have come to the conclusion that the tapes and the transcripts should be admitted into evidence for the following reasons. [4] In the decision R. v. Pleich (1980), 55 C.C.C.(2d) 13, the Ontario Court of Appeal held that taped conversations should be treated much like testimony from a witness who had overheard a conversation and made accurate notes. Audiotapes are original evidence that can provide cogent and convincing evidence. A tape has no memory problem and will better disclose exactly how words were used and the manner in which they were spoken than a witness who was a party to the conversation many years ago. [5] In the criminal context there are statutory provisions governing the authorization of intercepted private communication and their subsequent admissibility as evidence. Such is not the case in a civil matter. If the complainant had been deemed a government actor for the purposes of the Canadian Charter of Rights and Freedoms, the reception of this covertly tape recorded evidence could have been the subject of an attack on the grounds that the respondent's charter rights to freedom from unreasonable search and seizure had been infringed. But the Charter does not apply in this case since the parties are not government actors. [6] Outside criminal matters, most of the cases regarding covertly tape recorded evidence have arisen in labour relations situations. Labour relation boards have long espoused a policy that such evidence is not admissible because of the paramount importance of maintaining trust and informality in the parties' ongoing relations. Such is not the case in this matter. This is not a situation of labour relations and certainly not a matter where the trust and informality of the ongoing relationship of the parties still exist. [7] I have reviewed the legislative provisions raised by counsel for the respondent and I conclude that they are not relevant to the decision I have to make on the issue of admissibility. I refer the parties to subparagraph 50(3)c) and paragraph 50(4) of the Canadian Human Rights Act which reads as follows: 50 (3) In relation to a hearing of the inquiry, the member or panel may: (c) Subject to subsections (4) and (5), receive and accept any evidence and other information, whether on oath or by affidavit or otherwise, that the member or panel sees fit, whether or not that evidence or information is or would be admissible in a court of law. (4) The member or panel may not admit or accept as evidence anything that would be inadmissible in a court by reasons of any privilege under the law of evidence. [8] No decision or argument was presented which would show that such evidence would be inadmissible in a court of law. Applying the best evidence rule, the tapes, in all cases where they are not consistent with the transcript, will have precedence. Signed by Michel Doucet OTTAWA, Ontario August 8, 2007 PARTIES OF RECORD TRIBUNAL FILE: T832/8203 STYLE OF CAUSE: Barbara Tanzos v. AZ Bus Tours Inc. DATE AND PLACE OF HEARING: February 5 to 7, 2007 Barrie, Ontario RULING OF THE TRIBUNAL DATED: February 5, 2007 APPEARANCES: Barbara Tanzos For herself No one appearing For the Canadian Human Rights Commission Natalia Chang For AZ Bus Tours Inc.

2007 CHRT 33

CHRT

Tanzos v. Az Bus Tours Inc.

en

2007-08-08

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6989/index.do

2023-12-01

Tanzos v. Az Bus Tours Inc. Collection Canadian Human Rights Tribunal Date 2007-08-08 Neutral citation 2007 CHRT 33 File number(s) T832/8203 Decision-maker(s) Doucet, Michel Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE BARBARA TANZOS Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - AZ BUS TOURS INC. Respondent REASONS FOR DECISION 2007 CHRT 33 2007/08/08 Member: Michel Doucet I. INTRODUCTION A. THE FACTS B. LEGAL ANALYSIS (i) The section 7 complaint (ii) Was a prima facie case made out? (iii) Conclusion on the section 7 complaint C. DAMAGES (i) Compensation for loss of wages (ii) Compensation for pain and suffering (iii) The reimbursement of certain expenses (iv) Interest II. CONCLUSION I. INTRODUCTION [1] On December 8, 2001, Barbara Tanzos (the complainant) filed a complaint under section 7 of the Canadian Human Rights Act (the Act) against AZ Bus Tours Inc. (the respondent). The complainant alleges that the respondent engaged in a discriminatory practice on the grounds of sex and disability, in a matter related to employment. [2] No preliminary motion or objections were raised at the hearing. A. THE FACTS [3] The respondent is a charter bus company. It started its operation in 1998. It is in the business of providing highway passenger bus transportation between destinations primarily within the province of Ontario. The majority of its business, at the time relevant to this matter, was day runs to the Casino Rama, in Orillia, Ontario. It also chartered buses to other destinations outside of Ontario. [4] The complainant began her employment with the respondent on May 21, 2000, as a bus driver. From October 2000 until March 2001, she was on sick leave. She returned to work on March 7, 2001, under certain medical restrictions. On October 18, 2001, her employment with the respondent ended. [5] The complainant's principal employment duty was to drive a passenger bus between Toronto and Orillia, Ontario. In particular, she was required to drive passengers between various pick-up locations in Toronto and the Casino Rama, in Orillia. She was occasionally required to drive a bus between other locations, on charter trips. On Casino Rama runs, passengers would disembark upon arrival at the casino and spend several hours there. It took approximately one hour and thirty minutes for her to drive from Toronto to the Casino Rama. It took her approximately two hours to drive from Casino Rama to various passenger drop-off locations and then to the respondent's garage on Weston Road, in Toronto. [6] The respondent keeps track of the hours worked by its bus drivers on a bi-weekly time sheet. These time sheets include a column marked Total Working Hours. This column refers to the period of time beginning when an employee arrives at the respondent's business premises prior to his or her first trip of the day, and ends after the employee returns the bus to the garage after his or her last trip of the day. [7] The evidence shows that the drivers are paid on a per trip basis by the respondent. A compensation tariff sets out the pay. As of March 5, 2001, the compensation tariff showed that a single trip of less than twelve hours and thirty minutes was paid $100.00; trips of more than twelve hours and thirty minutes were paid $110.00. The compensation tariff also has provisions for double or triple trips. The respondent also paid a bonus of ten dollar a day to full-time drivers after one year of full service. [8] According to the evidence of Terry Barnett, the General Manager of the respondent at all time relevant to this matter, work was allocated to the drivers on a seniority basis. The dispatcher was responsible for assigning the work to the drivers. The work would first be allocated to various crews of drivers for a period of six weeks. After the work was assigned to the crews, what was left was allocated on a daily basis by the dispatcher to the employees to whom work had not yet been assigned. [9] On October 7, 2000, the complainant, on her doctor's recommendation, applied for sick leave due to stress, chest pains, chronic headaches, etc. Her sick leave was approved by the respondent on October 9, 2000. On March 7, 2001, her doctor gave her clearance to return to work part-time three days a week and also recommended that she not work night shifts. [10] Following her return, the complainant testified that she only got called to work for the first time on March 18. This situation worried her because she had been informed that the respondent was in the process of hiring new drivers and she was not getting any work. Her understanding was that, on her return from sick leave, she was still a full-time employee but, because of her medical limitations, she could only, on her doctor's order, work three days a week, and not at night. [11] Seeing that her work situation was not improving, she decided, on March 24, 2001, to call Ron Roffey, the respondent's Operations Manager at the time, and asked him why she was not getting any work. She taped this call with Mr. Roffey. At the hearing, the respondent objected to the introduction in evidence of this taped conversation and of its transcript. It also objected to the introduction of another taped conversion, this time with Terry Barnett. We will come to this conversation with Mr. Barnett later. I made an oral ruling accepting the tapes and the transcription into evidence. A written ruling concerning this objection is issued with this decision. [12] Here are excerpts of the transcription of the complainant conversation with Ron Roffey, on March 24, 2001: [...] Barbara Why am I not getting any work? Ron Well I have no idea. Barbara I am put to the bottom of the list and all the work goes to the full timers, well how am I suppose to work my way back to full time. Ron Well when there is work available you will get if. Barbara But that's not how it works. Ron How should it work Barb. Barbara You mean to tell me when someone goes on sick leave and they come back, they don't have a job. Ron I didn't say you didn't have a job. Barbara But I am suppose to have three days work. Ron Who says that. Barbara The doctor said, instead of being full, so if I came back full time you wouldn't have any work for me. Ron If there is work available you will get if. There is no work available. Barbara Then lay me off. If you can't hold me on, if there is no work available, you have to lay me off. Ron We do have work, but as I say when there is work available you will get it. Barbara But you can't hold me on like this, I am suppose to have three days a week. That is being unfair to me. You know exactly how it works. Ron I don't understand what your problem is, other than the fact that Eddie [the Respondent's dispatcher] didn't detail you this week. Barbara I only had one day work in three weeks, since the day I called you. Ron You only had one days work? Barbara In three weeks, since the day I called you. Ron I can't very well lay you off when I am hiring people can I? Barbara Well that's up to you, like what are going to do with me. You can not give me one days work in a month, how am I suppose to live. Ron Well what do you want to do Barb? Barbara What are you going to do for me. Ron I'll talk to Eddy and tell him to detail you at least three days a week. Barbara That's right. Ron If it's available. Barbara Its but, ok, no it's if I get three days a week or you lay me off, that's what I want one, I want or the other. Ron I can't lay you off when I am hiring people. Barbara Well you gonna have to do something, because this is not right. You can't be hiring people and not having me work that doesn't make sense. Ron Well as I say not everybody is working right now. But its going to get busier and then you will be working. [...] Barbara You know for three weeks work one days work. You can't...you know. Ron I don't understand why Eddie's had only had one days work I have to look into it, he's not here right now, but I will look into it and I'll... Barbara I least have to have three days a week as a full time person being put back to work by doctors ok, at least I should be available to step back into the job that I left. Ron But you are stepping back other than that you'll... Barbara Only one day work in three weeks that's a joke. Ron Well if, the other thing you got to look at too, is the other people here, like... Barbara I know the other people. Ron I understand what you are saying but not everyone is working right now. Barbara I just came down Hwy 11 and I counted 10 buses going to the casino. Ron Yeah they are normal runs. Barbara That's right, so every body is working, we have part timers and we have full timers. Ron Not everybody is working right now. [...] Barbara I am not stupid I know how the system works if you want to get rid of me than lay me off, if not get me to work. Ron I don't want to get rid of you. Barbara Well that's what it feels like, wouldn't you think that. Ron As I say I don't know what the problem is let me look into it and I'll see that you get more. Barbara Please do. [...] [sic throughout] [The underlining is mine.] [13] After her conversation with Mr. Roffey, the complainant testified that she was called to work for four consecutive days from March 26 to March 29, 2001. Her bi-weekly time sheets indicate that some weeks she would get three days of work and even more, while on other weeks she would not get any work. From March 7, 2001 to the end of her employment on October 21, 2001, she worked approximately 99.5 days, an average of 3.1 days per week. More precisely, her bi-weekly time sheets show that she worked: From March 7 to March 24 one day From March 25 to April 22 four days From April 23 to May 6 five days From May 7 to May 20 five days From May 21 to June 3 five days From June 4 to June17 six days From June 18 to July 1 seven days From July 1 to July 15 eight days From July 16 to July 29 nine days From July 30 to August 12 seven days From August 13 to August 26 six days From August 27 to September 9 ten days From September 10 to September 23 nine days From September 24 to October 7 seven and half days From October 8 to October 21 seven days. [14] On September 6, 2001, the complainant met with Terry Barnett to discuss her situation. The following are excerpts of this meeting. Ron Roffey was also present during this meeting: Terry When you were off sick, whatever it was. [...] I remember that there was a discussion that you wanted to work only four days a week or three days a week. Barbara I, no the doctor, I have the doctor's note in my car, the doctor sent me back to work that I am to work three days a week. Terry OK that legated the fact that you are a full time employee that put you in the part time. Barbara I am full time. No, see section 239 in the labour law when someone as full time driver or someone full time period goes on sick leave and comes back to work with a doctor's note and doctor says... Terry Long after your sick note Barbara I was under the impression from dispatch and I have to check it out that you switch from full time to part time that you had no interest in working 5 days a week. Barbara No, I wasn't capable of working 5 days a week. Terry Even after your sickness pass by you will not be capable of working Barbara No that's not true, that's not true because I had a conversation with Ron, I said how do I get back to work full time. Terry Is Barb full time now? Ron That's what we are debating its under investigation. Barbara Yeah Terry Okay Barbara I had a conversation with Ron that as a full time driver returning to work part time from doctor's order. Terry Uhuh Barbara Right, I was wanting work that he had to give me work or lay me off. Terry HmHm Barbara He wouldn't lay me off because he was hiring drivers Terry HmHm Barbara And right, also he's telling me there's no work available but he is hiring drivers and leaving me at home like not to work. Terry Okay, I was, let me make it very clear to you I was under the impression (a) that you were part time. Barbara No Terry I will debate that issue with you, but I will never debate anything until I investigate, I only got involve in this last night. Barbara Right. Terry Second thing is if you have statutory time as require by sick leave that legates (?) your full time period. So I am going to move on to when I consider you back on full time. So like a collective agreement if you go off sick six months when you come back you lost six month of seniority because you were off for sick time. Barbara But. Terry So if we're going to deem you to be full time. I don't know how long you were off but I'll have to check it out. Barbara Just under 5 months Terry Okay well that 5 months will be added to your period we would make you eligible for a full time employee. For example under entitlement of your benefits or your clothing allowance if you are off for 5 months that 5 months will be added to when you come back before you are eligible for the clothing allowance. Barbara But another issue is I did come back as a full time driver put to work part time because my .... Terry Okay, that is a debatable issue cause when I check with dispatch I know they are going to tell me that you wanted to work part time not full time. Barbara I'll tell you right now I have him recorded alright. Terry I am not worried what he said I worry what the other members of dispatch tell me... Barbara No, no the issue is I am full time. Terry Cause its Eddie who is the... Barbara No then that's the case I have a problem with. I have a discrimination against him. I have a discrimination I have lost a lot of potential income with this company right, I was suppose to be put back to work as a full time employee, he was suppose to accommodate me three days a week and recognize me as full time employee and he didn't I had a conversation with Ron I have proof. Terry Hold on, then, then you know the whole issue with me, the way I work I simply go by a set of guidelines of rules and regulations. [...] Terry You can, you can feel whatever frustration you feel. [...] Terry You can pursue any avenue that you so choose to pursue because that's your choice as an employee and me as an employer will fight base on the information I have in my hands. [...] Terry No, no, let me finish, let me finish, cause I sense you are getting frustrated and I don't want you to be frustrated. Barbara Well no because I lost a lot of money in this company for not being recognize as... Terry You make a hold bunch of statements, you first of all say my people discriminate against you and I have never heard of this before I have a concern about that as a general manager of this company. [...] Terry If you want to pursue that, pursue it, that's your choice I will pursue it too, I have lawyers and I have all kinds or resources cause I go by the book. Barbara And so am I. Terry And that's fine, but don't try to force your way on. [...] Terry Listen to me first of all, don't'force me down a panel without me doing some investigation I don't work that way. Barbara That's fine Terry I will commence my investigation and report to you my findings. Barbara Yes and we will have a meeting because there are two other drivers and I wish to have a meeting with you. With a whole bunch of situations going on here. We will set up a date, now is not the time to really have the meeting. Terry We won't set up a date you will ask me when I would like to have a meeting and you will tell me what it's about prior to even having that meeting. [...] Terry And if you have a problem you got resources, you got the government, Labour Canada, go see them and explain to them and I will deal with them I am not going to deal with renegade drivers who have complaints about my dispatcher I will not. Barbara No, of course not because I had, I had, I went to Ron three times ok, he said he would look into it and he would say I'll see that you get work if it's available. Terry Well I see very clearly I think Ron is considering you as I am considering you which I will continue to argue that you are classified as part time. [...] Barbara Now another issue is, I'll make it clear to you I didn't come back to work and say I am only part time. I came back to work with a doctor's note saying I can work part time and he recommends that I don't' work nights. Terry This is not a pick and chose type of operation. [...] I will not provide that type of work. [...] Barbara I worked days last year, so I come back to work I said I am not able to work nights [...] Terry You don't have that choice Barbara, in the grand scheme of how a bus company works in relationship of Labour Canada we have a duty to provide work we don't have a duty to accommodate by the hours which you believe you can work. [...] Terry As far as I am concern at this point of time you are a part time employee. [...] Terry That's my interpretation right now. [...] Terry That's my instruction for Ron yesterday and that's only going off the top of my head without doing an investigation. [...] Terry We have rules and guidelines which determine a full time employee. [...] Terry You may have been one at one time. [...] Terry I am not arguing that. Barbara And I have a doctor's note, have you seen the doctor's note? Terry No I haven't seen anything. Barbara Ok then you'll have to. Terry A doctor's note doesn't legate (?) the difference between full time part time classifications it only simply says work restrictions that are put on. [sic throughout] [ The underlining is mine.] [15] At the hearing, Mr. Barnett testified that he personally never saw or asked to see the complainant's medical notes. He added that these notes had most likely been handed off to the Operations Manager who, at the time, was Ron Roffey. Mr. Roffey was not called as a witness at the hearing and no reasonable or acceptable explanation for his absence was given, other than the statement by counsel that he could not be located. Mr. Barnett also testified that when the complainant went off on her extended sick leave, her status was changed from full-time to part-time. He added that a new full-time employee was hired to occupy what he described as the vacant position. [16] The complainant testified that she never intended to change her status to that of a part-time employee. She added that what she was looking for was to be accommodated as per her doctor's instructions and eventually work herself back to working full-time, by which she meant returning to a five-day work week. The respondent's position was that the doctor's note had the effect of relegating her to a part-time status. Mr. Barnett testified that a full-time employee is an employee who is available five days a week. When he or she is not capable of working five days a week, then he or she is considered a part-time employee and work will be allocated to that employee on an availability basis. [17] On September 21, 2001, Terry Barnett wrote to the complainant. In this letter, he referred to the meeting of September 6th and specified: As I indicated to you at that time, I was aware that earlier in the year your status had changed from full-time, as mentioned to me by dispatch. Unaware that it was for medical reasons I assumed that this change in status was by your own choice. Regarding the complainant's request for a $10.00 per day bonus offered to full-time drivers after one year of employment, he stated that this bonus was for full-time drivers only. He further stated Since your medical restriction limits your ability to work in a full time capacity, you cannot be eligible for this bonus. [18] Regarding her status, the letter reads: Your doctor's letter of March 7th states that you may return to work in a part-time capacity [...] In any case, you can return to full time duties when your doctor gives you a clean bill of health and you can resume a five (5) day work week without restrictions. Although I have not yet confirmed the number of days you have worked since March 7th, I am aware that dispatch has provided you work. By your calculation, from May 28th to Aug 31st 2001 you have worked 55 days. Given your restrictions, this indicates that the company has tried hard to accommodate your needs. As we approach the low season and the company will be required to adjust the daily use of equipment and manpower it may become even more difficult to meet your doctor's restrictions. [19] Mr. Barnett testified that the respondent would assign work to the complainant on a regular basis as much as it could, considering her needs for accommodation. He added that the approach he favoured was one of common sense and that is why her status would remain that of a part-time driver until such time where there would be no restrictions to prohibit her from doing her job full-time. [20] Finally, in the concluding paragraph of his letter of September 21, 2001, Mr. Barnett added: [d]ue to your overall concerns about the amount of work you have been receiving and given the fact that we are heading into our slow season combined with the reduction of outside work as result of the American tragedy, I am open to considering a mutually agreed lay-off to give you the needed time to rehabilitate yourself. [21] After having received this letter, the complainant submitted to the respondent a new note from her doctor. This note, dated September 28, 2001, indicated that the complainant could return to work five days a week but maintained the restriction concerning night work as this causes worsening of her medical condition. [22] The complainant wrote a letter to Mr. Barnett on October 1, 2001, in which she explained that she would not consent to a mutually agreed lay off, as he had suggested in his September 21, 2001, letter. Mr. Barnett answered on October 16, 2001, until you sign up and are available for 5 days work per week without any restrictions you will as all part time drivers be detailed by dispatch subject to work availability. [23] The complainant's employment with the respondent ended on October 17, 2001. According to the respondent, the complainant voluntarily resigned her position, although in her opening statement, counsel for the respondent did suggest that the complainant was laid-off for economic reasons but no evidence was tendered to support this assertion. The complainant, for her part, asserts that her termination was a direct result of Mr. Barnett's letter of October 16, 2001. [24] In a letter to the Human Rights Commission, dated July 4, 2002, in response to the question whether the respondent had a policy accommodating employees with medical restrictions, Mr. Barnett offered the following answer: A comprehensive Policy & Procedures Manual was created by Management and was subsequently approved by an Employee Committee with some minor changes. Specifically, the policy has no language that deals directly with employees with medical restrictions but a common sense approach has been used recognizing the legal requirement to do so. With over 30 years in the coach and public transit business, I'm well aware of a duty to accommodate as best as possible. [The underlining is mine.] [25] During his cross-examination, Mr. Barnett testified to what he understood was the duty to accommodate an employee with a disability considering the respondent had, what he described, as a seniority-based system. He stated: I can't give you [the complainant] a piece of work that somebody else who is ahead of you in seniority [has] simply because of accommodation restrictions. He felt that the respondent's duty to accommodate required that it give the complainant as many hours as [it could.] B. LEGAL ANALYSIS [26] In order to benefit from the protection afforded by the Act, the complainant must demonstrate the involvement of one or more of the proscribed grounds listed in section 3 of the Act. (i) The section 7 complaint [27] Ms Tanzos' complaint is brought pursuant to section 7. Section 7 makes it a discriminatory practice to refuse to employ, or to continue to employ, an individual, on a prohibited ground of discrimination. Section 3 of the Act declares that a disability is a prohibited ground of discrimination. [28] The complainant alleges that the respondent has engaged in a discriminatory practice on the grounds of sex and disability, in a matter related to employment. No evidence was tendered to establish a discriminatory practice on the ground of sex, this decision will therefore deal solely with the issue of discrimination on the ground of disability. (ii) Was a prima facie case made out? [29] As a result of the Supreme Court of Canada's decisions in British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [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), the historic distinction between direct and indirect discrimination has been replaced by a unified approach to the adjudication of human rights complaints. Under this approach, 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 absence of an answer by the respondent. (See Ontario Human Rights Commission and O'Malley v. Simpson Sears Limited, [1985] 2 S.C.R 536, at p. 558.) [30] In a complaint under the Act, the burden of proof is on the complainant to establish a prima facie case of discrimination. The standard of proof in discrimination cases is the ordinary civil standard of the balance of probabilities. In cases of circumstantial evidence, the test may be formulated as follows: 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 (B. Vizkelety, Proving Discrimination in Canada (Toronto), Carswell, 1987, at p. 142; Uzoaba v. Canada (Correctional Services), [1994] C.H.R.D. No. 7, at p. 40.) [31] What is the appropriate test to be applied when determining a prima facie case? In Canadian Human Right Commission v. Attorney General of Canada, 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. [32] According to Québec (Commission des Droits de la personne et des Droits de la jeunesse) v. City of Montréal, [2000] 1 S.C.R. 665, at p. 701 [also referred to as Mercier], in order to establish a prima facie case, a complainant has to (a) prove the existence of a distinction, exclusion or preference in the decision not to employ or continue to employ; (b) that the distinction is based on a real or perceived disability; and (c) that the distinction, exclusion or preference had the effect of nullifying or impairing the complainant's right to the full and equal exercise of human rights and freedoms. [33] A key issue in this case is whether or not the complainant has a disability or was perceived by the respondent as having a disability. [34] The evidence regarding the complainant's alleged disability consists of a request for sick leave on October 7, 2000. The application for sick leave indicated that it was requested by the complainant's doctor due to stress, chest pains, chronic headaches. The request was granted by the respondent. A letter, dated March 2, 2001, from the Markham Headache and Pain Treatment Centre addressed to Dr. Adrian R. Woodrow, the complainant's treating physician, indicates that the complainant is suffering from post traumatic cervicogenic headaches and cervical myofascial pain. An MRI scan of her cervical spine also revealed some early degenerative changes in the cervical spine and two cervical herniated discs. There is no evidence that this letter was provided to the respondent. On March 7, 2001, the complainant's doctor provided the complainant with a note to confirm that she could return to work but with a restriction, that she work part-time - three days per week. The note also added the limitation that she should not work nights as it will be detrimental to her present medical condition. There is no evidence that the respondent challenged the necessity of these restrictions. Finally, on September 28, 2001, the complainant provided the respondent with another medical note, this time from Dr. Mayer Yacowar, which indicates that she could return to work full-time but maintained the limitation that she should not work nights, adding after midnight. [35] Although, the complainant did not call as a witness her treating physicians or any other medical expert to testify as to her medical condition, I nevertheless conclude that she did establish a prima facie case of discrimination. [36] When she returned to work on March 7, 2001, the complainant was suffering from a medical disability, as evidenced by her doctor's note. This medical evidence remained unchallenged and during her cross-examination, counsel for the respondent never questioned the complainant about her medical condition. The evidence even confirms that the respondent accepted that the complainant had medical limitations or restrictions. Mr. Barnett in his letter of September 21, 2001, for example, states: In any case, you can return to full time duties when your doctor gives you a clean bill of health and you can resume a five (5) day work week without restrictions. [The underlining is mine.] Again, in his letter of October 16, 2001, he states until you sign up and are available for 5 days work per week without any restrictions you will as all part time drivers be detailed by dispatch subject to work availability. [The underlining is mine.] If the respondent felt that the complainant did not suffer from a medical disability it could have asked for a second medical opinion. It chose not do so. [37] The existence of a discrimination having been established prima facie, the respondent can now 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: Grismer, at paragraph 20). (a) The two first steps of Grismer? [38] Counsel for the respondent argued that it was essential for the respondent to have a business operation that operates safely and securely seven days a week, twenty-four hours a day. She stated that, to do this, the respondent needed full-time employees who could work five days a week and who were available for night shifts. Counsel added that the only choice left in a case such as the present was to consider the complainant as a part-time employee and allocate work to her on an availability basis. [39] In their evidence and final arguments, the parties did not see fit to address the first two requirements of Grismer. We can infer from this that they acknowledged that the standard adopted by the respondent had a purpose rationally connected to the performance of the job at issue. [40] We can also infer that the respondent adopted this standard in good faith, believing that it was necessary to ensure the operation of its business. (b) Did the respondent establish that it would be impossible to accommodate Ms Tanzos without causing the respondent undue hardship? [41] According to the respondent, the doctor's notes submitted by the complainant did not clearly state what her actual condition was. It further argues that her real condition was never known or made known to the respondent. The respondent adds that it nevertheless accommodated the complainant and complied with the doctor's recommendations without compromising its obligations to distribute work to the rest of the workforce. [42] As the evidence indicates, the complainant's request was, at first, that she be allowed to return to her full-time job working three days a week, only daytime hours. In October 2001, the doctor's note indicated that she was now available to work five days a week but again only daytime hours. Other than Mr Barnett's assertion that this is not typically done since the respondent's business operates 24 hours a day, seven days a week, no evidence was lead to establish how the complainant's request constituted undue hardship. Mr. Barnett, the respondent's only witness, testified that this was the norm in the business, but he gave no evidence to support this conclusion. [43] To establish that a standard is reasonably necessary an employer must demonstrate that it is impossible to accommodate the complainant without imposing an undue hardship. Therefore the onus is on the respondent to show that it made efforts to accommodate the complainant's disability up to the point of undue hardship. (See Alberta Dairy Pool v. Alberta (Human Rights Commission, (1990), 72 D.L.R.(4th) 417, at p. 439). [44] 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. [45] In this case, the standard emphasizes the need to have employees available to work five days a week and, if necessary, for night shifts. 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 has made every possible accommodation short of undue hardship. (See Grismer, at paragraph 21). [46] The search for accommodation is a multi-party inquiry. There is obviously a duty on the complainant to assist the respondent in securing an appropriate accommodation. (See O'Malley, supra, at p. 555.) This does not mean that, in addition to bringing to the attention of the respondent the facts relating to discrimination, the complainant has a duty to originate a solution. While the complainant may be in a position to make suggestions, the employer is in the best position to determine how the complainant can be accommodated without undue interference in the operation of its business. 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. The other aspect of this duty is the obligation to accept reasonable accommodation. The complainant cannot expect a perfect solution (See Central Okanagan School Distric No. 23 v. Renaud, [1992] 2 S.C.R. 970). [47] The respondent, as I have already indicated, has the obligation to demonstrate that it has made every possible accommodation short of undue hardship. To determine what constitutes undue hardship it has to establish that it considered and reasonably rejected all viable forms of accommodation. It has to demonstrate that it was impossible to incorporate individual aspects of accommodation without causing it undue hardship. [48] The use of the adjective undue indicates that some degree of hardship is acceptable; it is only the hardship that is undue that can excuse the employer from its duty. The respondent did not persuade me that respecting the complainant's medical limitations would require a substantial reorganization of all of the duties to the point where it would cause undue hardship. The respondent alleges, without persuasive evidence to support its argument, that the accommodation requested by the complainant would negatively affect its operations. No persuasive evidence supports this conclusion. [49] On at least two occasions, the complainant met with representatives of management to express her concern about her working hours and to see how a solution could be found. What she was seeking was the opportunity to show that she could, with accommodation, perform the tasks of bus driver. She had requested, on her doctor's recommendation, to work three days a week. In response, the respondent put her in a part-time position with work being assigned to her on an availability basis. In September 2001, she indicated that her doctor had authorized her to return to work five days a week but had kept the restriction on her availability for night work. The respondent still refused to return her to her full-time status, indicating that it would not do so as long as the limitations on her working hours were not lifted. Again no evidence was given to indicate what undue hardship was caused to the respondent if it accepted to accommodate the needs of the complainant. [50] Although it never contested the medical conditions of the complainant and the restrictions imposed by her doctor, the respondent acted as if this did not concern it and that its duty to accommodate the complainant was a very limited and narrow obligation. If the respondent felt it had insufficient information to decide what accommodation was needed, it could have enquired with the complainant's doctor if the restrictions imposed were temporary or permanent; whether they required accommodation; what type of duties the complainant could do and those she should avoid; how long should this accommodation be in effect; what date was she going to be medically re-assessed; what, if anything, should the employer do to assist the complainant's successful return to work. [51] It follows from the evidence that the respondent has failed to discharge the onus imposed on it to demonstrate that it was unable to accommodate the complainant's disability without undue hardship. An uncompromisingly stringent standard, as the one put forward by the respondent, 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. [52] The respondent was aware of the complainant's disability. It was on notice that accommodation was required. It led no evidence with respect to its efforts to try to accommodate the complainant other than to treat her as a part-time employee. This was not sufficient to meet its burden. (iii) Conclusion on the section 7 complaint [53] Considering the factual situation of this case, I find that the complainant was discriminated against on the basis of a disability, contrary to section 7 of the Act. C. DAMAGES [54] In her Statement of Particulars, the complainant is seeking the following relief : Compensation for lost wages; Compensation for pain and suffering; and The reimbursement of certain expenses. [55] Section 53(2) of the Act provides that if the complaint is substantiated, the Tribunal may make an order, against the respondent who is found to be engaging or to have been engaging in a discriminatory practice, including, amongst other relief, any of the following terms: 53(2) [...] (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; 53(2) [...] c) d'indemniser la victime de la totalité, ou de la fraction des pertes de salaire et des dépenses entraînées par l'acte; (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 d) d'indemniser la victime de la totalité, ou de la fraction des frais supplémentaires occasionnés par le recours à d'autres biens, services, installations ou moyens d'hébergement, et des dépenses entraînées par l'acte; (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. e) d'indemniser jusqu'à concurrence de 20 000 $ la victime qui a souffert un préjudice moral. 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. 53(4) Sous réserve des règles visées à l'article 48.9, le membre instructeur peut accorder des intérêts sur l'indemnité au taux et pour la période qu'il estime justifiés. (i) Compensation for loss of wages [56] The complainant is claiming lost wages for the respondent's failure to accommodate her medical condition. She also claims lost wages for the respondent's failure to put her back to work five days a week as of September 28, 2001. The evidence of her lost wages is not the clearest and the respondent, for its part, never challenged this evidence, nor cross-examined the complainant about her claims to lost wages. I will therefore, as best as I can, determine what I consider to be a reasonable amount for lost wages. [57] The evidence indicates that from March 7, 2001, to September 28, 2001, the complainant worked eighty five (85) days, an average of 3.1 days per week, therefore for this period there appears to be no lost wages. If the respondent had accommodated the complainant on the basis of three days a week, she would not have been paid more than what she received for that period. [58] For the period after September 28, 2001, where she was able to work five days a week, the evidence indicates that she worked 11.5 days up to October 21, 2001, her last day of work with the respondent. During that period she should have worked 15 days. Her loss of salary for that period is therefore equivalent to 3.5 days of work. Taking into consideration that for a day's work of twelve hours or less, she would have been paid, according to the evidence, one hundred dollars a day, her loss of salary for that period is $350.00. [59] According to her Record of Employment, the complainant was dismissed on October 21, 2001. This was not a mutually agreed to lay-off as the respondent alleged. The evidence is clear that the complainant did not want to be laid-off but since, the respondent was unwilling to accommodate her, she felt that she had no choice. The complainant therefore has the right to claim loss wages following her dismissal. [60] For the year 2000, her last full year of employment with the respondent her total earnings, according to her Individual Income Tax Return, was $24,594.00. Her total earnings for the year 2001, was $19,729.00, which included $5,740.00, in employment insurance benefits. Part of these benefits was paid while she was on sick leave but no evidence of what amount this represented was submitted at the hearing. If the complainant had worked five days a week, at $100.00 per day, for the remainder of that year, she would have worked an extra 40 days, which would mean a total of $4,000.00 in salary. Taking into consideration the fact that she received employment insurance benefits and also other eventualities that might have affected her earning capabilities, it would be reasonable to assess her loss of income for this period at $3,000.00. [61] For the year 2002, her total income was $19,485.00, a difference of $5,109.00 with her income in 2001. I fix the amount of her lost wages for the year 2002 at $5,109.00. [62] For the year 2003, her total income was $21,368.00, a difference of $3,226.00 with her income in 2001. Her total loss of income for the year 2003 is set at $3,226.00. [63] In conclusion, the complainant is entitled to $350.00 lost wages for the period preceding her dismissal in 2001. She is also entitled to $3,000.00 for lost wages for the remainder of the year 2001. For the year 2002 and 2003, I fix her loss of income at $5,109.00 and $3,226.00, respectively. [64] The complainant also claims for lost wages during Good Friday and Easter Sunday, which she said should have been paid. She also claims that she has a right to a ten dollar a day bonus paid to full-time drivers after one year of service. [65] I order that the complainant be paid $200.00 for Good Friday and Easter Sunday. In regard to the $10.00 a day bonus, the evidence shows that the complainant began working for the respondent on May 21, 2000. If she had worked continuously, she would have started receiving the bonus on May 21, 2001. But from October 2000 until March 2001, she was on sick leave. For that period, she was not accumulating seniority and this period cannot be counted to establish the date from which she would have had a right to the bonus. She returned to work on March 7, 2001 and worked until October 18, 2001, when she was dismissed. As of October 7, 2001, she would have held her position as a full-time employee for one year and should have been entitled from then on to the ten dollar a day bonus. From October 7, 2001 to the end of the year, she should have worked approximately fifty days. I therefore order that she be paid the bonus for this period, which amounts to $500.00. For 2002 and 2003, since no evidence was produced to establish that the bonus was still in existence, I will make no order. [66] Regarding the complainant's claim for a Christmas bonus, no evidence was presented supporting this claim and therefore I will make no order for its payment. [67] Under paragraph 53(2)(c) of the Act, the complainant is therefore entitled to $12,035.00, for loss of salary following the respondent's discriminatory act. This amount seems reasonable given the quality of the evidence submitted and the complainant's duty to mitigate her loss. (ii) Compensation for pain and suffering [68] The complainant is also claiming compensation for pain and suffering under paragraph 53(2)(e). Again, I must say that the evidence submitted in support of this claim is somewhat weak and is certainly not enough to justify an amount in the higher scale 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 her compensation for pain and suffering. (See Dumont v. Transport Jeannot Gagnon, 2002 FCT 1280). [69] I agree that the respondent's decision did cause the complainant pain and suffering, if only in terms of anxiety. I therefore award $3,000.00 as compensation for pain and suffering. (iii) The reimbursement of certain expenses [70] The claimant also made various claims for the reimbursement of certain expenses but no evidence having been presented to support these, it is impossible for this Tribunal to make any order regarding their reimbursement. (iv) Interest [71] 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. II. CONCLUSION [72] I find that the complainant was discriminated against on the basis of a disability contrary to section 7 of the Act and I order the respondent to pay to the complainant $15,035.00 in lost wages and pain and suffering, plus interest from the date of the complaint until the date the indemnity is paid, at the rate set out above. Signed by Michel Doucet OTTAWA, Ontario August 8, 2007 PARTIES OF RECORD TRIBUNAL FILE: T832/8203 STYLE OF CAUSE: Barbara Tanzos v. AZ Bus Tours Inc. DATE AND PLACE OF HEARING: February 5 to 7, 2007 Barrie, Ontario DECISION OF THE TRIBUNAL DATED: August 8, 2007 APPEARANCES: Barbara Tanzos For herself No one appearing For the Canadian Human Rights Commission Natalia Chang For the Respondent

2007 CHRT 34

CHRT

Khiamal v. Greyhound Canada Transportation Corporation

en

2007-08-09

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6990/index.do

2023-12-01

Khiamal v. Greyhound Canada Transportation Corporation Collection Canadian Human Rights Tribunal Date 2007-08-09 Neutral citation 2007 CHRT 34 File number(s) T1099/8005 Decision-maker(s) Pannu, Alex G. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE SURESH KHIAMAL Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - GREYHOUND CANADA TRANSPORTATION CORPORATION Respondent REASONS FOR DECISION 2007 CHRT 34 2007/08/09 MEMBER: Kerry-Lynne D. Findlay, Q.C. I. INTRODUCTION II. BACKGROUND FACTS III. OVERVIEW OF THE COMPLAINANT'S ALLEGATIONS IV. THE LAW A. Prohibited Grounds of Discrimination B. The Complainant's Burden and the Respondent's Burden C. Section 7 D. Section 14 E. Section 10 F. Evidentiary Assessment V. ANALYSIS OF THE COMPLAINANT'S ALLEGATIONS A. ALLEGATION NO. 1 - THE NIGHT SHIFT MAINTENANCE FOREMAN JOB POSTING OF JULY 2002 B. ALLEGATION NO. 2 - HISTORIC AND ONGOING HARASSMENT BY CO-WORKERS AND MANAGERS C. ALLEGATION NO. 3 - DENIAL OF TRAINING AND COURSES VI. DECISION I. INTRODUCTION [1] On August 15, 2003, Suresh Khiamal (the Complainant) filed a complaint under Sections 7, 10, and 14 of the Canadian Human Rights Act (CHRA) against Greyhound Canada Transportation Corporation (the Respondent). The Complainant alleges that the Respondent has engaged in discriminatory practices on the grounds of race, national or ethnic origin, colour, age and disability in a matter related to employment. [2] Both the Complainant and the Respondent were represented by legal counsel. The Canadian Human Rights Commission (the Commission) was not present. II. BACKGROUND FACTS [3] The Complainant, born December 4, 1948, is 58 years old. He is a Canadian citizen of East Indian origin. He immigrated to Canada in 1979 from South Africa. He worked as a licensed mechanic in South Africa from 1970 to 1979, and commenced work with the Respondent on February 20, 1980 as a second class mechanic. Within a few months, the Complainant obtained his license in Canada and was promoted to first class mechanic. Throughout the hearing, his position was referred to as one of a heavy duty mechanic. [4] The facts giving rise to the complaint took place at the Respondent's Edmonton, Alberta Garage (the Edmonton Garage). There are two areas at the Edmonton Garage where heavy duty mechanics perform their employment duties. The first is the Service area, where Greyhound buses are serviced in terms of being inspected for roadworthiness, washed, gassed up, and generally maintained. The second is the Hoist area, where buses are mechanically overhauled and literally put up on a hoist for more substantive mechanical repairs such as brake repair, wheel alignment and the like. Heavy duty mechanic work in the Hoist area is more physically demanding. [5] There have been many management changes in personnel and style in the time the Complainant has worked for the Respondent. At times, there has been more than one Foreman, and at times there have been none. The role of Supervisor, and the employees who have performed as supervisor, have also changed over time. [6] Throughout his employment with the Respondent from 1980 forward, the Complainant was appointed to the Lead Hand position often, and for long continuous periods. His pay stubs show that when he performed Lead Hand duties, he was paid an extra $1.00 per hour. Although he worked in both the Service area and the Hoist area, he has primarily worked in the Service area particularly in recent years. [7] The Lead Hand's duties are similar to the Foreman's in that the Lead Hand supervises other mechanics to ensure that the work that needs to get done is completed, allocates resources and assigns mechanics to certain duties, corresponds with the dispatcher, uses the MCMS computer maintenance system, and handles the responsibility for the buses being ready for and keeping to their schedules. The primary distinguishing differences between the two positions is that a Lead Hand does not discipline, nor does payroll, nor deals with supervisors in a greater managerial sense. Leadership skills are essential. [8] The Edmonton Garage is a unionized environment. The Complainant is a member of the Amalgamated Transit Union (the Union), and held the position of shop steward for many years. During his term of employment, the Complainant filed many grievances, some of his own and several for other workers, and was thereby familiar with the grievance process. A collective agreement, as amended from time to time, has been in place throughout the subject period. [9] At the time of the filing of this complaint, the Complainant was the most senior mechanic at the Edmonton Garage. Seniority is a factor in holiday time choices, and may be a factor in whether a person is given training and courses by the Respondent or through the Union, and is a factor but not determinative in obtaining a promotion from heavy duty mechanic to a foreman position. [10] When a mechanic is promoted to the position of Foreman, he loses his Union membership, and is not allowed to touch mechanic's tools except in the case of a real emergency. Under the collective agreement in place at the time of the complaint, a Foreman could return to his mechanic's duties with his seniority intact if he was laid off from that position, but not if he was terminated by the Respondent. III. OVERVIEW OF THE COMPLAINANT'S ALLEGATIONS [11] The complainant's allegations can be organized as follows: Allegation #1 deals with the complainant's application for the position of Night Shift Maintenance Foreman, and the respondent's decision not to hire him for this position. The complainant alleges that the respondent's decision was tainted by discrimination on the ground of disability, age, race, colour, or national or ethnic origin. Allegation #2 deals with a series of incidents, or aspects of his workplace experience, that in the Complainant's view constitute harassment on the ground of race. Allegation #3 focuses on one of the above incidents (i.e. the respondent's refusal to approve training and courses for the complainant), and asserts that this refusal constituted adverse differentiation and the denial of employment opportunities, based on race. IV. THE LAW A. Prohibited Grounds of Discrimination [12] Section 3 of the CHRA designates race, national or ethnic origin, colour, age and disability as prohibited grounds of discrimination. B. The Complainant's Burden and the Respondent's Burden [13] The Complainant has the initial burden of establishing a prima facie case of discrimination. A prima facie case is one which 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 (O'Malley) [14] The Federal Court of Appeal has established in Lincoln v. Bay Ferries Ltd., 2004 FCA 204, that the Tribunal must not take into account the Respondent's answer in determining whether a prima facie case has been made out. [15] In the event that the complainant establishes a prima facie case of discrimination, it is incumbent upon the respondent to provide a reasonable explanation for the otherwise discriminatory practice that is not a mere pretext for discrimination. (Lincoln at para 23). C. Section 7 [16] Under s. 7, it is a discriminatory practice, directly or indirectly, to refuse to employ any individual (s. 7(a)), or in the course of employment, to differentiate adversely in relation to an employee (s. 7(b)), on the basis of a prohibited ground of discrimination. [17] According to the Ontario Board of Inquiry's decision in Shakes v. Rex Pak Ltd. (1982) 3 C.H.R.R. D/1001, where it is alleged that the respondent's refusal to employ the complainant was discriminatory, a prima facie case of discrimination can be made out by presenting evidence that: the Complainant was qualified for the particular employment; the Complainant was not hired; and someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position. [18] That said, the Shakes approach is not a rule of law, but merely an illustration of the principle established in O'Malley. Shakes should not be applied in a rigid or arbitrary fashion in every hiring case. (Lincoln, para. 18; C.H.R.C. v. Canada (A.G.) 2005 FCA 154, paras. 25-26). D. Section 14 [19] Under s. 14 of the CHRA, it is a discriminatory practice, in matters related to employment, to harass an individual on a prohibited ground of discrimination. [20] Where an allegation of harassment is made under s. 14, the complainant must demonstrate that the impugned conduct: related to a prohibited ground of discrimination; was unwelcome; and was persistent or serious enough to create a negative work environment. (See Morin v. A.G. Canada, 2005 CHRT 41, para. 246) E. Section 10 [21] Section 10 of the CHRA is engaged where an employer pursues a practice that tends to deprive an individual of an employment opportunity on a prohibited ground of discrimination. F. Evidentiary Assessment [22] 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.)). [23] An inference of discrimination may be drawn from circumstantial evidence, provided that the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses. (See Chopra v. Canada (Health and Welfare) (2001) 40 C.H.R.R. D/396 (CHRT) at para. 286.) [24] Finally, in Kasongo v. Farm Credit Canada, 2005 CHRT 24, at paragraphs 29 and 30, the Tribunal underscored the need for an objective approach; adjudicators should be cautious in relying on perceptions of the parties that may be distorted because of personality characteristics, such as a high degree of sensitivity or defensiveness. V. ANALYSIS OF THE COMPLAINANT'S ALLEGATIONS A. ALLEGATION NO. 1 - THE NIGHT SHIFT MAINTENANCE FOREMAN JOB POSTING OF JULY 2002 [25] The complainant alleged that: his disability; his age; and his race, colour or national or ethnic origin played a role in the respondent's refusal to employ him for the above-noted position. [26] To facilitate the analysis, each of the above grounds will be examined in turn, in order to determine whether the complainant has made out a prima facie case. [27] Where a prima facie case has been established, consideration will be given to the respondent's explanation. (a) Refusal to Employ Based on Disability - The Prima Facie Case [28] The Complainant testified that he has diabetes. His evidence is that he has neuropathy in his feet. However, no medical evidence was led at the hearing as to the severity of his diabetes and its impact on his health, nor the timing of his first diagnosis and consequent medical treatment. [29] The Complainant testified that he believes Steven Watson and everyone at his workplace knows he has diabetes because they would have seen him taking insulin. However, he gave no specific evidence of when or where the two supervisors who interviewed him for the Foreman position (Chuck Seeley and Steven Watson) did, in fact, see him taking insulin prior to or at the time of the July 2002 job posting and interview process. He suggested they might have seen him in the lunch room or in the men's washroom. However, the evidence indicated that Mr. Seeley was in a wheel chair and rarely took his lunch in the lunch room, or used the same washroom. [30] The Complainant further testified that he did not raise the issue of his diabetes during the interview process for the Foreman's position, nor in either of the brief conversations he had with Steven Watson about the job on the work floor. In other words, the Complainant did not self-identify as having a disability at the time period relevant to this complaint, nor did he ask the Respondent to accommodate him in this regard. [31] The Complainant's evidence on this point was evasive, weak, and non-specific. Based on the foregoing, I conclude that he has failed to establish on a prima facie basis that his disability played a role in the respondent's decision not to hire him for the Night Shift Maintenance Foreman position in July 2002. (b) Refusal to Employ Based on Age-The Prima Facie Case [32] At the hearing, the Complainant testified that he was born on December 4, 1948, and therefore was 53 years of age at the time of the July 2002 posting. Mr. Kenneth Mullan (the successful candidate) testified that he was born on January 19, 1959, and therefore was 43 years of age at the time of the July 2002 posting. Mr. Mullan's birth certificate was filed in the proceedings and corroborated his testimony as to his age. [33] In the Complainant's letter of application, he did not mention his age or birth date, nor did he self-identify at the interview process or at any time relevant to this complaint as wanting to be accommodated for this reason. [34] There was no evidence led that age was a relevant factor to the position of Maintenance Foreman at the Edmonton Garage. At age 53, the Complainant was still many years away from the normal age of retirement. There was no attempt by the Complainant to bring his age to the attention of the Respondent at the time of the job interview or other times relevant to this complaint. There was no evidence that age was a subject of discussion in either the Complainant's or Mr. Mullan's job interviews, nor that the age difference between the two men was apparent at the time. [35] I find that the Complainant has not made out a prima facie case that his age played a role in the respondent's decision not to hire him. (c.1) Refusal to Employ Based on Race, Colour, National or Ethnic Origin - The Prima Facie Case [36] The Complainant testified that this was the first time that he had applied for a promotion to Foreman since arriving at the Edmonton Garage in 1980. He testified that this was because he did not feel that the Respondent was ready for a coloured foreman as yet, and that he was physically fit, could do the heavy duty mechanic's job easily, and he earned more money than a foreman because he worked overtime. [37] When asked what had changed to prompt him to apply in 2002, the Complainant responded, my health, my age, and said that he was unaware of any employment equity initiatives at the Edmonton Garage. He also testified that he would take the position today if it was offered to him, and that at the time of the hearing there was an open position for one foreman. [38] The Complainant testified that when he applied for the position, he first asked Steven Watson questions about the wage, the benefits package, and everything else but that Mr. Watson did not know anything about it. He decided to apply anyway, as he felt that it would be much lighter work for him due to him getting older and his health not being up to par. [39] A copy of the written application submitted by the Complainant was introduced into evidence, and the contents read out and confirmed by the Complainant in part as: Equipped with 22 years of experience as a mechanic/lead hand I am applying for the position of maintenance foreman. [40] In fact, at the time, the Complainant had 32 years of experience because he had 10 years' experience in South Africa prior to being hired by the Respondent. [41] The written application also stated: I have reviewed the qualifications needed for the position and have the qualifications for all items listed on the job posting. If any further information is needed, I will furnish it upon your request. [42] The Complainant did not submit any further resume or proof of qualifications, nor was he asked by the interviewing supervisors, Chuck Seeley or Steven Watson, to do so. [43] When asked about the lack of information he provided, the Complainant testified that the supervisors knew everything about him because he had been at the Edmonton Garage for 22 years, and that Mr. Watson knew all about his certifications. [44] In my view, it would be surprising if Mr. Watson had full recall of the certifications the Complainant had shown him in 1989, thirteen years prior to the interview. Having said that, I find that Mr. Watson would have been fully conversant with the Complainant's job performance over many years as a heavy duty mechanic in both the Service and Hoist Areas, his relationship with co-workers and his ability as a Lead Hand. [45] The Complainant also testified that his interview only took about three minutes, and that although Mr. Seeley had lined paper and pen in front of him (the supervisors and the Complainant were across the desk from each other), he took no interview notes in his presence. [46] The Complainant called Mr. Mullan as a witness. In Mr. Mullan's testimony he stated that his interview was also not lengthy, less than half an hour. He recalled being asked about how he would conduct himself as a manager, but that it was an informal interview because he knew the supervisors having been working there for 5 years at the time. He vaguely recalled Chuck Seeley taking notes during the interview, but little was asked of him about his work experience. Like the Complainant, he testified that he felt that the interviewing supervisors knew him well enough that his expertise was not in question and was not the subject of discussion. [47] The Complainant is of East Indian ethnicity. Mr. Mullan is white. [48] As was mentioned above, under the Shakes approach, a prima facie case may be made out by demonstrating that the Complainant was qualified for the particular employment; that the Complainant was not hired; and that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position. [49] In that the Complainant was not hired in this case, and in that Mr. Kenneth Mullan, the successful candidate, lacks the distinguishing feature which is the gravamen of this complaint, the issue is whether the Complainant was qualified for the Foreman's position, and whether Mr. Mullan was no better qualified than the Complainant. [50] Mr. Mullan testified that he was a union shop steward at the time of the application for the position, but had no Lead Hand experience in the employ of the Respondent. He testified that he commenced work for the Respondent in 1997, and worked there as a Class A1 mechanic only until his promotion to Foreman in August 2002. [51] His experience as a licensed mechanic spanned only 5 years at the time of the posting as compared with the Complainant's thirty-two years. As a foreman, all were agreed that a person no longer does any mechanic duties. However, I accept evidence given by the Complainant that knowledge of mechanic duties is essential to doing the Foreman's job well as you are dealing with mechanics, drivers and dispatch all the time who need supervision, guidance, and assistance. [52] Cooperation with co-workers and management was also, by all accounts, an important part of the Foreman's job. Numerous witnesses said that the Complainant worked well with his co-workers. He in fact was very friendly with some, and maintained appropriate business relations with others. With management, the only reported tensions were with his supervisor, Steven Watson. Gary Peach, who is now retired, but at the relevant time was the Dispatcher located in downtown Edmonton, dealt with the Complainant on the telephone on a daily basis as Lead Hand. He was very complimentary of the Complainant's cooperation, knowledge and helpfulness on an ongoing daily basis over years of interaction. [53] Nizar Dalla (an area maintenance manager out of Calgary), Richard Baker (at one time a Foreman at the Edmonton Garage), Steven Pejkovic, Gary Peach, and Jace Loewen all testified that the Complainant was highly skilled and conscientious at his job, interacted well with co-workers, and had leadership qualities. On the other hand, Richard Baker, Gary Peach, and Steven Pejkovic testified that Mr. Mullan was not as knowledgeable as the Complainant, nor as cooperative, nor as competent. [54] Mr. Mullan had commenced work for the Respondent in 1997, and therefore had 17 years less seniority at the Edmonton Garage than did the Complainant. Mr. Mullan did have previous relevant work experience. At the time of the job competition, Mr. Mullan had been the Union Shop Steward for approximately 1½ years. The Complainant had also served as Union Shop Steward for several years previously. [55] Based on the above, I find that there is sufficient evidence that the Complainant was qualified for the position of Foreman, and that Mr. Mullan was less qualified or no better qualified than the Complainant. Improper Use of Discipline Record [56] The Complainant also adduced evidence that, despite his equal or superior qualifications, his candidacy for the job was hampered by improper consideration of his past disciplinary record. In this regard, he testified about a conflict in the workplace that he feels was improperly considered by the respondent in determining whether he had the necessary interpersonal skills to be Foreman. [57] On March 11, 1992, (ten years prior to the disputed Foreman job competition) an argument took place at the workplace between the Complainant and his supervisor Steven Watson. According to the complainant, there were words between the two of them, but there was no physical contact. At the time of the argument, the complainant had been using an exacto knife to scrape an inspection sticker off a bus window. [58] Mr. Watson filed a formal workplace complaint against the Complainant arising out of the argument. The Complainant testified that, in the workplace complaint, Mr. Watson falsely accused the Complainant of threatening him, by poking Mr. Watson with his finger during the argument and having knives in his possession that Mr. Watson found intimidating. [59] There was evidence that the incident was held against the Complainant ten years later during the Foreman hiring process, and that it was viewed as an example of the Complainant not getting along with his superiors in management. The evidence suggested that it was a factor in the respondent's decision not to hire the complainant, even though it should have been ignored because it had occurred so far in the past. It would seem to be the complainant's assertion that because of his race, the respondent dug deeply into his employment history to find a reason not to hire him. In this way, he could be passed over for the job despite his superior qualifications. Conclusion [60] I conclude, based on all of the above, that the Complainant has established a prima facie case of discrimination on the ground of race with respect to the 2002 Foreman job competition. (c.2) Refusal to Employ Based on Race, Colour, National or Ethnic Origin - The Respondent's Explanation [61] The Respondent has presented a number of explanations for why Mr. Kenneth Mullan was offered the position of Foreman in the July 2002 competition: Mr. Mullan was, despite the complainant's evidence, the best candidate for the job; Hiring Mr. Mullan for the Foreman position allowed the Respondent to accommodate his physical disability; The decision to hire Mr. Mullan was made by individuals in the Calgary office who presumably had no personal knowledge of the candidates; To the extent that the Complainant was treated unfairly in the job application process, this was due to personal animosity between the Complainant and Steve Watson, that had nothing to do with discrimination. [62] The Respondent also presented explanatory evidence in regard to the Complainant's allegation that the 1992 workplace conflict was used against him in the hiring process. [63] All of these explanations shall be considered in turn. Mr. Mullan was, despite the complainant's evidence, the best candidate for the job; [64] In comparing the work experience of Mr. Mullan to that of the Complainant, the Respondent notes that the latter only submitted a short letter of application, with no detail given as to qualifications or experience, and stating that he had only 12 years of experience with the Respondent as a Lead Hand. Again, however, the evidence tendered at the hearing did not support this statement, as the Complainant had been appointed Lead Hand throughout the 22 years he worked there, and I have found that his experience as a Lead Hand in the employ of the Respondent exceeded 12 years. [65] The respondent sought to challenge the Complainant's suggestion that he was not accorded a fair interview. A piece of paper purporting to be questions asked of the Complainant during the interview process was introduced into evidence, and identified by Mr. Chuck Seeley as having been handwritten by him during the interview of the Complainant. It was similar in terms of the questions asked to other documents introduced purporting to be the interview notes of other interviews conducted of other candidates for the subject job posting and other Foreman job postings. Complainant's counsel challenged the authorship of the document, and challenged when the document was created. [66] Ultimately, given the evidence as to both the Complainant's interview and Mr. Mullan's interview, I do not see anything turning on this point. I find that the piece of paper purporting to be a record of the Complainant's interview, was in fact authored by Chuck Seeley. It is possible that the notes were taken during the interview; however it is just as possible that they were written up afterward. Thus the paper does not serve as conclusive evidence of equal treatment during the interview process. [67] The Respondent also tried to challenge the Complainant's qualifications relative to Mr. Mullan by impugning his computer skills. Several witnesses testified that about one year previous, the Respondent had introduced a new computer system called MCMS for maintenance purposes at the Edmonton Garage. All the mechanics had to learn to use it to complete orders, pull up their time, complete electronic time cards on it, and access some maintenance assistance manuals. It was necessary to use this system as both a Lead Hand and as a Foreman. Mr. Mullan testified that this was discussed during his interview, that the supervisors indicated that they felt he knew the system as well as anyone else working with the new program, and that if he had any difficulties they could help him. [68] In Mr. Watson's testimony, he says he questioned the Complainant's competency with the MCMS system at the time, and felt he was slower and less capable with MCMS than some others. The Complainant had testified, however, that he was fully capable on the system as he used it daily as a Lead Hand. I accept the evidence of the Complainant on this issue, that he had sufficient competency on the MCMS system for the job of Foreman and his abilities at least equalled those of Mr. Mullan. [69] Mr. Watson also testified as to Mr. Mullan's work experience. He acknowledged that Mr. Mullan was a Class A1 mechanic at the Edmonton Garage, and never a Lead Hand. He further testified that Mr. Mullan had been a heavy duty apprentice mechanic for his immediately previous employer, a general helper apprentice mechanic before that, and a service person at Edmonton Transit before that. In brief, the respondent was unable to demonstrate that Mr. Mullan was more qualified than the complainant, so this explanation must be rejected. Hiring Mr. Mullan for the Foreman position allowed the Respondent to accommodate his physical disability [70] The respondent also put forward the explanation that under the Employment Equity Act, it had an obligation to accommodate disabled workers. Placing Mr. Mullan, who suffered from arthritis, in the less physically demanding job of Foreman served to accommodate his disability. [71] At the time of the job posting, Ken Mullan was absent from work on disability due to his arthritic condition. His arthritis was evident, as he had been off work several times for several months at a time. The Respondent was obviously aware of this. However, in Mr. Mullan's testimony at the hearing, he was adamant that his arthritic condition did not prevent him from doing full heavy duty mechanic duties, and specifically said that he did not self-identify as disabled, nor ask to be accommodated for the Foreman job posting. He testified that he really wanted the job, and that he emphasized his enthusiasm in the interview, because he wanted to advance himself. [72] Mr. Mullan further testified that when he was terminated from the Respondent's employ after having been a foreman for about one and one-half years, he wanted to return to his heavy duty mechanic position. He stated that at that time, he felt fully capable of performing as a heavy duty mechanic, but he was not given the chance to go back `on the floor'. He has since changed his occupation on doctor's advice, but at the relevant time period, this was his mind set and his capability as he judged it. [73] Mr. Mullan's evidence on these points was not controverted by either of the interviewing supervisors, Steven Watson or Chuck Seeley. No one from the Respondent's Calgary office gave evidence. [74] As a result, I find this alternate explanation of the Respondent's-that it hired Mr. Mullan as Foreman in an effort to accommodate his disability-to be pretextual. The decision to hire Mr. Mullan was made by individuals in the Calgary office who presumably had no personal knowledge of the candidates [75] The respondent also tried to portray its actions in a non-discriminatory light by asserting that the ultimate decision to hire Mr. Mullan over the Complainant was made by the Calgary office, and not by anyone at the Edmonton Garage. However, I find that the actual decision was really made by Steven Watson with Chuck Seeley's concurrence. The Respondent chose to only have Steven Watson testify as its representative, and no one from the Calgary office appeared to give evidence. It is clear from Mr. Seeley's and Mr. Watson's evidence taken together that they had made up their minds to offer the position to Mr. Mullan before calling the Calgary office, and that they presented their interview findings in such a way as to effectively direct that Mr. Mullan be hired. [76] It is my view that this is not a satisfactory or reasonable explanation. To the extent that the Complainant was treated unfairly in the job application process, this was due to personal animosity between the Complainant and Steve Watson, that had nothing to do with discrimination. [77] The Respondent states that there is a history of conflict between Supervisor Steven Watson and the Complainant. It characterizes this as the Complainant having complained to other employees about Mr. Watson and his abilities as a manager, causing problems between the two men. The Respondent stresses that the conflict between Mr. Watson and the Complainant is not based on a prohibited ground, but rather is based on personal differences. [78] The evidence of both Mr. Watson and the Complainant is that, at one time, they were close personal friends outside of work as well as at the workplace. Although Mr. Watson commenced at the Edmonton Garage in 1973, and the Complainant commenced in 1980, Mr. Watson worked his way up through the ranks. The Complainant arrived at the Edmonton Garage as a fully licensed mechanic. Mr. Watson was apprenticed to the Complainant and worked under him. The Complainant took his own time to assist Mr. Watson to gain his mechanic's certification. They worked on cars together at a friend's farm after work often, and went out to eat together. Their personal relationship soured, however, after Mr. Watson became the Complainant's superior. [79] Given their previous close personal relationship, the preponderance of evidence suggests that the tensions that arose between them were non-discriminatory in nature. [80] I find that the personal conflict between the Complainant and Steven Watson improperly influenced Mr. Watson's handling of the hiring process for Night Foreman in the Summer of 2002. Mr. Watson's and Mr. Seeley's interview of the Complainant was very brief. Mr. Watson asked the questions, and he did not explore the Complainant's qualifications adequately, nor ask him for further information that the Complainant offered to give. Mr. Watson exaggerated the qualifications of Mr. Mullan when he presented the interview outcomes to the Calgary decision-makers, with Mr. Seeley going along. [81] Similarly, I find that Mr. Watson sought to undermine the Complainant's candidacy by using the 1992 workplace conflict against him. There was evidence from Steven Watson that any employee had the right to look at his own personnel records in Mr. Watson's office upon request. Upon a review of his personnel records, any employee has the right to destroy or cause to be destroyed any disciplinary or similar records after a five year time period. Accordingly, while it is true the workplace conflict occurred, it occurred ten years prior to the Complainant's application for promotion to Foreman; it was therefore remote in time and irrelevant to the job competition. Despite the foregoing, there was evidence it was an incident that Steven Watson continued to hold against the Complainant personally. In the context of their soured friendship, this is more than likely. [82] The evidence supports the conclusion that Mr. Watson did not want to be dealing with the Complainant on a more frequent basis as supervisor to Foreman, due to the personal conflicts between the two men in the past and the consequent suspicion and animosity between them. The Complainant, for his part, felt victimized by supervisor Steven Watson's animus toward him, which would appear on the evidence to be justified. [83] However, there has to be a nexus between the conduct under scrutiny and a prohibited ground of discrimination. The nexus can be inferred through circumstantial evidence, but the inference of discrimination must be more probable than other possible inferences. Failing that, there may be other workplace, union, and civil remedies open to the Complainant, but the standard needed to establish a human rights complaint will not have been met. [84] Liability under the CHRA is not engaged where the complainant's negative workplace experiences are due solely to a personality conflict with a supervisor. (See Hill v. Air Canada (2003), 45 C.H.R.R. D/456 (C.H.R.T.), paras. 132, 164-165, 169 and the cases cited therein.) [85] In this case, I find that the prima facie discrimination in the hiring process is satisfactorily explained by the personal animosity existing between the Complainant and Mr. Watson. This animosity is based on the interactions and respective career paths of the two men, and has nothing to do with the complainant's race, colour, or national or ethnic origin-or for that matter his age or disability. The inference of personal animus based on workplace history is more probable than any possible inference of discrimination on a prohibited ground. [86] Since the respondent has provided a reasonable explanation, Allegation No. 1 is dismissed. B. ALLEGATION NO. 2 - HISTORIC AND ONGOING HARASSMENT BY CO-WORKERS AND MANAGERS [87] The Complainant has presented evidence of eight incidents or aspects of his workplace experience which he alleges form a pattern of harassment based on race, within the meaning of s. 14 of the CHRA. These eight incidents or aspects will be examined in turn. (i) Workplace harassment by then foreman, Bruce Morrison, commencing 1984 [88] The Complainant gave evidence regarding workplace harassment by then foreman, Bruce Morrison, against him commencing in or about 1984 and continuing over several years. The Complainant made a formal human rights complaint against the Respondent in 1990 also based on age, race and disability, which was investigated and ultimately dismissed by the Canadian Human Rights Commission in 1994. The Complainant testified that Mr. Morrison was responsible for demoting him from Lead Hand, that he made racially based remarks behind his back, and denied him courses that white mechanics got. [89] It is the Complainant's position that although his 1990 CHRA complaint was dismissed, it should still be looked upon in this hearing as evidence of discrimination dating back nineteen years previous to the filing of the present complaint. On this issue, I agree with the Respondent that this matter is too remote in time from the present matter to be properly adduced as a factor in the present inquiry. Therefore I cannot give it consideration as a single act of harassment, nor as part of a pattern of harassment. (ii) False accusations of making threats against Mr. Watson on March 11, 1992 [90] As was mentioned earlier, on March 11, 1992, an argument took place at the workplace between the Complainant and Steven Watson. According to Mr. Watson, during this exchange the Complainant threatened him by angrily poking him with two fingers, while holding an exacto knife in the same hand. Steven Watson ultimately filed a formal complaint against the Complainant, which he said he agonized over somewhat as they had been good friends at one time. He states that he was influenced in his decision by others superior to him, who convinced him that he had to take these formal steps to promote respect in the workplace for him and his position. The formal complaint at the time stated that the Complainant had small knives in his possession that Mr. Watson found intimidating. However, during the hearing Mr. Watson confirmed that the Complainant had an exacto knife in his hand that he had been using for work, not small knives. [91] With respect to this incident, two documents in particular were introduced. One document introduced by the Respondent was put forward as containing corporate records (referred to as Form 6s) indicating that the Complainant was disciplined for this incident, and reciting the incident as Mr. Watson had outlined it, except for the reference to the small knives in the Complainant's possession. The Form 6s are a commonly used form at the Edmonton Garage that are employed for a variety of reasons. On the form it shows to whom copies of the Form are to be sent. When it comes to disciplinary matters, the person being disciplined would normally receive a copy. The Form 6s introduced indicate that the Complainant would have received a copy. [92] However, in the Complainant's testimony, he stated that he was not disciplined nor did he ever receive the Form 6 reprimand introduced into evidence. The Form 6 evidence was put to the Complainant during cross-examination, and Complainant's counsel objected to their introduction. She submitted that the Respondent was under an obligation to disclose all of the Complainant's employment records, and had not previously disclosed these particular documents. [93] I allowed the documents to be put to the Complainant on the basis that Form 6 documents relating to a 1992 incident might not necessarily have been considered relevant prior to the hearing. In that the complainant gave statements under oath, that the documents tended to refute, I allowed Respondent's counsel to introduce them as credibility was an issue in the hearing. At the cross-examination stage, they were introduced as exhibits for identification only, as there was no evidence that the Complainant had seen them previously and he testified therefore that he could not identify them. [94] Subsequently, the documents were introduced as corporate records, kept in the normal course of business, through Steven Watson. [95] Another document relating to this incident was introduced by the Complainant, that was identified as a copy of a contemporaneous written complaint outlining the event's particulars and authored by his supervisor, Steven Watson, that had been ripped up and retrieved by the Complainant and others from the trash. The Complainant had kept the document in the intervening years. [96] Steven Pejkovic testified for the Complainant about the March 11, 1992 incident. He said that he has never observed the Complainant to be physically aggressive toward anybody at the garage over the years. However, he also testified that he was not present at the time of the March 11, 1992 incident, and that he could not confirm the incident. The Respondent did not call any witnesses as to the incident (other than Mr. Watson). [97] I prefer the evidence of Steven Watson. He was quite emotional when remembering that he agonized over whether to report the matter which would bring disciplinary action upon the Complainant, because of the closeness of their friendship in earlier years. He admitted that the small knives notation, which appeared in the initial documentation, was wrong, and had a clear memory of the details. This contrasted with the Complainant's blanket denial. I find that this incident did take place as outlined by Steven Watson, and that the Complainant did receive a reprimand. [98] However, I do not accept the Complainant's position that he was falsely accused and that this is an example of ongoing managerial harassment of him on a discriminatory basis. The evidence reveals that this incident had no connection with the Complainant's race, and originated rather from a personal animosity that had arisen between the Complainant and Steven Watson, which they both denied on the stand, but which was evident in their respective testimonies. Therefore, I cannot attach significance to this incident in my harassment analysis. (iii) Complainant's 2000 holiday scheduling [99] The Complainant alleges that his year 2000 summer holiday application was tampered with. Holidays are governed at the Edmonton Garage by the Collective Agreement. The Complainant testified under cross-examination that he did not file a grievance with respect to this incident. He testified that there have been no other holiday `incidents' since that time. He did state that there were other holiday incidents that preceded this one, but gave no details or timelines, and there was no corollary evidence given on the point. Therefore, the only matter for me to consider is the 2000 one. [100] In April 2000 the Complainant applied for holidays from June 17th to June 30th, 2000. By virtue of his seniority, he should have been assigned his first choice. He had already bought airline tickets and made plans to vacation in the United States. There is no dispute that the application was tampered with. A copy of the handwritten bid was introduced as evidence, which clearly showed the year 2000 had been crossed out and 2001 handwritten in over it. No evidence was adduced as to who might have been responsible for this tampering. The Complainant testified that he did not do it, and I accept his evidence on this point. He would not have put his desired vacation plans in jeopardy, and risk someone else being assigned his preferred holiday time. [101] The Complainant did state that at the relevant time, he handed his application to the then second supervisor at the Edmonton Garage, Chuck Seeley. He also testified that Steven Watson phoned him to point out that he had bid for the wrong year. Although he did not file a grievance through his Union, the Complainant did go to Keith Hutchings, then on the Union Executive, and a Senior Labour Relations Manager. Upon their intervention, the Complainant was given the holidays he requested, but it appears he would not have without their intervention. The time had already been given to the second in seniority, and that assignment had to be changed. [102] The Complainant says that this is an example of workplace harassment of him by management. Given that the Complainant gave his bid to his supervisor, Chuck Seeley, and that the evidence before me was that the only other person who had the bid was supervisor Steven Watson, I find that his holiday bid was tampered with by someone in management. [103] Moreover, management did not act appropriately to rectify the situation once they were made aware that the Complainant had not altered his bid. The Respondent did give the Complainant the holidays that he was entitled to ultimately, but only after he sought out intervention at a higher level within the company. His direct supervisors denied him his entitlement despite what quickly became a very evident error on the face of his holiday bid. Someone deliberately changed his bid, and his immediate superiors, being Steven Watson and Chuck Seeley, did not react appropriately when made aware of the conflict. This should not have required union intervention to correct. [104] However, in order to constitute harassment within the meaning of s. 14, the incident needs to be based on a prohibited ground of discrimination. Nothing in the evidence suggests that the tampering with the complainant's holiday application, or management's response thereto, was based in whole or in part on the complainant's race. (iv) Steve Watson's threat on July 23, 2002 to fire the Complainant if he won the Foreman Position [105] At the time of his enquiries about the job competition for Night Shift Maintenance Foreman, the Complainant states that he was told by supervisor Steven Watson that he would fire him if he got the position, because he would no longer be in the Union. Mr. Watson denies saying this. However, the Complainant's witness, Euclide Plamondon, a serviceman in the Edmonton Garage, testified that Mr. Watson said this in his presence to the Complainant. Mr. Plamondon's memory of the statement was, If you take the job, I will fire you. You won't be in the union anymore. I accept Mr. Plamondon's evidence on this point. He had a clear memory of the circumstances of the statement, his reaction, and the reaction of the Complainant. [106] A great deal of time was spent at the hearing on the question of whether, in fact, the Complainant could be fired or terminated if he had been hired as Foreman. Whether he could in fact be fired or not once he was no longer in the Union, is irrelevant to the complaint which is based on what was said to him. I accept the evidence of the Complainant and Mr. Plamondon that the threat was made by Steven Watson, and was done openly on the work floor in front of Mr. Plamondon. [107] However, the Complainant's further testimony on this point was curious. Mr. Plamondon testified that he did not feel that Steven Watson was joking when he made the comments; he felt Mr. Watson was serious. However, the Complainant testified that he did not believe that Mr. Watson was that serious, and that he thought Mr. Watson was joking. If the Complainant received this comment as a joke, it calls into question whether he truly perceived the comment as being unwelcome. He applied for the job in any event. [108] That being said, even if the Complainant viewed Mr. Watson's threat as an unwelcome communication that served to poison the work environment, it has not been demonstrated that the threat was connected to the Complainant's race, or that it was based on any other prohibited ground of discrimination. Therefore the threat incident cannot be viewed as an instance of harassment. (v) Ken Pauli October 4, 2005 incident [109] The Complainant testified that on October 4, 2005, another mechanic, Ken Pauli, harassed him at work by calling him names including stupid and lazy and everything else. He was Lead Hand, it was a statutory holiday, and Mr. Watson was away that week. Nizar Dalla, a manager from Calgary, was on duty later that day. The Complainant testified that he felt that Mr. Watson took the week's holidays and condoned Ken Pauli to harass me. Explaining further, he testified that he believed that [Mr. Watson] got Ken Pauli to harass me. His reasoning was that he had never had problems with Ken Pauli previously. [110] The Complainant was advised by Marcia Reynolds in the Respondent's Human Resources Department to file a complaint in writing about the incident, which he did. Subsequently, he was aware that Ms. Reynolds did carry out an investigation and that he received a letter from Ms. Reynolds stating that Mr. Pauli admitted harassing him and acting against the Respondent's relationship policy that is widely posted at the Edmonton Garage and other of the Respondent's work sites. Race was not investigated, just harassment. He testified that he felt race was an issue, but he did not state that at the time of his workplace complaint. He also felt that Mr. Pauli's conduct was really a retaliation from Mr. Watson for his having filed a human rights complaint. (However, he did not make a formal allegation at the hearing, or beforehand, of retaliation under s. 14.1 of the Act.) [111] The Complainant testified that this was the only incident I had with anybody on the floor in the garage and that this was a singular incident. In his testimony, Mr. Watson denied any prior knowledge of Mr. Pauli's conduct, and confirmed that he was away on holiday at the time of the incident. There was no evidence of Mr. Watson's involvement with this incident, either by encouraging it or condoning it. The investigation of the Complainant's workplace complaint against Ken Pauli did not involve Mr. Watson. At best, the Complainant's belief was pure conjecture that Mr. Watson was involved in putting Mr. Pauli up to harassing him when Mr. Watson would be away on holidays. [112] Moreover, the only evidence the Complainant presented suggesting that race was a factor in Mr. Pauli's behaviour was the Complainant's stated belief that race was an issue, even though he did not state this at the time of his workplace complaint. [113] In view of the above, I find that the Complainant has not demonstrated that this incident can be considered an instance of harassment within the meaning of s. 14. (vi) Denial of training and courses [114] The Complainant testified that on numerous occasions he requested specialized courses but did not get them. The issue of courses and training can be grieved through the Collective Agreement but the Complainant did not do this, although he testified that he did talk to a Union Executive member, Nelson Holst, about the issue. [115] The Complainant alleges that he has been denied the opportunity to take courses or receive training that has been offered to other workers, and that this denial over time has both hindered his career advancement and directly interfered with his ability to perform certain specialized functions at work. Together with general allegations of discrimination in allocation of courses, the Complainant says he was denied the opportunity in 2001 to obtain his Class 2 licence (an upgrade from Class 3), and that when he took a newly required Air Conditioning course in 2003 and failed it, he suspects that Supervisor Steven Watson influenced the instructor to give him a failing grade. [116] There was little evidence from the Complainant that he did not have adequate training over his years of employment. However, there was evidence that he was not given longer courses that he requested or that he felt he needed to do his work with current competence. In particular, in or about 2001, there was a new requirement that mechanics needed an upgrade from a Class 3 to a Class 2 license in order to carry a passenger when testing buses. The need to carry passengers would arise when a mechanic would carry an apprentice or another mechanic with him or her when testing the bus for vibrations or the like. It was not disputed that several mechanics achieved their Class 2 license, but when the Complainant asked Steven Watson to take the course, he was told that they had sufficient numbers with the new classification. He never did get this training, and to date cannot now test buses unless he gets somebody with a Class 2 license to go with him. As the most senior mechanic at the garage, often with Lead Hand duties, this is a real restriction on his ability to do duties he could do previously. Many mechanics who work under the Complainant as Lead Hand, have these Class 2 Licenses now. [117] The Complainant also testified that when he was working more in the Hoist area, he was working on engines but not given any courses on engines. He also mentioned a 2003 electronics course offered to learn about a computerized analyzer to analyze what is wrong with the bus engine. He stated that whether you work in the Service area or the Hoist area, or any part of the workplace, you still need to use that analyzer. He was denied this opportunity. [118] Another example given by the Complainant was an Air Conditioning (AC) course that the Complainant asked to take from about 1999 forward, and was finally offered in 2003 only after he told a union executive board member that it was being denied to him. He had considerable experience working with AC units on the buses. He considers the course very relevant and essential to his career. According to current Alberta government regulations, you can only work on AC units if you pass this course and hold the appropriate HRAI certificate. [119] It was a one week course, with a final open-book examination, and the Complainant failed the course. The course was taught by one Peter Jasmin, who was independent of the Respondent. The Complainant saw Steven Watson talking with Peter Jasmin, and although he could not hear what they were saying, he believed they were talking about him. The Complainant blames interference by Steven Watson for his failing the course. He did not grieve the matter through the Union, nor complain to the Respondent, because he was embarrassed. The result is that although he has worked on AC units since 1970, he can no longer do so. [120] The Complainant did not give any evidence as to whether he has asked to take the course again, or re-write the examination. The inference from his evidence is that he did neither. [121] I do not accept the assertion made by the Complainant that Steven Watson interfered with the AC course and influenced the instructor to give the Complainant a failing grade. Therefore, I find that the Complainant has not made out a prima facie case of harassment with respect to this matter. (vii) Denial of overtime [122] The Complainant testified that he had been denied overtime opportunities. The evidence led in his direct testimony was that he told Steven Watson some time ago that he wanted to retire soon, and build up his pension before doing so by working some overtime. He testified that Mr. Watson's response was No. There is no overtime. He further testified that other white mechanics could work overtime. He elaborated by saying that he worked quite a bit of overtime previous to Mr. Watson becoming foreman. [123] When asked to be specific about the denials, he testified that if he had asked for overtime two years ago, Mr. Watson would have refused to grant it to him, but that this had changed about one year to a year and one-half ago. He stated that there is a shortage of mechanics so this is not an ongoing issue now. [124] Despite the fact that several people were called as witnesses for the Complainant who did work for the Respondent in the relevant time period, and continue to work for the Respondent, none of them testified as to their own overtime experience nor as to overtime generally available at the Edmonton Garage. The only evidence led was by the Complainant and Steven Watson. [125] Although the Complainant may have at times been denied overtime when he asked for it, his evidence was unclear on the dates and time periods involved. The complainant did not present enough evidence demonstrating even on a prima facie basis that his race played a role in any decisions made to deny him overtime. (viii) Historical and ongoing workplace harassment [126] The Complainant led little evidence on this point outside the ambit of the specific events and allegations already highlighted. He stated that the whole thing is racial discrimination because my race, my age, and disability. His evidence essentially was that there is discrimination everywhere, and that wherever you go in the blue-collar trade, it is the same thing. He stated that it is the same kind of behaviour, the same mentality, the same culture, the same. This appears to be the defensive filter through which the Complainant views any workplace, including the Edmonton Garage where he has worked for 26 years. [127] When asked about the ongoing nature of his complaint, the Complainant testified that there is name calling behind the back. It is never in front of me... He said he knows this because people tell me about [it]. However, the Complainant's testimony on this aspect lacked any specificity, and he did not give evidence as to who told him this, or when, or provide any details as to either the nature of the talk, or what he was told about it. [128] I find that the Complainant has not made out a prima facie case on this general alleged manifestation of harassment. The evidence is not complete or sufficient. [129] Nor do I find that all eight incidents or aspects considered together constitute harassment within the meaning of s. 14 of the CHRA. As was mentioned above, to constitute harassment there must be a connection between the pattern of unwelcome conduct and a prohibited ground. No such connection has been established in regard to any of the eight incidents or aspects. Nothing in the evidence suggests that such a connection can be inferred in regard to the group of eight as a whole, or in regard to a sub-group thereof. [130] Allegation No. 2 must be dismissed. C. ALLEGATION NO. 3 - DENIAL OF TRAINING AND COURSES [131] I have already dismissed the Complainant's allegation that Steven Watson harassed him by influencing an instructor to fail him in the AC course. However, more generally, the complainant has also asserted that the Respondent's conduct in regard to the denial of training and courses constitutes a discriminatory practice under both ss. 7(b) and 10(a) of the CHRA. [132] This allegation is supported by the fact that the Complainant was denied the Class 2 license course, as well as the Electronic Analyzer course, and that for several years he was denied the opportunity to take the AC course. All these courses are essential to the Complainant being able to keep up his competency levels and to potential career advancement. In fact, the lack of courses has compromised the Complainant's ability to do his work at the Edmonton Garage despite his seniority and experience. All of the courses at issue were offered to other mechanics in the Edmonton Garage, often those who continued to work under the Complainant's direction. [133] In view of the foregoing, I find there is prima facie evidence that the Respondent differentiated against the complainant adversely in the approval of courses and training. Similarly, there is prima facie evidence that the Respondent in the person of Steven Watson did pursue a practice affecting courses and training that deprived the Complainant of employment opportunities. [134] However, in order to satisfy the prima facie burden, the evidence must be complete and sufficient to justify a decision in the Complainant's favour. In the current matter, there is no evidence linking the adverse differentiation or denial of employment opportunities to a prohibited ground of discrimination. Instead, the evidence indicates that the personal conflict between the Complainant and Steven Watson improperly influenced Mr. Watson's decisions relating to the courses and training that were made available to the Complainant. As I have said before, on the evidence, I find that this personal conflict had nothing to do with the Complainant's race, age or disability. [135] In view of the above, Allegation No. 3 must be dismissed. VI. DECISION [136] For all the foregoing reasons, the complaint is dismissed. No costs are awarded to the respondent as this is not provided for in the CHRA. Signed by Kerry-Lynne D. Findlay, Q.C. OTTAWA, Ontario August 9, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1099/8005 STYLE OF CAUSE: Suresh Khiamal v. Greyhound Canada Transportation Corporation DATE AND PLACE OF HEARING: December 4 to 8, 2006 Edmonton, Alberta DECISION OF THE TRIBUNAL DATED: August 9, 2007 APPEARANCES: Shirish P. Chotalia For the Complainant No one appearing For the Canadian Human Rights Commission Michael Ford For the Respondent

2007 CHRT 35

CHRT

Office and Professional Employees International Union, Local 404 v. Atomic Energy of Canada Limited

en

2007-08-10

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6985/index.do

2023-12-01

Office and Professional Employees International Union, Local 404 v. Atomic Energy of Canada Limited Collection Canadian Human Rights Tribunal Date 2007-08-10 Neutral citation 2007 CHRT 35 File number(s) T1163/4506, T1222/3407 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE OFFICE AND PROFESSIONAL EMPLOYEES INTERNATIONAL UNION, LOCAL 404 Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ATOMIC ENERGY OF CANADA LIMITED Respondent AND: CANADIAN OFFICE AND PROFESSIONAL EMPLOYEES' UNION, LOCAL 404 Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ATOMIC ENERGY OF CANADA LIMITED Respondent RULING 2007 CHRT 35 2007/08/10 MEMBER: Karen A. Jensen [1] The Chalk River Technicians and Technologists - 404 (CRTT), have requested an Order substituting CRTT-404 for the Complainant, Office and Professional Employees International Union, Local 404 (OPEIU) in a complaint filed against Atomic Energy of Canada Limited (AECL). The Respondent has consented to the motion. [2] The complaint, alleging a violation of s. 10 of the Act, was lodged in May 2002, by OPEIU. [3] OPEIU was the bargaining agent for a unit of clerical and administrative employees of AECL at its Chalk River location in 2002, when the complaint was lodged. In June of 2004, the Canadian National Committee of OPEIU exercised its right to autonomy under the OPEIU Constitution and became the Canadian Office and Professional Employees' Union, Local 404 (COPE). COPE instructed Local 404 to change its name and letterhead, and the employer was advised of the Local's new name. Thereafter, COPE, continued to deal with AECL on behalf of the employees in the bargaining unit, but under the name of COPE, without objection from the AECL. [4] A second complaint, alleging a violation of s. 11 of the Act, was filed on November 14, 2005, by COPE. The two complaints were referred to the Tribunal and it was agreed that they would be dealt with together. [5] In April 2006, COPE was replaced, by order of the Canada Industrial Relations Board, by CRTT as the bargaining agent for the unit. [6] COPE authorized CRTT to settle and withdraw both complaints on its behalf. [7] CRTT and COPE have entered into Minutes of Settlement with AECL resolving the two complaints. OPEIU was provided with the Notice of Motion to change the name of Complainant and has not responded. [8] It is clear from the Affidavit of Suzanne Sheridan-Cole, who was the vice-president of OPEIU when the s. 10 complaint was filed, that COPE stepped into the shoes of OPEIU and assumed all of its responsibilities and obligations with respect to representing the interests of the members of the bargaining unit. Thereafter, CRTT stepped into the shoes of COPE and assumed the latter's legal obligations when it became certified as the new bargaining agent. [9] Section 36 of the Canada Labour Code provides that a successor union assumes the responsibilities of the predecessor union as bargaining agent for the purposes of the collective agreement. [10] The Tribunal has granted amendments to complaints in order to clarify the legalities of the situation and where no prejudice will result to the respondent (Gaucher v. Canada (Armed Forces) 2005 CHRT 1). The Tribunal has also granted motions to substitute a party where it was satisfied that although the party had changed in status, it continued to exist as an amalgamated company and had assumed all of the legal rights and responsibilities of the previous party (Bozek v. MCL Ryder Transport Ltd. 2002 CanLII 45937 (C.H.R.T.)). [11] In the present case, the Tribunal finds that substituting the name of CRTT for OPEIU in the s. 10 complaint is appropriate for the following reasons: COPE, CRTT and AECL all consent to the motion; As it was entitled to do under the OPEIU Constitution, COPE has assumed the responsibilities held by OPEIU; Under the Canada Labour Code, CRTT is the successor in law to the representational rights possessed by COPE; There is no apparent adverse impact on the rights of the alleged victims, nor has anyone suggested as much. [12] CRTT has not asked that it be substituted as the complainant in the s. 11 complaint. This is presumably because COPE and CRTT participated in the settlement negotiations and COPE authorized CRTT to settle the matter on its behalf. [13] Therefore, the request to change the name of the Complainant in the s. 10 complaint to CRTT is granted. Signed by Karen A. Jensen OTTAWA, Ontario August 10, 2009 PARTIES OF RECORD TRIBUNAL FILES: T1163/4506 and T1222/3407 STYLE OF CAUSE: Office and Professional Employees Internation Union, Local 404 v. Atomic Energy of Canada Limited Canadian Office and Professional Employees' Union, Local 404 v. Atomic Energy of Canada Limited RULING OF THE TRIBUNAL DATED: August 10, 2007 APPEARANCES: Cathy Lace For the Complainants No one appearing For the Canadian Human Rights Commission Mary J. Gleason For the Respondent

2007 CHRT 36

CHRT

Vilven v. Air Canada

en

2007-08-17

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6987/index.do

2023-12-01

Vilven v. Air Canada Collection Canadian Human Rights Tribunal Date 2007-08-17 Neutral citation 2007 CHRT 36 File number(s) T1079/6005, T1176/5806, T1177/5906 Decision-maker(s) CAHILL, Kathleen; Jensen, Karen A.; Sinclair, Grant, Q.C. Decision type Decision 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 - and - AIR CANADA PILOTS ASSOCIATION FLY PAST 60 COALITION Interested Parties AND BETWEEN: ROBERT NEIL KELLY Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - AIR CANADA AIR CANADA PILOTS ASSOCIATION Respondents DECISION PANEL: J. Grant Sinclair Karen A. Jensen Kathleen Cahill 2007 CHRT 36 2007/08/17 I. INTRODUCTION II. DECISION III. FACTS A. Mr. Vilven B. Mr. Kelly C. Pilot Careers at Air Canada D. The Pension Plan E. Seniority F. The Regulation of the Airline Industry IV. THE ISSUES A. Who has the onus? B. Have the complainants and the Commission established a Prima Facie case of discrimination under ss. 7, 9 and 10 of the CHRA? C. Have the respondents demonstrated that age 60 is the normal age of retirement within s. 15(1)(c) of the CHRA? (i) The Proper Comparator Group (ii) What is the normal age of retirement? D. Does s. 15(1)(c) of the CHRA Contravene the Charter? (i) Previous Challenges to Human Rights Legislation that Permits Mandatory Retirement. (ii) Does Section 15(1)(c) of the CHRA Contravene s. 15(1) of the Charter? I. INTRODUCTION [1] George Vilven and Robert Neil Kelly were pilots with Air Canada. Mr. Vilven was employed by Air Canada from May 26, 1986 to September 1, 2003, when his employment with Air Canada was terminated. Mr. Vilven turned 60 on August 30, 2003. Mr. Kelly joined Air Canada on September 11, 1972 and his employment with Air Canada ended on May 1, 2005. He attained 60 on April 30, 2005. [2] Mr. Vilven and Mr. Kelly were required to retire from Air Canada at age 60 in accordance with the mandatory retirement age provisions of the Air Canada Pilots Pension Plan which is incorporated into the collective agreement between Air Canada and the Air Canada Pilots Association (ACPA), the union that represents Air Canada pilots. [3] The relevant section of the Pension Plan provides that every pilot's employment with Air Canada shall be terminated no later than the first day of the calendar month following which the pilot reaches 60. [4] Both Mr. Vilven and Mr. Kelly want to continue flying as pilots with Air Canada. Both filed complaints with the Canadian Human Rights Commission (CHRC); Mr. Vilven on August 5, 2004 and Mr. Kelly on March 5, 2006. In their complaints, they alleged that Air Canada discriminated against them on the basis of age, contrary to sections 7 and 10 of the Canadian Human Rights Act (CHRA) by requiring them to retire at age 60. Mr. Kelly also filed a complaint against ACPA, alleging a contravention of ss. 9 & 10 of the CHRA. [5] The Tribunal granted interested party status to ACPA in relation to Mr. Vilven's complaint. It also granted interested party status to the Fly Past 60 Coalition (Coalition) which is a group of pilots or former pilots of Air Canada who are united in their goal of eliminating the mandatory retirement age at Air Canada. At the request of the parties, the Tribunal joined the three complaints and all were dealt with at the one hearing. [6] The Coalition filed a Notice of Constitutional Question in which it challenged the constitutionality of s.15(1)(c) of the CHRA alleging that it contravened s.15(1) of the Canadian Charter of Human Rights and Freedoms (Charter) and was not justified under s. 1 of the Charter. II. DECISION [7] For the reasons that follow, the Tribunal has concluded that the complaint of Mr. Vilven against Air Canada and the complaints of Mr. Kelly against Air Canada and ACPA have not been substantiated and are therefore dismissed. The Tribunal finds that age 60 is the normal age of retirement, within s. 15(1)(c) of the CHRA, for persons working in positions similar to the positions of the complainants. As such the mandatory retirement policy of Air Canada does not constitute a discriminatory practice under the CHRA. The Tribunal also finds that s. 15(1)(c) of the CHRA does not contravene s. 15(1) of the Charter. III. FACTS A. Mr. Vilven [8] Mr. Vilven was hired as a Pilot in Training by Air Canada on May 26, 1986. He was qualified as a Second Officer on a B-727 aircraft on September 11, 1987. Under the collective agreement, pilots use their seniority rights for professional advancement, which includes the aircraft that they will fly, the status that they will hold (Captain, First Officers or Relief Pilots) and the base from which they will fly. [9] Mr. Vilven used the seniority that he accrued during his tenure at Air Canada to move from being a First Officer on a B-727 aircraft, to eventually becoming a First Officer on an A340 based in Vancouver, effective August 1, 2000. Mr. Vilven chose not to become a pilot in command of an aircraft, but instead to use his seniority to remain a pilot on an A340 and to obtain a base in Vancouver where he could be near his family. [10] Mr. Vilven's last flight with Air Canada took place on August 24, 2003, just short of his 60th birthday, en route from Seoul to Vancouver, piloting an A340. [11] Under the terms of the Pension Plan in effect on September 1, 2003, Mr. Vilven was credited with 17.3334 years of allowable service with Air Canada. He was also credited with 5.5833 years pre-employment military service, for a total of 22.9167 allowable years of service for purposes of calculating his pension. Under the pension option he selected, Mr. Vilven now receives a pension payment of $6,094.04 per month until the age of 65 and of $5,534.33 after age 65 until his death. [12] Since the termination of his employment with Air Canada, Mr. Vilven has continued to pursue his flying career. He flew with Flair Airlines from April 2005, until May 2006. He holds a valid airline transport pilot's licence with the highest category and standing of instrument rating. It is valid to December 1, 2007. Mr. Vilven ceased flying for Flair Airlines in order to prepare for the hearing in this matter. B. Mr. Kelly [13] Mr. Kelly was hired by Air Canada on September 11, 1972, as a DC-8 Second Officer. He flew a number of aircraft in various positions until he was promoted to Captain on January 16, 1992. Mr. Kelly used his seniority within Air Canada to advance from being pilot in command on a B-727 to being pilot in command on an A340. [14] Mr. Kelly's last flight with Air Canada took place just short of his 60th birthday, on April 30, 2005, en route from Hong Kong to Toronto piloting an A340-500. [15] Under the terms of the Pension Plan in effect on May 1, 2005, Mr. Kelly was credited with 32.6667 years of allowable service with Air Canada for purposes of calculating his pension. Under the pension option he selected, Mr. Kelly now receives a pension payment of $10,233.96 per month until the age of 65 and of $9,477.56 after age 65 until his death. [16] Following his termination from Air Canada, Mr. Kelly has continued to pursue an active aviation career, and has continuously held a valid air transport pilot's licence with Category 1 Medical Certification. [17] In 2005, he flew as a contract First Officer on a B757/767 aircraft with Skyservice Airlines to Europe and the Caribbean. He continues to fly as a contract Captain with Skyservice on B757 equipment on international flights. [18] Mr. Kelly's most recent Category 1 Medical (No Waivers) was obtained on October 11, 2006. His most recent Licence and Instrument Rating Renewal was obtained on November 16, 2006 at an Air Canada B767 simulator in Toronto. C. Pilot Careers at Air Canada [19] Air Canada is a major international and interline carrier, flying domestic flights in Canada to several continents and regularly operating flights to 33 foreign states (including the United States). [20] Air Canada offers the highest paying pilots jobs in Canada, with the best benefits and large amounts of interesting and lucrative long haul international flying. Its fleet has the largest, technologically-advanced aircraft in Canada, which pilots strive to fly. Flying for Air Canada is seen by many pilots as the best job for a commercial airline pilot in Canada. The number of pilot jobs at Air Canada has remained relatively stable between 2,500 and 3,000 for a number of years. The number of applicants for pilot jobs at Air Canada far exceeds the number of positions available. [21] Pilots at Air Canada have been represented by ACPA since November 1995. Prior to that time, they were represented by the Canadian Air Line Pilots Association from 1945. Most of the terms and conditions of pilots' employment at Air Canada are set by the collective agreement between ACPA and Air Canada. D. The Pension Plan [22] Air Canada pilots are covered by a very generous pension plan. It has two parts: the first is the Registered Retirement Pension Plan governed by the Income Tax Act and the federal Pension Benefits Standards Act; the second is the Supplemental Pension Plan. It provides pensions higher than the maximum permitted by the Income Tax Act. These supplemental pensions are funded by payments from Air Canada's general revenues. The pension plan benefits are part of the compensation package negotiated on behalf of Air Canada pilots by ACPA. E. Seniority [23] Seniority is very important to Air Canada pilots. Many important elements of a pilot's career are bid upon and awarded based on seniority. Thus, seniority dictates the pilot's status (i.e. Captain, First Officer or Relief Pilot), income, the base from which the pilot flies, the choice of schedules between pilots in the same positions, priority for vacations and protection against layoff. The career progression of a pilot and the salary that he or she earns is very much tied to seniority. F. The Regulation of the Airline Industry [24] Canada has no maximum licensing age for airline pilots. To be licensed in Canada, pilots must successfully pass a medical examination approved by Transport Canada. Pilots under the age of 40 must undergo a medical examination once a year. Pilots over the age of 40 must undergo a medical examination twice a year. [25] Air Canada is subject to the standards and recommended practices developed by the International Civil Aviation Organization (ICAO) because Canada is a signatory (i.e. a Contracting State) to the Chicago Convention on International Civil Aviation (Chicago Convention). ICAO is a United Nations organization charged with fostering civil aviation safety and the development of world-wide standards for licensing pilots. [26] ICAO has developed and adopted both standards and recommended practices for the maximum age of pilots flying commercial aircraft internationally. Age 60 was the maximum age for a pilot in command under the ICAO standards in effect at the time of Mr. Kelly's retirement. The ICAO standards in effect at the time of Mr. Vilven's retirement recommended, but did not require, that pilots acting as co-pilots on international flights not fly past their 60th birthday. [27] A contracting state is free to adopt a maximum age for pilots that is lower than the ICAO standard. However, such lower maximum age will only apply to pilots licensed by the contracting state. It will not apply to foreign pilots from ICAO members who need only comply with the ICAO maximum age to fly into the contracting state. [28] In March of 2006, ICAO passed an amendment to its maximum age standard for pilots. This new ICAO standard, which became effective on November 23, 2006, establishes 65 as the maximum age for pilots. It also establishes a standard that if one member of a multi-pilot flight crew is over 60, the other must be under 60. ICAO also recommends that First Officers cease international commercial flying at age 65. IV. THE ISSUES where does the burden of proof lie under s. 15(1)(c) of the CHRA? To establish a prima facie case of discrimination, do the complainants have to show that they have not reached the normal age of retirement within s. 15(1)(c) of the CHRA? Or is the burden on the respondents to show that age 60 is the normal age of retirement for s. 15(1)(c) purposes? if the onus is not on the complainants to establish the normal age of retirement, have they otherwise established a prima facie case of discrimination based on age? if so, have the respondents demonstrated that age 60 is the normal age of retirement for pilots working in similar positions to the position of the complainants so that s.15(1)(c) applies? if s. 15(1)(c) of the CHRA does apply, does s. 15(1)(c) of the CHRA contravene s. 15(1) of the Charter. If so, is s. 15(1)(c) justified under s. 1 of the Charter? if s. 15(1)(c) contravenes the Charter, is the mandatory retirement age of 60 a bona fide occupational requirement (BF0R) under ss. 15(1)(a) and 15(2) of the CHRA? [29] In addressing these issues, the Tribunal has considered the evidence as it was at September 1, 2003, the date when Mr. Vilven's employment was terminated. And for Mr. Kelly, May 1, 2005, the date when he was terminated. The reason for this is that the respondents should be accountable only for decisions made on the basis of the facts that existed when the alleged discriminatory acts occurred. A. Who has the onus? [30] In Ontario Human Rights Commission et al v. The Borough of Etobicoke, [1982] 1 S.C.R. 202, the Supreme Court of Canada stated that the onus is on the complainant to establish a prima facie case of discrimination. Subsequently, in Ontario Human Rights Commission and O'Malley v. Simpson Sears Ltd. [1985] 2 S.C.R. 536, the Court clarified that a prima facie case is one that covers the allegations made and which, if believed, is complete and sufficient for a decision in favour of the complainant, in the absence of a reasonable answer from the respondent. Once a prima facie case is established, the burden shifts to the respondent to provide a reasonable explanation. [31] In Stevenson v. Air Canada [1984] 2 F.C. 691, which involved a challenge to s. 14(c) [now s. 15(1)(c)] under the Canadian Bill of Rights, the Federal Court of Appeal stated that s. 14(c) circumscribed or limited the protection provided under the CHRA. Only those who have not reached the normal age of retirement can complain about the termination of their employment on the basis of age. [32] Nowhere in Stevenson does the Court discuss the burden of proof with respect to establishing a prima facie case of discrimination. Indeed, the terms prima facie and burden of proof are not used at all in the decision. This is understandable because the complaint had been dismissed by the Commission so that the Court was not called upon to review the burden of proof as it related to the prima facie case. [33] Moreover, Stevenson pre-dates the Supreme Court's 1985 decision in O'Malley. In O'Malley, the Court found fault with the Ontario Board of Inquiry for requiring the Commission and the complainant to establish that the employer had not acted reasonably in all the circumstances of the case. That burden, it was said, must fall squarely on the shoulders of the employer since it is the employer who will be in possession of the necessary information to show undue hardship and the employee will rarely be in a position to show its absence. The Court stated that the assignment of the burden of proof to the appropriate party is as essential element of the process. [34] The importance of following the prima facie test set out in Etobicoke and O'Malley, and respecting the shifting burdens of proof has been underscored in recent Federal Court of Appeal decisions (Lincoln v. Bay Ferries Ltd., 2004 FCA 204, para. 18; Morris v. Canada (Canadian Armed Forces), 2005 FCA 154, para. 26). [35] Indeed, Mr. Vilven testified during the hearing that he experienced considerable difficulty in attempting to obtain information about the ages of retirement and the mandatory retirement policies in other airlines in Canada and around the world. He stated that when he called and explained the reasons for his request, there was often resistance on the part of officials from other airlines to providing him with the information he requested. Air Canada, on the other hand, with some effort, was able to obtain a considerable amount of data regarding the retirement policies and ages of airlines in Canada and around the world. [36] It could be argued, as did the respondents, that a textual analysis of s. 15 of the CHRA comparing ss. 15(1)(a) and 15 (1)(c) of the CHRA, would support the conclusion that the burden should be on the complainants. Where the employer is to bear the burden in s. 15, it is expressly stated. [37] Section 15(1)(c) is ambiguous as to the assignment of the burden. The Supreme Court of Canada has held that ambiguities in the CHRA must be interpreted by the Tribunal in a manner that furthers, rather than frustrates, the Act's objectives. (Bell Canada v. C.T.E.A., [2003] 1 S.C.R. 884, para. 26; C.H.R.C. v Canadian Airlines International Ltd., [2006] 1 S.C.R. 3). The chief objective of the CHRA is the promotion of equal opportunity unhindered by discriminatory practices (s. 2). It is a scheme for identifying and remedying discrimination. [38] In light of the disadvantage that complainants generally have accessing informational and financial resources, assigning complainants the onus of demonstrating that they were not retired in accordance with the normal age for similar positions would frustrate the goal of identifying the presence of discrimination - or for that matter, its absence. It is certainly not the construction of the CHRA that best ensures the attainment of its objects. (C.N.R. v C.H.R.C. [1987] 1 S.C.R. 1114 at p. 1134.) [39] The goal of determining whether discrimination occurred is best ensured by assigning respondent-employers the onus of demonstrating that the complainants were retired in accordance with the normal age for similar positions. B. Have the complainants and the Commission established a Prima Facie case of discrimination under ss. 7, 9 and 10 of the CHRA? [40] Section 7 of the Act stipulates that it is a discriminatory practice to refuse to continue to employ an individual on the basis of a prohibited ground of discrimination. Age is one of the prohibited grounds of discrimination mentioned in s. 3 of the Act. [41] As stated in the Joint Statement of Facts, the sole reason for the complainants' termination was the application of the mandatory retirement age provisions. At Air Canada, when a Captain or a First Officer reaches the age of 60, his/her employment is terminated; the pilot must then retire. The termination of the complainants' employment with Air Canada on the basis of the mandatory retirement policy is sufficient evidence to conclude that the complainants have established a prima facie case of discrimination under s. 7 of the Act. [42] Section 9 of the CHRA provides that it is a discriminatory practice for an employee organization, on a prohibited ground, to act in a way that would deprive an individual of an employment opportunity, or limit employment opportunities, or otherwise adversely affect the status of the individual. ACPA agreed to the inclusion of the mandatory retirement provisions in the Air Canada Pension Plan, which is incorporated by reference into the collective agreement. Mandatory retirement adversely affected Mr. Kelly's employment status. Therefore, a prima facie case of discrimination has been established with respect to Mr. Kelly's s. 9 complaint against ACPA. [43] Under s. 10(b) of the Act, it is a discriminatory practice for an employer or an employee organization to enter into an agreement affecting any matter relating to employment that deprives an individual of any employment opportunity on a prohibited ground. ACPA and Air Canada entered into an agreement with respect to mandatory retirement which affected the employment of Mr. Kelly and Mr. Vilven. Accordingly, a prima facie case has also been established with respect to the s. 10 complaints. C. Have the respondents demonstrated that age 60 is the normal age of retirement within s. 15(1)(c) of the CHRA? [44] The term normal age of retirement in s. 15(1)(c) is identified in relation to the term employees working in positions similar to the position of the individual who filed the complaint. This raises the following two questions: What is the proper comparator group to identify the positions that are similar to that occupied by the complainants? What is the normal age of retirement? (i) The Proper Comparator Group [45] Air Canada argued that the proper comparator group under s. 15(1)(c) is pilots flying internationally for carriers such as Air Canada, or legacy carriers. Air Canada would define legacy carriers as long-established, major international carriers that rely heavily on international flight in their business models. Legacy carriers are often the flag carrier for the country in which they are based. [46] Air Canada maintained that it is the only legacy carrier in Canada. All of the other Canadian carriers operate substantially fewer aircraft than Air Canada and the nature of their operations would not qualify them as legacy carriers. Therefore, Air Canada argued that the comparison has to be made to pilot positions in the other major international carriers around the world. [47] ACPA took a somewhat different tack, namely, that the selection of the appropriate comparator group should be one that shares similar terms and conditions of employment with those of Air Canada pilots. ACPA also argued that the comparison must be limited to other Canadian air carriers since s. 2 of the CHRA limits its application to matters coming within the legislative authority of Parliament. [48] The Commission argued that neither of the comparator groups suggested by the respondents is appropriate. It was impossible to define what the normal age of retirement is because of the wide range of ages at which pilots retire both in Canada and internationally. [49] The Fly Past 60 Coalition argued that there was no basis in the statute for interpreting similar positions to mean positions that have similar work conditions, or positions within legacy carriers. The Coalition argued that a similar position to that of the complainants is the position of an airline pilot, be it a pilot in command (Captain), or a co-pilot (First Officer), with airlines that fly similar (but not necessarily identical) aircraft to those of Air Canada. [50] The Tribunal rejects ACPA's argument that the comparison should be limited to individuals occupying positions with airlines within the Canadian federal jurisdiction. Section 15(1)(c) does not purport to regulate individuals or air carriers beyond its legislative scope. It simply invites a comparison to those in similar positions. [51] Further, there are good reasons not to limit the comparison to positions within Canada. As the Tribunal noted in Campbell v. Air Canada (1981), 2 C.H.R.R. D/602 (C.H.R.T.), the danger of a comparison of positions within Canada alone is that it would result in Air Canada setting the industrial norm for the normal age of retirement. This would mean that Air Canada could effectively determine the application of s. 15(1)(c). [52] The Tribunal agrees with the Coalition that there should be no differentiation between Captains and First Officers. There was substantial agreement among the witnesses who discussed the two positions that, although the Captain, as pilot in command, has ultimate responsibility for the safety of the aircraft, the positions are otherwise very similar. [53] In the Tribunal's view, the best approach to determining the appropriate comparator group is to characterize the essential feature of the position. The complainants' evidence established that the essential feature of their position was that they flew on regularly scheduled international flights on wide-bodied aircraft, to many international destinations, with a major international airline. A major international airline is an airline that is often the dominant carrier in the country, employing a significant number of pilots and where regularly scheduled international flights make up a significant portion of its operations. [54] It was clear from the complainants' evidence that the prestige and status that came with working for a major international airline, whether that is called a legacy airline or a flag carrier or any other name, was an essential feature of the position. [55] From this, the Tribunal has concluded that the appropriate comparator group i.e. employees working in positions similar to the position of the complainants', is pilots who fly with regularly scheduled, international flights with a major international airlines. (ii) What is the normal age of retirement? [56] There are two approaches that the Tribunal can look to in order to answer this question: the normative approach and the empirical approach. The normative approach is suggested by the French version of s. 15(1)(c) which makes reference to the application of a rule in force for this type of job. It reads: Ne constituent pas des actes discriminatoires le fait de mettre fin à l'emploi d'une personne en appliquant la règle de l'âge de la retraite en vigueur pour ce genre d'emploi. [57] This normative approach asks one to search for the existence of a rule governing the maximum age of retirement in the airline industry. In the Tribunal's opinion, the ICAO maximum age provision qualifies as such a rule or standard because it governs the same community of international carriers that the Tribunal has chosen as comparators to determine positions similar to the complainants' position. [58] In September of 2003 and May of 2005, the ICAO standard for pilots in command required retirement at age 60. ICAO recommended, but did not require the retirement of First Officers at age 60. [59] The empirical approach leads to a consideration of the statistical evidence presented at the hearing relating to the retirement ages for both commercial airline pilots in Canada and foreign commercial pilots. [60] Air Canada is the only major international carrier in Canada where pilots fly on regularly scheduled international flights. Although Jazz is the second largest carrier in Canada, it operates flights solely within Canada and the United States. It is a regional carrier, not a major international carrier. [61] None of the other 6 Canadian airlines could be considered to be major international carriers. Skyservice, Air Transat, Harmony, Canjet and Zoom are charter airlines and WestJet is a low-cost carrier that does only limited international flights. Combined, these airlines employ only 885 pilots as compared to almost 3,000 pilots employed by Air Canada. [62] Having concluded that the appropriate comparator group is major international airlines, these Canadian carriers fall outside of that group and therefore, cannot be used for the purpose of determining what the normal age of retirement is for positions similar to that of the complainants. [63] The parties produced as part of their Joint Statement of Facts, a Schedule that included 22 foreign international carriers that have regularly scheduled international flights. However, complete data was not available for 12 of these airlines. [64] The total number of pilot positions in the major international airlines for which there was complete data was 25,308 in 2003. In 2003, when Mr. Vilven retired, 80% of those positions required mandatory retirement at age 60 or younger. [65] The parties agreed that the total number of pilots employed by these airlines has not changed substantially over the years. Therefore, we can assume that there were also roughly 25,308 pilots employed by the major international airlines outside of Canada (for which there was complete data) in 2005, when Mr. Kelly retired. [66] Between 2003 and the end of 2006, only two of the major international airlines requiring mandatory retirement at age 60 or younger, increased their age of mandatory retirement to 63 and 65. These changes occurred in November 2006 following the changes in the ICAO standards in that same month. [67] There was no evidence to indicate that prior to 2006, there were any changes to the mandatory retirement policies of any of the other major international airlines that had mandatory retirement policies of age 60 or younger. [68] It is reasonable to conclude that in 2005, when Mr. Kelly retired, retirement at age 60 or younger was required in 80% of the major international airlines for which data was available. [69] This data reveal that age 60 was the mandatory retirement age for the majority of positions that were similar to that of the complainants at the time of their retirements in 2003 and 2005. This was the normal age of retirement for the purposes of s. 15(1)(c) of the CHRA. The result is that Air Canada's mandatory retirement age policy is not a discriminatory practice under the CHRA. D. Does s. 15(1)(c) of the CHRA Contravene the Charter? [70] In its Notice of Constitutional Question, the Coalition raised the constitutionality of s. 15(1)(c) of the CHRA, arguing that s. 15(1)(c) contravened s. 15 of the Charter and is not justified under s. 1 of the Charter. If this is so, the Coalition argued, then the Tribunal should refuse to apply s. 15(1)(c), which would deprive the respondents of this defense to the complainants' prima facie case. The respondents did not dispute the jurisdiction of the Tribunal to deal with the constitutionality of s. 15(1)(c). It should be pointed out that the Tribunal's decision on this question is limited to the facts of this case. (i) Previous Challenges to Human Rights Legislation that Permits Mandatory Retirement. [71] The present case constitutes the first time that a Charter challenge to s. 15(1)(c) of the CHRA has reached the Tribunal stage. There are, however, two decisions of the Supreme Court of Canada that examined the constitutionality of similar provisions in provincial human rights legislation. Those are McKinney v. University of Guelph [1990] 3 S.C.R. 229, and Harrison v. University of British Columbia [1990] 3 S.C.R. 451. [72] McKinney examined the constitutionality of s. 9(a) of the Ontario Human Rights Code. It was released at the same time as Harrison, which dealt with the constitutionality of s. 8(1) of the British Columbia Human Rights Act. Both provisions permitted mandatory retirement. In Harrison, a majority of the Supreme Court declared that, for the reasons provided in McKinney, the constitutionality of s. 8(1), which limited age protection to those between the ages of 45 and 65, was unimpeachable. [73] In McKinney, the appellants who were university professors at the University of Guelph, were forced to retire at age 65 pursuant to the University's mandatory retirement policy. In their appeal, the appellants posed two separate constitutional questions to the Supreme Court of Canada: did the University's mandatory retirement policy violate the Charter; and, did s. 9(a) of the Ontario Human Rights Code violate the Charter by sheltering the mandatory retirement policy? [74] As to the university's mandatory retirement policy, the majority of the Court found that the Charter does not apply to universities because a university is not part of government. But, assuming the Charter did apply, the policy contravened s. 15(1) of the Charter. However, it was justified under s. 1 of the Charter. [75] The Court then turned its attention to the second constitutional question that was posed to it: did s. 9(a) of the Ontario Human Rights Code violate the Charter? It is this second analysis involving the constitutionality of s. 9(a) of the Code that is relevant to the case before the Tribunal. [76] Section 9(a) of the Code limited the protection of the Code to those between the ages of 18 to 65. The majority held that this provision violated the right to equality under the Charter since it permitted the forced retirement of employees at age 65, but was constitutionally valid under s. 1 of the Charter. [77] Although very differently worded, s. 9(a) of the Ontario Code (which has since been repealed) and s. 15(1)(c) of the CHRA are comparable: both are permissive, both exempt mandatory retirement policies from conduct that would otherwise be considered to constitute prima facie discrimination. (ii) Does Section 15(1)(c) of the CHRA Contravene s. 15(1) of the Charter? [78] In McKinney, the majority found that s. 9(a) of the Ontario Code violated s. 15 of the Charter because it deprived the claimants of a benefit under the Code on the basis of their age, a ground specifically enumerated in the Charter. Although that concluded his analysis of s. 15, Justice La Forest noted that, for a variety of reasons, age distinctions are not viewed in the same light as distinctions based on other prohibited grounds such as race or gender. [79] He stated that, while we must guard against laws having an unnecessary deleterious impact on the aged based on inaccurate assumptions about the effects of age on ability, there are often solid grounds for importing benefits on one age group over another in the development of broad social schemes and in allocating benefits. (McKinney at p. 297). [80] At the time that McKinney was decided, however, such considerations regarding the nature and scope of the rights under s. 15 were dealt with under s. 1 of the Charter. Since McKinney was decided in 1990, the law regarding the analysis of discrimination claims under s. 15 of the Charter has evolved. This evolution can be seen in two subsequent decisions in which the Supreme Court set out the governing standard for s .15(1) of the Charter: Law v. Canada [1999] 1 S.C.R. 497 and Gosselin v. Quebec (Attorney General) [2002] 4 S.C.R. 429. [81] Considerations regarding the nature and scope of s. 15 have been addressed within the analysis of that section by focusing on the purpose of that provision. The purpose of s. 15 is to assure that human dignity is not harmed by arbitrary distinctions created by the law or government action. [82] In Law, the Court stated that the overriding concern with protecting and promoting human dignity infuses all elements of the discrimination analysis. Human dignity is harmed when individuals are marginalized, ignored, or devalued, and is enhanced when laws recognize the full place of all individuals and groups within Canadian society (Law, supra, at para 53). [83] Law involved an application by Nancy Law, a surviving spouse, for survivor benefits under the Canada Pension Plan. Under the eligibility criteria, able-bodied surviving spouses without dependent children and who were under 35 at the death of their spouse, were not eligible for survivor benefits. Ms. Law was 30 at the relevant time. She challenged the age criterion, claiming that it violated s. 15 of the Charter. [84] The Court acknowledged that, like other surviving spouses of all ages, Ms. Law might be vulnerable, economically and otherwise, immediately following the death of a spouse. However, the Court stated that the purpose of the impugned CPP provisions was not to remedy the immediate financial need experienced by widows and widowers, but rather to enable older widows and widowers to meet their basic needs during the longer term. [85] The Court held that younger widows were in a better position than widows who were over the age of 45 to find work and become financially secure again. The Court stated that although the law imposed a disadvantage on younger spouses, it was unlikely to be a substantive disadvantage, viewed in the long term. When the dual perspectives of long-term security and the greater opportunity of youth were considered, the Court stated the differential treatment did not reflect or promote the notion that younger widows were less capable or less deserving of concern, respect and consideration. [86] In Gosselin, the appellant challenged a provision of the Quebec Social Assistance scheme that provided that the base amount of social assistance payable to people under 30 was about 30 per cent less than the base amount payable to those 30 or older. Under the program, those under 30 could increase the base amount by participating in certain educational or work experience programs. Ms. Gosselin challenged the validity of the program under s.15 of the Charter claiming age discrimination. [87] The Court held that Ms. Gosselin had not established that the government treated her as less worthy than older welfare recipients, simply because it conditioned increased payment on her participation in programs designed to integrate her into the workforce and to promote her long-term self-sufficiency. [88] The Court stated that unlike race, religion, or gender, age is not strongly associated with discrimination and arbitrary denial of privilege. Age-based distinctions do not automatically evoke a context of pre-existing disadvantage suggesting discrimination and marginalization in the same way that other enumerated grounds might. Indeed, such distinctions are entirely reasonable and non-discriminatory provided they do not treat people as less worthy of respect or concern or contribute to negative stereotypes relating to age. [89] The question then is whether, as a result of the age-based distinction in s. 15(1)(c) of the CHRA, the complainants' dignity was affronted or they experienced negative stereotyping relating to their age. [90] For the reasons that follow, the Tribunal finds that, although the provision deprives the complainants of the opportunity to challenge the mandatory retirement policy in their workplace, the loss of this opportunity does not violate their dignity or fail to recognize them as full and equal members of society. [91] In arriving at this conclusion, the Tribunal has applied a purposive and contextual approach to the discrimination analysis, as suggested in Law. This approach focuses on three broad inquiries: does the impugned law draw a distinction between the claimant and others on the basis of personal characteristics; is the claimant subject to differential treatment on an enumerated or analogous ground; and does the differential treatment impose a burden which reflects or reinforces a negative disadvantage or stereotype; or has a negative effect on the individual's dignity or self-worth. (Law, p. 548-9). It is the third question that is central to this aspect of the Tribunal's inquiry. Does the distinction created by s. 15(1)(c) contribute to or reinforce stereotyping or pre-existing disadvantage experienced by the complainants? [92] One of the most compelling factor favouring a conclusion that differential treatment imposed by legislation is discriminatory is pre-existing disadvantage or vulnerability to stereotyping (Law, at para. 63). While it is clear that airline pilots, as pilots, do not constitute a group which suffers from negative stereotyping or pre-existing disadvantage, the more appropriate focus of the analysis here is whether the complainants, as members of the group of older workers whose employment has been forcibly terminated, are subject to pre-existing disadvantage or negative stereotyping. [93] The disadvantages suffered by older workers have been noted in the case law. For example, in McKinney, La Forest J. stated that barring specific skills, it is generally known that persons over 45 have more difficulty finding work than others. They do not have the flexibility of the young, a disadvantage often accentuated by the fact that the latter are frequently more recently trained in the more modern skills (at p. 299). Moreover, while social security and private pension schemes may afford some financial redress, many older people have need of additional income, a situation that is becoming apparent as people live longer (at p. 300). [94] In her dissenting reasons in McKinney, Wilson J. noted that there is a stereotype that older people are unproductive, inefficient, and lacking in competence. (at p. 413) [95] There was no indication that the complainants experienced these age-related disadvantages or negative stereotyping. On the contrary, the evidence was that as senior pilots, the complainants were fully up-to-date in the latest technology and skills required to fly some of the most sophisticated aircraft in a major international airline. [96] Very soon after their retirement from Air Canada, both were able to get work as pilots with other airlines that did not have mandatory retirement policies. Mr. Kelly testified that when he was returning his Security Pass to Air Canada following his last flight, he ran into a former colleague who offered him employment with Skyservice Airlines. He readily accepted the offer. [97] The acceptance of employment with Skyservice meant that Mr. Kelly was able to supplement the $124,000 income that he was receiving from his Air Canada pension with what he earned as a pilot with Skyservice. At $72,000 per annum, Mr. Vilven's retirement income was less at retirement than Mr. Kelly's because Mr. Vilven started work at Air Canada later. However, Mr. Vilven was able to supplement his pension income with the earnings he received working as a pilot with Flair Airlines. Does s. 15(1)(c), in purpose or effect, have a negative impact on the complainants' dignity? [98] The purpose of s. 15(1)(c) is to strike a balance between the need for protection against age discrimination and the desirability of those in the workplace to bargain for and organize their own terms of employment (Campbell v. Air Canada (1981), 2 C.H.R.R. D/602 (C.H.R.RT.) at para. 5483). The provision does not mandate mandatory retirement; it is permissive and allows parties like Air Canada and ACPA to negotiate contracts that include a mandatory retirement provision. [99] Mandatory retirement policies are usually in place where the employees have considerable bargaining power, most commonly through trade union representation. Indeed the overwhelming majority of mandatory retirement policies are found in unionized workplaces. Labour economists Jonathan Kesselman and Lorne Carmichael, testifying on behalf of the Commission and Air Canada respectively, agreed that jobs in unionized workplaces are considered to be the good jobs, that is, jobs that pay well, have a high degree of security, operate with a strong seniority system and have good pension plans. [100] In the present case, ACPA and Air Canada agreed to retirement at age 60 in exchange for the rich compensation package, including a pension plan that put Air Canada pilots in an elite group of pensioners. Mr. Harlan Clarke, Manager Labour Relations Flight Operations at Air Canada, identified an important characteristic of a mandatory retirement policy, namely, that employees, including Air Canada pilots, are not faced with the indignity of retiring because they have been found to be incapable of performing the requirements of their position or because of failing health. Rather, retirement at age 60 for pilots is the fully understood and anticipated conclusion of a prestigious and financially rewarding career. [101] The complainants testified that they were fully aware, when they began their employment with Air Canada, that they would be required to retire at age 60. They testified that becoming a pilot with Air Canada was every pilot's goal; the pay was excellent, the work was interesting and there was significant prestige associated with the position. However, they also knew that this would not last indefinitely and that all pilots at Air Canada were required to retire at age 60. [102] Nevertheless, when they reached age 60 and had to retire from Air Canada, the complainants experienced a blow to their self-esteem. Both complainants testified that they missed the prestige and exciting work they had as Air Canada pilots. Mr. Kelly testified that he missed the friendships that he had at Air Canada. [103] There is no doubt that the termination of employment has a profound impact on the self-worth and dignity of an individual (Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at p. 368). As difficult as that situation might be for the complainants, an assessment of the impact of the termination of their employment on the complainants' dignity must be viewed in the broader context of their careers. [104] The case law dealing with allegations of age discrimination under the Charter reflects the view that one should be careful about assessing the impact of age distinctions on human dignity based solely on isolated moments in time (Law, para. 102; Gosselin, at para 32, McKinney, at p. 297). [105] Professor Carmichael testified that age distinctions are viewed differently by most people than distinctions based on grounds such as gender and race. Unlike gender and race, we all become older with the passage of time. For that reason, young workers generally do not resent the fact that an older employee working beside them is paid more than them as long as they believe that they will be treated the same when they reach a similar stage in their career. Age-based distinctions are seen as fair and do not offend human dignity because we can all expect to reap the benefits and bear the burden of the distinctions at some point in our lives. [106] According to Professor Carmichael, the complainants, throughout their careers at Air Canada, reaped the benefit of the mandatory retirement rule that their union had negotiated on their behalf. As a result of the departure of 60-year old pilots from Air Canada, the complainants were able to progress through their careers at a more rapid pace. [107] In addition, the pilots' status, income, the base from which they flew, the choice of schedules and the pension plan benefits they received, among other things, were negotiated on the basis of the mandatory retirement provision. Having reaped the benefit of mandatory retirement, it should not be perceived as unfair to require the complainants to ultimately bear the burden of that policy. [108] The complainants may be unhappy about ending their rewarding careers as pilots with Air Canada. But that situation cannot be viewed in isolation. It must be seen in the context of a system that was designed to assign the responsibilities and benefits of being an Air Canada pilot over different stages in the pilots' careers. All pilots in Air Canada understand that they will share these benefits and burdens equally at the appropriate stages in their careers. [109] The denial of the right to challenge the final stage of that system - retirement at age 60 - as a result of s. 15(1)(c) does not communicate the message that the complainants are not valued as members of society, nor does it necessarily marginalize them. It simply reflects the view that it is not unfair to require the complainants to assume their final responsibility as Air Canada pilots. This message cannot reasonably be viewed as an affront to their dignity. [110] For these reasons, the Tribunal has concluded that the complainants' right to equality under s. 15 of the Charter has not been violated by s. 15(1)(c) of the CHRA. Having come to this conclusion, it is not necessary for the Tribunal to consider s. 1 of the Charter, or whether Air Canada's mandatory retirement policy is a bona fide occupational requirement under ss. 15(1)(a) and 15(2) of the Act. [111] The complaints of Mr. Vilven and Mr. Kelly are dismissed. Signed by J. Grant Sinclair, Chairperson Signed by Karen A. Jensen, Member Signed by Kathleen Cahill, Member OTTAWA, Ontario August 17, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1176/5806, T1177/5906 & T1079/6005 STYLE OF CAUSE: Robert Neil Kelly v. Air Canada and Air Canada Pilots Association and Geroge Viven v. Air Canada DATE AND PLACE OF HEARING: January 8 to 12, 2007 January 22 to 25, 2007 March 1 to 2, 2007 Ottawa, Ontario DECISION OF THE TRIBUNAL DATED: August 17, 2007 APPEARANCES: Robert Neil Kelly For himself George Vilven For himself Daniel Pagowski For the Canadian Human Rights Commission Maryse Tremblay Fred Headon For the Respondent Bruce Laughton, Q.C. For the Air Canada Pilots Association Raymond D. Hall For the Fly Past 60 Coalition

2007 CHRT 37

CHRT

Warman v. Marc Lemire

en

2007-08-17

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6995/index.do

2023-12-01

Warman v. Marc Lemire Collection Canadian Human Rights Tribunal Date 2007-08-17 Neutral citation 2007 CHRT 37 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: August 17, 2007 Citation: 2007 CHRT 37 [1] The Respondent, Marc Lemire, has made a motion for the adjournment sine die of the present proceedings, pending the determination by the Federal Court of several claims of public interest immunity made by the Canadian Human Rights Commission, pursuant to s. 37 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (CEA). [2] On May 9 and 10, 2007, Mr. Lemire’s legal counsel, Barbara Kulaszka, called two Commission employees to testify at the hearing into the complaint. Ms. Kulaszka had indicated that these individuals and one other witness, who has since testified, would be her last witnesses. Her case would then have been closed. The other parties had stated that they did not intend to adduce any additional evidence. The Tribunal had therefore already set dates for final argument. [3] During Ms. Kulaszka’s questioning of the abovementioned Commission employees, the Commission objected numerous times to the disclosure of the information being sought, on the grounds of a specified public interest, pursuant to s. 37(1) of the CEA. In addition, subsequent to these hearing dates, the Commission invoked s. 37 in its objection to Mr. Lemire’s request for the issuance of a subpoena (see my ruling in this regard, Warman v. Lemire, 2007 CHRT 21). [4] On May 17, 2007, Mr. Lemire filed a Notice of Application to the Federal Court, Court File no. T-860-07, for a determination of the Commission’s claims of public interest immunity, in accordance with s. 37(3) of the CEA. [5] In making the present adjournment request, Mr. Lemire submits that it is the normal and expected procedure where a s. 37 objection has been made before a court, person or body other than a superior court, for that instance to adjourn its proceedings while the determination of the matter is before the superior court. As the British Columbia Court of Appeal pointed out in Re Attorney General of Canada et al. and Sander, 1994 CanLII 1658 at para. 84: Thus, when an objection to disclosure under s. 37 is made at trial by the Crown in a court other than a superior court, the trial proceedings should be adjourned so the objection may be determined in a superior court. [6] The Court reiterated this point in R. v. Sander, 1995 CanLII 1229 at para. 29 (B.C.C.A.): Where the trial is in Provincial Court, an application under s. 37 operates to interrupt the trial, to remove to another court the determination of an issue ordinarily determined by the trial judge. [7] Mr. Lemire points out that determinations by the superior court, made pursuant to s. 37 of the CEA, constitute separate and independent inquiries, not interlocutory appeals or reviews of the lower tribunal’s ruling. He adds that the Tribunal in the present case did not make any ruling with respect to the Commission’s s. 37 CEA claim other than to state that once the immunity is invoked, the matter was out of its hands. The question could only be further addressed by the Federal Court, on application. [8] It is well established that administrative tribunals are masters of their own proceedings and, as such, they possess significant discretion in ruling upon requests for adjournments. Tribunals such as the Canadian Human Rights Tribunal, which exercise judicial or quasi-judicial functions, must use their discretion in keeping with the principles of natural justice (Baltruweit v. Canadian Security Intelligence Service, 2004 CHRT 14 at paras. 15-17). [9] I share the view expressed in Baltruweit and Leger v. Canadian National Railways Company , Ruling No. 1, CHRT File T527/2299, (Nov. 26, 1999), that the Tribunal should not apply the three-stage test set out in RJR-Macdonald Inc. v. Canada [1994] 1 S.C.R. 311, when dealing with adjournment requests. The RJR-Macdonald test is suited to situations where a supervisory court is asked to stay the proceedings of a lower court or tribunal, pending an appeal or judicial review application. That is not the case with regard to the present motion. [10] The Commission and the Attorney General of Canada oppose the adjournment request. They point out that the information being withheld by the Commission relates to investigative and other actions that the Commission has taken pursuant to the Canadian Human Rights Act (CHRA). They contend that given the limitations of the Tribunal’s jurisdiction to adjudicate constitutional matters, and the absence of any jurisdiction to inquire into the manner in which the Commission investigates complaints or discharges its mandate under the CHRA, the information being withheld by the Commission is not relevant to the issues of this case and is not required in order to adjudicate the complaint. The Commission also argues that this information constitutes a small amount of evidence in issue. On this latter point, I fail to see how the size or magnitude of the evidence should have any bearing on the question. [11] This is not the first time that the Commission and the Attorney General have raised the scope of the evidence as an issue. Similar objections were made at the early stages of the hearing and, after some debate, I ruled that evidence regarding the Commission’s activities relating to s. 13 of the CHRA, is admissible for the purposes of challenging the constitutionality of this provision. The question of whether any of this evidence should be considered by the Tribunal in ultimately determining the constitutional issues of this case was deferred to final argument. All the parties have proceeded through this hearing based on this understanding. It should be noted, nonetheless, that the Commission and the Attorney General have, from time to time, reaffirmed their positions that this evidence is ultimately of no relevance. On these occasions, I have reiterated that debate on this question is reserved for final argument. [12] The Tribunal has a duty to conduct its proceedings as informally and expeditiously as the requirements of natural justice and rules of procedure allow (s. 48.9(1) CHRA). In my view, it would be unfair to Mr. Lemire and a denial of natural justice to require him to close his case when there is a possibility that the s. 37 application may be determined in his favour, thereby making potentially relevant evidence available to him. This is evidence that Mr. Lemire sought to introduce in a timely manner. Section 50 of the CHRA grants him a full and ample opportunity to present evidence at the inquiry. If it turns out that the s. 37 public interest immunity applies, the evidence at issue is inadmissible. But closing the Tribunal inquiry before the Federal Court has given its answer pre-judges the question of relevance and admissibility, and renders useless any relief that Mr. Lemire may obtain from that Court. [13] Any delay in the completion of this case is regrettable. I am convinced that all parties look forward with some earnest to a pronouncement on all of the issues before the Tribunal. Mr. Lemire points out that had the Commission invoked public interest immunity under the common law, instead of making an objection under s. 37 of the CEA, the Tribunal could have addressed the disclosure questions directly. Any challenges to the Tribunal’s findings would have been dealt with through judicial review. David M. Paciocco makes this point in The Law of Evidence, Third Edition, (Toronto: Irwin Law Inc., 2002) at 222, where he notes: Prior to the amendments [brought about by the Anti-Terrorism Act, 2001, S.C., c.41, s 43], courts found that section 37 had not displaced the common law. The amendments have not changed this. What this means is that it is still open to the Crown to object to disclosure under the common law. An objection under the common law will not trigger the section 37 process. Most importantly, although the section does not provide for provincial courts to hear an objection made under section 37, this does not preclude the provincial courts, either in the course of a preliminary inquiry or a trial, from hearing a claim for immunity under the common law. In fact, such a procedure is to be encouraged. This will save the inconvenience of adjourning the matter to be heard in the superior court of the province, as is required by the section. [14] The examples given by the author in this excerpt arise in the context of the criminal law. All of the jurisprudence relied upon by Mr. Lemire in his motion, in fact, relates to criminal trials. The Attorney General argued that these authorities are therefore distinguishable on this ground alone. However, neither the Attorney General nor the Commission produced any decisions (civil or criminal in nature) to counter the findings in those cases with regard to the practice of adjourning proceedings pending s. 37 determinations. Furthermore, I fail to see why deciding whether to adjourn a proceeding pending a determination by a superior court should depend on whether the trial at first instance is criminal or civil in nature. Section 37 makes no such distinction. [15] I am therefore granting the adjournment sine die being sought by Mr. Lemire. Had any of the parties indicated that they had any other evidence to adduce, aside from that which relates to the s. 37 objection, I would have continued the hearing pending the outcome of the Federal Court application, but that is not the case. [16] The parties should take note that if the delay engendered by the s. 37 application becomes prolonged, the public interest in an expeditious inquiry may require that the Tribunal re-visit its decision to defer making a definitive finding on the relevance of the evidence sought. Case management conference calls will therefore be conducted by the Tribunal on a regular basis to follow up on the progress of the s. 37 application before the Federal Court. The Tribunal expects the parties to cooperate and act with due diligence towards the hearing of the application. Signed by Athanasios D. Hadjis Tribunal Member Ottawa, Ontario August 17, 2007 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1073/5405 Style of Cause: Richard Warman v. Marc Lemire Ruling of the Tribunal Dated: August 17, 2007 Appearances: Richard Warman, for himself Margot Blight, 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 38

CHRT

Tanzola v. Az Bus Tours Inc.

en

2007-08-22

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6998/index.do

2023-12-01

Tanzola v. Az Bus Tours Inc. Collection Canadian Human Rights Tribunal Date 2007-08-22 Neutral citation 2007 CHRT 38 File number(s) T1107/8805 Decision-maker(s) Doucet, Michel Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MAUREEN TANZOLA Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - AZ BUS TOURS INC. Respondent REASONS FOR DECISION MEMBER: Michel Doucet 2007 CHRT 38 2007/08/22 I. INTRODUCTION A. The Facts B. Legal Analysis II. CONCLUSION I. INTRODUCTION [1] On May 17, 2002, Maureen Tanzola (the complainant) filed a complaint under sections 7 and 10 of the Canadian Human Rights Act (the Act) against AZ Bus Tours Inc. (the respondent). The complainant alleges that the respondent engaged in a discriminatory practice on the ground of sex in a matter related to employment. More specifically, she alleges that the respondent treated her in an adverse differential manner as compared to her male colleagues. She further claims that there were several incidents where Mr. Ron Roffey, the respondent's Operations Manager, harassed her because she was a woman. The complainant further asserts that the respondent transferred her to its Toronto division, a three hours commute from her home, and reduced her work hours, forcing her to resign. [2] The respondent denies the complainant's allegations. A. The Facts [3] The respondent is a charter bus company. It started its operation in 1998. Originally its main purpose was to transport passengers from Toronto to the Casino Rama, in Orillia, Ontario. Subsequently, it started to operate charter services to all points in Canada and the United States. [4] The respondent has two operating divisions for its charter service to the Casino Rama. The main office is in Toronto, where the majority of the respondent's bus fleet is parked. The respondent also has a small division in Orillia. Both divisions provide the same services to the same clients going to the same destination, the Casino Rama. The charter services that goes beyond Toronto and Orillia operates exclusively out of Toronto. Mr. Terry Barnett, the General Manager of the respondent at the time, testified that the scheduling of drivers in Toronto was done by dispatch, while the scheduling of drivers in Orillia was done by the supervisor of that division with the assistance of the Toronto dispatcher. [5] The complainant's husband, Tim Tanzola, was until 1999 the supervisor of the Orillia division. He was then replaced by John Westwood. John Westwood occupied the position of supervisor until 2003, when he was dismissed by the respondent. The Orillia supervisor reported to Mr. Ron Roffey, who answered to Mr. Terry Barnett, the General Manager. Mr. Barnett testified that neither Mr. Westwood, nor Mr. Roffey, would have had any authority over the decision to terminate the employment of an employee. That decision was his. [6] The complainant worked for the respondent as a bus driver from October 1997 to November 2001. Until 2001, she worked out of Orillia. [7] The complainant testified that things started to go badly for her at work during the year of 1999. I note that this corresponds with the period when her husband resigned his position as supervisor of the Orillia division. [8] During that year, the respondent instituted a safe driving bonus which was to be awarded to drivers who had an accident-free year. The amount of this bonus was $1,000.00. The complainant testified that she did not receive the bonus because, according to the respondent, she had been involved in an accident. She further testified that several male drivers, although they had also submitted accident reports, received the bonus. She identified three drivers, Jean-Guy Desmarais, John Westwood and her husband, Tim Tanzola, all of whom had received or been offered the bonus although they had been involved in accidents. In her documents, she referred to several other drivers who had also received the bonus in similar situations, but none were called as witnesses. [9] Although, the complainant may be convinced that she should have received her safe driving bonus, she has failed to establish how the respondent's decision not to award her the bonus is a discriminatory practice under the Act. Mr. Barnett testified that this bonus was discretionary and he was adamant that the reason why the complainant did not receive it was because she had been involved in a preventable accident and nothing else. The complainant has not been able to establish that this decision was made on the basis of sex and that other female drivers, for example, had also been denied the bonus. [10] Next, the complainant testified to an incident which occurred on July 3, 2000, when a bus she was driving broke down on its way to Orillia. She called the Toronto office and spoke to the dispatcher giving him directions to where the change-off bus should be brought. Ron Roffey brought the change-off bus. When he arrived at the location where the complainant was stranded with her bus, she testified that he started yelling at her and making disparaging remarks in front of the passengers. According to her, there had been some confusion in the direction the dispatcher had given Mr. Roffey and Mr. Roffey was blaming her for this. She testified that he told her: Your directions suck in front of the passengers. She further added that his rude behaviour brought her to tears and that she had had a difficult time regaining her composure and felt humiliated. [11] A week after this incident, a letter, which stated that she had been insubordinate to a superior, was placed in her personal file. No explanation of her insubordination was given at the hearing. She testified that after this incident, she told Mr. Barnett that in the future she would deal directly with him rather than going through Mr. Roffey. [12] The complainant testified that several former employees of the respondent could support her allegations that Mr. Roffey had made derogatory remarks about women, but none were called as witnesses. She testified that she personally had never heard Mr. Roffey make these remarks. Mr. Tanzola, the complainant's husband, told the Canadian Human Rights Commission's investigator during an interview held on March 29, 2005, that he couldn't honestly say that he heard Mr. Roffey say anything derogatory towards the complainant or other women. He added that he knew that his wife had had run ins with Mr. Roffey but added that lots of drivers had run ins with Ron - male or female. He was hard nose and had a disrespectful way of treating people. (The underlining is mine.) At the hearing, Mr. Tanzola again confirmed that he had not personally been witness to Mr. Roffey making these kinds of remarks. [13] The only evidence on this point was that of John Westwood, who testified that he had overheard Mr. Roffey making remarks of this kind during a phone conversation or when he was at the respondent's head office in Toronto. He did not elaborate on when these incidents had occurred or about their frequency, but added well, I just took it with a grain of salt from the person who is saying it, because I thought it was just terrible the way he handled himself in regards to men and women, not just women, you know, and I thought it's-to me it was degrading to hear a person in that position talk about employees like that. (The underlining is mine.) [14] It is impossible to draw any definite conclusion from this very scanty evidence. The fact that Mr. Roffey may have been a difficult manager to work with and that he may have been discourteous and rude in his dealings with his employees, male or female, is not sufficient to conclude that the respondent discriminated towards the complainant or other women employees on the basis of sex. [15] The complainant was on sick leave from December 2000 to March 2001. In March 2001, having no intention to return to work for the respondent, she submitted her resignation. However, she testified that Terry Barnett told her that she could return to work whenever she felt ready. She eventually returned to work in June 2001, as a part-time driver. According to Mr. Barnett, Mr. Westwood, the Orillia supervisor, would have been responsible for her rehiring. [16] The complainant testified to another incident which occurred on July 14, 2001, when she was required, by an Inspector of the Ministry of Transportation of Ontario, to have the bus she was driving inspected. The Inspector found a problem with the rear tires and ordered the bus out of service. She said that she then called the respondent's offices to inform her employer about the situation. She spoke with Terry Barnett who told her what to do. She testified to a conversation she had later with a certain Greg Larson, who at the time was a dispatcher with the respondent. She said that he had told her that Ron Roffey had made some remarks concerning this incident. Greg Larson having not been called as a witness, his alleged comments regarding remarks made by Ron Roffey constitutes hearsay and are not admissible in this particular case. [17] The complainant also commented on another incident which occurred on July 26, 2001. On that day Mr. Roffey asked her why she had crossed without coming to a complete stop, what she described as a dead railway track on Weston Road. She replied that the tracks were no longer in service and that the bus was empty. Mr. Roffey told her that all buses are required to stop at unguarded railway crossings and told her that she should consider the conversation as a verbal warning. The complainant's husband and Mr. Westwood testified that they never stopped at that crossing. Be that as it may, I cannot draw a conclusion of discrimination from this incident. [18] She testified that in August 2001, her supervisor, John Westwood, came to her home and told her that Mr. Roffey was not happy about him rehiring the complainant. According to her testimony, he told her that he had been directed by management to terminate her employment. When she asked him why, he told her that he did not know the reason. John Westwood testified that he personally did not want to fire the complainant but being 64 years old and his wife being very ill, he felt he had no choice but to go along with management. [19] At the time of the hearing the complainant's relationship with Mr. Westwood seemed to be excellent. Their relationship did not look so harmonious in 2001. During the fall of 2001, Mr. Westwood's rapport with the complainant seemed to deteriorate fast. At the hearing, the complainant and Mr. Westwood suggested that Mr. Westwood had been forced to take an antagonistic approach towards the complainant. [20] An example of the bad relationship between the two is demonstrated by a note dated October 18, 2001. On October 16, 2001, the complainant was required to participate in a driver's training course. According to the note, Mr. Westwood was very disappointed with the complainant's behaviour during this course. He indicated that she had acted in a very unprofessional manner and that he had received numerous comments about her attitude. Mr. Westwood told the complainant that he wanted to see improvement in her behaviour. Copies of this note were sent to Mr. Barnett and to Mr. Roffey. During the hearing, Mr. Westwood tried to soften his interpretation of this event. He basically explained that the complainant's attitude during this course had more to with her sense of humour than with what he had characterised as unprofessional conduct in his notes. [21] He also alleged that the note of October 24, 2001, and other notes pertaining to the complainant, had been written by the Toronto office and had been imposed on him. He supported this allegation by stating that it was not his practice to typewrite letters; he would normally write his notes by hand. Although this might be possible, it remains that Mr. Westwood signed the notes. Also, the nature of the information contained in them is not conducive to a conclusion that Mr. Westwood had no involvement whatsoever in drafting them. In his evidence, Mr. Barnett admitted that it could be that Mr. Westwood sent some handwritten notes to Toronto so that they could be typewritten, since the Orillia division did not have the necessary secretarial support. [22] The complainant testified that on October 21, 2001, she was told by the respondent's dispatcher that Terry Barnett had told him that her employment had been terminated. She said that she then phoned her supervisor, Mr. Westwood, to see if she had been fired. According to her evidence Mr. Westwood took such a fit. He told her to get on the bus and drive. She added that he was yelling and screaming at her. This reaction of Mr. Westwood is certainly not indicative of a good working relationship between the complainant and him. [23] Two days later, Terry Barnett told the complainant that there had been a mistake in identity between her and Barbara Tanzos, a co-worker, whose employment with the respondent had just been terminated. On October 24, 2001, Mr. Westwood wrote a memo to the complainant in which he apologised for the anger he had displayed on October 21, 2001. He also wrote: Maureen, you are a good driver and have helped the Orillia Division out in an emergency many times, for which I am grateful. But, you have a problem controlling your anger, which I have witnessed, and been the recipient of many times. In his note, he also referred to other incidents in which the complainant had been involved and asked for a written response from her. [24] The complainant never responded. She explained at the hearing that she did not answer because she felt that there was really nothing to answer. They were making this up and I figured to dignify that with an answer would give them some more of my supposed bad temper on paper so that they would include it in their paper trail. [25] On November 6, 2001, Mr. Westwood wrote back: due to the lack of a response from you...I have decided to take the following action. To this note was attached a memo to Mr. Roffey, with a copy sent to Mr. Barnett. In this memo, Mr. Westwood made the following statement: For approximately two years, I have had numerous conflicts with Maureen due to her anger and resentment of management personnel. Until recently, her driving career was untarnished. After serious consideration and a continued respectful relationship between the Orillia drivers and myself, I recommend a transfer for Maureen to Weston Road [Toronto], effective November 9th, 2001. The complainant testified that because of her transfer to the Toronto division, she now had a daily commute of three hours from her residence to her new place of work. [26] Regarding the complainant's transfer to the Toronto division, during her examination of Mr. Westwood, the complainant tried to have him admit that the reason for this decision was to give Ron Roffey the opportunity to terminate her employment. Mr. Westwood's first answer was at the time they thought they can give you full time at Weston Road. When pressed by the complainant who asked him: But in your belief you don't believe that Ron Roffey was legit in saying that he was going to give me full-time hours in Toronto; it was a way to get me away from you so that he could deal with it. Is that correct?, he answered hesitantly and not very convincingly I might add: That's quite possible. At the time it did seem...if that was the intention-I think his intention was what you just said, but I didn't believe that at the time. [27] At the hearing, Mr. Westwood testified that the numerous conflicts he was referring to in this note, were those with the management in Toronto and not necessarily conflicts that he had personally with the complainant. Throughout his testimony, Mr. Westwood's recollections of the events were for the most part vague and unclear. He also seemed to be very timid in his assessment of the complainant's attitude during the time when he was supervisor of the Orillia division, to the point of being apologetic. He put the blame for this situation solely on management, by which he meant Ron Roffey and Terry Barnett. It is important though to remember that Mr. Westwood had had his own problems with the respondent; problems which led to him losing his job. He had even started a legal action for wrongful dismissal against the respondent and had eventually signed a settlement agreement with them. He certainly had what we could characterise as an axe to grind with AZ Bus Tour since he felt that it had treated him unjustly. This certainly had an effect on his appreciation of the facts. [28] Although it might be true that Mr. Westwood might have been unenthusiastic in respect of certain decisions taken by management in regards to the complainant, he nevertheless signed the memos directed to her, which memos were written, as we have seen, with uncompromising words. He did not convince me that, at the time, he did not agree with the assessment these notes made of the complainant. I believe that he agreed that the complainant had an anger problem and that she was being resentful of management. He did testify that when he took over the role of supervisor of the Orillia division from Tim Tanzola this made things a bit awkward for the complainant. He added that at that particular time she was hoping that Tim would stay as supervisor and that she was hurt with her husband resigning from that position. He again stated that her relationship with Mr. Westwood, at the time, was rather awkward, but he testified that they eventually worked it out. It is possible that they have now worked things out, but that did not seem to be the case in 2001. [29] The complainant made reference to a memo written by Mr. Westwood which was circulated to the Orillia division drivers on November 2, 2001, regarding part time drivers going on rotating shifts. She testified that when her husband was the supervisor of the Orillia division there was never any rotating shift. She added that during that time [w]e worked out our specific shifts according to kind of mutual wants and likes and dislikes. Some liked to work afternoons, some liked to work days, and, as I stated, my husband and I split shifts, one worked days, one worked nights. She testified that John Westwood was well aware that by implementing this rotation, he was forcing her out of work. She explained they knew with my husband working days that I had to work nights or with him working nights I had to work days and if they rotated these shifts I wouldn't be able to any longer be employed at that company. Although, it is possible that this new organisation of the work rotation caused the complainant and her husband some inconvenience, I fail to see how it relates to the allegations of discrimination on the basis of sex. It is true that, as she testified, while her husband was supervisor, they had been able to establish a work routine which satisfied their family needs and that the changes which were being introduced jeopardised this but she has not convinced me that these changes were made solely for the purpose of discriminating against her. [30] The complainant's employment with the respondent ended on November 9, 2001. B. Legal Analysis [31] The present procedure is not a wrongful dismissal action. What I am concerned with is the allegation by the complainant that she was discriminated against on the ground of sex in a matter related to employment. I must answer that question by inquiring whether or not the respondent treated the complainant in an adverse differential manner as compared to her male colleagues or whether she has been harassed because of her sex. [32] It is clear that the complainant felt a lot of frustration during her employment with the respondent, at least from 1999 to November 9, 2001. It is also clear that she is convinced that she was treated unjustly by the respondent. But this is not sufficient to support the allegations that she is making that she has been discriminated against on the ground of sex contrary to sections 7 and 10 of the Act. [33] Section 7 makes it a discriminatory practice to refuse to employ, or to continue to employ, an individual, on a prohibited ground of discrimination. Sex is included amongst the prohibited grounds of discrimination enumerated in section 3 of the Act. Section 10 makes it a discriminatory practice for an employer to establish or pursue a policy that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination. In contrast to complaints under section 7 of the Act, which relate to employer actions affecting specific, named individuals, section 10 of the Act addresses the discriminatory effect that employer policies or practices may have on an individual or a class of individuals. There is no evidence that would allow me to conclude that the respondent violated section 10 of the Act. [34] As regards to the section 7 complaint, the complainant alleges that in the course of her employment, the respondent engaged in a discriminatory practice, within the meaning of that section, by directly or indirectly differentiating adversely in relation to her, on a prohibited ground of discrimination, namely sex. [35] To be successful, complainants in human rights cases must first establish a prima facie case of discrimination. A prima facie case is one that covers 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. Simpson's Sears, [1985] 2 S.C.R. 536, at para. 28.) [36] The complainant has not met this burden. It was never established that the respondent engaged in any form of discriminatory practice towards the complainant during the course of her employment. The evidence failed to establish that there existed at the respondent's place of business an inequality stemming from employment policies and practices and that the complainant herself had been discriminated upon on the basis of sex. [37] Nothing in the evidence establishes that the respondent's policies and practices stereotyped or prejudiced against female drivers. On the contrary, the evidence showed that both male and female employees were required to meet the same requirements and qualifications. The evidence did not establish that male drivers were treated more favourably than female drivers. The policies and practices of the respondent did not create any barriers for female employees to obtain and maintain the standard of work that male employers performed. [38] The complainant's allegations do not establish a link between the way she claims that she was treated and the fact that she was a woman. In order to proceed to further analysis, I would have to be satisfied that the complainant had met her first hurdle and that she had established a prima facie case of discrimination. The complainant has not met this burden. [39] The purpose of the Act is not to punish what a complainant might feel is wrongdoing on the part of his or her employer, but to prevent discrimination. There is no evidence of discrimination in this case. II. CONCLUSION [40] The complaint is therefore dismissed. Signed by Michel Doucet OTTAWA, Ontario August 22, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1107/8805 STYLE OF CAUSE: Maureen Tanzola v. AZ Bus Tours Inc. DATE AND PLACE OF HEARING: March 5 to 7, 2007 and May 3, 2007 Barrie, Ontario DECISION OF THE TRIBUNAL DATED: August 22, 2007 APPEARANCES: Maureen Tanzola For herself (No one appearing) For the Canadian Human Rights Commission Natalia Chang For the Respondent

2007 CHRT 4

CHRT

Brooks v. Canada (Fisheries and Oceans)

en

2007-02-15

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6501/index.do

2023-12-01

Brooks v. Canada (Fisheries and Oceans) Collection Canadian Human Rights Tribunal Date 2007-02-15 Neutral citation 2007 CHRT 4 File number(s) T838/8803 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CECIL BROOKS Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - DEPARTMENT OF FISHERIES AND OCEANS Respondent RULING 2007 CHRT 4 2007/02/15 MEMBER: Athanasios D. Hadjis [1] The Respondent has made a motion requesting an adjournment of the re-hearing into a portion of the complaint. [2] On December 3, 2004, the Tribunal that originally heard the evidence regarding the complaint in this case issued a decision finding that the allegations of racial discrimination in the Respondent's job competition process were substantiated (Brooks v. Department of Fisheries and Oceans, 2004 CHRT 36). The Respondent filed an application for judicial review by the Federal Court of the Tribunal's decision. [3] The Tribunal also concluded in its decision that the Complainant would not have obtained an indeterminate position, even if the competition had been properly conducted. The impact of this finding was that the Complainant was denied his claim for instatement in the position he had applied for and any resulting lost wages. Consequently, the Complainant also applied for judicial review of the Tribunal's decision, but solely with regard to this particular finding. [4] On October 18, 2006, Justice Michael A. Kelen rendered his judgment dismissing the Respondent's application for judicial review but allowing the Complainant's (Canada (Attorney General) v. Brooks, 2006 FC 1244). The Court held that the Tribunal had applied the wrong legal test in finding that the Complainant would not have obtained a permanent position in the absence of discrimination. The Court, therefore, set aside this finding and referred the matter back to the Tribunal for re-determination by a differently constituted panel, based on the record already before the Tribunal. The Court also directed that the parties be given the opportunity to make representations to the Tribunal on the issue. Accordingly, the Tribunal recently informed the parties that a date (probably in the months of April or May 2007), will be selected for this re-hearing, which is not expected to last for more than one day. [5] On November 17, 2006, the Respondent appealed the Federal Court's judgment to the Federal Court of Appeal. The Respondent has now made a motion to the Tribunal requesting that the re-hearing be adjourned pending the disposition of the appeal by the Federal Court of Appeal. [6] According to Section 48.9(1) of the Canadian Human Rights Act, proceedings before the Tribunal are to be conducted as informally and, of particular relevance to this motion, as expeditiously as the requirements of natural justice and the rules of procedure allow. However, as master of its own procedure, the Tribunal may, nonetheless, adjourn its proceedings where appropriate in its discretion (See Léger v. Canadian National Railways [1999] C.H.R.D. No. 6 (CHRT), at para. 4; Baltruweit v. Canadian Security Intelligence Service, 2004 CHRT 14 at para. 15). The Tribunal must exercise this discretion having regard to principles of natural justice (Baltruweit, at para. 17). Some examples of natural justice concerns to which the Tribunal could respond would include the unavailability of evidence, the need to adjourn to obtain counsel, or late disclosure by an opposite party. [7] The Respondent has not persuaded me that any natural justice concerns of this sort are present in this case. [8] The Respondent has raised the possibility that the Federal Court of Appeal may overturn the decisions of the Federal Court and the Tribunal, in whole or in part, with the possible result that there will be a finding that discrimination never took place. If, in the meantime, the Tribunal has re-heard the matter sent back for re-determination by the Federal Court, any resulting decisions would be rendered null and void. The time and effort expended by the parties in this process will have been for naught, particularly if, as the Respondent suggests in its written submissions, the assumption should be that the Tribunal will arrive at the same conclusion [after the re-hearing] as it did earlier. This situation, it is argued, would bring the administration of justice into serious disrepute. [9] But why should any such assumptions be made? It is equally possible that the differently constituted Tribunal panel will arrive at another conclusion than the previous panel and that the Federal Court of Appeal will uphold the decision of Federal Court, in which case, if the present adjournment is granted, the re-hearing process will have been postponed unnecessarily for months or perhaps years. The process will have to start up again at that point and the ultimate resolution of the complaint will be even further delayed. This would hardly constitute an expeditious conduct of Tribunal proceedings. [10] There is no way to predict what the final outcome of the proceedings in this case will be. However, in order for the Respondent to obtain an adjournment, it must establish that allowing the proceedings to follow their normal course, which includes following through with Justice Kelen's order for a re-hearing, will result in a denial to the Respondent of natural justice. The Respondent has failed to establish that any such prejudice would necessarily come to it. [11] The Respondent's motion is therefore dismissed. Signed by Athanasios D. Hadjis OTTAWA, Ontario February 15, 2007 PARTIES OF RECORD TRIBUNAL FILE: T838/8803 STYLE OF CAUSE: Cecil Brooks v. Department of Fisheries and Oceans RULING OF THE TRIBUNAL DATED: February 15, 2007 APPEARANCES: Davies Bagambiire Stephen Flaherty For the Complainant No one appearing For the Canadian Human Rights Commission Scott McCrossin Melissa Cameron For the Respondent

2007 CHRT 40

CHRT

Graham v. Canada Post Corporation

en

2007-10-02

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7179/index.do

2023-12-01

Graham v. Canada Post Corporation Collection Canadian Human Rights Tribunal Date 2007-10-02 Neutral citation 2007 CHRT 40 File number(s) T1093/7405 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE SANDRA GRAHAM Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADA POST CORPORATION Respondent DECISION 2007 CHRT 40 2007/10/02 MEMBER: J. Grant Sinclair I. BACKGROUND II. MS. GRAHAM'S ALLEGATIONS OF DISCRIMINATION III. DECISION IV. FACTS (i) The Appendix AA Project (ii) Ms. Graham and the Appendix AA Project - June 4, 2001-February 2002 (iii) Ms. Graham and phase 2 of the Appendix AA Project - February 2002-May 21 2002 (iv) Ms. Graham's absence from work and Sylvester/Graham communications - June 2002 (v) Sylvester/Graham communications - July 2002 (vi) Sylvester/Graham communications - August 2002 (vii) Ms. Graham's attempts to resolve her employment situation - October 2002-January 2003 V. REASONS FOR DECISION (i) Has Ms. Graham established a prima facie case of discrimination? (ii) Did Ms. Graham have a disability at the relevant time? (iii) Ms. Graham's allegations of discrimination a) Failure to accommodate her disability b) Adverse differential treatment c) Causing her temporary disability d) Terminating her acting superintendent position VI. CONCLUSION 21 I. BACKGROUND [1] Sandra Graham, the complainant in this matter, has worked for Canada Post Corporation (CPC) since 1977 and has worked in various positions at the Winnipeg Mail Processing Plant (WMPP). On June 4, 2001, she assumed the position of superintendent in the Urban Transportation Services Unit (UTS) on an acting basis. Her substantive position at that time was supervisor in UTS. Ms. Graham did so in order that the superintendent, Dave Smook could temporarily leave his position to represent management in a joint initiative of CPC/CUPW known as the Appendix AA project. [2] When Ms. Graham took over as acting superintendent, WMPP was about to launch the Appendix `AA' project, which involved significant changes to CPC's parcel pickup/delivery service. As acting superintendent in UTS, she had a very large responsibility for the implementation of the project. [3] On May 21, 2002, Ms. Graham did not go to work, and remained absent until November 2005, when she returned to full time work. She claimed that she was totally committed to the project and was determined to see it successfully completed. But she said, the stress, the long hours and lack of management support caused her to burn out. She became ill and could no longer work. [4] On September 12, 2003, during the time she was off work, Ms. Graham filed a complaint with the Canadian Human Rights Commission. Her complaint followed some months after she had asked a co-worker at CPC to intercede on her behalf with senior CPC management to try and resolve the difficulties she was having with her manager because of her absence. II. MS. GRAHAM'S ALLEGATIONS OF DISCRIMINATION [5] In her complaint, Ms. Graham alleged that: CPC had discriminated against her by failing to accommodate her temporary disability; CPC treated her in an adverse differential manner by failing to accommodate her disability; both contrary to s. 7 of the Canadian Human Rights Act (CHRA). CPC terminated her status as acting superintendent because of her disability, but she did not specify which sections of the CHRA were contravened; and in her Statement of Particulars filed for the Tribunal hearing, Ms. Graham added another allegation, namely, that her disability and her inability to work was caused by CPC's inability to provide sufficient staff and support for her to carry on her duties. [6] As a preliminary question, the Tribunal has also addressed whether there was evidence before the Tribunal upon which it could reasonably conclude that Ms. Graham had a disability at the relevant time. [7] Ms. Graham would not produce any medical documentation outlining the nature of her disability as part of her pre-hearing disclosure obligations and chose not to present such medical evidence at the hearing. Throughout, she has taken the position that this information was confidential and should not be given to CPC. It was left to the Tribunal, in the absence of such evidence, to determine whether Ms. Graham had an illness that prevented her from working during the relevant period and whether this illness constituted a disability under the CHRA. [8] Ms. Graham's final argument was very wide-ranging and was marked by a lack of precision and focus in identifying both what she considered to be CPC's discriminatory practices and the supporting evidence. Her final argument was of little or no assistance to the Tribunal in terms of drafting a decision in response to her complaint. Accordingly, the Tribunal's decision has addressed the four allegations of discrimination set out in her complaint and Statement of Particulars. III. DECISION [9] For the reasons that follow, I have concluded that there was sufficient evidence to conclude that Ms. Graham suffered from a disability during the period in which she was absent from work. [10] With respect to Ms. Graham's claim that CPC failed to accommodate her temporary disability, and that CPC treated her in adverse differential manner, and her claim that CPC did not support her with sufficient staff, thereby causing her disability, I have concluded that Ms. Graham has not established a prima facie case of discrimination. [11] As to her claim that CPC terminated her acting superintendent position because of her disability, I find that Ms. Graham has made out a prima facie case of discrimination. However, CPC was unable to discharge its duty to accommodate Ms. Graham because of her failure to facilitate the accommodation process. In the result, Ms. Graham's complaint of discrimination against CPC has not been substantiated and her complaint is dismissed. IV. FACTS (i) The Appendix AA Project [12] In May 2001, Mr. Dave Smook, the UTS superintendent, asked Ken Gordon and Ms. Graham, both UTS supervisors, if either was willing to take on the superintendent job on an acting basis while he worked as the management representative on the CPC/CUPW joint Appendix AA project. Mr. Gordon was not interested. He believed that it would involve considerably more work than he was doing as a supervisor. He had a life outside the post office. Ms. Graham thought it would be a tremendous opportunity to do so and accepted the position willingly. [13] Ms. Graham took over as acting superintendent on June 4, 2001. Prior to leaving the unit, Mr. Smook attempted to train Ms. Graham on the responsibilities of the superintendent position. But because he was focused on other more pressing issues, Ms. Graham could only observe and there was little time to practice what she had observed before Mr. Smook left. [14] Ms. Graham said that at the time she accepted the acting superintendent position, the project had not yet been implemented. Even though she did not know what all of her specific responsibilities would be, she was willing to take over the job and make the project work. She took the job knowing that it would be much more work than she was previously doing as a supervisor. Ms. Graham also accepted the acting superintendent position because she thought that it would assist her in her career goal of obtaining a superintendent position. [15] The purpose of the Appendix AA pilot project was to determine the feasibility of bringing back into UTS, the urban expedited parcels and small and medium customer pickups and eliminating that portion of the delivery service that was done by outside contractors. [16] CUPW was in favor of this change because it meant more jobs for its members at the WMPP. CPC wanted this change hoping it would bring its parcel delivery service up to industry standards and make it more competitive with other parcel delivery companies. [17] In addition to contracting-in the parcel delivery system, the Appendix AA project introduced other major changes, including moving from an item-based system to a stop-based system and introducing the dynamic workday rather than static shifts. The operation also moved from a six day to a seven day operation. [18] A dynamic workday meant that mail service couriers, i.e. the drivers who picked up and delivered the parcels, no longer worked a fixed hour shift. For example, a driver might make deliveries in the morning and not go out again until late afternoon or early evening. It did not matter how quickly a driver did their job, their day would still be maximized. Depending on the volume, a driver may work more hours on a Monday, less hours on Tuesday, etc. [19] Another change introduced by the Appendix AA project was the labeling, keying and sequencing of the parcels. This was done by computers so that the drivers would no longer sequence their routes. The sorting the parcels and loading the delivery trucks was now done postal clerks who worked in the newly created composite section. [20] The implementation of phase 1 of the Appendix AA project began in October 2001 and covered the downtown area, about half of the city of Winnipeg. The implementation of phase 1 caused a lot of stress in UTS because the project was new, the operational criteria were being developed and revised as the project moved forward. [21] Initially, there was considerable resistance from the drivers. They were upset that their workday was disconnected. Also they were unfamiliar with the new procedures. The contracting-in resulted in a major increase in volumes, which together with the normal increased pre-Christmas volumes created even more stress and unhappiness among the drivers. [22] Another reason the drivers were unhappy was because they lost a lot of control over their work. Prior to Appendix AA project, the drivers would decide the sequence of their deliveries. This was now done by a computer sequencing system and this decision process was taken away. Further, many drivers had delivered to the same businesses for years and had developed a relationship with them. Now they did not necessarily continue to deliver to these customers. [23] According to Ken Gordon and Thomas Zarzycki, both UTS supervisors, the period from October 2001 to just before the implementation of phase 2 in February 2002 was particularly stressful for both the supervisors and the drivers. [24] Because the drivers were unfamiliar with the new procedures, they would call the supervisors, which meant the supervisor spent considerable time on the phone dealing with the drivers' problems. So they could not always get their other work done within their regular hours. Supervisors also had to deal with customer calls which increased because they were unfamiliar with the new procedures and that consumed more of the supervisors' hours than previously. [25] Phase 2 of the Appendix AA project, which brought in the rest of the city, came in February 2002. Mr. Gordon and Mr. Sylvester testified that there was less pressure and stress in UTS. By that time, the drivers, the customers and the supervisors had become more knowledgeable/familiar with the new system, the Christmas volumes had passed, and the bugs in the system had been worked out. (ii) Ms. Graham and the Appendix AA Project - June 4, 2001-February 2002 [26] When Ms. Graham was promoted to the position of acting superintendent, she was determined to find a way to have the drivers enjoy their jobs, and be able to see supervisors leave after their eight-hour day and feel satisfied that the job had been well done. As acting superintendent, she was responsible for the supervisors and ensuring that they carried out their duties on a daily basis. She was not directly responsible for the drivers. That was for the supervisors. [27] At first Ms. Graham was not totally familiar with all the duties and responsibilities of the job. But gradually, she said she was becoming comfortable in the job, somewhat stressed but confident that they would succeed through phase 1. [28] But as phase 1 progressed, Ms. Graham felt under more pressure because of the compressed timeline to implement the phase and because she believed the resources were not there. Sometime after the very hectic Christmas period, she began to have the physical symptoms of the flu and she was not getting better. She had been working long hours, seven days a week and was very tired. [29] Because of the long hours that she was working, she began having trouble prioritizing her daily duties. She could not focus on one thing and even the simplest things were overwhelming to her. There were occasions when she felt she was a failure. She was not being supportive of the people for whom she was responsible. (iii) Ms. Graham and phase 2 of the Appendix AA Project - February 2002-May 21 2002 [30] Dan Sylvester took over as UTS manager of Operations in January 2002. He had been with CPC for 20 years and had previously been a manager in UTS. When he took over, phase 1 was about completed and UTS was moving to implement phase 2 in early February 2002. [31] Mr. Sylvester met with Ms. Graham on February 5, 2002 to discuss the 2002 Winnipeg Operations Business Plan, her Performance Improvement Plan and Annual Competencies Review. The Performance Plan deals with detailed objectives specific to areas requiring improvement and performance objectives including personal development objectives. The Annual Competencies Review is designed to identify training needs with respect to specified competencies. [32] Ms. Graham testified that at this meeting, she told Mr. Sylvester that she was overworked and stressed and was feeling sick. Mr. Sylvester did not recall that Ms. Graham, at that meeting, had raised any concerns about being overworked or being sick. She also testified that at this meeting, she persisted in her belief that phase 2 required more supervisory hours. [33] On February 28, 2002, Ms. Graham wrote to Mr. Sylvester and asked to return to her substantive position as a UTS supervisor. She said that as the acting superintendent, she had given her all and done what she could to make the project a success. But she was insulted by the rating given in her 2001 performance appraisal, that CPC did not consider her best to be good enough. She felt that CPC's expectations were unrealistic given the current staffing for the implementation of the Appendix AA project. [34] Mr. Sylvester agreed that she could do so and he would post the position for acting superintendent assignment on the CPC Career Network. But Ms. Graham felt that it would take at least one to two months to get a replacement and that person would likely be someone who would not be familiar with the UTS operation. She was concerned that it would have a negative effect on the Appendix AA project to have someone new come in at this stage. She wanted to persevere, even though she was burned out. She was focused on the success of the project and she cared about UTS. So two days later, Ms. Graham called Mr. Sylvester and told him that she would stay as acting superintendent. [35] Mr. Sylvester said that one of the things that he had discussed with Ms. Graham was delegation of some of her duties to her supervisors, which as superintendent, she could do. But all that Ms. Graham requested was to return to her previous supervisor position and never asked to be otherwise accommodated. [36] In March 2002, Ms. Graham gave a powerpoint presentation at a meeting of UTS supervisors and management. One of her proposals was that more supervisors should be added to UTS. Mr. Sylvester recalled Ms. Graham's powerpoint presentation in which she asked for more supervisory resources. He discussed her proposal with his director, Fred Pollard, who questioned the need for more supervisors and concluded that no more supervisors should be added. [37] Prior to January 2002, there was one superintendent and four supervisors in the UTS unit. It appears from the documentary evidence that by February 2002, the number of supervisors in UTS had increased to six. They were: T. Zarzycki, L. Macario, K. Gordon, B. Friesen, N. MacLean and P. Hamel. [38] Mr. Sylvester again met with Ms. Graham on April 26, 2002. As a manager, Mr. Sylvester would meet with those he supervised every quarter. He did this so he could spend some time on one on one coaching and it allowed him to share successes with the employees. [39] Mr. Sylvester knew that Ms. Graham was working long days but he didn't track her hours. He provided a lot of flexibility and as superintendent, she could basically set her own work hours. Mr. Sylvester testified that at that meeting, Ms. Graham did not indicate that she was sick nor ask for any accommodation. (iv) Ms. Graham's absence from work and Sylvester/Graham communications - June 2002 [40] On May 21, 2002, Ms. Graham went off sick. Diana Quilty, a very good friend of Ms. Graham, who also worked at the WMPP, testified that Ms. Graham was very committed to the Appendix AA project and wanted to make sure that it succeeded. After phase 2 came in, Ms. Quilty noticed that Ms. Graham was becoming increasingly stressed and on edge. She tried to convince Ms. Graham to take some time off but Ms. Graham continued to go to work on a regular basis. [41] On that day, Ms. Graham called Ms. Quilty and asked her to come to her home because she was very sick and needed help. She found her lying on the floor and could not get up. She could not go to work. [42] Mr. Sylvester learned of Ms. Graham's absence from work when Mr. Tom Zarzycki called him and told him that Ms. Graham was not in, she hadn't been in the last couple of days and asked if Mr. Sylvester had heard from her. Mr. Sylvester said he hadn't and would try to track her down because it was unlike Ms. Graham not to contact anyone at UTS that she would be absent from work. [43] He tried to contact Ms. Graham on her cell phone, with no success. So he sent her an e-mail and asked her to call him. He was concerned about her and he wanted to know how she was, not only as an employer but also he said, as a friend. Shortly after that, Mr. Sylvester did get a voice mail message from Ms. Graham that she wasn't feeling well and she would be off the remainder of the week and the next week. [44] When Mr. Sylvester learned that Ms. Graham would be off the rest of the week and the next week, he was concerned that maybe there was something major wrong. He presumed she would be seeing her doctor. He followed up with a letter dated May 27, 2002 to Ms. Graham, in which he indicated that he had information that she would be off work for a while. He enclosed an Occupational Fitness Assessment form (OFA) and asked to have her doctor complete and return it by June 3, 2002. The purpose for sending the OFA form was so that he could understand Ms. Graham's work restrictions and limitations and provide an accommodation if necessary. [45] Ms. Graham arranged an appointment with her doctor, Dr. Ibbitt, who did a number of tests. The test results showed that there was nothing physically wrong with Ms. Graham and Dr. Ibbitt concluded that she would do fine with rest and that her symptoms would be alleviated. [46] Dr. Ibbitt completed the OFA dated May 30, 2002, which did not provide any details of Ms. Graham's illness or set out any work limitations/restrictions. He did indicate that Ms. Graham could return to work in seven days. The OFA was received by CPC's Occupational and Health Services (OHS) on June 3, 2002. [47] Mr. Sylvester expected Ms. Graham to return to work on June 6, 2002. When she did not, he wrote to her on June 6, pointing out that her doctor had indicated she would be off for seven days. He had no details of her absence or any leave that she was requesting. He also indicated that he had tried numerous times to contact her by phone and e-mail but she failed to contact him directly. Letters sent by Xpresspost was the only way he could communicate with her and ensure that she received the letters. [48] In this letter he also told Ms. Graham that he was moving her out of the acting superintendent position and reassigning her to the relief supervisor position until the next job bid or her return to her previous supervisor position. He did this, he said, because it was in the best interest of her illness and the Appendix AA project. She was replaced by Tom Zarzycki in June 2002. [49] Ms. Graham testified that she left a message on the UTS voice mail that she would be reassessed by Dr. Ibbitt on June 6, 2002. She also testified that whenever there was a change in her status, she would leave voice mail messages for Mr. Sylvester at his office or on the UTS voice mail. There were various reasons why she would not contact him personally. Her sleeping patterns were disrupted. Her ability to act rationally was out of kilter. She was not confident in speaking with him personally because she did not feel that he would be supportive. [50] When an employee is absent from work, CPC's policy is that the employee should call their supervisor or if not available, someone else and tell them when they expect to come back to work. When they return, they usually provide a medical note if it was more than a short absence. If the length of the absence is not known, the OHS would ask for an OFA to be completed by their doctor which provides some indication of the nature of the illness or injury, the estimated return to work date, whether there are any work limitations and whether there is a need for accommodation. This is given to the OHS. [51] When Ms. Graham was reassessed on June 6, 2002 by Dr. Ibbitt, he completed a medical absence certificate saying that Ms. Graham had been under his care from June 6, 2002, she was off for medical reasons and she would be able to return to work on June 10, 2002. Ms. Graham said that she either sent this certificate to Mr. Sylvester directly or to the OHS. [52] When he wrote the June 6 letter, Mr. Sylvester had not yet received the medical certificate from Dr. Ibbitt indicating that Ms. Graham would be off until June 10. Ms. Graham agreed that as of June 6, 2002, had she been in Mr. Sylvester's position with the information he had, she would have considered an employee away without leave (AWOL) at that point in time. But when he received Dr. Ibbitt's medical certificate, he would have had the proper documentation to indicate that her leave had been extended to June 10. And she said that she did leave a voice mail at the numbers Mr. Sylvester provided in his letter and on the UTS voice mail as to her current status. [53] Ms. Graham was not able to return to work on June 10. She wrote to Mr. Sylvester requesting annual leave because she had medical appointments and they could not be postponed. Mr. Sylvester replied on June 11 and confirmed her leave status to be - sick leave up to and including June 7, 2002, and - annual leave from June 10-14. He wrote again to Ms. Graham on June 13 requesting that she report to work at 7:00 p.m. on June 16, as the UTS Night Supervisor. [54] Mr. Sylvester followed this up with a letter dated June 17, 2002, indicating that he had received her voice mail message the previous evening that she would be scheduling a medical appointment and would be off for the rest of the week. He requested that her doctor complete and return another OFA by June 19 so that he could understand her work restrictions/limitations. He also asked her to advise her doctor that CPC can provide modified/alternative duties. [55] Ms. Graham was seen and treated at the St. Boniface General Hospital Emergency Department on June 19, 2002. The attending doctor gave her medical note saying that she would need two to four weeks off due to illness. The two to four weeks was the estimated time that it would take to get an appointment with a specialist. [56] On June 21, Mr. Sylvester wrote to Ms. Graham saying that he had received the doctor's certificate from St. Boniface Hospital saying that she would be off work for two to four weeks due to illness. Again he asked that she submit the OFA which he sent on June 17 and return it by June 24. He reiterated that the OFA was necessary to understand her work restrictions and limitations and also she should tell her doctor that CPC has modified/alternative duties. [57] At this point, Ms. Graham had not returned to work. And Mr. Sylvester still did not know the nature of her illness or whether she required modified/alternative duties. He said that Ms. Graham was communicating with him but only by voice mail and at odd hours such as 2:00 a.m. or 3:00 a.m. Although in his letters Mr. Sylvester gave Ms. Graham three numbers at which she could call him, she never did. (v) Sylvester/Graham communications - July 2002 [58] Ms. Graham did not return the OFA Mr. Sylvester had requested on June 17. His next letter to Ms. Graham was on July 3, 2002. He requested that her doctor now complete the OFA by July 5. As a reminder, he asked her to advise her doctor that CPC has modified/alternative duties. But if he did not receive the OFA by July 5, he would have no choice but to put her on AWOL status. [59] On July 10, 2002, Mr. Sylvester wrote to Ms. Graham enclosing her mid year review. Mr. Sylvester said that normally he would meet personally with her to discuss the review. But because Ms. Graham was off, he couldn't do this. He did tell her that when she returned to work, he would gladly meet with her to discuss her appraisal. [60] Mr. Sylvester persisted in his letter writing and on July 19, 2002, wrote to Ms. Graham that the note received by him from the St. Boniface Hospital indicated that she would be off two to four weeks. Therefore she should have reported for work on July 18/19. Because she did not report to work on those days, nor call in to report her absence, he would put her on AWOL status and without pay for those two days. [61] Ms. Graham's response was that Mr. Sylvester was already aware of her situation through her voice mails. In fact, in his July 23, 2002 letter to Ms. Graham, Mr. Sylvester acknowledged that Ms. Graham had left him two voice mail messages, one at 11:46 p.m. and at 2:20 a.m. that she had an appointment with a specialist on July 25, and that she would have the OFA completed at that time. [62] He apologized in his letter that Ms. Graham felt inconvenienced and harassed by his requests for information, but he had no alternative but to proceed in this way by sending her letters by Xpresspost. He asked that she provide the OFA by July 25. And in the meantime, she would remain on AWOL status without pay from July 18. [63] In July 2002, in the course of her medical treatment, Ms. Graham had consulted with Shannon McGunigal, a therapist/social worker at St. Boniface Hospital and asked her to provide a note concerning her condition. Ms. McGunigal wrote a note dated July 30, 2002, stating that Ms. Graham was being seen for psychiatric care at the St. Boniface Hospital outpatient clinic and could not return to work at this time. She had a scheduled appointment with Dr. Calhoun on August 12, who would provide CPC with the appropriate documentation and assessment following the appointment. [64] Ms. Graham realized that CPC might not accept this because Ms. McGunigal was not a doctor. But she felt she had to submit something before her next appointment or she might lose her job. She asked Ms. Quilty to take this note to Neil Spiring, a CPC employee, and the divisional Vice-President of APOC, whom she knew well and trusted. Ms. Graham was very concerned to keep confidential any information relating to her medical condition and expected that Mr. Spiring would call Mr. Sylvester, and tell him that Ms. Graham had an upcoming appointment and not to put Ms. Graham on AWOL status. Mr. Spiring did speak to Mr. Sylvester and also faxed Ms. McGunigal's note to Mr. Sylvester at the UTS office on August 2. Ms. Graham was very upset about this especially because the fax machine in the UTS office was generally accessible. [65] Ms. Quilty had also spoken to Mr. Sylvester and told him that she was a good friend of Ms. Graham and that she was taking care of Ms. Graham. She also asked Mr. Sylvester to stop sending the letters because they were having a detrimental effect. She told Mr. Sylvester that Ms. Graham needed time to get better and needed time away from work. She said that Mr. Sylvester's response was that this had nothing to do with her. He wanted to talk to Ms. Graham personally. [66] Mr. Sylvester testified that he had discussions with Dave Smook, APOC President, and with Neil Spiring as to the process that he was following with Ms. Graham. He said that their view was that there was nothing else he could do. (vi) Sylvester/Graham communications - August 2002 [67] The day before, on August 1, Mr. Sylvester had written to Ms. Graham telling her that he had not received any further written medical information and she would remain on AWOL status without pay. He asked her to provide medical information by August 2 or he would expect her at work on this date. If she did neither, he would have no alternative but to continue to take the necessary disciplinary action up to and including discharge from CPC. [68] When Mr. Sylvester received the note on August 2 from Ms. NcGunigal, he asked OHS to confirm whether this was sufficient medical information. OHS said no because it was not from a medical practitioner. OHS decided that Mr. Sylvester should write to Ms. Graham and ask her doctor to complete an AMI (Acquisition of Medical Information). He did so on August 8, 2002 and asked her to have her doctor return the AMI by August 26. [69] OHS also wrote to Dr. Laura Calhoun on August 8, requesting that she complete the AMI for Ms. Graham so that OHS could assess her functional abilities. Dr. Calhoun was the specialist at St. Boniface Hospital with whom Ms. Graham had an appointment on August 12. In their letter, OHS specifically noted that suitable modified duties could be made available for Ms. Graham if such accommodation was necessary. [70] On August 12, 2002, Dr. Calhoun wrote to Mr. Sylvester that Ms. Graham had been off sick from June 18 for medical reasons and advised him that a detailed medical report would follow. In fact, Dr. Calhoun did complete the AMI and a detailed medical report on August 12 and it was received by OHS on August 15. [71] On August 22, 2002, Dr. Lori Koz from OHS sent a field report to Mr. Sylvester regarding Ms. Graham. The field report set out Ms. Graham's fitness for work but did not reveal her medical condition as is the normal practice of OHS. The field report was based on the medical assessment from Dr. Calhoun and indicated that Ms. Graham was temporarily unfit for work and her potential return to work date was approximately six months. [72] After he received the field report, Mr. Sylvester stopped all his communications with Ms. Graham. He did so on the basis of the field report from OHS. Ms. Graham's AWOL status without pay was changed to reflect Dr. Calhoun's assessment in her August 12, 2002 letter that Ms. Graham was off work since June 18 because of medical reasons. (vii) Ms. Graham's attempts to resolve her employment situation - October 2002-January 2003 [73] On October 31, 2002, Ms. Graham wrote a letter to whom it may concern that Ron Kohut, one of her sources of support and a good friend with whom she shared a common work history at CPC, had offered to act on her behalf. Mr. Kohut was a supervisor in Depot B, Letter Carrier Depot. [74] He wrote a letter on October 22, 2002 to Mary Traversy, Vice-President, Human Resources for CPC. He outlined in detail Ms. Graham's work background at CPC, her difficult medical circumstances and how she felt about how she was treated by Mr. Sylvester in his attempt to communicate with her, which in her view, caused her even more distress. He requested Ms. Traversy's intervention to help resolve the situation whereby Ms. Graham would receive what she was entitled to. [75] Ms. Traversy replied on November 28, 2002 to Ms. Graham, and said that she had asked Roy Nias, General Manager, Mail Operations, Prairie Region, to review this matter. Ms. Traversy replied to Ms. Graham on January 21, 2003. In her letter, she referred to the Attendance Management Program and specifically Ms. Graham's concerns about the number of letters Mr. Sylvester had sent her requesting information on her condition. She pointed out that although the number of Mr. Sylvester's letters was somewhat excessive, her absence had been handled within the guidelines of that Program. [76] As to Mr. Sylvester returning Ms. Graham to her substantive position and ending the acting superintendent job, Ms. Traversy said that was done in accordance with current CPC policy, and also to ensure continuity in the CPC operations. V. REASONS FOR DECISION (i) Has Ms. Graham established a prima facie case of discrimination? [77] In a human rights case before this Tribunal, the complainant must first establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if believed, i.e. credible, is complete and sufficient for a decision in the favour of the complainant, in the absence of a reasonable answer from the respondent. The respondent's answer should not figure in the determination of whether the complainant has made a prima facie case of discrimination. (See Ontario (Human Rights Commission and O'Malley v. Simpson Sears Ltd., [1985] 2 S.C.R 536; and Lincoln v. Bay Ferries Ltd., 2004 FCA 2004; Dhanjal v. Air Canada, (1997) 139 F.T.R. 37 at para. 6). [78] As noted earlier, Ms. Graham's allegation of discrimination against CPC are: that CPC failed to accommodate her temporary disability; that CPC treated her in adverse differential manner by failing to accommodate her temporary disability; that CPC terminated her status as acting superintendent because of her disability; and that CPC caused her disability and her inability to work by its failure to provide sufficient staff and support for her to carry on her duties. (ii) Did Ms. Graham have a disability at the relevant time? [79] An allegation of discrimination under the CHRA, must be based on a prohibited ground of discrimination. Thus it must be determined whether there was prima facie evidence that Ms. Graham suffered from a disability during her absence from work commencing on May 21, 2002. [80] The pertinent evidence includes: Ms. Quilty's evidence was that on May 21, 2002, Ms. Graham called her to come to her home because she was very sick and needed help. Mr. Sylvester's statement was that it was unlike Ms. Graham not to contact anyone at the UTS that she would be absent from work. Ms. Graham's voice mail message to Mr. Sylvester was that she was sick and would be off work for one to two weeks. Dr. Ibbitt's May 30, 2002 OFA form that she had been ill since May 21 and could only return to work on June 6. Dr. Ibbitt's June 6, 2002 medical absentee certificate that, for medical reasons, Ms. Graham could not return to work until June 10. St. Boniface Hospital staff member's June 19, 2002 note indicating that Ms. Graham had been seen and treated at the St. Boniface General Hospital Emergency Department and would be off work for two to four weeks due to illness. Ms. McGunigal's July 30, 2002 note indicating that Ms. Graham was referred to the St. Boniface Hospital outpatient clinic for psychiatric care and could not return to work at this time. Dr. Calhoun's August 12, 2002 letter to Mr. Sylvester advising that Ms. Graham has been off work since June 18 for medical reasons. The August 22, 2002 OHS Field Report indicating that Ms. Graham was temporarily unfit for work, and that she would not be returning to work for approximately six months. [81] Disability in the legal sense consists of a physical or mental impairment, which results in a functional limitation or is associated with a perception of impairment. A chronic or debilitating condition that periodically causes an individual to become significantly incapacitated and interferes with their ability to do their job, is a disability within the meaning of the CHRA (see Desormeaux v. Ottawa, 2005 FCA, 111, paras. 13, 15). [82] This evidence strongly supports the conclusion that Ms. Graham had a medically-based inability to participate in the workplace. I find that prima facie, she suffered from a disability during her absence starting in May 2002. (iii) Ms. Graham's allegations of discrimination a) Failure to accommodate her disability [83] As to Ms. Graham's complaint that CPC discriminated against her by failing to accommodate her disability, I cannot emphasize enough that failure to accommodate is neither a prohibited ground of discrimination nor a discriminatory practice under the CHRA. There is no free-standing right to accommodation under the CHRA. [84] The duty to accommodate only arises in the context of s. 15(2) of the CHRA and only when a respondent raises a bona fide justification by way of defense to an allegation of discrimination. For Ms. Graham to show a prima facie case, she must rely on something other than the failure of CPC to accommodate her. b) Adverse differential treatment [85] With respect to her claim that CPC treated her in an adverse differential manner because of her disability, Ms. Graham did not point to any evidence that showed adverse differential treatment. It is not for the Tribunal to sift through the evidence to make this case for her. [86] For these two claims, Ms. Graham has not established a prima facie case of discrimination. c) Causing her temporary disability [87] Ms. Graham alleged that, while she was still carrying out her duties in the acting assignment, CPC failed to provide her with sufficient staffing resources to implement the Appendix AA project. The resulting stress of managing an understaffed project caused her to be temporarily disabled. [88] It is not clear whether the CHRA makes it discriminatory for an employer to cause an employee to become disabled. Putting that question aside, however, Ms. Graham's allegation assumes that she was disabled prior to going absent from work. Unfortunately, she did not present any evidence suggesting that prior to going on sick leave, she had a disability within the meaning of the CHRA. Or if she did, CPC's failure to accede to her request was the cause of her temporary disability. Accordingly, her allegation that CPC caused her to become disabled must fail. d) Terminating her acting superintendent position [89] Finally, there is the question of whether CPC's termination of her acting assignment contravened s. 7(a) of the CHRA, in that it amounted to a refusal to continue to employ. While the termination of her acting position did not sever the employment relationships, it constituted a loss of a temporary position and her reversion to a pre-existing and less advantageous position. [90] The loss of this acting assignment was linked directly or indirectly to her disability. CPC's decision to terminate her acting position was based on her absenteeism, which in turn was caused by her disability. Thus, she has established a prima facie case of discrimination. [91] The obligation then rests on the CPC to demonstrate that it accommodated Ms. Graham to the point of undue hardship. In the accommodation analysis, there is also a duty on the complainant. The Supreme Court of Canada stated in Central Okanagan School District No. 23 v. Renaud, [1992] 2. S.C.R. 970 at pp. 16-17, stated that the search for accommodation is a multi-party inquiry. Along with the employer, the complainant must assist in securing an appropriate accommodation. That is, to facilitate the search for an accommodation, the complainant must do his or her part as well. And in determining whether the duty of accommodation has been fulfilled the conduct of the complainant must be considered. [92] In this case, Mr. Sylvester, in his letters to Ms. Graham, repeatedly asked her if she had any work limitations/restrictions and pointed out that CPC provided alternative or modified duties for employees who can not perform their regular duties. He also asked her to advise her doctor, when completing the OFA, of CPC's policy of accommodation. [93] Ms. Graham did not do her part. Although she did leave voice mail messages from time to time indicating her status and she did provide medical assessments, neither she or her doctor responded to Mr. Sylvester's request for information as to her work limitations or restrictions. It was only on August 25, 2002 when OHS received Dr. Calhoun's AMI that CPC learned that Ms. Graham was temporarily unfit for work and her potential return was approximately six months. [94] It was not possible in these circumstances, given this lack of information, for CPC to devise an appropriate accommodation for Ms. Graham. Further, Ms. Graham's position of acting superintendent was crucial to the successful implementation of the Appendix AA project. It could not await her indeterminate return to the workplace. CPC had no choice but to replace her as acting superintendent. VI. CONCLUSION [95] I have concluded that Ms. Graham's complaint of discrimination against CPC has not been substantiated for the reasons set out in this decision. As a result, her complaint is dismissed. Signed by J. Grant Sinclair OTTAWA, Ontario October 2, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1093/7405 STYLE OF CAUSE: Sandra Graham v. Canada Post Corporation DATE AND PLACE OF HEARING: September 25 to 29, 2006 Winnipeg, Manitoba DECISION OF THE TRIBUNAL DATED: October 2, 2007 APPEARANCES: Sandra Graham For herself No one appearing For the Canadian Human Rights Commission Zygmunt Machelak For the Respondent

2007 CHRT 41

CHRT

Montreuil v. Canadian Forces

en

2007-10-16

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7178/index.do

2023-12-01

Montreuil v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2007-10-16 Neutral citation 2007 CHRT 41 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 2007 CHRT 41 2007/10/16 [1] The respondent is asking the Tribunal to recognize Dr. Christiane Dufour as an expert in psychology and sexology. The complainant objects to Dr. Dufour being qualified as such on the grounds that she does not have the required qualifications to be recognized as an expert in psychology and sexology. As for the Commission, it also objects to qualifying Dr. Dufour as an expert and contends that she should only be considered as a fact witness for her involvement in the complainant's assessment in May 2006. [2] The Tribunal heard Dr. Dufour regarding her qualification as an expert. According to Dr. Dufour's testimony, she has a doctorate in psychology obtained in 2002 from the Université de Montréal and she is a member of the Ordre des psychologues du Québec. Dr. Dufour does not have any postdoctoral education, apart from attending a few scientific activities - a conference and a professional development course. She does not have any scientific publications to her credit in psychology or sexology, or any scientific presentations in these areas for scientific conferences. She does not have any professional affiliations other than her membership with the Ordre des psychologues du Québec. [3] Indeed, Dr. Dufour is a clinical psychologist in private practice. She testified at the qualification proceeding that since 1998 she has seen a number of people for gender dysphoria disorders, first as a psychotherapist-sexologist, then as a psychologist-sexologist. She also testified that for over 10 years she has worked as a volunteer for a half-day every week at the Human Sexuality Clinic at the Montreal General Hospital, supervised by Dr. Pierre Assalian. [4] According to Dr. Dufour, these consultations accounted for approximately 60% of her professional practice. On this point, Dr. Dufour states that she sees between 30 and 40 people with gender dysphoria disorders in group therapy every two weeks. These people come from the program implemented by the Montreal General Hospital's Human Sexuality Clinic, supervised by Dr. Pierre Assalian. Moreover, she says that every week she sees between 10 to 15 people with gender identity disorders. In the course of her practice, Dr. Dufour says she has seen between 400 and 500 persons with gender identity disorders. [5] To be recognized as an expert, individuals must establish that they have a particular expertise in a given field. This expertise must be supported not only by a solid professional practice but also scientific knowledge establishing that the professional is capable of critical and reasoned thinking in regard to different points of view that may prevail in a given field. [6] In this case, the Tribunal considers that Dr. Dufour's academic career and professional profile are inadequate for her to be recognized as an expert in the field of human sexuality or sexology, disciplines which indeed do not have specific professional training as there is no agency responsible for overseeing this professional field. However, the Tribunal does recognize that Dr. Dufour has extensive experience in treating individuals who are afflicted with gender dysphoria and who have sexual identity disorders. On this point, the Tribunal recognizes that Dr. Dufour has specific knowledge of the clientele that consults her regarding these disorders. [7] It is the Tribunal's opinion that Dr. Dufour has the qualifications necessary to testify not only with respect to her assessment of the complainant in May 2006 but also to share her clinical experience with the Tribunal in the areas of gender dysphoria and sexual identity disorders and to comment on her assessment of the complainant in light of this experience. Dr. Dufour is not however authorized to give opinions on the subject or to comment on the literature on gender dysphoria, transsexualism, transgenderism, transvestism and other disorders relating to sexual identity. [8] The Tribunal therefore recognizes Dr. Dufour as a psychologist-sexologist having specific knowledge from her practice with persons afflicted with gender dysphoria or with sexual identity disorders, such as transsexuals and transvestites, and authorizes her to offer testimony not only about her involvement in the complainant's case but also about her own experience in treating people who consult her for sexual identity or gender dysphoria disorders. However, she cannot offer opinions in regard to the scientific literature and scientific hypotheses relating to gender dysphoria or sexual identity disorders, because the Tribunal does not recognize her as an expert. Pierre Deschamps OTTAWA, Ontario October 16, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1047/2805 STYLE OF CAUSE: Micheline Montreuil v. Canadian Forces RULING OF THE TRIBUNAL DATED: October 16, 2007 APPEARANCES: Micheline Montreuil For herself Ikram Warsame For the Canadian Human Rights Commission Guy Lamb / Claude Morissette For the Respondent

2007 CHRT 42

CHRT

Johnston v. Canadian Armed Forces

en

2007-10-17

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7181/index.do

2023-12-01

Johnston v. Canadian Armed Forces Collection Canadian Human Rights Tribunal Date 2007-10-17 Neutral citation 2007 CHRT 42 File number(s) T831/8103 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE SHELDON W. JOHNSTON Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN ARMED FORCES Respondent RULING 2007 CHRT 42 2007/10/17 MEMBER: Athanasios D. Hadjis [1] The Respondent has filed a Notion of Motion dated June 28, 2007, seeking an order dismissing the complaint initiated by the Complainant, Sheldon W. Johnston, for want of prosecution. The Respondent alleges that since the complaint was referred to the Tribunal, the Complainant has shown blatant disregard for the Tribunal's timelines, while at the same time, the Respondent and the Tribunal have made all reasonable efforts to move the complaint forward. The motion was supported by a sworn affidavit signed by Cindy Komodowski, a legal assistant with the Federal Department of Justice in the Saskatoon Office. [2] The Respondent also filed with the Tribunal an Affidavit of Personal Service signed by a process server in Alberta, stating that the Complainant had been personally served with the Notice of Motion on July 9, 2007, at his address in Taber, Alberta. On July 16, 2007, the Tribunal sent a letter to the Complainant notifying him that his deadline for filing submissions in reply to the motion was August 1, 2007. This letter was left at the main entry door at the Complainant's address by process server on July 26, 2007. The Complainant has not as yet filed any reply submissions nor has he since communicated in any manner with the Tribunal. [3] For the reasons given below, I am granting the Respondent's motion and dismissing the complaint. I. Factual Background [4] The facts recited below are derived from the Tribunal's file regarding this complaint and from the evidence in Ms. Komodowski's affidavit, which is uncontroverted given the Complainant's failure to reply to the motion. [5] The Complainant filed his complaint with the Canadian Human Rights Commission on January 25, 2002. He alleged that from June 1999 onwards, the Respondent discriminated against him, contrary to s. 7 of the Canadian Human Rights Act, by refusing to employ him as a Military Chaplain and a Reserve Entry Scheme Officer on the basis of his religion. He also alleged that the Respondent pursues a policy or practice that discriminates against him and others like him on the basis of his religion (Christian and Missionary Alliance/Church of God in Canada), contrary to s. 10 of the Act. [6] On June 11, 2003, the Commission notified the Tribunal Chairperson that it was only referring the s. 10 aspect of the complaint to the Tribunal for inquiry, having decided that the s. 7 component of the complaint should be dismissed. On June 27, 2003, the Commission informed the Tribunal that it would not be participating at the hearing into the merits of the complaint. [7] On July 7, 2003, the Complainant filed a judicial review application before the Federal Court regarding the Commission's decision to dismiss the s. 7 portion of the complaint. At the request of both the Complainant and the Respondent, the Tribunal directed that the hearing process regarding the referred complaint not proceed pending the outcome of this judicial review. [8] The initial documentation that had accompanied the complaint when it was referred to the Tribunal indicated that the Complainant's postal address was in Castlegar, British Columbia. However, at some point thereafter, the Complainant moved to Swift Current, Saskatchewan. He did not notify the Tribunal Registry of this change. Instead, the Tribunal only came to learn of the move from the new address that appeared on the Complainant's judicial review application, a copy of which the Respondent had forwarded to the Tribunal. [9] The Complainant apparently discontinued his judicial review application in February 2004. On May 6, 2004, he advised the Tribunal of the discontinuance, adding that he was awaiting a ruling from the Tribunal about the conclusion of his case against the Respondent. In keeping with the Tribunal's practice with regard to all complaints, the Tribunal offered the parties the opportunity to voluntarily attend a mediation session organized by the Tribunal. A mediation questionnaire in this regard was sent to the parties by the Tribunal on May 28, 2004. The parties were asked to reply by June 18, 2004. At the request of the Respondent, this deadline was later extended to July 26, 2004. The Respondent replied that it was interested in participating in the mediation and provided its dates of availability. [10] Unfortunately, the Complainant did not respond to the Tribunal's letter, even by the extended July 26th deadline. On August 5, 2004, the Tribunal sent the Complainant a message by email reminding him of the matter and explaining to him that he could reply either in writing or by telephone. He responded by email on August 10, 2004 indicating his willingness to attend a mediation session. He claimed that he had responded earlier but that his email message must not have gone through. [11] On November 30, 2004, the Tribunal conducted a case management conference call with the parties, during which the parties were directed to file written summaries of the issues in the case and the remedies being sought. The summaries were intended to assist the parties in determining the scope of the mediation discussions. Respondent counsel informed the Tribunal in a follow-up letter dated December 23, 2004, that he was attempting to contact the Complainant to try to resolve the case in advance of a mediation, but that the Complainant's telephone number was no longer in service. Neither the Respondent nor the Tribunal had been provided with any new contact information from the Complainant. [12] On January 17, 2005, the Complainant filed his written summary with the Tribunal. He also advised the Tribunal that his new address was now in Surrey, British Columbia. On February 21, 2005, the Respondent filed its reply summary. [13] On February 25, 2005, the Complainant wrote to the Tribunal that he was now residing at an address in Swift Current, Saskatchewan. He also notified the Tribunal that a lawyer from Vancouver, David Mossop, was now representing him with regard to the complaint. At Mr. Mossop's request, the Tribunal granted him until April 21, 2005, to apprise himself of the file and to expand upon the Complainant's summary if he found it necessary. [14] On May 4, 2005, the Tribunal conducted another case management conference call, during which the parties undertook to hold discussions and advise the Tribunal if they still wished to proceed with the mediation. A schedule for disclosure was also established. The Complainant was to file his statement of particulars and complete his documentary disclosure by July 29, 2005, and the Respondent, by August 26, 2005. As of May 13, 2005, both parties had advised the Tribunal that they wished to participate in a mediation session organized by the Tribunal. [15] On May 17, 2005, however, the Complainant sent an email message to the Tribunal indicating that his lawyer had withdrawn from the case. The Complainant indicated that he was nonetheless still interested in mediating the complaint. The Tribunal therefore canvassed the parties for a date and venue for the mediation. The parties agreed that it be conducted in Vancouver (as the Complainant had apparently moved back to British Columbia) on July 22, 2005. The Tribunal advised the Complainant of the date, time and address where the meeting would take place by a letter that was sent by courier service as well as by email to the Complainant's email address. [16] On Friday, July 22, 2005, the Chairperson of the Tribunal, who was to preside over the mediation, as well as the Respondent's counsel and four of its representatives attended at the designated location and time for the mediation. The Complainant did not appear. It was therefore decided by those present to conclude the mediation. According to Ms. Komodowski's affidavit, the Complainant contacted Respondent counsel later that day and indicated that he was now available to attend the mediation. However, the Tribunal Chairperson as well as a number of the Respondent representatives had already left for the airport to return home. The Respondent's counsel and some of its representatives, who had not yet boarded their flights, agreed to change their travel plans and stay until the next day to meet with the Complainant, in the interests of moving this matter forward. The parties did in fact meet on Saturday, July 23, 2005, but a resolution was not reached. [17] Given that the case did not settle, the Tribunal advised the Complainant on July 26, 2005, that the hearing into the complaint would commence on October 24, 2005. In addition, another case management conference call was set down for September 1, 2005. The Complainant replied by email requesting that an earlier conference call be scheduled for a date falling between August 1 to 5, 2005, and a time between the hours of 8 am and 12 noon Ottawa time. He also indicated that he would not be available in October for the hearing. Accordingly, the Tribunal organized a conference call on August 4 at 11 a.m., Eastern Time. However, at the designated time, the Complainant did not dial into the conference call even though the Tribunal had provided him with detailed instructions shortly before the call. [18] On August 10, 2005, the Tribunal sent a letter to the Complainant advising him that the deadline for him to submit his statement of particulars and documentary disclosure, pursuant to Rule 6 of the Tribunal's Rules of Procedure, was extended to September 16, 2005. In light of the Complainant's unavailability in October, the Tribunal requested that the Complainant provide his dates of availability by August 26, 2005. [19] On September 1, 2005, the Complainant sent an email message to the Tribunal stating that he would like to know the status of the hearing process. He indicated his preferred venue for the hearing. He did not, however, make any mention of dates of availability. [20] In addition, the Complainant did not file his statement of particulars and other disclosure documents by September 16, 2005, as the Tribunal had required of him in its letter of August 10, 2005. [21] In fact, following the email of September 1, 2005, the Tribunal did not hear a word again from the Complainant until October 16, 2006, over 14 months later, when he sent a short email to the Tribunal Registry Officer assigned to his file. He stated in his message that he had never received any follow-up to his last communication with the Tribunal. He made no mention of his failure to provide, over the course of more than a year, his statement of particulars, his disclosure materials, and his dates of availability. [22] In response to the Complainant's email message, the Tribunal contacted all of the parties to organize a conference call. On November 2, 2006, the Tribunal wrote by email to the Complainant to request that he select from a list of proposed dates for the call. The Complainant replied by email on November 13, 2006. He indicated a date when he was available and advised the Tribunal of his new telephone number and address in Taber, Alberta. The Tribunal responded by email on the same day, informing the Complainant that the Respondent was not available on the date he had selected. A set of new dates was therefore proposed. The Complainant was asked to confirm his availability by November 14, 2006. [23] The Complainant did not respond by this deadline. On November 19, 2006, the Tribunal sent an email to the Complainant reminding him that his response had yet to be received. He did not reply. On November 21, the Tribunal's Manager, Operations called the telephone number that the Complainant had recently provided. There was no answer. The Tribunal called again on November 22. A woman answered and explained that the Complainant would call back later that day. The Complainant never returned the call. [24] On December 20, 2006, the Tribunal sent an email message to the Complainant reminding him that he had yet to reply regarding his availability for a conference call. He was asked to contact the Tribunal by email or by collect telephone call, to confirm his availability. There was still no response. [25] On January 9, 2007, a Tribunal Registry Officer called the Complainant's telephone number and his spouse answered. He was not available, so the Officer asked her to tell the Complainant that he should respond to the Tribunal's email of December 20, 2006. He never responded. The Registry Officer therefore called his residence again, on April 4, 2007. His spouse answered. She said that she had passed the previous message on to the Complainant. The Tribunal asked her to relay the message again to the Complainant. He still did not reply. [26] Consequently, on May 15, 2007, the Tribunal sent a letter to the Complainant, which was delivered by process server to his residence and served on his wife, on May 19, 2007. The letter highlighted the attempts that the Tribunal had made to contact the Complainant, to which he had not responded. He was accordingly asked to confirm, by May 31, 2007, the dates when he would be available for a one-week hearing during the months of September to December 2007. He was also advised that failing confirmation of his availability, the Tribunal would fix dates in the fall of 2007 for the hearing that would take place in Lethbridge, Alberta. [27] The Complainant has yet to reply to the Tribunal's letter. [28] On June 28, 2007, the Respondent filed the present motion requesting that the complaint be dismissed. As I already mentioned, the Complainant was served with the motion on July 16, 2007, and was instructed to file his submissions by August 1, 2007. The Tribunal has not received any submissions or other documentation from the Complainant to this date, nor has he made any other contact with the Tribunal. II. Analysis [29] As was pointed out in Seitz v. Canada, 2002 FCT 456, at para. 10, two approaches have developed with respect to dismissal for delay, or as it is also called, dismissal for want of prosecution. The first approach, which is sometimes referred to as the classic test, was set out in Nichols v. Canada, [1990] F.C.J. No. 567 (F.C.T.D)(Q.L.). It is a threefold test consisting, first, of determining whether there has been an inordinate delay; second, whether the delay is inexcusable; and third, whether the defendants are likely to be seriously prejudiced by the delay. [30] The second approach is set out in paragraphs 16 to 18 of the Seitz decision. This approach is described as being apt in cases where the litigant engages in a wholesale disregard for time limits provided in the rules of court, which is how the Complainant has, in my view, conducted himself in the present case. Seitz points out that such breaches are not to be looked at only from the viewpoint of the litigants, but also in light of the abuse of and prejudice to the due administration of justice. Where an action has remained static for an unreasonable length of time, there is an abuse of the administration of justice, which is separate and apart from any prejudice caused by inordinate and inexcusable delay, elements that must be established under the classic test. Seitz notes that these sorts of breaches will give rise to an abuse of process and will constitute grounds for dismissal. The decision adopts the House of Lords' findings in Grovit and Others v. Doctor and Others, [1997]1 W.L.R. 640, to the effect that: The courts exist to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to conclusion can amount to an abuse of process. Where this is the situation the party against whom the proceedings is brought is entitled to apply to have the action struck out and if justice so requires (which will frequently be the case) the courts will dismiss the action. Grovit has also been followed in Trusthouse Forte California Inc. v. Gateway Soap and Chemical Co., 1998 CanLII 8897 at para. 9 (F.C). [31] Like the courts, the Canadian Human Rights Tribunal is also entitled to prevent an abuse of its process. The Federal Court noted, in Canada (Human Rights Commission) v. Canada Post Corp., 2004 FC 81 at para. 15, aff'd Canadian Human Rights Commission v. Canada Post Corp., 2004 FCA 363, that it is evident that one cannot maintain that the [Canadian Human Rights] Tribunal is the master in its own house if it cannot protect its own process from abuse. [32] There have been numerous instances where the Complainant has failed to comply with the time limits and dates that were set by the Tribunal in this case, even when the Tribunal has accorded extensions thereto. I note, in passing, that Rule 1(5) of the Tribunal's Rules of Procedure states that all dates and time limits set by the Tribunal are peremptory, unless the Tribunal orders otherwise. The Complainant's breaches in this case have included: His late reply to the Tribunal's first offer to mediate, which was received on August 5, 2004, one week beyond the date that had been extended to him for his reply; His failure to appear at the date and time set for the mediation, in British Columbia; His failure to dial into the case management conference call that had been re-scheduled to August 4, 2005, at his request; His inexplicable failure to file his statement of particulars and documentary disclosure, which have been due since September 16, 2005, i.e. over two years ago; His failure to advise the Tribunal of his dates of availability for the hearing, which he had been directed to provide by August 26, 2005, i.e. over two years ago; His failure to confirm, by November 14, 2006, his availability for a conference call to address what I would qualify as his offhand request by email for a follow-up from the Tribunal, coming some 14 months after his last contact with the Tribunal, and after having repeatedly ignored the Tribunal's previous orders; His failure to respond by May 31, 2007, to the Tribunal's May 15, 2007, letter regarding his dates of availability for the hearing; His failure to respond to the Tribunal's instructions that he file his reply submissions to this motion by August 1, 2007. [33] The Complainant has thus ignored or failed to comply with numerous time limits set by the Tribunal in the present case. Based on the evidence before me, there is no reasonable excuse to explain the Complainant's late or non-existent compliance with all of these Tribunal directions. I cannot but infer that the Complainant has no interest in following through with his complaint. [34] The Tribunal is entitled to protect its process from abuse brought on by this sort of wholesale disregard of time limits, which in this instance has rendered the case completely static for at least two years, an unreasonably long time. I therefore grant the Respondent's motion. The complaint is dismissed. Signed by Athanasios D. Hadjis OTTAWA, Ontario October 17, 2007 PARTIES OF RECORD TRIBUNAL FILE: T831/8103 STYLE OF CAUSE: Sheldon W. Johnston v. Canadian Armed Forces MOTION IN WRITING, WITHOUT PERSONAL APPEARANCE DECISION OF THE TRIBUNAL DATED: October 17, 2007 APPEARANCES: No one appearing For Sheldon W. Johnston No one appearing For the Canadian Human Rights Commission Chris Bernier For the Respondent

2007 CHRT 43

CHRT

Day v. Canada Post Corporation

en

2007-10-19

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7180/index.do

2023-12-01

Day v. Canada Post Corporation Collection Canadian Human Rights Tribunal Date 2007-10-19 Neutral citation 2007 CHRT 43 File number(s) T1121/0306 Decision-maker(s) Jensen, Karen A. Decision type Decision Decision status Final Grounds Disability Decision Content Between: Tim Day Complainant - and - Canadian Human Rights Commission Commission - and - Canada Post Corporation Respondent Decision Member: Karen A. Jensen Date: October 19, 2007 Citation: 2007 CHRT 43 Table of Contents I. Introduction. II. What Are the Facts That Give Rise to the Complaint?. III. What Are the Issues In the Present Case?. A. What are the Applicable Legal Tests in this Case?. B. Analysis of the Issues. (i). Was the Way that Canada Post Handled the Requirement to Wear Steel-Toed Boots Discriminatory?. (ii). Did Canada Post discriminate against Mr. Day when it placed him on sick leave and removed him from the workplace in November of 2001?. (iii). Was the requirement that EL5’s hand in preventative maintenance slips each Friday of the week discriminatory?. (iv). Was the Denial of a Shift Change between Mr. Iroume and Mr. Day discriminatory?. (v). Was the requirement that Mr. Day work the night shift discriminatory?. (vi). Was the Termination of Mr. Day’s Employment with Canada Post discriminatory?. (vii). Was the surplusing of Mr. Day’s EL5 position discriminatory?. (viii). Was the deletion of the MAM11 position discriminatory?. (ix). Was the assignment of Mr. Day to the relief letter carrier position discriminatory?. (x). Was Mr. Day harassed on the basis of his disability?. IV. What Is The Appropriate Remedy?. A. Compensation for Pain and Suffering. B. Compensation for Willful and Reckless Conduct C. Interest D. Legal Expenses. I. Introduction [1] Tim Day is a registered electronics engineer. He has been working for Canada Post Corporation for nineteen years. In 1994, he became ill and was diagnosed with depression, anxiety disorder and an obsessive compulsive personality disorder. He returned to work in 1995. Since then, Mr. Day’s employment relationship with Canada Post has been difficult. He thinks that Canada Post has never accepted his psychiatric disability and has treated him differently from other employees because he is disabled. [2] Mr. Day has raised ten allegations of discrimination during the time period from April 2001 to August 2006. The allegations relate to Mr. Day’s psychological fitness to work, Canada Post’s requirement that he work the night shift, the termination of his employment, and a number of other allegations involving negative differential treatment and harassment on the basis of his disability. [3] Mr. Day invokes sections 7 and 14 of the Canadian Human Rights Act. Section 7 provides that it is a discriminatory practice to refuse to continue to employ an individual, or to differentiate adversely in relation to an employee on the basis of a prohibited ground of discrimination. Section 14 stipulates that it is a discriminatory practice to harass an individual on the basis of a prohibited ground of discrimination. [4] Of the ten allegations of discrimination made by Mr. Day, one is substantiated. Canada Post treated Mr. Day differently from non-disabled employees when it placed him on sick leave and removed him from the workplace in November of 2001. Although the evidence supported Canada Post’s decision to remove him from the workplace, the Corporation failed to treat Mr. Day with dignity and respect throughout the accommodation process. Mr. Day’s other allegations were not substantiated. [5] After a brief overview of the facts that gave rise to the complaint, I will set out Mr. Day’s allegations and then address them in turn. Finally, I will provide my reasons for the remedy that I have ordered. II. What Are the Facts That Give Rise to the Complaint? [6] Mr. Day was hired as a mechanic by Canada Post in April of 1986 in the Technical Services department at the Glanford Mail Processing Plant (GMPP) in Victoria. In 1992, he was promoted to an EL5, a technical specialist position in Technical Services. EL5’s perform the most difficult repair and maintenance work on the machines at Canada Post. They are also required to supervise up to twenty employees. [7] In the fall of 1995, Mr. Day experienced a major depressive episode. He was off work for ten months. He returned to work on a gradual basis, but his reintegration did not go entirely smoothly. He had problems with Canada Post management over a number of issues in the workplace. [8] One issue involved the requirement to wear steel toed boots. The repair and maintenance of machinery can be dangerous work. For that reason, Canada Post requires its Technical Service employees to wear steel toed boots on a continuous basis. Mr. Day cannot do so because of a foot condition. Although Canada Post accommodated his foot condition, Mr. Day thought that the way Canada Post handled the process was discriminatory. [9] Another dispute between Mr. Day and Canada Post involved the requirement to work shifts at Canada Post. When he was promoted to the EL5 position in 1992, Mr. Day worked the afternoon shift only, from 3 p.m. until 11 p.m. [10] In 1997, Canada Post implemented a rotating shift system; from then on all EL5’s, with the exception of the EL5 who held the electronics specialist position, were required to rotate through the following three shifts on a twelve week basis: the day shift, known as Shift 1 which was, at the time of the complaint from 7 a.m. until 3 p.m.; the afternoon shift, known as Shift 2, which was from 3 p.m. until 11 p.m.; and the night shift, known as Shift 3, which was from 11 p.m. until 7 a.m. [11] Mr. Day had difficulty with the night shift at Canada Post. From 1996 until the fall of 2001, Mr. Day and his doctors were of the view that working nights aggravated his symptoms of depression. During that period, Canada Post relieved Mr. Day of the obligation to work the night shift whenever he produced a note from his doctor indicating that he could not work nights. He did so on every occasion that he was scheduled to work nights during that period, although he attempted to work a few shifts on two occasions. [12] In the fall of 2001, Mr. Day was scheduled to work night shift again. As before, he produced a note from his doctor indicating that he was unable to work night shift. This time, however, Canada Post questioned whether Mr. Day needed to be relieved from the night shift on an ongoing basis. Canada Post temporarily accommodated Mr. Day on the afternoon shift and passed the note on to Medisys, the medical consulting firm that handled Canada Post’s occupational health and safety issues, for further investigation. [13] Medisys requested additional medical information. Mr. Day was sent for an Independent Medical Examination (an IME) with Dr. Miller, a psychiatrist in Victoria. On October 11, 2001, Dr. Miller reported that Mr. Day was suffering from major recurrent depression with incomplete remission. He recommended a change in Mr. Day’s medication and cognitive behavioural therapy. Dr. Miller stated that shift work was likely to worsen Mr. Day’s mental state. He was also concerned that there were issues of workplace safety if Mr. Day’s workplace disputes were allowed to drag on unresolved. [14] On November 16, 2001, Canada Post thought that Mr. Day’s psychological health had deteriorated to the point that he posed a threat to workplace safety. He was sent home at the end of his shift with a letter stating that he was not fit for work and would be placed on sick leave. [15] Mr. Day returned to the workplace on November 21, 2001, with a medical note attesting to his fitness to work. Canada Post did not accept the note and Mr. Day was escorted from the workplace. His supervisor, Mr. Bob Ormerod, informed him he needed confirmation from his doctor that he was complying with Dr. Miller’s treatment recommendations and that he was fit to return to work. [16] On December 3, 2001, Mr. Day’s doctor confirmed that Mr. Day was following the treatment recommended by Dr. Miller and that he was progressing well on it. He stated, however, that Mr. Day should work day shift only. [17] Dr. Hamm, the Medisys doctor, disagreed with Mr. Day’s doctor that permanent accommodation on day shift was needed. Dr. Hamm thought that Mr. Day was likely to continue to improve on the new drug regime. His symptoms of depression would then go into remission and he would be able to work all three shifts, including the night shift. He provided his opinion to Canada Post in a document known as a Field Report dated December 4, 2001. [18] Mr. Day returned to work on December 11, 2001. He was not scheduled to go on night shift until April of 2002. Before that date however, several events occurred which caused Mr. Day concern. [19] On January 16, 2002, Canada Post served Mr. Day with a 24 Hour Notice of Interview to discuss his failure to satisfactorily administer the preventative maintenance system. Preventative maintenance is done on the machinery at Canada Post to ensure that it is in good working order. Mr. Day was required to provide information regarding the completion of these duties. He refused to do so, and was disciplined as a result. [20] Also in January of 2002, Mr. Day requested permission from Canada Post to switch his twelve week block of afternoon shifts with a fellow EL-5 who was due to go on days. Canada Post denied his request. [21] Sometime around April 10, 2001, Mr. Day provided a note to Canada Post from his doctor indicating that, for medical reasons, he was advised not to work nights. Mr. Ormerod, the Superintendent of Engineering and Technical Services in Victoria, informed him that a doctor’s note would not suffice to excuse him from working the night shift. He also stated that the medical information to date indicated that he was capable of working nights and was expected to do so. [22] Mr. Day worked part of the night shift on several occasions. Then on April 25, 2002, he left before his shift was over and called in sick the next day. He was suspended for three days without pay for his refusal to work the night shift. [23] On May 27, 2002, Canada Post terminated Mr. Day’s employment. The reason cited for the termination was his failure to report for work or to provide an acceptable reason for not doing so. [24] Mr. Day grieved his discharge. A settlement agreement was reached pursuant to which Mr. Day returned to work on a gradual basis on May 16, 2003. He worked day shift only. [25] In 2004, Canada Post determined that Technical Services was overstaffed by two positions. On September 23, 2004, Canada Post informed the union that two EL5 positions would be declared surplus. This would result in the elimination of Mr. Day’s position. [26] Mr. Day became consumed with a desire to prove that his position had been eliminated because he was disabled. His symptoms of depression and anxiety increased. He went on sick leave again on October 27, 2004. [27] On November 1, 2004, Mr. Day’s position and that of another EL5 were declared surplus. Mr. Day was informed that he had been transferred to a PO4 position, which is a mail sorter position in the Glanford Mail Processing Plant in Victoria. Mr. Day has never worked in this position since being on sick leave from October 27, 2004. [28] In March of 2005 while on sick leave, Mr. Day applied for a vacant MAM11 position in the Technical Services Department in Victoria. This is a mechanics’ position. Mr. Sarbjit Sangha, Manager of Technical Services for Vancouver and Victoria, subsequently informed Mr. Day and his union that the MAM11 position had been deleted. Therefore, Mr. Day was not eligible for the MAM11 position. [29] In May of 2006, Mr. Day bid on a letter carrier position in Victoria. Although he was successful in obtaining the route that he requested, he lost it in a subsequent route re‑organization. Ultimately, he was assigned to a relief mail carrier position, a position with which he was not happy. [30] Mr. Day has been seeing a psychiatrist, Dr. David Swan, in Victoria since September of 2002. Dr. Swan testified that after trying a number of medications, he decided that Mr. Day’s depressive disorder would not respond completely to medication; he continues to have symptoms that will not remit completely. However, Dr. Swan testified that Mr. Day has been fit to return to work on day shift since November of 2004. [31] Mr. Day’s obsessive compulsive personality disorder manifests itself in high expectations of himself and others. When his or someone else’s performance falls short of these expectations, it can generate feelings of frustration, anxiety and depression. He tends to dwell on issues that bother him. The disorder does not, however, affect Mr. Day’s ability to act responsibly in the workplace. It does not affect his ability to perform the functions of his job. III. What Are the Issues In the Present Case? [32] The following questions must be answered in the present case: Did Canada Post discriminate against Mr. Day with respect to the requirement to wear steel toed boots in April of 2001? Did Canada Post discriminate against Mr. Day when it placed him on sick leave and removed him from the workplace in November of 2001? Did Canada Post discriminate against Mr. Day with regard to the preventative maintenance reports in January of 2002? Was the denial of Mr. Day’s request to exchange shifts with a co-worker in January of 2002 discriminatory? Was the requirement that Mr. Day work the night shift in April 2002 discriminatory? Was the termination of Mr. Day’s employment with Canada Post in May of 2002 discriminatory? Did Canada Post discriminate against Mr. Day in November of 2004 when it eliminated his EL5 position? Was the deletion of the MAM11 position in March of 2005 discriminatory? Was the assignment of Mr. Day to the relief letter carrier position in 2006 discriminatory? Was Mr. Day harassed on the basis of his disability? A. What are the Applicable Legal Tests in this Case? [33] When discrimination is alleged, the complainant must first establish a prima facie case of discrimination (Ontario Human Rights Commission et al v. The Borough of Etobicoke, [1982] 1 S.C.R. 202). A prima facie case is made out when the complainant presents evidence that covers the allegations made and which, if believed, is complete and sufficient for a decision in favour of the complainant, in the absence of an answer from the respondent (Ontario Human Rights Commission and O’Malley v. Simpson Sears Ltd. [1985] 2 S.C.R. 536). [34] Once a prima facie case is established, the onus then shifts to the respondent to provide a satisfactory explanation that demonstrates either that the conduct did not occur as alleged or was 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.)). [35] Conduct may be found to be non-discriminatory if the employer establishes that it is based on a bona fide occupational requirement (a BFOR). A BFOR is a rule or practice established in the honest belief that it is necessary to accomplish a valid workplace goal. A requirement will qualify as a BFOR only if the employer establishes that accommodation of the individual’s needs would impose undue hardship considering health, safety and cost (ss. 15(1(a) and 15(2) of the Act). [36] In determining whether a BFOR has been established within the meaning of the CHRA, the Tribunal bears 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)). B. Analysis of the Issues (i) Was the Way that Canada Post Handled the Requirement to Wear Steel-Toed Boots Discriminatory? The Prima Facie Case [37] In 1993, Mr. Day provided a medical note indicating that he had a foot condition that prevented him from wearing steel toed boots on a continuous basis. His practice was to wear running shoes and change to steel toed boots only in areas where there was a risk of injury. [38] In January of 2001, Mr. Steve Clark, the Coordinator of Technical Services issued a memorandum to all Technical Service employees indicating that they were required to wear steel toed boots at all times in the Technical Services Department. [39] Following the release of the memo, Mr. Day was asked to update his medical note. Canada Post issued him a 24 Hour Notice of Interview to discuss his inability to wear steel toed boots. After it was determined there were no alternatives to steel toed boots that Mr. Day could wear on a continuous basis, he was permitted to continue his practice of wearing running shoes in the plant. [40] Mr. Day took no issue with the ultimate resolution of the problem. Rather, he complained that the process of having to provide updated medical information, to attend an interview with Canada Post and to look for other boots constituted negative differential treatment on the basis of disability. He felt that Canada Post used the excuse of the steel toed boot requirement to single him out for negative treatment because he was disabled. [41] Mr. Iroume, a co-worker of Mr. Day, testified that there were other employees who wore running shoes from time to time in the plant. They were not required to attend an interview about this. [42] Mr. Day has established a prima facie case that the issuance of a 24 Hour Notice of Interview for his inability to wear steel toed boots constituted adverse differential treatment on the basis of disability. Mr. Day was led to believe that he might be disciplined for being unable to wear steel toed boots. He was also required to look for steel toed boots that he could wear on a regular and continuous basis when there were apparently other employees who did not always wear steel toed boots. The Respondent’s Explanation [43] I am satisfied that Canada Post’s actions with regard to the steel toed boot requirement were based solely on a legitimate safety concern. The repair and maintenance of the large machinery at Canada Post puts workers at risk of injury. Steel toed boots provide protection against injury. Mr. Clark was under orders from the National Health and Safety Committee to vigorously enforce the requirement. He needed to determine if, eight years after the most recent medical information, Mr. Day’s foot condition was still a problem. Mr. Clark also needed to determine if there was any other protective footwear that Mr. Day could wear on a more continuous basis. [44] The fact that the clarification of Mr. Day’s accommodation needs was done by way of the 24 Hour Notice process does not, in my view, render it adverse differential treatment. Mr. Clark explained that at Canada Post, 24 Hour Notices and Interviews do not constitute disciplinary action. Rather, they provide an opportunity for Canada Post to discuss concerns with an employee and for the employee, and his or her union representative, to respond to these concerns. If a satisfactory resolution to the problem is arrived at during the interview, disciplinary action does not follow and the notice is not placed in the employee’s personal file. A satisfactory resolution of Canada Post’s concerns was achieved in Mr. Day’s case. He was fully accommodated. [45] While it may be true, as Mr. Iroume testified, that the Technical Service employees do not always wear their steel toed boots, Mr. Day and Mr. Clark gave evidence that Mr. Day was the only Technical Service employee who had a regular and consistent practice of wearing running shoes and changing to boots only in certain areas of the plant. [46] I accept Mr. Clark’s explanation that it was Mr. Day’s regular practice of wearing running shoes that prompted him to question whether anything could be done to increase the amount of time that he spent wearing protective footwear. He did not target Mr. Day for negative treatment based on his disability; he had a genuine health and safety concern that he needed to raise with Mr. Day. [47] Canada Post has, therefore, provided a satisfactory explanation with regard to Mr. Day’s first allegation. (ii) Did Canada Post discriminate against Mr. Day when it placed him on sick leave and removed him from the workplace in November of 2001? The Prima Facie Case [48] On November 16, 2001, Mr. Day was due to attend an interview regarding work performance concerns that Canada Post had raised in a 24 Hour Notice of Interview. Instead, the interview was cancelled before it began. Mr. Day was sent home at the end of his shift with a letter saying that he was being placed on sick leave. [49] Mr. Day testified that he was shocked at being placed on sick leave. He did not feel ill. He thought it was part of Canada Post’s plan to get rid of him because he was disabled. [50] On November 21, 2001, Mr. Day returned to work with a note from his doctor indicating that he was well and able to work. He worked the shift, but at the end of it he was approached by Mr. Ormerod who called his name out from across the plant floor. When Mr. Ormerod reached Mr. Day, he told Mr. Day that he should not be at work, that his doctor’s note was insufficient, and that he was to leave immediately. Mr. Ormerod then escorted him from the building. Mr. Day testified that he was very embarrassed by this incident. [51] Mr. Day testified that one of the most upsetting parts of this series of incidents for him was the fact that he did not understand the reason that he was being sent home. The letter he was given on November 16, 2001 indicated that Canada Post had a bona fide concern with respect to his fitness for duty based on observations and the professional opinion of Dr. Hamm. [52] The letter from Canada Post given to Mr. Day on November 21, 2001, the day that he was escorted from the workplace, indicated that he would not be permitted to return to work until he provided medical proof that he was following the course of treatment recommended by Dr. Miller in the IME Report. [53] However, neither Mr. Day nor his doctor received Dr. Miller’s IME Report until November 23, 2001, and it was not until his union representatives met with Canada Post on November 28, 2001 that Mr. Day became aware that Canada Post thought he posed a safety risk at work. [54] Mr. Day testified that he had never been violent towards himself or others in the workplace. He stated that if he was a risk at all it would be with respect to his own safety. He stated that although he was upset about the interview on November 16, 2001, his behaviour was slow rather than agitated because he had taken anti-anxiety medication to calm himself. He thought that Canada Post was not justified in placing him on sick leave or removing him from the workplace in November of 2001. [55] I find that Mr. Day has established a prima facie case under s. 7(b) of the Act that he was treated adversely in the course of employment on the basis of his disability. Mr. Day was deemed by Canada Post to be a safety risk and unfit to work when his own physician was of the view that he was, in fact, able to work. He was denied the right to return to work even though he had presented proof of his fitness. He was subjected to a humiliating removal from the workplace in front of his peers. Neither he nor his physician was provided with the information they needed to address the concerns that gave rise to Canada Post’s removal from the workplace. The Respondent’s Explanation [56] Canada Post argued that the evidence at the time indicated that Mr. Day posed a serious risk to his own safety and to the safety of others in the workplace. It would have constituted undue hardship to have permitted him to remain in the workplace or to have informed him of the full extent of the reasons for his removal. Therefore, placing Mr. Day on sick leave and refusing to permit him to return to work in November 2001 constituted a BFOR, according to Canada Post. [57] According to sections 15(1)(a) and 15(2) of the Act, the Complainant’s removal from the workplace cannot be considered to be based on a BFOR unless the Respondent can establish that accommodation of his needs would impose undue hardship, having regard to health, safety and cost. [58] Risk is a factor to be considered in determining whether undue hardship would result from the accommodation (British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) (Grismer), [1999] 3 S.C.R. 868, at para. 30). 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/417at para 62). [59] I find that the evidence in the present case established that on November 16, 2001, both the severity and magnitude of the risk to Mr. Day’s safety and/or the safety of others in the workplace was such that Canada Post had no other option than to send Mr. Day home. [60] Dr. Miller’s report indicated that Mr. Day’s psychological health was very unstable at that time. He was concerned that Mr. Day might become violent if his workplace grievances could not be resolved. [61] One day prior to sending him home on sick leave Canada Post had issued Mr. Day with a 24 Hour Notice of Interview detailing a list of concerns about Mr. Day’s work performance. Ms. Jenica Epp, the Medisys nurse, testified that Mr. Day came to see her before his interview on November 16, 2001. She testified that he was tense, anxious-looking and distraught. She stated that he had a pronounced eye and facial tick. She was uncomfortable and frightened in his presence. [62] Mr. Clark also testified that in the weeks prior to November 16, 2001, he noticed that Mr. Day was more agitated and tense than usual. Mr. Clark stated that he was concerned about Mr. Day’s psychological stability at that time. [63] I accept that Canada Post has an obligation to assure the safety and well-being of all the employees on its premises. Therefore, employees who pose a safety risk to themselves or others are removed from the workplace and are not permitted to return until they have established, by way of acceptable medical evidence, that they no longer pose such a threat. Accommodating Mr. Day in the workplace would have constituted undue hardship in that it would have exposed others and/or Mr. Day to the serious potential of significant harm. [64] Before permitting Mr. Day to return to work, Canada Post needed assurances from Mr. Day’s physician that he was receiving the treatment recommended by Dr. Miller and that he was no longer a safety risk. Neither of the notes provided by Mr. Day provided that assurance. Again, given the magnitude and severity of the risk to worker safety in this case, I find that it would have created undue hardship to have permitted Mr. Day to return to work on November 21, 2001. [65] However, the inquiry as to whether the duty to accommodate has been met does not end there. There is both a procedural and a substantive component involved in the duty (Meiorin, at para 66). The Supreme Court has directed that the procedure adopted to assess the issue of accommodation should be considered separately from the substantive component when determining whether or not the duty has been discharged. [66] A failure to meet one of the two components does not necessarily result in a violation of the Act. Both the procedure of the inquiry and the substantive results of those inquiries should be considered when determining whether an employer has met its obligations under the Act (Meiorin, at para 66; Datt v. McDonald’s Restaurants of Canada Ltd. 2007 BCHRT 324; Gordy v. Painter's Lodge (No. 2), 2004 BCHRT 225) [67] In Irvine v. Canadian Armed Forces (CAF), 2005 FCA 432, the Federal Court of Appeal indicated that the procedural component of the duty to accommodate requires a fair assessment of the available medical evidence in relation to the complainant’s fitness for duty. [68] Fairness in the accommodation process is not, in my view, limited to a fair assessment of the complainant’s fitness for duty. Rather, the notion of fairness extends to all facets of the accommodation process. It requires that the inherent worth and dignity of the individual be respected throughout the process to the point of undue hardship (Meiorin, at para 62). [69] The question in the present case then is whether Mr. Day was treated fairly in the application of the standard identified above, that is removal from the workplace when there is a risk of violent or dangerous behaviour. For the following reasons I find that he was not. 1. Neither Mr. Day, nor his physician was provided, on a timely basis, with a copy of the IME Report which formed the basis of the decision to send Mr. Day home. [70] Mr. Day was seen by the IME psychiatrist, Dr. Miller, on October 11, 2001. On several occasions in early November, Mr. Day requested the IME Report from both Canada Post and Medisys. His requests went unheeded; the report was not sent to Mr. Day’s doctor until November 20, 2001. [71] Mr. Ormerod explained that the IME report was sent to Mr. Day’s doctor on November 20, 2001. As a result of a problem with the doctor’s fax machine, the report did not reach Mr. Day’s doctor until November 23, 2001. However, no explanation was provided as to why the Report was not sent to Mr. Day’s physician prior to November 20, 2001. [72] As a result of the failure to provide the IME Report on a timely basis, Mr. Day had no idea until November 23, 2001, when his doctor received the Report, that Dr. Miller thought he was not receiving proper treatment for his depression and that there was a concern about his safety at work. He felt completely blind-sided by the notice that he was unfit for work. [73] As a further result of Canada Post’s failure to provide Mr. Day with the information he needed on a timely basis, he suffered the embarrassment of being escorted from the building on November 21, 2001, because his doctor’s note did not respond to Canada Post’s concerns. Again, Mr. Day had no idea what Canada Post was looking for because his doctor had not yet received the IME report. [74] It cannot be said with any certainty if the delivery of the IME Report to Mr. Day’s doctor on a timely basis might have produced a different result in this case. However, based on Mr. Day’s statement that he began the treatment recommended by Dr. Miller immediately upon receiving the report, and his doctor’s statements that he responded well to the medication, it is entirely conceivable that the whole series of events in November might have been avoided had the report been provided right after it was received by Medisys. 2. Mr. Day’s doctor was not informed that Mr. Day was being placed on sick leave on November 16, 2001 [75] Mr. Ormerod and Mr. Clark, who were Mr. Day’s supervisors, testified that Mr. Day was not informed about the Corporation’s concerns with respect to his safety, nor did they involve him in the decision to send him home on November 16, 2001 because they were worried that this would further upset him. Mr. Clark stated that he said nothing to Mr. Day because no one likes to hear that he is considered to be a safety risk. I accept that on November 16, 2001 Canada Post was facing a critical situation, and that a difficult judgment call had to be made about what information to provide to Mr. Day. Therefore, the decision not to inform Mr. Day of the full extent of the reasons for his removal may have been justified. [76] However, Canada Post did not provide a satisfactory explanation as to why Mr. Day’s doctor was not informed that there were serious concerns about his mental health and that he was thought to pose a safety risk to himself or others on November 16, 2001. Mr. Ormerod stated that information regarding an employee’s mental health and safety should not be provided directly to the employee by his or her employer, but by a medical person. [77] Why then were Canada Post’s serious concerns regarding Mr. Day’s mental health not immediately communicated to Mr. Day’s physician? [78] Dr. Hamm stated that he did not inform Mr. Day’s doctor about what had happened on November 16, 2001, because he did not think that the situation was an emergency. He simply thought that Mr. Day needed to be at home where he could compose himself. In my view, however, if the situation was urgent enough to send Mr. Day home without notice to him about the full extent of the reasons, then it was urgent enough to alert Mr. Day’s doctor. After all, Mr. Day’s own health was potentially at risk. Dr. Miller’s report was vague with respect to Mr. Day’s potential for violence. It certainly could be interpreted to mean that he might direct the violence toward himself. The failure to inform Mr. Day’s doctor that he was being sent home because he posed a safety risk shows, in my view, a rather callous disregard for Mr. Day’s well-being. [79] I find, therefore, that Canada Post did not treat Mr. Day fairly in November of 2001; he was treated as a safety risk rather than as a human being whose needs for information and support should be respected. Although accommodating Mr. Day in the workplace was not possible given the safety risk that he posed, Canada Post did not provide a satisfactory explanation as why it did not provide Mr. Day and his physician with timely disclosure of the IME and the Field Report. Similarly, it was not established that informing Mr. Day’s physician of Canada Post’s concerns with respect to his safety would have caused undue hardship. [80] As a result, Canada Post did fulfill the procedural component of the duty to accommodate. Although a failure to fulfill the procedural component of the duty to accommodate will not necessarily result in a violation of the Act, I think that in this case the impact of the failure, both in terms of the outcome of the events in November 2001 and its impact on Mr. Day’s dignity and self-worth, warrant such a finding. Canada Post failed to establish, pursuant to ss. 15(1)(a) and 15(2) of the Act, that it accommodated Mr. Day’s needs to the point of undue hardship. Mr. Day’s allegation with regard to the November events is therefore substantiated. (iii) Was the requirement that EL5’s hand in preventative maintenance slips each Friday of the week discriminatory? The Prima Facie Case [81] As an EL5, Mr. Day was required to assign and supervise preventative maintenance (pm) duties on the day shift. The work was assigned on Mondays. It was expected to be completed by the end of the week unless the work was extensive or the plant was busy. Reports regarding the status of the work (pm slips) were entered into a computerized system that monitored the preventative maintenance work done on machines all across Canada. The EL5’s collected the pm slips for the employees that they supervised on the day shift and handed them in along with their own. [82] From 1999 to 2001, the EL5’s could submit the pm slips to management for input into the computer system on the following Monday, after the work was assigned. That policy changed some time in 2001. By the time Mr. Day reached the day shift in January of 2002, the expectation was that EL-5’s would submit the pm slips on the Friday of the same week that the work was assigned. [83] Mr. Day disagreed with the change in policy. He also disagreed with the manner in which the change was implemented. He thought that it was part of Canada Post’s campaign to treat him differently because he was disabled. [84] Mr. Day did not hand in the pm slips for his subordinates on Friday, January 11, 2002 as required. He handed in only his own. Canada Post subsequently issued Mr. Day with a 24 Hour Notice of Interview to discuss his failure to satisfactorily administer the pm system. [85] At the interview, it was pointed out to Mr. Day that he was not being singled out; all of the EL5’s were required to hand in their own and those of their subordinates on Friday. Mr. Day continued to hand in only his own pm slips. As a result, he was suspended for three days without pay. [86] Mr. Iroume testified on behalf of Mr. Day. He stated that when he came onto days in April of 2002, he too failed to hand in all of the pm slips on Friday. He was also given a 24 Hour Notice of Interview and told to hand the pm slips in on time. Mr. Iroume testified that following the interview, he conformed to Canada Post’s requirements. He stated, however, that Canada Post issued him with a 24 Hour Notice and then interviewed him solely to make Canada Post’s actions with respect to Mr. Day seem legitimate. [87] Mr. Iroume’s evidence on this point was not credible. He admitted that prior to the interview he was not complying with the requirement; he was only handing in about 15% of the pm slips for his shift. After the interview, when he was given a direct order by Canada Post to get the pm slips in, that figure moved to 60 to 70%. Mr. Day, however, did not comply with Canada Post’s directive. Accordingly, he was disciplined. [88] There was no credible evidence to support the contention that Mr. Day was treated differently from other employees on the basis of his disability with regard to the preventative maintenance system. Therefore, Mr. Day has failed to establish a prima facie case on this ground. (iv) Was the Denial of a Shift Change between Mr. Iroume and Mr. Day discriminatory? The Prima Facie Case [89] In January of 2002, Mr. Day attempted to switch his twelve week block of afternoon shifts with Mr. Guido Iroume, a fellow EL-5 who was due to go on days. Mr. Iroume preferred afternoons and Mr. Day preferred day shift for family and health related reasons. The request was denied. [90] Mr. Day testified that switching an entire twelve week shift block was a common practice at Canada Post. Mr. Iroume testified that while shift exchanges were common, the frequency of the practice diminished after the release of an arbitral decision by Arbitrator Blasina in April of 2002. In that decision, Arbitrator Blasina held that the Corporation was required to rotate the EL5’s through all three shifts. [91] Mr. Day argued that Canada Post’s denial of the shift exchange request constituted adverse differential treatment on the basis of his disability. However, neither Mr. Day nor Mr. Iroume provided examples of people who had exchanged an entire shift. Moreover, Mr. Iroume’s testimony strongly suggested that if there was such a practice, it changed after April 2002. At that point neither Mr. Day nor his colleagues were permitted to switch an entire shift block. There was no evidence to suggest that the denial of the shift exchange was based on Mr. Day’s disability. [92] Counsel for Mr. Day argued that the denial of the request for a shift exchange constituted adverse effect discrimination since Mr. Day was unable, by reason of his disability to work the afternoon shift. [93] Mr. Day however, testified that he did not have any trouble working the afternoon shift. He stated that at that point in time, he was looking to be relieved from the requirement to work night shift, not the afternoon shift. Therefore, I find that Mr. Day did not establish a prima facie case that the denial of his request for a shift change, or the requirement that he work the afternoon shift in January of 2002 constituted adverse differential treatment on the basis of disability. (v) Was the requirement that Mr. Day work the night shift discriminatory? The Prima Facie case [94] From 1997 until April of 2002, Mr. Day was relieved of the requirement to work night shift at Canada Post whenever he presented a doctor’s note indicating that his disability prevented him from doing so. In April of 2002, however, Canada Post insisted that he work the night shift because, in the Corporation’s view, the most recent medical evidence indicated that his disability did not prevent him from doing so. [95] Mr. Day disagreed that he was capable of working the night shift. He thought that the medical evidence clearly established that working the night shift made him sick. Therefore, he did not work the night shift as he was required to do in April and May of 2002. Canada Post issued him with a three day suspension as a result. [96] Mr. Day complained that Canada Post’s requirement that he work night shift and the discipline that it issued to him for his inability to do so constituted adverse differential treatment on the basis of his disability contrary to s. 7(b) of the Act. [97] Based on the following evidence, I find that Mr. Day has established a prima facie case of adverse differential treatment with regard to this allegation. [98] There was medical support for Mr. Day’s assertion that night shift aggravated his symptoms of depression and anxiety. In the IME Report of October 11, 2001, Dr. Miller indicated that shift work was likely to worsen rather than improve Mr. Day’s mental state. He stated that Mr. Day’s depression was not in complete remission and had not been adequately treated. [99] In a Field Report dated October 30, 2001, Dr. Hamm of Medisys agreed that night shift duties should be avoided. He also stated that Mr. Day should follow Dr. Miller’s treatment recommendations. [100] In December 3, 2001, Mr. Day’s doctor indicated that although Mr. Day was responding well to the new drug treatment and was capable of returning to work, he should work day shift only. In apparent contradiction to his previous Field Report of October 30, 2001, Dr. Hamm disagreed. He stated that he did not support permanent accommodation on day shift. [101] In January of 2002, Mr. Day began seeing a new family doctor by the name of Dr. Cook because his previous doctor had left the country. Dr. Cook provided Mr. Day with a note dated April 10, 2002, which stated this patient is advised not to work nights for medical reasons. Mr. Day and Ms. Andrew, the grievance officer for CUPW, testified that the note was faxed to Canada Post on April 15, 2002, from the union office. [102] Mr. Ormerod denied having received this note. However, Mr. Clark’s evidence on this issue was more convincing. He stated that either he or Mr. Ormerod had received the note and that if he had received the note he would have passed it on to Mr. Ormerod. [103] Moreover, on April 15, 2002, Mr. Ormerod wrote to Mr. Day saying that his doctor’s note dated April 15, 2002 would not be sufficient to avoid night shift. It is unlikely that Mr. Ormerod would have made such a statement had he not received the note. Therefore, I find that Mr. Ormerod received a note from Mr. Day’s doctor indicating that, for medical reasons, he was advised not to work the night shift. [104] Mr. Day presented medical evidence to Canada Post indicating that he was unable to work the night shift in April of 2002 as a result of his disability. Canada Post refused to accept the note from his doctor and instead continued to insist that he work night shift. The evidence led by Mr. Day suggests that he was punished because he could not work the night shift. On that basis, I find that Mr. Day has made out a prima facie case of adverse differential treatment on the basis of disability. The Respondent’s Explanation [105] After a careful review of the evidence in this case, I have concluded that Canada Post did not discriminate against Mr. Day in imposing a three day suspension for his refusal to work the night shift. The Corporation had sound medical evidence indicating that Mr. Day could, in fact, work the night shift. However, giving Mr. Day the benefit of any doubt that might remain in that regard, I find that Canada Post offered him a number of reasonable offers of accommodation. Mr. Day chose not to accept these offers. If Canada Post had a duty to accommodate Mr. Day (and I am not convinced that it did), it discharged that duty. (i) Mr. Day did not require accommodation [106] Although the medical evidence up to December of 2001, suggested that Mr. Day was not able to work night shift, there was consistent medical evidence from Dr. Hamm and Mr. Day’s new physician, Dr. Cook, that Mr. Day’s inability to work nights was likely due to the fact that, up to that point, he had not been properly treated for his depression. In April of 2002, however, the evidence indicated that Mr. Day had responded well to the drug treatment program recommended by Dr. Miller and that he was able to work nights. I will now review that evidence. [107] In his IME Report of October 2001, Dr. Miller stated that the herbal remedies that Mr. Day had been taking on the recommendation of his previous doctor, Dr. Rozwadowski, were ineffective. He prescribed not only a change in pharmacological treatment, but also cognitive behavioural therapy to deal with his ongoing work issues. [108] Dr. Hamm was qualified as an expert in Occupational Medicine at the hearing. He testified that he had extensive experience working with patients with depression. Provided they were properly treated and their symptoms were in remission, these patients did not have any difficulty with shift work, including the night shift, in Dr. Hamm’s experience. [109] As a result of a provision in the contract between Medisys and Canada Post, Dr. Hamm was not permitted to meet with Mr. Day. However, he conducted a thorough review of Mr. Day’s file and was in contact with Mr. Day’s physicians. [110] In December of 2001, Dr. Hamm consulted with Mr. Day’s doctor at the time and was told that Mr. Day was doing well on the medication that Dr. Miller had recommended; his condition had improved and he was back to work. [111] On that basis, Dr. Hamm formed the opinion in December of 2001 that, given the improvement in Mr. Day’s mental health, he should be able to work the night shift by April of 2002. It was for that reason that Dr. Hamm told Canada Post that he did not support permanent accommodation on day shift in the Field Report dated December 4, 2001. [112] In a letter to the union dated April 18, 2002, Dr. Hamm explained the apparent discrepancy between his recommendation to avoid night shift in the October 2001 Field Report, and his recommendation to continue with his usual duties including night shift in his December 2001 Field Report. In the letter, Dr. Hamm stated that he had supported temporary accommodation on day shift in October 2001 to give Mr. Day time to adjust to his new medication and for his symptoms to remit. However, it was not his intention at that time to recommend permanent accommodation on day shift to Canada Post. After speaking with Mr. Day’s doctor in December of 2001, Dr. Hamm was of the view that Mr. Day was progressing nicely and should be able to work the night shift as many of his other patients with depression had succeeded in doing. [113] Dr. Cook, whom Mr. Day began seeing in January of 2002, provided important testimony at the hearing regarding Mr. Day’s ability to work night shift during the period from January 2002 to May 29, 2002. Dr. Cook testified that he was, and had always been of the view that Mr. Day was medically capable of working the night shift on the condition that his health was monitored while he was doing so. He thought that Mr. Day’s problems were not medical in nature; rather they related to his ongoing disputes with Canada Post. Dr. Cook was of the view that Mr. Day needed the help of a mediator or a counselor with a specialization in workplace disputes, rather than a physician or a psychiatrist. [114] Dr. Cook testified that, from his first visit with Mr. Day in January of 2002, it was clear to him that Mr. Day wanted nothing more from him than medical support for the position that he could not work the night shift. Dr. Cook was uncomfortable with this. Like Dr. Hamm, he testified that he had many patients who had depression who could work the night shift provided they were being properly treated and followed by a physician. [115] In a letter dated March 18, 2002, Mr. Day told Canada Post that Dr. Cook had advised him not to work night shift due to his medical condition. Dr. Cook, however, testified that he would not have said this because he did not believe that to be the case. When Mr. Day first asked him to provide a note in March of 2002 indicating that he could not work night shift, he refused to do so because he thought it was a workplace dispute rather than a medical issue. [116] Nonetheless, on April 10, 2002, Dr. Cook did provide Mr. Day with a note stating that he was advised not to work nights for medical reasons. Dr. Cook testified that he did not know why he had provided the note to Mr. Day. He agreed with counsel for the Respondent in cross-examination that he did so to get Mr. Day off his back. Dr. Cook’s testimony strongly suggested that the note was not an authentic expression of his medical views, but rather was a response to intense pressure to support Mr. Day’s request to be excused from working the night shift. [117] Mr. Day’s testimony leant further support to Dr. Cook’s statement that Mr. Day was interested only in obtaining support for his belief that he should not work night shift. He testified that he had always had trouble with Dr. Cook because the doctor did not seem to understand his situation. Mr. Day stated that he had a history of being supported by his physicians and Dr. Cook did not follow that pattern. It was evident from Mr. Day’s testimony that he had difficulty with the fact that Dr. Cook would not provide his unqualified support to avoidance of night shift. [118] As a result, in May of 2002, Mr. Day changed physicians from Dr. Cook to Dr. Cooper. Dr. Cooper testified that Mr. Day should not have been required to work night shift in April of 2002. In Dr. Cooper’s view, the night shift exacerbated Mr. Day’s symptoms of depression. Dr. Cooper, however, was not Mr. Day’s physician during the relevant time period of this allegation. He acknowledged that Dr. Cook would have been in a better position to judge Mr. Day’s mental health at the time. [119] What explanation did Canada Post provide for the fact that Mr. Day’s note of April 10, 2002 was not accepted as proof that he could not work the night shift? Mr. Ormerod testified that Canada Post had decided that medical notes on prescription pads would no longer suffice to excuse Mr. Day from night shift. More information was needed to determine why the treatment recommended by Dr. Miller was not working. This was explained to Mr. Day and the union in a meeting on April 22, 2001. [120] Mr. Ormerod stated that Mr. Day had also been informed, as early as February 28, 2002, that Canada Post expected that the drug treatment program that he was following would lead to his ability to work the night shift. He had had ample time, therefore, to seek medical advice to the contrary, if that was appropriate. He had not provided this medical information. A prescription pad note would not suffice as proof of his inability to work the night shift because it did not provide enough information. [121] In my view, this was a reasonable position for Canada Post to take. It did not render Canada Post’s assessment of Mr. Day’s fitness unfair. Mr. Day knew the Corporation’s position with respect to his fitness to work the night shift. He also knew that, since the fall of 2001, Canada Post had ceased to accept medical notes on prescription pads to excuse him from night shift. The fact that he was unable to provide more medical information from his doctor about his inability to work night shift reflects, in my view, the fact that his doctor at the time thought that he could work night shift, notwithstanding the note that he provided to the contrary. [122] I agree with counsel for the Respondent that, had the April 10 note from Dr. Cook been provided to Medisys, the likely result would have been that Dr. Hamm would have contacted Dr. Cook and learned that the latter felt pressured by Mr. Day to provide the note. In fact, Dr. Hamm did contact Dr. Cook on April 25, 2002, and discussed Mr. Day’s ability to work the night shift. Dr. Hamm testified that Dr. Cook told him that Mr. Day was medically fit to work the night shift. Dr. Hamm communicated this information to Canada Post. [123] Consequently, on April 25, 2002 Mr. Day was given a three day suspension without pay for being absent without leave. Given the medical evidence that Canada Post had regarding Mr. Day’s ability to work the night shift at the time, I find that the discipline was not discriminatory. The Respondent has provided a satisfactory explanation to the prima facie case raised by Mr. Day. There was sound medical evidence establishing that Mr. Day was able to work the night shift in April of 2002. The three day suspension was based solely on Mr. Day’s refusal to work the night shift, not on his disability. (ii) If Mr. Day did require accommodation, Canada Post provided reasonable offers of accommodation [124] If there was any doubt, however, as to whether Mr. Day was able to work the night shift, I am satisfied that Canada Post provided Mr. Day with reasonable offers of accommodation. [125] The Supreme Court has stated that accommodation is a multi-party responsibility. The complainant must do his or her part to facilitate the accommodation process. 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 accept the proposal (Central Okanagan School District No. 23 v. Renaud [1992] 2 S.C.R. 970 at paras. 43-44). [126] On April 22, 2002, Mr. Ormerod offered Mr. Day three options. The first was that he would be permitted to take leave without pay or annual leave for the duration of his night shift, but he would not be permitted to work part shifts and take the remainder in leave. The other two options were that Mr. Day could work the regular night shift, or he could work a modified shift from 6 pm to 2 am on the condition that he obtained an appointment with a psychiatrist by 3 pm on April 26, 2002. [127] Mr. Day did not accept any of the options offered by Canada Post. He stated that the 6 pm to 2 am shift was not a reasonable proposal because it was conditional upon obtaining an appointment with a specialist by April 26, 2002. Mr. Day stated that this was impossible, given the shortage of mental health specialists in Victoria. In the spirit of cooperation, Mr. Day could well have made the effort to obtain an appointment and then indicated to Canada Post if he could not make the deadline. Mr. Ormerod testified that any such effort to obtain an appointment in April would have been acceptable to him. Instead, Mr. Day did not attempt to obtain an appointment with a psychiatrist until the middle of May which was well past the deadline. [128] Mr. Day argued that a suggestion made by his doctor on April 25, 2002 to attend a sleep lab in Vancouver constituted an effort to cooperate with Canada Post’s accommodation efforts. Canada Post’s refusal of the suggestion demonstrated a failure to accommodate him to the point of undue hardship, according to Mr. Day. [129] Dr. Hamm testified that he investigated the sleep lab suggestion and ultimately rejected it because none of the many physicians that Mr. Day had seen had ever diagnosed him with a primary sleep disorder. Rather, his sleep difficulty was a symptom of his unremitted depression. Therefore, Dr. Hamm decided that there was no justification for expending the time and resources to pursue the question of whether Mr. Day had a sleep disorder. Based on the evidence, I agree that this was not a reasonable option. [130] Mr. Day stated that he was advised by Dr. Cook not to work the 6 pm to 2 am shift because it would put his health at risk. However, Dr. Cook did not corroborate this statement. Dr. Cook stated that he was not aware that the Post Office offered Mr. Day a modified shift. If he had been asked about it, he would have advised him to try it. Mr. Day tried the modified shift once and rejected it. [131] The situation is similar to the facts in Jeffrey v. Dofasco Inc. (No. 4) 2004 HRTO 5; aff’d: 2007 CanLII 41275 (ON S.C.D.C). In that case, the Ontario Human Rights Tribunal found that the complainant, who was suffering from myofacial pain and some symptoms of fibromyalgia, could have attempted a job as a switchboard operator. The Tribunal found that while she may have experienced some pain in attempting the switchboard position, she would have been in no danger or harm’s way by doing the job. Her chronic pain was not so disabling as to prevent her from trying the job. She failed to try the job not because she was unable to do so but because she chose not to try it. The Tribunal found that there was no medical reason why she could not have tried the switchboard job. [132] I think that the situation in Jeffrey is analagous to the present case. There was no medical reason as to why Mr. Day could not have tried the 6 pm to 2 am shift beyond the one occasion on which he worked it. Indeed, Mr. Day testified that when he worked the afternoon shift from 3 pm to 11 pm, he was often called upon to work overtime until 1 or 2 am. He stated, however, that he was able to cope with the afternoon shift. Therefore, I find that the 6 pm to 2 am shift was a reasonable offer of accommodation. Granted it was conditional upon obtaining an appointment with a psychiatrist, but there was no reason why Mr. Day could not have made efforts to do so before mid-May. [133] Finally, the 6 pm to 2 am shift was not the only option that Canada Post offered to Mr. Day. If he did not feel that he could work the 6 pm to 2 am shift, he could have opted for leave without pay or annual leave for the duration of the twelve week shift. This would have provided him with ample time to obtain medical information from a specialist before he was due to go on night shift again. I find that this too was a reasonable proposal for accommodation. Mr. Day did not accept either of these options. It was clear from his testimony that he would accept no other proposal than that he be excused from working the night shift on a permanent basis. [134] Counsel for Mr. Day suggested that Mr. Day’s obsessive compulsive personality disorder may have been a factor in his inability to cooperate with Canada Post’s efforts to accommodate him. On that basis it was argued that Canada Post should have accommodated this condition by granting Mr. Day his preferred option – the day shift. However, Canada Post had no knowledge that Mr. Day had obsessive compulsive personality disorder. Dr. Hamm testified that he did not provide this information to Canada Post because he was of the view, based on his clinical experience, that Mr. Day’s disorder did not present any work restrictions. Mr. Day’s own psychiatrist testified that Mr. Day’s judgment and ability to act responsibly in the workplace were not affected by the disorder. [135] I find therefore, that there was no merit in the argument that Mr. Day’s obsessive compulsive personality disorder prevented him from being able to see Canada Post’s offers of accommodation as reasonable proposals. Rather, Mr. Day’s testimony demonstrated that his refusal to accept the offers was based on his belief that he had a legal right to be relieved of the obligation to work night shift on a permanent basis. The law is clear, however, that an employee is not entitled to hold out for the perfect solution (Renaud, at p. 995). Mr. Day had an obligation to accept one of the reasonable proposals offered by Canada Post even if it was not exactly what he wanted. He did not do so. Therefore, I find that if there was any doubt as to whether Mr. Day was able to work the night shift, Canada Post fulfilled its obligation to accommodate Mr. Day. (vi) Was the Termination of Mr. Day’s Employment with Canada Post discriminatory? The Prima Facie Case [136] Mr. Day did not report for work on the night shift after his three day suspension was over; instead, he called in sick on May 1, 2002. He saw Dr. Cook on May 2, 2002 who said that, rather than writing a note, he would telephone Dr. Hamm. [137] Mr. Day was served with a 24 Hour Notice of Interview for his failure to report for work on May 1, 2002. The interview was scheduled to take place on May 2, 2002. Mr. Day testified that he did not attend work or the interview because he was sick. He informed Canada Post of this on May 2, 2002. [138] On May 14, 2002, Mr. Day wrote to Rob Taylor, the Manager of Mail Operations, that he had been to see his doctor, he was having adjustments made to his medications and, he was waiting for a referral to a psychiatrist. Mr. Day also stated that his doctor was filling out forms for disability insurance and that he would be forwarding those documents to Mr. Taylor presently. [139] On May 22, 2002, Mr. Day received a letter from Mr. Ormerod indicating that since he had failed to report for work, or to provide an acceptable reason for his failure to report, he was recommending Mr. Day’s release from Canada Post. [140] On May 27, 2002, Mr. Taylor discharged Mr. Day from his employment with Canada Post based on his failure to report for work or to provide an acceptable explanation for his failure to do so. [141] Section 7(a) of the Act stipulates that it is a discriminatory practice to refuse to continue to employ an individual on the basis of a prohibited ground of discrimination. Mr. Day informed Canada Post that he was unable to work because of his disability. Knowing this, Canada Post discharged Mr. Day from his employment. On that basis, I find that Mr. Day has established a prima facie case that Canada Post refused to continue to employ him on the basis of his disability. The Respondent’s Explanation [142] Canada Post argued that Mr. Day’s disability had nothing to do with the imposition of the discharge. Rather, Canada Post dismissed Mr. Day on the basis of his failure to report for work on his scheduled shift and to provide medical documentation to substantiate his illness. [143] The evidence in this case supports Canada Post’s explanation. Mr. Day did not attend work as he was scheduled to do on May 1, 2002. He saw Dr. Cook on May 2, 2002 and asked for a note to support his absence from work. Dr. Cook refused to provide that note. [144] Rather, Dr. Cook spoke directly with Dr. Hamm by phone on May 7, 2002. Dr. Hamm’s note to file about that conversation indicates that Dr. Cook informed him that he had increased Mr. Day’s medication. It states that Dr. Cook was wondering whether he should be on long term disability leave. Dr. Hamm concluded his note by stating: I gather he will be supporting Mr. Day being off work due to his psychiatric diagnosis. [145] Dr. Cook testified that he did not, in fact, support Mr. Day’s absence from work. For that reason, he did not provide a note or medical information to that effect. He stated unequivocally, both in examination in chief and in cross-examination, that he did not think that Mr. Day had a psychiatric problem that required him to be off work; he thought that Mr. Day needed the help of a counselor or mediator to deal with his workplace issues. He never recommended to Mr. Day that he should be off work and he did not support his request for long term disability leave. [146] Dr. Cook testified that during the telephone conversation with Dr. Hamm on May 7, 2002, he and Dr. Hamm discussed ideas to help Mr. Day with his ongoing work problems. Dr. Cook stated that one of the ideas that he discussed with Dr. Hamm was putting Mr. Day on long term disability leave. Dr. Cook testified that he did not think that being off work was a good idea. However, he considered it because he felt some sympathy for Mr. Day, and this was what Mr. Day seemed to want. Dr. Cook also testified that he had increased Mr. Day’s medication as a way of providing support to Mr. Day. He did not think, however, that Mr. Day’s medical condition had changed from the time he first saw him in January of 2002, until May 29, 2002, the date of his last visit. For that reason he refused to provide the medical documentation that Mr. Day wanted to support his absence from work. [147] Accordingly, I find that Canada Post has refuted Mr. Day’s prima facie case. There was no medical evidence provided to substantiate Mr. Day’s statement that he was unable to work on May 1, 2002 by reason of his medical condition. The discharge, therefore, was not based on Mr. Day’s disability, but on his refusal to report for work or to provide an acceptable explanation for his absence. [148] Mr. Day grieved his discharge in May of 2002. Pursuant to a settlement agreement regarding that grievance, he returned to work in May of 2003. (vii) Was the surplusing of Mr. Day’s EL5 position discriminatory? The Prima Facie Case [149] In the fall of 2004, Canada Post informed Mr. Day that two out of four EL5 positions in Technical Services at the Glanford plant were being eliminated pursuant to Article 53 of the collective agreement. A staffing review had revealed that there was insufficient work at the Glanford plant to warrant the number of Technical Service staff that were employed there. Article 53 of the Collective Agreement between CUPW and Canada Post provides a process whereby positions for which there is insufficient work may be declared surplus and eliminated. Mr. Day and Eric Walry had the lowest seniority among the four EL5’s. Therefore, pursuant to Article 53, their positions were to be eliminated. [150] Eric Walry was reassigned to an EL5 in Ontario. Mr. Day, however, was unwilling to move from Victoria. Therefore, according to the collective agreement, his only option was a PO4 position at the Glanford plant. Even though he retained his EL5 salary, he found this reassignment demeaning and upsetting since, as a mail sorter, he would not have the opportunity to use his technical skills. He alleged that the elimination of his EL5 position in 2004 was orchestrated by Canada Post as a means of removing him because he was disabled. [151] Mr. Day based his allegations on a letter dated February 3, 2003 from Steve Clark to Joanne Purser, the Manager of Mail Operations at the time. In that letter, Mr. Clark expressed concern that the surplusing action was being considered as a way to remove Tim Day, a troublesome employee who was disabled from the department. Mr. Clark made a case for not eliminating the EL5 positions (including that of Mr. Day) because it could be perceived as bad faith on the part of Canada Post with respect to Mr. Day. [152] I find that Mr. Day has established a prima facie case of differential treatment based on disability. Mr. Clark’s letter suggests that the elimination of Mr. Day’s position was done to remove him from Technical Services because his disability was troublesome to Canada Post. Hence, there is evidence that he was being targeted for differential treatment on the basis of his disability. The Respondent’s Explanation [153] The Respondent established, to my satisfaction, that Mr. Clark’s concerns were not borne out in the surplusing process. The elimination of Mr. Day’s position had nothing to do with his disability. I draw this conclusion on the basis of the following factual determinations. [154] In 2002 and early 2003, Canada Post management in the Vancouver and Victoria region received notice from Ottawa that the Victoria plant was overstaffed. A study had been done that indicated that Victoria Technical Services had four to six positions more than it should have. Management in Victoria was tasked with coming up with a strategy for resolving the overstaffing issue. [155] Ms. Purser, the Manager of Mail Operations in Victoria, consulted with a number of people in the Glanford Plant to determine the best course of action. Among the people with whom Ms. Purser consulted were Mr. Ormerod and Mr. Clark. [156] Mr. Ormerod candidly admitted that he favoured the deletion of EL5 positions because he saw it as a way of getting rid of a difficult employee – Tim Day. However, when this was pointed out to him, he tried to put it aside and look squarely at what made sense for the plant, instead of letting his feelings about Mr. Day influence his thinking. He stated that no other plant had 4 EL5’s; Victoria was overstaffed on the EL5 side. There was new equipment that was easier to maintain, and so it made sense to recommend that two EL5 positions be surplused. [157] Steve Clark disagreed with Mr. Ormerod. He recommended that two MAM 11 postions be eliminated. Ms. Purser agreed with Mr. Clark. She recommended to Tom Dixon, the Director of Vancouver and Northern British Columbia (which included Victoria), that two MAM11 positions be surplused. [158] Mr. Dixon received a letter from Technical Services workers in Victoria objecting to the surplusing action. Therefore, he decided to put the action on hold until a more thorough review of the staffing issue could be undertaken because he wanted to be sure that the right decision was being made. [159] Tom Dixon requested that a staffing review or audit of the Victoria Mail Processing Plant be undertaken by National Headquarters. In July 2004, two people from Canada Post Headquarters were brought in to conduct this audit. The auditors reported that, in their opinion, the Victoria Plant had two positions in Technical Services in the Glanford Mail Processing Plant that were not needed. [160] When he received the results of the audit, Mr. Dixon consulted with Mr. Sarbjit Sangha, Manager of Technical Services for Vancouver and Victoria. Mr. Sangha stated that Vancouver, which was a much bigger plant with more mail volume and more machinery, had only two EL5’s whereas Victoria had four. He thought that this did not make sense. He provided his opinion to the auditors based on his review of the final draft of the audit report. [161] Mr. Sangha stated unequivocally that Tim Day was not a factor in his opinion regarding the need to eliminate two EL5 positions in Victoria. He stated that he did not know who Mr. Day was when he provided his opinion. There was no evidence that he saw the letter from Mr. Clark to Ms. Purser. His testimony was not shaken on cross-examination. [162] Upon receiving the audit and Mr. Sangha’s recommendations, Mr. Dixon decided to eliminate two EL5 positions. He stated that the decision had nothing to do with Mr. Day; it was a response to the results of the audit and Mr. Sangha’s advice indicating that there were two EL5 positions too many in Victoria. He did not recall ever having seen the letter from Mr. Clark to Ms. Purser regarding Mr. Day. [163] Mr. Dixon did not consult with Mr. Ormerod about the decision to eliminate the EL5 positions. Mr. Ormerod left Technical Services in 2003. His views with respect to the staffing issue were not sought after he provided his opinion to Ms. Purser in 2002. [164] Canada Post’s witnesses who testified about this issue were credible and consistent. I accept the explanation that the decision to eliminate the EL5 positions was not done to move Mr. Day out of Technical Services because of his disability. Canada Post has defeated the prima facie case of discrimination with respect to this allegation by showing that the decision had nothing to do with Mr. Day’s disability. (viii) Was the deletion of the MAM11 position discriminatory? The Prima Facie Case [165] Mr. Day testified that after he was assigned to the PO4 position, he applied for a mechanic’s position - the MAM11 B-2 position. He knew that this position would be vacant since the incumbent was retiring. [166] On April 4, 2005, Ms. Andrew, the union representative, requested that Mr. Day be given the vacant MAM11 B-2 position. She stated that Mr. Day was on sick leave. When he was ready to return his doctor wanted him in a less stressful than the EL5 position. The MAM11 position fit that description. [167] Ms. Andrew testified that it was standard practice that before a position was eliminated, Canada Post consulted with the union. This was not done. Instead, on the same day as the request for the position was made, the union received notice that the MAM11 position had been eliminated. [168] Mr. Day argued that the MAM 11 position was deleted after his request was made in order to frustrate his attempt to return to the Tech Services Branch. This was based on the fact that he was disabled, and Technical Services refused to accept his need for accommodation of his disability. [169] The evidence presented by Mr. Day supported the contention that Mr. Sangha deleted the MAM11 position after Mr. Day applied for it. Mr. Sangha knew, from Ms. Andrew’s letter that Mr. Day was off sick and was requesting the position as a way of coping with the stress of reintegration into the workplace. The way that the process was handled suggested that Mr. Day’s disability was a factor in the decision to delete the MAM11 position. Mr. Day has therefore succeeded in establishing a prima facie case of discrimination on the basis of his disability. The Respondent’s Explanation [170] Mr. Sangha stated that he made a decision sometime in the fall of 2004 or early winter of 2005 that he would eliminate the MAM11 position when the incumbent retired in March of 2005. This was well before Mr. Day applied for the position. However, he forgot to inform the union of his decision in writing at the time. He stated that he felt bad when he received Ms. Andrew’s letter in April of 2005 because it was then that he realized that he had neglected to inform the union of his decision earlier on. [171] He explained that National Headquarters in Ottawa had decided to replace an old machine in Victoria with a machine that required much less maintenance. As a result, the staff complement of fourteen employees in Technical Services in Victoria exceeded the available work. The union was informed that the number of mechanics on staff at the Victoria Mail Processing Plant would be reduced because there was no longer enough work for fourteen employees. For that reason, he decided to eliminate the MAM11 position. [172] Mr. Sangha was a credible witness. He was forthright in his admission of the mistake he made in failing to inform the union about his decision to eliminate the MAM11 position. His testimony was unshaken on cross-examination. Although he did not provide written confirmation of his decision to eliminate the position prior to Mr. Day’s request, I was nonetheless convinced by his testimony that there was no connection between Mr. Day’s disability and the decision to eliminate the MAM11 position. [173] I find therefore, that Canada Post has established that Mr. Day’s disability was not a factor in the elimination of the MAM11 position. [174] Mr. Day argued, in the alternative, that even if his disability was not a factor in the elimination of the position, Canada Post’s refusal to keep it open for him constituted adverse differential treatment. It deprived him of an opportunity to assume a position that would have accommodated his disability. [175] Assuming that Mr. Day established a prima facie case that the elimination of the position had an adverse differential effect on him, I am of the view that the obligation under s. 15(2) of the Act does not extend to the maintenance or creation of a position for which there is no productive work. Rather, the obligation is to provide accommodation to enable employees to perform productive work. The evidence disclosed that there was not enough work to justify the maintenance of the MAM11 position. Canada Post was not required to maintain the position in order to accommodate Mr. Day. (ix) Was the assignment of Mr. Day to the relief letter carrier position discriminatory? The Prima Facie Case [176] In May 2006, Mr. Day bid for a letter carrier position in Victoria. He was successful in obtaining both the position and the route he wanted. After his successful bid, there was a reorganization of the letter carrier routes. The new routes were to be determined by bid. Mr. Day alleged that the person in charge of the bidding process neglected to call him or the union while he was on disability leave so that he could bid on a new route. As a result, he was assigned a relief letter carrier position. This position is the least preferable because it involves moving around from route to route. [177] Based on Mr. Day’s testimony I am prepared to assume that the alleged failure to advise Mr. Day of the bid on the reorganized route while he was on sick leave constituted adverse differential treatment on the basis of disability. The Respondent’s Explanation [178] Mr. Clark’s understanding was that Mr. Day had been informed, or should have been informed by the union about the bid on the reorganized routes. The arrangement at the time was that all communication intended for Mr. Day would go through the union. Mr. Clark stated that Barry Barter, who was handling the route reorganization at the time, told him that he informed the union about the bid. Mr. Clark did not know whether the union communicated that information to Mr. Day. [179] Mr. Patterson, the Secretary-Treasurer of the Victoria local of the CUPW at the time, was the only union official that testified on this matter. He could not confirm or deny that the union had been informed about the bidding for the reorganized routes. [180] I accept Mr. Clark’s evidence that the union was informed about the reorganized bid. Whether the union informed Mr. Day or not about the bid is unclear. However, I accept that Canada Post did its part to provide the information so that Mr. Day could place his bid. [181] Therefore, I find that Canada Post has provided a reasonable explanation that refutes Mr. Day’s allegation that his assignment to the relief route was discriminatory. (x) Was Mr. Day harassed on the basis of his disability? [182] Mr. Day argued that all of Canada Post’s actions in the present case constituted harassment on the basis of his disability. Section 14 (1)(c) provides that it is a discriminatory practice to harass an individual on a prohibited ground of discrimination. [183] Harassment in the context of complaints based on disability has been defined as conduct manifested through repeated words, actions or gestures, that is vexatious, demeaning or insulting and is directed at another person on the basis of his or her disability (Bergeron v. Télébec Ltée., 2004 CHRT 16, at para. 260; aff’d : 2005 CF 879). The severity of the impugned conduct must be assessed from the perspective of the reasonable victim (Dhanjal v. Air Canada (1996), 28 C.H.R.R. 367 at paras 216 – 217 (CHRT), aff’d: [1997] F.C.J. No. 1599). [184] The jurisprudence on harassment is premised on the idea that the conduct in issue is, by its nature, extraneous or irrelevant to the legitimate operations and business goals of the employer. Derogatory comments or constant and unnecessary questioning about a disability which are humiliating and demeaning are examples of conduct that is extraneous to the legitimate operation of a workplace. [185] The jurisprudence also indicates that harassment generally requires an element of persistence or repetition, although in certain circumstances a single incident may be enough to create a hostile work environment. The more serious the conduct and its consequences are, the less repetition is necessary; conversely, the less severe the conduct, the more persistence will have to be demonstrated (Canada (Canadian Human Rights Commission) v. Canada (Canadian Armed Forces) (re Franke) [1999] 3 F.C. 653 (T.D.) at paras 43 and 45). [186] In the present case, the impugned conduct does not have the character of demeaning or humiliating conduct that is extraneous or irrelevant to the legitimate operations of Canada Post. Rather, Canada Post’s actions were undertaken in the course of managing the mail operations at the Glanford plant. Moreover, with the exception of the removal of Mr. Day from the workplace in November of 2001, I have found that Mr. Day’s disability was not a factor in the actions taken by Canada Post. [187] I do not think that a reasonable disabled employee would find Mr. Day’s removal from the workplace in November of 2001, in and of itself, to have constituted harassment. It was disrespectful and insensitive of Mr. Day’s needs as a disabled person; however, it was not repeated, humiliating conduct that was extraneous or irrelevant to Canada Post’s legitimate operations. [188] For these reasons, I find that there is no merit to Mr. Day’s allegation that Canada Post harassed him on the basis of his disability. IV. What Is The Appropriate Remedy? [189] Section 53(2) of the Act authorizes the Tribunal to make an order against the person found to have engaged in the discriminatory practice. I find that Canada Post engaged in a discriminatory practice when it placed Mr. Day on sick leave and removed him from the workplace in November of 2001. A. Compensation for Pain and Suffering [190] Mr. Day has claimed compensation for the pain and suffering that he experienced as a result of Canada Post’s discriminatory conduct. The Tribunal may order compensation in an amount not exceeding $20,000 for any pain and suffering the victim experienced as a result of the discriminatory practice (s. 53(2)(e)). [191] Mr. Day testified that not knowing the basis for the decision to place him on sick leave caused him a great deal of anguish and stress. He was humiliated when he was escorted out of the Plant on November 21, 2001. These hurt feelings were caused by Canada Post’s discriminatory conduct in failing to treat Mr. Day fairly in the accommodation process in November of 2001. [192] I find therefore, that an award of compensation for pain and suffering in the amount of $6,000 is appropriate in the circumstances of this case. Pursuant to s. 53(2)(e), I order Canada Post to pay this amount to Mr. Day. B. Compensation for Willful and Reckless Conduct [193] Mr. Day claimed compensation pursuant to s. 53(3) of the Act. That provision of the Act authorizes the Tribunal to order compensation in an amount not exceeding $20,000 when it finds that the Respondent engaged in the discriminatory conduct willfully or recklessly. [194] I find that when it placed him on sick leave and removed him from the plant in November of 2001, Canada Post willfully or recklessly engaged in discriminatory conduct. Canada Post and Medisys knew or ought to have known that the information in Dr. Miller’s report was extremely important and should have been immediately communicated to Mr. Day’s doctor. They knew or ought to have known that Mr. Day was seeking that information. Finally, if Canada Post and/or Medisys were of the view that Mr. Day was so ill that he was a safety risk, that information should have been communicated to Mr. Day’s physician. The failure to do so demonstrates a wanton disregard of Mr. Day’s needs as a disabled person. In the circumstances, I find that an order for compensation under s. 53(3) of the Act in the amount of $5,000 is appropriate. C. Interest [195] 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. 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. D. Legal Expenses [196] In a recent decision, the Chairperson of this Tribunal held that the weight of judicial authority supports the Tribunal’s power to award reasonable 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 under the Act to award reasonable legal expenses. [197] I therefore order that Canada Post compensate Mr. Day for the reasonable costs of retaining counsel both prior to and during the hearing. [198] The parties are 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. Signed by Karen A. Jensen Tribunal Member Ottawa, Ontario October 19, 2007 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1121/0306 Style of Cause: Tim Day v. Canada Post Corporation Decision of the Tribunal Dated: October 19, 2007 Date and Place of Hearing: November 6 to 9, 2006 November 15 to 17, 2006 February 5 to 9, 2007 March 19 to 23, 2007 March 27 to 29, 2007 Victoria, British Columbia Appearances: Jo-Anne Kahan, for the Complainant No one appearing, for the Canadian Human Rights Commission Norm Trerise and Matthew Prescott, for the Respondent

2007 CHRT 44

CHRT

Thwaites v. Air Canada Pilots Association

en

2007-10-23

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7194/index.do

2023-12-01

Thwaites v. Air Canada Pilots Association Collection Canadian Human Rights Tribunal Date 2007-10-23 Neutral citation 2007 CHRT 44 File number(s) T1196/0807, T1197/0907 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RAYMOND THWAITES, LEON M. EVANS, KEN GREEN, PAUL PRENTICE, DONALD BARNES, GARY SCOTT AND BRIAN MCDONALD Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - AIR CANADA PILOTS ASSOCIATION Respondent AND BETWEEN: RAYMOND THWAITES, LEON M. EVANS AND KEN GREEN Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - AIR CANADA Respondent RULING 2007 CHRT 44 2007/10/23 MEMBER: Karen A. Jensen [1] Raymond Thwaites is a pilot with Air Canada. Mr. Thwaites and six other Air Canada pilots with Air Canada are required to retire at age 60 under the Air Canada Pilots Pension Plan. [2] They filed complaints with the Canadian Human Rights Commission alleging that Air Canada and the Air Canada Pilots Association (ACPA) discriminated against them on the basis of age, contrary to sections 7, 9 and 10 of the Canadian Human Rights Act. The complaints deal with Air Canada's mandatory retirement requirement at age 60. [3] The Fly Past 60 Coalition (the Coalition) requested interested party status in the complaints on October 1, 2007. The Coalition is a group of individuals who oppose the mandatory retirement rule at Air Canada. They are either currently employed as pilots at Air Canada or have recently been forced to retire pursuant to the requirement. The Complainants are all members of the Coalition. [4] The Coalition seeks interested party status for the following reasons: the interests of the members of the Coalition will be directly affected by the outcome in these complaints; ACPA is not representing the interests of the Complainants or the Coalition members in this matter, but rather is a respondent in the complaints; the Coalition will assist the Tribunal to make a fair and proper determination of the matters before it by presenting evidence and making submissions in support of the Complainants; the Coalition has members who have been directly involved in the management and affairs both of Air Canada Flight Operations and of ACPA, at the most senior level; the Coordinator of the Coalition, Mr. Raymond Hall, is familiar with human rights law since he was a member of the Manitoba Human Rights Commission from 1991-1993; the Canadian Human Rights Commission is not participating in the proceedings and therefore, the Coalition's participation is needed to right the economic imbalance between the Complainants and the Respondents. [5] The Respondents oppose the present motion. The Canadian Human Rights Commission did not participate in the motion, and has indicated that it will not participate in the Tribunal hearing of the complaints. [6] Section 50 of the Canadian Human Rights Act gives the Tribunal discretion to grant interested party status. The onus is on the applicant to demonstrate how its expertise will be of assistance in the determination of the issues. 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); Nkwazi v. Canada (Correctional Service), [2002] C.H.R.D. No. 15 at para. 22 (C.H.R.T.)(QL); Warman v. Lemire 2006 CHRT 8. [7] There is nothing in the Coalition's application to indicate that it would provide assistance or expertise during the proceedings that could not be presented by the Complainants. Indeed, the Coalition states that it has the same viewpoint and interests as the Complainants; it seeks only to support the Complainants. [8] As members of the Coalition, the Complainants may be entitled to draw upon the resources of the Coalition to assist them with their complaints. In fact, Mr. Hall, the Coordinator of the Coalition, has indicated that he is representing some, if not all, of the Complainants in the present complaints. As a Complainant representative, Mr. Hall is free to call Coalition members to testify about the issues raised in the complaints, and to offer his expertise in human rights law and policy during his submissions to the Tribunal. [9] For these reasons, the Coalition's request for interested party status is denied. Signed by Karen A. Jensen OTTAWA, Ontario October 23, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1196/0807 and T1197/0907 STYLE OF CAUSE: Raymond Thwaites et al. v. Air Canada Pilots Association and Raymond Thwaites et al. v. Air Canada RULING OF THE TRIBUNAL DATED: October 23, 2007 APPEARANCES: No submissions made For the Complainants No submissions made For the Canadian Human Rights Commission Raymond Hall For Fly Past 60 Coalition Bruce Laughton, Q.C. For the Air Canada Pilots Association Fred Headon For Air Canada

2007 CHRT 45

CHRT

Willoughby v. Canada Post Corporation

en

2007-10-26

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7193/index.do

2023-12-01

Willoughby v. Canada Post Corporation Collection Canadian Human Rights Tribunal Date 2007-10-26 Neutral citation 2007 CHRT 45 File number(s) T1076/5705 Decision-maker(s) Lloyd, Julie C. Decision type Decision Decision status Final Grounds Disability Decision Content Between: Guy Willoughby Complainant - and - Canadian Human Rights Commission Commission - and - Canada Post Corporation Respondent Decision Member: Julie C. Lloyd Date: October 26, 2007 Citation: 2007 CHRT 45 Table of Contents I. Introduction II. The Issues III. The Evidence A. Evidence of the Complainant B. Evidence of the Respondent IV. Analysis A. Has the complainant demonstrated a prima facie case of discrimination on the basis of disability? (i) Has a prima facie case been made out in respect of the first allegation: continuing the 3:30 a.m. shift assignment in March, 2002? (ii) Has a prima facie case been made out on the second allegation: CP’s April, 2002 decision not to continue his employment (iii) Has a prima facie case been made out on the second allegation: CP’s February 14, 2003 decision not to continue his employment? B. Is CP able to justify its prima facie discriminatory conduct? (i) Is CP able to justify its decision to continue the 3:30 a.m. assignment in March of 2002? (ii) Is CP able to justify its decision not to continue Mr. Willoughby’s employment in April of 2002? (a) Was CP sensitive to Mr. Willoughby’s skills, capabilities and potential contributions? (b) Did CP carefully consider alternative approaches to Mr. Willoughby’s accommodation? (c) Did CP conduct an adequate search for alternative employment? (d) Was CP adequately flexible and creative? (e) Did CP demonstrate that accommodating Mr. Willoughby would have created undue hardship? (iii) Did CP demonstrate that its decision to refuse to continue Mr. Willoughby’s employment in February of 2003 was justified? (iv) Finding of Discrimination V. Remedies A. Compensation for lost wages B. Compensation for pain and suffering C. Special Compensation D. Legal Costs E. Interestnone F. Retention of jurisdiction I. Introduction [1] The complainant, Guy Willoughby, alleges that his employer, Canada Post Corporation (CP) discriminated against him on the basis of his disabilities, both physical and mental, in breach of either or both sections 7(a) or 7(b) of the Canadian Human Rights Act (CHRA). He alleges that CP engaged in a discriminatory practice first by placing him on a 3:30 a.m. to 11:30 a.m. shift on or about March 12, 2002, notwithstanding a medical direction that he work a regular day shift. He alleges that CP engaged in further discriminatory practice by refusing to continue his employment in or about April 12, 2002 and on or about February 14, 2003 as a result of his disabilities. [2] The hearing extended 5 days in May of 2007. Both the complainant and the respondent participated at the hearing and were represented by legal counsel. The Canadian Human Rights Commission did not participate. II. The Issues [3] The issues for determination in this complaint are as follows: Has the complainant made out a prima facie case that CP engaged in a discriminatory practice by directing that he remain assigned to a 3:30 a.m. to 11:30 shift notwithstanding that one of the medical restrictions enumerated by his doctor was that he should work only a regular day shift? Has the complainant made out a prima facie case that CP engaged in a discriminatory practice by refusing to continue his employment on or about April 12, 2002 as a result of his disabilities? Has the complainant made out a prima facie case that CP engaged in a discriminatory practice by refusing to continue his employment on or about February 14, 2003 as a result of his disabilities? If the complainant has made out a prima facie case of discrimination in respect of any or all of these allegations, has the respondent demonstrated that the decision or decisions made were the result of a bona fide occupational requirement under section 15 of the CHRA? If one or more of the complaints is found to have been a discriminatory practice contrary to the CHRA, what remedies are appropriate? III. The Evidence A. Evidence of the Complainant [4] Mr. Willoughby commenced his employment with CP in April of 1977. He was a mail service courier for approximately 13 years and was in 1990 promoted to the position of letter carrier supervisor. He last worked for CP on April 15, 2002. [5] In the fall of 1997, Mr. Willoughby was working as a letter carrier supervisor in Depot 11 and was assigned to a shift that commenced at 3:30 a.m. and ended at 11:30 a.m. He began to have difficulty performing his job and attended at his doctor for a medical assessment. Mr. Willoughby’s doctor advised CP that he suffered from an injury to his knees and for this reason Mr. Willoughby should not be required to do excessive walking, standing or lifting. The doctor also advised that Mr. Willoughby was suffering from a sleep disorder and that he should be working a regular day shift and not the 3:30 a.m. shift. [6] After some weeks of delay, Mr. Willoughby’s medical requirements were accommodated by CP. He was assigned as the day shift supervisor in the Central Re-direction Centre (CRC). The CRC unit was described by several of CP’s witnesses as a rehabilitation unit as all of the employees working in the unit had some permanent work restrictions and were in need of accommodation. The employees in this unit processed and sorted mail that required re-direction because a customer had registered a change of address notice. The jobs in the CRC unit were largely sedentary and hence well suited for employees who had mobility restrictions. Mr. Willoughby’s placement in this unit was considered to be permanent. [7] In the spring of 2000 the CRC unit was disbanded. The non-supervisory employees of the unit were re-deployed to the depots and performed their duties in those depots rather than in a single centralized location. As these employees were to report to the supervisors working in the depots to which they had been assigned, Mr. Willoughby’s supervisory position became redundant. [8] After the CRC unit was disbanded, Mr. Willoughby was assigned to an administrative project for a few weeks on a day shift. After this project concluded, he was re-assigned to the training office, again, on a day shift. His job in the training office was to assign employees to job vacancies. At the time, job vacancies were posted in the different CP depots and any employee who might want any particular job would apply for it. Positions were filled according to seniority and Mr. Willoughby’s job was to fill the position by assigning the most senior applicant to the job. [9] Mr. Willoughby testified that he was not consulted in advance about this assignment. He testified that he found the position to be difficult and that it did not suit either his experience or his abilities. He acknowledged that he made numerous mistakes. He testified that his workload was extremely heavy and that the position required that he work long hours. Mr. Willoughby testified that he advised his supervisor he thought his poor job performance might be the result of dyslexia. Many of his mistakes resulted because he would transpose digits in employee start dates, which dates defined an employee’s seniority. Mr. Willoughby had not been diagnosed with dyslexia, but the disorder ran in his family. Dyslexia is a learning disability that is typically manifested by difficulties in reading and writing experienced by persons of at least average intelligence. [10] Mr. Willoughby received a poor performance evaluation from the supervisor in the training unit in April of 2001. He was sent for a medical assessment. Mr. Willoughby went to Dr. Dodd, a general practitioner and his family doctor. In a letter dated April 7, 2001, Dr. Dodd stated that Mr. Willoughby might suffer from dyslexia and recommended that he be assessed at the Glenrose Hospital in Edmonton, Alberta. [11] Dr. Dodd wrote a further letter to CP dated July 19, 2001. The doctor stated that Mr. Willoughby had not received an assessment at the Glenrose Hospital, in part because of the cost involved and in part because he had been advised by Mr. Willoughby that his performance difficulties had resolved. He further advised that these difficulties had arisen as a result of the stress and fatigue he experienced as he learned a new job, and not from dyslexia. [12] In July or August of 2001, Mr. Willoughby was removed from his position in the training department and was assigned back to the supervisor position in Depot 11. He was placed on the 3:30 a.m. to 11:30 a.m. shift; the shift he had before the 1997 medical direction that this shift was not appropriate in light of his medical condition. Mr. Willoughby testified that even though he knew that this assignment did not comply with his medical restrictions, he felt he had no choice but to accept the position or he would lose his job. [13] Almost immediately upon returning to the Depot 11 position, Mr. Willoughby’s job performance became quite poor. He testified that the increased physical demands of this position and the return to a night shift caused his health, both mental and physical, to deteriorate rapidly and that as a result, his job performance suffered. It was Mr. Willoughby’s evidence that he had a meeting with his supervisor, Ms. Sample, in January of 2002. Ms. Sample had requested the meeting to discuss her concerns with his performance. It was Mr. Willoughby’s evidence that he told his supervisor at this meeting that he had been seeing a psychologist and had been diagnosed with post traumatic stress disorder (PTSD). This condition, he thought, might be causing his job performance problems. CP directed Mr. Willoughby to obtain a new medical report. [14] Mr. Willoughby’s psychologist, Dr. Aprile Flickenger, wrote to CP in January, 2002. The psychologist confirmed that Mr. Willoughby suffered from PTSD and reported that he was making progress under her care. The psychologist described that the symptoms that Mr. Willoughby was experiencing as a result of this condition made daily functioning difficult. In particular, Mr. Willoughby suffered from nightmares and other sleep disturbances. He was also experiencing flashbacks of prior traumatic events in his life. The psychologist described that other symptoms experienced by Mr. Willoughby included feelings of isolation, low self-esteem and occasional paranoia. Dr. Flickenger identified that these symptoms were exacerbated by the shift to which he had been assigned, being the 3:30 a.m. shift, and directed that he was to be assigned to a day shift. [15] Dr. Dodd also wrote to CP in January of 2002. He confirmed that Mr. Willoughby was seeing a registered psychologist for treatment of PTSD and further advised that he was himself imposing no medical restrictions in respect of Mr. Willoughby. [16] Mr. Willoughby remained on the 3:30 a.m. shift after CP had received this information from the psychologist. [17] Dr. Dodd wrote a further letter to CP dated March 5, 2002. This letter was written in response to correspondence received from CP advising him that it found that his January, 2002 letter appeared to contradict the letter received that same month from Dr. Flickenger. Dr. Flickenger, CP wrote, directed that Mr. Willoughby had medical restrictions, while his letter suggested that he had no restrictions. CP asked Dr. Dodd for clarification. Dr. Dodd, in his letter of March 5, confirmed that he supported the diagnosis and the medical restrictions imposed by the psychologist. [18] Dr. Esmail of CP’s occupations health services department, wrote a memo dated March 12, 2002, advising that in light of Dr. Dodd’s most recent correspondence, the requirement of day shift only appeared to be reasonable in the circumstances. Dr. Esmail suggested that CP follow up with the psychologist in a month’s time to see whether the restriction was still necessary. [19] On March 19, 2002, after having received this memorandum from Dr. Esmail, Bill Stevenson, zone manager for CP, advised Dr. Esmail that Mr. Willoughby would remain on the 3:30 a.m. shift. [20] By letter dated April 11, 2002, Dr. Dodd again wrote to CP directing that Mr. Willoughby should be working only day shift. [21] On or about April 15, 2002, Mr. Willoughby met with Tom Duncan, a labour relations officer with CP. Mr. Willoughby testified that Mr. Duncan advised him CP had no positions available to meet his medical restrictions and that he should go on disability leave. Mr. Willoughby went on sick leave for 95 days until his sick day credits had been exhausted. He then applied for and began to receive disability benefits from Sun Life Financial (Sun Life), CP’s medical and disability benefit provider. In his application for disability benefits, Mr. Willoughby wrote the following in response to a question asking why he could not return to work: I would have continued working. My doctor says, and Canada Post’s doctor says I should work a normal day shift, but Canada Post says that there are no day shift positions that are within my physical limitations. [22] Mr. Willoughby testified that in April of 2002 there were numerous jobs at CP that would accommodate his restrictions and that he could do successfully. His evidence was that if put on day shift in one of the larger of CP’s depots, there were sedentary administrative tasks that could be bundled to afford him a productive position. He further testified that the day shift supervisor positions were already more sedentary as letter carriers left the building fairly early in the shift and so tasks that required a significant amount of walking, like monitoring the delivery and the processing of the mail and monitoring the attendance and the work of employees, would end early in the shift. [23] Mr. Willoughby also testified that he could have performed the job held by the former CRC employees who had been re-assigned to individual depots. These positions were performed by members of the Canadian Union of Postal Workers (CUPW). Mr. Willoughby’s union was the Association of Postal Officials of Canada (APOC). He further testified that there were positions performed by employees in the Public Service Alliance of Canada (PSAC) bargaining unit, which employees did primarily administrative work. He could, he testified, have been accommodated with a position in this bargaining unit. [24] Mr. Willoughby testified that when he learned that CP took the position that it could not accommodate him, he was devastated. He felt abandoned by CP. He felt betrayed to learn that after 24 years of service with this company it could not find a way to continue his employment and to accommodate his restrictions. Mr. Willoughby testified that he became extremely depressed, that the psychological symptoms described earlier by his psychologist as arising from PTSD worsened. He was unable to sleep, ate little and rarely left his home. He felt worthless, had no self-esteem and worried about his future ability to meet his financial needs. He continued to receive treatment from his psychologist. [25] In October or November of 2002, Mr. Willoughby met with Sun Life to discuss a graduated back to work plan. Mr. Willoughby testified that he was anxious to get back to work. Sun Life had collected updated medical information from Mr. Willoughby’s doctor and psychologist in advance of preparing the back to work plan. His psychologist, Dr. Flickenger, reported that his condition was improving and that his prognosis was good. She indicated that he still required a day shift and should not be placed in a supervisory position for the time being. Mr. Willoughby’s family doctor, Dr. Dodd, confirmed that he was to be assigned only to a regular day shift and further, that he not be made to walk or stand excessively or lift repetitively. The plan arrived at by Sun Life and communicated to CP in November of 2002 was as follows: That Mr. Willoughby start working four hour shifts, five days per week; That he work day shift; That he be placed in a non-supervisory position, at least for the time being; That he avoid excessive walking, standing and lifting. [26] Mr. Willoughby testified that he did not hear anything from either Sun Life or CP in response to this proposal. He telephoned CP and asked that a meeting be set up to discuss the plan for his return to work. A meeting was held on February 14, 2003. At this meeting were Mr. Willoughby, Mr. Duncan, a CP payroll employee, a representative of CP’s occupational health services, and a representative of Sun Life. Mr. Willoughby testified that he was advised by Mr. Duncan at that meeting that there were no positions available to meet his medical restrictions. Mr. Willoughby never returned to CP. [27] Mr. Willoughby obtained employment at a car dealership in July, 2004 and resigned from CP. He testified that he was at first unable to look for work because of the emotional and psychological distress that CP’s conduct had caused. He testified further that when he became able to look for work he was unable to find a job. Mr. Willoughby was using a cane during this period of time and testified that he believed this made prospective employers reluctant to hire him. B. Evidence of the Respondent [28] Mr. Duncan had, at the time of the hearing, been a labour relations officer for CP for approximately ten years. Mr. Duncan confirmed that CP had assigned Mr. Willoughby to the CRC unit as a day shift supervisor in 1997 to accommodate his physical restrictions and the medical direction that he work only a regular day shift. [29] Mr. Duncan also confirmed that upon the CRC unit being disbanded, CP continued to accommodate Mr. Willoughby’s requirements by assigning him first to a short term administrative project and then to the training office. [30] Mr. Duncan did not know why Mr. Willoughby had been assigned back to Depot 11 on the 3:30 a.m. shift in July or August of 2001. The decision, he testified, was made by the zone manager, Mr. Bill Stevenson. He did not discuss the matter with Mr. Stevenson at any time. Mr. Stevenson died in or around 2003. Mr. Duncan also testified that Mr. Stevenson maintained a file on Mr. Willoughby that detailed the steps taken by CP to accommodate him since 1997. Mr. Duncan had never read the file and it had been lost by the time this hearing had commenced. Mr. Duncan speculated, however, that the 3:30 a.m. shift at Depot 11 was the only position available at the time. [31] CP led no other evidence that would explain why Mr. Willoughby was assigned to the 3:30 a.m. shift and no evidence that would explain why he was not re-assigned to a day shift after CP received medical information in January and in March of 2002. [32] Mr. Duncan testified that on or about April 15, 2002 he had a meeting with Mr. Willoughby and that at this meeting Mr. Willoughby expressed to him that he felt he was unable to work in any capacity at CP. He asked Mr. Duncan to help him obtain disability benefits. Mr. Duncan denied that he advised Mr. Willoughby that there were no positions available to accommodate him and so he should go on disability, as was Mr. Willoughby’s evidence. [33] Mr. Duncan also testified that even had Mr. Willoughby wanted to remain actively employed with CP, there were no positions available in April of 2002. Mr. Duncan testified that all of the positions available within his bargaining unit, APOC, required either a significant amount of walking and standing, which Mr. Willoughby could not do, or required either or both of an acute attention to detail and competence with computers. Mr. Duncan testified that he was convinced that Mr. Willoughby could not do any of these more sedentary jobs in part because in his experience, Mr. Willoughby had demonstrated an inability to perform administrative and other more sedentary jobs since he had been promoted to the position of supervisor in 1990 and did not possess adequate computer skills. Further, Mr. Duncan testified that Mr. Willoughby’s poor performance in the training department was further evidence that he was unable to perform administrative jobs to an acceptable standard. [34] Mr. Duncan testified that he was surprised to learn in 1990 that Mr. Willoughby had been promoted to letter carrier supervisor. He had worked with Mr. Willoughby before 1990 as a mail courier and testified that he had found his competence to be questionable in that position. In 1993 or 1994, Mr. Duncan and Mr. Willoughby worked together in the same depot. Mr. Duncan was the superintendent and superior to Mr. Willoughby, who was a supervisor. Mr. Duncan testified that Mr. Willoughby could not grasp even very simple concepts, that he was sloppy and neglectful at his duties, that he was unable to secure the necessary relationships with employees he was responsible for and that he made numerous administrative mistakes. He made, for example, numerous errors in vacation scheduling and would often fail to offer overtime to employees in the order dictated by the collective agreement. Under the collective agreement, if an employee is not offered overtime when it is his or her turn, CP was required to pay the employee anyway. Mr. Duncan testified that he took over some of Mr. Willoughby’s administrative tasks because of the number of errors he made. [35] Mr. Duncan also testified that Mr. Willoughby was infamous for damaging and deleting important computer software while attempting to modify or improve it. Mr. Duncan described that while he and Mr. Willoughby were in adjacent depots, Mr. Willoughby would regularly run in to his office in great distress having erased important system and other software. Mr. Duncan described that he constantly needed to call in technical support to fix computers damaged by Mr. Willoughby. Mr. Duncan described that computers were irresistible to Mr. Willoughby. He described an incident that had occurred in 1993 or 1994 while he was Mr. Willoughby’s superintendent. Mr. Duncan had received a new laptop computer from CP for use at work. Mr. Duncan testified that he begged Mr. Willoughby not to touch his computer one day before leaving the depot. Mr. Duncan described that when he returned, the computer was black and that it never worked again: It is black to this day. [36] Mr. Duncan testified that he was also aware that Mr. Willoughby was performing poorly in the training department in 2001. Mr. Willoughby, he testified, would often come into his office and would express increasing distress and concern that he was unable to perform the training department position adequately. [37] Ms. Gavin, a team leader in CP’s training unit, gave further evidence of Mr. Willoughby’s performance difficulties in the training department. She testified that Mr. Willoughby was easily distracted and made many mistakes during his tenure in the department. Ms. Gavin testified that she, together with Ms. Acton, the manager of CP’s training unit, met with Mr. Willoughby in early April of 2001 to discuss their concerns about his performance. Ms. Acton also gave evidence at the hearing. She testified that during this meeting, Mr. Willoughby acknowledged that his performance was poor, but that he was unable to give any adequate reason for his many mistakes. Mr. Willoughby described that he was suffering from some personal problems of long standing, though he did not elaborate any further on the nature of these problems. Neither Ms. Gavin nor Ms. Acton recalled Mr. Willoughby advising them that he thought he might be suffering from dyslexia. [38] Ms. Gavin testified that after this meeting, she and Ms. Acton decided that Mr. Willoughby should be sent for a medical examination and was later told that CP had received medical information advising that the difficulties giving rise to Mr. Willoughby’s poor job performance had resolved. She testified that she felt she had no choice but to ask that Mr. Willoughby be transferred, there being no medical explanation for his continuing poor performance. [39] Mr. Duncan testified that he was aware that Mr. Willoughby was not performing well after he had been transferred back to Depot 11 in the summer of 2001 on the 3:30 a.m. shift. Mr. Willoughby continued to visit him in his office on a regular basis and expressed that he was unable to meet the demands of this position. [40] Ms. Sample, superintendent of Depot 11 when Mr. Willoughby was re-assigned to that depot in July or August of 2001, gave further evidence of Mr. Willoughby’s performance problems in the depot. She testified that his job performance was well below the required standard almost immediately after he had been assigned to the depot. Ms. Sample testified that Mr. Willoughby was almost entirely unable to walk, and therefore could not adequately supervise the employees, and neither could he adequately supervise the delivery or the processing of mail. Further, he continued to make numerous mistakes in the administrative aspects of the position. [41] Mr. Duncan testified that because of Mr. Willoughby’s poor job performance and because of his medical restrictions there were no positions available at CP to accommodate him. Mr. Duncan canvassed numerous positions at CP, but found none that Mr. Willoughby could perform adequately. He could not, Mr. Duncan testified, continue to be a letter carrier supervisor because that position required that a person walk around the depot for about 90% of an eight hour shift. Mr. Duncan also testified that it would not be possible to bundle administrative tasks that other supervisors were performing to create an accommodative position for Mr. Willoughby as there was very little administrative work done by any supervisors. Bundling these jobs would not fill a day. [42] Mr. Duncan testified that positions in CP’s sales department also entailed a significant amount of walking. He also testified that the depot assistant positions, positions that he first described as being assigned as an accommodation for injured or aging employees, would be unsuitable for Mr. Willoughby because they entailed significant walking and lifting: They (the depot assistants) work harder than you and me put together. He described data entry and other administrative functions done by APOC employees such as those done in the route management and postal code maintenance departments as being highly skilled positions that demanded a highly tuned attention to detail. Mr. Willoughby, Mr. Duncan and others testified, had demonstrated that he was unable to attend adequately to detail and so could not perform these administrative assignments adequately. [43] Mr. Duncan gave evidence that CP did not formally canvass suitable positions that might be available in other bargaining units. Some of the job functions at CP were performed by employees who were members of the CUPW bargaining unit. As an example, the long and short letter sortation unit was described as a sedentary position assigned to injured workers. Mr. Duncan described that CP did not consider placing Mr. Willoughby in one of the CUPW positions because serious consequences would be visited on CUPW members should Mr. Willoughby be parachuted in to one of the CUPW positions. Mr. Duncan testified that should Mr. Willoughby be placed in a job outside his collective agreement, someone else would get bumped out on to the street if there were no vacancies in any particular unit. The only alternative should there be a full complement of workers would be to create a position for Mr. Willoughby and that, Mr. Duncan testified, is beyond any employer’s obligation when accommodating an employee. He did not know if there were any vacancies at the relevant time in the CUPW bargaining unit that would have been suitable for Mr. Willoughby. He had not checked. [44] Mr. Duncan also gave evidence that at the relevant time there were five employees in the PSAC bargaining unit who were surplus. Members of the PSAC bargaining unit did primarily administrative functions, many of which were sedentary. The positions formerly held by these surplus PSAC employees had become redundant as CP began to computerize more and more of its operations. Under the terms of a collective agreement, CP had agreed to keep these people on payroll. Mr. Duncan describes that these people were kept busy doing make-work projects, working on tasks like data entry. These employees were also used to backfill job vacancies when they arose. Mr. Kordoban testified that CP had at one time cancelled a contract that it had with a security company so that some of these PSAC employees could perform those functions while they remained surplus. Mr. Duncan testified that as CP was continuing to employ surplus workers, it was clear that there were no job vacancies in the PSAC bargaining unit. [45] Mr. Duncan testified that in April of 2002, when he decided that accommodation was not possible, he had not reviewed any of the medical information contained in Mr. Willoughby’s employment file. His estimation of Mr. Willoughby’s medical restrictions came as a result of his observations of and his conversations with Mr. Willoughby. Mr. Duncan understood from these observations and conversations that Mr. Willoughby’s only medical restriction was that he could not walk or stand much. He was unaware that Mr. Willoughby had been diagnosed with a sleep disorder, had been later diagnosed with PTSD, or that his doctor directed that he should work only a regular day shift. [46] Mr. Duncan testified that in advance of his meeting with Mr. Willoughby in February of 2003, ten months after he had last seen him, he had not consulted Mr. Willoughby’s employment file or read any medical reports. He was unaware of the Sun Life letter sent to CP in November of 2002 outlining Mr. Willoughby’s medical restrictions and its proposal by which Mr. Willoughby could return to work. He testified that his understanding that there had been no change in Mr. Willoughby’s restrictions came from the comments made at the meeting by a CP nurse. [47] Mr. Duncan also testified that he had made no specific inquiries about available job positions at CP that might be available to accommodate Mr. Willoughby in advance of or after the February, 2003 meeting. It was his testimony that as he understood from the comments of the CP nurse that Mr. Willoughby’s restrictions had not changed, CP’s position had not changed: there was no work available. IV. Analysis [48] Section 7(a) of the CHRA states that it is a discriminatory practice, whether directly or indirectly, to refuse to employ or to continue to employ any individual on a prohibited ground of discrimination. Section 7(b) states that it is also a discriminatory practice, whether directly or indirectly, in the course of employment, to differentiate adversely in relation to an employee on a prohibited ground of discrimination. Disability is a prohibited ground of discrimination enumerated in section 3, and section 25 directs that this ground prohibits discrimination on the basis of either physical or mental disability. [49] The onus is first on the complainant to establish a prima facie case of discrimination. A. Has the complainant demonstrated a prima facie case of discrimination on the basis of disability? [50] 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. The respondent’s answer is not to be considered when determining whether a prima facie case has been made out. (O’Malley v. Simpson-Sears Ltd. [1985], 2 S.C.R. 536 at para 28, see also Dhanjal v. Air Canada, (1997) 139 F.T.R. 37 at para. 6 and Moore v. Canada Post Corporation and Canadian Union of Postal Workers, 2007 CHRT 31 at para. 85). A complainant is not required to prove that discrimination was the only factor influencing the conduct which is the subject of the complaint. It is sufficient that a complainant make out a prima facie case that discrimination is a factor. (See Basi v. Canadian National Railway Company, (1988) 9 C.H.R.R. D/5029). [51] Mr. Willoughby’s allegations of discrimination are first that on or about March 12, 2002, CP continued his assignment to the 3:30 a.m. shift after having received a letter from his doctor directing that he required day shift assignments, and second, that CP refused to continue his employment in both April of 2002 and February of 2003 as a result of his disabilities. (i) Has a prima facie case been made out in respect of the first allegation: continuing the 3:30 a.m. shift assignment in March, 2002? [52] Mr. Willoughby alleges that when CP received the letter of Dr. Dodd in March of 2002, directing that he required a day shift assignment, its decision to continue his assignment to the 3:30 a.m. shift was a discriminatory practice. This allegation engages section 7(b) of the CHRA which directs that it is a discriminatory practice for an employer, in the course of employment, to differentiate adversely in relation to an employee on a prohibited ground of discrimination. [53] In Hutchinson v. Canada (Minister of the Environment, [2003] F.C.J. No. 439 (FCA), Pelletier JA, writing for a three member panel of the Court, directs that when considering a complaint of discrimination that arises as a result of a course of conduct between an employer and employee, rather than from a discrete and coherent employment policy, the appropriate question to ask when considering whether a complainant has made out a prima facie case of discrimination under section 7(b) is whether the transaction between the parties taken as a whole discloses adverse treatment on a prohibited ground (see paragraphs 75 and 76). There is no specific test or analysis that applies where one is considering whether a prima facie case is made under section 7(b). This Tribunal must be flexible, not overly legalistic in order to advance one of the broad purposes of the CHRA, being the elimination of discrimination in the workplace (Morris v. Canada Armed Forces [2005] F.C.A. 154 at paragraphs 27 to 30). Analyses made under section 7(b) must be made on a case by case basis and in a manner sensitive to the factual context. [54] I find that Mr. Willoughby has made out a prima facie case of discrimination. CP had accommodated his medical restrictions continuously since 1997, including his need to work day shifts. Then, abruptly, in the summer of 2001, CP assigned Mr. Willoughby back to the 3:30 a.m. shift. When CP received medical information in March of 2002 that Mr. Willoughby could work only a day shift, CP kept him on the 3:30 a.m. shift. There can be no question that CP’s course of conduct visited an adverse effect on Mr. Willoughby on the basis of his disability: CP’s decision was directly contrary to the clear direction of his doctor and caused his medical condition to worsen. I also find that Mr. Willoughby made out a prima facie case that he was treated not just adversely, but differentially on the basis of his disability. There is no free-standing right to accommodation under the CHRA as was recently observed by this Tribunal in Moore v. Canada Post 2007 CHRT 31 (paragraph 86). However, I find that Mr. Willoughby’s evidence that his employer received medical direction identifying a work restriction and that the restriction was not accommodated, makes out a prima facie case of differential treatment. I find that Mr. Willoughby has made out a prima facie case that he was treated adversely and differentially by CP on the basis of his disabilities. (ii) Has a prima facie case been made out on the second allegation: CP’s April, 2002 decision not to continue his employment? [55] Mr. Willoughby testified that in April of 2002, Mr. Duncan advised him that there were no positions available to accommodate him and that he should apply for disability benefits. [56] I find that a prima facie case has been made out in respect of this second allegation. Mr. Willoughby’s evidence, if believed, would prove that CP’s refusal to continue his employment on April 12, 2002 arose, at least in part, as a result of his disabilities in breach of section 7(a) of the CHRA in the absence of an answer from CP. (iii) Has a prima facie case been made out on the second allegation: CP’s February 14, 2003 decision not to continue his employment? [57] Sun Life wrote to CP in November of 2002 advising that Mr. Willoughby was ready to return to work and proposed a gradual return to work plan that included a discrete list of work restrictions. In February of 2003, Mr. Willoughby testified that he was advised that there were no positions available at CP to accommodate his restrictions. [58] I find that a prima facie case has been made out. Mr. Willoughby’s evidence, if believed, would prove that CP’s refusal to continue his employment on February 14, 2003, arose as a result of his disabilities in breach of section 7(a) of the CHRA in the absence of an answer from CP. B. Is CP able to justify its prima facie discriminatory conduct? [59] Section 15(1) of the CHRA directs that where an employer’s decision or course of conduct is established by the employer to have resulted from a bona fide occupational requirement, the decision is not a discriminatory practice. [60] Section 15(2) of the CHRA clarifies that for a practice or a decision to be considered to be based on a bona fide occupational requirement, the employer must establish that accommodating the needs of the employee would impose undue hardship on the employer considering health, safety and cost. [61] 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 analysis by which a bona fide occupation requirement must be assessed. [62] To establish that its conduct was justified, or that the conduct arose as the result of a bona fide occupational requirement, 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) Is CP able to justify its decision to continue the 3:30 a.m. assignment in March of 2002? [63] CP did not lead any direct evidence that would explain why Mr. Stevenson decided to keep Mr. Willoughby on the 3:30 a.m. shift after CP received medical information directing that he required day shift assignments. Mr. Stevenson was deceased at the time of the hearing and the personnel file he had maintained in respect of Mr. Willoughby could not be located. Mr. Duncan speculated that the 3:30 a.m. shift may have been the only position available at CP. [64] Once a complainant has satisfied his or her evidentiary burden, the employer must then satisfy its evidentiary burden: the employer must lead evidence to establish, on a balance of probabilities, each step of the Meiorin analysis. CP is unable to discharge its evidentiary burden in respect of any of the three arms of the Meiorin test. Mr. Duncan in his evidence speculated as to the considerations that might have informed Mr. Stevenson’s decision to continue Mr. Willoughby’s assignment on the 3:30 a.m. shift. An employer cannot discharge the evidentiary burden established in Meiorin by speculation (British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] S.C.J. No. 73 at para. 41). I find that CP has been unable to satisfy its evidentiary burden in respect of this allegation. (ii) Is CP able to justify its decision not to continue Mr. Willoughby’s employment in April of 2002? [65] CP’s evidence in respect of this allegation gives rise to a consideration that is preliminary to a consideration of whether its conduct was justified as contemplated in the Meiorin test. Mr. Duncan testified that Mr. Willoughby asked to be put on disability and that Mr. Duncan merely facilitated his request by assisting him in his application for benefits. Thus, there was no refusal to continue to employ Mr. Willoughby. Mr. Duncan’s evidence is, of course, contrary to that of Mr. Willoughby, who testified that he was told that there was nothing for him at CP and that his only recourse was to apply for disability benefits. I find that Mr. Willoughby’s evidence is more credible and accept it over the evidence of Mr. Duncan. I note in coming to this conclusion that in the disability insurance application form completed by Mr. Willoughby, he writes as follows: I would have continued working. My doctor says, and Canada Post’s doctor says I should work a normal day shift, but Canada Post says that there are no day shift positions that are within my physical limitations. In addition, an e-mail exchange was introduced into evidence at the hearing of this complaint. Mr. Duncan was asked by CP in 2003 to summarize the manner in which Mr. Willoughby’s accommodation was handled. In his response, Mr. Duncan did not report that Mr. Willoughby had requested that he go on disability. One would expect that had Mr. Willoughby asked to go on disability, or at least, had Mr. Duncan interpreted their discussion that way, this information would have been included in Mr. Duncan’s report in 2003. It was not. [66] Having found that Mr. Willoughby did not ask to be put on disability, I will review the evidence led by CP in the alternative, being that there were no positions available at CP to accommodate Mr. Willoughby. [67] Turning to the first arm of the test in Meiorin, did CP establish that its decision was made for a purpose rationally connected to the performance of the work? It was CP’s evidence that the combination of Mr. Willoughby’s medical restrictions and his performance difficulties that led it to conclude that there were no positions available to accommodate him within his own bargaining unit. Further, that assigning Mr. Willoughby to a position outside his own bargaining unit would create undue hardship as it would require that CP create a position for him. CP’s purpose, it would appear, was to preserve efficiency in its operations. I find that CP’s decision was made for a purpose rationally connected to the performance of the work. [68] Moving to the second arm of the analysis, did CP establish that its decision was made in an honest and good faith belief that it was reasonably necessary to satisfy its legitimate work-related purpose? I find that CP has not established this second arm of the test. I find that CP knew or ought to have known that it had not properly considered the question of whether its decision was reasonably necessary in the circumstances. [69] CP’s refusal to continue to employ Mr. Willoughby was made by Mr. Duncan. Mr. Duncan was an experienced labour relations officer with CP. He testified that he had significant experience in accommodation issues, dealing with employees and representing the company at arbitrations. I find that Mr. Duncan had, or ought to have had, an extensive understanding of the considerations applicable to a determination of whether a decision to refuse employment was reasonably necessary as contemplated by the Supreme Court of Canada in Meiorin and that he had an extensive understanding of the procedural requirements imposed on employers as they consider whether they can accommodate the needs of an employee. I will deal with the procedural and substantive elements of the third arm of the test in Meiorin shortly, but I will observe in making this finding that it was Mr. Duncan’s evidence that he did not, in advance of concluding that CP could not accommodate Mr. Willoughby, even review his file or any of the medical reports that had been written. Had Mr. Duncan reviewed the file, he might have noticed that Mr. Willoughby had been assigned to a shift that was contrary to his medical requirements. He might have realized that perhaps Mr. Willoughby’s job performance difficulties in Depot 11 arose at least in part as a result of this assignment. As I will explore at greater length shortly, individual assessment is a critical first step that an employer must undertake when considering the accommodative needs of an employee. An experienced labour relations officer could not, in my view, hold a good faith belief that he or she was properly attending to the considerations necessary to an analysis of whether refusing to continue the employment of an employee was reasonably necessary, where such person failed to undertake such a fundamental preliminary inquiry. [70] Turning to the third step of the Meiorin test we ask whether the employer has established, on a balance of probabilities, that its decision was 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 Grismer, supra, at para. 20 and Hutchinson, supra, at para. 70). [71] CP concluded that it could offer no position to Mr. Willoughby in April of 2002. Was this decision reasonably necessary in the sense contemplated in Meiorin? I find that it was not. [72] We are directed in this third arm of the test, to look first at the process or procedures adopted by the employer to assess the issue of accommodation, and second, to look at the substantive content of the decision made (Meiorin, supra, at para. 66). [73] An employer must demonstrate that the processes or procedures adopted to assess the matter 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); 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); an employer must be innovative and practical in assessing accommodation issues. (a) Was CP sensitive to Mr. Willoughby’s skills, capabilities and potential contributions? [74] I find that CP was not sensitive to and respectful of Mr. Willoughby’s skills, capabilities and potential contributions. This procedural requirement can be met only if the employer can establish that it has taken all necessary steps to ensure that they have fairly and properly assessed the employee’s skills, capabilities and potential contributions. CP led no evidence that it undertook such an analysis in advance of considering Mr. Willoughby’s need for accommodation [75] CP did lead evidence of Mr. Willoughby’s job performance difficulties. I find, however, CP’s evidence regarding these difficulties to have been overstated. The conduct that was described by Mr. Duncan is of a nature that one would expect to be met seriously by an employer. CP failed to produce a single poor performance review other than the one performed in 2001 while he was in the training unit. It was also CP’s evidence that no disciplinary actions were taken in respect of Mr. Willoughby. If Mr. Willoughby was constantly and against direct orders ruining computers and important CP software, if he was utterly derelict and incompetent in his supervisory duties, surely a performance evaluation would make some mention of these matters. It is also difficult to believe that not a single disciplinary action was taken if the misconduct was as serious and relentless in nature as alleged. [76] Further, while medical reports were in the hands of CP, Mr. Duncan had not familiarized himself with these reports in advance of making his decision. Surely, taking the necessary steps to fairly and properly assess an employee’s limitations is a necessary element of the employer’s duty to be respectful of and sensitive to the unique capacities and circumstances of each employee and a necessary element of this procedural requirement. [77] The decision not to continue Mr. Willoughby’s employment in April of 2002 was based on the impression of Mr. Willoughby’s condition formed by Mr. Duncan during his visits with him. The impression formed by Mr. Duncan was incomplete. He was unaware of the PTSD diagnosis and Mr. Willoughby’s need to work a regular day shift. Without accurate preliminary information an employer cannot reasonably expect to be successful at accommodating an employee. This step of information gathering is crucial to the accommodation process and this step was ignored by CP. (b) Did CP carefully consider alternative approaches to Mr. Willoughby’s accommodation? [78] CP led considerable evidence regarding the nature of alternate positions that might have been available to accommodate him within the APOC bargaining unit. I find that CP overstated the rigors of at least some of these jobs. I find that Mr. Duncan was not a very credible witness in respect of fairly describing the demands of at least some of the different positions that might have been made available to Mr. Willoughby. His evidence about the rigors of the depot assistant positions, after describing them as positions used to accommodate the aging and the infirm was less than credible. Further, his evidence was at times contradicted by other employees. For example, Mr. Kordoban, manager of CP’s production, control and reporting department, also gave evidence at the hearing. His department dealt with staffing and budgeting among other things. Mr. Kordoban described that the route management and postal code management units were often used to temporarily accommodate injured employees and further that they did not have to be highly skilled; they learned on the job. (c) Did CP conduct an adequate search for alternative employment? [79] I find that CP failed to demonstrate that it had carefully considered alternative approaches to Mr. Willoughby’s accommodation before deciding in April of 2002, that it was unable to accommodate him. CP led evidence that Mr. Willoughby could not perform any of the jobs available in the APOC bargaining unit. The letter carrier supervisor job required too much walking. Other APOC positions, for example data entry in the route management unit or the postal code maintenance unit, required an exquisite attention to detail. I found earlier that CP over-stated the rigors of many of the positions that might have been made available to Mr. Willoughby in his own bargaining unit. I also found earlier that CP over-stated Mr. Willoughby’s short-comings as a supervisor. I find that CP did not demonstrate that there were no positions available within the APOC bargaining unit that could have accommodated Mr. Willoughby. [80] Further, CP did not demonstrate that it had made adequate inquiries in respect of positions that may have been available in other of its collective bargaining units. First, CP’s evidence, through its labour relations officer, was that it had not made any careful investigation of whether there might be positions available within the CUPW bargaining unit. Mr. Duncan, it seems, assumed that if Mr. Willoughby was accommodated in that unit, some CUPW employee would be bounced into the street. This impressionistic evidence simply fails to meet the employer’s procedural duty when considering accommodation. Mr. Duncan also testified that since there were surplus workers in the PSAC bargaining unit, there could be no positions available. This is not adequate investigation. The mere existence of surplus workers in the PSAC bargaining unit does not lead inexorably to the conclusion that there could be no positions that might be made available to Mr. Willoughby. Perhaps there was a position, or positions, that the surplus workers could not do, but that Mr. Willoughby could do. CP did not make these inquiries. [81] Further, unions have a role where an employer is seeking accommodation for an employee. A union has an obligation to become involved in matters of accommodation where such involvement is required to make accommodation possible, there being no other reasonable alternate resolution available to an employer (Renaud v. Central Okanagan School District No. 23 (1992) 95 D.L.R. 4th 577 (S.C.C.)). While the decision in Renaud dealt with the duty of a union to cooperate with an employer in respect of its own members, I see no principled reason why, where an employer’s operation includes more than one union, a duty of cooperation would not attach to another bargaining unit if such cooperation is found to be the only way to secure accommodation for an employee. Had CP discovered a position that would have accommodated Mr. Willoughby, they could then have requested that the union cooperate. I find that CP should have canvassed both of CUPW and PSAC carefully to search for an accommodative position for Mr. Willoughby and I find that they did not. (d) Was CP adequately flexible and creative? [82] Employers must be innovative in their search to accommodate an employee. They must be flexible and creative. CP did not demonstrate adequate innovation, flexibility or creativity. CP dismissed out of hand any possibility that they could have bundled different tasks to provide an accommodative position for Mr. Willoughby. CP led evidence that there were insufficient administrative tasks performed by supervisors in a single depot to create a full time position for Mr. Willoughby. It did not, however, lead evidence that CP looked more broadly at its operations to determine whether there were other tasks that could be bundled to accommodate Mr. Willoughby. [83] 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. [84] CP is a much larger operation with hundreds of employees working in Edmonton and doing a wide range of different job functions. I find that CP, had it been properly innovative and flexible, could have attempted to create, modify or re-package one or more of these job functions to accommodate Mr. Willoughby. CP led no evidence that it had engaged in this type of inquiry. (e) Did CP demonstrate that accommodating Mr. Willoughby would have created undue hardship? [85] Moving beyond the process employed by CP in considering its accommodation of Mr. Willoughby and viewing the substance of the decisions made, it is clear that CP failed to demonstrate that its decisions were justified in the manner contemplated by Meiorin. CP led no evidence to suggest that it would suffer undue hardship should it have accommodated Mr. Willoughby. [86] CP’s position was that the only way it could accommodate Mr. Willoughby would be to create a position for him and that creating a position always amounts to undue hardship. First, I have found that CP did not establish that creating a position would be the only way that Mr. Willoughby could have been accommodated. However, even if that were true, such a requirement will not in every circumstance establish that the employer would suffer undue hardship. [87] The CHRA directs in section 15(2) that undue hardship may be made out through the consideration of health, safety and cost. The section does not direct that undue hardship will be made out wherever an employer is required to create a position to accommodate an employee and nor, in my opinion, should this section be interpreted in such a manner. Whether any action that might be necessary to accommodate an employee would be creative of undue hardship by reason of undue cost must be determined on a case by case basis. CP led no evidence that the creation of a position would, given its financial circumstances, be creative of undue hardship by reason of the cost that would be involved. [88] I find that CP 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 Mr. Willoughby’s restrictions without suffering undue hardship. (iii) Did CP demonstrate that its decision to refuse to continue Mr. Willoughby’s employment in February of 2003 was justified? [89] In February of 2003, Mr. Willoughby attended at CP for a meeting to discuss his return to work. A return to work proposal had been prepared by Sun Life after consulting with Mr. Willoughby, his doctor and his psychologist. The return to work proposal identified four restrictions. CP decided that it could not accommodate Mr. Willoughby. CP’s reasons were the same as those that led it to decide it could not accommodate Mr. Willoughby earlier. [90] Turning to the first arm of the test in Meiorin, I find, again that the purpose of CP’s decision was efficiency and further that the purpose was a legitimate work-related purpose and that the decision was rationally connected to that purpose. [91] Turning to the second arm of the test in Meiorin, I find that CP did not have an honest and good faith belief that its decision was reasonably necessary. By the time of the meeting in February of 2003, Mr. Willoughby had been off work for several months. It was Mr. Duncan’s evidence that he did not, in advance of this meeting, review any of Mr. Willoughby’s medical information. He was not aware that a return to work program had been designed to facilitate Mr. Willoughby’s return. He had made no formal canvass of jobs that might be available to accommodate Mr. Willoughby. His evidence was that he understood Mr. Willoughby’s restrictions had not changed and so CP’s position had not changed. There were no positions available. The process undertaken by Mr. Duncan in advance of deciding that Mr. Willoughby’s employment would not be continued was wholly inadequate. In the circumstances, I find that CP did not have an honest and good faith belief that its decision was reasonably necessary. [92] With respect to the third arm of the Meiorin test, the evidence led by CP relevant to this part of the analysis in respect of the February, 2003 decision was the same evidence that was led in respect of the April, 2002 decision. Accordingly, my analysis of whether the decision was reasonably necessary is the same for both decisions. I repeat the earlier analysis and find that CP has not demonstrated that its decision not to continue Mr. Willoughby’s employment in February of 2003 was reasonably necessary. (iv) Finding of Discrimination [93] For all these reasons, I find that Mr. Willoughby’s complaint that he suffered discrimination on the basis of his disabilities in breach of both sections 7(a) and 7(b) of the CHRA has therefore been substantiated. V. Remedies A. Compensation for lost wages [94] Mr. Willoughby has asked for compensation for lost wages pursuant to section 53(2)(c) of the CHRA. Section 53(2)(c) empowers a tribunal, upon having found a complaint substantiated, to compensate the victim for any or all of the wages that the victim was deprived of as a result of the discriminatory practice. [95] The Federal Court of Appeal has recently considered the analysis appropriate to making awards in compensation for lost wages. In Chopra v. Canada (Attorney General), [2007] F.C.J. No. 1134, Pelletier J.A., writing for the Court, directs that the central consideration when considering such an award is to determine whether there exists a causal connection between the lost wages and the discriminatory act or acts. The principles that limit recovery in damage assessments in civil litigation, such as remoteness and foreseeability, have no application. A wrongdoer may be ordered to compensate its victim for losses caused by his or her conduct whether or not such losses could have reasonably been foreseen. Section 53(2)(c) gives the Tribunal discretion. The section directs that a tribunal may order compensation in respect of any or all of wages lost as a result of discriminatory conduct. This discretion must be exercised in a principled manner (Chopra, supra, at para. 37). Further, while a tribunal may consider whether a victim has taken steps to mitigate his or her damages, mitigation is not a mandatory consideration. Mitigation can be considered should the Tribunal consider it appropriate in the circumstances. [96] Mr. Willoughby was unable to obtain employment until July of 2004. He testified that he was at first emotionally devastated by CP’s conduct and that later he had difficulty finding employment because of his disabilities. I find that Mr. Willoughby made reasonable attempts to mitigate his damages by looking for alternate employment. I also find that CP’s discriminatory conduct was the cause of the period of unemployment experienced by Mr. Willoughby before he was able to secure employment. Had CP not refused to continue his employment, Mr. Willoughby would have remained employed. Mr. Willoughby testified that he was able to secure alternate employment in July of 2004. I believe that an award for lost wages extending from when he last worked for CP in April of 2002 until the day he commenced employment with Mill Woods Suzuki in July of 2004 is appropriate compensation for lost wages. [97] Pursuant to section 53(2)(c) of the CHRA, I order CP to compensate Mr. Willoughby for wages that he has lost from his removal from service, April 15, 2002, until the date he commenced working in July of 2004. Any disability or other benefits and any employment income received by him will be deducted from the award or re-paid to the issuer. In addition, CP will pay to Mr. Willoughby any employment benefits he would have received during this time, including the amount, if any, that CP would have contributed to Mr. Willoughby’s pension plan on his behalf. [98] Mr. Willoughby has asked that he be compensated for 95 days of lost sick benefits. I heard no evidence to suggest that employees of CP are entitled to receive any monetary compensation for banked sick days upon their departure from CP’s employ and accordingly I do not make this order. B. Compensation for pain and suffering [99] Mr. Willoughby testified that CP’s refusal to assign him to a day shift in March of 2002, after having received a letter from his doctor containing that direction, caused his health, both his physical and his mental health, to continue to deteriorate. [100] Mr. Willoughby also testified about the emotional impact of CP’s refusal to continue his employment, first in April of 2002 and again in February of 2003. He described feeling devastated. He felt betrayed by his employer, felt wholly without value and depressed. He testified that his psychological symptoms became aggravated. 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). I find that CP’s conduct caused Mr. Willoughby to suffer serious pain and suffering. [101] I order CP to pay Mr. Willoughby $10,000.00 in compensation for this pain and suffering. C. Special Compensation [102] The complainant asks for special compensation. Under the CHRA, the Tribunal has the jurisdiction to award a maximum of $20,000.00 upon finding that a respondent has engaged in a discriminatory practice willfully or recklessly (section 53(3)). I have found that CP knew or ought to have known that it had not attended to the matter of Mr. Willoughby’s accommodation in a manner consistent with the principles established in Meiorin. CP’s conduct was either willful or it was reckless. Special compensation is accordingly appropriate and I award $10,000.00. D. Legal Costs [103] The complainant asks for an order directing that the respondent pay the legal costs incurred by him during the course of this proceeding. Sections 53(2)(c) and 53(2)(d) both empower 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. [104] Chairperson Sinclair has recently made a careful review of Federal Court jurisprudence dealing with this issue (Mowat v. Canada Post Corporation, 2006 CHRT 49). He concludes that the predominance of authority from that court is that the Tribunal has the power to award legal costs under section 53(2). [105] I agree with this conclusion and am further persuaded that this Tribunal has the jurisdiction to award legal costs for the reasons articulated by Chairperson Mactavish (as she then was) in her decision of Nkwazi v. Canada (Correctional Service), [2001] C.H.R.D. No. 29). Chairperson Mactavish notes 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). [106] The Federal Court of Appeal decision in Chopra does not deal expressly with the matter of legal costs. The decision does, however, consider the proper interpretation of section 53(2)(c), which is one of the sections of the CHRA that confer upon this Tribunal the jurisdiction to award legal costs. Pelletier J.A. directs that the central consideration when making awards pursuant to this section is that of a causal nexus between the expenses incurred and the discriminatory conduct. Considerations such as remoteness, foreseeability, have no application, and mitigation can be considered where appropriate, but is not a mandatory element of the analysis. [107] In this case, each of the three allegations was found to have been substantiated. I find that CP’s discriminatory conduct caused Mr. Willoughby to incur legal expenses in the pursuit of his complaint. I find that in the circumstances it is appropriate that Mr. Willoughby’s reasonable legal expenses incurred in relation to this complaint be paid, and I so order. E. Interest [108] Interest is payable in respect of all the awards made in this decision, except the award of legal costs, pursuant to section 53(4) of the CHRA. In denying interest in respect of legal fees, I am persuaded by the decision of Chairperson Sinclair, that interest is not an expense under section 53(2) of the CHRA. I heard no evidence that Mr. Willoughby paid any interest in respect of his legal expenses and so do not order that interest is payable in respect of this expense. [109] In respect of the other orders, 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. F. Retention of jurisdiction [110] 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 remedies ordered in the within decision. Should the parties require direction on any remedial matter they may request same within 60 days of the date of this decision. Signed by Julie C. Lloyd Tribunal Member Ottawa, Ontario October 26, 2007 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1076/5705 Style of Cause: Guy Willoughby v. Canada Post Corporation Decision of the Tribunal Dated: October 26, 2007 Date and Place of Hearing: May 7 to 11, 2007 Edmonton, Alberta Appearances: Ronald T. Smith, for the Complainant No one appearing, for the Canadian Human Rights Commission Zygmunt Machelak, Renu Srai and Tom Duncan, for the Respondent

2007 CHRT 46

CHRT

Montreuil v. Canadian Forces

en

2007-10-25

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7200/index.do

2023-12-01

Montreuil v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2007-10-25 Neutral citation 2007 CHRT 46 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: October 25, 2007 Citation: 2007 CHRT 46 [1] On the morning of October 17, 2007, in the course of the examination of Dr. Christiane Dufour, the Tribunal Chairperson observed at approximately 10:35 a.m. that Ms. Montreuil, the complainant, appeared to be asleep in her chair. Gesturing with his hand, the Tribunal Chairperson indicated to the respondent’s counsel to stop his examination of Dr. Dufour. Then, for 20 minutes, the Tribunal Chairperson observed Ms. Montreuil sleeping with her head on her chest. During this 20-minute period, nobody in the hearing room – i.e. the Tribunal Chairperson, the registry officer, the respondent’s two counsel, the Commission’s counsel and the witness – made the slightest sound, observing complete silence. It was not until about 10:55 a.m. that Ms. Montreuil finally woke up. [2] The Tribunal Chairperson then let Ms. Montreuil know that she had slept for 20 minutes and that during all that time, the Tribunal Chairperson as well as the other persons present in the hearing room were able to observe this fact. Moreover, the audio recording that continued during this 20-minute period indicates that not a word was said during this period of time in the hearing room. The Tribunal Chairperson also told Ms. Montreuil that she would not be allowed to cross-examine Dr. Dufour, as her mental absence during Dr. Dufour’s examination prevented her from adequately following her testimony and from carrying out an effective cross-examination. The Tribunal told the parties that it would give reasons for its decision. [3] About 20 minutes after the hearing resumed, the Tribunal Chairperson noted that Ms. Montreuil was dozing. The Tribunal Chairperson once again interrupted Dr. Dufour’s testimony to let Ms. Montreuil know that her conduct was unacceptable. Ms. Montreuil then explained her state of fatigue by the fact that she had not slept for almost 28 hours, having prepared documents for this proceeding, exams for her students, etc. Moreover, Ms. Montreuil stated that the witness’ excessively soft voice was putting her to sleep. [4] The Tribunal Chairperson then reminded Ms. Montreuil that the hearing room was not a dormitory and that it was unacceptable for counsel not to be attentive to the debates taking place in a hearing room and to the examination of a witness whom she is expected to cross-examine. The Tribunal Chairperson then demanded that Ms. Montreuil choose between being entirely present before the Tribunal or excusing herself to rest outside the hearing room. Ms. Montreuil then decided to leave the hearing room. [5] On the afternoon of October 17, the Tribunal observed that Ms. Montreuil was not present when the hearing resumed to continue Dr. Dufour’s examination. Ms. Montreuil was however present when the hearing resumed after the afternoon recess. [6] It goes without saying that in the context of a hearing, both the physical presence and the mental presence of counsel is required if counsel is called to cross-examine a witness. The fact that counsel, who is also a party, would sleep during a hearing is disrespectful to the Tribunal as well as to the witness, colleagues and the administration of justice. It is, in fact, unacceptable that the conduct of a member of the Bar be as offensive and disrespectful as Ms Montreuil’s conduct. [7] As a member of the Bar, Ms. Montreuil must be aware of the decorum that must be displayed before any Tribunal. The reasons made ex post facto by Ms. Montreuil to explain her conduct do not hold water. Her numerous activities cannot in any way justify a conduct as irreverent and disrespectful as hers was before the Tribunal. In the Tribunal’s opinion, her conduct on the morning of October 17, 2007, compromised her ability to perform her duties as counsel, at least insofar as Dr. Dufour’s cross-examination was concerned. [8] Accordingly, considering that Ms. Montreuil did not show that she was closely following the testimony of Dr. Dufour, the respondent’s witness, at the hearing on the morning of October 17, 2007, so that she could at the appropriate time proceed with a relevant and effective cross-examination but that instead, to the contrary, she was in a state which prevented her from following Dr. Dufour’s testimony and comprehending its content, for all intents and purposes, the Tribunal withdraws Ms. Montreuil’s right to cross-examine Dr. Dufour. Only the Commission’s counsel is authorized to cross-examine Dr. Dufour. Signed by Pierre Deschamps Tribunal Member Ottawa, Ontario October 25, 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: October 25, 2007 Appearances: Micheline Montreuil, for herself Ikram Warsame, for the Canadian Human Rights Commission Guy Lamb and Claude Morissette, for the Respondent

2007 CHRT 47

CHRT

Montreuil v. Canadian Forces

en

2007-10-25

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7197/index.do

2023-12-01

Montreuil v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2007-10-25 Neutral citation 2007 CHRT 47 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: October 25, 2007 Citation: 2007 CHRT 47 [1] The complainant, Micheline Montreuil, filed a motion with the Tribunal during the hearing on October 17, 2007, first, to have Guy Lamb, one of the respondent’s counsel, declared guilty of breaching his professional and ethical duties, as well as deliberately deceiving and misleading the complainant. In her request, Ms. Montreuil asks, moreover, that Mr. Lamb be excluded from the Tribunal (sic) for the remainder of the hearings. [2] Attached to this request is another request to order the respondent, the Canadian Forces, to pay the complainant the amount of $336.10 in repayment of the costs incurred for a trip to Montréal in May 2006 for an interview with Dr. Assalian, Dr. Wilchesky and Dr. Dufour. [3] At the hearing, the respondent made a verbal motion to dismiss the complainant’s requests. The respondent raised two grounds regarding the finding of guilt and one ground regarding the payment of the amount of $336.10. [4] With regard to the request for the declaration of guilt, the respondent submits first that the Tribunal does not have jurisdiction to decide this matter and that there are other forums for dealing with the issues raised by the complainant. The respondent submits next that the complainant’s request is an abusive proceeding that has no basis in law. [5] With regard to the payment of the amount of $336.10 for costs incurred by the complainant when she travelled to Montreal for an interview with Dr. Assalian, Dr. Wilchesky and Dr. Dufour, the respondent argues that this issue must be determined later, namely during the arguments on remedies. [6] After hearing counsel, the Tribunal rendered judgment from the bench. The Tribunal granted the respondent’s verbal motion to dismiss, with reasons to follow in regard to the complainant’s first request. The Tribunal deferred its decision regarding the amount of $336.10 until after hearing the parties on the issue of remedies. [7] This decision sets out the reasons that lead the Tribunal to dismiss the complainant’s first request regarding Mr. Lamb’s conduct. [8] In this case, the complainant is asking the Tribunal to find Mr. Lamb guilty of failing to respect his professional and ethical duties as well as deliberately deceiving and misleading the complainant. She is requesting that Mr. Lamb be excluded for the remainder of the hearings. [9] The complainant, who is a lawyer, must know that breaches of professional ethics, for that is what we are dealing with in this case, are under the jurisdiction of the Barreau du Québec’s syndic and not of a Tribunal like this Tribunal. If the complainant believes that Mr. Lamb acted inappropriately toward her and breached his professional duties, the complainant can file a complaint with the syndic of the Barreau du Québec. The Tribunal does not have any jurisdiction to declare counsel guilty of a breach of professional ethics. [Emphasis added.] [10] Moreover, the Tribunal is of the opinion that this request involving a counsel of the Canadian Forces is an abuse of process. As stated earlier, the Tribunal has no authority to find counsel guilty of failing to respect his professional and ethical duties or deliberately deceiving and misleading the complainant. This would require some form of proof from the complainant as well as a response from Mr. Lamb. Whatever the case, the Tribunal does not have the jurisdiction to preside over such a hearing. [11] That said, the request to exclude Mr. Lamb from the Tribunal for the remainder of the hearings has no legal foundation, no legal basis and makes no sense. It is an entirely unreasonable request by Ms. Montreuil and is indicative of a complete ignorance of the rules of procedure and the applicable law on her part. [12] A party cannot present untimely procedures as she pleases and rashly demand orders. This is what Ms. Montreuil is doing in this case. The findings that she seeks in this case are a non sequitur to the allegations. [13] Rather than file requests like the request contemplating Mr. Lamb, it would be to Ms. Montreuil’s advantage to concentrate on the more fundamental aspects of her complaint. In so doing, she would not have to work day and night and she would then be able to make her presence at the hearings more constructive. [14] Moreover, if Ms. Montreuil believes that there was an agreement between her and the respondent’s counsel in regard to her travelling to Montréal to meet with Dr. Assalian, Dr. Wilchesky and Dr. Dufour and that there’s a breach of the agreement, she will simply have to argue in due course that there was an agreement – even verbal – and that it was breached. The Tribunal will then be able to determine whether there was such an agreement and, if need be, order the respondent to pay back the costs claimed. [15] Accordingly, the motion to dismiss by the respondent’s counsel is granted and Ms. Montreuil’s request to have Mr. Guy Lamb, one of the respondent’s counsel, found guilty of failing to respect his professional and ethical duties and deliberately deceiving and misleading the complainant, as well as to exclude him from the hearings, is dismissed. Signed by Pierre Deschamps Tribunal Member Ottawa, Ontario October 25, 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: October 25, 2007 Appearances: Micheline Montreuil, for herself Ikram Warsame, for the Canadian Human Rights Commission Guy Lamb and Claude Morissette, for the Respondent

2007 CHRT 48

CHRT

Morten v. Air Canada

en

2007-10-25

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7187/index.do

2023-12-01

Morten v. Air Canada Collection Canadian Human Rights Tribunal Date 2007-10-25 Neutral citation 2007 CHRT 48 File number(s) T1207/1907 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Ruling Decision status Interim Grounds Disability Decision Content Between: Eddy Morten Complainant - and - Canadian Human Rights Commission Commission - and - Air Canada Respondent Ruling Member: J. Grant Sinclair Date: October 25, 2007 Citation: 2007 CHRT 48 Air Canada’s Motion [1] Air Canada brings a motion asking the Tribunal to permanently stay the hearing of the human rights complaint of Eddy Morten which he filed with the Canadian Human Rights Commission (CHRC) on September 19, 2005. The CHRC referred his complaint to the Tribunal on February 23, 2007. Mr. Morten and His Human Rights Complaint [2] In his human rights complaint, Mr. Morten claims that Air Canada requires him to travel with an attendant when there is no such requirement for an able-bodied person. He alleges that, in doing so, Air Canada discriminates against him because of his disability, contrary to s. 5 of the Canadian Human Rights Act (CHRA). [3] Mr. Morten describes himself as a 43 year old male who is deaf-blind. He has some tunnel vision and lives totally independently without home care support. In August 2004, Mr. Morten purchased an airline ticket through his travel agency to fly on Air Canada from Vancouver to San Francisco. He has traveled alone to Europe twice and to the United States frequently on Air Canada and other airlines. [4] About two weeks after he booked his flight, he was told by his travel agency that Air Canada would not allow him to travel on the flight to San Francisco unless he was accompanied by an attendant. He did not make the trip. [5] Mr. Morten does not have access to an attendant and cannot afford to pay for an attendant fare. More importantly, he firmly believes that he is well able to fly independently and does not require an attendant. Canada Transportation Agency Decision [6] In February 2005, Mr. Morten filed an application with the Canada Transportation Agency (Agency), under the Canada Transportation Act (CTA). He claimed that the requirement of Air Canada that he travel with an attendant was an undue obstacle to his mobility. [7] The Agency issued its decision on July 8, 2005. It agreed with Mr. Morten that Air Canada’s requirement is an obstacle to his mobility. But the Agency concluded that it is not undue. Accordingly, the Agency took no action on Mr. Morten’s application. [8] Air Canada argues that the same issues raised by Mr. Morten in his human rights complaint have already been dealt with by the Agency and should not be re-litigated. Air Canada pleads issue estoppel, collateral attack and abuse of process. [9] Mr. Morten’s complaint to the Agency is under Part V of the CTA. Section 172 empowers the Agency on application, to determine whether there is an undue obstacle to the mobility of persons with disabilities using the federal transportation network. If the Agency concludes this to be the case, it can require corrective action or direct compensation be paid for any expense incurred by a person with a disability, or both. [10] Part V of the CTA must be considered in conjunction with s. 5 of that CTA, which declares Canada’s national transportation policy. In particular, s. 5 (g)(ii) provides that each carrier or mode of transportation should operate, as far as is practicable, so as not to cause an undue obstacle to the mobility of persons including those with disabilities. [11] Both Mr. Morten and Air Canada made submissions to the Agency concerning Air Canada’s requirement that he travel with an attendant. In reaching its decision, the Agency noted that Air Canada had consulted with Mr. Morten’s travel agency and his representative with respect to his disability. On the basis of these consultations, Air Canada concluded that Mr. Morten was not self-reliant and required an attendant. According to Air Canada’s applicable tariff, non self-reliant means a person who is not self-sufficient and capable of taking care of his/her needs during a flight or during an emergency evacuation or decompression, and has no special or unusual needs beyond assistance in boarding or deplaning. [12] On the question of whether Air Canada’s requirement was an undue obstacle, the Agency accepted Air Canada’s assessment of the safety-related concerns that could arise in the event of an emergency evacuation or decompression. Air Canada’s position is that, in these situations, Mr. Morten could hinder not only his own safety but the safety of all passengers. The collective safety of the passengers and crew must take precedence over the personal preference of an individual passenger. The Agency and Human Rights Principles [13] The Supreme Court of Canada in its 2007 decision in CCD v. Via Rail, recognized that the test for finding an undue obstacle to mobility under the CTA is the same test for determining undue hardship under s. 15 of the CHRA. And in defining and identifying undue obstacles in the transportation context, the Agency must apply the principles of the CHRA (Council of Canadians with Disabilities v. Via Rail Canada Inc., 2007 SCC 15, at para. 115) [14] Where an employer or service provider seeks to justify an otherwise discriminatory, policy or practice under s.15 of the CHRA, they must demonstrate that they have made every possible accommodation short of undue hardship. [15] The human rights principles as to what constitutes undue hardship have been considered in a number of Supreme Court decisions. These decisions may be summarized as follows. Where there is a barrier to mobility, the barrier can only be justified if it is impossible to accommodate the individual without imposing undue hardship on the person who has imposed the barrier. The point of undue hardship is reached when all reasonable alternatives to accommodation are exhausted and there remains only unreasonable or impractical options for accommodation (VIA Rail at paras. 129, 130). [16] For the Agency to conclude that there is no undue obstacle to the mobility of persons with disabilities, it must be satisfied that no reasonable alternative to burdening such persons exists. The burden to satisfy the Agency is on the person who has imposed the barrier. Issue Estoppel [17] With this background, I turn now to a consideration of issue estoppel and whether it should be applied in this case. Three pre-conditions must be satisfied before issue estoppel applies: the same question is being decided in both proceedings; the judicial decision said to create the estoppel is final; and the parties or the privies are the same in both proceedings. [18] However, even if these conditions are satisfied, a court or tribunal must decide, as a matter of discretion, whether issue estoppel should be applied in the circumstances of the particular case (Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at paras. 25, 33). [19] The third pre-condition has not been established. The parties to the Agency adjudication were Mr. Morten and Air Canada. The parties to the human rights proceeding are Mr. Morten, Air Canada and the CHRC. The parties are not the same. [20] The CHRC cannot be considered in any way to be the privy of Mr. Morten. Section 51 of the CHRA makes it clear that when appearing at a hearing, the CHRC represents the public interest and not the complainant. [21] Indeed, on this question, Air Canada simply argues that although the Commission has now been added as a party to the Tribunal proceedings for the purpose of representing the public interest pursuant to the Canadian Human Rights Act, it is submitted that this aspect of the test for issue estoppel has been met. Air Canada’s submission recognizes the public interest role of the CHRC and impliedly concedes that the parties are not the same. There is nothing more to its submission than that. [22] The second step of the two step analysis, the exercise of discretion only comes into play when all of the pre-conditions are met. Because the parties are not the same in both proceedings, there is no need to consider the exercise of discretion within the issue estoppel context. Abuse of Process [23] The rationale for the abuse of process doctrine is to preserve the integrity of the judicial/adjudicative process by promoting judicial economy, consistency and finality. Relitigation can have negative consequences. There is no guarantee that relitigation will produce a more accurate result than the first proceeding. It can yield contradictory results. And it may waste judicial resources and involve unnecessary expenses for the parties. (Toronto v. CUPE, 2003 SCC 63, at paras.37, 51) [24] However, there may be cases where the bar to relitigation would lead to unfairness or create an injustice. In such case, this would overcome the interest in maintaining the finality of the original decision (Toronto v. C.U.P.E., para. 63). [25] There are two compelling reasons that militate against applying the doctrine of abuse of process to stay the Tribunal’s proceeding. First, the CHRC is participating as a party in the Tribunal proceeding dealing with Mr. Morten’s complaint. It has a statutory right to present evidence and represent the public interest in the prevention and elimination of discrimination (ss. 2 and 51 of the CHRA). [26] The CHRC was not a party to the Agency proceedings and did not have the opportunity to advance the public interest that it has identified in this case. The Agency’s decision was rendered without the input of the CHRC. [27] Secondly, it is apparent from its decision that the Agency’s analysis in dealing with Mr. Morten’s claim falls far short of what would be required under the Via Rail test. Mr. Morten’s services complaint under s. 5 of the CHRA is ongoing in nature and impugns a policy that Air Canada continues to pursue. [28] It would be an injustice to deprive both Mr. Morten and the CHRC of the opportunity to put Air Canada to the strict proof of its contention that accommodating his needs or others with similar needs, would cause it undue hardship within the meaning of these terms. Collateral Attack [29] The rule against collateral attack operates to prevent a challenge in a subsequent proceeding, to the legality of a judicial order issued by a court of competent jurisdiction. This rule focuses on attacking the order itself and its legal effect (Toronto v. CUPE, at paras. 33, 34; Danyluk at para. 20). This is not the case with Mr. Morten’s human rights complaint. It is not a claim which seeks to contest the legality of the Agency’s decision in the proceedings before this Tribunal. Conclusion [30] Air Canada has not satisfied the three preconditions for issue estoppel. It is not an abuse of process to allow Mr. Morten’s human rights complaint to proceed. The rule against collateral attack does not apply in this case. [31] For these reasons, Air Canada’s motion is dismissed. Signed by J. Grant Sinclair Tribunal Member Ottawa, Ontario October 25, 2007 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1207/1907 Style of Cause: Eddy Morten v. Air Canada Ruling of the Tribunal Dated: October 25, 2007 Date and Place of Preliminary Motion: September 18 and 19, 2007 Ottawa, Ontario Burnaby, British Columbia (via videoconference) Appearances: Eddy Morten, for himself Giacomo Vigna and Kevin Shaar, for the Canadian Human Rights Commission Gerard Chouest and Tae Mee Park, for the Respondent

2007 CHRT 49

CHRT

Warman v. Jessica Beaumont

en

2007-10-26

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7183/index.do

2023-12-01

Warman v. Jessica Beaumont Collection Canadian Human Rights Tribunal Date 2007-10-26 Neutral citation 2007 CHRT 49 File number(s) T1106/8705 Decision-maker(s) Hadjis, Athanasios Decision type Decision Decision status Final Grounds Colour Disability National or Ethnic Origin Race Religion Sexual Orientation Decision Content Between: Richard Warman Complainant - and - Canadian Human Rights Commission Commission - and - Jessica Beaumont Respondent Decision Member: Athanasios D. Hadjis Date: October 26, 2007 Citation: 2007 CHRT 49 Table of Contents I. Introduction II. Analysis A. Section 13 of the Act B. What are the impugned messages that Ms. Beaumont allegedly communicated? C. Did Ms. Beaumont communicate the impugned messages, or cause them to be communicated, by means of the Internet, within the meaning of s. 13? D. Were the communications made repeatedly, within the meaning of s. 13 of the Act? E. Is the material likely to expose members of the targeted groups 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, within the meaning f s. 13(1)? III. Remedies A. An order that the discriminatory practice cease (s. 54(1)(a) B. Special Compensation (s. 54(1)(b) C. Penalty (s. 54(1)(c)) I. Introduction [1] The Complainant, Richard Warman, has filed a complaint, dated January 6, 2005, alleging that the Respondent, Jessica Beaumont, discriminated against persons or groups of persons on the basis of religion, sexual orientation, race, colour, national or ethnic origin, and disability, by repeatedly communicating messages through an Internet website. He alleges that the messages would likely expose Rastafarians, Jews, gays and lesbians, Chinese, Hispanics, blacks, Aboriginals, and other non-whites to hatred and/or contempt, contrary to s. 13 of the Canadian Human Rights Act. [2] The Canadian Human Rights Commission participated at the hearing and was represented by legal counsel. Mr. Warman and Ms. Beaumont appeared and testified at the hearing. They were not represented by legal counsel, but Ms. Beaumont was assisted by an agent, Paul Fromm, who is not a lawyer. Mr. Fromm indicated at the opening of the hearing that he was offering her some assistance, having been involved as an intervenor in a number of cases regarding s. 13 of the Act. Mr. Fromm emphasized that he was not in a position to provide Ms. Beaumont with proper legal counsel. As her agent, he made an opening statement, examined and cross-examined witnesses, and presented final arguments on her behalf. II. Analysis A. Section 13 of the Act [3] In order to substantiate a complaint of discrimination under s. 13(1) of the Act, it must be established that a person or group of persons acting in concert communicated telephonically or caused 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. [4] Section 13(2) specifies that s. 13(1) applies to matter that is communicated by means of the Internet. B. What are the impugned messages that Ms. Beaumont allegedly communicated? [5] Mr. Warman testified that he viewed the alleged hate messages starting in January 2004, principally on a website based in the United States called Stormfront.org. This website consists mainly of a forum where individuals post messages that can be viewed by anyone on the Internet. The forum is divided up into a number of sections, which are themselves divided up into numerous levels of sub-sections (also known alternatively as sub-forums, topics, threads or discussions). One of the sections of the Stormfront.org forum is dedicated to Canadian issues, and is entitled Stormfront Canada. [6] Persons who wish to post messages on the Stormfront.org forum must first register themselves as members. They may then post messages on any of the existing sub-forums. They may even create new sub-forums on which they post the initial message that then can be viewed by others on the Internet. Other Stormfront.org forum members may then post their own messages on the sub-forum. [7] Members have the choice of displaying their true identities next to the postings, or using pseudonyms instead. Ms. Beaumont readily acknowledged in her evidence that she posted messages on the Stormfront.org forum under the pseudonym Jessy Destruction. The margin notes next to postings usually indicate the date when the member joined the forum and the number of posts the person had made to date. Ms. Beaumont’s join date is shown as October 2003. One of the postings entered into evidence was posted on May 5, 2006. Its margin notes indicate that she had by this point made 1,023 postings on the Stormfront.org forum. [8] The margin notes also typically show the member’s declared location. In many of her postings, Ms. Beaumont gives her location as being in the land of brainwashed whites. In her other postings, the location is simply Coquitlam, BC, Canada. [9] During his testimony, Mr. Warman led into evidence printouts of the impugned messages, posted by Jessy Destruction, most of which I have summarized below. In her testimony, Ms. Beaumont acknowledged having posted almost all of these messages, but for two that she does not recall posting. Many of the impugned messages contained the occasional spelling mistake or typographical error. Rather than repeatedly identifying the errors, I have simply reproduced the texts as they appeared on the printouts filed in evidence. Message 1 – January 24, 2004 [10] This message was posted on a sub-forum entitled Gangs and Double Standards. The initiator of this discussion argued that the term racist is usually ascribed to gangs composed of white people, but not to those made up of non-whites. Another contributor to the discussion referred to an incident where he and his crew had been thrown out of a bar because they were wearing boots and flight jackets with swastikas on them. Ms. Beaumont was apparently there during the incident because in the message that she posted, she complained that if we were nigs, then we’d just be blacks hanging out and eating. Message 2 – January 25, 2004 [11] This is one of the messages that Ms. Beaumont does not recall posting. It was posted in a sub-forum entitled Blacks in Western Canada?. The discussion centred on a comparison between the concentrations of Blacks in Western Canada relative to Ontario. The margin note shows that the message was posted by Jessy Destruction. The message states, It could get worse, lets just cross our fingers and hope they all die off from AIDS. Message 3 - January 28, 2004 [12] This is another message that Ms. Beaumont does not recall posting. It was posted on a sub-forum regarding inter-racial dating. A contributor to the sub-forum had asked other forum members how they would react if a close relative began dating a non-white. A message in reply, which was posted by Jessy Destruction, states I told my sister already that I would kill him and then beat her up, she knows I would too…but she says blacks look funny so I don’t have to worry. Message 4 - May 29, 2004 [13] This message was posted on a sub-forum entitled Re: Calgary Alberta. It states: Oooh Marcus, the only nigger who went to punk shows. Now I see where you got the name Darkus from…yeah I met him like…4 or 5 years ago at a show, at the multi. I don’t go to shows anymore unless its either a) a REALLY REALLY good band or b) Cheap beer. The context of the message is not clear given that the messages that preceded Ms. Beaumont’s posting were not produced. Ms. Beaumont testified, however, that she grew up in Calgary. She moved to British Columbia for a couple of years before taking up residence in Calgary again, in 2006. Message 5 - June 10, 2004 [14] On a sub-forum entitled Britkids website, there was a discussion about a website dealing with young people in Britain. The initiator of the sub-forum commented that of the nine youths shown on the website, only one is of White European descent. Ms. Beaumont posted a message with a reference to an excerpt from this website in which one of these British youths professes to be a Rastafarian. Ms. Beaumont adds the following comment: That’s about the little nignog’s religion. This site is disgusting, it really worrys me even more so about what my sisters are being forcefed in school. Message 6 - June 24, 2004 [15] This message was posted on a sub-forum entitled My Rant About Pride Week in TO. The initiator of the discussion criticized the holding of Gay Pride Week in Toronto. In her subsequent posting on this sub-forum, Ms. Beaumont stated: I think we all know where your coming from with this rant, we had a week in Calgary, I stayed in the whole week. But about a week after I went downtown and still saw some of the fag banners hanging around town. Message 7 - August 14, 2004 [16] This message was posted on a sub-forum entitled Let Muslim women keep hijabs on. The discussion related to a news report that then Prime Minister Paul Martin believed that the practice at Montreal’s airport of requiring Muslim women to remove headscarves as they pass through security screening should be stopped. Ms. Beaumont posted the following comment in this regard: That drives me nuts, I take photos for the citizenship, passports, pr (permanent residence), visa cards etc. and as I have been told from human resourses that the ears MUST be visable, which means, if your hair covers your ears, it has to be tucked back. I don’t care if it’s a religious thing or not, if you don’t want to follow our rules, even if it is taking off your scarf thing for one lousy picture, then stay out of my effing country! Message 8 - August 14, 2004 [17] This message was posted on a sub-forum called Some semi-drunken ramblings from the new member. The person who initiated the discussion complained that as a fourth generation Torontonian, it broke his heart to see the city slip quietly into the hands of filthy thirdworlders. Ms. Beaumont was the fifth person to reply to these comments. She wrote: It’s good to see a new member on this board, welcome. Just think, all the mindless pawns of the juden who believe in race-mixing and all that such, will be screwed over in the end. Message 9 - October 15, 2004 [18] This message was posted on a sub-forum entitled The Most Sick Thing I Have Ever Witnessed. The initiator of the discussion complained that he saw a white man in his early twenties with a veiled muslim that looked fresh off the boat, with the mud baby in the stroller! Ms. Beaumont was the first forum member to reply to this comment. She wrote: Ever seen a tar black negriod and a chink? That’s a pretty sick/funny site. Message 10 - October 22, 2004 [19] This message was posted on a sub-forum entitled Homosexual pornography is art!? The initiator of the discussion was apparently a university student. He complained that the works displayed by a visiting artist to his university included photos of the artist performing oral sex on another male. Another forum member, with the username Der Totenkopf, posted a subsequent message stating that this was not art but rather some sick mental defect fag getting off on the fact that you guys having to watch it. [20] Ms. Beaumont posted her own comment in reply, but it is noteworthy that on this occasion, she opted to quote the other member’s remark before adding her own. Users of Stormfront.org’s forum typically have two options available to them if they want to post a message to an existing discussion. They may either click on a Reply icon that enables them to simply post their own comments, or they may choose to click on the Quote icon, in which case the member can select an excerpt from one of the previously posted messages and incorporate it in the new message. The excerpt is placed in a separate bordered text box and is preceded with the word Quote. In this case, after excerpting Der Totenkopf’s remarks, Ms. Beaumont added, AGREED! f’ing perverts. Message 11 - November 1, 2004 [21] This message was posted on a sub-forum entitled New $20 bill. The initiator of the discussion disagreed with the decision to feature a First Nations traditional carving of a Haida canoe on the new $20 note. Ms. Beaumont made the following comment in this regard: I haven’t seen the new $50 bills, but the $20’s and $100’s I have seen. I have talked with a few people about them (who aren’t WN) but they don’t like the fact that there is native stuff on the bills. I mean, who wants to pay for something and be reminded of a chug? Not me! Mr. Warman testified that WN stands for White Nationalists. Message 12 - November 12, 2004 [22] This message was posted on a sub-forum entitled No Need to Feel Threatened. One of the participants in this discussion suggested that there was nothing wrong with having non-white friends. Ms. Beaumont replied to this suggestion as follows: I just don’t feel the need to be-friend non-whites, as they can do nothing for me, nor would I like to associate with them. I am fine with my own kind, and allways will/have been. Theres my f*cking answer. Good enough? If not, PM [private message] me, well debate this some more. [23] Private messaging was an available feature on the forum, which enabled participants to communicate directly with one another without their discussions appearing on the forum. No one other than the communicating individuals would be able to view their messages exchanged in this fashion. Message 13 - November 19, 2004 [24] Ms. Beaumont posted the following message on a sub-forum to welcome a new member, who apparently was moving to Calgary: Welcome, I am living in Calgary… until Sunday. But you can always PM me, or other Calgarians. It’s a nice city, if you get past all the ARA threats (which are just that… empty threats) and homo loving retards. And, if you can, stay the f*ck away from the North East and North West, filled with non-whites, best place is the good old south, still white. [25] The term ARA mentioned in Ms. Beaumont’s message is a reference to a group known as Anti-Racist Action. Message 14 - December 2, 2004 [26] This message was posted on a sub-forum dealing with the American artist, Norman Rockwell, entitled Norman Rockwell is racially insensitive. Ms. Beaumont wrote: I love Norman Rockwell, he is one of my favorite artists of live. I have a collection of his works, in one he has a little black girl on her way to school, the wall behind her says Nigger, as well as a tomatoe has just been thrown. She has 3 black men escorting her towards school; the painting is titled What we all Have to Live With. Messages 15 and 16 - December 2 and 3, 2004 [27] These messages both appear in a sub-forum that Ms. Beaumont initiated entitled 16 Facts. The first message reads as follows: I got this off a US site, but I feel it applies to Canada as well. CRITICAL FACTS THAT YOUR KIDS WILL NOT LEARN IN SCHOOL. The White race made America what it is today. American heritage is White heritage. American law is based upon White concepts from White European thought. The American all-White neighborhoods of the past were demonstrably safer, and freer of crime of all sorts than integrated neighborhoods of today. The American all-White schools of the past were clearly superior to any integrated school of today. All great societies of the past which were White as they rose to power, when they changed from being dominantly White, to a dominantly mixed race society, they fell permanently into decay. (e.g. Egypt, Greece, Rome, Spain, Portugal.) Racial integration of our neighborhoods and our schools has forced them into decay, just like the racial integration of the societies of the great White nations of the past caused them to fall into decay. History, both ancient and recent American, has consistently taught the very same lesson. It is clear beyond any debate, that modifying the racial composition of America away from the dominantly White society that it was as it rose to power, towards a mixed, racially diverse society, will be catastrophic. It will plunge the great American nation into the same depths that the other great White nations of the past have fallen in. Based upon the extensive history of the Black race it is clear that it is not capable of creating or maintaining an advanced society. It has never created one advanced society in Africa. In every case (such as Haiti) where it has been given a thriving society, it has killed it, driving it into the same primitive state that its people have always lived in, in their native Africa. (For any who is foolish enough to doubt history, we have the sad spectacle of South Africa playing out before us, which should erase all doubts.) History has shown us that the Black race cannot create or maintain an advanced society on its own. Its members therefore, as a people, cannot well fit into an advanced society, as equals, living and working beside those who not only are capable of building one advanced society, but have built numerous such societies in all climates and in all types of land. History has shown us that the Hispanic peoples are also deficient in creating advanced societies like the White race has repeatedly created. While they have sown ability that is superior to the Black race, by creating their own written language and some moderately advanced societies they have not been able to take the superior natural resources of the South American continent and do much with them. Spain and Portugal sent soldiers to the lands south of the Rio Grande to conquer and take the wealth of the land. Instead of sending families to colonize, the Spanish men took native wives. The racial makeup of the lands south of the Rio Grande is composed of American Indian, Black, mixed-race and a small percentage of Whites thrown in. Their lands have never thrived like the nations to the north where Whites colonized and kept their race intact, seldom mixing their race with others. By celebrating diversity we are bringing in the Hispanic and Asian peoples into White America and we will cause the North American continent to become like the South American continent. The great wealth and stable society of the White United States will be traded for the poverty and instability of the revolution torn countries south of our border. Even if all races were exactly the same, if there were no differences whatsoever, the fact that Whites created the nation of the United States of America, means that we are completely within our honorable rights to restrict entrance into our country. We may honorably allow only White immigrants, or no immigrants at all. The number of Whites, as a percentage of world population, is now down into the single digits and falling fast. Nearly all of the White nations on earth are now accepting large numbers of Nonwhite immigrants. The only one of the three major races of earth, that is in real danger of falling into a minority status in its own racial home, is the White race. This could easily lead to extermination of the White race. Those who support American diversity, Nonwhite immigration, miscegenation, integration, and/or Affirmative Action, are either: 1) ignorant of the above critical facts; or 2) blatant haters of the White race and seeking to end its existence on planet Earth. [28] In Ms. Beaumont’s second message, posted the following day on the same sub-forum, she states that she also likes this one and then sets out the following text, together with a link to a page on the Internet where she presumably found it: BILL OF RACIAL RIGHTS White People have a right to exist as a distinct and separate people. White people have the right to retain, and defend their own lands, free from immigration, or habitation by members of other races; which includes the right to live in all-White neighborhoods, and to send their children to all-White schools. White people have the right to be proud of their history. White people have the right to be proud of their own culture, and to reject entirely within their lands all non-White cultures. White people have the right to educate their own children in any way they wish, free from government interference. White people have the right to place their own interests above the interests of any other race or people. White people have the right to reap the benefits of having a low birth rate. White people have the right to require that all people within their borders speak the language of the White people who created the country. White people have the right to prohibit all forms of miscegenation within their lands. White people have the right to produce, and to consume, entertainment and advertising that is free from mention or depiction of members of other races. If you are not willing to fight for your rights, you don’t have any! Message 17 - December 6, 2004 [29] This message is found on a sub-forum that asked participants what they considered were five things that concerned them as white Canadian Citizens. Ms. Beaumont answered the question as follows: Immigration Freedom Of Speech (and everything else) People need to wake up, and grab a sense of morality. People who support gay marriages although are not gay, even if they are…. IT’S SICK! Basis of/for Deportation for illegal immigrants (this needs to be followed through with A LOT faster, and more watched) Message 18 - December 7, 2004 [30] This message was posted on a sub-forum started by someone who was seeking advice on whether to attend a family gathering. The initiator of the sub-forum did not want to go because it would mean that he would have to see his sister who had borne two children with a black man. Ms. Beaumont provided the following opinion in reply: I would stay away from the get together as well, my sisters know how addimient I am about race-mixing. And would never bring home a nig if they wanted to ever see me again. Your sister will understand when you aren’t at the reuinion, and if she doesn’t realize it’s her fault; then I am truely sorry to hear that. Messages 19 and 20 - December 8 and 9, 2004 [31] These messages were posted on a sub-forum entitled Giant Menorah on Queen’s Park, regarding the installation of a Menorah in front of Ontario’s Provincial Legislature’s building. Ms. Beaumont posted two comments on this sub-forum. In the first, she wrote, That’s sick, I’m sure something like this will happen in Van. Sick, sick, sick!! In her follow-up remarks, she stated, I saw in the newspaper on the 8th, they had a quarter page spread of some rabbi lighting BC’s largest menorah in Van, sick sick sick. Messages 20 and 21 - December 9 and 10, 2004 [32] These messages were posted on a sub-forum that dealt with same-sex marriage. In her first message, Ms. Beaumont wrote: I was proud before, to say that [Alberta] was the only provinces to not allow Save sex marriages but now, its all the same AIDS peddling sh*t. The next day, Ms. Beaumont followed up with this message: I don’t know about anyone else her, but even if I put my religion aside, I still think fags are wrong, vile, and disease ridden, as well as frigging perverts. Message 22 - December 13, 2004 [33] This message was posted on a sub-forum in which one of the participants mentioned that to his understanding, it is legal in Canada for an adult to marry a child. Ms. Beaumont replied to this remark by stating, If this is true, it’s the jews who made that law. I’ll try and find out if it is true or not. Message 23 - December 22, 2004 [34] This message was posted in a sub-forum about whether same-sex marriage would be recognized in Alberta. Ms. Beaumont’s commentary in this respect was, I hope Alta never lets those degenerates marry, it’s just vile! Message 24 - May 16, 2005 [35] This message was posted on a sub-forum entitled Silencing Christians in Saskatchewan: You Can’t Criticize Homosexuals. The discussion related to a finding by the Saskatchewan Human Rights Tribunal that an individual had been distributing literature that promoted hatred against homosexuals. [36] In providing her views on the issue, Ms. Beaumont first inserted the phrase, You can’t criticize homosexuals, which is a quote from a previous forum participant. She then wrote the following: Oh yes I can! This type of sh*t just boils my blood. They are allowed freedom of sexuality but I can’t speak my mind being freedom of speech AND religion? It says right in the bible that homosexual relations are punishable by death. Quote: Do not lie with a man as one lies with a woman; that is detestable. Leviticus 18:22 Quote: If a man lies with man as one lies with a woman, both of them have done what is detestable. They must be put to death; their blood will be on their own heads. Leviticus 20:13 So wouldn’t that be infringing on MY religious beliefs? On MY freedomof speech? Hell, they can be fags till the day they die, and I’ll be with God for my life. But my thoughts should not allow them to get money for their suffering. They should be getting a lot of money in hell then, they will be doing A LOT of suffering there. I know my post should be I the theology section, but I think it should stay her, it is relevant. Message 25 - November 27, 2005 [37] This message was posted on a sub-forum begun by Mr. Fromm entitled Help Us Fight Warman & the Human Rights Censors. His initial posting discussed a number of other cases regarding s. 13 of the Act with which he was involved, and included excerpts from some of the material filed in those proceedings. Ms. Beaumont was the first person to post a reply: Seems to me like Warman won’t stop anytime soon. If it’s up to him, everyone on [Stormfront] Canada will be facing the same retarded charges that few of us are facing right now. I guess Warman doesn’t realize that we know how to play this stupid game to; but the best part is, we DON’T give up. We MUST keep fighting unless you all want every single one of your freedoms stipped away. I mean, he wants to charge people with a hate crime… for writting on the internet. How assinine is that? We need all the help we can, either help, or sit on the side lines and watch canada crumble farther than it already has into multicultural, anti-freedom, faggot loving, white hating hell. [38] This text was followed by what is commonly referred to as a signature block. Forum participants are able to set up their accounts so that at the end of each of their postings, a text of their choice appears automatically. In Ms. Beaumont’s previous postings, she had only included the following text in her signature block: My beliefs and opinions have been shaped by my family, my friends, my upbringing, what I see, hear and read, and my experiences of life. [39] However, in Message 25, two additional statements were found in the signature block. The first said, Fight for your race, because failure is not an option! The second text read as follows: ‘Many Jews are fond of referring to anti-Semitism as a disease. I agree, Anti-Semitism is a disease – you catch it from Jews. - Page 102, Defensive Racism; Edgar J. Steele The Commission filed in evidence five additional postings made by Ms. Beaumont on the Stormfront.org forum, subsequent to this posting. The identical signature block appears in each of these subsequent postings on Stormfront.org, the last of which was made on February 5, 2006. Message 26 - December 2, 2005 [40] This message was posted on the sub-forum referred to earlier, Help Us Fight Warman & the Human Rights Censors. The message is made up principally of two quotes from prior postings made by two other participants in the forum. Ms. Beaumont apparently inserted these excerpts by clicking the quote icon referred to earlier. Her entire message reads as follows: Quote: Originally posted by renegade You would think so, wouldn’t you. The truth is that Canada helped save the Jews from Hitler. How do these Jew bastards thank us? By undrmining our society. Conquering our nation from within. Then while these Jews are in the process of destroying our nation and systematicly driving White Canadians into extintion, they pass hate speech laws making it illegal to just talk about it. A perfect alalogy would be you saving a man’s life by pulling him out of deep water as he’s about to drown. After you save him, he pays you back by sleeping with your wife, defrauding you of your life savings, and charging YOU with assault when you punch him in the face for all the greif he’s caused you. Quote: Originally posted by Coldstar I knew very little about Jews until I moved to Canada. It is here where my eyes were opened in both shock and amazement. The libraries across the country are a fountain of jewish literature that could make a peace dove turn into an attack dog. Then add what they state on radio and TV and consider the weird sound or pitch that comes through so many jewish voices, it makes me shudder. I often think that they are a representation of the Devil. In fact these days when somebody says Devil or Satan I only think of Jews. I do not believe in some mythical spirit called Devil anymore, like Santa Claus, that tale of for kids. Cheers to both posts. And Coldstar, I’m with you on the Devil subject; except I believe that Jews are literally spawn of Satan himself. Message 27 - January 3, 2006 [41] This message was posted on a sub-forum entitled Jews stage their own hate crime. The discussion related to a news report of a Jewish family in Pennsylvania that had allegedly vandalized their own property with anti-Semitic graffiti in an attempt to garner sympathy from the community and divert attention from complaints that had been made against the family about the dog kennel that they were operating. The family had not only claimed that their property had been defaced but also that attempts had been made to attack their dogs. Ms. Beaumont posted the following message regarding the matter: I understand why no-one believes them, I wouldn’t either after learning this. But see, if it was racial hatred; I don’t understand why someone would attack helpless dogs [as] opposed to going after those dirty Jewish animals directly. Message 28 - February 5, 2006 [42] This message was posted on a sub-forum that apparently related to a s. 13 complaint filed by Mr. Warman against another individual. Ms. Beaumont posted the following message: Glad to hear that you are doing better. Hopefully this b*ll**** will stop before everyone knows what we’ve experienced. People have lost their family, jobs, and websites. (Among many other things) And all because of that retarded jew warman. We all know he does this because he is a very low and disgraceful animal. He does this for his own personal gain (be it monetary or mentally). Regardless, I WILL NOT LET HIM DEFEAT ME! Messages 29 and 30 – July 13, 2006 [43] These messages were posted on a different forum than Stormfront.org, which was entitled BloodandHonour.com. Ms. Beaumont testified that she was a member of this forum and that she had posted messages on it. The Jessy Destruction who was posting on BloodandHonour.com listed as her location the same place that Ms. Beaumont had given on Stormfront.org, i.e. Coquitlam, B.C. [44] These particular messages were posted on a sub-forum entitled Winnicki Gets 9 Months. Tomasz Winnicki had been named as a respondent in another s. 13 complaint that Mr. Warman had filed. The Commission had obtained a Federal Court order that he stop posting messages on the Internet pending the Tribunal’s final decision regarding the complaint. Mr. Winnicki violated that order and the Court found him in contempt. Ms. Beaumont’s first message on this sub-forum dealing with the finding of contempt stated the following: Shitty deal for Tom. It’s retarded how they (CHRC) can even contemplate giving him jail time for speaking his mind (in a so-called free country) The sentence should serve as a warning to other white supremacists using the Net to spread hate, Warman said. Nope, doesn’t stop me. This bastard isn’t going to collect one red cent from me. Lock me up, big deal, just futhers my feelings towards this BS. I don’t understand how they think locking Tom up for 9 months will make him change his mind and start loving niggers and jews. [45] Another forum member replied to Ms. Beaumont’s message, following which she posted this message: Ha ha. And boy would I appreciated 3 meals and a nice warm bed (without having to hearing Ciaran snore) lol. I can’t stop posting my hate filled messages, I think it is what I was born to do. Quote: Originally posted by Canadian Hate Machine Jessy…We’ve been Warned !! You’d better stop posting your vile, digusting HATE on the internet!. Unless you want 3 squares and a cot for 9 months…. I HATE you Warman I can only hope that I live long enough to piss on your useless grave, you kyke. [46] The quotation in her second message is the text from the message that the other member had posted prior to hers. As I explained earlier, she automatically generated this quotation within her message by clicking on the Quote button rather than the Reply button to post her reply. C. Did Ms. Beaumont communicate the impugned messages, or cause them to be communicated, by means of the Internet, within the meaning of s. 13? [47] As I stated earlier in this decision, Ms. Beaumont acknowledged in her evidence that she posted messages under the pseudonym Jessy Destruction. She even admitted having made practically all of the impugned postings in this case with the exception of Message 2 and Message 3, which she did not recall posting. [48] These two messages are among the earliest of her postings on the Stormfront.org forum. She joined in October 2003 and the two messages were posted in January 2004. Ms. Beaumont was a prodigious contributor to the forum, having posted over 1,000 messages as of May 2006. In the circumstances, it is not surprising that she is unable to recall every one of her entries. [49] The margin notes and signature blocks of Messages 2 and 3 are identical to those in the messages that Ms. Beaumont concedes having posted. Furthermore, the views expressed in Messages 2 and 3, regarding Blacks and inter-racial relationships, are consistent with those expressed in her other messages. If, as suggested by Ms. Beaumont, someone else had entered her account and posted the two messages in question without her knowledge, she could have removed them subsequently. She acknowledged in her evidence, however, that she did not make any attempt to delete these messages. I infer from all of the circumstances, therefore, that on the balance of probabilities, Ms. Beaumont posted Messages 2 and 3 as well. [50] I am thus satisfied that Ms. Beaumont posted all of the impugned messages and that she therefore communicated this matter or caused it to be communicated by means of the Internet, within the meaning of s. 13 of the Act. D. Were the communications made repeatedly, within the meaning of s. 13 of the Act? [51] The Tribunal has held in the past that material communicated via the Internet is by that medium’s innate characteristics alone, a repeated communication, particularly where no obstacles are put in place that would prevent anyone connected to the Internet from surfing his or her way to a website and viewing the material (see Warman v. Harrison 2006 CHRT 30 at para. 44; Warman v. Kulbashian, 2006 CHRT 11 at para. 62; Warman v. Tremaine, 2007 CHRT 2 at paras. 116-9). Mr. Warman testified that anyone could access the Stormfront.org forum and view the messages that members had posted. No passwords, codes or pre-registration were required. [52] Mr. Fromm argued that Ms. Beaumont’s communications were not repeated communications in that each of her postings consisted of a separate communication. She was, in effect, engaging in a conversation with other like-minded individuals, who were also participating in the forum. Mr. Fromm directed the Tribunal to the Supreme Court’s decision in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.R. 892 at 938, where the Court stated: Section 13(1) is worded so as to diminish phone use of the type I have just described, for in the context of s. 13(1) the term repeated must comport a requirement for something in the way of a series of messages. Moreover, because the Tribunal must be satisfied that the messages are likely to expose persons to hatred or contempt, it may be that even a series of personal calls (by which I mean communications with friends and acquaintances) espousing hate propaganda will not constitute a discriminatory practice within the definition of the section. I thus think it misleading to conflate the discussion to the point where all one sees is the telephone's position as an apparatus oft-used for private communications, and hence mistakenly to conclude that s. 13(1) suppresses messages which do little to promote the harms caused by hate propaganda. (emphasis added) Of course, the Taylor case dealt with telephone messages that had been recorded on an automated answering machine. The judgment was rendered at a time when the Internet had yet to gain widespread global usage. [53] I do not agree with Mr. Fromm’s submission that the messages posted by Ms. Beaumont on the Stormfront.org forum can be equated with personal telephone calls amongst friends and acquaintances. As the Tribunal in Tremaine, supra, noted, at paragraph 119, One of the purposes sought by posting messages on a website is that it will be available for transmission and display by a user who requests it. Tremaine is a case that also dealt with matter that had been posted on the Stormfront.org forum. Users of message boards like this forum know that anything they post on the board can be viewed by others with access to the Internet, not just friends and acquaintances. The Internet when thus used becomes an inexpensive means of mass distribution of information (Tremaine, ibid). [54] Ms. Beaumont was, in my view, keenly aware of this fact. In Message 12, she expressed her disagreement with the opinion of a previous contributor regarding the merits of having non-white friends. She invited this other individual to further debate the question by way of private messaging (PM). In Message 13, Ms. Beaumont invited another forum member to contact her by PM if he wanted talk further about Calgary. [55] Ms. Beaumont thus demonstrated that she knew the distinction between the public nature of posting on the forum and the confidential nature of private messaging. Indeed, when asked during cross examination why she had opted to post on the forum the passages entitled Critical Facts that Your Kids Will Not Learn in School and the Bill of Racial Rights (Messages 15 and 16), she explained that she posted them for other people to read. She added that she thought the material was interesting, and that someone else might enjoy reading it. She pointed out that she didn’t really care if the material would have an impact on certain individuals or not, adding that she did not see why such individuals would be visiting a website like Stormfront.org in the first place. [56] However, irrespective of Ms. Beaumont’s intentions or whether an individual from any particular group actually viewed her messages, the fact is that the communication of her messages over the Stormfront.org forum resulted in their gaining a wider, public circulation, rather than being a mere private communication (see Warman v. Bahr, 2006 CHRT 15 at paras. 25-6). The analogy to a telephone conversation amongst friends and acquaintances does not apply. [57] I therefore find that the material was communicated repeatedly. E. Is the material likely to expose members of the targeted groups 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, within the meaning of s. 13(1)? [58] In Nealy v. Johnson (1989), 10 C.H.R.R. D/6450, the Canadian Human Rights Tribunal found that the term 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. The Tribunal added that contempt suggests looking down upon or treating as inferior the objects of one's feelings. The two terms are not necessarily co-extensive. In some instances, hatred may be the result of envy of superior qualities such as intelligence, wealth and power, which contempt, by definition, cannot be. [59] The Nealy Tribunal 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 of the communication 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. [60] These findings were later endorsed by the Supreme Court of Canada in Taylor, supra. The Court added that the terms hatred or contempt in s. 13(1) refer to unusually strong and deep-felt emotions of detestation, calumny and vilification. [61] I find that many of the messages posted by Ms. Beaumont on the Stormfront.org forum contain matter that is likely to expose members of the targeted groups to hatred or contempt, within the meaning of s. 13(1), as interpreted in the jurisprudence. [62] To begin with, Ms. Beaumont repeatedly used highly inflammatory and derogatory language with respect to several groups, based on their religion, race, national or ethnic origin, or sexual orientation. The Tribunal in Warman v. Kouba, 2006 CHRT 50 at para. 67, pointed out that the use of epithets to describe a targeted group has been found, in the jurisprudence, to contribute to the likelihood that a message will expose the group to hatred or contempt. In the present case, Ms. Beaumont refers to Blacks in the messages filed in evidence by the term nigger or some derivation thereof (negroid, nignog, nigs). As I noted in Warman v. Kulbashian, 2006 CHRT 11 at para. 44, the use of this term, with its inherent connotation to slavery, segregation, and racism, in and of itself displays hatred and contempt in regard to black people. Elsewhere in the messages, Ms. Beaumont refers to homosexuals as fags or faggots, to a Chinese person as a Chink, and to aboriginal people as chugs. [63] Mr. Fromm submitted that it is not uncommon to hear some of these terms used in public today. Ms. Beaumont testified that she usually spoke this way amongst her peers. For instance, in her everyday conversations, she often refers to Indians as chugs (a term used in Message 11) and she sees nothing wrong with that. She acknowledged that it is a derogatory term but she would only use it when speaking to her friends, and not it in the presence of an Aboriginal person. [64] However, whether or not epithets form part of everyday parlance amongst the circle of people with whom Ms. Beaumont converses, or even more broadly within the community, is not what is at issue here. Section 13 of the Act addresses a particular type of exchange, one that occurs repeatedly, by telephonic means that include the Internet. In these instances, different rules apply, and messages containing matter that is likely to expose targeted groups to hatred or contempt cannot be so conveyed, irrespective of whether they are commonly used in everyday conversations. [65] This is not to say that s. 13 is breached every time such epithets appear. For instance, the Commission attempted to argue that Message 14, regarding the Norman Rockwell painting, was likely to expose Blacks to hatred or contempt due to the mention of the word nigger. This interpretation is taken completely out of context. It is evident that Ms. Beaumont was taking issue with someone’s claim in an earlier posting that Rockwell was racially insensitive. Her message appears to accurately describe the painting, which the artist had produced as a social commentary on the challenges facing the civil rights movement of the 1960’s in America. Her description of the painting was not likely to expose black persons to hatred or contempt. [66] Similarly, the Commission tried to depict Ms. Beaumont’s every use of the term retarded as an epithet against developmentally disabled persons. However, in messages such as Message 25, where she ranted about the retarded charges made against her in the human rights complaint, she did not use the term in this context, but rather as a synonym or euphemism for absurd, inane or some other similar uncomplimentary term. While her indiscriminate use of the term is insensitive to the dignity of persons with developmental disabilities, it does not expose them to hatred or contempt. [67] But context cuts both ways. The context of most of the epithets used in Ms. Beaumont’s messages is one where members of the targeted groups are subjected to ridicule and hostility, for instance: Ever seen a tar black negroid and a chink? That’s a pretty sick/funny site. Fags are wrong, vile, and disease ridden, as well as frigging perverts. [68] Beyond the mere use of epithets, Ms. Beaumont insinuates in her postings that members of the targeted groups are devoid of any redeeming qualities and demonstrates extreme ill will towards them. She describes homosexuals as degenerates and expresses her wish that they all die off from AIDS. She describes Jews as literally the spawn of Satan himself. Ms. Beaumont claimed, during her testimony, that she based this comment on her interpretation of a passage in the Bible, adding that she did not care if Jews would be offended by her ideas. However, irrespective of whether she cares or not, s. 13 of the Act dictates that the repeated communication via the Internet of matter that is likely to expose targeted groups to hatred or contempt constitutes a discriminatory practice. Whether the person communicating the matter was in fact its author is immaterial. The mere act of communicating the material or causing its communication attracts liability under the Act. [69] One method by which contempt and extreme vilification of a target group can occur is through comparisons of the members of the group to animals and vermin (see Kouba, supra at paras. 62-3). In her message of January 3, 2006 (Message 27), Ms. Beaumont makes this kind of comparison by implying that Jewish people have less worth than dogs and by claiming she does not understand why someone would attack helpless dogs rather than going after those dirty Jewish animals. [70] Other recurring themes that the Tribunal has found, in previous decisions, to be demonstrative of communications that likely expose target groups to hatred or contempt, include the usage of so-called true stories to make negative generalizations of the targeted group, as well as the portrayal of the group as the cause of society’s problems (Kouba, supra, at paras. 30-48). These themes are present in some of the material posted by Ms. Beaumont on Stormfront.org, particularly in Message 15, which is the list of 16 Critical Facts that children will not learn in school. The list asserts, based on … history, that Blacks and Hispanic peoples are not capable of creating and maintaining advanced societies, which the White race has repeatedly created. Therefore, it is argued, the members of these groups cannot well fit into an advanced society, as equals. Elsewhere in the list, it is suggested that American all-White neighbourhoods of the past were safer and freer of crime than integrated neighbourhoods of today. The implication of this statement is that the presence of non-whites is the cause of crime-related problems. The integration of non-whites is also blamed for a supposed drop in the quality of schooling. [71] In Message 22, Ms. Beaumont, when informed that it is supposedly legal in Canada for a child to wed an adult, for some unapparent reason immediately blames the jews for having made that law. Earlier, in Message 8, Ms. Beaumont referred to the mindless pawns of the juden who believe in race-mixing. Juden is, of course, the German word for Jews, a term with which the world became very familiar through the images of their persecution in Nazi Germany. As was pointed out in Kouba at paras. 24-5, one of the recurring hallmarks of communications that have been found to offend s. 13, is the portrayal of a targeted group 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. The suggestion in Message 8 is that Jews control the way others think and express themselves about race-mixing, and in Message 22, that Jews are a powerful menace that forces lawmakers to adopt laws that undermine acceptable social values. [72] In Nealy, supra, at paras. 45668-45670, the Tribunal adopted the view that messages preaching the forced deportation of non-Whites or their segregation from the White population are likely to expose members of these targeted groups to hatred or contempt by encouraging violence as a proactive means of defence against any who were seen as the enemies of racial purity. The basic theme of Message 15’s Critical Facts list is that the presence and integration of non-Whites in American society is undesirable. The Bill of Racial Rights in Message 16 is even more explicit in its assertion that White people should have the right to retain, and defend their own lands, free from immigration, or habitation by members of other races, including the right to live in all-White neighbourhoods and to send their children to all-White schools, i.e. segregation. [73] The signature blocks of Ms. Beaumont’s more recent messages (Message 25 and onwards), contained the sentence Anti-Semitism is a disease – you catch it from Jews. This phrase puts forth the notion that Jews bring anti-Semitism on themselves. The implication is that those who propagate anti-Semitism are not to be blamed, for the fault lies with Jews themselves. In effect, the victims are blamed for the discrimination that they experience and in so doing, the message downplays the effect. It trivializes a past and current tragedy, which creates a climate of derision and contempt that is likely to make members of this targeted group exposed to these emotions (Kouba, supra at paras. 72-5). [74] In sum, I find that in most of the impugned messages, Ms. Beaumont engaged in the communication of matter that was likely to expose persons identifiable on the basis of a prohibited ground of discrimination (namely race, religion, national or ethnic origin, and sexual orientation), to hatred or contempt. I have already determined that all the messages were communicated by her over the Internet, and therefore, repeatedly. As a result, the complaint has been substantiated. III. Remedies A. An order that the discriminatory practice cease (s. 54(1)(a) [75] According to Section 54(1)(a), the Tribunal may 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. [76] Mr. Warman is seeking a permanent order to have Ms. Beaumont cease the discriminatory practice of communicating hate messages through the Internet or other federal communications undertaking. The Commission concurs with this request. Mr. Fromm argued that the issuance of a permanent order would be a penalty…for life. He contends that Ms. Beaumont would have to be forever careful in expressing any political or religious view on the Internet for fear of breaching the order and finding herself in contempt and possibly going to jail. She would essentially be silenced from making any political or religious statement on the Internet. He therefore suggested that the scope of any such order should be limited in time, to perhaps five years. [77] I do not share this view. A cease and desist order essentially puts respondents on notice that messages of the sort that they have previously communicated are in breach of the Act and that they should not repeat the practice. As such, the order merely reiterates what has already been articulated in the Act, i.e. that communicating messages falling within the meaning of s. 13 is a discriminatory practice. Mr. Fromm’s submission presupposes that the Act is ambiguous and that Ms. Beaumont will somehow unknowingly fall into a trap that leads to contempt charges being laid against her. These concerns are unfounded. According to the Supreme Court in Taylor, there is no ambiguity to be found in the language of s. 13, and the numerous decisions that have been rendered since, regarding this provision, should serve to inform Ms. Beaumont when considering what sort of material she can communicate over the Internet without offending s. 13. Moreover, she will have the benefit of a decision relating to her own prior Internet postings, to further inform her future communications. [78] Furthermore, a cease and desist order would not be an overwhelming and ever-present peril for Ms. Beaumont, as Mr. Fromm suggests. To be found in contempt, it would have to be established beyond a reasonable doubt (i.e. the criminal standard of proof) that Ms. Beaumont breached the order by again communicating hate messages of a nature previously found to fall within the meaning of s. 13. The standard of proof would thus be much higher than what would be required to substantiate a human rights complaint. It would have to be established that the activity that is said to constitute contempt was clearly covered by the prohibition set out in the order (Canada (Canadian Human Rights Commission) v. French, [1996] F.C.J. No. 384 (F.C.T.D.)(Q.L.). [79] In addition, contempt does not appear to be an absolute offence, and courts are reluctant to find contempt where the individual has taken every objectively reasonable step to comply with the order (see R.W. McCauley & J.L.H. Spragg, Practice and Procedure Before Administrative Tribunals, looseleaf, vol. X, (Toronto: Thomson, 2004) at 29A.9(c)). On the other hand, intent to discriminate is not a pre-condition to a finding of discrimination (Taylor, supra at 931). As a result, were Ms. Beaumont to ever inadvertently communicate matter that offended s. 13, she may be more likely to find herself the subject of a new s. 13 human rights complaint and being found liable for a new remedy under s. 54, than of being found in contempt of the previous cease and desist order. [80] I therefore see no reason to deny the order. Ms. Beaumont is ordered to cease and desist from communicating or causing to be communicated, by the means described in s. 13 of the Act, and particularly the Internet, any matter of the type contained in the messages at issue in this case 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. Special Compensation (s. 54(1)(b) [81] Section 54(1)(b) of the Act 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. Mr. Warman is seeking this special compensation in the amount of $10,000, from Ms. Beaumont. [82] A number of communications were produced in evidence in which Ms. Beaumont made reference to Mr. Warman. They include a photograph that she had placed on her pages, which she had created on the EveryonesSpace.com and MySpace.com websites. These are social networking websites on which users place their personal profiles and interact with a network of friends with whom they can share music, videos, and so on. Under her EveryonesSpace.com profile’s list of interests, Ms. Beaumont included an apparently doctored image of a street-side sign identifying a Catholic church. Three swastikas had been digitally added to the picture of the sign. In the lower portion of the sign, where the church would ordinarily post its announcements, the following text appears, exactly as written below: CURCH OF THE DEAD WARMAN SOCIETY WARMAN HATERS ALLWAYS WELCOME The same image was posted on April 5, 2006, by Ms. Beaumont as a message on her MySpace.com page’s bulletin board. Ms. Beaumont testified that this picture was meant to be a joke between herself and a friend, as a variation on the title of a motion picture from a few years ago, The Dead Poet’s Society. [83] In addition, in Message 28, which was posted on February 5, 2006, Ms. Beaumont voiced disapproval about the human rights complaints that had been filed against her and others, claiming that people have lost their family, jobs and websites, as a result. She then added that this is all because of that retarded jew warman and that we all know he does this because he is a very low and disgraceful animal. [84] Mr. Warman is not Jewish, as he so testified in Warman v. Kyburz, (2003), 46 C.H.R.R. 425 at para. 90, but it is obvious that Ms. Beaumont perceived him as such. 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 (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). [85] Was Mr. Warman a victim specifically identified in the communication that constituted a discriminatory practice? Mr. Fromm submitted that the reference to Mr. Warman as a Jew was merely being used as a descriptive term, given Ms. Beaumont’s mistaken perception of his religion. It would be no different than had she said that retarded man Warman. Mr. Fromm added that the use of the term retarded was not intended to disparage developmentally disabled persons but simply to describe Mr. Warman with an uncomplimentary adjective, in the same sense that I explained earlier in this decision. In my opinion, while Ms. Beaumont’s intention in calling Mr. Warman retarded may have been to just insult him in a juvenile way, given the context of all her messages, including this one, her reference to him as that…Jew bears an entirely different connotation. [86] First of all, the signature block of this message contains the phrase that I referenced earlier, Anti-Semitism is a disease, you catch it from Jews, which I found to be a communication that falls within the meaning of hate messages under s. 13. [87] Furthermore, Ms. Beaumont’s comments should be taken in context with her other statements. She acknowledged in her evidence that she believes in National Socialism. She described herself in her messages as a full time Nazi. Members of the Stormfront.org forum were permitted to attach logos or avatars to their postings, which would appear under their names or pseudonyms in the margin notes. Ms. Beaumont selected as her avatar a cartoon image of a woman with a swastika in the background. Some of her other messages were accompanied by an avatar comprised of a swastika and a dead-head skull and cross-bones, symbols associated with Nazi forces in World War II (see Warman v. Kulbashian, 2006 CHRT 11). [88] In addition, Mr. Warman and the Commission pointed out that in Message 30, although Ms. Beaumont did not mention Mr. Warman by name in the three lines that she typed, she opted to click on the Quote icon rather than the Reply icon and include the quotation from a previous contributor to the sub-forum. That quotation ends with the following statement: I hate you Warman I can only hope that I live long enough to piss on your useless grave, you kyke. This use of the pejorative term kyke to describe Mr. Warman, who is being perceived as Jewish, is matter that, in accordance with the authorities I have referenced earlier in my decision, is likely to expose persons of the Jewish faith to hatred or contempt. [89] A question arises, however, about whether Ms. Beaumont communicated this hate message. She did not compose it; she only repeated it by clicking on the Quote icon. In my view, this is a false distinction. She had a choice about whether to quote the earlier message or not. As is evident from her other postings in evidence, she usually just replied to prior messages, and only exceptionally quoted them. Furthermore, in some cases, only portions of the prior messages would appear in the quoted material, which indicates that Ms. Beaumont would edit portions out prior to posting them in her own messages. These facts demonstrate, in my view, that her practice was to use the quote feature of the forum whenever she intended to repeat the message. It was not inadvertent. [90] In this context, Ms. Beaumont was clearly not merely describing Mr. Warman, in Message 28, as a Jew, but was trying to disparage him. This is especially apparent given her subsequent reference to him as a disgraceful animal, which hearkens back to her earlier posted message in which she ascribed the attributes of dogs to a Jewish family. [91] In my view, therefore, Ms. Beaumont’s references to Mr. Warman in these hate messages were intentional. She engaged in this discriminatory practice wilfully. Mr. Warman’s name was mentioned in only three instances, but these include a description of him as dead, which takes on particular significance given the swastikas that appear in the image and Ms. Beaumont’s perception of him as Jewish (see Kulbashian, supra, at para 138). [92] This is not Mr. Warman’s first s. 13 complaint. The Tribunal has already issued final decisions on at least nine s. 13 complaints filed by Mr. Warman. The Tribunal in Warman v. Winnicki, supra at paras. 168-172, found that Mr. Warman has extensive experience and involvement in organized activities aimed at combating hate propaganda. The Tribunal concluded that Mr. Warman appears to be a very resilient person who is somewhat impervious to threats and insults. Mr. Fromm argued that given Mr. Warman’s role as a player with regard to s. 13 complaints, he is not a true victim within the intended meaning of s. 54 of the Act. Consequently, he should not be entitled to any compensation. [93] Section 54(1)(b) does not, however, make any distinction between types of victims. The elements that Mr. Fromm raises with regard to Mr. Warman could in theory constitute factors in the assessment of a victim’s pain and suffering experienced as a result of a discriminatory practice, pursuant to s. 53(2)(e), in cases involving discriminatory practices other than those described in s. 13. However, s. 54(1)(b) explicitly directs the Tribunal to s. 53(3) with regard to the compensation of the victim. Section 53(3) is aimed at providing compensation for wilful and reckless discriminatory conduct regardless of the degree to which the victim may have been affected by the conduct (see Winnicki, supra at para. 180). [94] In assessing the appropriateness of such an order, the only messages in issue are those that reference Mr. Warman, and not the entirety of the material that has been found to be in breach of s. 13. Ms. Beaumont knew or should have known that the language she was using to attack and ridicule Mr. Warman was likely to expose him to hatred and contempt in conjunction with his identification as a Jew. The reference to Dead Warman Society accompanied by images of swastikas is particularly troubling. Words suggesting that harm should come to another cannot be taken lightly, even if they were made in jest. Others viewing this material on the Internet may not see it as such and take the message more seriously. Mr. Warman also points out that Message 30, for instance, was posted after Ms. Beaumont was served with the human rights complaint. Thus, rather than halting the hate messages, she continued them and began to include references to Mr. Warman by name. [95] In the circumstances, I therefore order Ms. Beaumont to pay the sum of $3,000 in special compensation, pursuant to s. 54(1)(b) of the Act. C. Penalty (s. 54(1)(c)) [96] The Tribunal may order a respondent who engaged in a discriminatory practice set out in s. 13 of the Act, to pay a penalty of up to $10,000, pursuant to s. 54(1)(c). Section 54(1.1) enumerates 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, and The wilfulness or intent of the respondent, any prior discriminatory practices that he or she has engaged in, and his or her ability to pay the penalty. The Commission and Mr. Warman have requested that a penalty of $7,500 be assessed. [97] I have determined that most of the impugned messages are likely to expose a number of targeted groups to hatred or contempt. Ms. Beaumont testified that she did not care what effect her messages would have on members of these groups or the community at large. [98] Compared to other hate messages that have come before the Tribunal in the past, I find that Ms. Beaumont’s do not have the same gravity. Thus, although her postings contained negative epithets with respect to a number of targeted groups, these terms were not used with the same frequency as in other cases. Ms. Beaumont did not engage in any vivid descriptions of violence against the targeted groups. Her messages were in the form of relatively short postings on the forum, for the most part. She did not create an entire website replete with or dedicated to the communication of hate messages, as we have seen in other cases. [99] The Commission pointed out that Ms. Beaumont has posted at least 1,000 more messages on the Stormfront.org forum, beyond those that are in evidence in this case. Without viewing the other postings, however, I cannot assume that they would offend s. 13. Indeed, as I have indicated in my decision, not every single one of the impugned messages filed in evidence was found to constitute hate messages within the meaning of the Act. [100] Ms. Beaumont testified that she had not been on Stormfront.org since July 2006, and that her EveryonesSpace.com and MySpace accounts had been deleted. Mr. Warman points out, however, that after the human rights complaint was filed against her, she posted a number of the hate messages that are in evidence in this case. [101] Ms. Beaumont testified that whatever the Tribunal’s decision in this matter, she would not change her views and ideas. However, she also testified that she would stop going to the Internet if the Tribunal ordered her to do so. [102] At the time of the hearing, Ms. Beaumont was no longer residing in British Columbia and had moved back to Calgary. She is 21 years old and is living with her parents. She claimed to be paying rent to her parents although this evidence was not documented. She produced pay stubs showing that she was employed as a salesperson in a retail store earning $10.50/hour. [103] I have no evidence of her having engaged in any prior discriminatory practices. In December 2005, Mr. Warman made a criminal complaint to the British Columbia Hate Crimes Team, alleging that Ms. Beaumont had wilfully promoted hatred, within the meaning of s. 319 of the Criminal Code. In July 2006, based in part on this information, the Vancouver Police Department obtained a warrant and seized Ms. Beaumont’s computer. She has not, however, been formally charged with any crime relating thereto. I cannot, therefore, conclude that she has engaged in a prior discriminatory practice in this regard. [104] Taking all of these factors into account, I order Ms. Beaumont to pay a penalty of $1,500. 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 date on which this decision is served on Ms. Beaumont. Signed by Athanasios D. Hadjis Tribunal Member Ottawa, Ontario October 26, 2007 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1106/8705 Style of Cause: Richard Warman v. Jessica Beaumont Decision of the Tribunal Dated: October 26, 2007 Date and Place of Hearing: December 11 to 13, 2006 Vancouver, British Columbia Appearances: Richard Warman, for the Complainant Giacomo Vigna, for the Canadian Human Rights Commission Paul Fromm, for the Respondent

2007 CHRT 5

CHRT

Sugimoto v. Royal Bank of Canada

en

2007-02-21

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6503/index.do

2023-12-01

Sugimoto v. Royal Bank of Canada Collection Canadian Human Rights Tribunal Date 2007-02-21 Neutral citation 2007 CHRT 5 File number(s) T1015/13504 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Decision 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 REASONS FOR DECISION 2007 CHRT 5 2007/02/21 MEMBER: J. Grant Sinclair I. INTRODUCTION II. FACTS A. Plan Membership Eligibility Pre-May 1, 1974 B. The May 1, 1974 Plan Amendment C. The 1980 Pension Plan Amendment D. The 1987 Plan Amendment - Early Retirement E. The 1996 Gender Buy-Back (GBB) (i) Background to the GBB (ii) The February 1995 Mercer Report (iii) The December 5, 1995 Board of Directors' Resolution. F. The September 5, 2003 GBB Plan Amendment G. Ms. Sugimoto and the GBB (i) Initial Correspondence and Consultations (ii) Ms. Sugimoto's Personal Benefits Statements (iii) The BenPlus DB Pension System H. The 2001 Re-opener I. Ms. Sugimoto and her OSFI Complaint III. ANALYSIS A. The Prima Facie Test, and the Issues to be Decided B. Did Ms. Sugimoto Establish a Prima Facie Case of Pre-May 1, 1974 Plan Membership? C. Has the Respondent Provided an Answer to the Prima Facie Case of Discrimination? D. Was the GBB Under-Inclusive and therefore Discriminatory? E. Is the 2001 Re-opener Discriminatory to the Extent it Distinguished Between Members and Non-Members? IV. DECISION I. INTRODUCTION [1] Yvonne Sugimoto is the complainant in this matter. She filed a complaint with the Canadian Human Rights Commission dated December 9, 2002. She alleges that the Royal Bank of Canada (RBC), in its Pension Plan provisions, has discriminated against her by treating her in an adverse differential manner, on the ground of sex, contrary to ss. 7, 10, and 21 of the Canadian Human Rights Act. [2] The adverse differential treatment that Ms. Sugimoto complains of is this. Under the RBC Plan, a male the same age as Ms. Sugimoto with an identical employment record with RBC, can retire with an unreduced pension at age 56. If Ms. Sugimoto wished to retire at the same age, she would suffer almost a 35% reduction in her annual pension. To receive the same unreduced pension as her male counterpart, Ms. Sugimoto would have to work for an additional 70 months. This is all because Ms. Sugimoto was denied the opportunity that RBC gave to her male counterpart, to participate in the 2001 Re-opener. [3] To understand how this impacted on Ms. Sugimoto, one must understand the nature of the RBC Plan and its evolution over the past 30 years or so. [4] Ms. Sugimoto was a member of the defined benefit pension Plan at RBC prior to her retirement. Under the Plan, an employee could participate as a contributory or as a non-contributory member. The annual pension at retirement in the contributory plan is equal to 1.3% x final average salary x years of contributory pensionable service. For the non-contributory plan, it is .9% instead of 1.3% and there are no member contributions. [5] A member could accumulate contributory or non-contributory service or a combination of both. The member contributes 4 or 6 % of his or her salary depending on salary level. RBC is responsible for funding the actuarial value and the administrative costs of the Plan. [6] Ms. Sugimoto left RBC in March 2002 on a salary continuance arrangement. She was paid a salary by RBC until she took early retirement on October 4, 2006. II. FACTS A. Plan Membership Eligibility Pre-May 1, 1974 [7] Ms. Sugimoto was born on October 4, 1951 and joined RBC on February 23, 1970. She was 18 years old. Prior to May 1, 1974, male employees of RBC were eligible to become contributory members of the Plan at age 21. Female employees were not eligible for Plan membership until age 24. B. The May 1, 1974 Plan Amendment [8] On May 1, 1974, the Plan was amended to change the membership eligibility age for all employees, male and female, to age 30. Those employees, who were members of the Plan, but under age 30, were given the option of either remaining in the Plan as a contributory member or suspending their membership until age 30. If they suspended their membership, they would not accrue any pensionable service until they re-enrolled in the Plan at age 30. [9] Plan members who were over age 30 as of this date could choose to remain as contributory members or become non-contributory members. The May 1, 1974 amendments did not affect Ms. Sugimoto. She was 22 years old at the time. C. The 1980 Pension Plan Amendment [10] On March 1, 1978, the Canadian Human Rights Act came into force. Under the CHRA, a two year grace period was given to bring federally regulated pension plans into conformity with its provisions. [11] On September 1, 1980, RBC amended the Plan and changed the eligibility age for membership from age 30 to the earlier of age 25 or five years of continuous service. For any employee who joined the Plan, their date joined was made retroactive to March 1, 1980 (to meet the expiry of the grace period). [12] Ms. Sugimoto was 26 years old and joined the Plan as a contributory member as of March 1, 1980. On March 1, 1985, she elected to become a non-contributory member which the terms of the Plan allowed after 5 years as a contributory member. D. The 1987 Plan Amendment - Early Retirement [13] Effective January 1, 1987, the Plan was amended to provide that Plan members with 35 years of contributory / non-contributory pensionable service could retire with an annual, unreduced pension after age 55. For each year less than 35 years of pensionable service, their annual pension would be reduced by 5 %. The normal retirement age is 65. E. The 1996 Gender Buy-Back (GBB) (i) Background to the GBB [14] The introduction in 1987 of the early retirement option, raised a significant issue for female Plan members who, pre-1974, could only join the Plan three years after their male counterparts. The issue was the consequences of this disparity for early retirement and an unreduced pension. (ii) The February 1995 Mercer Report [15] In 1995, RBC began to consider ways of correcting the potential consequences of the pre-May 1974 eligibility rules. It retained the William Mercer Company to identify possible strategies and their potential impact on the Plan. [16] In its February 1995 Report, Analysis of past discriminatory practices in Canadian Pension Plans, Mercer pointed out that female RBC employees like Ms. Sugimoto who had not attained age 24 at May 1, 1974, could not accrue pension benefits for her three years of service between ages 21 and 24. Further, because she was not eligible to join the Plan until March 1, 1980, she could not accumulate pension benefits for her years of service between May 1, 1974 and March 1980. [17] The Mercer report noted that some Canadian financial institutions had eliminated all past discriminatory practices in their pension plans retroactively; some had made retroactive adjustments that partially eliminated past discriminatory practices; and some did nothing. [18] The Mercer report emphasized that RBC has never made any retroactive amendments to the Plan. But if RBC wanted to make an exception to this policy, Mercer suggested two options. [19] RBC decided to implement a third option, namely, counting the years of service a female employee had between age 21 and the earliest of, the day she joined the Plan, age 24, and May 1, 1974, as contributory pensionable service. [20] In its report, Mercer recommended against considering the years from May 1974 to March 1980 for two reasons. First, it would be highly speculative to guess what a person today between ages 21 and 24 would have done in 1974, given the choice to continue as contributory member or opt out. Secondly, it would give these employees an unfair advantage compared to those who were Plan members in 1974, and who had to make a decision then, not 20 years later. (iii) The December 5, 1995 Board of Directors' Resolution. [21] The matter was first considered by the Human Resources Committee who recommended certain retroactive changes to the Plan. On December 5, 1995, the RBC Board of Directors passed a resolution authorizing the Pension Plan Management Committee to amend the Royal Bank Pension Plan to enable affected females to purchase benefits for any effected years of service. In its resolution, the Board recognized that the pre-1974 Plan eligibility rules had prevented women from joining the Plan at the same age as men, a practise now seen as discriminatory. [22] This resolution was implemented through what is described as the 1996 Gender Buy-back. The GBB was a one-time offer made to female employees who joined the Plan on or before March 1, 1980, and who had continuous, full time service between age 21 and age 24 prior to May 1, 1974. Those eligible could purchase up to three years of additional pensionable service, calculated as the time period between the later of, their 21st birthday and their start date at the Bank, and the earlier of, their 24th birthday and May 1, 1974. [23] After the GBB was in place, Mercers, the Plan's actuary, calculated that the net increased actuarial liability for RBC of the GBB was approximately $13,000,000 after the employee contributions of between $3,000,000 - $4,000,000. F. The September 5, 2003 GBB Plan Amendment [24] The additional benefits given under the GBB required a Plan amendment. Interestingly, the amendment was only made on September 5, 2003, effective January 1, 1996, more than seven years after the 1995 Board resolution. The amendment was by resolution of the Pension Plan Management Committee which was authorized by the Board to make amendments to the Plan. [25] The reason for this delay (as explained by Gary Dobbie, RBC Senior Vice-President, Compensation and Benefits, in his March 25, 2003 letter to the Office of the Superintendent of Financial Institutions) was that, after 1996, Plan members and former Plan members had approached RBC on numerous occasions asking for additional benefits based on the GBB. To ensure that the GBB was equitably and consistently offered, RBC postponed the Plan amendment until the matter was fully considered and resolved. [26] To appreciate how the 2003 Amendment works, it must be located in the context of Section C (Canada) Royal Bank Pension Plan as amended and restated on January 1, 2002. This is the most recent iteration of the Plan text provided by the parties to the Tribunal. [27] Section 2.01(6) defines Admission Date as the date a Member is admitted to the Plan. Member is defined in s. 2.01(38) as an employee who has been admitted as a member to the Plan under the eligibility rules in s. 3 of the Plan and who continues to be entitled to benefits under the Plan. Vesting in s. 2.01(71) means acquiring the right to a deferred pension after having a defined number of years of Service. [28] Section 4 is entitled Service, Service is defined in s. 4.05 as an employee's continuous employment with RBC. Pensionable Service, s. 4.04(1), is the period of service commencing on the Member's Admission Date and ending on the earliest of retirement, termination or death in service or attaining 35 years of Service. [29] Section 4.06 - Inclusion of Prior Service- provides that, where a Member is terminated prior to becoming vested in their pre-1987 Service and is re-employed by RBC after 1986, the prior period of Service shall be included in the Member's Pensionable Service. [30] Section 4.07 is entitled Inclusion of Prior Service at Election of Member. Section 4.07(1) deals with the situation where a Member with contributory Service prior to 1987, who terminated employment prior to becoming vested in such service, and was re-hired prior to January 1, 1987, may apply to the Administrator of the Plan to have that prior period reflected as Pensionable Service. [31] Section 4.07(2) - Election by Female Members in respect of Employment Prior to May 1, 1974 - reproduces the 2003 GBB amendment. This section sets out the eligibility rules for the GBB and provides that eligible members may apply to the Administrator of the Plan to have their period of employment pre-May 1, 1974, between ages 21 and 24, reflected as Pensionable Service. [32] Section 4.07(2) also sets out the terms of payment for the GBB and goes on to provide that the GBB period of Pensionable Service does not affect the Member's Admission Date nor shall the Member be deemed to have been a Member during that period. [33] It is very important to note that ss. 4.06, 4.07(1) and 4.07(2) by their terms are made exceptions to s. 4.04, the definition of Pensionable Service. G. Ms. Sugimoto and the GBB (i) Initial Correspondence and Consultations [34] The GBB offer was communicated to eligible Plan members by an internal RBC communication called Between Ourselves. It is dated January 24, 1996 and the headline read Royal Bank Moves to Correct Gender Gap in Pension Plan. [35] This communication sets out that one of the stated goals coming out of a series of gender conferences held by RBC a year earlier, was to make RBC a leading employer for gender equality. To achieve this, where possible, RBC would be making changes to previous policies that do not accord with its current gender policies. One of the past inequities identified was the disparity in the pre-1974 Plan eligibility rules for men and women. [36] In an effort to deal with this inequity, women who had continuous RBC employment pre-May 1974 and who were age 21-24 at the time would be given a one-time option to purchase up to three years of contributory pension plan membership. [37] Interested employees who wanted additional information were provided with a document called Royal Bank Past Gender Discriminatory Practices. This outlined that eligible employees could purchase contributory pension benefits and set out the terms and costs, etc. [38] The Human Resources Service Centre issued a further communication to employees on May 17, 1996 following up on the Between Ourselves newsletter. This referred to the special policy, previously outlined, for eligible female employees to buy pension plan service for full time employment prior to May 1, 1974 between ages 21 and 24. [39] Ms. Sugimoto was interested and submitted a Request for Information form indicating both that she wished to purchase three years of pension plan service and her eligibility to do so. She received an Application to Purchase Pension Plan Service Female Employees - 1996 Option, which she completed. [40] The Application set out her date of birth, 04-Oct-51; her continuous service date, 23-Feb-70; the date joined plan 01-Mar-80; years of service purchased 1.5833 (19 months); and deemed date joined pension plan, 01-Aug-78. The Application also contained the statement that this purchase of pension benefits provided additional years of service for benefit calculations and early retirement discount purposes only. Ms. Sugimoto had to pay $4,835 for the buyback years, which she did. [41] Ms. Sugimoto understood that at least to the extent of the GBB, RBC had made an attempt to eliminate the gender gap. But, in her view, there still existed a disparity between male and female employees of the same age and employment record. [42] So, on July 12, 1996, Ms. Sugimoto wrote to the RSVP Coordinator. She pointed out that male members with her employment record and age, who had elected to remain as contributory members rather than opt out, would be able to retire 72 months earlier than she could. Ms. Sugimoto asked whether RBC was making any efforts to close the remaining gap, namely, the period from 1974 to 1980. [43] Susan Ormiston, the RSVP Coordinator responded in her letter dated September 17, 1996. She wrote that in introducing the GBB, RBC recognized that this could not and did not solve all the past Plan inequities. Other reasons which she gave echoed those given in the February 8, 1995 Mercer Report. [44] RBC had considered offering a buy-back for the 1974 - 1980 period, but rejected this because it would be unfair to those who had opted out in 1974. If they had known then about the early retirement amendment, they would have made a different decision. [45] Further, to allow a buy-back of this period of service for the GBB employee could raise similar demands for the same from new hires where the Plan admission age was 30. [46] Ms. Sugimoto also obtained a letter dated December 23, 1996, from Brad Lambert, Vice-President, Business Banking, British Columbia and Yukon. In his letter, which was written in response to requests to buy back pension membership for the 1974-1980 period, Mr. Lambert pointed out that, with the benefit of hindsight, it was possible to assume some employees would have stayed in the Plan in 1974. But the assumption was that those seeking to buy back the 1974-1980 period, would have opted out in 1974 had they been Plan members. This was based on the fact that most people at that time who had only a few years service did in fact opt out. He reiterated that the GBB went some distance to deal with past gender inequity, but did not address all of the concerns. [47] Ms. Sugimoto also spoke with someone in the Pension Benefits department about the fact that she wanted to make this purchase. She says that she was told that when developing the GBB, the RBC had concluded that because most of the employees in her age group had opted out of the Plan in May 1974, the GBB participants would also likely have opted out. According to Ms. Sugimoto, RBC deemed her and the others to have opted out of the Plan as at May 1, 1974. [48] At this point in time, only one thing remained to Ms. Sugimoto's puzzlement. That was the concept of the deemed date joined plan that first appeared in her GBB Application. [49] Ms. Sugimoto says that she called the RBC Connections Help Line which was set up to advise employees on the GBB. She spoke to Carol Ann Clark and asked why she was being assigned a deemed date joined pension plan of August 1, 1978 and not October 1, 1972 to May of 1974. [50] According to Ms. Sugimoto, Ms. Clark told her it was for administrative purposes to show continuous pension plan membership and that, in effect, she had purchased contributory Plan membership for that period. [51] Ms. Sugimoto also spoke to Evelyn Murphy at Connections who told her that the terms, pension membership/benefits/service were interchangeable. In their evidence before the Tribunal, both Marianne Wilson and Gary Dobbie agreed with this. [52] Ms. Sugimoto said that Ms. Murphy told her that in that same conversation that, with the GBB, she had purchased Plan membership for October 1, 1972 to May 1, 1974. [53] Ms. Sugimoto was satisfied that after the GBB, she was now on an equal footing in terms of pension benefits to her male counterpart who in 1974 had opted out of the Plan. Both were eligible for a full unreduced pension at age 61 years, 10 months. There was no longer a gender problem and she did not pursue the matter any further in 1996. (ii) Ms. Sugimoto's Personal Benefits Statements [54] The personal benefits statement is an annual statement from RBC to its employees giving details of all their employment benefits. As to her pension details, Ms. Sugimoto's 1994 statement showed her date of birth, October 4, 1951; date joined Plan, March 1, 1980; and her contributory pensionable service dates are March 1, 1980 to March 4, 1985. Her early retirement date, after 35 years of credited Plan membership, was February 28, 2015. [55] Ms. Sugimoto's post-GBB 1997 statement showed these same details with the addition of contributory pensionable service, being August 1, 1978 to February 28, 1980 and March 1, 1980 to March 4, 1985. Also added was deemed date joined plan, August 1, 1978. Her early retirement date with 35 years of credited pension plan membership was now July 31, 2013 which reflected her GBB purchase of 19 months. All of Ms. Sugimoto's subsequent personal benefits statements up to and including 2001 had these same details. (iii) The BenPlus DB Pension System [56] Ms. Sugimoto also referred to a computer printout from the BenPlus DB pension system. This is a computer generated retirement modeling tool that RBC makes available on-line to Plan members. It was introduced in October 2001 to allow employees to make retirement calculations and retirement planning scenarios available on RBC's intranet. The employee inputs certain data assumptions such as estimated salary growth and pensionable bonus, retirement ages etc. Other data on the printout comes from RBC's pension records. [57] This printout is dated September 17, 2001 and consists of five pages. On page two, there is a box labelled Pensionable Service Details. This shows Ms. Sugimoto to be in the defined benefit plan with a service period of 1980/03/01 to date. Her contributory pensionable service period is shown as 1980/03/01 to 1985/03/04 and her previous contributory pensionable service as 1972/10/01 to 1974/05/01. [58] There is a disclaimer on page four of the printout. It provides that the information in the printout may not be accurate, complete or current. It is for estimation purposes only and the estimates are based on assumptions inputted by the employee which could change in the future. The disclaimer goes on to provide that the actual Plan benefits will be based on the Plan provisions and if there is any conflict between the printout and the Plan, the Plan will prevail. H. The 2001 Re-opener [59] The 2001 Re-opener was an offer by RBC to active employees and retirees, male and female, who had suspended their Plan membership between May 1, 1974 and their 30th birthday, to elect to have their period of suspension treated as a non-contributory membership in calculating their pension benefits. [60] The push for the 2001 Re-opener came from a number of individuals who questioned the actions that they had undertaken at May 1, 1974 in suspending their membership. After three years of negotiating with RBC, they threatened to bring a class action if RBC did not take remedial action. [61] RBC retained a number of law firms to review the text of the May 1, 1974 Plan amendment. Their advice was that the amendment could be interpreted as providing three options to the under age 30 members. Option one, to remain as a contributory member; option two, to suspend membership until age 30; and, option three, to remain in the Plan as a non-contributory member. There was no legal interpretation that required RBC to offer the 2001 Re-opener to any other Plan members. [62] After reviewing this legal advice, RBC requested William Mercer to estimate the cost of providing this third option. In doing its costing, Mercer considered two groups: Group A - members of the Plan who opted out on May 1, 1974, and the cost of offering them additional periods of pensionable service from May 1, 1974 to the earliest of March 1, 1980 and age 30; Group B - male employees under 21 and female employees under age 24 at May 1, 1974 who were not eligible to join the Plan and the cost of offering them additional pensionable service from the later of May 1, 1974 and age 21, to March 1, 1980. [63] Mercer noted that there were 304 females and 290 males in Group A as of January 1, 2001. And 885 females and 53 males in Group B. The increased actuarial costs to RBC for Group A were calculated to be $23,178,000. For Group B, $28,346,000. [64] After receiving Mercer's report, RBC did consider offering the 2001 Re-opener to Group B members. But decided not to do so because it would have required a Plan amendment; there was a significant cost to do so; and RBC felt that it would be inappropriate to offer it to Group B and not to other categories of employees who were not Plan members at May 1, 1974. [65] In its September 26, 2001 letter, RBC offered to those employees in Group A and retirees who had suspended membership in May 1974, to elect non-contributory membership for the period of their suspension. 260 females and 250 males took advantage of the 2001 Re-opener. It was not offered to Ms. Sugimoto. RBC did not consider that she was a Plan member who had suspended her membership at May 1, 1974. [66] RBC characterized the 2001 Re-opener as a re-interpretation of the May 1974 Plan amendment. As such, it was not necessary to amend the Plan to effect the 2001 Re-opener. RBC was only administering the Plan in compliance with the Plan text. And it was done through administrative process. [67] There was, however, an amendment to the Plan relating to the 2001 Re-opener. Section 1.02 History of the Plan was amended to provide an explanation for the 2001 Re-opener, which is referred to in this section as the 2001 Fix. I. Ms. Sugimoto and her OSFI Complaint [68] When Ms. Sugimoto learned of the 2001 Re-opener, she enquired from RBC as to why the offer was not made to her. She was told that she did not qualify because she was not a Plan member on May 1, 1974. [69] She was shocked and considered this to be sex and age discrimination. She believed that as a result of the GBB, she had been made equal at least to her male counterpart who had opted out in 1974. Now, because of the 2001 Re-opener, her male counterpart could retire with an unreduced pension at age 56, but she had to wait to age 61 years, 10 months for the same pension benefits. [70] Ms. Sugimoto was persistent in her efforts to remedy what she considered to be another gender inequity. She wrote numerous letters and e-mails to senior officials of RBC. She had numerous conversations with RBC officials, but to no avail. [71] Ms. Sugimoto first wrote to the Office of the Superintendent of Financial Institutions on September 4, 2002, three months before her complaint to the CHRC. One of OSFI's responsibilities is to oversee federally administered pension plans under the Pension Benefit Standards Act. [72] In her letter, Ms. Sugimoto documented in great detail all of the events from 1974 to the 2001 Re-opener. She sought OSFI's assistance and advice regarding the effects of the GBB and particularly the 2001 re-opener which she considered to amount to age and gender discrimination. [73] Ms. Sugimoto's submissions mirrored her submissions to the CHRC and the evidence she presented at the hearing before this Tribunal. In addition, her counsel made a number of written submissions to OSFI and met with OSFI officials. Their submissions raised these concerns. First, the gender gap issue which OSFI advised both Ms. Sugimoto and her counsel to be a human rights issue and beyond its jurisdiction. [74] Secondly, improper disclosure by RBC in that not all eligible female employees were properly informed of the GBB and some were misinformed. Further, the words pensionable service and membership were used interchangeably in the communications from RBC and this raised the question of whether the members bought back membership or pensionable service. Finally, there was the question of the delay by RBC in filing the GBB amendment with OSFI. [75] OSFI's review of the issues raised by Ms. Sugimoto took over two years. It reached its conclusions and communicated them in its December 14, 2004 letter to Grosman, Grosman & Gale, Ms. Sugimoto's counsel; in its December 20, 2004 letter to Ms. Sugimoto; and in its January 21, 2004 letter to RBC. [76] As to the question of improper disclosure, OSFI concluded that RBC did comply with the PBSA with respect to the communicating to affected members of the GBB offer and Plan amendment. [77] OSFI was critical of RBC for the delay between the 1995 Board resolution and the filing of the 2003 GBB amendment and suggested that RBC review its procedures to ensure compliance with the PBSA. [78] OSFI also criticized RBC for the confusion caused in its communications with members with respect to the use of the terms purchase of three years plan membership and purchase of pension benefits or years of pension plan service. OSFI pointed out that had the Plan amendment closely followed the 1995 resolution, this confusion could have been avoided. [79] On the question of the GBB, pensionable service and Plan membership, OSFI wrote that it had reviewed the written disclosure provided to members including the Between Ourselves newsletter, the GBB Application, the May 17, 1996 memorandum to eligible members, and the documentation submitted by Ms. Sugimoto including her annual personal benefits statements. OSFI concluded that: We noted the communication to members did refer to the purchase of past benefits as the purchase of three years contributory plan membership, contributory pension Plan benefits, as well as pension service. We are unable to comment on any verbal advice received by individual Plan members from Bank personnel. However, we cannot conclude from the material submitted that any promise was made to members that specified their purchase of the pension benefit would affect their date of entry into the plan or deem them to be a member during the buy-back period. This is consistent with the wording of the 1995 Board resolution and applicable amendment filed with OSFI in October 2003. [80] Ms. Sugimoto was not very accepting of OSFI's conclusion. On June 20, 2005, she wrote to OSFI saying that it appeared that OSFI's findings were based on incomplete information, evidence and documentation and that there were a number of issues that OSFI failed to consider. In her 16 page letter, Ms. Sugimoto set out the further considerations that OSFI should address. She also wrote to OSFI on December 9, 2005 claiming that RBC had contravened the PBSA, and giving particulars. This is unrelated to her human rights complaint. [81] OSFI replied on June 22, 2006, that they were reviewing the issues that she had raised. That remains the current status. III. ANALYSIS A. The Prima Facie Test, and the Issues to be Decided [82] In a human rights case before this Tribunal, the complainant must first establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if believed, i.e. credible, is complete and sufficient for a decision in the favour of the complainant, in the absence of a reasonable answer from the respondent. The respondent's answer should not figure in the determination of whether the complainant has made a prima facie case of discrimination. (See Ontario (Human Rights Commission and O'Malley v. Simpson Sears Ltd., [1985] 2 S.C.R 536; and Lincoln v. Bay Ferries Ltd., 2004 FCA 2004; Dhanjal v. Air Canada, (1997) 139 F.T.R. 37 at para. 6) [83] Ms. Sugimoto makes three arguments for a prima facie case of discrimination: by the GBB, Ms. Sugimoto bought back pre-1974 Plan membership, in which case she was treated adversely vis-à-vis her male counterpart because she was denied the opportunity to participate in the 2001 Re-opener. alternatively, if she did not buy back pre-1974 Plan membership, the GBB was under-inclusive. It purported to, but did not give Ms. Sugimoto the same status as her male counterpart. This is also alleged to be adverse discrimination. the 2001 Re-opener was facially neutral and was to apply to all members who had opted in 1974. However, the GBB women, who were told that they were being made equal to their male counterparts, were denied the 2001 Re-opener. The effects of this seemingly neutral rule were adverse for the GBB women. B. Did Ms. Sugimoto Establish a Prima Facie Case of Pre-May 1, 1974 Plan Membership? [84] There are a number of facts that support Ms. Sugimoto's prima facie case for pre-1974 Plan membership and adverse treatment. There is the announcement in the Between Ourselves newsletter that RBC moves to correct gender gap in pension plan. To deal with past inequities in the Plan, those eligible were offered the opportunity to buy back up to three years of contributory plan membership. [85] Other documentation provided to the employees such as the May 17, 1996 Human Resources bulletin characterized the GBB as being the purchase of pension plan service. The Request for Information form described the GBB as the purchase of contributory pension benefits. [86] Ms. Sugimoto was told by Evelyn Murphy when she called the Connections Line that the terms pension plan membership/service/benefits were used interchangeably. This was confirmed by other RBC officials (Gary Dobbie and Marianne Wilson). [87] As to the deemed date joined pension plan, Ms. Sugimoto was told by Carol Ann Clark at the Connections Line that it is a term used by RBC for administrative purposes to show continuous pension plan membership. But this term is not found anywhere in the Plan text. [88] According to Ms. Sugimoto, both Ms. Clark and Ms. Murphy told her that she had purchased contributory Plan membership for the period of October 1, 1972 to May 1, 1974. [89] There is the December 23, 1996 letter to Brad Lambert in which he talked about the assumption that employees in Ms. Sugimoto's position would have opted out in 1974. Further, Ms. Sugimoto was told by the Pensions Benefits department that RBC, in developing the GBB, had concluded that the GBB participants would likely have opted out and RBC deemed Ms. Sugimoto and others to have opted out in 1974. If this is so, then logically RBC must have considered her to be a Plan member in 1974. [90] Finally, there is the BenPlus printout which shows Ms. Sugimoto's previous contributory pensionable service to be 1972/10/01 to 1974/05/01. This information came from RBC pension records and was not inputted into the system by her. [91] There is no argument that, immediately after her GBB purchase, Ms. Sugimoto was equal to her male counterpart insofar as both could retire at the same age with the same pension. [92] Accepting the facts that the Between Ourselves newsletter communicated to employees that RBC was moving to correct the gender gap; that Ms. Sugimoto was told that by participating in the GBB, she had purchased contributory plan membership for the relevant period, and that term is interchangeable with pensionable service/benefits; and that deemed date joined pension plan is not a Plan term; and that RBC deemed the GBB women to have opted out in 1974 thereby suggesting that they had become members; and that the BenPlus printout showed her previous contributory DB pensionable service to be from 1972/10/10 to 1974/05/01, it is fair to conclude that Ms. Sugimoto has established, on a prima facie basis, that she has attained the same status as her male counterpart, i.e. a pre-1974 Plan member who was deemed to have opted out in 1974. [93] There is also prima facie evidence that Ms. Sugimoto was not eligible for the 2001 Re-opener; that her male counterpart was; that the 2001 re-opener differentiated between the two; and the differentiation adversely affected Ms. Sugimoto in the course of her employment. [94] Accordingly, I have concluded that Ms. Sugimoto has shown a prima facie case of adverse differentiation in respect of the 2001 Re-opener on the basis of the distinction drawn between her male counterpart's pre-1974 membership and her own pre-1974 membership. C. Has the Respondent Provided an Answer to the Prima Facie Case of Discrimination? [95] Many aspects of the prima facie case have not been refuted: Ms. Sugimoto's ineligibility for the 2001 Re-opener and her male counterpart's eligibility; the uniquely female nature of the GBB initiative; the fact that the GBB in the immediate aftermath, equalized retirement possibilities. The only contested question is whether the GBB gave her pre-1974 membership. [96] RBC notes that there is nothing in Ms. Sugimoto's Application that refers to any pre-May 1, 1974 Plan membership, nor did Ms. Sugimoto sign any enrolment card that would give her retroactive Plan membership for that period. Further, her Application clearly sets out that the purchase of pension benefits provides additional years of service for benefit calculations and early retirement discount purposes only. [97] All of her personal benefit statements from 1997 to 2001 consistently showed her date joined plan as March 1, 1980. There is nothing on these statements that show that she was a member of the Plan between October 1, 1972 to May 1, 1974. [98] Bernard Morency, an actuary with William Mercer was the actuary to the Plan and was actively involved in the development of the GBB and the 2001 Re-opener. He said that any pension benefits that may accrue to Plan members must be found in the Plan text. And although the GBB amendment was not added to the text until 2003, Plan members and the Plan trustee could look to the 1995 Board resolution to define their GBB entitlement. [99] In his view, the GBB gave eligible employees the option to make a contribution in order to get the eligible service considered pensionable. If accepted, the GBB would be counted as contributory service towards the annual pension amount and also count towards the 35 years required for early retirement. For him, the GBB did not affect the date joined plan. It changed or added to the years of pensionable service. [100] Marianne Wilson was the Manager, Pension Administration in the Human Resources Centre from 1987 to 1998. She was responsible for the day-to-day operation of the Plan, to ensure all calculations for benefits were appropriately done for employees, to respond to employees questions and to maintain the payroll records for pension purposes and the administration of the pensioners' payroll. She was very much involved in implementation of the GBB including the development of the documentation required for the GBB. [101] According to Ms. Wilson, the date an employee joined the Plan never changed. The term deemed date joined plan was the method that RBC used to account or record employees buying back previous service. It gives a date for prior service to count as credited service. [102] Ms. Wilson called this ante-dating. This is similar to what was done in earlier Plan texts and the GBB amendment tracked the earlier versions in concept, except that the structure of the GBB amendment is somewhat different. [103] Ms. Wilson referred to previous Plan texts as they evolved over the years to show the historical analogy for the deemed date joined plan under section C1.25 of the Consolidated By-laws of the Pension Fund Society amended to May 1, 1974, a Plan member whose service was terminated and was later re-hired, was treated as a new employee with a new date of admission in the Plan. This new date of admission could be backdated to allow for the employee's previous service. This backdating did not involve giving the employee deemed membership at his or her original commencement date of employment. This treatment is analogous to the administrative measures taken by RBC in assigning the deemed date joined plan to Ms. Sugimoto. [104] The January 1, 1981 Consolidated By-laws carried forward C1.25 and also added C1.26 which allowed for service lost because of a labour dispute to be deemed pensionable service. Notably absent from this provision is any reference to changing the admission date. [105] The 1974 and1981 Consolidated By-laws are also instructive in showing the relationship in the Plan between the buy back of service and pensionable service. Under paragraph C1.12 (m) of the 1974 Consolidated By-laws, pensionable service was the period of years commencing with the date of admission to the Plan and ending with the date of termination of service or the 35th anniversary of admission. Member is defined as an employee who has been admitted to the Plan. [106] The January 1981 Consolidated By-laws carried forward this same definition except that the definition of pensionable service was now made subject to the application of C1.25 and C1.26. Therefore, for the purposes of these two provisions, the concept of pensionable service was uncoupled from the concept of admission to membership. They were no longer interchangeable. [107] Mr. Morency gave an example of how s. C1.25 worked. If an employee was a Plan member between 1974 and 1978, left RBC and returned to employment in 1981, the employee would have four years of prior service. When the employee re-joined RBC, his or her date joined Plan would be 1981. But C1.25 would allow the employee's admission date to be backdated to 1977. [108] Mr. Dobbie spoke to the BenPlus computer printout. He noted the disclaimer which provided that the information may not be complete, accurate or correct and that it was there for a variety of purposes. This was a new system; it was for information purposes only; and it was not intended to provide specific advice because the calculation is to some extent, generated by input from the employee. It was not meant to replace the annual personal benefits statements. [109] As to that part of the printout, Pensionable Service Details, Previous Royal Bank Pensionable Service, Pension Service Period, 1972/10/01 to 1974/05/01, it shows only that Ms. Sugimoto bought contributory pensionable service for that period. To that extent, said Mr. Dobbie, it is similar to the date that would be reflected there for employees with broken service records. [110] Any rights or benefits Ms. Sugimoto may have acquired through her GBB purchase must flow through the 1995 Board resolution and the 2003 GBB Plan amendment which was effective January 1, 1996. Accordingly these are the sources that I must look to. [111] I include the Plan amendment because OSFI, the authority charged with regulating federal pensions, has concluded that the 2003 GBB amendment is consistent with the 1995 Board Resolution. Ms. Sugimoto's suggestion that OSFI may change its position based on her June 20, 2005 submissions, is entirely speculative. [112] What Ms. Sugimoto was told or promised by RBC officials or understood from the various documents can not be the source of her rights. The case before this Tribunal is not a contract case, nor is it a case of estoppel or misrepresentation. [113] As I read the 2003 GBB amendment, it adds the period of the GBB as contributory pensionable service to the pensionable service Ms. Sugimoto began accumulating when she joined the Plan on March 1, 1980. [114] This is made clear by s. 4.07(2) of the 2003 amendment, which applies notwithstanding the definition of Pensionable Service in s. 4.04. Just as C1.12(m) of the 1981 Consolidated By-laws made the definition of pensionable service subject to C1.25 and C1.26. [115] Further, the concluding words of s. 4.07(2) makes it clear that the acquisition of additional Pensionable Service under this provision does affect the Member's Admission date. This was the consequence of the GBB and it did not confer on Ms. Sugimoto, the status of a pre-1974 Plan member who had opted out. Her date of admission to membership remained March 1, 1980. [116] Thus, I have concluded that the respondent has answered the prima facie case and there is no discrimination relating the refusal of RBC to allow Ms. Sugimoto to participate in the 2001 Re-opener. Because the GBB did not grant her pre-1974 membership, she was not comparable to her male counterpart. D. Was the GBB Under-Inclusive and therefore Discriminatory? [117] Apart from her assertion that the GBB was under-inclusive because it did not give what it purported to give to Ms. Sugimoto, she offered little argument or legal authorities to support this position. However, since the argument was raised, I will deal with it. [118] In Brooks v. Canada Safeway Ltd, [1989] 1 S.C.R. 1219, the Supreme Court of Canada considered the concept of under-inclusiveness and discrimination under the Manitoba Human Right Code. [119] This case involved Canada Safeway's group insurance plan which provided generally for benefits during pregnancy, but excluded coverage for 17 weeks of the pregnancy period. [120] In dealing with the question of whether such exclusion was discriminatory as being under-inclusive, the Supreme Court considered that under-inclusion may be a backhanded way of permitting discrimination. It is no less discriminatory to partially withhold benefits from a group than it is to impose a penalty or burden on the group. [121] In Brooks, Canada Safeway had an ongoing, active obligation under the Manitoba Human Rights Code not to deny its female employees equal benefits under the group insurance plan. [122] The problem with applying the principle of under-inclusiveness in this case is that it assumes that RBC had a legal obligation under the CHRA to remedy the pre-CHRA discrimination. But this is not so. [123] It strains logic to say to an employer that you are under no legal duty to eliminate pre-CHRA discrimination, but if you choose to do so, you must eliminate all of it or incur liability under the CHRA for the outstanding balance. Or, to express it another way, an ex gratia gesture to account for pre-CHRA discrimination should not attract liability for under-inclusiveness. [124] For these reasons, it is my opinion that Ms. Sugimoto has failed to establish a prima facie case of discrimination because of the alleged under-inclusiveness of the GBB. E. Is the 2001 Re-opener Discriminatory to the Extent it Distinguished Between Members and Non-Members? [125] The 2001 Re-opener, although neutral on its face (it does not distinguish between men and women - only between members and non-members) imposes a restriction on women in Ms. Sugimoto's position because of a special characteristic they share, namely, ineligibility for Plan membership in 1974 because of their age and gender. This special characteristic arises from the operation of a pension rule that was in effect prior to the enactment of the CHRA. Indirect restrictions based on characteristics of this kind are referred to as adverse effect discrimination. [126] Adverse effect discrimination has been recognized by the Supreme Court in O'Malley. But the difficulty in this case and not encountered in O'Malley is one of retrospectivity. [127] Is it discriminatory for the 2001 Re-opener to distinguish on the basis of past membership, given this was in place pre-CHRA? In my opinion, the Federal Court of Appeal has answered this question in the negative. It did so in Gell v. Canadian Pacific Ltd., (1987) 10 C.H.R.R. D/5494. [128] In Gell, prior to the commencement of the CHRA, the company pension plan had a maximum age rule (age rule) that excluded from membership any persons who were 40 years old or older when they started working for the company. The complainants, who were both over 40 when hired, were excluded from the pension plan pursuant to the age rule. [129] In 1978, the company amended the plan to give eligible employees the right to join the plan if they had earlier elected not to join the plan, or if they had left the plan. The complainants were not eligible because of the age rule. [130] In 1979, the company amended the plan again, allowing all those employees who joined the plan pursuant to the 1978 amendment the option to buy back up to 10 years of past pensionable service. The complainants were not eligible for the 1979 buy-back, because they had not been eligible to benefit from the 1978 amendment. [131] In 1980, the CHRA became operative in respect of pension plan age discrimination. That same year, the company introduced a further amendment to the plan that allowed any employees who had been previously excluded from membership by the age rule to join the plan. The complainants joined. [132] In 1982, another plan amendment was adopted, aimed exclusively at those employees who had benefited from the 1978 and 1979 amendments. The 1982 amendment allowed eligible employees to buy back pension service in respect of any remaining years of service which they had not already bought back. The complainants were ineligible to benefit from the 1982 amendment due to their ineligibility in respect of the 1978 and 1979 amendments. [133] The complainants alleged that their exclusion from the 1982 buy-back amendment was discriminatory because the eligibility rules for the amendment incorporated by reference a discriminatory age rule that had existed prior to the commencement of the CHRA provisions. They argued that since the buy-back offer (to which the Act applied) took into account past discriminatory considerations (to which the Act did not apply), the buy back offer was discriminatory. [134] The Federal Court of Appeal disagreed. It noted first that the buy-back offer was in essence facially neutral (it distinguished only on the basis of membership in the plan on a specific date). It then observed that the complainant's ineligibility for the buy-back offer was caused solely by the former existence of a discriminatory rule that pre-dated the operation of the CHRA. [135] The Court concluded that this rule was at the time perfectly legal and its effect, which is not required by the Act to be eliminated retroactively, must be taken as it is. Thus, according to Gell, a neutral event or transaction does not engage the CHRA by reason only of its reliance upon a discriminatory pre-Act state of affairs. [136] Ms. Sugimoto argues that Gell is distinguishable because it lacked a crucial fact that is present in the case at bar, the GBB. Unlike in Gell, RBC took the initiative, post-CHRA, to narrow the disparity between the complainant group and their comparators. (The degree to which the gap was narrowed is in dispute, but no party denies that it was at least partially narrowed.) [137] Ms. Sugimoto says that the GBB initiative constituted a commitment to full equality for all the GBB women, i.e. closing the gap that was created before the CHRA came into force. Moreover, she alleges that RBC represented it as such to its female employees. Ultimately though, from her perspective, RBC failed to live up to its commitment, and the GBB did not have the effect that RBC purported it to have. [138] Ms. Sugimoto stresses that none of these circumstances were present in Gell. There was no initiative in Gell to narrow the disparity between the complainant and comparator groups. There was no commitment to close the gap between the over-40-year-olds and the under-40-year-olds, nor any representation to have effectively done so. Accordingly, it cannot be said that in Gell there was any failure to live up to such promises. [139] It is true that there are factual differences between Gell and this case, including the absence in Gell of anything resembling the GBB initiative. However, this is not enough to distinguish the decision. [140] To do so, it would be necessary to show that the factual differences in question are relevant to the Court's reasoning. Gell stands for the proposition that a neutral event or transaction does not engage the CHRA by reason only of its reliance upon a discriminatory pre-Act state of affairs. The presence of the GBB in the current matter does not make this proposition any less applicable. [141] I have earlier concluded that the GBB did not alter Ms. Sugimoto's status to the point of putting her on the same footing as her male counterpart. The GBB merely narrowed the gap in years of pensionable service. I have also concluded that in narrowing the gap-a gap RBC had no obligation to close in the first place-the GBB cannot be viewed as under-inclusive or otherwise adversely differential towards Ms. Sugimoto. [142] In effect, the GBB granted Ms. Sugimoto partial compensation for pre-CHRA exclusion. But in terms of status, the GBB did not place her in any better position vis-à-vis the 2001 Re-opener than the Gell complainants found themselves at the time of the 1982 amendment. In each case the individuals concerned had eventually acquired plan membership, but they were still ineligible for the facially neutral pension offer in question because the offer was tied to old discriminatory membership rules that existed prior to the commencement of the CHRA. [143] In Gell, the impugned buy-back was an offer made to the comparators that was based on a certain status enjoyed by the comparators before the CHRA came into force (a status the complainants were not granted at the time). [144] Likewise, in this case, the Re-opener was an offer made to the comparators that was based upon a certain status enjoyed by the comparators before the CHRA came into force (a status that Ms. Sugimoto was not granted at the time, and never acquired retroactively, notwithstanding the GBB). [145] In Gell, the Federal Court of Appeal has stated that discriminatory differences in status pre-dating the CHRA can still be relied upon after the legislation has come into force, without engaging liability. [146] In the current case, the result can be no different. The presence of the GBB does not alter the discriminatory difference in status pre-dating the CHRA which separates Ms. Sugimoto from her male counterpart. [147] In her submissions, Ms. Sugimoto relied extensively on the dissenting judgment of Jackson JA in the case of Anderson v. Saskatchewan Teachers Superannuation Commission (1995) 24 C.H.R.R. D/177 (Sask.C.A.). [148] In Anderson, a school board had a policy requiring female teachers to resign in order to take maternity leave and then re-apply for employment. Under this policy, the teachers were unable to accumulate pensionable service during their pregnancy-related absences from the workplace. In the late 1950s and early 1960s the complainant teachers resigned for pregnancy and childbirth reasons, and were later re-hired following the completion of their maternity leaves. [149] In the 1970s, legislation came into force in the province which forbade discrimination in employment on the ground of sex. [150] In 1976, the school board began approving formal maternity leaves instead of requiring resignations. In addition, in 1976 pension legislation was passed that essentially allowed women to buy back the pensionable service they lost while on board-approved maternity leave. [151] In the early 1990s, the complainants applied to buy back the service lost on account of their pregnancies. The pension commission refused, given that the complainants' maternity leaves had not been board-approved; they had resigned to take their leave. [152] The complainants then alleged that the pension commission's refusal to allow them to buy back service in respect of their maternity leaves was discriminatory. [153] The majority in the Saskatchewan Court of Appeal held that the pension buy-back rule was not discriminatory. Given their finding, the majority was not required to address the fact that the origin of the buy-back dispute, the complainants' non board-approved maternity leaves in the late 1950's and early 1960s, pre-dated the commencement of the applicable anti-discrimination legislation. [154] Jackson JA, in dissent, held that the pension buy-back rule was discriminatory. In doing so, she had to address the fact that the complainants' pregnancy resignations occurred prior to the coming into force of the Human Rights Code, and the Code could not deal with discriminatory acts occurring prior to its enactment. [155] In her view, however, the relevant event for this analysis was not the old policy obliging women to resign to take maternity leave, but rather the new act, i.e. the introduction of a new maternity buy-back rule that excluded the complainants because (due to pre-Code discrimination) they had been unable to take board-approved leave. [156] The new buy-back rule was not a natural consequence of the old pre-Code policy. In this regard it was noteworthy that the pension commission was not obliged to offer buy-backs. [157] Given that it was not a natural consequence of the pre-Code rule, the new buy back rule could not be sheltered by the principle of non-retrospective application of the Code. [158] In reaching her conclusion, Jackson JA referred to Gell, which she considered, on its facts, to be similar to the facts in Anderson. However, after discussing the Gell case, Jackson JA concluded that Gell should not be followed. In her view, once the respondent in Gell decided to offer the buy-back, it could not discriminate on the basis of age by building upon a prior discriminatory rule to create present day discrimination. [159] It is clear that in Anderson, Jackson JA refused to follow Gell. It is also clear that this was not because Gell was distinguishable on its facts. [160] The only fair conclusion to be drawn from Jackson JA's reasons is that she believed that Gell, while dealing with facts similar to those before her, was not to be followed because, in her opinion, it was wrongly decided. [161] However, while Jackson JA, as a judge of the Saskatchewan Court of Appeal, is free to disagree with the Gell decision of the Federal Court of Appeal, this Tribunal cannot. [162] Ms. Sugimoto did not refer to any Federal Court of Appeal decisions that overrule Gell. Given the absence of salient dissimilarities between Gell and the present case, this Tribunal is bound to follow Gell. [163] Even if the Tribunal were free to adopt the dissenting reasons in Anderson, they would not be of assistance. First of all, much is made in the reasons of Jackson JA that new acts that rely on past discrimination are themselves discriminatory. Yet there is a strong argument against characterizing the 2001 Re-opener as a fresh step. The facts are that the 2001 Re-opener is a re-interpretation of a 1974 Plan amendment that should have been made available at the time of the amendment. [164] Moreover, given Jackson JA's statements about the factual similarities between Anderson and Gell, it is inconsistent for Ms. Sugimoto to argue on one hand that Gell is distinguishable on its facts, while on the other hand, Anderson should be applied to the current case. If Gell is distinguishable on its facts, then Anderson should be as well. [165] The 2001 Re-opener adversely differentiates between Ms. Sugimoto and her male counterpart. But the Gell decision compels us to view the differentiation in terms of membership, as opposed to gender, and therefore there is no nexus between this adverse effect and a prohibited ground of discrimination. Ms. Sugimoto has not shown a prima facie case of discrimination. IV. DECISION [166] I have found that Ms. Sugimoto has made out a prima facie case of discrimination on the question of pre-1974 Plan membership and adverse differentiation because of the denial of the 2001 Re-opener. I have concluded, however, that RBC has provided a reasonable explanation to the prima facie case, so this allegation must be dismissed. [167] With respect to the allegations of discrimination based on the under-inclusiveness of the GBB and the allegation of discrimination based on the adverse effect of the 2001 Re-opener on certain non-members, I have concluded that Ms. Sugimoto has failed to establish a prima facie case of discrimination. [168] Accordingly, Ms. Sugimoto's complaint of discrimination against RBC under s. 7 of the CHRA is dismissed. [169] In her complaint, Ms. Sugimoto also alleged that RBC contravened ss. 10 and 21 of the CHRA. However, she did not present any evidence or argument with respect to these allegations. I assume they have been abandoned. If not, these allegations have not been substantiated and for this reason are also dismissed. Signed by J. Grant Sinclair OTTAWA, Ontario February 21, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1015/13504 STYLE OF CAUSE: Yvonne Sugimoto v. Royal Bank of Canada DATE AND PLACE OF HEARING: September 18 to 22, 2006 October 18, 2006 Toronto, Ontario DECISION OF THE TRIBUNAL DATED: February 21, 2007 APPEARANCES: Norman Grosman Natalie MacDonald For the Complainant Daniel Pagowski For the Canadian Human Rights Commission Stephen Shamie, Elizabeth Brown, Sean Sells For the Respondent

2007 CHRT 50

CHRT

Kuhlmann v. Westcan Bulk Transport Ltd.

en

2007-10-29

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7145/index.do

2023-12-01

Kuhlmann v. Westcan Bulk Transport Ltd. Collection Canadian Human Rights Tribunal Date 2007-10-29 Neutral citation 2007 CHRT 50 File number(s) T1155/3706 Decision-maker(s) Hadjis, Athanasios Decision type Decision Decision status Final Grounds Disability Decision Content Between: Diane Kuhlmann Complainant - and - Canadian Human Rights Commission Commission - and - Westcan Bulk Transport Ltd. Respondent Decision Member: Athanasios D. Hadjis Date: October 29, 2007 Citation: 2007 CHRT 50 [1] I wanted to review all the material and I’ve written up my decision on the points raised by you this morning, if you’ll just give me a moment. [2] On September 5, 2007, the Respondent made a motion to have the present complaint dismissed, principally because the complainant, Ms. Kuhlmann, failed to comply with her disclosure obligations. The Respondent has reiterated the request today, at the opening of the hearing into the complaint. Ms. Kuhlmann, in reply, has asked for leave to proceed to lead her evidence notwithstanding her failure to disclose, or in the alternative, that an adjournment be granted to enable her to complete her disclosure. [3] Ms. Kuhlmann filed her complaint on August 1, 2003. The complaint was referred by the Canadian Human Rights Commission to the Tribunal on July 20, 2006. On April 25, 2007, the Commission advised the Tribunal and the parties that it would not be appearing or calling evidence at the hearing into the complaint. At a case management teleconference conducted by the Tribunal on May 10, 2007, the hearing into this complaint was set down for September 17 to the 21st, 2007. [4] The parties were informed during the conference call of the dates for their respective disclosure, pursuant to Rule 6 of the Tribunal’s Rules of Procedure. In a follow up letter from the Tribunal, the information that is to be exchanged as part of the disclosure was spelled out, including a statement of particulars, remedies sought, the lists of documents, witness lists and summaries of their evidence, including experts. Ms. Kuhlmann was to provide her disclosure by June 21, 2007, the Respondent by July 5, 2007. [5] On June 19, 2007, Ms. Kuhlmann wrote an email to the Tribunal requesting information on how to obtain and serve subpoenas and how to request additional disclosure from the other party. The information requested was provided to her by the Tribunal Registry, via an email message sent the same day. [6] On June 25, 2007, Ms. Kuhlmann wrote an email to the Tribunal requesting an extension for the disclosure of her documents, statement of particulars and witness list. She claimed to be having difficulty locating one of her potential witnesses. She also indicated that she had had her documents reviewed and was informed that case law would have to be provided. She was unfamiliar with case law research. She therefore requested that her deadline be extended to July 16, 2007. The Tribunal wrote back granting her extension but only until July 6, 2007. [7] On July 10, 2007, the Tribunal Registry sent an email message to Ms. Kuhlmann reminding her that four days had passed since the extended disclosure deadline had passed and she had still not filed her disclosure documents with the Tribunal. The message reminded her that no further extension had been granted and it was incumbent on her to send this material to the Tribunal and to the Respondent. [8] On July 16, 2007, the Tribunal Registry sent a letter by mail - by email, sorry - to Ms. Kuhlmann reminding her that she had still not filed her disclosure documents. The Tribunal asked that she respond and submit her disclosure immediately. The Tribunal reiterated the point that had been made when her disclosure date was extended, to the effect that the hearing dates set down would not be affected by the extension. The case would still proceed on September 17, 2007. [9] On July 17, 2007, Ms. Kuhlmann sent an email message to the Tribunal in which she stated that she had been in touch with the Commission for direction but had no reply from them as of yet. She attached a letter that she had sent to the Commission expressing her displeasure at their decision to not appear at the hearing. [10] The following day, on July 18, 2007, the Tribunal Registry wrote back to Ms. Kuhlmann by email, pointing out to her that the Commission is a separate and distinct entity from the Tribunal and that the Tribunal was not in a position to comment on the issues she had been raising with the Commission. The Tribunal reminded her that she had yet to complete her disclosure and included with the correspondence that was sent to her, a copy of the Tribunal’s Rules of Procedure with the pertinent provisions highlighted. The Tribunal reiterated that hearing dates for the complaint were not affected by the granting of an extension to July 6th for her disclosure. The Tribunal also pointed out to her that Rule 9(3) states that a party who does not comply with Rule 6(1) regarding disclosure shall not raise an issue, call witnesses, introduce documents or seek remedies at the hearing. [11] This morning when the hearing opened and the present issues were being debated, Ms. Kuhlmann indicated that she had telephoned and spoken to Mr. Guy Grégoire, Manager of Registry Operations at the Tribunal, on July 30, 2007. She confirmed that he had indicated to her that she should provide the Tribunal with any documents she had on hand at that time and request that the Tribunal accept these documents as her disclosure. Nonetheless, Ms. Kuhlmann did not provide any disclosure documents whatsoever to the Tribunal or the Respondent thereafter. [12] On August 27, 2007, the Tribunal sent email messages to all the parties requesting their availability for a conference call to discuss the hearing process. Ms. Kuhlmann did not reply to this email. On September 5, 2007, the Tribunal attempted to telephone Ms. Kuhlmann. There was no answer so a message was left on her answering machine or voice mail, asking her to call back. It is my understanding that Ms. Kuhlmann never called back in this regard, and a conference call was not conducted. I would note here that this is information I just obtained looking at the Tribunal's file. But that is my understanding that a message was left at that time. [13] On Friday, September 14, 2007, at 2:30 p.m., that is to say, three days ago, Ms. Kuhlmann wrote an email message to the Tribunal in which she stated that upon returning from her vacation, she had managed to catch up on the numerous emails with regard to this matter. She added that she could not find in her emails any information regarding the time and place for the hearing and asked for the information to be forwarded to her. The information was forwarded to her by the Tribunal within five minutes, although I note from the case file that the Tribunal had emailed a notice of venue to all the parties on August 10, 2007. [14] In her submissions today on the issues at hand, Ms. Kuhlmann confirmed that she had been away from her home on and off for a number of weeks in August and early September. She claimed that she did not have access to a computer in this period and did not check her voice mail. There is no indication, however, of her having advised the Tribunal of her absence and of a forwarding address where she could be reached. [15] More importantly, during the month of July she was apparently available, and did receive the correspondence sent to her by the Tribunal. She herself contacted the Tribunal a number of times. There is, of course, no doubt that she knew that her disclosure was due by July 6, 2007. Yet despite the repeated notices from the Tribunal of her failure to comply with the Tribunal’s directions, she did not fulfill her disclosure obligations. [16] In the Tribunal’s correspondence with Ms. Kuhlmann, there was explicit mention made of the consequences of failing to disclose, as set out in Rule 9(3). These consequences are also set out in the booklet entitled What happens next? A guide to the Tribunal process, which the Tribunal sends to all parties and which Ms. Kuhlmann acknowledged having received in this case. At page 18 of the guide, the paragraph is boldfaced and a symbol reflecting that this is a point to remember is added in the margin in the form of a magnifying glass. The paragraph states: If you fail to disclose a document you may not be allowed to introduce it into evidence at the hearing. Similarly, you may not be permitted to examine witnesses or raise legal issues, including remedies sought that you have failed to identify in advance. The Tribunal will allow a party to rely on evidence not disclosed before the hearing only in exceptional circumstances. [17] And then it continues about the ongoing duty to disclose. [18] Ms. Kuhlmann arrives today at the hearing without having disclosed a single document or complied with any of her other disclosure obligations. Are there any exceptional circumstances in this case to justify allowing her to proceed without complying with her disclosure obligations? I do not see any. On the contrary, as the Respondent points out, it finds itself in a most untenable position. It must retain experts and expend time and money to fully prepare for the hearing, without knowledge of the case it must rebut. And in fact, it has not been able to prepare itself for today’s hearing. In addition, there is no evidence of the Respondent having failed to comply with its duties in this process. For instance, given the Complainant’s failure to disclose, it sought the Tribunal’s authorization to be dispensed from disclosing at the dates that were stipulated for its disclosure. [19] The only justification that Ms. Kuhlmann appears to be providing for her failure to meet her disclosure obligations is her inability to get a response to her satisfaction from the Commission on the matters she has raised with them. This is not a relevant matter for the case at hand. Ms. Kuhlmann knows since at least April 2007 that the Commission will not be appearing. If she still wanted to pursue her complaint, it was incumbent upon her to focus her attention on the Tribunal process. She has failed to do so. I therefore see no reason to grant her leave from her disclosure obligations. Pursuant to Rule 9(3), and given her entire failure to disclose, she is foreclosed from leading any evidence in support of her complaint, raising any issue arising there from, calling any witness, or claiming any relief. [20] I also see no reason to adjourn this case to enable Ms. Kuhlmann to comply with her disclosure obligations. She has had ample opportunity to comply over the last two months, she has been repeatedly reminded of what she has to do to satisfy these requirements, and has opted not to do so. The Rules of Procedure are put in place to enable a fair and expeditious Tribunal hearing process. They are not there to be ignored and cast aside cavalierly, simply because a party opted to not comply with them. All parties have a duty to respect the Rules and Tribunal directives, be they Respondents or Complainants. [21] I would also add, in my view, that it would be unfair to the Respondent to extend this matter, one that dates back to August 2003, for what would surely be many months more and would probably take us well into 2008. [22] Ms. Kuhlmann’s motion to adjourn is therefore denied. [23] Given, therefore, that the Complainant is foreclosed from leading evidence or raising any issue before me to support the complaint, as I indicated earlier, I find that her complaint is not substantiated and is therefore dismissed. Thank you. I don't think I have anything else to add so thank you very much. I hereby certify that the foregoing is a true and accurate representation of my decision given to the parties on September 17, 2007. Signed by Athanasios D. Hadjis Tribunal Member Ottawa, Ontario October 29, 2007 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1155/3706 Style of Cause: Diane Kuhlmann v. Westcan Bulk Transport Ltd. Decision of the Tribunal Dated: October 29, 2007 (Oral decision given to the parties on September 17, 2007) Date and Place of Hearing: September 17, 2007 Edmonton, Alberta Appearances: Diane Kuhlmann, for herself No one appearing, for the Canadian Human Rights Commission Wendy Bridges, for the Respondent

2007 CHRT 51

CHRT

Montreuil v. Canadian Forces

en

2007-10-29

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7143/index.do

2023-12-01

Montreuil v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2007-10-29 Neutral citation 2007 CHRT 51 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 2007 CHRT 51 2007/10/29 MEMBER: Pierre Deschamps [1] The Tribunal has before it the respondent's motion to rehear Dr. Assalian and Dr. Karmel, the respondent's experts who have already testified in this matter, after the Commission's expert psychiatrist, Dr. Beltrami, has been heard as a witness, so that they can comment on Dr. Beltrami's testimony at the hearing. It should be noted that, during their testimony, Dr. Assalian and Dr. Karmel remarked on Dr. Beltrami's reports that were filed in evidence. [2] The complainant and the Commission oppose this motion inter alia on the ground that the respondent cannot divide its evidence and that, in any event, the respondent would be given an undue advantage which would be prejudicial to them if the Tribunal were to grant the respondent's motion. [3] The Tribunal is master of its own procedure. Pursuant to the Canadian Human Rights Act, the Tribunal holds inquiries into complaints referred to it by the Commission. In this respect, it can hear both ordinary and expert witnesses. That said, when a complaint is heard, the Tribunal must ensure that procedural fairness is observed so that one party is not given an advantage to the detriment of another in terms of the administration of the evidence. [4] In this matter, it was decided that the respondent's experts, namely Dr. Assalian, Dr. Dufour and Dr. Karmel, would be heard prior to the Commission's expert, Dr. Beltrami. Dr. Assalian had been heard before Dr. Beltrami testified, regarding his reports as well as Dr. Beltrami's reports. Dr. Assalian was thereby able to comment on Dr. Beltrami's reports, but without hearing his testimony. Similarly, Dr. Karmel was able to comment on the parts of Dr. Beltrami's report bearing on the MMPI-2 test, without having heard Dr. Beltrami's testimony. [5] Dr. Beltrami testified during the week of October 22, 2007. In the context of his testimony, which lasted five days, Dr. Beltrami commented on his reports and was also able to comment on several remarks made by Dr. Assalian during his testimony. He also referred to Dr. Karmel's report. Moreover, Dr. Beltrami was prompted to qualify certain assertions contained in his report. [6] In other circumstances, Dr. Beltrami would have testified prior to Dr. Assalian and Dr. Karmel. He would then have been able to testify in regard to his own reports, as well as comment on the reports of Dr. Assalian and Dr. Karmel. In such case, as Dr. Assalian and Dr. Karmel would not have had yet testified, Dr. Beltrami could not have commented on their testimonies. [7] That said, given the complexity of the medical issues raised in this matter, it is more likely that, once the respondent's experts had testified, the Commission would have requested that Dr. Beltrami be reheard to comment on their testimonies, a request that would have been very seriously considered by the Tribunal given the complexity of the issues raised in this matter and the importance that the Tribunal benefit from the most complete information possible on the medical issues raised. [8] The issue now before the Tribunal is whether to rehear the respondent's two experts, who did not have the opportunity to comment on the testimony of the Commission's medical expert, not whether to rehear two ordinary witnesses of the respondent in order to have them complete their testimonies. [9] The rehearing of an expert on one or more specific elements cannot be likened to rehearing a fact witness called to add to the witness' version of the facts after hearing another party's witnesses, thereby qualifying his or her own testimony. [10] The rehearing of Dr. Assalian and Dr. Karmel, recognized as expert witnesses, is intended to give the Tribunal the most complete understanding possible of the medical elements at issue in this case. The administration of justice would not be properly served if the Tribunal were to deprive itself of the comments of these two expert witnesses regarding Dr. Beltrami's testimony. [11] In this case, it is important for the Tribunal to benefit from the knowledge of the parties' experts in order to completely understand the specific medical factors at the heart of this litigation involving gender dysphoria, sexual identity disorder, transsexualism and transgenderism. On this point, it is important for the Tribunal to have the opinion of the respondent's experts in regard to Dr. Beltrami's testimony on these issues and on his assessment of the complainant, even more so because Dr. Beltrami qualified certain parts of his reports in his testimony. [12] The Tribunal must remind the parties that the experts that they have testify are meant to enlighten the Tribunal on specific points which are not matters of judicial notice. In principle, the experts are not there to support the argument advanced by the party that made it, but to provide the Tribunal with information that will enable it to make an enlightened decision on the issues submitted to it for adjudication. [13] In order for an expert that a party wants to have reheard to fully enlightened the Tribunal on technical or scientific issues at the heart of a litigation, the expert that the party wants to have reheard for a specific purpose must have heard or have knowledge of the testimony of the witness on which he or she is called to remark. [14] It appears from the comments made by the respondent's counsel at the hearing of October 26, 2007, that Dr. Assalian, even though he was not present during Dr. Beltrami's testimony during the week of October 22, 2007, nevertheless received the stenographer's transcript of Dr. Beltrami's testimony in this case. Dr. Assalian would therefore have knowledge of Dr. Beltrami's testimony in this proceeding. [15] In regard to Dr. Karmel, the Tribunal noted that he was present in the hearing room during Dr. Beltrami's examination by the Commission's counsel, namely on October 22, 23 and 24, 2007. Moreover, Dr. Karmel was able, during those three days, to benefit from an interpreter's services to facilitate his comprehension of Dr. Beltrami's testimony, as Dr. Beltrami had testified in French. However, Dr. Karmel was not present during the cross-examination of Dr. Beltrami on October 25 and 26, 2007. [16] Considering the complexity of the medical issues submitted to the Tribunal in this case, the Tribunal is of the opinion that it is important that Dr. Assalian and Dr Karmel be reheard for the sole purpose of commenting on Dr. Beltrami's testimony, in order to fully clarify the medical issues that the Tribunal is called to decide. [17] The Tribunal therefore authorizes that Dr. Assalian, psychiatrist, be called back as an expert witness for the sole purpose of commenting on the testimony given by Dr. Beltrami during the hearings held in the week of October 22, 2007, insofar that he can state that he read the transcript of Dr. Beltrami's testimony and that his testimony bears only on Dr. Beltrami's testimony. [18] The Tribunal also authorizes the rehearing of Dr. Karmel, psychologist, for the sole purpose of commenting on Dr. Beltrami's testimony regarding the administration and interpretation of the MMPI-2 test completed by the complainant. Dr. Karmel, who was not present for the hearing on October 25 and 26, 2007, will not be able to comment in any way on Dr. Beltrami's testimony during those two days. [19] The Tribunal is of the opinion that in this case there would be no prejudice caused to the Commission or to the complainant. The Commission is there to represent the public interest, as the Commission's counsel often pointed out. In principle, in a proceeding such as this one the Commission has no interest in having the Tribunal deprived of the clarification that could be provided by these experts who have been recognized as such by the Tribunal, regardless of the party that had them heard. [20] The Tribunal therefore authorizes the rehearing of Dr. Assalian and Dr. Karmel as experts in their respective fields of expertise for the sole purpose of commenting on Dr. Beltrami's testimony. The rehearing of these two witnesses will take place on November 5, 2007, beginning at 9:30 a.m. The Commission and the complainant will be able to cross-examine Dr. Assalian and Dr. Karmel, if need be. Pierre Deschamps OTTAWA, Ontario October 29, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1047/2805 STYLE OF CAUSE: Micheline Montreuil v. Canadian Forces RULING OF THE TRIBUNAL DATED: October 29, 2007 APPEARANCES: Micheline Montreuil For herself Ikram Warsame For the Canadian Human Rights Commission Guy Lamb / Claude Morissette For the Respondent

2007 CHRT 52

CHRT

beachesboy@aol.com v. Heather Fleming and Ronald Fleming

en

2007-11-01

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7141/index.do

2023-12-01

beachesboy@aol.com v. Heather Fleming and Ronald Fleming Collection Canadian Human Rights Tribunal Date 2007-11-01 Neutral citation 2007 CHRT 52 File number(s) T1170/5206 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision status Interim Decision Content Between: beachesboy@aol.com Complainant - and - Canadian Human Rights Commission Commission - and - Heather Fleming and Ronald Fleming Respondent Ruling Member: Athanasios D. Hadjis Date: November 1, 2007 Citation: 2007 CHRT 52 [1] The Canadian Human Rights Commission has made a motion requesting an amendment of the style of cause in this proceeding. The complaint identifies the respondent simply as Drumsaremybeat and this designation has to this point been carried forward into the style of cause. The Commission is requesting that this name now be substituted with the names of two individuals, Heather Fleming and Ronald Fleming. [2] The Commission has also requested a direction from the Tribunal that the Complainant’s identity not be publicly disclosed, even to the responding party. [3] The Tribunal’s hearing on the two motions was conducted by videoconference on October 1, 2007. The Commission’s counsel and the Complainant appeared at the hearing, but no one appeared or filed any written submissions on behalf of Drumsaremybeat. [4] The Tribunal had sent a notice to Mr. and Ms. Fleming informing them that they could appear at the hearing by presenting themselves at the Federal Court’s videoconferencing facilities located in Edmonton, which is not far from their residence. Neither of them appeared at the hearing, which lasted over four hours in total. The Tribunal did not receive any communication from them explaining their failure to attend. They did not provide any written submissions regarding the Commission’s motions either. [5] As a result, the Complainant and the Commission were the only parties to put evidence and submissions before the Tribunal on the motions. Motion to amend style of cause [6] The Complainant states in the complaint that from December 2004 to March 2005, he viewed a number of postings on an Internet bulletin board administered by AOL Canada (AOL), which he believes constitute hate messages, within the meaning of s. 13 of the Canadian Human Rights Act. The messages were posted by someone using Drumsaremybeat as his or her AOL username or pseudonym. [7] The Complainant did not know the true identity of the person making these postings when he filed the complaint on July 15, 2005. As a result, he identified the respondent merely as Drumsaremybeat. On February 6, 2006, AOL informed the Commission that according to its records, the AOL customer who was using Drumsaremybeat as a screen name in 2005 was Heather Fleming. AOL provided the Commission with an information sheet regarding Ms. Fleming’s account, which included her postal address. [8] From then on, the Commission began to basically deal with the matter as if Ms. Fleming was the respondent. Thus, on March 6, 2006, the Commission investigator assigned to this case wrote a letter to Ms. Fleming advising her that the Commission had received a complaint from beachesboy@aol.com alleging that drumsaremybeat posted messages on an AOL bulletin board that discriminate against the Complainant and others on the basis of sexual orientation. The letter went on to state the following: At this time, I would appreciate receiving by March 27, 2006, your position regarding the allegations, but not limited to, the following: (1) Are you drumsaremybeat? (2) Did you post the messages as alleged in the complaint form? If so what was the purpose of posting the messages? (3) What is the intent of the information/documentation posted on the websites? (4) Who is your present Internet Service Provider (ISP)? Where is it located? Please provide a copy the agreement with your ISP. [sic] If someone other than yourself will be representing you in this matter, please let us know at your earliest opportunity. Also, please be advised that you are required to preserve any material related to the complaint, including information in electronic formats, until the final disposition of the matter. (Emphasis added) [9] The Commission received a letter in response, dated March 15, 2006. Although the letter appeared to have been signed by H. Fleming its content suggested that someone else was its author. For instance, in the second paragraph, the writer wrote, This complaint is addressed to my wife as the phone in which I was on the ISP AOL at the said time of the offensive was in her name (sic throughout). The author then went on to state that at the time the alleged hate messages were posted, his computer was being controlled by a hacker without his consent. He added that no one at this address applies to that screen-name (i.e. Drumsaremybeat). [10] By early July 2006, the Commission investigator prepared the investigation report regarding the complaint. On the cover page of the report, the investigator identified Heather Fleming (a.k.a. Drumsaremybeat) as the respondent. The report states that Ms. Fleming confirmed to the investigator that she was the registered holder of the AOL account linked to the Drumsaremybeat username, but that it was her spouse who was in fact using the account. She told the investigator that she was inexperienced in handling computers and did not post any messages on the AOL message boards. She added that the written defence to the complaint that had been submitted to the Commission by Drumsaremybeat had been provided by Mr. Fleming. The report gave a summary of this defence including Mr. Fleming’s claim that a hacker had used their AOL Account to post the impugned messages under the Drumsaremybeat username. [11] On July 10, 2006, the Commission sent a letter to Ms. Fleming informing her that: The investigation into the complaint against you has been completed. A copy of the investigation report is enclosed for your review. (Emphasis added) [12] The Commission similarly sent a copy of the investigation report to the Complainant, who in turn opted to submit a reply in writing. On July 27, 2006, the Commission forwarded this reply to Ms. Fleming, stating in its accompanying letter that the Complainant’s submissions were regarding the complaint filed by Beachesboy against you. [13] In October 2006, the Commission sent a letter addressed to Ms. Fleming advising her that the Commission had decided to refer the complaint of beachesboy@aol.com v. Drumsaremybeat to the Tribunal for inquiry. [14] The Commission subsequently received a letter dated October 19, 2006, seemingly bearing the signatures of Ronald Fleming and H. Fleming. The letter ends with the following typewritten statement: Yours pathetically in anger Ronald L. Fleming Canadian Citizen The letter reiterated the claim that Ms. Fleming had nothing to do with the AOL user account in question, and added: Now, if you wish to communicate with the person that is supposed to be responsible for this phoney human rights charge, then you will address this envelope and all other particulars to me and to me only! Mr. Ronald Fleming at said address. [15] In its motion, the Commission maintains that the information garnered from AOL, as confirmed by Mr. and Ms. Fleming themselves, indicates that they were responsible for the AOL account with which the username Drumsaremybeat was associated. [16] The Commission claims that the complaint did not initially identify the AOL member who was using the screen name Drumsaremybeat because the member’s identity was not known at that time. I note, however, that as of February 6, 2006, the Commission had learned of the AOL member’s name (Ms. Fleming) and in the Commission investigator’s report of July 2006, there was a finding that Mr. Fleming was using the AOL account. [17] Yet, despite having knowledge of this information, the Commission did not amend the complaint and opted to refer it to the Tribunal in its existing form. It was only after the complaint had been referred to the Tribunal that the Commission sought permission from the Tribunal to amend the style of cause, a merely technical formality, according to the Commission. [18] I disagree with this assertion. Amending the style of cause is not a mere technicality. Serious consequences may flow from such action. Persons who have hitherto not been involved in the human rights complaint may suddenly find themselves embroiled in a legal process that will bear significantly on them. They will have to expend time and resources contesting the complaint. If the complaint is ultimately found to be substantiated, remedial orders may be issued against them. These sorts of amendments are therefore not to be taken lightly. [19] Where circumstances warrant, the Tribunal has the authority to add new parties to a complaint, a procedure that is explicitly contemplated in s. 48.9(2)(b) of the Act and in Rule 8(3) of the Tribunal’s Rules of Procedure. In Syndicat des employés d’exécution de Québec-téléphone, Section locale 5044 du SCFP v. Telus Communications (Québec) Inc., 2003 CHRT 31 at para. 30 (Telus), the Tribunal noted that the addition of a new respondent once a complaint has been referred to the Tribunal is appropriate where the presence of the new party is necessary to dispose of the complaint and 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. [20] This latter condition calls for particular attention in the present case. Was it not reasonably foreseeable, since at least February 2006, that Ms. Fleming should be named as a respondent? Was it not reasonably foreseeable, as of the date when the Commission released its investigation report, that Mr. Fleming should also be named? [21] The question of foreseeability relates largely, as I see it, to the potential prejudice to new respondents that may arise from the denial of the benefits that accrue to them during the Commission process that precedes the complaint’s referral to the Tribunal (see Brown v. National Capital Commission, 2003 CHRT 43 at para. 46). These benefits include the possibility that the Commission will decide not to deal with the complaint (s. 41 of the Act), dismiss it (s. 44(3)(b)), or refer it to conciliation (s. 47) (see in this regard the Tribunal’s oral decision in Desormeaux, cited in Telus at paras. 25-7). The Federal Court pointed out in Parent v. Canada, 2006 CF 1313, at paras. 40-1, that the question of prejudice to the respondent is the predominant factor to be considered by the Tribunal when ruling on amendments to complaints, though it should be noted that Parent dealt with the addition of factual allegations to a complaint, not new parties. [22] I am satisfied that in the present case, Mr. and Ms. Fleming would not be denied the benefits that would have accrued to them had they been named as respondents from the outset, in the complaint. The Commission has dealt with them as the actual respondents since well before the complaint was referred to the Tribunal. Correspondence with Ms. Fleming repeatedly referred to her (you) having been named in the complaint. More importantly, both she and Mr. Fleming responded to the allegations made against them. They were able to put their positions before the Commission, prior to the referral. Indeed, their defence submissions were summarized in detail in the Commission investigation report. They not only were given the opportunity to respond to the allegations made, but they in fact exercised their right to do so. [23] I also find that the second component of the test set out in Telus has been met. The involvement of Mr. and Ms. Fleming is necessary to dispose of the complaint, if only because an Internet username is not likely recognizable as a person who can participate in a hearing and be held accountable for compliance with any final order. Without their presence, there is effectively no respondent to the complaint and thus, no dispute before the Tribunal. If, as the Commission alleges, Mr. and Ms. Fleming were the individuals who held the AOL account associated with the Drumsaremybeat username, they can be held accountable. [24] In the circumstances, I find that it is appropriate for the Tribunal to exercise its discretion to allow the change being sought by the Commission and, in effect, add two party respondents and remove another. As such, it is perhaps more correct to frame the Commission’s motion as a request to add parties rather than a motion to amend the complaint. It is unfortunate that the parties were not added to the complaint prior to its referral to the Tribunal, which would have obviated the need for the present motion. [25] I therefore order that Ronald Fleming and Heather Fleming be added as respondents in this case, in substitution of Drumsaremybeat. I also direct that the style of cause associated with this complaint be amended to show Mr. and Ms. Fleming as the sole respondents. Motion regarding disclosure of the Complainant’s identity [26] On the complaint form filed with the Commission on July 15, 2005, the Complainant did not disclose his real name. Instead, he signed the document as beachesboy@aol.com followed by an explanation that his name and contact information had been provided separately to the Commission, but withheld from publication for safety reasons. In its subsequent dealings with the complaint, the Commission acceded to this request and never divulged the Complainant’s name and contact information to Mr. and Ms. Fleming. [27] When the complaint was referred to the Tribunal for inquiry, the Commission provided the Tribunal with the Complainant’s name and contact information. However, the Commission also requested that these details not be revealed publicly, citing safety concerns. The Tribunal has, accordingly, to this date, not disclosed the Complainant’s name and contact information to Mr. and Ms. Fleming, nor anyone else. [28] It bears repeating, at this point, that nobody appeared at the hearing to contest the Commission’s motion for a direction from the Tribunal that this practice be maintained indefinitely. [29] In support of its motion, the Commission has highlighted some of the messages referred to in the complaint. These consist of postings made by someone using the pseudonym Drumsaremybeat on AOL’s on-line bulletin board. These messages, if genuine, appear to contain expressions of aggression and violence directed against homosexuals generally and beachesboy@aol.com personally. The Complainant is not named specifically since he never revealed his true identity on the bulletin board, and only participated using his username. The messages rely on some fairly vulgar language to depict the harm and violence that the author of the messages would wish upon beachesboy@aol.com and all homosexual persons. The messages’ author laments that homosexuals are not executed anymore in Canada and he or she proudly recounts an incident where a friend punched a gay man on an Edmonton street. [30] All of these messages, however, were posted in late 2004 or early 2005. No evidence of any subsequent statements of a similar nature was presented to me. Moreover, these AOL bulletin board messages were posted by someone using a pseudonym (Drumsaremybeat), and at this point, it has merely been alleged that the person(s) responsible for posting the messages are Mr. and/or Ms. Fleming. This has yet to be proven. Since the filing of the human rights complaint, Mr. and Ms. Fleming have sent a number of letters to the Complainant, the Commission and the Tribunal, some of which I alluded to earlier in this ruling. While these letters express anger with regard to what are claimed to be wrongful accusations in the complaint, they do not contain any threats or expressions of violence. [31] The Complainant has pointed out that he has filed several more s. 13 complaints against other individuals. A number of these complaints have already been referred to the Tribunal. The Complainant claims that on at least one occasion in the past, when some statements by him condemning discriminatory conduct were reported in the media, he received a number of threats at his home. [32] In my view, given the violent language used in the messages referred to in the complaint, some of which targets the Complainant, and the Complainant’s general concerns regarding the public disclosure of his identity, coupled with the fact that the Commission’s motion was not contested, I see no reason to modify the approach that has been adopted in this case thus far. However, once the case reaches the hearing stage, maintaining this approach will pose certain challenges. For instance, how will the Complainant be able to give testimony if he does not reveal his actual name when taking his oath or making his solemn affirmation? If the complaint is ultimately found to be substantiated and the Complainant seeks a personal remedy to which the Tribunal believes he is entitled, the Tribunal may have some difficulty drafting an order in favour of an unidentified victim. [33] Mindful of these concerns, I direct nonetheless that the practice followed by the Tribunal Registry to this date be maintained until the opening of the hearing on the complaint (i.e. that the Complainant be publicly identified as beachesboy@aol.com and that his contact information not be disclosed to anyone, including the respondents in this case). The matter may thereafter be addressed by the member assigned to inquire into the complaint. Signed by Athanasios D. Hadjis Tribunal Member Ottawa, Ontario November 1, 2007 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1170/5206 Style of Cause: beachesboy@aol.com v. Heather Fleming and Ronald Fleming Ruling of the Tribunal Dated: November 1, 2007 Date and Place of Preliminary Motion: October 1, 2007 Ottawa, ON; Toronto, ON and Edmonton, AB (via videoconference) Appearances: beachesboy@aol.com, for the Complainant Ikram Warsame, for the Canadian Human Rights Commission No one appearing, for the Respondents

2007 CHRT 53

CHRT

Montreuil v. Canadian Forces Grievance Board

en

2007-11-20

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7139/index.do

2023-12-01

Montreuil v. Canadian Forces Grievance Board Collection Canadian Human Rights Tribunal Date 2007-11-20 Neutral citation 2007 CHRT 53 File number(s) T1108/8905 Decision-maker(s) Doucet, Michel Decision type Decision Decision status Final Decision Content Between: Micheline Montreuil Complainant - and - Canadian Human Rights Commission Commission - and - Canadian Forces Grievance Board Respondent Decision Member: Michel Doucet Date: November 20, 2007 Citation: 2007 CHRT 53 Table of Contents I. Introduction A. The Parties (i) The complainant (ii) The Canadian Forces Grievance Board B. Legal Framework C. Analysis (i) The prima facie case (a) Does the complainant have the skills or qualifications necessary to fill the position? (b) Was the complainant’s application rejected (c) Were the candidates hired in response to the competition and thereafter more qualified than the complainant (d) Was there a prima facie case? (ii) The respondent’s explanation D. The Remedies Sought by Micheline Montreuil (i) Claim for loss of salary (ii) Order for compensation of pain and suffering (iii) An order pursuant to subsection 53(3) of the CHRA (iv) Interest E. Conclusion I. Introduction [1] On August 23, 2004, Micheline Montreuil filed a complaint in accordance with the Canadian Human Rights Act, R.S. 1985, c. H-6 (the CHRA), against the Canadian Forces Grievance Board (the Board). The complainant alleges that the Board discriminated against her on the basis of sex (transgender) and ethnic origin (language) contrary to sections 3 and 7 of the Act. [2] During a pre-hearing teleconference held on April 7, 2006, with the case manager of this matter, the Tribunal Vice-Chairperson, Athanasios D. Hadjis, the complainant stated that the complaint would involve only discrimination on the basis of sex and that she would not pursue her complaint of discrimination on the basis of ethnic origin. According to the minutes of this teleconference, the complainant undertook to provide a letter to the Tribunal confirming this undertaking. This letter was never provided. [3] There is no doubt that the complainant, who is also counsel, made an undertaking. There is no reason to believe that she would now want to withdraw it. Indeed, throughout the hearing she insisted on pointing out that the argument based on language only served to support her complaint based on sex. She alleged, in fact, that the language ground had only been a pretext for not giving her the desired position based on her sex. Under these circumstances, this decision will address only the discrimination complaint based on sex. However, the complainant’s arguments are such that I will have no choice but to address in my reasons the aspect of her argument based on language. A. The Parties (i) The complainant [4] Micheline Montreuil is a lawyer by profession. In addition to her law degree, she has university degrees in industrial relations and in administration. She also recently obtained a bachelor’s degree in education and is studying for her master’s degree in ethics. She has been a member of the Quebec Bar since 1976. Since her admission to the Bar, she practised law and also taught at two colleges in Québec, namely Limoilou College and François-Xavier-Garneau College. She also gave courses at the Université Laval, and at the Université du Québec in Chicoutimi and in Rimouski. [5] When she talks about discrimination on the basis of sex, Ms. Montreuil refers to certain characteristics tied to gender identity or appearance which are such that she does not find herself, in her own words, in a situation [Translation] that could be described as ordinary. Between what she describes as [Translation] a normal man or woman there is the transsexual or transgendered realm. Within that realm, she identifies three large groups. There are transvestites, who are individuals who dress completely or partially in accessories or clothing of the other sex. However, she states that this choice is only temporary and that the transvestite returns to the clothing of his or her sex after a certain period of time. At the other end of the spectrum is the transsexual group. The choice of individuals in this group is to completely change their sex through surgical operations. Between the transvestites and the transsexuals, Ms. Montreuil identifies the transgendered, i.e. individuals who, like her, choose to live in the clothing of the other sex all of the time. Persons from this group may also opt for certain minor surgical operations to change certain aspects of their appearance, but they will not undergo a complete surgical transformation. [6] From the outset, the Board’s counsel conceded that Ms. Montreuil’s [Translation] particular condition was not at issue and that she could therefore allege that she had been discriminated against on the basis of sex under section 3 of the Act because of this particular condition. [7] At the time of the hearing, Ms. Montreuil was working as a part-time lecturer in the bachelor of nursing sciences program at the Université du Québec in Rimouski, where she gave courses in ethics and legal liability. She also worked as a legal researcher at the Conseil de la justice administrative du Québec, in Québec. Her employment at the Conseil de la justice administrative was supposed to end on April 27, 2007. She also adds that she continues to practise law. (ii) The Canadian Forces Grievance Board [8] The Canadian Forces Grievance Board has at this time about 50 employees. It also has six members, including the Chairperson and Vice-Chairperson who both work full-time. The other four members are part-time. [9] The Board was established during the military justice reform initiated when in 1995 the Doshen report (A Report on the Study of Mechanisms of Voice/Complaint Resolution in the Canadian Armed Forces) was filed regarding the resolution of grievances within the armed forces. In 1997, two events reinforced this idea for reform. First, the Minister of Defence filed a report on leadership and management of the Canadian Forces (Report to the Prime Minister on Leadership and Management of the Canadian Forces) and then the findings of the Somalia Inquiry Report were published reiterating the need to change the military justice system. [10] Further to these different reports, the federal government decided that the National Defence Act should be amended to modernize and reinforce the military justice system, which included simplifying the grievance process in the Canadian Forces. The Board, an independent administrative tribunal, was created on March 1, 2002. [11] The Grievance Board is responsible for examining military grievances filed by members of the Canadian Forces, in accordance with section 29 of the National Defence Act. Inter alia, it examines grievances sent to it by the Chief of Defence Staff. To be more precise, the Chief of Staff send the Board grievances related to the … administrative action resulting in the forfeiture of, or deductions from, pay and allowances, reversion to a lower rank or release from the Canadian Forces of a member, whether it be for medical or behavioural reasons. The Board also examines grievances regarding the application or interpretation of Canadian Forces policies relating to expression of personal opinions … conflict of interest and post-employment compliance measures, harassment or racist conduct. (See – Chapter 7.12 of the Queen’s Regulations and Orders for the Canadian Forces.) [12] After the grievances have been considered, the Board submits impartial and fair recommendations to the Chief of Staff and to the complainant. [13] In order to assist it in fulfilling its mandate, the Board created grievance officer positions. The main duties of a grievance officer are reviewing the records, investigating and taking part in the drafting of the findings and recommendations of the Board to the Chief of Defence Staff. The grievance officer also acts as a specialist with the personnel and Board members. B. Legal Framework [14] Section 7 of the CHRA provides that it is a discriminatory practice, directly or indirectly, to refuse to employ an individual on a prohibited ground of discrimination, including inter alia sex or national or ethnic origin. (See also sections 3 and 15 of the CHRA.) [15] The burden of proof in a matter like this one is first on the complainant, who must establish a prima facie case of discrimination. (See: 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). [16] A prima facie case is one which covers the allegations made and which, if believed, is complete and sufficient to justify a finding in the complainant’s favour in the absence of a response from the respondent. (Ontario (Ontario Human Rights Commission) v. Etobicoke (Borough), [1982] 1 S.C.R. 202, at page 208; Ontario Human Rights Commission and O’Malley v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536, at paragraph 28). [17] The issue is therefore whether there is evidence establishing on a balance of probabilities that the complainant had been discriminated against. In this case, we need not dwell on whether Ms. Montreuil has a distinguishing trait or traits of a group against which discrimination is prohibited under the CHRA on the basis of sex since the respondent has not contested it and admits that discrimination based on transgender is deemed to be on the basis of sex. [18] In the employment context, a prima facie case is described as requiring evidence of the following elements: The complainant was qualified for the employment at issue; The complainant was not hired; Someone no better qualified but lacking the distinguishing feature, which is the gravamen of the human rights complaint, subsequently obtained the position. (See: Shakes v. Rex Pak Ltd. (1982), 3 C.H.R.R. D/1001, at paragraph 8918.) [19] This approach was changed in order to accommodate situations where the complainant is not hired and where the respondent continues to look for a suitable candidate. In that case, the following factors must be present to establish a prima facie case: The complainant belongs to one of the designated groups under the Act; The complainant applied and was qualified for a job that the employer wished to fill; Although qualified, the complainant was rejected; Thereafter, the employer continued to seek applicants with the complainant’s qualifications. (See: Israeli v. Canadian Human Rights Commission and Public Service Commission (1983), 4 C.H.R.R. D/1616, at page 1618.) [20] In Montreuil v. National Bank of Canada, 2004 CHRT 7, at paragraph 44, the Tribunal considered the differences between these two approaches. It determined that the approach in Shakes applies to cases where the complainant is competing with other candidates for a specific position. The Tribunal adds that it does not appear that it can apply to ongoing recruitment situations, given that irrespective of whether the persons hired at a given moment lack the distinguishing feature of the complainant, other employment positions into which the complainant could potentially be hired continue to remain available. However, it explains that the Israeli approach, given its fourth factor, applies to situations where the employer continues to search for applicants. [21] In this case, the evidence is not as clear as it was in Montreuil v. National Bank. Ms. Montreuil applied for a specific position. We could therefore be led to determine that the approach in Shakes ought to be applied. However, the respondent will respond that it did not reject the application because it kept the complainant on an eligibility list for a unilingual French grievance officer position for a period well beyond the one established to fill the position for which Ms. Montreuil had applied. Moreover, given the almost continuous turnover of Board personnel, it continued to seek applicants for grievance officer positions and kept the complainant on an active eligibility list. It is clear that neither one of the approaches in Shakes or Israeli specifically addresses the dilemma before us. However, I do not think it necessary to choose between these two approaches. [22] In Premakumar v. Air Canada, T.D. 03/02, 2002/02/04, the Tribunal stated that the tests in Shakes and Israeli are useful guides, but that neither test should be automatically applied in a rigid or arbitrary fashion. 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 finding in the complainant’s favour, in the absence of an answer from the respondent? We will therefore apply this flexible approach to this case by combining the two approaches if necessary and by reformulating the tests to apply if the need arises. [23] Once this prima facie case is established, the burden shifts to the respondent, who must provide a reasonable explanation of the alleged conduct. [24] The case law recognizes the difficulty of proving allegations of discrimination by direct evidence. The discrimination is frequently practised in a very subtle manner. Overt discrimination is rare. (See Basi, supra, paragraph D/5038.) Rather, it is the Tribunal’s task to consider all of the circumstances to determine if there is what is described in the Basi case as the subtle scent of discrimination. (Premakumar, paragraph 79.) [25] The standard of proof in discrimination cases is the ordinary civil standard of the balance of probabilities. According to this standard, discrimination may be inferred where the evidence offered in support of the discrimination renders such an inference more probable than the other possible inferences or hypotheses. (Premakumar, paragraph 81.) However, discriminatory considerations need not be the sole reason for the practices at issue for a complaint to succeed. It is sufficient if these considerations are factors in the decision not to hire. (Premakumar, paragraph 82, Holden v. Canadian National Railway (1990), 14 C.H.R.R. D/12 at paragraph D/15.) [26] In fact, evidence of discrimination has inherent problems. The most significant is, without question, the fact that similar circumstances may be interpreted differently. If the discrimination is based on differentiation, the problem is that this differentiation does not exist independently of the parties’ actions. It must be inferred. It follows that the Tribunal member called to decide the issue must use his or her judgment in assessing the circumstances giving rise to the allegations of discrimination. C. Analysis (i) The prima facie case (a) Does the complainant have the skills or qualifications necessary to fill the position? [27] The role of a senior grievance officer is, inter alia, to provide opinions and legal advice to the members of the Board regarding the grievances referred to them by the Chief of Defence Staff. To fill the grievance officer positions, the Board first held an internal competition in February 2002. [28] In April 2002, a second competition was launched which was open to the general public. The Board at that time advertised 10 grievance officer positions of a determinate term of twelve months or more. According to the advertisement, applicants had to have a university degree in human resources, law or industrial or labour relations. The advertisement also set out a series of required skills and provided that the majority of positions were bilingual imperative CCC, but that [Translation] some are unilingual English or French. [29] On May 6, 2002, Ms. Montreuil applied for one of the positions advertised in the competition of April 2002. She also sent her Public Service Commission of Canada English language exam results, which she had written on February 9, 2000. Her proficiency level was E (Exempt), with a score of 63 of 65 in written comprehension, and in written expression her proficiency level was B, with a score of 43. A score of 44 is required for a proficiency level of C. In oral interaction, the complainant had a proficiency level of C. Linguistically, the complainant was therefore evaluated ECB. On November 26, 2002, Ms. Montreuil rewrote the English Second Language written expression exam in order to improve her standing in that category. In fact, there was nothing to prevent Ms. Montreuil from continuing to improve her skills in written expression in English and to redo the Public Service language proficiency exams as often as she wished. Following this new exam, the complainant’s proficiency level in English written comprehension remained unchanged at B. [30] On August 20, 2002, Ms. Montreuil was asked to report to Valcartier military base to take a written exam. On October 31, 2002, she was told that she had passed her exam and that she would be [Translation] soon called to an interview by the Selection Board. [31] On November 15, 2002, the complainant was interviewed in Ottawa by Diane Laurin, Mireille Royer, then Human Resources Advisor, and Gary Wetzel, the Board’s in-house counsel. Diane Laurin was at that time the Board’s Vice-Chairperson. She became Chairperson in February 2004. [32] According to a letter dated July 14, 2005, written by Jacques Shore, from the law firm Gowling Lafleur Henderson, the respondent’s counsel at that time, it would appear that Ms. Laurin took notes during Ms. Montreuil’s interview. We can presume that the other members of the Board also took notes during the interview. These notes were not produced at the hearing. These notes are often indicative of the state of mind of the interview participants as indicated in the decisions of this Tribunal in Kasongo v. Farm Credit Canada, 2005 CHRT 24 and Montreuil v. National Bank, supra. Unfortunately, we will not have the benefits of the notes in this case. [33] According to Ms. Laurin’s testimony, the interview with Ms. Montreuil went well. She added that the atmosphere was comparable to the atmosphere of the interviews with the other applicants. During this interview, Ms. Laurin met Ms. Montreuil for the first time, but she knew who she was because she had heard about her in the media. She was aware that she was transgendered and that she had [Translation] struggled before several courts of justice to assert her rights. Ms. Laurin pointed out that Ms. Royer had also been aware of the fact that the candidate was transgendered. It is possible, in her opinion, that Mr. Wetzel had not been aware of this and she therefore thought it best to tell him before the interview began. She added that the Selection Board had discussed this candidate beforehand as it had done with respect to all the other candidates. Ms. Laurin stated that the Selection Board found Ms. Montreuil’s curriculum vitae [Translation] interesting. She added that the interview results indicate that the complainant [Translation] did very well. Indeed, according to the interview results, the complainant placed third of the four candidates. On cross-examination, Ms. Laurin added that the three other candidates, unilingual Anglophones, had all been hired by the Board. [34] Ms. Laurin explained that at the interview the candidates were evaluated according to certain criteria i.e.: knowledge, ability, competencies and personal attributes. Knowledge was established by a series of predetermined questions addressed to all of the candidates. Ability and competencies were assessed based on the individual’s curriculum vitae. Finally, personal attributes were examined at the interview and based on the references provided by the candidate. The candidate’s language capabilities or abilities were not evaluated or considered at the interview. Ms. Laurin added that if a candidate wanted to qualify for a bilingual position, the candidate must then comply with the language requirements of the Public Service Commission. [35] On December 30, 2002, Ms. Montreuil received a letter from Mireille Royer, human resources consultant for the Board, who informed her that the members of the Selection Board had completed the evaluation of the candidates and that she had qualified in the competition. [36] Considering these facts, I find that Ms. Montreuil had the necessary competencies or qualifications to work as a grievance officer. According to Mireille Royer’s letter, which we referred to above, she was qualified for the position in the context of the competition. (b) Was the complainant’s application rejected? [37] Ms. Royer’s letter, referred to above, also states that Ms. Montreuil, being qualified for the competition, then had her name place on an eligibility list which had to be used to staff positions that became vacant between then and March 30, 2003. The letter refers to [Translation] attached eligibility lists, yet these lists were not filed at the hearing. [38] In the months after this letter was received, Ms. Montreuil contacted the Board several times to find out when it would be hiring grievance officers. She was told that the Board was waiting for its budget to be increased before proceeding to hire new employees. Ms. Montreuil did not at all question the truthfulness of this statement since, as she admitted at the hearing, the other candidates also had to wait for the budget to be confirmed before they were offered employment. [39] Ms. Montreuil then had a series of conversations with an individual by the name of Pierre Lacasse, an employee of the Board, who provided her with certain information about the processing of her application for the grievance officer position. Mr. Lacasse was not called to testify. Throughout the hearing, Ms. Montreuil referred to the information that she received from Mr. Lacasse or from the interview that he had with the investigator from the Human Rights Commission. This evidence is hearsay and the issue was promptly raised regarding its admissibility. [40] The courts have generally refused to adopt a single, exhaustive definition of the hearsay rule. They fear that such a definition will not cover all of the cases where an out-of-court statement will involve one or more of the traditional hearsay dangers, i.e. the absence of sworn testimony, the lack of an opportunity for the opposing party to cross-examine the witness and the lack of opportunity for the tribunal to assess the witness’ credibility. In this case, there are several, if not all, of these dangers. Even though the Tribunal is, as a general rule, flexible enough in its treatment of hearsay evidence (see, for example, paragraph 50(3)(c) of the CHRA), the fact remains that in this case there is no valid reason to explain Mr. Lacasse’s absence, other than the complainant’s undertaking not to call him as a witness. In these circumstances it would be inconsistent with the principles of natural justice, codified in subsections 48.9(1) and 50(1) of the CHRA, and unfair to admit this evidence. I will therefore not consider it in my decision. [41] In September 2003, the Board, at the request of the Minister of National Defence, developed an operational plan in order to clear a backlog of about 349 grievances by December 2004. Of these, 70 (20%) were in French. In order to achieve this mandate, the Board was given additional resources. [42] At the end of October 2003, almost one year after the interview, Ms. Montreuil again contacted the Board to ask whether it had proceeded to hire new grievance officers. She was told that the Board had hired three unilingual English grievance officers, two of whom had already assumed their positions and a third who was to begin the following week. The complainant then asked whether the respondent would be hiring other individuals in the near future. She was told it would not. [43] On November 10, 2003, Ms. Montreuil wrote to Ms. Laurin requesting certain particulars about the hiring of grievance officers. She wanted to know, inter alia, how many Anglophone, Francophone and bilingual grievance officers had been hired by the Board. She also asked how many files the Board had to process. The letter was never answered. [44] On December 12, 2003, she once again asked Ms. Laurin to reply to her letter dated November 10. On December 18, 2003, Muriel Korngold-Wexler, Director of the Board’s Grievance Analysis and Operations division, responded to Ms. Montreuil. Ms. Korngold-Wexler explained that in September 2003, following an agreement with the Department of Defence, the Board implemented an operational plan in order to clear the backlog of grievances before December 31, 2004. She added that the Board had, in this context, examined its operational needs in depth. She stated that, given the number of grievances in English, the Board had offered positions to candidates who were place on the English only eligibility list, as well as those on the bilingual eligibility list. [45] She informed Ms. Montreuil that the Board did not have any operational need for unilingual French grievance officers. She pointed out however that the Board had extended the eligibility list for grievance officer positions to March 2004 and she assured Ms. Montreuil that she would call on her services if the Board should need a unilingual French grievance officer. Indeed, I am wondering why the Board decided to extend this eligibility list when it seemed clear, according to Ms. Korngold-Wexler’s explanations, that the Board would never need a unilingual French grievance officer since there were enough bilingual officers to handle this task. [46] On January 18, 2004, Ms. Montreuil asked Ms. Korngold-Wexler to provide her with more details about the linguistic distribution of the bilingual grievance officers. In response to this request, Ms. Korngold-Wexler pointed out that between September 1 and December 18, 2003, the Board hired a total of nine (9) grievance officers distributed as follows: one unilingual English grievance officer for an indeterminate term, three unilingual English grievance officers in specified term positions, one unilingual English officer in the Exchanges Canada program, two unilingual grievance officers in temporary employment and two bilingual grievance officers in secondment. On December 18, 2003, the Board had fifteen (15) grievance officers working for it, six of whom were bilingual at the CCC level and nine unilingual English. Finally, Ms. Korngold-Wexler stated, once again, that if there were an increase in files to be processed in French and the Board saw the need to hire a unilingual French grievance officer, then they would use the unilingual French eligibility list on which Ms. Montreuil was the only candidate. She also stated that the Board had extended this eligibility list to December 2004. [47] From this information, the complainant drew certain conclusions. She contended that the Board could hire a unilingual Anglophone, but that the only unilingual Francophone applicant will not be hired. She added that the only characteristic differentiating the unilingual Francophone applicant in this case is that she is transgendered. In her opinion, language was not the cause of the discrimination that she alleged to have suffered but rather the pretext for hiding the discrimination. She argued that the discrimination was based on sex and that the language was just a [Translation] cover. [48] Later in the summer of 2004, the complainant asked Ms. Korngold-Wexler to give her details about the linguistic distribution of the grievance officers still working and the validity of the eligibility list. [49] On July 20, 2004, she received the following information. She was informed that on June 6, 2004, the respondent had 13 grievance officers, seven of whom were unilingual English and six bilingual at the CCC level. It was also added that the respondent went from 15 grievance officers in December 2003 to 13 grievance officers in June 2004 and that, accordingly, an internal Public Service competition was in progress in order to establish the admissibility lists for staffing the respondent’s needs for the coming two years. With respect to the eligibility list for unilingual French candidates, the complainant was still the only one on that list. The letter stated that this list would be used [Translation] in the event that the volume of files to be processed in French were to increase considerably and that there were not enough bilingual agents to handle inter alia these files. [Emphasis added.] Ms. Korngold–Wexler did not explain what she understands to be a considerable increase of files to process in French. [50] In light of this evidence, we can find that Ms. Montreuil’s application was never rejected. In fact, the respondent’s witnesses all stated that she had been placed on an eligibility list, which was extended twice and which finally expired in December 2004. Further, she was told that if the number of French files were to increase considerably, the Board would not hesitate to call on her services. Yet, this was infeasible because based on the admissions of the respondent’s own witnesses, there were not enough French files at the Board for a unilingual Francophone position and that in any event the bilingual grievance officers could handle those files. [51] Hence, by placing Ms. Montreuil on an eligibility list for which there was never any need, the Board in effect rejected her application because it was imposing a condition that was impossible to fulfil, i.e. that there be such an increase in files to process in French that there would no longer be enough bilingual agents to get the work done. Yet, even if the number of French files were to increase, the Board could always increase the number of bilingual officers, making it useless to hire a unilingual French grievance officer. (c) Were the candidates hired in response to the competition and thereafter more qualified than the complainant? [52] The only evidence regarding the competence of the other candidates was the interview indicating that Ms. Montreuil was ranked third of the four candidates. The three other candidates, unilingual Anglophones, were all hired. There is nothing to suggest that the candidates hired were more qualified than Ms. Montreuil to work as grievance officers. (d) Was there a prima facie case? [53] I find from the preceding evidence that the complainant has established a prima facie case of discrimination. The burden is now on the Board to provide a reasonable explanation for the alleged conduct. (ii) The respondent’s explanation [54] The explanation given by the Board for refusing Ms. Montreuil’s application was that it did not have any operational need for a unilingual French grievance officer and that in any event, its bilingual grievance officers could handle the processing of the French language files. Yet, as we already stated, the advertisement for the competition for which Ms. Montreuil applied indicated that the majority of the positions were bilingual imperative CCC but that some are unilingual English or French. [Emphasis added.] Why then advertise that certain positions would be unilingual French if the Board was of the opinion that there were not enough French language files to warrant hiring a grievance officer with this profile? I am not persuaded or satisfied by the responses to this question provided by the Board’s witnesses. [55] We should note that in her letter dated December 18, 2003, which we referred to earlier, Ms. Korngold-Wexler states: [Translation] The Board cannot predict the number of grievances that it will have to address in 2004. However, according to our data from the last two years, of the 226 files completed in 2002 and 2003 to date, 89% were in English and 11% were in French. She adds [Translation] the Board addresses on average 100 to 126 grievances per year and that it has in place [Translation] five bilingual grievance officers at the CCC level (whose mother tongue is French) who also handle the French files. It is indeed in anticipation of these needs that we have hired a certain number of bilingual officers, who will be called on to work in both languages. I do not see how this explanation justifies the Board’s decision. [56] For the purposes of the hearing, Ms. Korngold-Wexler prepared a table indicating the number of grievances handled by the Board between 2000 and 2007. According to this table, for the years 2002 (205 grievances) and 2003 (146 grievances), the Board received a total of 351 grievances, 287 (81%) of them in English, and 64 (18%) in French. I note that these figures do not correspond with those provided in her letter dated December 1, 2003. In any event, the explanation given by Ms. Korngold-Wexler to explain why the Board does not need bilingual grievance officers is far from convincing. Taken to the extreme, this logic could also be interpreted to mean that unilingual English grievance officers need not be hired since by increasing the number of bilingual grievance officers, they could deal with all of the English and French files. And yet, the Board did not hesitate to hire unilingual Anglophone grievance officers. [57] I also note that no evidence was filed to explain what number of files in French would be necessary for there to be an operational need to justify hiring a unilingual Francophone grievance officer, apart from the fact that hiring a French grievance officer cannot be justified when 18% of the files are in French. [58] According to Ms. Korngold-Wexler’s table, in 2002 the Board received 205 grievances, of which 173 (84.4%) were in English and 32 (15.6%) were in French. In 2003, it received 146 grievances, of which 114 (78.1%) were in English and 32 (21.9%) were in French. In 2004, the Board received 102 grievances, of which 82 (80.4%) were in English and 20 (19.6%) were in French. In 2005, the Board received 80 grievances of which 52 (65%) were in English and 28 (35%) were in French. In 2006, there were 63 grievances, of which 51 (81%) were in English and 12 (19%) were in French. [59] Even at 35%, the Board considered that it did not have the operational need for a unilingual French grievance officer. Based on this evidence, I must find that the Board will never need a unilingual French grievance officer, unless there is an exceptional change in the linguistic composition of the files. But then why place Ms. Montreuil on an eligibility list that will never be required? [60] To justify its decision, the Board also relied on the Policy on the Staffing of Bilingual Positions issued by the Treasury Board of Canada Secretariat which provides for imperative staffing of specified term positions, meaning that only those candidates who meet the language requirements of the position at the time of appointment can be accepted. (See: Treasury Board of Canada Secretariat, Policy on the Staffing of Bilingual Positions – Archived version of 2001.) Even though this Policy explains why Ms. Montreuil could not get one of the bilingual positions, it does not explain why the Board decided not to create a unilingual Francophone position. [61] I must point out however that this decision does not involve determining whether the Board refused to hire Ms. Montreuil because she was Francophone, but rather whether the Board refused to hire her because she was transgendered, using her language profile as a pretext. I am aware that it is not the Tribunal’s mandate to determine whether a federal institution considered the official language requirements necessary when staffing a position. In fact, according to section 91 of the Official Languages Act, R.S.C. 1985, c. 31(4th Supp.), nothing in Part IV or V of this Act authorizes the application of official language requirements to a particular staffing action unless those requirements are objectively required to perform the functions for which the staffing action is undertaken. The official language requirements cannot therefore be imposed frivolously or arbitrarily (See: Canada (A.G.) v. Viola, [1991] 1 F.C. 373 (C.A.)), but only based on each situation. (Professional Institute of the Public Service v. Canada, [1993] 2 F.C. 90.) Under section 91, the government is not necessarily justified in requiring that candidates be bilingual for a given position. This is the case in particular when the employer has not relied on the objective requirements determined by the Treasury Board and when the staffing file has no reason to justify such a requirement. (Rogers v. Canada (Correctional Service), [2001] 2 F.C. 586 (T.D.); See also R. Leckey and E. Didier, Le droit linguistique privé in Les droits linguistiques au Canada (2ième éd.), under the direction of Michel Bastarache, Éditions Yvon Blais, page 537.) [62] Even though there are specific remedies provided under Part X of the Official Languages Act, in order to determine whether the institution in its staffing action breached its obligations under this Act, this does not in any way strip the Tribunal of its authority to determine whether a language requirement, even if objectively justified, is simultaneously discriminatory. The Tribunal is not exceeding its mandate when it asks whether a language requirement for staffing, as is the case here, is only a pretext for discrimination within the meaning of the CHRA. The fact that an activity is subject to sectorial oversight and regulation, in this case the Official Languages Act, does not preclude the application of the CHRA. (See inter alia subsection 82(2) of the Official Languages Act, which specifically states that it does not prevail over the CHRA.) [63] Therefore, in Vlug v. Canadian Broadcasting Corporation (2000), 38 C.H.R.R. 404, at paragraphs 30 to 32, the Tribunal determined that the decisions issued by the CRTC regarding closed captioning were not determinative in regard to the obligation to close-caption under the CHRA. In the Tribunal’s opinion, these two legal criteria are different. [64] Similarly, Mr. Justice Rothstein (as he then was) writes in Canada (Attorney General) v. Uzoaba, [1995] 2 F.C. 569: Counsel for the Attorney General argues that the Public Service Employment Act, R.S.C., 1985, c. P-33, establishes a scheme whereby promotions are to be based on merit. He says the scheme for promotion is elaborately set forth in the Public Service Employment Act and that this cannot be overruled by a Human Rights Tribunal. He says the jurisdiction of the Tribunal is limited to referring the matter back to Correctional Service Canada, in order for it to request an exclusion under section 41 of the Public Service Employment Act, making a declaration that Dr. Uzoaba was entitled to a WP-5 position or perhaps ordering that Dr. Uzoaba be entitled to compete for a WP-5 position. … I think the principle of paramountcy must apply in this case to enable a Human Rights Tribunal to order a promotion which it has found has been denied for reasons of discrimination, contrary to the Act. In other words, the jurisdiction of the Public Service Commission and the process respecting promotions within the Public Service must give way in those rare exceptions where promotions have been denied based on discriminatory reasons and where a Tribunal, acting within its jurisdiction under the Act, orders a promotion in order to remedy the results of discriminatory action taken by the employer. In this respect, I adopt the approach of Dickson J., as he then was, in Kelso v. The Queen, [1981] 1 S.C.R. 199 where he stated at page 207: No one is challenging the general right of the Government to allocate resources and manpower as it sees fit. But this right is not unlimited. It must be exercised according to law. The government’s right to allocate resources cannot override a statute such as the Canadian Human Rights Act, S.C. 1976-77, c. 33, or a regulation such as the Exclusion Order. [65] The same principles apply in this case. Even though there may be recourse under the Official Languages Act, this does not strip the Tribunal of its jurisdiction to address the issue of discrimination if need be. [66] I would also point out that the intention to discriminate is not a prerequisite condition to a finding of discrimination. In Ontario Human Rights Commission and Theresa O’Malley v. Simpson‑Sears Ltd, [1985] 2 S.C.R. 536, Mr. Justice McIntyre states at pages 549‑550: . . . [to] hold that intent is a required element of discrimination under the Code [Ontario Human Rights Code] would seem to me to place a virtually insuperable barrier in the way of a complainant seeking a remedy. . . It is my view that the courts below were in error in finding an intent to discriminate to be a necessary element of proof. [67] Therefore, it is not necessary to demonstrate that the Board members intended to discriminate against Ms. Montreuil. Indeed, discrimination is often invisible. Individuals who discriminate often are not aware of what they are doing. This does not mean, however, that others are not aware of it. Hence, taking into account all of the circumstances, is it possible that there is a subtle scent of discrimination in this case, as described in Basi, supra? [68] To arrive at my finding, I reviewed the entire situation by proceeding with a careful, in-depth review of the evidence filed by both parties. I objectively considered Ms. Montreuil’s arguments and those of the Board. The evidence and the arguments submitted to me by the Board did not persuade me that there was not a subtle scent of discrimination in the decision not to offer a grievance officer position to Ms. Montreuil. [69] Even though the Board’s witnesses claimed that Ms. Montreuil’s transgenderism did not have any effect on the decision not to hire her, the evidence and the explanations that they gave to support their arguments did not persuade me. Was it reasonable to say that there was not enough work in French at the Board to occupy even a single unilingual Francophone grievance officer when the French workload was almost 18%? Throughout the hearing, there was no satisfactory response to this question. Simply saying that bilingual officers could handle the French files if needed is not a satisfactory answer. As I already stated, the same logic could be applied to justify having fewer unilingual Anglophone officers. [70] Similarly, there is no evidence to support the argument that the bilingual officers were all Francophone and that designating a unilingual French position would restrict their right to work in French. [71] Finally, one fact stands out when we look at the evidence as a whole. Ms. Montreuil had one characteristic that the other grievance officers did not have: she was transgendered. As I already stated, the standard of proof in discrimination cases is the ordinary civil standard of the balance of probabilities. According to this standard, I have to find that there is evidence that the Board discriminated. I have to find that the evidence renders this conclusion more probable than any other possible conclusion or hypothesis. Even though it is possible that the discriminatory reasons were not the only reasons for the decision not to hire Ms. Montreuil, that is not enough when discriminatory considerations are also factors in the decision not to hire. [72] The Board was not able to provide a reasonable explanation justifying its decision not to hire Ms. Montreuil for a grievance officer position and for these reasons, I find that there is a subtle scent of discrimination. I therefore find that the Board discriminated against Ms. Montreuil on the basis of sex (transgender) contrary to sections 3 and 7 of the CHRA. D. The Remedies Sought by Micheline Montreuil [73] Having determined that the Board discriminated against Ms. Montreuil, I must now address the issue of remedies. As remedies, Ms. Montreuil is claiming: an order pursuant to paragraph 53(2)(c) of the CHRA for loss of salary; an order for compensation for pain and suffering pursuant to paragraph 53(2)(e) of the CHRA; an order pursuant to subsection 53(3) of the CHRA; interest pursuant to subsection 53(4) of the CHRA. (i) Claim for loss of salary [74] Ms. Montreuil is seeking an order from the Tribunal pursuant to paragraph 53(2)(c) of the CHRA for the Board to pay her salary and benefits that she would have received had she been hired November 1, 2003, until February 28, 2006. She is also seeking an amount for future damages for the period between March 1, 2006 and December 31, 2006. [75] First, I would point out that no evidence was filed with the Tribunal to support the claim for future damages and that this claim is therefore dismissed. [76] According to the advertisement of the competition, the position for which Ms. Montreuil applied was for a term of 12 months or more, which was to end on December 31, 2004. The salary scale was between $59,817 and $64,670. There was no evidence filed to determine where on the scale Ms. Montreuil would have been had she been hired. I therefore infer that initially she would have found herself at the bottom of the scale i.e. at $59,817. Even though the Board hired three grievance officers in September 2003, I accept Ms. Montreuil’s claims that the date of her hiring be set at November 1, 2003. [77] From November 1, 2003 to November 1, 2004, Ms. Montreuil’s salary would have been $59,817 had she been working for the Board. Since the position was to end on December 31, 2004, I am adding $10,000 to this amount for loss of salary for the months of November and December 2004. Therefore, had she been hired by the Board as of November 1, 2003 until December 31, 2004, Ms. Montreuil would have received a salary of $69,817. [78] From this amount we must deduct Ms. Montreuil’s revenue for these two years respectively. In her income tax returns for 2003 and 2004, Ms. Montreuil claimed professional losses as well as rental income in regard to 2004. As these losses were not explained at the hearing, I see no reason why the Board should be held responsible for them in calculating the loss of salary. I will therefore not take them into account in this calculation. [79] According to Ms. Montreuil’s income tax returns for 2003, her employment income was $46,741 and for 2004 it was $22,853. For the period from November 1, 2003 to December 31, 2004, I will deduct $30,643 from the amount of $69,817. I therefore establish Ms. Montreuil’s loss of salary for this period at $39,174. I consider that this amount should not be reduced for failure to mitigate the losses because the complainant successfully established that she did what was necessary to minimize her losses by various attempts to secure other employment. [80] As regards the loss of salary, I order that Ms. Montreuil be given compensation in the amount of $39,174. (ii) Order for compensation of pain and suffering [81] The complainant is also seeking $20,000 in damages for pain and suffering pursuant to paragraph 53(2)(e) of the CHRA. Once again, there was no evidence filed at the hearing to support this claim. It is not enough that a party allege pain and suffering, this claim must also be supported with certain evidence, however modest, to show what effect the discriminatory practice had on her. [82] In view of the lack of evidence that the Board’s decision caused pain and suffering to the complainant, I do not believe that the order sought should be issued. (iii) An order pursuant to subsection 53(3) of the CHRA [83] The complainant is seeking $20,000 pursuant to subsection 53(3) of the CHRA since she submits that the Board engaged in the practices wilfully and recklessly. [84] In regard to the wilful nature of the Board’s practices, there is no evidence supporting the claim that the Board acted deliberately. In my decision, I simply determined that it was reasonable on a balance of probabilities to determine that certain aspects of the Board’s practices could be perceived as being discriminatory. I never found – and there was no evidence filed that would support a finding – that the Board wilfully engaged in the practice against the complainant. [85] Did the Board act recklessly? According to Black’s Law Dictionary, a reckless act is committed with indifference to the consequences. The word recklessly is translated as inconsidéré in the French version, which seems to contemplate a thoughtless practice (qui témoigne d’un manque de réflexion; qui n’a pas été considéré, pesé [which betrays a lack of reflection; which is not considered, weighed]: Le petit Robert de la langue française - 2006). [86] In my opinion, in one language or the other, the term can be ascribed to the Board’s discriminatory practice in this case. Given the nature of the Board’s mandate, we are entitled to expect that it be more sensitive to the consequences of its practices. In this sense, we can say that it betrayed a lack of reflection and that it did not adequately weigh the consequences of its practices. I therefore find that the Board engaged in the practice recklessly. [87] Subsection 53(3) states that compensation not exceeding $20,000 can be awarded. Considering all of the circumstances of this case, inter alia the fact that the discriminatory practices were not really deliberate or malicious, I order that the Board pay Ms. Montreuil the amount of $5,000 as special compensation in accordance with subsection 53(3). (iv) Interest [88] Interest is payable for all of the compensation awarded in this decision (subsection 53(4) of the Act). The interest shall be calculated in accordance with subsection 9(12) of the Canadian Human Rights Tribunal Rules of Procedure (03-05-04) i.e. simple interest calculated on a yearly basis at the Bank Rate established by the Bank of Canada. Interest shall accrue from the date of the complaint, until the date of payment of the compensation. E. Conclusion [89] For the above-mentioned reasons, I find that the complaint of discrimination on the basis of sex (transgender) contrary to section 3 and 7 of the CHRA filed by the complainant Micheline Montreuil against the respondent, the Canadian Forces Grievance Board, is substantiated and I order the respondent to pay to the complainant: compensation in the amount of $39,174 for loss of salary; special compensation in the amount of $5,000; and simple interest on the compensation calculated on a yearly basis at the Bank Rate established by the Bank of Canada, accruing from the date of the complaint, until the date of payment of the compensation. Signed by Michel Doucet Tribunal Member Ottawa, Ontario November 20, 2007 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1108/8905 Style of Cause: Micheline Montreuil v. Canadian Forces Grievance Board Date and Place of Hearing: April 16 to 20, 2007 April 23, 2007 Quebec, Quebec Appearances: Micheline Montreuil, for herself No one appearing, for the Canadian Human Rights Commission Guy Lamb and Nadine Dupuis, for the Respondent

2007 CHRT 54

CHRT

Thwaites et al. v. Air Canada Pilots Association and Thwaites et al. v. Air Canada

en

2007-12-07

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7138/index.do

2023-12-01

Thwaites et al. v. Air Canada Pilots Association and Thwaites et al. v. Air Canada Collection Canadian Human Rights Tribunal Date 2007-12-07 Neutral citation 2007 CHRT 54 File number(s) T1196/0807, T1197/0907 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision status Interim Grounds Age Decision Content Between: Raymond Thwaites, Leon M. Evans, Ken Green, Paul Prentice, Donald Barnes, Gary Scott and Brian McDonald Complainants - and - Canadian Human Rights Commission Commission - and - Air Canada Pilots Association Respondent Between: Raymond Thwaites, Leon M. Evans, Ken Green Complainants - and - Canadian Human Rights Commission Commission - and - Air Canada Respondent Ruling Member: Karen A. Jensen Date: December 7, 2007 Citation: 2007 CHRT 54 [1] Raymond Thwaites is a pilot with Air Canada. Mr. Thwaites and six other pilots with Air Canada were required to retire at age 60 under the Air Canada Pilots Pension Plan. Their retirement dates range from May 1, 2005, to April 1, 2006. [2] The Complainants filed complaints with the Canadian Human Rights Commission alleging that Air Canada’s mandatory retirement policy discriminated against them on the basis of their age contrary to sections 7, 9 and 10 of the Canadian Human Rights Act. [3] Air Canada, a Respondent in all 7 complaints, and the Air Canada Pilots Association, a Respondent in 3 of the complaints, have brought a motion requesting that the Tribunal dismiss the 7 complaints without a hearing. They argue that this Tribunal’s decision in Vilven and Kelly v. Air Canada 2007 CHRT 36 has conclusively determined the factual and legal issues that are raised in the present complaints. It would be an abuse of process to hold a hearing into the present complaints since the circumstances of the present complainants do not differ from those of Mr. Vilven and Mr. Kelly. [4] In Vilven and Kelly, the Tribunal examined whether Air Canada’s mandatory retirement policy, which forced the complainants in that case to retire in 2003 and 2005, was discriminatory. Section 15(1)(c) of the CHRA stipulates that it is not a discriminatory practice to terminate an individual’s employment because that person has reached the normal age of retirement for employees working in positions similar to the position of that individual. The Complainants argued that the Tribunal should not apply s. 15(1)(c) to their complaints because it violated s. 15 of the Canadian Charter of Rights and Freedoms. [5] The Tribunal held that s. 15(1)(c) did not violate the Charter. It further held that Mr. Vilven and Mr. Kelly had reached the normal age of retirement for employees working in similar positions to theirs’. On that basis the Tribunal dismissed the complaints. [6] In determining what the normal age of retirement was in 2003 and 2005, for employees working in similar positions to those of the complainants, the Tribunal used two approaches. The first was the normative approach which directed the Tribunal to search for a rule governing the maximum age of retirement in the airline industry. The International Civil Aviation Organization (ICAO) adopted standards for the maximum age of pilots flying commercial airlines internationally. In September of 2003 and May of 2005, the ICAO standard for pilots in command required retirement at age 60. [7] The second approach to determining the normal age of retirement that the Tribunal employed in Vilven and Kelly was the empirical approach. The empirical approach involved a consideration of the evidence on retirement ages for major international airlines. That evidence established that in 2003 and 2005, age 60 was the mandatory retirement age for the majority of positions that were similar to those of the complainants. [8] On November 23, 2006, a new ICAO standard came into effect that established 65 as the maximum age for pilots-in-command. All of the complainants in the present case retired before this new standard came into effect. Given that in Vilven and Kelly the Tribunal established that prior to the new ICAO standard of November 2006, the normal age of retirement was age 60, it would be an abuse of process to permit the Complainants to relitigate this issue now, according to the Respondents. [9] The doctrine of abuse of process is used to preclude relitigation in circumstances where the strict requirements of issue estoppel 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: Toronto (City) v. C.U.P.E., Local 79 [2003] 3 S.C.R. 77 at para. 37. The application of the doctrine in the context of the Tribunal’s proceedings has been approved by the Federal Court: Canada (Canadian Human Rights Commission) v. Canada Post Corportion (Cremasco) 2004 FC 81 at para. 41; aff’d 2004 FCA 363). [10] As the Tribunal noted recently in Morten v. Air Canada 2007 CHRT 48, at para. 23, the doctrine of abuse of process is used to prevent relitigation because it can have negative consequences. For example, relitigation can yield contradictory results. It may waste judicial resources and involve unnecessary expenses for the parties (Toronto v. CUPE, 2003 SCC 63, at paras. 37 and 51). [11] However, the Tribunal should exercise caution in applying doctrines such as abuse of process which result in the dismissal of a complaint without a hearing. Such action deprives the parties of the opportunity to present evidence and make representations regarding the alleged violation of their human rights (O’Connor v. Canadian National Railway 2006 CHRT 5, at para. 22). Where it is apparent that the dismissal of a complaint could lead to unfairness or create an injustice, the doctrine should not be applied (Morton, at para. 24; Toronto v. C.U.P.E., para. 52). [12] I find that dismissing the complaints at the present time on the basis of the doctrine of abuse of process could lead to unfairness or create an injustice. The issues in the complaints have not been conclusively determined. The complainants and the Canadian Human Rights Commission have applied to the Federal Court for judicial review of the Tribunal’s decision in Vilven and Kelly. Depending upon the outcome of those applications, the issues in the present complaints may remain unsettled. The right to have those issues determined by this Tribunal would be irrevocably lost if the Tribunal dismissed the complaints now without a hearing. This would be an unjust result. The filing of new complaints would not remedy that injustice since the new complaints would likely be outside of the one year time period for filing complaints (s. 41(1)(e) of the CHRA). [13] Accordingly, the Respondents’ motion to dismiss the complaints is denied, without prejudice to their right to bring a motion for an adjournment of the present proceedings pending the outcome of the applications for judicial review in Vilven and Kelly. Signed by Karen A. Jensen Tribunal Member Ottawa, Ontario December 7, 2007 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1196/0807 and T1197/0907 Style of Cause: Raymond Thwaites et al. v. Air Canada Pilots Association and Raymond Thwaites et al. v. Air Canada Ruling of the Tribunal Dated: December 7, 2007 Appearances: Raymond D. Hall, for the Complainants, Raymond Thwaites, Ken Green, Paul Prentice, Donald Barnes, Gary Scott and Brian McDonald No submissions made, for the Complainant, Cpt. Leon M. Evans No submissions made, for the Canadian Human Rights Commission Bruce Laughton, Q.C., for the Respondent , Air Canada Pilots Association Fred Headon, for the Respondent, Air Canada

2007 CHRT 55

CHRT

Montreuil v. Canadian Forces

en

2007-12-10

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7171/index.do

2023-12-01

Montreuil v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2007-12-10 Neutral citation 2007 CHRT 55 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 2007 CHRT 55 2007/12/10 MEMBER: Pierre Deschamps [1] During Dr. Beltrami's testimony in October 2007, the issue arose as to what documents relating to Micheline Montreuil's case in this proceeding were available to Dr. Beltrami when he prepared his expert's report in the summer of 2006. [2] In order to decide this issue, the Tribunal compared the documents disclosed by the respondent to the Commission and the complainant in February and April 2006 with the documents filed by the respondent under Exhibit I-2 in October 2006. To do so, respondent's counsel submitted to the Tribunal the documents included in the disclosures of February and April 2006 (Exhibit I-17), documents numbered 1 through 275, as well as a list of documents (Exhibit I-18) contained in Exhibit I-17. This list provides a concordance between the documents disclosed in February and April 2006 and the pages of Exhibit I-2. [3] The comparison of documents included in the disclosure of February and April 2006 (Exhibit I-17) with the documents filed at the hearing in October 2006 (Exhibit I-2) indicates that, with the exception of pages 190 to 197 of Exhibit I-2, Ms. Montreuil's curriculum vitae, all of the documents contained in Exhibit I-2 were disclosed to the Commission and to the complainant in February and April 2006. [4] The Tribunal therefore determines that all of the documents found at pages 12 to 289 of Exhibit I-2, with the exception of pages 190 to 197, were disclosed to the Commission and the complainant in February and April 2006 and therefore could be submitted to Dr. Beltrami for the purposes of preparing his expert's report. Pierre Deschamps OTTAWA, Ontario December 10, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1047/2805 STYLE OF CAUSE: Micheline Montreuil v. Canadian Forces RULING OF THE TRIBUNAL DATED: December 10, 2007 APPEARANCES: Micheline Montreuil For herself Ikram Warsame For the Canadian Human Rights Commission Guy Lamb / Claude Morissette For the Respondent

2007 CHRT 56

CHRT

Walden v. Canada (Social Development )

en

2007-12-13

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7166/index.do

2023-12-01

Walden v. Canada (Social Development ) Collection Canadian Human Rights Tribunal Date 2007-12-13 Neutral citation 2007 CHRT 56 File number(s) T1111/9205, T1112/9305, T1113/9405 Decision-maker(s) Jensen, Karen A. Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE RUTH WALDEN ET AL. Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - SOCIAL DEVELOPMENT CANADA, TREASURY BOARD OF CANADA, AND PUBLIC SERVICE HUMAN RESOURCES MANAGEMENT AGENCY OF CANADA Respondents DECISION 2007 CHRT 56 2007/12/13 MEMBER: Karen A. Jensen I. INTRODUCTION II. SUMMARY OF THE DECISION III. WHAT ARE THE CIRCUMSTANCES GIVING RISE TO THIS COMPLAINT IV. WHAT IS THE APPROPRIATE TIME FRAME FOR THE COMPLAINTS V. WHAT IS THE PROCESS FOR DETERMINING ELIGIBILITY FOR CPP DISABILITY BENEFITS VI. WHAT IS REQUIRED TO ESTABLISH A PRIMA FACIE CASE UNDER SECTIONS 7 AND 10 OF THE CHRA VII. HAVE THE COMPLAINANTS ESTABLISHED A PRIMA FACIE CASE UNDER S. 7 OF THE CHRA VIII. HAVE THE COMPLAINANTS ESTABLISHED A PRIMA FACIE CASE UNDER S. 10 OF THE CHRA IX. WHAT IS THE RESPONDENT'S EXPLANATION X. CONCLUSION REGARDING LIABILITY UNDER SECTIONS 7 AND 10 OF THE ACT XI. WHAT IS THE APPROPRIATE REMEDY IN THIS CASE I. INTRODUCTION [1] Ruth Walden is one of 431 Complainants who believe that the Respondents have discriminated against them on the basis of their gender. The Complainants are a group of predominantly female nurses who work as medical adjudicators in the CPP Disability Benefits Program. For 35 years they have worked alongside doctors, a predominantly male group of workers, in a common enterprise - the determination of eligibility for CPP disability benefits. [2] The Complainants say that the doctors (known as medical advisors) and nurses (known as medical adjudicators) do the same work: they apply their medical knowledge to determine eligibility for CPP disability benefits. When medical advisors perform that work, they are classified as health professionals within the Public Service classification system. However, when the medical adjudicators do this work, they are not classified as health professionals. Rather, they are designated as program administrators. As a result of their classification, medical advisors receive better compensation, benefits, training, professional recognition and opportunities for advancement than medical adjudicators. [3] The Complainants assert that it is discriminatory to treat a female dominated group of workers differently from a male dominated group when they are performing the same or substantially similar work. They seek to be treated the same as medical advisors. [4] The issues to be determined in this complaint are whether the Respondents have discriminated against the Complainants on the basis of their gender by: (1) treating them differently from the medical advisors contrary to s. 7 of the Canadian Human Rights Act; and/or (2) pursuing a practice that deprives the Complainants of employment opportunities, contrary to section 10 of the CHRA. II. SUMMARY OF THE DECISION [5] The Complainants met the legal requirement to establish a prima facie case under s. 7 of the Act. To meet that requirement the Complainants were required to produce credible evidence which, in the absence of a reasonable explanation from the Respondents, would substantiate their complaints. [6] The Complainants' evidence supported their allegation that since 1972, medical adjudicators have performed the same or substantially similar work as the medical advisors. They both apply their medical qualifications and expertise to determine eligibility for CPP disability benefits. Yet, only the medical advisors are classified as health professionals within the Health Services (SH) Group in the Public Service, and only the advisors receive the benefits and recognition that flow from that designation. [7] The Complainants have also made out a prima facie case under s. 10 of the Act. To establish a prima facie case there must be credible evidence that the Respondent is pursuing a practice that deprives or tends to deprive individuals of employment opportunities. [8] The Complainants' evidence supported their allegation that the Respondent's ongoing characterization of the Complainants' work as fundamentally different from that of the advisors' constitutes a practice that deprives the Complainants of employment opportunities. [9] The burden then shifted to the Respondent to provide an explanation for the conduct that has been found to be, on the face of it, discriminatory. [10] The Respondents provided a reasonable explanation that rebutted part of the Complainants' prima facie case, but not all of it. While there is a significant overlap in the functions of the two positions, there are also some important differences. Within the common enterprise of eligibility determination, medical advisors exercise an oversight and advisory role that is not performed by the adjudicators. This results in some differences in the job tasks performed by advisors and adjudicators. These differences explain the distinction in the job titles and explain some of the differences in compensation and benefits. [11] However, the differences are not significant enough to explain the wide disparity in treatment and, more particularly, they do not explain why the advisors are recognized as health professionals and the adjudicators are not. The core function of both positions is applying professional knowledge to determine eligibility for CPP disability benefits. The Respondents have failed to provide a reasonable, non-discriminatory explanation as to why this function is medical work when the advisors do it, and program administration work when the adjudicators do it. [12] The Respondents also failed to show that classifying the medical adjudicators as health professionals within the Health Services Group would cause them undue hardship. Therefore, I have found that the complaints are substantiated. III. WHAT ARE THE CIRCUMSTANCES GIVING RISE TO THIS COMPLAINT? [13] In 1966, the Canada Pension Plan (CPP or the Plan) came into being. Along with pension benefits, the Plan offered disability benefits to workers. A person was eligible for disability benefits if he or she had contributed to CPP for a minimum of 5 years and had a severe and prolonged mental or physical disability. [14] In about 1971, medical doctors were hired to determine applicants' eligibility for CPP disability benefits. There were so many applications that the doctors were unable to process the applications on a timely basis. A backlog developed. For this reason, in 1972, the Director of the program hired registered nurses to work with the doctors to determine eligibility for disability benefits. [15] The determination of eligibility for CPP disability benefits requires the use of medical knowledge to fully understand and assess the documentation submitted in support of the application. Both medical advisors and medical adjudicators have always used their professional knowledge to determine eligibility for CPP disability benefits. Neither position involves the provision of direct patient care. [16] The use of medical advisors' professional knowledge in the determination of eligibility is reflected in the classification of their position within the Public Service of Canada. The adjudicators' use of their professional knowledge of nursing is not reflected in their classification. [17] The classification of positions in the Public Service is important. It determines, among other things, the professional recognition, pay and benefits, and opportunities for continuing education and career advancement that the incumbent will receive. Positions are classified according to the primary function of the position. They are first allocated to an Occupational Group, which is a collection of jobs that are grouped together based on common duties or similarity of work. Within an Occupational Group, there are Classification Standards that are more specific to the kinds of work that are done within that group. For example, within the Health Services (SH) Group there is the Nursing (NU) Classification Standard, and the Medicine (MD) Classification Standard, among others. Within the Program and Administrative Services (PA) Group, there is the Programme Administration (PM) Classification Standard, among numerous others. [18] Medical advisors are classified as MD's within the Health Services Group. The Health Services Group definition includes positions that involve the application of medical or nursing knowledge (among other professional specialties) to the safety, and physical and mental well-being of people. Medical advisors have always been included in this Group because the definition of medical officer has historically included positions that have, as their primary purpose, responsibility for the assessment of medical fitness for the determination of disability and other federal government benefits. [19] Medical adjudicators have always been classified as PM's within the Program and Administrative Services (PA) Group. The PA Group comprises positions that primarily involve the planning, development, delivery or management of administrative and federal government programs to the public. Positions within the PA Group do not involve the application of a comprehensive knowledge of professional specialties such as nursing or medicine. [20] From 1988 until just recently, the medical adjudicators have been seeking recognition as health professionals through classification of their position in the Nursing (NU) Group within Health Services. These attempts have been unsuccessful. Over the years, a number of classification reviews have been undertaken by the Respondents Treasury Board and Public Service Human Resources Management Agency of Canada (PSHRMAC; now CPSA), and in each case the classification of the medical adjudicator position has been confirmed in the PM group. [21] In 2004, Ruth Walden filed a human rights complaint with the Canadian Human Rights Commission. Between 2004 and 2007, 430 other medical adjudicators filed human rights complaints alleging the same discriminatory conduct and requesting the same remedy. [22] The majority of the Complainants were represented by counsel during the hearing. Approximately 17 Complainants were not represented during the hearing. Those Complainants who were not represented by counsel were provided with information about the hearing through regional representatives. IV. WHAT IS THE APPROPRIATE TIME FRAME FOR THE COMPLAINTS? [23] Each Complainant alleges that the discriminatory conduct began on the date that she or he was hired, and has continued either until the present time (if the individual is still employed in the CPP Disability Benefits Program), or when her or his employment with the Program ended. [24] Counsel for some of the Complainants provided a list of the dates of hire for those Complainants whom he represented. The earliest date is August of 1979. The latest date mid-February of 2007. The dates of hire for those Complainants who did not retain counsel were not provided to the Tribunal. Albina Elliott, one of the first nurses hired in 1972, testified during the hearing. Counsel for some of the Complainants stated that Ms. Elliott had filed a complaint. However, her name does not appear on the list of Complainants that was provided to the Tribunal by the Commission and counsel for the Complainants. [25] During the hearing, counsel for some of the Complainants argued that although the complaint forms indicate that the discriminatory conduct began when the Complainants were hired, the Tribunal can and should make a finding that the impugned conduct began in 1972, when the first nurse was hired and classified as a PM. [26] I disagree with this argument. [27] The Canadian Human Rights Act came into force in March of 1978. The Courts and this Tribunal have consistently held that the CHRA does not have retrospective application to conduct and practices that occurred before the Act or its amendments came into force (Robichaud [1987] 2 S.C.R. 84, at para. 20; Nkwazi v. Canada (Correctional Services Canada), [2001] C.H.R.D. No. 1, TD 1/01 at para. 233; cited with approval in: Chopra v. Canada (Attorney General), 2007 FCA 268, at para. 50). [28] In Latif v. Canadian Human Rights Commission [1980] 1 F.C. 687, the Federal Court of Appeal held that the newly enacted CHRA had retrospective application only in a very limited sense. It applied to conduct that began before the Act came into force and continued for a short time after its enactment (Latif, at para. 34). This was to enable the Commission to deal with complaints that were ongoing at the time the Act came into force. In that very limited sense, the Court held, the Act could have retrospective application to discriminatory practices begun before the Act came into force but continuing on or shortly after that date. Otherwise, the Court held, the CHRA does not apply retroactively. (On the issue of limited retrospectivity generally, see: Dell Computer Corp. v. Union des consommateurs, 2007 SCC 34, at para. 113). [29] Accordingly, I conclude that the Respondents' potential liability in the present case is limited to conduct and practices following the coming into force of the CHRA. [30] The Respondents contended that their potential liability for discriminatory conduct or practices should be further limited to one year prior to the filing of Ms. Walden's complaint. That would mean the limitation of liability to 2003 and onward. On that basis, the Tribunal would be required to dismiss the complaints of those Complainants who left the CPP disability benefit program prior to 2003. [31] In my view, it would not be appropriate to do this. It is important, I think, to distinguish between a determination of the Respondents' liability for discriminatory conduct pursuant to sections 7 and 10 of the Act, and the exercise of the Tribunal's discretion under s. 53(2) of the CHRA to compensate victims for losses caused by the discriminatory conduct. They are related, but separate questions. The question of liability for discriminatory conduct should, in my view, be considered separately from the remedy that may flow from that determination. [32] In this case, the Complainants allege systemic discrimination. By its nature, systemic discrimination occurs over time and cannot be isolated to a single action or statement (Public Service Alliance of Canada v. Canada (Department of National Defence) (NPF) [1996] 3 F.C. 789 at para. 16). For that reason, it is not appropriate in this case to fix an arbitrary date upon which the discriminatory conduct will be deemed to have commenced for the purposes of determining liability. Instead, the Tribunal must examine the evidence and make a determination, on the balance of probabilities, as to whether discriminatory conduct occurred and if so, when the conduct occurred. [33] This does not mean, however, that the Tribunal cannot impose a limit on the compensable losses caused by the discriminatory practice in the event that the complaints are substantiated. Indeed in the recent case of Chopra v. Canada (Attorney General), 2007 FCA 268, the Federal Court of Appeal indicated that the discretionary power under s. 53(2)(c) to award any or all of the losses suffered, leaves it open to the Tribunal to impose a limit on losses caused by the discriminatory practice. In my view, it was in the context of a consideration of the appropriate exercise of the Tribunal's discretionary powers under s. 53(2), that the Court in NPF stated that it was reasonable, in that case, to limit compensation for lost wages to one year prior to the filing of the complaint. However, at this stage in the determination of liability, a one year limitation is not appropriate. [34] For all of these reasons, liability will be assessed from March 1978 to the present time. Nevertheless, for the limited purpose of analyzing the work that was, and is, being done by the medical adjudicators and the advisors, and the circumstances that gave rise to the alleged discriminatory conduct, it is necessary to examine the whole history of the case from 1972 to the present. V. WHAT IS THE PROCESS FOR DETERMINING ELIGIBILITY FOR CPP DISABILITY BENEFITS? [35] To understand the issues in this case, it is helpful to have a basic understanding of the process for determining eligibility for CPP disability benefits. There are two conditions for eligibility: the applicant must have made sufficient contributions to CPP, and the disability must be prolonged and severe. [36] The process for determining eligibility for CPP disability benefits was, and still is, as follows: an individual makes an application for benefits; an initial determination is made about whether to grant the benefits on the basis of the eligibility criteria; if the application is denied, the applicant may apply for a reconsideration of the decision; if benefits are denied at the reconsideration stage, the applicant may appeal the decision to the Review Tribunal (RT) (formerly known as the Review Committee); if benefits are again denied at the RT stage, the applicant may apply for leave to appeal to the Pension Appeals Board (PAB); if the applicant is granted benefits at the RT stage, the Minister in charge of the CPP program may apply for leave to appeal the RT decision; both the applicant and the Minister may apply to the Federal Court of Appeal for judicial review of the PAB decision; at any stage of the process, an applicant may submit additional or new medical or non-medical information. The decision-maker at that particular stage considers the information in determining eligibility for CPP disability benefits. [37] The following flow chart may be helpful in visualizing the CPP disability benefit determination process. It is important to bear in mind, however, that 90% of all applications for CPP disability benefits are conclusively determined at the initial or reconsideration levels. Relatively few cases are appealed to the RT or PAB. Even fewer cases are the subject of applications for judicial review. Initial -> Reconsideration -> Review -> Pension Appeals -> Federal Court Determination Tribunal Board of Appeal VI. WHAT IS REQUIRED TO ESTABLISH A PRIMA FACIE CASE UNDER SECTIONS 7 AND 10 OF THE CHRA? [38] A discriminatory practice is defined under s. 7 of the Act as adverse differentiation on the basis of a prohibited ground of discrimination. To establish a prima facie case under s. 7, the Complainants must present evidence that they are being adversely differentiated on the basis of their gender. With respect to s. 10(a) of the Act, evidence must be presented of a policy or practice that deprives, or tends to deprive, the Complainants of an employment opportunity based on a prohibited ground of discrimination. [39] Statistical evidence that apparently neutral conduct negatively affects a disproportionate number of members of a protected group is sufficient to establish a prima facie case under sections 7 and 10. For example, in Chapdelaine v. Air Canada, 1987 CanLII 102 (C.H.R.T.); appeal on other grounds at (1991), 15 C.H.R.R. D/22 (C.H.R. Rev. Trib.), the complainants, both women, possessed all of the qualifications necessary to be pilots for Air Canada save only that they failed to meet the height requirement. The Tribunal accepted statistical evidence regarding the height of men and women in the general population, and concluded that although, perhaps on its face neutral, the effect of the application of the height requirement was to deprive 82% of all Canadian women and 11% of all Canadian men between the ages of 20 and 29 of the opportunity for employment as a pilot. Therefore, the Tribunal found that the policy affected women differently from men. Evidence of a disproportionate impact of the rule on women was sufficient to establish a prima facie case under ss. 7 and 10 of the Act. [40] The comments of Madame Justice L'Heureux-Dubé in Syndicat des employés de production du Québec et de l'Acadie v. Canada (Human Rights Commission) [1989] 2 S.C.R. 879 (SEPQA) at paras. 80-82, although written in dissent and in obiter, are also instructive in the present context. In that case, Justice L'Heureux-Dubé stated that to establish a prima facie case under ss. 7 and 10, statistical evidence of professional segregation of the kind provided in that case is a most valuable tool. The evidence in SEPQA was that a predominantly female group of employees, who were working under similar conditions and at jobs having the same objective, were paid less than a predominantly male group of employees. That, said Justice L'Heureux-Dubé, was sufficient to establish a prima facie case under ss. 7 and 10 of the CHRA, but not sufficient to establish a prima facie case under s. 11. Under s. 11, the Complainant must provide evidence that the work is of equal value in addition to providing evidence of professional segregation. [41] This is not a section 11 complaint. Therefore, to establish a prima facie case, the Complainants need not provide evidence of the equal value of the work. Rather, to establish a prima facie case under s. 7 of the CHRA, it is sufficient for the Complainants to present evidence that they constitute a predominantly female group of workers who are performing the same or substantially similar work as the predominantly male group of medical advisors, and yet are treated differently than the advisors. To establish a prima facie case under s. 10, it is sufficient to present evidence of a practice that has a disproportionate impact on women by depriving them of employment opportunities that are available to men who are performing the same or substantially similar work. VII. HAVE THE COMPLAINANTS ESTABLISHED A PRIMA FACIE CASE UNDER S. 7 OF THE CHRA? (i) What is the appropriate comparator group? [42] The appropriate comparator group is implicit in the requirement for establishing a prima facie case: it is the group of predominantly male workers who are performing the same or substantially similar work to that of the Complainants. That group is the medical advisors. There is no other group of predominantly male employees in the CPP Disability Benefits program whose work could arguably be described as the same as or substantially similar to that of the adjudicators. (ii) What is the evidence of gender predominance? [43] Before they are hired, medical adjudicators are required to provide proof that they are licensed to practice as a Registered Nurse in Canada. There was no dispute that 95% of nurses are women. The predominance of women in nursing and the requirement to produce a nursing license before being hired as an adjudicator results in an overwhelming preponderance of women in the medical adjudicator position. Currently, according the Respondents, 95% of all medical adjudicators are women. [44] The Respondents produced evidence that 80% of medical advisors are men. (iii) What is the evidence that the work of the medical advisors is the same or substantially similar to that of the medical adjudicators? [45] There are three distinct time periods in this case, marked by key events that affect the nature of the work done by the medical advisors and adjudicators. The prima facie case will be analyzed according to this temporal framework. 1972- 1989 [46] From 1972 to 1989, final determinations regarding eligibility for CPP disability benefits were made by the Director of the Disability Program, based on the recommendations of a Disability Determination Board. The Board was composed of at least two persons, one of whom was required to be a duly qualified medical practitioner (Canada Pension Plan Regulations, Consolidated Regulations of Canada 1978, c. 385, s.71(1)). [47] Albina Elliott, one of the first nurses hired in 1972, testified that both adjudicators and advisors assessed applications and signed recommendations to the Director. When the applications came in, they were placed in files on shelves. Medical advisors and adjudicators went to the shelves and took the file that was closest to them regardless of the complexity of the file. He or she would independently review the file and make a recommendation to grant or deny benefits. Ms. Elliott testified that the adjudicators were required to have a medical advisor sign off on their recommendations. [48] Alfred Gregory, a physician who has been employed as a medical advisor in the CPP Disability Benefits Program since 1980, also testified that medical advisors were required to sign off on recommendations made by adjudicators during this time period. He stated, however, that medical adjudicators and advisors worked as colleagues; the adjudicators' professional judgment and recommendations on files were generally accepted. [49] Dr. Gregory testified that both medical adjudicators and advisors performed the same core function during this time period - assessing applications and making recommendations for CPP disability benefits. He stated that this core function has always required the use of medical knowledge, training and experience by both medical advisors and medical adjudicators. Occasionally, medical advisors provided advice to the medical adjudicators on difficult files. [50] Dr. Gregory testified that since the inception of the program, medical advisors have gradually ceded the work that they have done in determining eligibility for benefits to the medical adjudicators. At first only the medical advisors made the initial assessments. Then the medical adjudicators were hired, and they did initial applications as well. After that, the medical advisors handled only the reconsiderations and the Review Committee work. However, over time, that work too was given to the medical adjudicators. [51] Dr. Gregory stated, by way of example, that prior to 1983, only medical advisors prepared the case summaries that were presented to the Review Committee. The Review Committee, composed of three members from the community, heard appeals from reconsideration decisions. The case summary that was provided to the Review Committee, outlined the chronology of the file, explained the medical issues, summarized the case law, and provided a recommendation regarding eligibility to the Committee. [52] In about 1982, the medical advisors indicated that they did not like preparing the case summaries. Ms. Elliott was asked to assume responsibility for this work. She was trained by a medical advisor and in April of 1983, she assumed full responsibility for preparing case summaries. The approval of a medical advisor was not required before she sent them to the Review Committee. Subsequently, additional nurses were hired to assist Ms. Elliott in preparing the case summaries. [53] Dr. Gregory testified that when the medical advisors and the medical adjudicators were making initial determinations and reassessments, and preparing case summaries for the Review Committee, there was no difference in the functions that the two were performing. When Ms. Elliott did this work she was classified as a program administrator (PM). When Dr. Gregory did this work he was classified as a MOF or medical officer (MD). 1989 - 1999 [54] In 1989, changes were made to the CPP Regulations which permitted a single adjudicator to make final decisions on eligibility for disability benefits (Canada Pension Plan Regulation, amendment SOR/89-345, s. 7 of the Schedule). The new Regulations, which are still in force today, include a Regulatory Impact Statement which states that the adjudication of and final decision on disability applications will be done by specially trained adjudicators with professional medical backgrounds (e.g. nurses, paramedics) and experience in the field of disability adjudication (Workers Compensation, Quebec Pension Plan). Staff physicians will be available at all times for consultation on contentious cases (SOR/89-345: Canada Gazette Part II, Vol. 123, No. 15). [55] Even though the Regulations stipulated that the adjudicators would be making the final decisions with regard to disability applications, the evidence established that from 1989 until about 1999, both medical advisors and medical adjudicators continued to make final determinations on initial applications and reconsiderations. Both were able to make final decisions without the signature or approval of the other. [56] In about 1996, the adjudication of initial applications and reconsiderations was regionalized. As a result, from 1996 - 1999, most of these determinations, which were once the exclusive responsibility of medical advisors, were now being made in the regional offices by medical adjudicators. There were no medical advisors in the regional offices. However, there were still medical advisors in Ottawa who made final determinations on initial applications and reconsiderations until 1999. [57] In 1988, the Medical Expertise Division (MED) in Ottawa was created to handle appeals to the Pension Appeals Board (PAB) and to provide expert medical advice on difficult files. Both medical advisors and medical adjudicators worked in MED to prepare for the PAB hearing. The Pension Appeals Board was, and still is, composed of three judges who make eligibility determinations at the final stage of appeal in the CPP Disability Benefit Program. Medical advisors testify under oath or affirmation before the PAB about the medical issues in the file. [58] Ruth Walden, one of the Complainants, was hired in 1993 to work as a medical adjudicator in MED. She continues to work in MED. Ms. Walden testified that the doctors and nurses in MED worked together to work up the file for a PAB hearing. This involved reviewing the file, seeking additional medical information if necessary, and making a decision as to whether the case should be settled before it goes to the PAB. [59] Dr. Gregory and Ms. Walden testified that the primary function of both adjudicators and advisors in MED, and in the regions during this time period, was to apply their comprehensive medical knowledge to determine eligibility for CPP benefits. Dr. Gregory testified that there was no difference in the work done by medical adjudicators making final eligibility determinations in the regions from the work done by medical advisors in Ottawa who were making eligibility determinations during this period. 1999 - Present [60] By 1999, all medical advisors employed in the CPP Disability Benefits Program had migrated to MED. Since that time, the final adjudication of all disability benefits at the initial and reconsideration levels has been handled by the medical adjudicators. In Manitoba and Saskatchewan, medical adjudicators represent the Minister in hearings before the Review Tribunal (RT). Medical advisors are involved in the initial, reconsideration and Review Tribunal stages of disability determination only when there is a request for their advice, or there is a backlog of applications to be processed. Dr. Gregory testified that medical advisors provide advice on only 1-2% of the files at the initial, reconsideration or RT stage. Backlogs occur infrequently. [61] Dr. Gregory testified that since 1999, the majority of the work done by medical advisors in MED involves preparing for, and appearing before the PAB. This involves an extensive review of the file, preparation of a case summary and testifying under oath or affirmation before the PAB. [62] Since 1999, one of the Complainants, Elizabeth Franklin, has represented the Minister responsible for the CPP Disability Benefit Program before the Review Tribunal in Manitoba and Saskatchewan. Before she attends an RT hearing, Ms. Franklin prepares a case summary for the Tribunal which includes an analysis of the medical and legal issues in the file. She then appears before the Tribunal, asks questions of the witnesses and answers questions from the Tribunal. Ms. Franklin explains the Minister's position and the medical issues in the case to the Tribunal. She points out inconsistencies in the oral testimony. Ms. Franklin is authorized to offer a settlement, without prior approval, to the applicant prior to the commencement of the hearing if she is of the view that the applicant's case is a strong one. [63] The description of the work that medical advisors do to prepare for, and appear before the PAB was read to Ms. Franklin. Ms. Franklin stated that, other than testifying under oath or affirmation, the work that she does at the RT stage is the same as the work of the medical advisors at the PAB stage. Both the advisor and the adjudicator present the Minister's position at the hearing, both are required to explain the basis for the previous decision from which the appeal is being sought, and both are called upon by the decision-makers to explain medical conditions, terminology and diagnoses. [64] Dr. Gregory testified that in the Medical Expertise Division, both medical advisors and adjudicators work on cases that are appealed to the PAB. He testified that the primary function of both positions in MED is disability determination. [65] Both medical advisors and adjudicators may be involved in outreach and policy development work. Dr. Gregory works with other medical advisors on policy development and analysis. Ruth Walden testified that she knew of at least one medical adjudicator who is working in the policy development area. The medical adjudicator's job description stipulates that adjudicators may participate in or lead teams engaged in training and policy development. [66] Dr. Gregory does outreach and networking with other divisions in the government, and with professional and medical associations. The medical adjudicator's job description states that the adjudicators may also represent the CPP Disability Benefit program in consultations with internal and external clients/stakeholders (including MP's, the medical community, representatives of insurance companies, special interest groups, the Canadian public) to provide advanced technical knowledge of program eligibility and medical issues. (iv) Conclusion Regarding the Similarity of the Work of Medical Adjudicators and Advisors [67] Based on the foregoing evidence, I am satisfied that the Complainants have established a prima facie case that the work they have done since March of 1978, and are still doing at the present time, is the same or substantially similar to the work of the medical advisors. [68] The Complainants' evidence indicated that since the inception of the CPP Disability Benefit Program, the primary responsibility and function of both the medical advisors and the medical adjudicators has been to use their professional expertise and knowledge to determine eligibility for CPP disability benefits at all stages of the process, and/or to prepare for, and represent the Minister in appeals. [69] Specifically, both advisors and adjudicators have performed the following functions at various points throughout the three time periods in this complaint: making recommendations and decisions on initial applications involving varying degrees of complexity and difficulty in terms of the medical and legal issues involved; making recommendations and decisions on reconsideration applications that were also varied in terms of their level of complexity and difficulty; preparing case summaries for the Review Committee, or as it was later called, the Review Tribunal; requesting additional medical and non-medical information from applicants and others on an application for CPP disability benefits; preparing a file for the Pension Appeals Board; making an offer to settle or a recommendation to settle (without prior approval); working on policy and outreach. [70] Over the three time periods, the amount of time spent by the advisors and the adjudicators performing the overlapping functions has shifted. However, the evidence established that from 1972 until 1999, there were medical advisors and medical adjudicators whose primary function was to make recommendations or final determinations on initial and reconsideration applications and to prepare case summaries for the Review Committee. The work on initial applications and reconsiderations represented a considerable amount of the advisors' and adjudicators' workloads since over 90% of all applications are conclusively determined at one of those two levels. As time went on, more and more adjudicators were hired and the medical advisors spent less time working on initials, reconsiderations and RT work and more time on PAB appeals. But, from 1972 - 1999, there were always advisors and adjudicators who performed substantially the same function of determining eligibility at the initial and reconsideration levels, as well as preparing case summaries for the RT. [71] Since 1999, medical adjudicators in the regions have been doing substantially the same work that advisors performed from 1972-1999: the final determination of eligibility for CPP disability benefits at the initial and reconsideration levels. [72] Also since 1999, medical advisors and medical adjudicators have performed similar functions in MED preparing cases for the PAB hearing. The work that the medical adjudicators have done in Manitoba since 1999 to prepare for and present a case before the Review Tribunal is substantially similar to the work done by the medical advisors in preparing for and testifying before the Pension Appeal Board. (v) What is the differential treatment? a) Professional Recognition [73] Medical advisors have always been recognized as health professionals under the Public Service classification scheme, whereas medical adjudicators have not. Although neither position involves hands-on patient care, they both require professional knowledge about permanent disabling conditions. [74] The knowledge required to perform a function is not generally relevant to the allocation of a particular position to an Occupational Group within the Public Service Classification system. However, in the case of the Health Services Group, the definition explicitly states that for a position to be classified within that Group, the position must primarily involve the application of a comprehensive knowledge of professional specialties in the fields of medicine and nursing (among others) to the safety and physical and mental well-being of people. [75] The application of medical advisors' knowledge of relevant professional specialties in the determination of eligibility for CPP benefits has always been reflected in the medical advisors' classification as MD's within the Health Services Group. However, the application of the medical adjudicators' knowledge of relevant professional specialties has never been reflected in their classification as program administrators (PM) within the Program Administration (PA) Group. b) Salary and Benefits [76] Ms. Walden testified that medical advisors have always been paid roughly twice as much as medical adjudicators and receive a yearly retention bonus which the adjudicators do not receive. The difference in pay is reflected in the adjudicators' comparatively lower pension benefits at retirement. [77] Ms. Walden stated that health professionals in the Health Services Group, including medical advisors, have always received more vacation allowance than medical adjudicators. The Respondent did not dispute this. c) Payment of Professional Fees and Educational/Training Opportunities [78] The Respondent Social Development Canada (SDC) has paid the licensing fees for medical advisors on a yearly basis. Payment of the advisors' fees does not come out of the training and education budget line for the medical advisors in the CPP Disability Benefit Program. [79] In contrast, until 1999, the medical adjudicators paid their own fees to maintain their nursing licenses and were not entitled to reimbursement from SDC. They grieved this and in 1999, SDC agreed to pay the adjudicators' fees out of the training budget. Ms. Walden stated that the payment of the adjudicators' fees out of the training budget leaves less money for training and continuing education opportunities for the adjudicators. She has been told that there was no money left in the budget for ongoing education and training. She stated that medical advisors, on the other hand, are able to attend conferences on a regular basis; there does not seem to be a shortage of money for their continuing education activities. d) Career Advancement [80] Ms. Walden testified that as a PM, her chances of obtaining a job as a nurse in the government were not as good as if she was classified as a health professional, like the medical advisors. Nursing positions require recent nursing experience. Ms. Walden stated that although the Nurses' Associations across the country recognize that adjudicators are engaged in the practice of nursing, the Public Service of Canada does not. Therefore, when seeking a position as a nurse within the Public Service her work as an adjudicator would not be viewed as recent nursing experience. (vi) Conclusion: the Complainants Have Established a Prima Facie Case under Section 7 [81] I find that the Complainants have established a prima facie case that since March of 1978, they were, and still are treated differently from the predominantly male group of medical advisors who performed the same or substantially similar work as them in the past and continue to do so in the present. VIII. HAVE THE COMPLAINANTS ESTABLISHED A PRIMA FACIE CASE UNDER S. 10 OF THE CHRA? [82] To establish a prima facie case under s. 10(a) of the Act, the Complainants must present evidence of a policy or practice that deprives or tends to deprive them of an employment opportunity based on a prohibited ground of discrimination. (i) What is the allegedly discriminatory practice? [83] The Complainants assert that the Respondents have pursued a practice of treating the advisors and the adjudicators as though they do different work and classifying them accordingly. [84] As established above, on a prima facie basis, the core function of both the advisor and the adjudicator position is the application of professional knowledge to assess medical fitness for the determination of eligibility for CPP disability benefits. According to the Group Definition for the Health Services Group, both positions should fall within that group. However, since 1972, when they were first hired, Treasury Board and PSHRMAC have maintained a practice of classifying the adjudicators within the Program and Administrative Services (PA) Group. [85] Treasury Board has consistently asserted that the medical adjudicator position does not fit the Nursing Classification Standard (NU) within the Health Services Group, since its primary function is not to provide direct care to patients. The NU Standard stipulates that the position must involve the application of nursing knowledge to the physical and mental well-being of people and specifically, to the care of patients and the treatment and management of illness in cooperation with medical doctors. [86] In 2002, the Assistant Deputy Minister of Income Security Programs wrote to Treasury Board stating that the outmoded classification standard which required that nurses provide direct health care did not reflect current realities in nursing, under which many practicing nurses do not provide direct health care to individual clients. He stated that the NU standard should include medical adjudicators and proposed that a benchmark position be added to the NU standard to facilitate their inclusion in the SH Group. [87] In March of 2004, SDC prepared a Business Case in an attempt to persuade PSHRMAC to create a Nursing subgroup that would include the adjudicators in the Health Services Group. In the Business Case, SDC stated that the department refers publicly to its medical adjudicators as medical professionals. SDC further stated that the medical adjudication process is complex and requires professional nursing knowledge, skills and judgment. In addition, provincial nursing licensing associations, as well as the Canadian Nursing Association, recognize medical adjudication work as falling within the practice of professional nursing. [88] In response to the Business Case, PSHRMAC stated that while medical and nursing knowledge is important for the adjudicator positions, the primary purpose of the positions is the delivery of a federal program to the public, not the application of nursing knowledge to the safety and physical and mental well being of people, or the assessment of medical fitness. PSHRMAC also pointed out that the Business Case did not have the support of the bargaining agent, which they asserted, is one of the prerequisites when considering changes to occupational group definitions. [89] As a result of that characterization of the adjudicators' work, Treasury Board and PSHRMAC have continued to pursue the pre-1999 practice of classifying medical adjudicators as PM's and advisors as MD's. [90] The Commission argued that had the Respondents classified the medical adjudicators as nurses instead of program administrators, part of the discriminatory practice would have been resolved because then, like the advisors, the adjudicators would have been recognized as health professionals and classified within the Health Services Group. [91] However, Commission counsel maintained that the discriminatory practice at issue in this case would not have been completely resolved by classifying the adjudicators as nurses. It is also the Respondents' failure to recognize that adjudicators and the advisors are doing the same work, and that they should both be in the same position and compensated accordingly, that is a discriminatory practice, according to the Commission and the Complainants. [92] Until recently, the adjudicators have not maintained that they were doing the same work as the advisors; they claimed that they were engaged in the practice of nursing, just as the advisors' work involved the practice of medicine. As a result, the Respondents' practice of maintaining the advisors and adjudicators in different positions with resulting differences in compensation and benefits has never been in issue prior to the filing of the present complaints. [93] According to the Commission, it is of no consequence that the Complainants have only just recently clearly argued that they do the same work as the medical advisors'. It is not a requirement under the Act to establish that the Respondents knew or ought to have known that the impugned practices were discriminatory. If the effect of their practices is to deprive the group of an employment benefit on the basis of a prohibited ground, then regardless of the Respondents' awareness of the nature of their conduct, it will be found to be a violation of the Act. The question of knowledge or intent is relevant only to the issue of compensation under s. 53(3) of the Act. [94] I agree with the Commission's position on this issue. [95] I find that the Complainants have established a prima facie case that since 1972, the Respondents have pursued a practice of treating the advisors and the adjudicators as though they were doing different work, even though they were doing substantially similar work, and classifying them accordingly. (ii) What are the employment opportunities of which the Complainants were allegedly deprived? [96] The Complainants allege that the Respondents' practices have denied them the following: (i) recognition as health professionals; (ii) salary and benefits equal to those of the medical advisors; (iii) payment of professional fees and the provision of educational/training opportunities on the same basis as the advisors; and (iv) career advancement opportunities like those of the medical advisors. Do all of the foregoing employment benefits constitute employment opportunities as that term is used in s. 10 of the CHRA? [97] The French version of s. 10 refers to practices that deny or tend to deny les chances d'emploi ou d'avancement d'un individu ou d'une catégorie d'individus. When the French and the English versions of s. 10 are read together, one is led to the conclusion that the term employment opportunities refers to conditions which enable employment and the advancement of individuals in their employment. [98] This interpretation is reflected in the Tribunal's jurisprudence wherein the term employment opportunities has been used to refer to opportunities to transfer to another job (Gauthier v. Canadian Armed Forces [1989] C.H.R.D. No. 3 T.D. 3/89; opportunities to do certain kinds of work that would enhance earnings and career potential (O'Connell v. Canadian Broadcasting Corp [1988] C.H.R.D. No. T.D. 9/88); training opportunities (Green v. Canada (Public Service Commission [1998] C.H.R.D. No. T.D. 6/98, reviewed on other grounds in: Canada (Attorney General) v. Green [2000] 4 F.C. 629 (T.D.)); and continued and uninterrupted employment (Hay v. Cameco [1991] C.H.R.D. No. 5 No. T.D. 5/91). [99] In the present case, I find that the following constitute employment opportunities within the meaning of s. 10: recognition and classification as health professionals; the payment of professional fees and training/educational opportunities on the same basis as the medical advisors; and opportunities for career advancement as health professionals. These conditions affect the Complainants' ability to enhance their earnings and career potential within the Public Service. For that reason, they are employment opportunities within the meaning of s. 10 of the Act. (iii) Conclusion: the Complainants have established a prima facie case under s. 10 [100] The Complainants' evidence establishing a prima facie under s. 7 of the Act also establishes, on a prima facie basis, that the Respondents' pursuit of the practice identified above deprived or tended to deprive the Complainants of the employment opportunities in question. The designation of the adjudicators' work as program administration, and the treatment of the adjudicators' work as different from that of the advisors, has resulted in a deprivation of the employment opportunities listed above which are enjoyed by medical advisors. [101] As noted above, it is sufficient to provide evidence that the practice had a disproportionate impact on women to establish the connection between the practice and the prohibited ground of discrimination. The evidence of the gender predominance of women in nursing and therefore, in the medical adjudicator position, establishes a prima facie case that the practice deprived the Complainants of employment opportunities on the basis of gender. IX. WHAT IS THE RESPONDENT'S EXPLANATION? [102] Once a prima facie breach of ss. 7 and 10 has been made out, the onus shifts to the Respondents to provide a reasonable, non-discriminatory explanation for their conduct. [103] In the present case, the Respondents have offered the following explanations with regard to both the s. 7 and the s. 10 complaints: The most appropriate group of predominantly male workers to which the work of the female medical adjudicators should be compared is the group of male medical adjudicators. In comparison to this group, the female adjudicators have not been treated in an adverse differential manner; In the alternative, if the Tribunal determines that medical advisors constitute the appropriate comparator group, the work that is done by the advisors and the adjudicators is different. Any differences in treatment between the advisors and the adjudicators are based entirely on the difference in the work that is done, not on gender; In the further alternative, if the Tribunal determines that the Respondents have not rebutted the prima facie case under both provisions, the differential treatment and the practices are bona fide occupational requirements. (i) The Appropriate Comparator Group [104] The Respondents argued that male medical adjudicators constitute the most appropriate comparator group because they perform comparable functions using comparable levels of skill, effort and responsibility. The Respondents urged the Tribunal to take guidance from the British Columbia Human Rights Tribunal in Prpich v. Pacific Shores Nature Resort Ltd., 2001 C.L.L.C. 230-035. That case involved a complaint under s. 13 of the British Columbia Human Rights Code which prohibits employers from paying different wages to employees of one sex than employees of the other sex who are performing similar or substantially similar work. Section 13(2) of the B.C. Code stipulates that the concepts of skill, effort and responsibility must be used to determine whether the work is similar or substantially similar. [105] Sections 7 and 10 do not prescribe the factors that must be taken into account in determining whether the impugned conduct is discriminatory. In contrast, s. 11 of the Canadian Human Rights Act, like s. 13 of the B.C. Human Rights Code, sets out the criteria that must be used to determine whether an employer has committed a discriminatory practice by establishing or maintaining differences in wages between male and female employees who are performing work of equal value. Those factors are skill, effort, responsibility and the conditions under which the work is performed. [106] In my view, the Prpich case is inapplicable to the present case. Prpich deals with legislative provisions from another jurisdiction that are comparable to s. 11 of the CHRA, rather than to ss. 7 and 10 of the CHRA. [107] Moreover, the Respondents' argument that the male medical adjudicators' work should be compared to that of the female medical adjudicators is unreasonable. The male adjudicators are not a separate group, but rather are part of the predominantly female group of medical adjudicators. Therefore, by virtue of their membership in this group, they too are subject to any potential discriminatory difference in treatment vis-à-vis the medical advisors. A comparison of their work with that of the female adjudicators would not be a meaningful indicator of equal treatment of the overwhelmingly female population in the group. The Complainants in this case allege that their inferior working conditions are a function of the strong gender predominance of their occupational group. This allegation cannot be properly tested by examining the working conditions of this small male minority within their ranks. [108] Therefore, I maintain that the appropriate comparator group is the predominantly male group of medical advisors. (ii) The Work done by the Advisors is Different from the Work done by the Adjudicators [109] The Respondents argued that the evidence revealed that during all three time periods, the functions of the medical advisors and the adjudicators have been different. In support of this argument, the Respondents produced the job descriptions that applied during all three time periods for both positions. [110] The advisors' description states that they provide expert medical advice on more difficult and contentious disability cases; review and assess the quality of decision-making; contribute to professional development of other medical advisors and of medical adjudicators; communicate internally and externally regarding disability under the Canada Pension Plan; review and respond to requests for personal information under the Privacy Act and perform other duties. [111] The medical adjudicators' job description states that their key activities are: the medical adjudication of Canada Pension Plan Disability claims; providing applicant referral and navigation service; leading/managing project teams including program design, services and policies; initiating and maintaining contact with representatives of the medical community, other departments and levels of government, the insurance industry, the public, etc. to maintain a critical knowledge of medical and disability issues, trends and emerging medical conditions. [112] The job descriptions suggest that the key difference between the work of the advisors and the adjudicators is, in fact, reflected in their respective job titles: the medical advisors fulfill more of a medical advisory and oversight function, while the medical adjudicators deal directly with the applicants in adjudicating their claims and providing referral services. [113] It is important, however, to consider the job descriptions together with the testimony of those who do the work and administer the program to determine if the job descriptions are an accurate reflection of the work that is done and was being done during the three time periods in question in this complaint. [114] Dr. Raymond Aubin, the Acting Director of the Medical Expertise Division, testified on behalf of the Respondents. His testimony was directed primarily at the differences in the work performed by the advisors and the adjudicators in the 1999 to the present time period. [115] He testified that currently, medical advisors are exclusively responsible for many of the decisions and actions taken in the last stage of the disability benefit appeal process - the Pension Appeals Board. It is the medical advisor who reviews the file, prepares the case summary and testifies before the PAB. The medical advisors currently spend roughly 75% of their time preparing for the PAB hearing. Some of that time is spent performing an overlapping function with medical adjudicators - developing the file for the hearing. However, the advisors have more decision-making authority at this stage of the process than the adjudicators. [116] The work done by the advisors in preparing for the PAB from 1999 until the present time was compared to the work done by some adjudicators in Manitoba who prepare for and appear before Review Tribunals. The evidence established that the work is indeed very similar to the PAB work, with some important differences. The adjudicator and the advisor must both apply their medical knowledge and their knowledge of the CPP disability benefit program to prepare for and present information to the respective decision-makers. However, it is only in Manitoba and Saskatchewan that medical adjudicators represent the Minister before the RT. In other provinces, the case summaries for the RT are prepared by employees who do not necessarily have a medical background, and no one appears on behalf of the Minister. Thus, it would appear that, with the exception of Manitoba and Saskatchewan, at the present time the presentation of expert medical information to a decision-maker is reserved for the final stage of appeal - the PAB. That function is performed exclusively by medical advisors. [117] Based on all the evidence presented in this case, I find that there are some functions which have only ever been performed by the medical advisors throughout the three time periods in this case. They are: signing off on adjudicators' recommendations regarding eligibility from 1972-1989; providing expert medical advice to the adjudicators on 1-2% of the files during all time periods; authorizing decisions or recommendations regarding settlement, requests for leave to appeal to the PAB, and requests for further information at the PAB level from 1999 to the present; providing some training to adjudicators up until the past decade; reviewing the file, preparing case summaries and providing testimony before the Pension Appeal Board during all three time periods; providing Affidavit and viva voce evidence if required on judicial review applications of the PAB decisions at the present time. [118] Some of the Complainants admitted that there were differences in the work done by the advisors and the adjudicators. For example, Ms. Franklin candidly admitted that the medical advisors have a different role to play at a different level than she does. She stated however, that over the years, the advisors and the adjudicators have done many of the same functions. Furthermore, the core function is the same - the determination of eligibility for CPP disability benefits. [119] In my view, Ms. Franklin's statement provides an excellent summary of the evidence that I heard in this case. Throughout the history of the CPP disability benefit program there has been, and continues to be, a significant overlap in the functions performed by the medical adjudicators and the advisors. However, the medical advisors' work is different from the adjudicators' work in certain respects. Unlike the adjudicators, the advisors have always provided an oversight and advisory role in the determination of eligibility for CPP disability benefits. This role involves the provision of medical advice on difficult files, training, and final decision-making responsibility at certain levels of the process. In addition, the advisors provide expert medical testimony to the final decision-makers at the final appeal stage of the CPP disability benefit determination process - the Pension Appeals Board. The PAB is the last opportunity for the parties to obtain a determination on the merits of the file based on the medical evidence presented to that point. [120] The advisors bring a different kind of knowledge to the program, perform some different tasks and have been given different responsibilities than the adjudicators. This provides a reasonable and non-discriminatory explanation for some of the differences in salary and benefits. It also explains why the advisor and the adjudicator positions might occupy different levels within a classification standard in Health Services. [121] However, the differences in the work responsibilities of the respective positions are not extensive enough to explain the wide disparity in treatment between the advisors and the adjudicators. In particular, the Respondent has failed to provide a reasonable non-discriminatory response to the following question: why have the advisors been recognized as health professionals, and compensated accordingly, when their primary function is to make eligibility determinations and yet, when the adjudicators perform the same primary function, they are designated as program administrators and are paid half the salary of the advisors? [122] The Respondents argue that the answer to this question can be found in the decision of the Public Service Labour Relations Board (PSLRB). That case involved an application by the Professional Institute of the Public Service of Canada (PIPSC) to have the medical adjudicators included in the Health Services Group. The PSLRB decided that medical adjudicators were appropriately classified as program administrators within the PA Group. The Respondents argued that the PSLRB decision provides a reasonable explanation for the differences in treatment between the two positions, and should be applied in the present context. [123] The PSLRB found that the adjudicator position did not belong in the Health Services Group since adjudicators do not provide direct health care to CPP disability benefit applicants. The Vice-Chair of the Board stated that although medical adjudicators use their medical knowledge to assess the applications and files of claimants, they do not assess the claimants themselves. Therefore, they do not provide care to the claimants as is required to be classified within the Health Services Group. [124] However, the evidence in this case leads me to conclude that if the medical adjudicators are not assessing the claimants when they determine eligibility for CPP disability benefits, then neither are the medical advisors. And yet, the advisors are recognized as health professionals and classified accordingly and the adjudicators are not. The PSLRB did not engage in a comparative analysis of the two positions, nor did it make a determination as to whether any such difference might violate the CHRA. For that reason, I find that the PSLRB's conclusion has very little bearing on my decision. [125] Patricia Power, the Acting Director General of Classification, Policy and Strategy at PSHRMAC, testified on behalf of the Respondents. She stated that medical advisors are included within the Health Services Group because they meet the Health Services Group Definition and the Medicine (MD) Classification Standard. Ms. Power stated that the adjudicators are not included within the Health Services Group because they do not meet the Health Services Group Definition or the Nursing (NU) Classification Standard. [126] To be included within the Health Services Group Definition, the position must meet the umbrella definition for the Health Services Group Definition, and then fall within an inclusion statement for the MD or the NU Classification Standards. [127] The umbrella definition for the Health Services Group states that the Group comprises positions that are primarily involved in the application of a comprehensive knowledge of professional specialties in the fields of medicine and nursing (among others) to the safety and physical and mental well-being of people. [128] Ms. Power testified that while the advisor position meets the umbrella definition for the Health Services Group, the adjudicator position does not meet that definition. The basis for her distinction would appear to be the fact that medical adjudication does not involve the use of nursing knowledge to provide direct patient care. However, as indicated above, the evidence established that neither position involves the use of nursing or medical knowledge to provide direct patient care in the way that is done in a clinical setting. Therefore, if the adjudicators do not meet the umbrella definition because they do not provide direct patient care, then on that basis, the advisors' position does not meet the definition either. [129] Nonetheless, in her testimony, Ms. Power went on to state that not only do the advisors meet the umbrella definition for the Health Services Group, they also fit within the MD Classification Standard because the position matches one of the inclusion statements provided in the MD definition. That is inclusion statement 5 which reads as follows: the assessment of medical fitness for the determination of disability and other federal government benefits .... [130] Ms. Power explained that historically, inclusion statement 5 has always been a part of the MD Classification Standard. In 1999, it was incorporated into a new definition of the Health Services Group through a process known as the Universal Classification System (UCS). Ms. Power stated that had the new definition of the Health Services Group, developed through the UCS process, been applied to the medical adjudicator position, it would have allowed medical adjudicators to be classified within the Health Services Group by virtue of inclusion statement 5. [131] However, as a result of a process that occurred in the late 90's, the new definition was modified and inclusion statement 5 was not applied to the adjudicators. Ms. Power explained that in 1993, Treasury Board was mandated under the Public Service Reform Act to reduce the number of Occupational Groups in the Public Service within 6 years. One of the conditions set out in the legislation was that bargaining unit affiliation was not to be changed by the reduction in Groups. To preserve bargaining unit affiliation, inclusion 5 was explicitly excluded from the NU Classification Standard and included in the MD Standard. The reason for this was that to allow inclusion statement 5 to apply to the adjudicators would have meant moving them out of the bargaining unit represented by the Public Service Alliance of Canada and into a bargaining unit represented by the Professional Institute of the Public Service of Canada. Ms. Power stated that the intent of the 1999 process was to avoid a change in bargaining unit affiliation. [132] Ms. Power also stated, however, that the 1999 process was not intended to indefinitely freeze the composition of the bargaining units. She stated that changes could have been made to the classifications that would have resulted in changes to the bargaining units had there been a good reason to do so. [133] Ms. Power agreed that one good reason for making a change to the Classification Standards in the Health Services Group would have been to eliminate gender inequities. She admitted that had there been a gender inequity in the classification system, the 1999 process would have had the unintended effect of carrying that inequity forward into the present. Ms. Power stated that had the 1999 process introduced or re-introduced gender bias, it would have been Treasury Board's responsibility to re-define the Group Definitions and Classification Standards in order to remove the bias. Treasury Board has the exclusive authority under s. 7 of the Public Service Labour Relations Act to determine classifications. Bargaining unit approval is not required to make changes to the classification standards. [134] However, bargaining unit approval is exactly what Treasury Board and PSHRMAC stated that they required in their response to the Business Case proposed by Social Development Canada to change the NU Classification Standard. Treasury Board Secretariat indicated that it would only consider a change to the Health Services Occupational Group definition when there was a sound business case to do so and when all parties, including the bargaining agents, supported the change. [135] In its Response to the Business Case, Treasury Board also maintained that the primary purpose of medical adjudication is not the application of nursing knowledge to the safety and physical well-being of people or the assessment of medical fitness. It is the administration of a government program. [136] In my view, if the medical advisors are deemed to be applying their medical knowledge to the safety and physical well-being of people and assessing medical fitness for the purpose of determining eligibility, then the adjudicators should also be deemed to be doing the same for the purposes of classification. The Respondents have failed to provide a reasonable, non-discriminatory reason for the differential application of the principles of classification in the Public Service. They have failed to explain their refusal to recognize the professional nature of the work done by a group of predominantly female workers when they are performing essentially the same core function as predominantly male workers whose work receives professional recognition. [137] Similarly, the Respondents have not provided a reasonable, non-discriminatory explanation for treating the adjudicators differently from the advisors with respect to the payment of professional fees and educational/training opportunities and the provision of career advancement opportunities. The adjudicators use their medical expertise to determine eligibility, just as advisors do. They are health professionals and should be provided with the same employment advantages and opportunities for career development and advancement that other health professionals have in the Public Service. [138] Treasury Board had the exclusive power to make changes to the Classifications Standards with or without bargaining unit approval. Treasury Board could have decided that the Nursing Classification Standard was going to revert back to the one that was developed through the UCS process which included inclusion statement 5. Or, a new Classification Standard within the Health Services Group could have been developed that included the work done by both adjudicators and advisors. Indeed, Treasury Board had the prerogative to take any action it saw fit, provided the professional qualifications of the adjudicators were recognized commensurately with the professional qualifications of the advisors. Treasury Board did not exercise this authority. (iii) Have the Respondents established that the differential treatment is a bona fide occupational requirement? [139] Subsections 15(1)(a) and 15(2) of the CHRA provide a defense to discriminatory conduct and practices where it is established that they are based on a bona fide occupational requirement. To constitute a BFOR, the Respondents must establish that accommodating the needs of the individuals would cause them undue hardship having regard to health, safety and cost. [140] The only factor that applies in this case is cost. The Respondents did not provide evidence that the cost of treating the adjudicators the same as the advisors with respect to professional recognition, the payment of licensing fees, and the provision of training and educational opportunities would cause them undue hardship. [141] Marc Thibodeau, a negotiator with the Treasury Board Secretariat, testified that a change in the adjudicators' classification and the resulting impact on salary levels would affect the way that similar positions within the Public Service were classified and remunerated. For example, disability claims adjudication at the Department of Veterans Affairs is done by employees who are also classified as PM-4. The recognition of the medical adjudicators' professional expertise in the present case could result in a review of the classification levels of adjudicators in departments like Veterans Affairs. This, in turn, might cause a significant increase in the Public Service payroll. [142] Almost invariably there is a cost involved in providing a workplace that is free from discrimination. Often increased cost is provided as a reason for refusing to deal with a problem of discrimination in the workplace. However, it is only when the cost of redressing the discrimination is so high that it would cause the Respondent undue financial hardship that the conduct will be considered a bona fide occupational requirement. The Respondents provided no evidence that the classification of medical adjudicators as health professionals would cause them undue financial hardship. X. CONCLUSION REGARDING LIABILITY UNDER SECTIONS 7 AND 10 OF THE ACT [143] I find, on a balance of probabilities, that the Complainants have established that the Respondents' refusal since March of 1978, to recognize the professional nature of the work performed by the medical adjudicators in a manner proportionate to the professional recognition accorded to the work of the medical advisors, is a discriminatory practice within the meaning of both ss. 7 and 10. The effects of the practice have been to deprive the adjudicators of professional recognition and remuneration commensurate with their qualifications, and to deprive them of payment of their licensing fees, as well as training and career advancement opportunities on the same basis as the advisors. XI. WHAT IS THE APPROPRIATE REMEDY IN THIS CASE? [144] Section 53(2)(a) of the CHRA provides the Tribunal with the authority to order the Respondents 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 parties requested that, in the event that I found the complaints to be substantiated, I make an order that the discriminatory practice cease, but that I refrain from specifying the measures that should be taken to redress the practice. They asked to be given an opportunity to negotiate the appropriate measures to be taken with all of the stakeholders. I am in agreement with this request. Accordingly, I make the following Order, but retain jurisdiction over this aspect of my decision in the event that the parties are unable to reach an agreement: The Respondents are ordered to cease the discriminatory practice identified in paragraph 143 above. [145] A case conference will be scheduled for three months from the date of this decision at which time the parties will provide the Tribunal with a report on the negotiations. On that date also, a deadline will be set by the Tribunal for the final resolution of any outstanding matters arising from this aspect of the decision. If resolution is not achieved by the deadline, I will make a final determination after the parties have had an opportunity to present evidence, if necessary, and argument on remedy. [146] Section 53(2)(c) provides the Tribunal with the authority to order that the Respondents compensate the victims for any or all of the wages that the victim was deprived of and for any expenses incurred by the victims as a result of the discriminatory practices. Given my order above in relation to s. 53(2)(a), and its possible impact on remuneration, I feel it is appropriate to reserve jurisdiction, on the same terms, in relation to any relief under s. 52(2)(c). [147] Section 53(2)(e) of the CHRA provides the Tribunal with the authority to award compensation for the pain and suffering experienced by the victims as a result of the discriminatory practice. I heard evidence from Ms. Walden and the three other Complainants who testified in this case about the frustration, demoralization and loss of self-esteem that they experienced as a result of the Respondents' refusal to recognize their professional expertise. On that basis, I am prepared to order that some compensation should be provided to the Complainants under s. 53(2)(e). However, I have some questions regarding quantum which were not addressed during the hearing. For example, should a Complainant who has only been employed in the Program since February of 2007 receive the same compensation for pain and suffering as a Complainant who has been employed since 1993? I will reserve jurisdiction on the issue of quantum in the same terms as set out above. I encourage the parties to come to an agreement on this issue failing which, as with the above-noted issues, I will conclusively determine the matter. [148] The Commission and the Complainants argued that the Tribunal should order compensation under s. 53(3) of the CHRA. That provision authorizes the Tribunal to award compensation not exceeding twenty thousand dollars to the victim where the respondent has engaged in the discriminatory practice willfully or recklessly. I find that an order for compensation under s. 53(3) is not appropriate in the present circumstances. This is a case of adverse effect discrimination where the unintended effect of a practice has been to expose a disproportionate number of women to unfavourable treatment. I was convinced by the sincerity and forthrightness of Ms. Powers' testimony that had she and other members of the Respondent group realized that discriminatory practices were occurring or had been carried over unintentionally through the 1999 negotiations with the bargaining agents, Treasury Board would have exercised its prerogative to take the appropriate corrective action. As such, I find no evidence of willful or reckless conduct warranting an order for compensation under s. 53(3). [149] As noted above, I shall retain jurisdiction to deal with the three outstanding issues that have been left to the parties to negotiate. The three month progress report, and the deadline for the resolution of these matters applies with respect to all three issues. Signed by Karen A. Jensen OTTAWA, Ontario December 13, 2007 PARTIES OF RECORD TRIBUNAL FILES: T1111/9205, T1112/9305 and T1113/9405 STYLE OF CAUSE: Ruth Walden et al. v. Social Development Canada, Treasury Board of Canada and Public Service Human Resources Management Agency DATE AND PLACE OF HEARING: May 14 to 18, 2007 May 22 and 24, 2007 Ottawa, Ontario FINAL SUBMISSIONS RECEIVED ON: June 15, 2007 DECISION OF THE TRIBUNAL DATED: December 13, 2007 APPEARANCES: Laurence Armstrong For the Complainants Leslie Reaume Reuben East For the Canadian Human Rights Commission Simon Fothergill Claudine Patry For the Respondents

2007 CHRT 57

CHRT

Germain v. Groupe Major Express Inc.

en

2007-12-19

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/7163/index.do

2023-12-01

Germain v. Groupe Major Express Inc. Collection Canadian Human Rights Tribunal Date 2007-12-19 Neutral citation 2007 CHRT 57 File number(s) T1179/6106 Decision-maker(s) Doucet, Michel Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MAGALY GERMAIN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - GROUPE MAJOR EXPRESS INC. Respondent RULING 2007 CHRT 57 2007/12/19 MEMBER: Michel Doucet [1] At the beginning of the hearing on November 21, 2007, Jacques Jobidon, counsel for Groupe Major Express Inc. (the respondent), informed the Tribunal, for the first time, that his client had presented to its creditors a proposal under the Bankruptcy Act, R.S.C. 1985, c. B-3 (the Bankruptcy Act). The first meeting of creditors took place on October 18, 2002. The proposal was accepted by the creditors and went into effect on November 5, 2003. In turn, the trustee was discharged on March 17, 2004. When asked why he had waited until the first day of the hearing to raise this issue, Mr. Jobidon said that he had only recently been informed of this fact. The respondent's submissions [2] Mr. Jobidon argued that this proposal had the effect of removing the Tribunal's jurisdiction to hear this matter or, at the very least, made any order against his client unenforceable. To support his claims, he relied inter alia on subsection 69.1(1) of the Bankruptcy Act, which provides: 69.1 (1) Subject to subsections (2) to (6) and sections 69.4 and 69.5, on the filing of a proposal under subsection 62(1) in respect of an insolvent person, (a) no creditor has any remedy against the insolvent person or the insolvent person's property, or shall commence or continue any action, execution or other proceedings, for the recovery of a claim provable in bankruptcy, until the trustee has been discharged or the insolvent person becomes bankrupt; (b) no provision of a security agreement between the insolvent person and a secured creditor that provides, in substance, that on (i) the insolvent person's insolvency, (ii) the default by the insolvent person of an obligation under the security agreement, or (iii) the filing of a notice of intention under section 50.4 or of a proposal under subsection 62(1) in respect of the insolvent person, the insolvent person ceases to have such rights to use or deal with assets secured under the agreement as the insolvent person would otherwise have, has any force or effect until the trustee has been discharged or the insolvent person becomes bankrupt; (c) Her Majesty in right of Canada may not exercise Her rights under subsection 224(1.2) of the Income Tax Act or any provision of the Canada Pension Plan or of the Employment Insurance Act that refers to subsection 224(1.2) of the Income Tax Act and provides for the collection of a contribution, as defined in the Canada Pension Plan, or an employee's premium, or employer's premium, as defined in the Employment Insurance Act, and of any related interest, penalties or other amounts, in respect of the insolvent person where the insolvent person is a tax debtor under that subsection or provision, until (d) Her Majesty in right of a province may not exercise Her rights under any provision of provincial legislation that has a similar purpose to subsection 224(1.2) of the Income Tax Act, or that refers to that subsection, to the extent that it provides for the collection of a sum, and of any related interest, penalties or other amounts, where the sum (i) has been withheld or deducted by a person from a payment to another person and is in respect of a tax similar in nature to the income tax imposed on individuals under the Income Tax Act, or (ii) is of the same nature as a contribution under the Canada Pension Plan if the province is a province providing a comprehensive pension plan as defined in subsection 3(1) of the Canada Pension Plan and the provincial legislation establishes a provincial pension plan as defined in that subsection, in respect of the insolvent person where the insolvent person is a debtor under the provincial legislation, until (iii) the trustee has been discharged, (iv) six months have elapsed following court approval of the proposal, or (v) the insolvent person becomes bankrupt. [3] According to this provision, if the proposal is accepted by the creditors, no creditor has any remedy against the debtor, in this case the respondent, or against the debtor's property, without leave of the court. A proposal is a contract between a debtor and a debtor's creditors. When it is accepted by these creditors and approved by the court, all of the creditors are bound by it. Accordingly, in this case, the respondent's creditors who accepted the proposal could not be granted leave to commence or continue enforcement proceedings against the debtor for the balance of their claim without challenging the very essence of the proposal and its acceptance. I note that, according to the evidence filed at the hearing, the complainant was not included in the proposal between the respondent and its creditors. [4] Section 69.4 of the Bankruptcy Act in turn provides: 69.4 A creditor who is affected by the operation of sections 69 to 69.31 or any other person affected by the operation of section 69.31 may apply to the court for a declaration that those sections no longer operate in respect of that creditor or person, and the court may make such a declaration, subject to any qualifications that the court considers proper, if it is satisfied (a) that the creditor or person is likely to be materially prejudiced by the continued operation of those sections; or (b) that it is equitable on other grounds to make such a declaration. [5] According to this provision, a creditor affected by section 69.1 must seek leave from the court to commence or continue legal proceedings. Mr. Jobidon therefore inferred from this that the complainant could not proceed before the Tribunal without first seeking leave of the Superior Court of Québec. He added that she would not be exempt from this obligation unless she fell under one of the exceptions provided under subsection 178(1) of the Bankruptcy Act, which states: 178. (1) An order of discharge does not release the bankrupt from (a) any fine, penalty, restitution order or other order similar in nature to a fine, penalty or restitution order, imposed by a court in respect of an offence, or any debt arising out of a recognizance or bail; (a.1) any award of damages by a court in civil proceedings in respect of (i) bodily harm intentionally inflicted, or sexual assault, or (ii) wrongful death resulting therefrom; (b) any debt or liability for alimony or alimentary pension; (c) any debt or liability arising under a judicial decision establishing affiliation or respecting support or maintenance, or under an agreement for maintenance and support of a spouse, former spouse, former common-law partner or child living apart from the bankrupt; (d) any debt or liability arising out of fraud, embezzlement, misappropriation or defalcation while acting in a fiduciary capacity or, in the Province of Quebec, as a trustee or administrator of the property of others; (e) any debt or liability for obtaining property by false pretences or fraudulent misrepresentation; (f) liability for the dividend that a creditor would have been entitled to receive on any provable claim not disclosed to the trustee, unless the creditor had notice or knowledge of the bankruptcy and failed to take reasonable action to prove his claim; (g) any debt or obligation in respect of a loan made under the Canada Student Loans Act, the Canada Student Financial Assistance Act or any enactment of a province that provides for loans or guarantees of loans to students where the date of bankruptcy of the bankrupt occurred (i) before the date on which the bankrupt ceased to be a full- or part-time student, as the case may be, under the applicable Act or enactment, or (ii) within ten years after the date on which the bankrupt ceased to be a full- or part-time student; or (h) any debt for interest owed in relation to an amount referred to in any of paragraphs (a) to (g). [6] It is obvious that the complainant does not fall under any of these exceptions. Mr. Jobidon therefore drew the conclusion that since she had not sought leave from the Superior Court of Québec to continue her proceeding before the Tribunal and since none of the exceptions provided under subsection 178(1) applied, the Tribunal did not have jurisdiction to continue the hearing of this complaint. Decision [7] A proposal is a contract between a debtor and his creditors. These proposals are covered by Part III of the Bankruptcy Act, which contains the applicable provisions. The debtor who files a proposal is an insolvent person within the meaning of section 2 of the Bankruptcy Act, but is not a bankrupt. [8] According to section 2 of the Bankruptcy Act, the word person includes a corporation but the definition of insolvent person excludes those who are bankrupt. In this case, Mr. Jobidon, who had the burden of establishing that the Tribunal does not have jurisdiction to hear the matter, did not file any evidence establishing that the respondent was an insolvent person or a bankrupt when its proposal was filed. I thereby infer that at that time Groupe Major Express Inc. was insolvent and not bankrupt. [9] In the context of a proposal, trustees do not take possession of the property and therefore cannot dispose of it as they would in the case of a bankrupt. Indeed, the trustee's powers in regard to the possession and disposal of a bankrupt's property should be distinguished from those of the same trustee acting during the proposal of an insolvent person. Despite the trustee's intervention, the debtor is still the owner of its business. The trustee is then considered to be an agent and not a grantee. The Bankruptcy Act allows insolvent persons to submit proposals to their creditors without first assigning their property to the official receiver. Debtors thereby keep their property and continue to administer it. (Darabaner v. Imperial Bank of Canada, [1960] S.C. 411; Appolo Refrigeration Inc. v. Office de construction du Québec, [1976] S.C. 1716; commented on by Bohémier, A. Proposition préventive - refus des créanciers - cession rétroactive - détermination des créances admissibles, (1977) 37 R. du B. 229.) [10] According to the Bankruptcy Act, if the creditors refuse a proposal, the debtor is deemed to have made an assignment of his property on the date the proposal was filed. However, if the creditors accept the proposal, the trustee must immediately apply to the court to have the proposal approved (see section 58 of the Bankruptcy Act.) A proposal accepted by the creditors and approved by the court is binding on creditors with claims provable contemplated by the proposal (subsection 62(2) of the Bankruptcy Act). In such a case, the debtor continues to do business but must comply with the requirements of the Bankruptcy Act in regard to proposals and the limitations resulting from the proposal. The debtor becomes a bankrupt and is presumed to have made an assignment of his property only in cases where the debtor's creditors refuse the proposal. (Appolo Refrigeration Inc. v. Office de construction du Québec, supra) [11] In this case, we can infer from the evidence filed at the hearing that the proposal was accepted by the respondent's creditors and approved by the court. The accepted and approved proposal was never filed. Therefore, the Tribunal does not know what it contains. Further, Mr. Jobidon did not file any evidence regarding the enforcement of this proposal. [12] Following my analysis of the Bankruptcy Act regarding proposals and the state of the evidence filed by the respondent, I find that the fact that the respondent filed a proposal does not have any effect on the Tribunal's jurisdiction to hear this complaint. The respondent is still in business in a case where a proposal has been accepted and approved. None of the respondent's arguments have persuaded me that it was, on that basis, released from its obligations under the Canadian Human Rights Act. [13] For these reasons, I find that the Tribunal still has jurisdiction to hear this complaint. The parties shall therefore within 10 days of this decision advise the Tribunal of their dates of availability in the next three months for a three-day hearing. Should the parties not comply with this direction, the Tribunal shall set the hearing dates. Should one of the parties not have any date available in the next three months, it shall provide the Tribunal with sufficient reasons to explain its unavailability. The Tribunal will then decide the merits of those claims. Michel Doucet OTTAWA, Ontario December 19, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1179/6106 STYLE OF CAUSE: Magaly Germain v. Groupe Major Express Inc. DATE AND PLACE OF HEARING: November 21, 2007 Québec (Quebec) RULING OF THE TRIBUNAL DATED: December 19, 2007 APPEARANCES: Jérôme Carrier For the Complainant No one appearing For the Canadian Human Rights Commission Jacques Jobidon For the Respondent

2007 CHRT 6

CHRT

Durrer v. Canadian Imperial Bank of Commerce

en

2007-03-30

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6494/index.do

2023-12-01

Durrer v. Canadian Imperial Bank of Commerce Collection Canadian Human Rights Tribunal Date 2007-03-30 Neutral citation 2007 CHRT 6 File number(s) T1122/0406 Decision-maker(s) Garfield, Matthew D. Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE DAN DURRER Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN IMPERIAL BANK OF COMMERCE Respondent REASONS FOR DECISION 2007 CHRT 6 2007/03/30 MEMBER: Matthew D. Garfield I. INTRODUCTION II. MR. DURRER'S COMPLAINT III. ISSUES IV. FINDINGS OF FACT A. Background B. Company-wide Restructuring and Downsizing C. Employment Continuity Policy (EC) and Restructuring Support Program (RSP) D. Introduction of the Employee Transition Support Program (ETSP) E. Restructuring in the Compliance Departments (i) The Process Used by Mr. Young (ii) The Criteria Used by Mr. Young (iii) The Result: Positions Were Eliminated and Employment Was Terminated F. Mr. Young's Consideration of Mr. Durrer and His Position G. Mr. Durrer's Age as a Consideration H. October 19, 1999: Notice of Termination Given to Mr. Durrer I. Mr. Durrer's Employment Post-October 19, 1999: the Three Temporary Assignments J. April 4, 2002 Meeting and the Issue of No More Temporary Assignments K. Termination Date and Post-Termination V. THE LAW A. Definition of Discrimination B. Age as a Prohibited Ground C. Applicable Statutory Provision VI. ANALYSIS A. Did CIBC eliminate Mr. Durrer's position in October 1999 because of his age? B. Did CIBC decide not to transfer Mr. Durrer to another position in the same department (Compliance) because of his age? C. Did CIBC interfere with Mr. Durrer's attempts to seek redeployment within CIBC because of his age? (i) Avoiding Pension Liability VII. CONCLUSION I. INTRODUCTION [1] By October 19, 1999 Dan Durrer had worked for one company - the Canadian Imperial Bank of Commerce (CIBC) - for over 28 years. On that day, he was notified that his position was to be eliminated and his employment terminated. He was 48 years old. His job was one of many that was eliminated as part of a company-wide downsizing and restructuring plan. He stayed on in three temporary positions with the Bank for 2.5 years, until finally, not having secured another position, his moving date of termination crystallized on April 12, 2002. [2] On July 23, 2002, Mr. Durrer filed a Complaint with the Canadian Human Rights Commission (Commission) alleging that CIBC had discriminated against him on the basis of age, in violation of section 7 of the Canadian Human Rights Act (CHRA). The Commission referred the Complaint to the Canadian Human Rights Tribunal (Tribunal) on January 30, 2006. The Commission has chosen not to participate in the hearing portion of the inquiry, while still remaining a party. The hearing of the evidence took place in November 2006. These are my Reasons for Decision. II. MR. DURRER'S COMPLAINT [3] The exact nature of the Complaint appeared to be different from inception to the hearing. What exactly was the basis of Mr. Durrer's Complaint? In his Complaint Form filed with the Commission under the section Allegation, Mr. Durrer states: I, Dan Durrer, allege that the Canadian Imperial Bank of Commerce discriminated against me in employment by terminating my employment on the ground of age (50) in contravention of section 7 of the Canadian Human Rights Act. Since he indicated age 50, that would suggest that the basis of his Complaint crystallized on April 12, 2002 - his last day of work. The rest of the Complaint focuses on the events in that time-frame, and not on the initial decision to eliminate his position and not redeploy him in the new Compliance Department. [4] In the Statement of Particulars - in essence his pleading - filed by Mr. Durrer's counsel with the Tribunal, the Complainant focuses on discrimination based on age and years of pensionable service. The Complainant pleads that CIBC developed a policy of dismissing employees who were close to retirement, depriving those employees of a job simply by stint of their age. The Statement of Particulars underscores CIBC's alleged refusal to let Mr. Durrer take a fourth temporary job and attempt to reach the bridgeable age of 53 plus two-years' worth of severance to get that immediate, unreduced pension. CIBC terminated Mr. Durrer at age 50.5 in an effort to defeat Mr. Durrer's pension entitlement and its pension obligations. Further on, he writes: Mr. Durrer was precluded from receiving the benefit of the pension offered to employees who were 53 years of age at the time of their termination, because CIBC would not allow him to extend his career with CIBC through [temporary] term assignments. CIBC's actions constitute adverse differentiation in employment contrary to section 7(b) of the CHRA, and is pursuant to a policy that deprived Mr. Durrer of employment opportunities contrary to section 10 of the CHRA. [5] Counsel for CIBC filed its Statement of Particulars - its responding pleading - inter alia, objecting to the Complainant's addition of the section 10 aspect to the Complaint, saying it appeared for the first time in the Complainant's pleading. The Complainant did not file a Reply. In his opening statement, CIBC's counsel raised the section 10 issue and said that he would wait to see how Mr. Durrer's case is going to go in. Complainant's counsel did not mention section 10 in his very brief opening statement. By the end of the hearing, no further mention of a section 10 violation per se had arisen. Counsel for the Complainant did not make submissions about it in final argument, except for one brief reference. That reference was to a statement in CIBC's pleading, found in the Bank's in the alternative response on the merits to the section 10 allegation in the Complainant's pleading. CIBC's counsel did not make submissions about a section 10 violation in closing argument. In the Complainant's Book of Authorities, two B.C. Human Rights Tribunal decisions dealing with the power to amend complaints are included. However, counsel for the Complainant made no submissions about them. I also note importantly that the Complainant never sought to amend the Complaint to add section 10. I interpret the above as an abandonment of the allegation that CIBC violated section 10 of the CHRA. In the alternative, I find that by the end of the hearing, CIBC had a reasonable expectation that I would be considering the evidence and argument from the perspective of a section 7 violation only. For me to consider a section 10 violation at this point would constitute a denial of fairness and natural justice. Accordingly, I will consider the evidence and argument only as they relate to a violation of subsections 7(a) and 7(b) of the CHRA. [6] While the Complainant's pleading and the testimony of Mr. Durrer focused on CIBC's alleged refusal to allow the Complainant to continue to work in temporary assignments to the bridgeable age of 53, I did hear evidence about whether the initial decision to eliminate Mr. Durrer's Compliance position was discriminatory. And evidence was led and argument made by the Complainant's counsel about whether Mr. Young's decision not to redeploy Mr. Durrer in the newly revamped Compliance Department constituted discrimination based on age. In closing argument, counsel for the Complainant succinctly stated that the section 7 violation in this case was two-fold: first, when the termination decision was made by Mr. Young because age was a factor; and then, in March-April 2002 when Human Resources thwarted his attempt to get a fourth temporary job and his employment came to an end. III. ISSUES [7] I deal with the following issues: Did CIBC eliminate Mr. Durrer's position in October 1999 on account of his age; Did CIBC decide to not transfer Mr. Durrer to another position in the same department (Compliance) on account of his age; and Did CIBC interfere with Mr. Durrer's attempts to seek redeployment within CIBC because of his age. IV. FINDINGS OF FACT [8] In this section, I make my findings of fact, including those derived from the Agreed Statement of Facts filed. A. Background [9] Dan Durrer was born on October 9, 1951. He joined CIBC in January 1971. He had a Grade 12 diploma. He worked his way up through the Bank, holding various branch line and regional office positions. From 1994 until his last day of work in 2002, Mr. Durrer worked in the Head Office in Toronto in various positions. At the time of his notice of termination on October 19, 1999, Mr. Durrer held the executive position of Director, Business Risk and Control Consulting, Retail Banking, in one of the Bank's three Compliance Departments. He was 48 years old. [10] According to the Agreed Statement of Facts, Throughout his employment with CIBC, Mr. Durrer was a dedicated and loyal employee who received numerous promotions and commendations from his superiors including two Chairman's awards for outstanding performance. By his own admission, he was a generalist in a workplace that was becoming more specialized. B. Company-wide Restructuring and Downsizing [11] In 1999, CIBC hired a new President and CEO, John Hunkin. The new CEO directed a company-wide downsizing and restructuring program, to make CIBC more competitive, among other goals. I accept the evidence that this was a tough time for CIBC financially. The restructuring resulted in approximately 2,500 jobs being eliminated. Mr. Durrer's was one of them. The internal e-mail that was sent to executives and managers (including Mr. Durrer) on September 27, 1999, directing them to distribute it to staff, reads in part: CIBC's commitment to bring its cost base into line with that of our competitors will result in significant restructuring activity over the coming months... This CIBC restructuring initiative is likely to result in fewer redeployment opportunities for staff in the immediate future. Therefore, we need to provide more flexibility to employees whose jobs have been eliminated - greater flexibility to explore career opportunities outside CIBC earlier, and more support to sustain what might be a longer job search externally. [12] The e-mail clearly states that there would be fewer redeployment opportunities and employees would be encouraged to look for jobs outside CIBC. I accept Mr. Durrer's evidence that he did not believe the restructuring would affect him and his job would be eliminated, although as early as when he received this e-mail, he knew that big changes were coming soon. [13] I find that part of the restructuring involved the elimination of waste and duplication and involved a degree of cost-cutting. That is to be expected from such a process. The evidence does not suggest a targeting of older workers or the elimination of jobs on the basis of an employee's age. For example, in his viva voce evidence and his expert's report, Michael Banks, an expert on pensions and actuarial science and partner at Mercer Human Resources Consulting, outlined the experience rates of termination of employees covered by the ETSP program which are included in our report on the Actuarial Valuation of the CIBC Pension Plan as at October 31, 2005. In the age category of 21-30 years, there was a rate of ETSP termination of one percent for each age in that range. In the age category of 31-52 years, it was 1.5 percent for each age in that range. His conclusion was: The experienced rate of termination under the ETSP program is uniform for employees aged anywhere between 31 and 52. There is no indication of selection by age in this range. I accept Mr. Banks' evidence. C. Employment Continuity Policy (EC) and Restructuring Support Program (RSP) [14] In 1992 and 1993, CIBC created its Employment Continuity policy (EC) and Restructuring Support Program (RSP) respectively. EC and RSP worked in tandem to give employees who lost their jobs through position elimination the opportunity to either redeploy themselves into another position within the Bank, or if they could not do this, to receive a severance package and other benefits, including counseling, vocational rehabilitation, and legal and financial advice, to assist them in transitioning into employment outside CIBC. [15] One of the most significant benefits offered to qualifying employees affected by the restructuring concerned the Bank's pension plan. For these employees, if they were 55 years of age at the date of their termination, or if they were between 53 and 55 years of age and their severance entitlement (a two-year maximum) would be sufficient to bridge them to age 55, they would be entitled to have the normal early retirement actuarial reduction under the pension plan waived. In other words, they would be eligible to receive an immediate, unreduced pension upon leaving the Bank. In normal circumstances, if they elected to retire at age 55, they could receive an immediate, reduced pension or a deferred, unreduced pension at age 65. This waiver of the early retirement pension reduction was a significant benefit to those employees terminated during this period. I accept the evidence of pensions expert Michael Banks that this was a very generous benefit, and uncommon in the workplace. At page 3 of his report, he writes that over the course of a 4-year period ending October 31, 2004, there were 1,795 terminations of employment at CIBC of employees aged 20-53 and 700 retirements at age 55 and over (including those individuals between 53-55 years old who were bridged to age 55). [16] As will be addressed later, the core of Mr. Durrer's Complaint is that CIBC didn't allow him to continue to work to the bridgeable age of 53 years. Had he been permitted, with his maximum 24-month severance period, he would have reached the target age of 55 years. He then would have been entitled to the pension reduction waiver and an immediate, unreduced pension. Thus, CIBC's actions prevented him from accessing this benefit. CIBC responded by saying that Mr. Durrer simply did not qualify for this generous benefit which it was not legally required to provide to its terminated employees in the first place. Mr. Durrer was 48 years old in October 1999 when he received notice that his position in the Compliance Department would be eliminated, effective January 7, 2000. Even after his subsequent three temporary positions over a 2.5 year period (he was 50.5 years old at that point) and his 2-year severance are added to the mix, he would be at the 52.5 yard post - still 2.5 years short of the bridging requirement. [17] CIBC introduced one-time amendments to its RSP, effective September 1, 1999. It established working notice period payouts and enhanced severance to employees in Canada who were given notice of job elimination as a result of the restructuring. I accept the evidence of the Bank that some employees were successful in obtaining temporary positions (e.g., Mr. Durrer) that allowed them the opportunity to either develop new skills to get a new permanent position or to give them additional time to find a job outside CIBC. As will be dealt with later, the intention or goal of its program was not to allow employees to use the vehicle of temporary jobs or assignments to accumulate time to qualify for pension bridging, but simply as a means to an end of finding a permanent job within CIBC or transitioning to work outside CIBC. D. Introduction of the Employee Transition Support Program (ETSP) [18] In April 2001, CIBC introduced its Employee Transition Support Program (ETSP) which replaced EC and RSP. Employees were given the option to either remain on EC and RSP or elect to be in ETSP. Mr. Durrer elected to participate in ETSP - the benefits under ETSP were greater than under the former programs. While he would continue to receive a 2-year severance amount, the dollar amount of the total package (including other supports) was greater under ETSP. The waiver of early retirement pension reductions was the same, and for Mr. Durrer, he still did not qualify for this generous benefit. [19] One notable difference between the former and latter programs concerned the formal role of the supporting manager. Under ETSP, while the supporting manager would assist the terminated employee in finding alternate work, the onus was on the employee to be more responsible and accountable for his/her job search. As will be seen later, regardless of what program Mr. Durrer was under at a given time, he was very proactive and showed a lot of initiative in seeking permanent and temporary work within CIBC. He was not so diligent with regard to searching for work outside CIBC. He testified: So there was absolutely no doubt, my job search was focused internally. Later, he stated: But as I said earlier and I will say it numerous timing [sic] again, I had a lot invested in CIBC. My life, my working lifetime, was invested there. I had substantial investment in the pension fund and I had a career that I loved. I guess in my own mind I wasn't going to just go away, I was going to go out fighting, and I think that I did that for the balance of my time at CIBC. E. Restructuring in the Compliance Departments [20] The new CEO appointed a new Senior Vice-President for Compliance - the Bank's Chief Compliance Officer. This individual, Eric Young, was brought in from the New York office and commuted back and forth from New York to Toronto. He was entrusted with the responsibility of developing a new Compliance Department bank-wide. At that time, CIBC had three Compliance Departments - one in the Personal & Commercial group; one in World Markets; and one in the Corporate Centre. He ultimately decided to consolidate the three departments into a single, integrated and effective department. I accept Mr. Young's evidence that while cost-cutting was a factor or consideration (albeit not a driving one), he was given no mandate or direction regarding the amount of costs to reduce or how to go about it. The goal from his perspective was not to reduce costs but to come up with an effective compliance function. In fact, he testified that any cost-savings from his exercise would probably need to be reinvested in the end product. He was given no specific budget ceiling. [21] From Mr. Young's perspective, much needed to be done in his task. In his testimony, he referred to his contemporaneous handwritten notes which were entered as an exhibit. The notes outlined the old world of compliance at the Bank vs. the new world that he envisaged. When he arrived, the Compliance Departments were fraught with duplication, sometimes triplication of functions, part-time in nature, and too passive. He envisaged going from three Compliance Departments to one, where the Department would be multi-disciplinarian in nature (i.e., composed of lawyers, accountants, etc.). The compliance officers would be more proactive (not sitting in an ivory tower issuing notices of compliance policy...or regulatory changes to the business users), full-time and possess specialized training and expertise. He wanted his compliance officers to be more institutionally independent, like auditors. The new world of compliance was to look very different from the old world. Reform and restructuring were also key, according to Mr. Young, because of the changing nature of compliance in the banking industry. It was growing more complex, with greater legislative and regulatory pressures. The risk exposure to the Bank was also increasing. His overriding goal was to protect the Bank overall. [22] Part of the restructuring of Compliance would affect the personnel in the three Compliance Departments. He testified that he had no preconceived notions regarding how many positions would be left. What was certain is that there would be fewer. This is not surprising given his view that there was duplication, and sometimes triplication occurring in the compliance functions at CIBC. One area of redundancy was at the management levels of the three Compliance Departments. (i) The Process Used by Mr. Young [23] Mr. Young had to decide which positions to keep, which were to be eliminated and which ones would be modified or restructured. And of course, what to do with the employees who held these positions in the three Compliance Departments. He interviewed various people in the Compliance Departments, especially the executives/managers and compliance officers. He also spoke with the business people (the CIBC employees who would liaise and interact with the compliance officers) to get their perspectives on compliance functions and their opinion about various managers/officers in compliance: whether they added value. In addition, Mr. Young consulted with Human Resources, including Cindy Nicholls, Senior Human Resources Consultant, who would deal with Mr. Durrer in the ensuing years. [24] Importantly, Mr. Young interviewed (sometimes more than once) all employees whose positions he was considering to eliminate or whose employment he was considering to terminate. He also looked at their performance records and personnel files. (ii) The Criteria Used by Mr. Young [25] CIBC entered into evidence excerpts from Mr. Young's notebook, which he made in the fall of 1999 and handed over to CIBC when he left its employ. Much was made in examination-in-chief and cross-examination regarding these excerpts. Suffice to say that they involved short-form notes with arrows and were diagram-like. They certainly were not prose-like or written in complete sentences. His memory was fairly good, notwithstanding the events took place over seven years ago. [26] Having carefully examined the excerpts from his notebook and his testimony about them, I find that Mr. Young considered the following major factors when deciding whether to keep an employee in compliance: Did the employee understand what compliance is and means; How much regulatory or compliance experience (including education) did the employee possess; and What were the perceptions of the business people regarding the compliance employee and whether he or she added value to the new world model of the Compliance Department. [27] From reviewing the evidence of Mr. Young, I find that, to a lesser degree, he also factored in the compensation (salary and benefits) of various employees in deciding whether to keep them. One of the notebook excerpts on its face could have been used as a basis for his assessment as to whether to keep those employees and/or as a performance assessment for awarding bonuses or team dollars to them, which Mr. Young testified occurred during the same period (October 1999). In re-examination, he said the notes were used for both purposes. I accept his evidence on this point. [28] I also find that Mr. Young was not just determining who to keep and who to terminate in the three Compliance Departments. He was also looking at which positions to keep, which to eliminate and which to split and distribute to other positions. This included examining the question of redundancy of management level positions (like Mr. Durrer's) in the three Compliance Departments. (iii) The Result: Positions Were Eliminated and Employment Was Terminated [29] I accept Mr. Young's evidence that this function was not an easy task. Based on the evidence, I find that the result of Mr. Young's decisions was a single Compliance Department with a diversified composition by gender, age, background and experience. [30] Two charts created by CIBC and a contemporaneous handwritten note of Mr. Young were entered into evidence regarding the age composition of employees whose positions were eliminated/employment terminated and those retained by him. The evidence suggests that the employees in the merged and modified chart below were executives/managers in Compliance. Employees Positions Eliminated2 NAME AGE AT RESTRUCTURING AGE RELATIVE TO MR. DURRER1 Dan Durrer 48 -- Employee A 51 older Employee B 49 older Employee C 44 younger Employee D 38 younger Employee E 40 younger Employees Retained NAME AGE AT RESTRUCTURING AGE RELATIVE TO MR. DURRER1 Employee F 52 older Employee G 52 older Employee H 59 older Employee I 40 younger 1This column was added by me. 2One of the charts had the headings Employees Positions Eliminated and Employees Retained. The other chart read Retained and Terminated. From reviewing the viva voce and documentary evidence, I believe that those managers whose positions were eliminated, also had their employment terminated. [31] The above chart shows that the employees who were retained (except for Employee I) were the three oldest ones, including Employee H who was 11 years older than Mr. Durrer. Further, three of the employees whose positions were eliminated were younger than Mr. Durrer. I will deal with the significance of this later in these Reasons. Suffice to say that it is probative evidence that there was no targeting by Mr. Young of Mr. Durrer or others on account of their respective ages. F. Mr. Young's Consideration of Mr. Durrer and His Position [32] Mr. Young made the decision to eliminate Mr. Durrer's position and not to redeploy him within the new Compliance Department. He averred that Mr. Durrer's position - Director, Business Risk and Control Consulting, Retail Banking - was redundant and unnecessary and that he had transferred approximately fifty percent of its functions and responsibilities to other employees in the Bank. Regarding his decision to eliminate Mr. Durrer's position, Mr. Young stated: I didn't need that many people to do these different activities [such as Mr. Durrer's duties] within the department. What he meant was that he did not need a full-time manager to carry out Mr. Durrer's duties. The Complainant did not challenge this evidence. [33] The focus of Mr. Durrer's testimony was not about the bona fides of Mr. Young's decision to eliminate his position, or even that he wasn't redeployed within Compliance. Rather, Mr. Durrer was upset that CIBC ended his then-28-month extended working notice period in April 2002, preventing him from getting a fourth temporary job (and a fifth if required) to get him to the magic age of 53 years, and thus bridgeable to 55 and the immediate, unreduced pension. The irony is, if Mr. Durrer had gotten a permanent job within CIBC (as he claims he was seeking as well as temporary jobs), he would no longer have been eligible for ETSP and therefore, not entitled to either a severance package or the pension bridging benefit - the latter of which has been his focus throughout this case (the brass ring as CIBC's counsel puts it). I find that Mr. Young had legitimate, business reasons, untainted by Mr. Durrer's age, for arriving at his decision to eliminate Mr. Durrer's position. I acknowledge Mr. Young's expertise in compliance matters within the banking industry. It was his job to make that call and he was well positioned to do so. [34] What about Mr. Young's decision not to redeploy Mr. Durrer within the new Compliance Department? Mr. Young testified that Mr. Durrer didn't meet his qualifications for a job in the new model of Compliance at CIBC. Indeed, Mr. Durrer had spent most of his working life at CIBC in retail banking. He had been in Compliance for less than three years. He met with Mr. Durrer a couple of times, reviewed his personnel file and spoke with his managers and business users. Mr. Young felt the Complainant didn't understand compliance issues. Mr. Young stated: He was more of a project manager and hadn't been with Compliance that long. Mr. Young also said business users he spoke with thought Mr. Durrer didn't have the skills that brought value to compliance. Simply put, he didn't have the legal/accounting/regulatory experience that others had and that Mr. Young was looking for. Regarding Mr. Durrer's grade 12 education, Mr. Young said he would have kept him on, notwithstanding his lack of post-secondary education, if he had had the experience and understanding of compliance issues. By Mr. Durrer's own admission, he was more of a generalist in an industry that was becoming more in need of specialists, as was the case in compliance. G. Mr. Durrer's Age as a Consideration [35] Mr. Young was asked whether he knew Mr. Durrer's age. After all, it was in his personnel file, which he reviewed. Based on his various answers to many questions in direct, cross and re-examination, I find that he might have seen Mr. Durrer's birth date, but that he certainly wasn't looking for it. Whether he saw his birth date is not a major issue. After all, by just doing the mathematical computation (Mr. Durrer had by 1999 been working at CIBC for over 28 years and knowing that he couldn't have started employment much less than 18 years of age), he knew Mr. Durrer had to be in his late 40s at a minimum. Mr. Young knew that he wasn't dealing with a 25 or 35-year old employee. [36] More importantly, did age play a factor in Mr. Young's decision to eliminate his position and/or not to redeploy him within the Compliance Department? I think not. I accept his evidence that: If he had the experience then I would have conserved1 him for other positions, but he didn't have the experience and I didn't need the position. [37] He was queried about the issue of age in various parts of his examination-in-chief, cross-examination and re-examination. Because this is a key issue and some of his evidence upon first examination was somewhat equivocal or ambiguous, I cite the various excerpts of the transcript on this issue below: Examination-in-chief (p. 564 of transcript) MR. GROSMAN: In evaluating Mr. Durrer and in making the decision to eliminate his position, did age play any factor whatsoever? MR. YOUNG: No. Cross-examination (pp. 588-89, 594) MR. MORIN: ...At the time he had received notice, Mr. Durrer had just turned 48 years old. Is that your recollection, sir? MR. YOUNG: In terms of the letting him go, yes. MR. MORIN: Okay. MR. YOUNG: In terms of age, no, because it was not really important to me. And what I mean by that is particularly having come from the States, age was really something not to be considered. But, you know, based on -- you base decisions on performance and need. ... ... MR. MORIN: Having looked at the personnel file, you would have looked at his date of birth? MR. YOUNG: I could have, sure. MR. MORIN: All right. MR. YOUNG: I guess I want to just emphasize it was not a primary factor. ... ... MR. MORIN: So in reviewing that personnel file as part of the overall review into his background, you knew what his date of birth was and you knew what his age was? MR. YOUNG: I could have, sure. I wasn't looking for it, I'll put it that way. Re-direct examination (pp. 640-42) MR. GROSMAN: ...Do you have any recollection of seeing Mr. Durrer's birth date? MR. YOUNG: No, if I could elaborate a little? MR. MORIN:2 Sure, that's fine. MR. YOUNG: Having come from the States, birth dates are less relevant in terms of -- less relevant in terms of criteria. It's just a different environment, so having come from there, it wasn't something that I was looking for. MR. GROSMAN: What do you mean by less relevant? MR. YOUNG: It's -- age discrimination is -- well, first, the States is very litigious. Second, because of that, asking for or considering age is a red flag in terms of just managing people generally in the States. It's something to be sensitized to. So having come up to Canada to restructure the department and just to manage people, and just given the experience of managing that I have had even up to that point, I knew birth dates and age were less relevant in terms of running the department. MR. GROSMAN: Okay. And so when you come to assess Mr. Durrer is age a factor at all? MR. YOUNG: It's a factor, not a driving factor. It's -- you know, going back to experience, performance, value added, et cetera. THE CHAIRPERSON: Sorry, age is a factor, not a driving factor. A factor in terms of what? MR. YOUNG: It's just performance, just being a compliance officer or any employee, age is -- particularly in terms of restructuring, it's out there, I guess is what I'm trying to say, but it's not a driving factor in terms of whether to keep or not keep employees. THE CHAIRPERSON: Sorry, one second. It's not a driving factor in terms of whether to keep or not keep employees, but it's a factor in terms of whether you're going to keep or not keep employees, is that correct? MR. YOUNG: Yes, and the reason why I say that, having come from the States, as a manager, a manager should be sensitive to not making decisions because of age. [38] At first look, one could interpret some of Mr. Young's statements as tantamount to an admission of liability: that age, however small, was a consideration in his decision not to keep Mr. Durrer in the Compliance Department. However, when considering all of his evidence and his actions regarding the Compliance restructuring exercise, a different picture emerges. I find that age was not a factor used by Mr. Young to the detriment of the Complainant. I make this finding for several reasons: The objective evidence of the chart showing the employees by age whose positions were eliminated/retained suggests that Mr. Durrer's age was not used against him; In several exchanges above, Mr. Young repeats the statements that considering age constitutes discrimination and is not to be done - a red flag. He also flatly denies in examination-in-chief that he considered age as a factor in his decision to eliminate Mr. Durrer's position; No one ever asked Mr. Young how age was used as a factor in Mr. Durrer's case and whether it was used to his benefit, to his detriment or not at all - a neutral factor. Hypothetically speaking, if Mr. Young considered Mr. Durrer's age as a positive factor (with the attendant advantages like experience, maturity, knowing his way around the Bank, etc.), but the non-age-based negative factors weighed heavier, that would not constitute differentiating adversely against Mr. Durrer on account of his age per subsection 7(b) of the CHRA; I interpret his comment it's out there and it's not a driving factor as meaning that one cannot ignore age - it's in an employee's personnel file, one can do the math re: years of services and in talking with an employee, a manager can tell if someone is 25 or 55 years of age, to use an example. Age is a self-evident characteristic. That is different from saying, for example, that one used an employee's age to his/her detriment, acting on pejorative, stereotypical, ageist prejudices, resulting in an employee being denied employment; and Mr. Young, holding the senior compliance position that he did which involves complex legal and regulatory issues and having worked in a litigious environment like the United States', is sensitized (as he stated in his testimony) to the legal prohibition that an employer cannot terminate an individual's employment because of his or her age. [39] I wish to point out that I find Mr. Young a credible witness. He was candid in his testimony. H. October 19, 1999: Notice of Termination Given to Mr. Durrer [40] On October 19, 1999, Mr. Young and Cindy Nicholls, Senior Human Resources Consultant, met with Mr. Durrer. He was told that his position was being eliminated, effective January 2000. He was given a letter offering him a 12-week notice of termination, a severance package of 24-months' salary and other supports, including vocational rehabilitation and counseling, in recognition of his over 28 years of service with CIBC and pursuant to the RSP and EC. The RSP stated that, The notice period, whether used as working notice or taken as payment in lieu is provided in addition to applicable severance payments. Employees also could use the termination notice period to find a temporary assignment or permanent position within CIBC. [41] As part of the termination package, Mr. Durrer met with an outplacement officer on that day to prepare him to search for alternate employment both within and outside CIBC. The Bank also provided him with internal job search support from Ms Nicholls, who met and/or communicated with him (in person, by phone or e-mail) many times over the course of the next 2.5 years to discuss and assist in his re-employment plans. I. Mr. Durrer's Employment Post-October 19, 1999: the Three Temporary Assignments [42] For the next 28 months, Mr. Durrer extended his working notice period of 12 weeks with the Bank through project assignments. I find that this was contrary to the purpose and intent of the EC/RSP and ETSP policies. I accept the evidence from Ms Nicholls that no other employee stayed in these programs for as long a time as Mr. Durrer, via the vehicle of temporary positions. [43] I also find that the wording of the ETSP, while not absolutely clear, supports the reasonable conclusion that ETSP employees were not to stay on that program for a long period of time. The section entitled Temporary Assignments found at page 12 of the ETSP Employee Guide reads: One way for employees to develop their capabilities and position themselves for alternate employment within CIBC is through a temporary job assignment. How Do Temporary Assignments Work? In general, temporary assignments should be less than 12 months duration. The employee's notice period will continue to run even if the employee receives a temporary assignment. If the employee is on temporary assignment when the notice period ends, the employee's employment with CIBC will terminate, and severance will be paid, at the end of the assignment unless the employee secures another position before then. The employee will be provided the opportunity to continue the search for a permanent position within CIBC while on temporary assignment. NOTE Should the employee find alternate employment within CIBC during the course of a temporary assignment, the employee will no longer be entitled to a severance payment under the Program. [44] I find that CIBC uses the term position above to refer to a permanent position and temporary assignment to refer to a temporary position. A reasonable interpretation is that the Bank also is using the term alternate employment to refer to a permanent position. For example, looking at the first sentence above (One way for employees...), it would not make sense if alternate employment meant a temporary assignment. It would then read: One way for employees to develop their capabilities and position themselves for a temporary assignment within CIBC is through a temporary job assignment. While not perfectly clear, I am more inclined to believe that the bullet In general, temporary assignments should be less than 12 months duration meant that employees should not be in ETSP for more than 12 months in total. It did not mean that ETSP employees could take as many temporary assignments as they wished, provided that each was under 12 months' duration. If one takes that same interpretation (i.e., that CIBC is using the term position to refer to a permanent one), then the third bullet above would suggest that if an employee is in a temporary assignment when his/her notice period ends, his/her employment will terminate unless the employee secures a permanent position before then. [45] CIBC did not express its concerns with the practice vis-a-vis Mr. Durrer until he first raised the issue with Ms Nicholls on March 21, 2002 - 28 months after getting his notice of termination. So while a more reasonable interpretation of the policy as found in the ETSP Employee Guide is that the temporary jobs were a means to the end of finding alternate permanent employment, I can understand how Mr. Durrer came to believe that it was okay for him to go from temporary job to temporary job (while also looking for a permanent one). [46] The three subsequent temporary positions held by Mr. Durrer were: Business Deployment (Implementation) Leader, Measure and Manage Project: January 4, 2000-May 13, 2001. He was told about this opportunity by Ms Nicholls and was assisted by her in obtaining the job; Process Leader, Base Transaction Financial Project: May 16, 2001-January 31, 2002; and Branch Banking Process Mapping project: February 1, 2002-March 29, 2002. [47] CIBC agreed to maintain the two weeks that Mr. Durrer had remaining from his initial notice of position elimination in 1999, which allowed him a further two weeks to find alternate employment within CIBC. Unless Mr. Durrer found another position, his moving date of termination would crystallize on April 12, 2002 - his last day of employment at CIBC. J. April 4, 2002 Meeting and the Issue of No More Temporary Assignments [48] On April 4, 2002, Ms Nicholls gave Mr. Durrer his final termination letter. I accept and acknowledge Mr. Durrer's evidence that this was a very stressful moment for him. After 31 years of service, it looked like his working relationship with CIBC was over. [49] In his testimony, Mr. Durrer stated that he learned for the first time at this meeting that CIBC would not extend his employment via a fourth temporary position, if he found one. If he did not come up with a permanent position at CIBC by April 12, 2002, his employment would be terminated. Based on Ms Nicholls' evidence as well as documentary evidence (i.e., e-mails), it is clear that Ms Nicholls and her colleagues in Human Resources had indicated by March 21, 2002 their displeasure at Mr. Durrer continuing to go from temporary position to temporary position with a severance package at the end of it. But did Ms Nicholls outright refuse to consider a fourth temporary position? And as will be discussed later, even if that were so, absent her actions being age-based, would a blanket refusal constitute a violation of section 7 of the CHRA? Mr. Durrer's contemporaneous notes of the conversation between him and Ms Nicholls on March 21, 2002 read: 3. If I were to secure another ST [short-term, temporary] assignment, say 6-8 months, would HR support? a. [Ms Nicholls' answer] Didn't know. Would look into this. Would speak to Jackie Stewart. Wanted to speak to Lori Kennedy. Wouldn't commit on when she would get back to me. [50] In cross-examination, Mr. Durrer acknowledged that in his March 21st conversation with Ms Nicholls, when asked if Human Resources would support a fourth short-term assignment if he found one, Ms Nicholls replied, I'll look into it; we'll consider it, yes. I note that it was Mr. Durrer who raised the issue for the first time. [51] CIBC disputes Mr. Durrer's assertion that it told him on April 4, 2002 that it would no longer entertain extending his working notice period yet again with a fourth temporary position. Ms Nicholls testified that she simply meant that Mr. Durrer could not keep extending his notice period indefinitely with the view that he would also get the 24-month salary severance at the end of it. She averred that she did not mean that he was barred from getting a fourth temporary assignment. She stated that had he come up with one, she would have checked with her superior to see if it would be fine. [52] The e-mail of Lori Kennedy (of Human Resources) to Ms Nicholls dated April 11, 2002 (the day before Mr. Durrer's final day as a CIBC employee) deals with Ms Kennedy's discussion with Mr. Durrer. It reiterates the view that Human Resources was taking the position that it would not look favourably upon Mr. Durrer continuing in a fourth temporary position. However, Ms Kennedy's e-mail did state, I also offered to follow up with my Risk client to see what they had and they are not in a position to help him out at this time... That might suggest that Human Resources would have been open to extending him in a fourth temporary assignment, if one was available. Ms Kennedy was not called as a witness. I do not know for example, if Ms Kennedy offered to help find him a fourth temporary job with her Risk client or a contract position. [53] Examining the testimony of Ms Nicholls and Mr. Durrer and the e-mails that were exchanged in this one month period, I come to the conclusion that CIBC certainly gave the impression that it would not look kindly on extending Mr. Durrer's employment if he found a fourth temporary job, but CIBC did not outright refuse to consider it. I also find that CIBC did not prevent Mr. Durrer from looking for another temporary position or a permanent one, as he clearly did. [54] Mr. Durrer secured neither a fourth temporary job nor a permanent one at CIBC by April 12, 2002. We will never know whether CIBC would have allowed Mr. Durrer to remain an employee in a fourth temporary job. I should also add that even if CIBC had indicated to him that a fourth temporary job was unacceptable, Mr. Durrer's actions were not ones of acceptance. He continued to scramble for a temporary or permanent position, showing his proactive initiative, as he always had demonstrated over the last 2.5 years. In cross-examination, Mr. Durrer stated that after April 4th, I looked for full-time [permanent job] primarily. I held out hope because of all the things I contributed to the bank over the years that if I had a term assignment, that it would be considered. K. Termination Date and Post-Termination [55] Mr. Durrer received his letter of confirmation that his working relationship with CIBC as an employee would come to an end on April 12, 2002. He was 50.5 years of age. On May 1, 2002, CIBC hired him back on a contract basis as a Business Analyst (not in the Compliance Department). He worked on contract from June 5, 2002 to February 21, 2003. [56] On July 23, 2002, Mr. Durrer filed a Complaint with the Commission, alleging that CIBC had discriminated against him by refusing to continue his employment due to his age, in contravention of section 7 of the Canadian Human Rights Act. As of the last day of hearing on November 22, 2006, Mr. Durrer had not accepted any of the severance packages offered to him by CIBC. He has also filed an action in the Superior Court of Justice against CIBC mirroring this Complaint. V. THE LAW [57] The initial onus of establishing a prima facie case of discrimination under the CHRA rests with the Complainant or the Commission: Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, at para. 28 (O'Malley). Once that is established, the burden then shifts to the Respondent to establish a justification or explanation for the discriminatory practice or action. If that is done, the Complainant or Commission has the burden of showing that such a justification or explanation was a pretext for the discriminatory practice or action: Basi v. Canadian National Railway Company (No. 1)(1988), 9 C.H.R.R. D/5029 (C.H.R.T.), at para. 38474. [58] Also relevant to the instant case is the legal principle that: It is not necessary that discriminatory considerations be the sole reason for the actions in issue in order that the complaint may succeed. It is sufficient that the discrimination be one of the factors [however small] for the employer's decision: Morris v. Canada (Armed Forces)(2001), 42 C.H.R.R. D/443 (C.H.R.T.), at para. 69. A. Definition of Discrimination [59] There is no definition of discrimination in the CHRA. One often quoted definition was formulated by McIntrye J. in an early section 15 Canadian Charter of Rights and Freedoms decision of the Supreme Court of Canada, Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 175: I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. B. Age as a Prohibited Ground [60] Age is one of the enumerated prohibited grounds of discrimination found in subsection 3(1) of the CHRA. The CHRA provides various defences, exceptions and justifications to what otherwise would be discriminatory practices related to age such as issues concerning membership in employee associations, mandatory retirement, insurance and pension plans: ss. 9(2), 15(1)(b)-(d). The CHRA also provides a bona fide occupational requirement/justification based on age: ss. 15(1)(a), 15(1)(g). Some of the defences/exceptions are unique to the prohibited ground of age. The foregoing illustrates Parliament's legislating of certain exceptions to the general principle that age discrimination is unlawful. C. Applicable Statutory Provision [61] The Complaint involves allegations that CIBC violated the following section of the CHRA on the prohibited ground of age: 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. VI. ANALYSIS A. Did CIBC eliminate Mr. Durrer's position in October 1999 because of his age? [62] Based on the findings I made earlier on this issue, I find that CIBC did not eliminate Mr. Durrer's position in October 1999 because of his age. Mr. Young eliminated the position for lawful business reasons: the position was redundant and not needed in CIBC's newly consolidated, single Compliance Department model. No one replaced Mr. Durrer in that position: it was eliminated as a result of the restructuring. The chart herein shows there was no age pattern in terms of the managers in Compliance whose positions were eliminated and those whose positions were not and were retained. [63] Mr. Young was brought in by the new CEO of CIBC with a mandate to create the most effective Compliance Department possible. Mr. Young has the expertise to do so. Mr. Durrer does not challenge this. I would add that it is not the Tribunal's mandate to second-guess the business merit of Mr. Young's management decisions, but rather, to determine if they were tainted by discrimination. [64] The fact that CIBC saved money from eliminating Mr. Durrer's position per se does not make the act a discriminatory one under the CHRA. If that was so, then no employer could eliminate any position that results in a cost-savings because the employee holding that position could argue age discrimination regardless of his/her age: i.e., if he or she was 25 years of age, he or she was discriminated against because he or she was young; if he or she was 60 years old, the employee was treated adversely because he or she was old. The concepts of young and old are of course relative. B. Did CIBC decide not to transfer Mr. Durrer to another position in the same department (Compliance) because of his age? [65] Based on my earlier findings, I find that Mr. Young's decision not to offer Mr. Durrer a position in the new Compliance Department was not made, in whole or in part, because the Complainant was 48 years old. I accept his evidence that he had the difficult task of downsizing from three Compliance Departments to one. Mr. Durrer did not possess the compliance experience, background and understanding of compliance issues that Mr. Young was looking for. The chart reproduced in these Reasons demonstrates from an objective perspective that employees older than Mr. Durrer were retained (including one 11 years older) and ones younger than Mr. Durrer were let go. There is no pattern of targeting of older workers (in this case, ones close to Mr. Durer's age). In fact there is no age pattern at all. I accept Mr. Banks' evidence that, The experienced rate of termination under the ETSP program is uniform for employees aged anywhere between 31 and 52. There is no indication of selection by age in this range. [66] Regarding the excerpts from the transcript of Mr. Young's evidence reproduced earlier in these Reasons, I make the following observations and findings. I examined carefully Mr. Young's entire testimony, as well as the documentary evidence adduced. I do not take Mr. Young as saying he used Mr. Durrer's age to the latter's detriment in deciding whether to keep him in the Compliance Department. Indeed, Mr. Young was never asked if age was a factor in his mind, did he use it to Mr. Durrer's benefit, detriment or was it a neutral factor? Of course, Mr. Young either knew Mr. Durrer's exact age or had an idea of his proximate age. He said, it's out there. Just as he knew Mr. Durrer was male. That doesn't mean he punished Mr. Durrer for being 48 years old by not giving him a position in the revamped Compliance Department. In other words, Mr. Durrer's age was not counted against him by Mr. Young in his decision not to redeploy Mr. Durrer in the new Compliance Department. Mr. Durrer was not retained because he lacked the qualifications sought by Mr. Young and relative to the other employees in the three Compliance Departments under consideration. [67] To find otherwise and to hold that CIBC ought to have kept him employed in the new Compliance Department, because Mr. Durrer was 48 years old and notwithstanding that he lacked the qualifications sought, would have troubling consequences. It would mean that the mere age of an employee (and it could be any age) is more important than experience, education, value-addedness, etc. In essence, age becomes the deciding or primary factor, not whether the employee is qualified. C. Did CIBC interfere with Mr. Durrer's attempts to seek redeployment within CIBC because of his age? [68] This was the crux of Mr. Durrer's case: by not allowing him to take a fourth temporary assignment and crystallizing his date of termination, CIBC prevented Mr. Durrer from reaching the bridgeable age of 53, which stopped him from realizing his goal - an immediate, unreduced pension. Throughout his testimony and in pre-referral letters from Mr. Durrer to the Commission, this issue was the focal point of Mr. Durrer's concern about how CIBC treated him. In his testimony, he said, Why couldn't they make an exception for me? There was lots of work. He also said words to that effect in other parts of his testimony. He even testified that they had bridged other people who did not meet the EC/RSP and ETSP criteria for bridging: (i.e., the employee's job was being eliminated, and he or she was neither 55 years old nor 53-55 with enough severance to bridge them to 55). At the hearing, CIBC denied having done this. Mr. Durrer produced no probative evidence of CIBC having bridged other people falling outside the eligibility criteria. [69] The Complainant states that various e-mails from Ms Nicholls and other human resources people in 2002 illustrate that CIBC was frustrating his attempts to find other work. Per my earlier findings of fact, I do not find this to be the case. On the contrary, I find that CIBC provided assistance to Mr. Durrer from the moment he was notified that his position was being eliminated in October 1999. CIBC offered him a very generous severance package, which as of the last day of the hearing, he had not accepted. The EC/RSP and ETSP paid a premium to workers 45 and older. Mr. Durrer was offered the maximum 24-month severance package. CIBC provided him with vocational rehabilitation counseling and training. Ms Nicholls met and spoke with him right from the start. Indeed, it was as a result of her suggestion and assistance that Mr. Durrer got his first temporary assignment. I also accept her evidence that she met frequently with other CIBC Human Resources staff about leads for Mr. Durrer. [70] In addition, CIBC allowed Mr. Durrer and others similarly situated to continue to look for permanent work within CIBC, or even temporary work with the goal of finding a permanent job in CIBC. He had access to the computerized internal job postings system at CIBC. Indeed, under the EC/RSP and ETSP, displaced employees like Mr. Durrer received preferential consideration over other employees applying for the same position, but who were not in the EC/RSP or ETSP programs. Employees like Mr. Durrer were to identify themselves on their application, and if they were equally qualified as the non-ETSP applicant, the former would win the job competition. Mr. Durrer's detailed log shows he applied for many jobs (most being temporary). Indeed, Mr. Durrer held three successive temporary positions from January 2000-April 2002: almost 2.5 years after he was given notice of termination. All during this time Mr. Durrer was accruing pension and other benefit entitlements. CIBC also hired him back on a contract for a 9-month period in June 2002. Simply put, I find that CIBC treated Mr. Durrer well and with respect during what was no doubt a difficult time for him. Indeed, there are e-mails entered into evidence from the Complainant wherein he was thanking CIBC managers and staff for their assistance. [71] By way of the Agreed Statement of Facts, Mr. Durrer held three temporary positions over a 28-month period. That is probative evidence per se that CIBC did not frustrate his attempts to find permanent or temporary work on account of his age. Indeed, for all we know, his age and all its attendant benefits (e.g., experience, maturity, etc.) might have contributed to his getting one, two or all three of those temporary positions. [72] Mr. Durrer had used the word conspiracy in his testimony and in a letter to the Commission to describe CIBC's action in preventing him from finding further work to reach the bridgeable age. His counsel showed more restraint. He said CIBC's actions did not constitute a conspiracy, nor were they done deliberately or intentionally, but they showed a willful disregard, an act of utter neglect, shameful. I do not find that CIBC's actions constituted any of those things, nor were they on account of his age. [73] As indicated in the section dealing with findings of fact, one will never know whether CIBC ultimately would have allowed Mr. Durrer to continue into a fourth (or fifth or sixth, if necessary) temporary assignment to reach the bridgeable age of 53. Per my earlier finding, I believe CIBC would have considered allowing Mr. Durrer to take a fourth temporary assignment. The evidence is clear that, as of the April 12, 2002 effective date of termination (and even at the April 4th meeting where Mr. Durrer said he learned for the first time that CIBC wouldn't let him continue in a fourth temporary job), Mr. Durrer had neither secured nor even tentatively secured a temporary or permanent job at CIBC. [74] Even if I had found that CIBC refused to consider a fourth temporary job, Mr. Durrer has not satisfied me that such a refusal was tied to his age, contrary to section 7 of the CHRA. And if Mr. Durrer had secured a permanent job at that time, he would no longer have been eligible for ETSP and thus would not be entitled to either the severance payment or the waiver of the early retirement pension reduction, both of which were his goals. (i) Avoiding Pension Liability [75] In his Statement of Particulars, the Complainant pleads that CIBC terminated Mr. Durrer at age 50.5 [on April 12, 2002] in an effort to defeat Mr. Durrer's pension entitlement and its pension obligations. [76] I find no merit to this allegation. First, Mr. Durrer did not lose any pension entitlement or benefits as of April 12, 2002 under the CIBC Pension Plan. They remain intact. He simply did not qualify for the pension reduction waiver. As of today at age 55, he can start to receive an actuarially reduced pension or wait to age 65 to receive a full, unreduced pension. Second, if his allegation is that the Bank was defeating his future pension entitlement and its future pension obligations by preventing him from working another 2.5 years to reach the bridgeable age of 53, I still disagree. Had CIBC really wanted to avoid any further pension obligations to Mr. Durrer, it would have dismissed him without cause in October 1999, and not allowed him to continue at the Bank for the next 2.5 years in temporary assignments. During that time, he was accruing additional pension benefits. As CIBC's counsel stated, if that was his client's intention, it had the reverse effect, of increasing the Bank's pension obligation to Mr. Durrer. That doesn't make much business sense if its goal was to get rid of Mr. Durrer to save some money. [77] I also accept Mr. Banks' statement that the impact on pension liabilities of the termination of employees by CIBC, pursuant to the ETSP program has been immaterial. Accordingly, the impact on pension liabilities from only one employee's pension (i.e., Mr. Durrer's) would have been negligible. VII. CONCLUSION [78] There is no doubt that it was a sad and stressful time for Dan Durrer. His entire working life had been spent at CIBC. And by all accounts, he was a hard-working and successful employee. However, for the foregoing reasons, his age played no adverse part in his employment termination from CIBC. Accordingly, the Complaint is dismissed. Signed by Matthew D. Garfield OTTAWA, Ontario March 30, 2007 1 While the transcript reads conserved, I believe the witness said considered. 2 While the transcript reads MR. MORIN, it was probably Mr. Grosman who made the comment. PARTIES OF RECORD TRIBUNAL FILE: T1122/0406 STYLE OF CAUSE: Dan Durrer v. Canadian Imperial Bank of Commerce DATE AND PLACE OF HEARING: November 14 to 17, 2006 November 20 to 22, 2006 Toronto, Ontario DECISION OF THE TRIBUNAL DATED: March 30, 2007 APPEARANCES: David Morin / Diane Ware For the Complainant No one appearing For the Canadian Human Rights Commission Norman Grosman / Mark Fletcher For the Respondent

2007 CHRT 7

CHRT

Cole v. Bell Canada

en

2007-04-04

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6499/index.do

2023-12-01

Cole v. Bell Canada Collection Canadian Human Rights Tribunal Date 2007-04-04 Neutral citation 2007 CHRT 7 File number(s) T1114/9505 Decision-maker(s) Hadjis, Athanasios Decision type Decision Decision Content HAYLEY COLE Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - BELL CANADA Respondent REASONS FOR DECISION 2007 CHRT 7 2007/04/04 MEMBER: Athanasios D. Hadjis I. FACTS II. ANALYSIS A. What must Ms. Cole demonstrate to establish discrimination in this case? B. Does differential treatment with respect to breastfeeding constitute discrimination on the basis of sex and family status? C. Is there prima facie evidence establishing that Ms. Cole was differentially treated in the course of employment, on the basis of her sex? D. What is Bell's answer to the prima facie case? E. Did Bell establish that it made every possible accommodation short of undue hardship? F. What Remedies does Ms. Cole seek? (i) An order pursuant to s. 53(2)(a) of the Act (ii) Compensation for pain and suffering (s. 53(2)(e)) (iii) Special compensation pursuant to s. 53(3) of the Act. (iv) Lost income (v) Interest (vi) Retention of jurisdiction by the Tribunal [1] The Complainant, Hayley Cole, is an employee of Bell Canada (Bell), who went on maternity leave in 2000. Upon her return to work at the end of her leave, she asked Bell to provide her with a work schedule that would enable her to go home and breastfeed her child at the same time every day. She alleges that in turning down her request, Bell refused to accommodate her. This, in her view, constitutes discrimination based on her sex and family status, in violation of s. 7 of the Canadian Human Rights Act. [2] The Canadian Human Rights Commission opted not to appear at the hearing. Ms. Cole led her case on her own, without any representation on her behalf. Bell was represented by legal counsel. I. FACTS [3] Ms. Cole began working at Bell in 1987, initially as a clerk in the billing department. By 2000, she was employed at Bell's Toronto call centre (also called the Mass Queue), which provided customer service to Bell clients. In February 2000, Ms. Cole took maternity leave from work to give birth to her second child. Shortly before taking her leave, Ms. Cole was informed that she had been accepted to work in a new call centre department known as the High Value Queue (HVQ). This department was being established at the time as a pilot project to provide priority service to Bell's larger customers. Ms. Cole had not begun working at HVQ when she left on her maternity leave. [4] Ms. Cole's son was born on February 27, 2000. Unfortunately, he was born with a congenital heart defect, for which he had to undergo angioplasty when he was only four months old. Ms. Cole was told by her child's physicians that he would likely require surgery to repair the heart defect as he got older. Given his condition, they recommended that she breastfeed him for as long as possible in order to strengthen his immune system. [5] Theresa Agnew, who is a nurse by profession, was qualified by the Tribunal to testify at the hearing as an expert in the area of breastfeeding and mastitis. Ms. Agnew happens to be the spouse of Ms. Cole's brother. Bell did not raise any objection in this regard and I did not find that her family connection impacted on her credibility as an expert witness. Ms. Agnew explained in her evidence that the colostrum in mother's milk has numerous immunological properties that can provide immense benefit to children, particularly those with health-related problems that make them more susceptible to infection. She testified that children with congenital heart disease are prone to bacterial infections, so much so that, for instance, antibiotics are often prescribed for them even when they are just having their teeth cleaned by a dentist. Through breastfeeding, these children become less susceptible to the contraction of these infections, and become better equipped to fight them if they are contracted. [6] Ms. Cole followed the advice of her son's physicians and breastfed him exclusively until he reached about seven months of age, at which point she also began to feed him some solid food. By January 2001, her son had settled into a routine of being breastfed regularly about three to four times a day: at 6:30 a.m., 4:30 p.m., between 9:00 and 10:00 p.m., and occasionally overnight between 2:00 to 3:00 a.m. [7] Around January 20, 2001, Ms. Cole called and left a voice mail message for Elizabeth Long, who was the wellness manager at the Mass Queue call centre where Ms. Cole had been working prior to taking her maternity leave. The wellness manager's duties included dealing with employees' issues regarding maternity and disability leave, as well as helping the call centre's manager (or team leader) to monitor the attendance of employees and the reliability of their performance. Ms. Long was responsible, in this regard, for about 350 employees. [8] In her voice mail message, Ms. Cole asked for authorization to take one hour personal granted unpaid (PGU) time off work per day in order to nurse her baby. Bell supervisors had the discretion to grant employees PGU time off from their normal work schedules to tend to personal matters, such as going to a doctor's appointment or attending a child's school play. Receiving PGU time off work does not have a negative impact on an employee's work record. [9] Given Ms. Cole's seniority within Bell, she was usually assigned shifts beginning at 8:00 a.m. and ending at 4:00 p.m., Monday to Friday. According to Ms. Cole, on some rare occasions, perhaps no more often than three times per year, she would be assigned an 8:15 a.m. to 4:15 p.m. shift. Her request to Ms. Long, therefore, consisted of asking to leave work one hour in advance of her normal end of shift, as PGU time. This would have enabled her to join her son at his caregiver's home, and nurse him by 4:30 p.m., in accordance with his feeding schedule. Ms. Cole also explained that usually, as the afternoon feeding time approached, her breast milk began to leak. By leaving earlier from work, she would minimize any leaking that would take place at her workplace. She described in her testimony the odour associated with leaking breast milk and the embarrassment she would feel if the leaking became visible through her clothes. [10] Ms. Cole knew that another employee, Barb Kustec, had previously been granted PGU time off work to breastfeed her child at the workplace. Ms. Kustec's daughter had several allergies and it had been recommended that she continue breastfeeding her for as long as possible. In June 2000, Ms. Kustec sought and obtained authorization to take an extra fifteen minutes of PGU time off work after her 30 minute lunch break. Her husband would bring the child to the office at this time and she would nurse her. Ms. Cole testified that she had assumed that her request for time off at the end of the day would inconvenience Bell less than the accommodation granted to Ms. Kustec, which was occurring during the busy lunch hour when many employees were taking their breaks. [11] On January 22, 2001, Ms. Long replied by e-mail to Ms. Cole's voice mail message. Ms. Long pointed out that upon Ms. Cole's return from maternity leave, she was to report directly to the HVQ call centre and that her file had been forwarded there. Any future enquiries were to be directed to her new team leader at HVQ, Maria Bozzelli. [12] Although Ms. Cole's file was apparently now in the hands of HVQ, Ms. Long nevertheless took it upon herself to comment on Ms. Cole's request for PGU time off work. She wrote: Your request for PGU unfortunately cannot be honoured. The other options would be changing your preferences for lunch etc etc to accommodate your needs that the staffing associate within the HVQ could help you with. [13] Ms. Cole replied to Ms. Long by e-mail as well. She wrote: I would like to know more information on why 60 minutes daily PGU is denied for me to nurse my baby. Is all PGU denied? Can I have 15 minutes a day? Or 30 minutes? Or 45 minutes? [14] Ms. Long answered Ms. Cole's e-mail on February 2, 2001, with the following note: I would recommend that you pursue your request with your new dept in HVQ, for us in the Mass queue we are in constant hiring mode and therefore can not substantiate granting PGU. [15] Ms. Cole did not speak to Ms. Long about her request thereafter. She returned to work on February 26, 2001, commencing immediately in the HVQ department. A few days later, Ms. Cole approached Ms. Bozzelli to discuss the matter. She spoke to her about her son's heart condition and of his physicians' recommendation that he be breastfed for as long as possible. Ms. Bozzelli testified that both she and Ms. Cole became quite emotional during the course of this conversation. [16] Ms. Cole had perceived Ms. Long's replies to her previous requests as a denial by Bell of PGU time off work. Consequently, she did not repeat this request to Ms. Bozzelli. Instead, Ms. Cole asked that her shifts always end by 4:00 p.m. She hoped that by wearing breast pads, she might be able to capture her leaking breast milk while at work, and that if she left by 4:00 p.m., she would reach her son just in time for his next feeding. [17] Ms. Bozzelli realized that Ms. Cole was effectively seeking a permanent 8:00 a.m. to 4:00 p.m. shift. She told Ms. Cole that given the possibility that the seniority rights of other employees may be affected, she needed to consult with her own second level manager, Kam Rawal, before granting the request. Ms. Bozzelli testified that she contacted Mr. Rawal about Ms. Cole's request. She claims that Mr. Rawal told her that since Ms. Cole was asking for a medical restriction, medical documentation in support thereof would have to be provided to Bell. Mr. Rawal did not testify at the hearing. [18] According to Ms. Bozzelli, she then contacted Ms. Cole to advise her that she must submit medical documentation confirming the accommodation that she required due to her son's health problems. Ms. Bozzelli assured Ms. Cole that until such time as the documents were submitted, she would only be assigned 8:00 a.m. to 4:00 p.m. shifts. [19] Ms. Cole's recollection of this conversation differs somewhat. She testified that she was merely told that a doctor's note was needed in order for her request to be granted. She found it curious that a note was necessary given that, with the exception of perhaps three days per year, her shift would in any event ordinarily end at 4:00 p.m. Nonetheless, she agreed to provide a note from her doctor. [20] On March 23, 2001, Ms. Cole met with her family physician and obtained from her a note, written on the physician's prescription notepad. The note said, This is to certify that Hayley Cole has been advised to leave work at 4 p.m. daily for medical reasons. The note did not make any mention of Ms. Cole's child or his heart condition. [21] Ms. Cole brought the note to Ms. Bozzelli who forwarded it on to Bell's Disability Management Group (DMG) offices in Montreal. The DMG manages all disability, occupational health and accommodation claims regarding Bell employees. The DMG is staffed with case managers who review the medical information received and make decisions, in consultation with a physician, regarding the employees' entitlements to short and long term disability benefits and accommodation. [22] Ms. Bozzelli testified that she did not look at the note before forwarding it to the DMG. In order to respect Bell employees' privacy, the content of all medical documentation submitted by them is viewed solely and confidentially by the DMG. Accordingly, if the DMG determines, based on the medical evidence submitted by the employee, that medical restrictions are justified, the DMG will simply advise the employee's supervisor of the nature of the restrictions and how they should be accommodated. The details about the employee's disability or illness on which the DMG's decision is based are not disclosed to the supervisor. [23] The DMG found that the note from Ms. Cole's physician was insufficiently detailed. Ms. Cole was therefore asked to provide a second note, which would set out a diagnosis and duration of the suggested restrictions to her work schedule. On May 11, 2001, Ms. Cole visited her family physician again, informed her of the DMG's request, and asked for a second medical note. The physician obliged and prepared another note, again handwritten on a sheet from her prescription pad. The second note said, This is to certify that Hayley Cole has been advised to leave work at 4 p.m. daily for 12 months from today's date for prevention of recurrent mastitis. Ms. Cole testified that her physician included the reference to mastitis because the doctor thought maybe that's what Bell was looking for. Ms. Cole's physician did not testify at the hearing. [24] Ms. Agnew stated in her evidence that mastitis is an infection that occurs within breast tissue, which often is caused by clogged ducts. Some of the factors that may lead to this latter condition include engorgement of the breast (which can occur when the breast is not emptied of milk often enough), fatigue and stress, cracked nipples that allow bacteria to be introduced, and changes or decreases in the frequency of feedings. If the clogging is left unchecked, bacteria enter the ducts, which could develop into a local infection and in the worst cases, transfer into the bloodstream causing a systemic infection. [25] Ms. Cole experienced mastitis around the third or fourth month after giving birth. Her family physician prescribed antibiotics and advised her to keep on nursing regularly. As Ms. Agnew explained in her evidence, one of the typical treatments for mastitis is frequent breastfeeding, particularly from the infected breast. After about two weeks, Ms. Cole's mastitis went away. She had not had another instance of mastitis by the time she returned to work in February 2001. Ms. Agnew testified that a small percentage of mothers experience chronic or recurring mastitis. Mastitis is most likely to initially arise within the first 24 months after birth. However, if a woman experiences recurring mastitis in this period, the infection could recur even after the 24th month, although the likelihood is very rare. [26] The DMG reviewed the physician's second note and determined that the recommended fixed work schedule constituted a preventive measure that the DMG felt should be accommodated if possible. Upon receiving a message to this effect from the DMG, Ms. Bozzelli implemented the recommendation and ensured that Ms. Cole was assigned exclusively 8 a.m. to 4 p.m. shifts for a 12 month period ending on May 24, 2002. Ms. Bozzelli testified that other HVQ employees noticed that Ms. Cole was always getting the same shift hours and inquired about this. Ms. Bozzelli explained to them that this decision related to a personal matter of Ms. Cole's, the details of which could not be shared. [27] In March 2002, as the end of the 12 month period was approaching, DMG case worker, Stephanie Houle, contacted Ms. Cole to inform her that the existing medical note on file would not be valid for much longer. If Ms. Cole needed to continue to be accommodated with fixed shift hours beyond May 24, 2002, her physician would need to file a new report, by filling out a two-page DMG form called a Physician's Report to Disability Management Group, also known by its identification number, BC1935. [28] Interestingly, the instructions on the form direct the employee to complete the form in the event that he or she is absent from work for more than seven calendar days for illness/off-duty injury, or for one full day for an on-duty injury/occupational disease. There is no evidence that Ms. Cole was ever absent from work due to illness or injury in the manner described in the form, after her return to work following her maternity leave. The DMG asked her to submit the form nonetheless. [29] Ms. Cole's physician completed the form on May 22, 2002. She described the nature and frequency of Ms. Cole's current treatment as working consistent hours. In answer to the question of whether a progressive return-to-work plan was suggested, the physician wrote, Able to work full-time, full duties but maintain consistent hours Monday to Friday 8-4. Bell had recently initiated Saturday shifts at the HVQ call centre, which all ran from 9:00 a.m. to 5:30 p.m. If Ms. Cole's shift were to end so late in the day, she would never be able to reach her child for his 4:30 feeding. Ms. Cole claims that she mentioned this situation to her physician, who therefore opted to include the Monday to Friday reference in the report. Ms. Cole forwarded the completed BC1935 form to the DMG. [30] Dr. Liliane Demers is a consulting physician with the DMG. She testified that the DMG was not ready to support further accommodation in Ms. Cole's case, after reviewing her BC1935 form. She noted that the physician's diagnosis of recurrent mastitis did not specify the number of episodes that had occurred nor was any treatment for any such episodes described. No proposed follow-up appointments with the patient were mentioned either. Dr. Demers pointed out that mastitis most frequently occurs in the first six months after birth. At this point, Ms. Cole's son was already over two years old. [31] The DMG's decision that further accommodation would not be supported was apparently conveyed to HVQ management but, according to Ms. Cole, none of the details brought up in Dr. Demers' testimony were ever communicated to her. Instead, she claims that she was merely told by Liz Brownrigg, the wellness manager responsible for attendance at HVQ, that her physician's report had been rejected. The conversation with Ms. Brownrigg seemed to have centred on the issue of the Saturday shift, since in an e-mail message dated May 31, 2002, Ms. Cole wrote to Ms. Houle: Liz referred me to you to find out what information you require from my doctor to support Saturday exemption. Do I need to have my doctor complete another 1935? [32] Ms. Houle replied by e-mail on June 3, 2002: We do need to understand the medical condition that prevents you to work on Saturdays (your treating physician can add this information on the bc1935 [form and sign] beside it). [33] Accordingly, Ms. Cole returned to her physician and asked her to add the additional requested information on the same form. The physician added several additional lines in the margin of the form's sheet so that it now read as follows: Able to work full-time, full duties but maintain consistent hours Monday to Friday 8-4 to continue regularly scheduled breastfeeding to prevent recurrence of mastitis - Saturday work schedule is different won't apply [sic]. [34] Ms. Cole forwarded the revised BC1935 form to the DMG. [35] On August 7, 2002, Ms. Houle sent an e-mail message to Ms. Brownrigg stating that although it was recommended that Ms. Cole work consistent hours, the DMG did not support on a medical basis the physician's recommendation that she work specific hours and/or days of work. Ms. Houle added that it was up to Ms. Cole's managers to decide if they would accommodate this request for those specific hours or days of work. Ms. Brownrigg, in turn, informed Ms. Cole verbally that the DMG no longer supported her claim for accommodation on medical grounds. [36] Ms. Cole decided to speak to the force wellness communication manager at HVQ, Melanie Blackall, about her situation. Ms. Blackall's duties included managing staffing requirements within the department. Ms. Blackall testified that Ms. Cole seemed confounded by the DMG's response, and wondered aloud how her physician could write the medical report any differently. Ms. Blackall replied that she had nothing to suggest; she just knew the DMG found the second report insufficient. From May to September, 2002, Ms. Cole had already been assigned to work three Saturday shifts ending at 5:30 p.m., which she had managed to avoid by using her sick leave days or exchanging shifts with other employees. These adjustments did not have any impact on her salary. On weekdays, Bell continued to assign Ms. Cole 8:00 a.m. to 4:00 p.m. shifts exclusively. [37] On September 27, 2002, Ms. Cole told Ms. Blackall that she had scheduled an appointment to meet her physician again on October 7, 2002, in order to obtain another BC1935 report to submit to the DMG. Ms. Blackall advised Ms. Cole, as confirmed in a subsequent e-mail, that unless the DMG would be varying its position after the new report was filed, Ms. Cole should be prepared to be on regular scheduling as of October 14th, 2002, without any of the restrictions on shift assignments that had been in place previously. Ms. Cole interpreted Ms. Blackall's remarks as meaning that she should prepare herself to stop nursing since she would no longer be exclusively assigned fixed shifts ending at 4:00 p.m. Ms. Blackall acknowledged in her evidence that by her body language and tone of voice, Ms. Cole demonstrated that she was clearly upset with this news. [38] As scheduled, Ms. Cole visited her physician and obtained another BC1935 report containing more information than in the previous reports. Under the heading Nature and frequency of current treatment, the physician wrote working consistent hours with consecutive days off. Under the heading Extent of disability, the physician wrote that Ms. Cole can perform all tasks but needs to work consistent hours i.e. 8 - 4 daily with 2 consecutive days off in order to maintain a regular schedule of breastfeeding and 2 days off to pump breast milk for storage for the remainder of the week in order to avoid mastitis. The physician indicated that these restrictions would apply for approximately one year. [39] The report was forwarded to the DMG. Late in October, Ms. Blackall learned that the DMG had again decided the medical information did not support the restrictions Ms. Cole's physician had recommended. Ms. Blackall sought instructions from a higher level manager, Karen Neave. Ms. Neave advised her that she would be taking care of the matter from that moment on and instructed her to ensure that Ms. Cole was maintained on 8:00 a.m. to 4:00 p.m. shifts in the meantime. [40] Given Ms. Blackall's previous notice by e-mail that Ms. Cole should be prepared to work regular shifts (i.e. possibly beyond 4:00 p.m.) if the DMG did not alter its position, Ms. Cole testified that she resigned herself to the expectation of later shifts. She therefore stopped her son's 4:30 p.m. feedings on October 8 or 9, 2002. By Christmas 2002, Ms. Cole had stopped the 10:00 p.m. feedings, and by March or April, 2003, she had stopped nursing him altogether. [41] On November 4, 2002, Ms. Blackall instructed her staffing manager by e-mail that effective immediately, until further notice, Hayley will be working 8-4 tours due to her medical restrictions. Ms. Cole says she was never given a copy of this e-mail nor was she ever provided with this information. She continued to work in the HVQ call centre until January 2003, when it was dismantled. Between October 2002 and January 2003, Ms. Cole was only assigned to work three shifts beyond 4:00 p.m., twice in late October and once early in November. After she notified Ms. Blackall about these assignments, Ms. Blackall adjusted them back to 4:00 p.m. Thus, taken as a whole, between May 2002, when Ms. Cole's initial period of guaranteed work shifts was to expire, and January 28, 2003, when she left HVQ, Ms. Cole did not in fact ever work any shift where she was scheduled to finish past 4:00 p.m. [42] After the HVQ call centre was dismantled, Ms. Cole was assigned to the Move Queue, which apparently is a large call centre, like the Mass Queue. Ms. Cole testified that given the higher number of employees at the Move Queue and her level of seniority by this point, she was certain to receive Monday to Friday, 8:00 a.m. to 4:00 p.m. shifts. [43] The wellness manager who oversaw the Move Queue call centre was Ms. Long, the same wellness manager to whom Ms. Cole had addressed her original request for PGU time off work. Ms. Long testified that in February 2003, she had begun to focus on improving attendance at the call centres for which she was responsible. One of the measures she adopted to address the significant attendance problem that had developed was to work closely with the DMG to ensure that all the supporting documentation for persons on medical leave was in order and that employees would return to work as soon as medically possible. In conducting her review of employees for whom restrictions had been put in place, she discovered that Bell was formally continuing to maintain restrictions with respect to Ms. Cole's work shifts. The DMG informed Ms. Long that there was no longer any documentation on file to support these continued restrictions. [44] Consequently, on March 5, 2003, Ms. Long wrote an e-mail message to Ms. Cole advising her that in light of the information obtained from the DMG, her medical restrictions with respect to shift scheduling were being removed. Ms. Long added that if Ms. Cole felt that the restrictions were still applicable, she should file a new BC1935 form. Ms. Long testified that she never got a reply from Ms. Cole to this e-mail. [45] On April 14, 2004, Ms. Cole filed her human rights complaint with the Commission. II. ANALYSIS A. What must Ms. Cole demonstrate to establish discrimination in this case? [46] Ms. Cole alleges that in the course of her employment, Bell engaged in a discriminatory practice, within the meaning of s. 7 (b) of the Act, by directly or indirectly differentiating adversely in relation to her, on a prohibited ground of discrimination. Sex and family status are included amongst the prohibited grounds of discrimination enumerated in s. 3 of the Act. [47] 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). [48] Once the prima facie case is established, it is incumbent upon the respondent to reasonably or satisfactorily explain the otherwise discriminatory practice (see Lincoln v. Bay Ferries Ltd., 2004 FCA 204 at para. 23; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2005 FCA 154 at para. 26-7). [49] Moreover, 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. Does differential treatment with respect to breastfeeding constitute discrimination on the basis of sex and family status? [50] Ms. Cole alleges that Bell's treatment of her request for time off work to nurse her son was discriminatory on the basis of her sex and family status. The British Columbia Human Rights Tribunal, in Poirier v. British Columbia (Ministry of Municipal Affairs, Recreation and Housing) (1997), 29 C.H.R.R. D/87 (B.C.H.T.), addressed the question of whether differential treatment of a woman based on the fact that she is breastfeeding is a form of sex discrimination. The Tribunal referred to the Supreme Court's decision in Brooks v. Canada Safeway Ltd. [1989] 1 S.C.R. 1219, in which Chief Justice Dickson stated that the capacity to become pregnant is unique to the female gender. A distinction based on pregnancy is therefore a distinction based on sex. The B.C. Tribunal in Poirier held that the same reasoning applies to breastfeeding as well. The capacity to breastfeed is unique to the female gender. Consequently, discrimination on the basis that an individual is breastfeeding is a form of sex discrimination. I agree with this interpretation. [51] It would seem that a parallel could be drawn regarding the ground of family status. Since Ms. Cole was the mother of the child whom she wanted to breastfeed, treating her differentially in this regard would constitute discrimination on the basis of her family status as a parent. However, Ms. Cole did not advance any argument at the hearing with respect to the family status portion of her complaint, nor did she direct the Tribunal to any evidence in support thereof. Her submissions focussed on the proposition that the alleged discriminatory conduct was based on her sex. I therefore can only assume that Ms. Cole opted to no longer pursue the family status aspect of her complaint. In the circumstances, it would in my view be a breach of fairness and natural justice for me to attempt to formulate arguments at this point in support of this aspect of the complaint, and make findings thereon (see Maillet v. Canada (Attorney General), 2005 CHRT 48 at para. 8). The case based on family status is therefore dismissed. C. Is there prima facie evidence establishing that Ms. Cole was differentially treated in the course of employment, on the basis of her sex? [52] Shortly before returning to work, Ms. Cole contacted Bell management (i.e. Ms. Long) to make a special request as a breastfeeding mother. She wanted to nurse her son at his afternoon feeding time. Could Bell authorize her to leave work one hour earlier each day, thereby giving her plenty of time to return to her son and feed him? Bell would not be obliged to pay her salary while she was off work (PGU). [53] Ms. Long's initial response was unambiguous: Your request for PGU unfortunately cannot be honoured. When Ms. Cole asked whether this refusal was final or whether a shorter PGU time period would be acceptable, Ms. Long replied that in her Mass Queue department, they were in constant hiring mode and cannot substantiate granting PGU. [54] Bell contends that Ms. Cole should have ignored these remarks from Ms. Long since she was going to be working at the HVQ call centre upon her return, a department for which Ms. Long was not responsible. Indeed, Ms. Long prefaced her comments in the second e-mail with a recommendation that Ms. Cole pursue her request with the HVQ department. [55] Nevertheless, Ms. Cole perceived Ms. Long's replies as a denial of her request for PGU time. Was Ms. Cole's perception reasonable? She testified that prior to her return to work, she understood that her employment was still linked to the Mass Queue. After all, when she left on maternity leave, she was still working at the Mass Queue. Consequently, she assumed that until she began working at HVQ, Ms. Long remained her wellness manager. [56] Furthermore, even though Ms. Long indicated that Ms. Cole's file was now in the hands of the HVQ, Ms. Long took it upon herself just the same to address Ms. Cole's PGU request in both of her e-mails. Ms. Cole found herself being told twice by this Bell manager that PGU cannot be honoured or substantiated. In effect, Bell was strongly discouraging her in her attempts to obtain leave to breastfeed her child in the manner requested by her. In the circumstances, it was in my view reasonable for Ms. Cole to conclude that Bell would not be granting her any PGU time to breastfeed her child. [57] Ms. Cole, therefore, decided not to pursue the PGU option with Ms. Bozzelli. She pared down her request to what she viewed as a bare minimum, an assurance that her work shift would end at 4:00 p.m., thereby enabling her to make the commute to her child's caregiver's home just in time to feed him. Bell's reaction to this request is key to the outcome of this case. Rather than treat this as a request by an employee, who is both a woman and a mother, for a modification to her work schedule that would enable her to nurse her child with regularity, Bell opted to convert the matter into a medical issue. Ms. Bozzelli was instructed to ask Ms. Cole to provide medical information in support of her request. Why was this necessary? Dr. Demers acknowledged in her testimony, as did Bell's counsel in final argument, that the act of breastfeeding is not a disability. I will return to this question later in this decision. [58] Bell pointed out at the hearing that Ms. Cole was in fact ultimately accommodated in the first year with a guaranteed 8:00 a.m. to 4:00 p.m. work schedule. This accommodation was not, however, in response to a mother's request to breastfeed her child, but as the request of an ill or disabled employee in need of accommodation to avoid recurrence of an illness. This approach to her request resulted, one year later, in Ms. Cole's being told that her accommodation would formally end due to the unlikelihood of any future recurrence of mastitis, even though she was still nursing her son and required a guaranteed 4:00 p.m. shift end to ensure that she could feed him by 4:30 p.m. [59] Thus, Bell never really addressed Ms. Cole's request, as a mother, for a fixed shift end that would enable her to breastfeed her son at his afternoon feeding time. Does this fact establish prima facie that Ms. Cole was discriminated against on the basis of her sex? In my view, it does. [60] Section 7(b) of the Act states that it is a discriminatory practice to directly or indirectly differentiate adversely in relation to an employee in the course of employment. The purpose of the Act, as articulated in s. 2, is to extend the scope of application of 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, without being hindered in or prevented from doing so by discrimination based on, amongst other factors, their sex. [61] In their working lives, women face particular challenges and obstacles that men do not. A woman who opts to breastfeed her baby takes on a child-rearing responsibility which no man will truly ever face. In order for a working mother to bestow on her child the benefits that nursing can provide, she may require a degree of accommodation. Otherwise, she may end up facing a difficult choice that a man will never have to address. On the one hand, stop nursing your child in order to continue working and make a living for yourself and your family. On the other hand, abandon your job to ensure that your child will be breastfed. This dilemma is unique to women employees and results in their being differentiated adversely, in the course of their employment. It has the potential to create precisely the type of obstacle that would deny women an opportunity equal to others, to make for themselves the lives they are able and wish to have (s. 2 of the Act) . [62] In the present case, Bell's reaction, in at the very least strongly discouraging Ms. Cole's request, as a mother, for PGU time to breastfeed her child, presented Ms. Cole with just such a dilemma, one that a male colleague would not have had to face. As such, Ms. Cole was subjected to adverse differential treatment. [63] Furthermore, her subsequent request to Bell for a relatively slight adjustment to her work schedule, which would have enabled her to nurse her son, was in effect turned down as well. Bell never addressed this request as that of a nursing mother. Instead, by referring the matter to the DMG, Ms. Cole was treated as an ill or disabled employee. She was required to visit her physician repeatedly to obtain medical notes and reports. Thus, not only did Bell strongly discourage her initial request for PGU but when she significantly attenuated her request to merely a guarantee of a 4:00 p.m. shift end, Bell subjected her to conditions and specifications (i.e. the filing of medical reports to justify nursing) that a male Bell employee would obviously never have been subjected to. Her status as a nursing mother was integral to her requests, and the denial of these requests had a unique impact on her as a woman, and more specifically, as a nursing mother. As such, there is a clear nexus between the adverse treatment that she received and her status as a woman. [64] A prima facie case of differential treatment based on Ms. Cole's sex has therefore been established. D. What is Bell's answer to the prima facie case? [65] Since Ms. Cole has established a prima facie case of discrimination, it is now incumbent upon Bell to provide an answer to the case. [66] According to s. 15(1) a) of the Act, it would not be a discriminatory practice if Bell's refusal to grant PGU time or its specification that Ms. Cole obtain a medical report justifying her early departure request was based on a bona fide occupational requirement. In order to establish this defence, Bell must demonstrate that accommodation of the individual or class of individuals affected would impose undue hardship on Bell, considering health, safety and cost (s. 15(2)). Indeed, as the Supreme Court decision in (British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868 at para. 21 (Grismer)) would indicate, to avail itself of this defence, an employer must demonstrate that it has made every possible accommodation short of undue hardship. [67] Bell contends, however, that before the duty to accommodate is engaged, an employee must request an accommodation measure and objectively demonstrate the need for this measure. Furthermore, Bell argues that the employee must also provide relevant information in support of her request, which must be clear, detailed and sufficient to support it. [68] In the present case, Bell points out that when Ms. Cole first approached Ms. Bozzelli, she explained that she required the adjustment to her work schedule to nurse her son and thereby build up his immunity to infections, to which he was particularly susceptible due to his heart condition. If this was the need that required accommodation, Bell contends that Ms. Cole failed to provide sufficient information to document the need. When Bell asked her to file a physician's note in support of her request, the medical documents produced made no mention of her son's condition. No one at the DMG ever learned of his illness. Had they been aware of it, it is possible that the DMG would have reached a different conclusion in 2002, and perhaps would have continued to support her accommodation request, without requesting additional medical documentation. [69] Bell's argument, however, does not take into account a fundamental point. Why should the son's health be a consideration when dealing with Ms. Cole's request? Should it make any difference what motivation this parent may have had when making her request for some time off work to breastfeed her child? Ms. Cole's principal objective was to build up her son's immunities given his proneness to infection and the likelihood of future surgery. The incentive for Ms. Kustec was to help her daughter deal with her allergies. As Ms. Agnew indicated in her expert evidence, the benefits to be gained through breastfeeding are numerous and accrue not only to the child and the mother, but to society as a whole. As was also pointed out in Québec (Comm. des droits de la personne et des droits de la jeunesse) et Giguère v. Montréal (Ville) (2003), 47 C.H.R.R. D/67, 2003 QCTDP 88 at paras. 53-7, these benefits have been recognized internationally in the Convention on the Rights of the Child, which was ratified by Canada in 1991. The promotion for breastfeeding has been one of the major goals of the World Health Organization for almost three decades. [70] Thus, although Ms. Cole advised Bell management of her own prime motivation for continuing to breastfeed her baby after returning to work, Bell's reaction should only have been to consider this request as that of any mother making a request to her employer for measures that would enable her to continue breastfeeding her child. Bell's requirement that Ms. Cole provide medical proof to support the request was not justified. Bell may have had some basis to impose this condition if it had any reason to question whether Ms. Cole had indeed given birth 12 months earlier or doubted her sincerity when she explained that she was still breastfeeding her child. But there is no evidence before me of any such question or doubt ever having been raised in this case. [71] The decision by Bell to request medical proof was unfortunate, as it ultimately created the potential for Ms. Cole to lose the benefit of guaranteed work shifts by May 2002. I am persuaded from Ms. Cole's evidence that she was surprised by Bell's initial request for a physician's note and that she did not know quite what to make of it. But she decided to go along with the request. Her primary concern was her child's well-being. If Bell management insisted on a doctor's note, she would make sure that they would get a doctor's note. [72] I would note incidentally that given my finding that the request for a medical note was unjustified, little really turns on whether or not Ms. Bozzelli actually specified to Ms. Cole that the medical note should make specific mention of the son's illness. In any event, I find Ms. Cole's evidence more credible in this regard. Ms. Bozzelli remained in the hearing room while Ms. Cole and all her other witnesses testified. Ms. Bozzelli therefore had the benefit of listening to Ms. Cole's version of the facts before giving her own testimony. Moreover, given Ms. Cole's desire and willingness to make all efforts to ensure that she would be able to breastfeed her son, as is apparent to me from the entirety of her evidence, it seems highly improbable that she would have failed to follow up on the request for this type of medical information if Ms. Bozzelli had really been as explicit as she claims. [73] On the contrary, it is quite obvious from the minimal information provided in the doctor's first note that neither Ms. Cole nor her physician comprehended what Bell was exactly seeking. Ms. Cole had already explained her situation to her manager. Yet Bell was asking for more information as to why Ms. Cole's health required accommodation. Indeed, the BC1935 form that she was asked to complete in 2002 addressed employee illness or disability only. It was not intended to deal with illness of an employee's family member. And why should it have? The DMG's role was to assess the medical restrictions of Bell employees. Ms. Cole had no such medical restrictions, but Bell's request compelled her to, in effect, find a medical restriction (mastitis), in order to obtain the accommodation she was seeking for her son's needs. However, since mastitis was unlikely to occur beyond 24 months following the birth (a point upon which both Ms. Agnew and Dr. Demers concur), Ms. Cole's claim for accommodation was certain to be refused once the child reached two years of age, in 2002. [74] In this sense, the DMG was justified in refusing its continued support of Ms. Cole's accommodation. But the DMG's opinion should have been immaterial. The matter should not have been before the DMG in the first place since Ms. Cole was not ill or disabled, she was a nursing mother without any health issues of her own. [75] Bell agrees that the act of breastfeeding is not a disability but contends that an employer has a right to request supporting, objective evidence from an employee who requests accommodation to nurse her child. The employee must demonstrate a need, not just a mere preference. To place things in the context of this case, a mother may prefer to feed a child at a certain time of the day, but does she need to do so? Bell claims that the burden rests on the employee to make this demonstration, arguing that an employer has no obligation to take an employee's request at face value. Bell's counsel suggested an analogy could be drawn from the situation where an employee seeks religious accommodation (a religious holiday off work, for example). An employer would be justified in requesting confirmation from the employee's cleric of the genuineness of the religious practice. Similarly, it was argued, an employer would be justified in asking a woman to provide medical proof that the breast feeding accommodation she seeks is necessary. Bell did not provide any legal authority in support of this argument. [76] Moreover, I disagree with the premise of this analogy. In Syndicat Northcrest v. Amselem, [2004] 2 S.C.R. 551 at para. 43, a case dealing with freedom of religion, the Supreme Court held that the emphasis in such matters is on the personal choice of religious beliefs. An expert or authority on religious law is not the surrogate for an individual's affirmation of what his or her religious beliefs are. Requiring proof of the established practices of a religion to gauge the sincerity of belief diminishes the very freedom that is sought to be protected. A claimant may choose to adduce expert evidence to demonstrate that his or her belief is consistent with the practices or beliefs of other adherents of the faith, but while such evidence may be relevant to a demonstration of sincerity, it is not necessary (Syndicat Northcrest, at para. 54). [77] Following Bell's analogy, if it is not necessary for a claimant of religious freedom to provide so-called objective evidence of religious practices to establish the sincerity of his or her religious beliefs, why should a mother have to produce objective evidence to prove her sincerity when she declares that she is nursing her infant and needs accommodation to continue to do so after returning to work. In my view, in the absence of any evidence that would lead the employer to doubt the sincerity of the female employee's assertion (i.e. that she has an infant whom she is nursing), she should not have to prove to her employer that nursing her child is necessary. As was pointed out in the labour arbitration case of Re: Carewest and H.S.A.A. (2001), 93 L.A.C. (4th) 129 at 160, breastfeeding, which is obviously unique to the female gender, is as intimately connected to child birth as pregnancy and should be safeguarded in the same way (see also Giguère, supra at para. 60). [78] I therefore disagree with Bell's contention that an employer is justified in asking its employee to provide some independent proof of her need to breastfeed her child. Consequently, Bell's request, in the present case, that Ms. Cole produce medical evidence to support her request for accommodation was not justified. Bell can therefore not put forth her failure to provide medical documentation regarding her child's condition to the DMG as a reasonable or satisfactory explanation. E. Did Bell establish that it made every possible accommodation short of undue hardship? [79] In the present case, not only has Bell failed to establish that it made every possible accommodation short of undue hardship, but there is no evidence indicating that Bell ever tried to accommodate Ms. Cole's request as a mother to breastfeed her child. Her initial request for PGU time off work was strongly discouraged. Her subsequent petition to receive a guaranteed 4:00 p.m. end of shift was not properly addressed. While it is true that in fact she was assigned fixed shifts for the following year, it was not to accommodate Ms. Cole's needs as a mother, but rather as a disabled or ill person. As I have already explained, this mischaracterization later resulted in the potential loss of her guaranteed shifts and forced her to repeatedly return to her physician to obtain one new medical report after another. [80] Bell's failure to accommodate Ms. Cole's request is not surprising given the fact that, as Dr. Demers testified, Bell has no policy on accommodating employees with respect to breastfeeding. Decisions are made on a case by case basis by individual managers. We know, for instance, that Ms. Kustec's request was accommodated. Ms. Long told Ms. Cole that she would not grant PGU time for breastfeeding, certainly with respect to employees in her department, although she raised the possibility of exploring other options (lunch etc. etc.). [81] Not only is there an absence of any attempt to accommodate Ms. Cole as a mother, but the evidence put before the Tribunal suggests that accommodating Ms. Cole with a guaranteed shift end at 4:00 p.m. would not have imposed any hardship on Bell whatsoever, let alone undue hardship. Given her seniority, she was entitled to those shifts on all but a handful of days each year. Ms. Bozzelli alluded in her evidence to some comments that some other employees apparently made when they noticed that Ms. Cole's shifts were always ending at 4:00 p.m. No further details were given about these comments, nor was any evidence brought forth about any ramifications arising from these observations by the other employees. There was therefore no evidence adduced on the implications of any possible impact on the seniority rights of other employees. [82] Furthermore, Bell did not even demonstrate that Ms. Cole's request for an earlier shift end (up to an hour earlier) was unreasonable. The employer would not have been required to pay her a salary while she was absent as it would have been designated as PGU time off work. Moreover, the absence would have been at the end of the day. Ms. Cole testified that in her experience, there would usually be no more than one person on a work break at 3:45 p.m. More people were away from their stations at the lunch hour when Ms. Kustec was given her PGU time off to breastfeed her child. Bell's only evidence in this regard was a comment made by Ms. Long that it would be hard for her to say what the demands would have been when Ms. Cole made her requests. Ms. Long added that right now (i.e. in November 2006, when she testified), Bell has a real need for people from 4:00 to 5:00 and that lunch was never an issue. [83] In my view, Bell has not established on the balance of probabilities that in 2002, Ms. Cole's daily departure up to one hour before her ordinary shift end would have caused undue hardship to Bell. [84] I therefore find that Bell has not established the defence set out in s. 15(1) (a) and s. 15 (2) of the Act. [85] Since no other reasonable or satisfactory explanation or exemption has been established to rebut the prima facie case of discrimination, I find that Ms. Cole was discriminated against by Bell on the basis of her sex, within the meaning of s. 7 of the Act, and that her complaint has therefore been substantiated. F. What Remedies does Ms. Cole seek? (i) An order pursuant to s. 53(2)(a) of the Act [86] Ms. Cole is seeking an order, pursuant to s. 53(2)(a) of the Act, that Bell take measures to prevent the discriminatory practice that occurred in the present case from recurring in the future. She points out that Bell does not inform its female employees who are returning to work after their maternity leave of the possibility of requesting accommodation from the employer in order to breastfeed their children. Ms. Cole argues that had she been aware of her rights in this respect, she would have been more forceful in her request for accommodation by, for instance, not rescinding her initial request for PGU time off work. [87] As I have already noted, Bell acknowledges that it does not have any formal policy with regard to the accommodation of its employees who wish to breastfeed. The matter is dealt with on a case by case basis. Bell did not lead any evidence indicating that it provides any information to its employees relating to this form of accommodation at the present time. [88] In my view, Ms. Cole's request for this order is reasonable. Both Bell's management and its staff at large will stand to benefit from a greater understanding of their respective rights and obligations under the Act in relation to this particular issue. This could, in turn, prevent discriminatory practices similar to the present one from occurring in the future. [89] I therefore order Bell to take measures, pursuant to s. 53(2)(a) of the Act, in consultation with the Commission on the general purposes of the measures, to prevent the discriminatory practice cited in this case or a similar practice from occurring in the future. These measures shall include the establishment of a policy relating to requests by Bell employees for accommodation with regard to breastfeeding that is consistent with the findings in this decision. Bell employees, and particularly parents who are the most likely to be directly affected by the policy, should be made aware of the substance of the policy in an effective manner. (ii) Compensation for pain and suffering (s. 53(2)(e)) [90] Ms. Cole is asking that Bell be ordered to compensate her for the pain and suffering that she experienced as a result of the discriminatory practice. She is seeking the maximum amount available under s. 53(2)(e), $20,000. [91] Part of her claimed pain and suffering relates to her not obtaining up to an hour of PGU time at the end of her shift. By being compelled to leave her work no earlier than 4:00 p.m., she was only able to reach her son just before his next feeding, and about 12 hours after his last feeding. As a result, her milk tended to build up and eventually began to leak. She wore breast pads to try to prevent the leaks from appearing on her clothes. There was an odour associated with the leakage. She described the circumstances as humiliating for her. Ms. Cole acknowledged that leakage could occur at any time during the course of the day, but she claimed that the leakages were more frequent as the time for her son's next feeding neared. [92] Ms. Cole also testified that there were occasions towards the end of her shift when she was caught in a conversation with a customer that she could not immediately terminate. As a result, her return to her son would sometimes be delayed by up to 15 minutes. This delay would render her breasts even more engorged, which caused her some physical pain. [93] Ms. Cole also described how inconvenienced she felt at having to repeatedly return to her physician to obtain medical letters and reports to justify the accommodation she was seeking even though she was neither sick nor disabled. She also spoke of the angst and uncertainty she experienced when she learned, in May 2002, that the accommodation that had been provided to her until then would soon be ending, unless she could provide the medical evidence that would satisfy Bell and the DMG. [94] In addition, Ms. Cole explained the emotional pain and loss she felt at having to cease nursing her son in October 2002, following Ms. Blackall's remarks of September 27, 2002. I am not, however, persuaded that these remarks were the cause for Ms. Cole's decision to stop breastfeeding her child in October 2002. While it is true that Ms. Blackall's remarks are a reflection of Bell's ongoing failure to properly address Ms. Cole's requests, it should also be noted that Ms. Blackall never actually told Ms. Cole that her fixed shift ends would cease. Indeed, Ms. Cole was never assigned a shift ending beyond 4:00 p.m. after November 2002, and formally, Bell did not terminate the medical accommodation until February 2003. Ms. Cole must in fact have been aware or at least had a sense that Bell had not officially changed its position in this regard. This is apparent from the fact that on the three occasions in October and November 2002, when she was assigned some shifts that ended after 4:00 p.m., she immediately contacted Ms. Blackall, who promptly corrected the problem and made sure that her shifts would end by 4:00 p.m. [95] Ms. Cole acknowledged that it was always up to her to decide when to stop breastfeeding. Her child's paediatrician had merely advised her to continue for as long as she and her son were comfortable with it. [96] I am therefore not persuaded that Ms. Cole's decision to ultimately stop breastfeeding was so much associated with Ms. Blackall's notice as it was with her personal choice to bring the nursing to an end. Any pain and suffering that Ms. Cole may have as stemming from her decision to stop nursing her child in October 2002 is, in my view, too remote to be attributed to Bell's discriminatory conduct. [97] Finally, I cannot ignore the significant fact that from May 2001 until February 2003, when Ms. Cole left HVQ, she was never required to actually work any shift that was scheduled to extend beyond 4:00 p.m. There were a few occasions when, in order to achieve this result, Ms. Cole had to use her sick leave days or switch shifts with other employees, but the fact remains that she never worked a shift that was scheduled to end beyond 4:00 p.m. [98] Given all of these circumstances, I order Bell to pay Ms. Cole the sum of $5,000 as compensation pursuant to s. 53(2)(e) of the Act. (iii) Special compensation pursuant to s. 53(3) of the Act. [99] Ms. Cole seeks an award of special compensation pursuant to s. 53(3) of the Act. She alleges that Bell recklessly engaged in the discriminatory practice against her. By offhandedly refusing her request for as little as 15 minutes PGU time, without any further assessment of her situation, and in the second phase, mischaracterizing her situation as that of a disabled or ill employee and compelling her to return repeatedly to her physician, Bell acted recklessly. [100] According to Black's Law Dictionary, recklessness is present in conduct that evinces disregard of or indifference to consequences. The rendering of recklessly in the French version of the Act is inconsidéré, which would seem to contemplate conduct that is engaged in without any prior reflection (un manque de refléxion; qui n'a pas été considéré, pesé: Le petit Robert de la langue française - 2006). [101] In my view, the term in either language can be ascribed to Bell's discriminatory practice in this case. Ms. Long did not appear to have reflected on the consequences of her rather abrupt response to Ms. Cole's PGU request. Bell's subsequent decision to treat Ms. Cole's case as a medical matter was also taken without any consideration of whether breastfeeding should be treated in the same manner as a disability or illness in the first place. This decision gave rise to a number of unfortunate consequences for Ms. Cole, including the inconvenience of numerous unnecessary trips to her physician. [102] Section 53(3) states that compensation of as much as $20,000 can be awarded pursuant thereto. Taking into account all of the circumstances in this case, including the fact that Bell's discriminatory actions were not truly wilful nor malicious, I order Bell to pay Ms. Cole $2,000 as special compensation under s. 53(3). (iv) Lost income [103] Ms. Cole requests compensation for her lost wages arising from the discriminatory practice pursuant to s. 53(2)(c). This claim can be divided into three classes. The first relates to the occasions when she had to leave work without pay in order to meet her physician and obtain the medical notes and forms that the DMG had requested. The second form of claim is in regard to the time spent by her away from work to attend the hearing into her complaint as well as the two unsuccessful mediation sessions that preceded the hearing. Finally, she is also requesting compensation for the three days that she spent preparing for the hearing (one of which was a work day that she took as PGU time off without pay). [104] With respect to the first class of claim, I order Bell to pay Ms. Cole the wages that she lost while attending at her physician's office to obtain the requested medical notes and reports. [105] In respect of the other two types of claims, in my view, there is no evidence before me of any exceptional circumstances in this case that would justify awarding such damages (see Canada (A.G.) v. Lambie (1996), 124 F.T.R. 303, [1996] F.C.J. No. 1695 (F.C.T.D.); Woiden v. Lynn (2002), 43 C.H.R.R. D/296 (C.H.R.T.)). Ms. Cole's claims under these heads of damages are therefore dismissed. (v) Interest [106] Interest is payable in respect of the monetary awards 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, but given the relatively tardy filing of Ms. Cole's human rights complaint in relation to the discriminatory practice, the interest shall run from the date of the complaint's filing, April 14, 2004. (vi) Retention of jurisdiction by the Tribunal [107] The Tribunal will retain jurisdiction to receive evidence, hear further submissions and make further orders, with regard to any disputes or difficulties arising from the interpretation or implementation of the remedies ordered. Signed by Athanasios D. Hadjis OTTAWA, Ontario April 4, 2007 PARTIES OF RECORD TRIBUNAL FILE: T1114/9505 STYLE OF CAUSE: Hayley Cole v. Bell Canada DATE AND PLACE OF HEARING: November 14 to 17, 2006 November 20, 2006 Toronto, Ontario DECISION OF THE TRIBUNAL DATED: April 4, 2007 APPEARANCES: Hayley Cole For herself No one appearing For the Canadian Human Rights Commission Johanne Cavé For the Respondent

2007 CHRT 8

CHRT

Montreuil v. Canadian Forces

en

2007-04-05

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6513/index.do

2023-12-01

Montreuil v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2007-04-05 Neutral citation 2007 CHRT 8 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: April 5, 2007 Citation: 2007 CHRT 8 [1] When the hearing in this case resumed on March 26, 2007, the complainant filed a motion to amend the hearing schedule established during the hearing weeks of October and December 2006. This motion followed a letter that the complainant had sent to the parties, as well as to the Tribunal, on March 22, 2007, advising that such a motion would be filed. I. The position of the parties A. The complainant [2] The complainant’s motion is based on the fact that her situation has changed since the hearing schedule was set because she has been employed since December 11, 2006, at the Conseil de la justice administrative du Québec, a body monitoring the ethical conduct of about 500 administrative judges. [3] The complainant submits that it is impossible for her to be absent from her current employment for more than two weeks per month and that she would have to resign from her job if she were forced to be absent. Moreover, the complainant submits that, short of resigning from her job, she would only be able to be present before the Tribunal when her work schedule would so permit. [4] According to the complainant, the body that employs her cannot do without her for 6 or 7 consecutive weeks. In her arguments, the complainant claims that she makes up one-third of the body’s resources and that her absence would deprive six million potential litigants from Quebec of her services. [5] In a letter dated February 23, 2007, the complainant also states that she was not able to find a reasonable accommodation with her employer with regard to the continued periods of absence related to the hearing of this complaint. [6] The complainant is therefore asking the Tribunal to adhere to the Tribunal’s usual practice, namely a maximum of two weeks of hearing at a time (letter dated March 22, 2007). [7] That being said, at the hearing of March 26, 2007, the complainant however argued before the Tribunal that she was prepared to resign from her employment if the hearing of her complaint took place over two consecutive months. [8] Finally, the complainant informed the Tribunal that if there were federal elections, she was a likely candidate for the New Democratic Party. She would then have to be absent for an indeterminate period, namely for the period of the electoral campaign. The complainant argued that she could hardly imagine not being available to almost 85,000 constituents for the period of the electoral campaign. As for her job, the complainant pointed out that, under her collective agreement, she would be entitled to unpaid leave. B. The Commission [9] As for the Commission, it submits that the complainant’s request is aimed at accommodating her and that it is not capricious on her part, given the difficulties transgender persons have finding employment. [10] For the Commission, requiring the complainant to be present for four consecutive weeks is extremely difficult for her. Moreover, denying the complainant’s request would prevent her from fully participating in the hearing of her complaint. The Commission argues that the complainant has the right to be accommodated and reiterates that the Commission will make itself available, whatever the outcome. [11] At the hearing, the Commission did not make any concrete suggestion regarding the manner in which it proposed to resume the hearings if the Tribunal were to grant the complainant’s motion. C. The respondent’s position [12] For the respondent, the Canadian Armed Forces, amending the hearing schedule that has already been established is not something that can be envisaged. Rather, in this case, the complainant’s request is excessive and no evidence was heard justifying any amendment whatsoever to the hearing calendar. According to the respondent, the current schedule must be maintained, with the exception of minor changes. [13] The respondent argues that the amendment of the present schedule would be prejudicial to it just when it is ready to tender its evidence. The respondent states that its witnesses are called in a logical order and to change the order of the respondent’s witnesses would, at this stage, would be prejudicial. [14] Moreover, the respondent argues that changing the hearing schedule would have the effect of cancelling several weeks of hearings already scheduled. The respondent argues that the Tribunal, contrary to what the complainant alleges, must control the conduct of the hearing and determine the hearing dates while respecting the rights of the parties. It points out that the hearing schedule, as established, does not result from a decision by one of the parties, but from a consensus by all the parties. [15] According to the respondent, the complainant must accept the consequences associated with the hearing of her complaint and the undertakings made by counsel. It points out that the complainant’s multiple activities should not dictate the conduct of this case and the hearing schedule. [16] The respondent submits that this case should be closely and tightly managed and that the Tribunal must ensure that the hearings proceed in a reasonable manner. [17] The respondent therefore asks the Tribunal to maintain the present hearing schedule. II. Discussion [18] The Tribunal finds that the complainant is a very busy person. On top of her current employment, she is the Webmaster of the website for the Conseil de la justice administrative. As well, she teaches ethics at the Lévis Campus of the Université du Québec à Rimouski, she sits or sat on several committees or commissions, intends to be a candidate in the next federal elections. The complainant is also involved in litigation before the Tax Court of Canada and the Court of Appeal. Two cases are currently before the Tribunal where she is the complainant. [19] In this regard, the Tribunal is aware of the fact that the complainant is involved in a case scheduled to proceed before the Tribunal during the weeks of April 17 and 24, 2007. These dates were set once the dates in this case were known. The complainant’s acceptance of these dates makes it so that she has six consecutive weeks of hearings in April and May, a situation which does not appear to be acceptable to her employer. [20] Given her many activities and the new job that she has, the complainant argues that it would be preferable for her if the Tribunal were to sit for only two weeks each month. That would make it possible for her not to resign from her current employment. I would add, in passing, that there was no evidence submitted to the Tribunal to the effect that the complainant would be compelled to resign from her employment if the Tribunal did not grant her motion. [21] In this case, the Tribunal is aware that the actual hearing schedule places many constraints on the parties, as well as on the Tribunal. That being said, the Tribunal reminds the parties that the hearing dates in this matter were set, for the better part, in October and December 2006 with the consent of all the parties. Several days of hearings were then used to prepare the hearing schedule. Once the schedule was established, the Tribunal made the necessary arrangements to reserve hearing rooms in various places. The scheduling of the hearing dates in this matter also had an impact on the availability of the member to hear other complaints and set dates in other matters pending before the Tribunal. [22] In the current state of the case, four weeks of hearings are scheduled for May, five weeks of hearings in July and one week in October. Another week of hearing may be necessary in October so that, if need be, the complainant can tender evidence in reply. [23] Amending the current schedule at this stage of the proceedings as suggested by the complainant, when the respondent is about to tender its evidence, i.e. having a maximum of two weeks per month to accommodate her would involve: Cancelling two weeks of hearing in May and postponing them until July because the member is not available in June; cancelling the arrangements made to reserve hearing rooms; rescheduling the testimony of the respondent’s medical experts to July, irrespective of their availability; Postponing five weeks of hearing from the month of July to October and November, as the member is not available in August and September; cancelling the arrangements made to reserve hearing rooms; the uncertainty of the availability of the respondent’s expert witnesses at later dates; Postponing the testimony of Dr. Beltrami, scheduled for the week of October 22, 2007; Scheduling two weeks of hearing in October for the resumption of the respondent’s evidence; Scheduling two weeks of hearing in November for the resumption of the respondent’s evidence; Scheduling two weeks of hearing in December: one week for the respondent to close its evidence and one week to hear Dr. Beltrami’s testimony in the context of the Commission’s evidence; Scheduling another week of hearing in January for the complainant to possibly tender evidence in reply. [24] As a matter of fact, a change to the current schedule as initially proposed by the complainant, who has finished tendering her evidence, would mean that the respondent would be compelled to adduce its evidence over a period of eight months, i.e. from May to December 2007, while according to the current schedule, the respondent’s evidence would be closed at the beginning of August. In the Tribunal’s opinion, this would not serve the interests of justice and would prejudice the respondent which, at this stage of the proceedings, has had the presence of its witnesses, both ordinary and expert, secured for some time. [25] At the hearing, the complainant, even though she proposed that the hearings be limited to two weeks a month so that she does not lose her job, as she submits, argued nevertheless that she was prepared to resign from her job if the hearings took place over a period of two consecutive months. [26] To ensure that the hearing of this complaint proceeds properly, one party cannot simply propose a new modus operandi without specifying the ins and outs and leave the determination of a new hearing schedule to a later date, without regard to the availability of the member, counsel, and witnesses. The sound management of a hearing does not permit this. [27] The complainant was aware of the hearing schedule currently in effect when she accepted her new job. In December 2006, when the complainant got her new job, she should have informed her employer of the state of the judicial proceedings before the Tribunal and the time required to deal with them. [28] The Tribunal is prepared to accommodate the parties insofar as the party’s request is reasonable and the proposed alternatives are viable. The alternatives proposed by the complainant in this case, i.e. two consecutive months of hearing or two weeks of hearing per month, are not reasonable at this stage of the hearing of her complaint. [29] In this case, the parties have the duty to respect the undertakings that were made, on an informed basis, with regard to how this case will proceed. [30] Finally, it is important to note that once the respondent’s evidence is closed, there will still be several days of hearing for which the schedule has not yet been determined, if only for Dr. Beltrami’s testimony during the week of October 22, 2007. [31] With regard to the continuance of the hearings in this case, the parties will in due course be able to make all of the submissions they deem worthwhile. For now, the schedule already established must be observed. III. Decision [32] For the considerations stated above, the complainant’s motion to amend the existing hearing schedule is denied. The hearing will therefore resume, as scheduled, on April 30, 2006, and the hearings shall proceed according to the hearing schedule already sent to the parties. Signed by Pierre Deschamps Tribunal Member Ottawa, Ontario April 5, 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: April 5, 2007 Appearances: Micheline Montreuil, for herself Ikram Warsame, for the Canadian Human Rights Commission Guy Lamb and Pauline Leroux, for the Respondent

2007 CHRT 9

CHRT

Gaucher v. Canadian Armed Forces

en

2007-04-12

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6511/index.do

2023-12-01

Gaucher v. Canadian Armed Forces Collection Canadian Human Rights Tribunal Date 2007-04-12 Neutral citation 2007 CHRT 9 File number(s) T903/2304 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content ALETA GAUCHER Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN ARMED FORCES Respondent RULING 2007 CHRT 9 2007/04/12 MEMBER: Athanasios D. Hadjis [1] On March 30, 2007, Ms. Gaucher sent a letter to the Tribunal seeking an adjournment of the hearing, which had been scheduled to resume on April 16, 2006, in Edmonton. As she stated in her letter dated March 30, 2007, the reason for her request was that she had yet to find a lawyer to represent her. [2] On April 5, 2007, Ms. Gaucher was informed that I had denied her request and that the reasons for my ruling would follow. [3] In the meantime, before I issued my reasons, Ms. Gaucher sent an e-mail message to the Tribunal, on April 11, 2007, in which she indicated that since she had not been granted a further adjournment, she had no choice but to discontinue her action. As of the date and time when I am signing this present ruling, the Tribunal has yet to receive a more formal request to withdraw the complaint. [4] Whether or not such a request will be forthcoming, I believe that it is still necessary for me to set out my reasons for refusing Ms. Gaucher's most recent request for a postponement of the hearing into her complaint. [5] Ms. Gaucher filed her complaint with the Canadian Human Rights Commission on June 16, 1998. The Commission in turn referred the complaint to the Tribunal for inquiry on February 26, 2004. Since the referral, Ms. Gaucher has been represented by two different lawyers, the last of which she dismissed on November 1, 2006. By this point, the Tribunal had heard evidence over a total of almost three weeks. The first two weeks of hearings were conducted in Edmonton and the third week in Halifax. Ms. Gaucher had not closed her case by then, but it would appear that most of her intended witnesses had already testified. [6] When Ms. Gaucher notified the Tribunal that she had dismissed her lawyer, she requested an adjournment of the hearing, which was at that time scheduled to continue for a little over two weeks, commencing on December 7, 2006. The Tribunal was also scheduled to hear the evidence of one witness by video conference, on November 28, 2006. On November 3, 2006, a case management conference call was conducted, to deal in part with the adjournment request. The Tribunal granted the adjournment, but informed the parties in clear and unambiguous terms that the case would proceed on the next scheduled hearing dates, irrespective of whether the Complainant had managed to retain legal counsel by then or not. [7] The parties informed the Tribunal that they were available to continue the case in April, and consequently, the Tribunal scheduled hearing dates for a two-week period beginning on April 16, 2007, to take place in Edmonton. [8] A number of case management conference calls took place regularly in the months thereafter. On each such occasion, Ms. Gaucher explained that she had still been unable to find another lawyer to represent her in this case. I informed her that whatever the outcome of her search, I expected her to proceed, with or without counsel, when the case resumed in April. [9] During the case management conference call that was conducted on March 29, 2007, Ms. Gaucher reiterated that she had yet to find new counsel and asked the Tribunal for another adjournment. As was noted in a follow up letter from the Tribunal, I directed that given the number of postponements that had already taken place in this matter (three postponements prior to the start of the hearing and another postponement when Ms. Gaucher dismissed her legal counsel in November 2006), the hearing could not be delayed any further. I instructed Ms. Gaucher to arrange to call her witnesses for the April hearing dates. I also informed her that if, as she indicated, one of her witnesses resided in Manitoba, arrangements could be made to have her testify by video conference. [10] On March 30, 2007, Ms. Gaucher sent a letter to the Tribunal again requesting an adjournment. It is this last request that I am addressing in this ruling. She has basically asked me to revisit my earlier decision. I see no reason to change it. She cited certain difficulties that she has had obtaining approval for Legal Aid funding. She also indicated that her prior legal counsel withheld her file for a number of months, although I note from her letter that she apparently only attempted to retrieve the file on January 26, 2007, almost three months after she dismissed her lawyer. [11] Ms. Gaucher claimed in her letter that she was unable to make arrangements to have some of her witnesses testify during the upcoming hearing dates because she was not in possession of her file, which included the list of potential witnesses that her legal counsel had prepared as part of the Tribunal's documentary disclosure process. Yet, on February 6, 2007, the Tribunal sent her a copy on CD of all the correspondence in the Tribunal case file, including her former counsel's Statements of Particulars, which contained the witness lists. Ms. Gaucher pointed out that the CD was sent to her old address and delivery was therefore delayed. She had not, however, informed the Tribunal of her new address. [12] The Respondent, for its part, does not consent to this most recent adjournment request. Respondent counsel refers to the prejudice caused to it by the significant time and expense that is wasted each time counsel and witnesses are required to prepare for resumption of a hearing that is adjourned. She points out that there is a public interest in the timely conclusion of discrimination complaints. [13] Indeed, proceedings before the Tribunal are to be conducted as informally and expeditiously as the requirements of natural justice and the rules of procedure allow (s. 48.9 of the Canadian Human Rights Act). In my view, to require Ms. Gaucher to complete her case at this stage, some nine years after she filed her complaint, three years after it was referred to the Tribunal, and three weeks into her evidence, after four prior adjournments, would not be in breach of the requirements of natural justice. Ms. Gaucher acknowledged during the conference calls that she was having great difficulty finding a lawyer who would be willing to take up her file at this stage of the case and who was familiar enough with human rights law to take on the responsibility. Given these circumstances, there does not appear to be any reasonable expectation of Ms. Gaucher's finding a lawyer in the foreseeable future. [14] In my view, to allow Ms. Gaucher to delay her case for what amounts to an indefinite period, without any resolution, would be unfair and unacceptably prejudicial to the Respondent. At some point, all parties must complete their cases. It is perhaps unfortunate that the Complainant has been unable to retain legal counsel, but this concern is outweighed by the unfairness to the other party of allowing this matter to remain unfinished, halfway through the evidence, while the Complainant continues to search indefinitely for a lawyer. [15] These are the reasons for which I turned down Ms. Gaucher's latest request for an adjournment. Signed by Athanasios D. Hadjis OTTAWA, Ontario April 12, 2007 PARTIES OF RECORD TRIBUNAL FILE: T903/2304 STYLE OF CAUSE: Aleta Gaucher v. Canadian Armed Forces RULING OF THE TRIBUNAL DATED: April 12, 2007 APPEARANCES: Aleta Gaucher For herself No one appearing For the Canadian Human Rights Commission Doreen Mueller Peter Barber For the Respondent

2008 CHRT 1

CHRT

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

en

2008-01-09

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6835/index.do

2023-12-01

Center For Research-Action on Race Relations v. www.bcwhitepride.com Collection Canadian Human Rights Tribunal Date 2008-01-09 Neutral citation 2008 CHRT 1 File number(s) T1120/0206 Decision-maker(s) Hadjis, Athanasios Decision type Decision Decision Content CENTER FOR RESEARCH-ACTION ON RACE RELATIONS Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - WWW.BCWHITEPRIDE.COM - and - JOHN BECK Respondents DECISION 2008 CHRT 1 2008/01/09 MEMBER: Athanasios D. Hadjis I. PRELIMINARY ISSUES II. DECISION III. SECTION 13 OF THE ACT IV. WHAT ARE THE IMPUGNED MESSAGES IN THIS CASE? (i) The Immigration link (ii) The Media link (iii) The Jews link (iv) The Canadian Politics link (v) The Struggle at a Glance link (vi) The Racial Health link (vii) The Solutions link V. ANALYSIS A. Is the material likely to expose members of the targeted groups 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, within the meaning of s. 13(1)? (i) How does the material expose non-white persons to hatred or contempt? (ii) How does the material expose Jews to hatred or contempt? (iii) How does the material expose the disabled to hatred or contempt? (iv) Conclusion: The material is likely to expose the targeted groups to hatred or contempt B. Were the communications made repeatedly, within the meaning of s. 13 of the Act? C. Who communicated the impugned messages? (i) Did John Beck communicate the impugned messages? (ii) Did bcwhitepride.com communicate the impugned messages? VI. REMEDIES A. An order that the discriminatory practice cease (s. 54(1)(a)) B. Penalty (s. 54(1)(c)) C. Witness fee [1] The Center for Research-Action on Race Relations (CRARR) has filed the present complaint alleging a breach of s. 13 of the Canadian Human Rights Act. The complaint was filed against the person or persons directly responsible for the website www.members/odinrage.com/bcwhitepride.com/immigration.htm, also known as BCWhitePride.com. CRARR claims in the complaint that the website incited discrimination, hate and other violations of the right to equality and dignity of persons because of their race, ethnic or national origin, religion, disability and immigrant status, among others. I. PRELIMINARY ISSUES [2] On January 24, 2006, the Canadian Human Rights Commission (Commission) referred the complaint to the Tribunal. Prior to the commencement of the hearing, the Commission moved to amend the style of cause of the complaint to add as respondent parties John Beck, www.bcwhitepride.org, as well as two groups known respectively as BC White Pride and White Renegade. [3] On May 18, 2007, Tribunal Member Pierre Deschamps issued a preliminary ruling on the Commission's motion, allowing John Beck to be added as a party to the proceedings (Center for Research-Action on Race Relations v. www.bcwhitepride.com, 2007 CHRT 20). However, Member Deschamps denied the request to add the White Renegade group as a party. With respect to the BC White Pride group and www.bcwhitepride.org, he ordered that they be served with the ruling so that they could, in due course, make submissions on the Commission's motion to add them as parties. At the opening of the hearing into the complaint, I found that the Commission had not served the ruling on these two potential parties. Consequently, I ruled that the complaint would not be amended to include them. [4] As a result, the hearing on the merits of the complaint proceeded solely against www.bcwhitepride.com and John Beck. The Commission was the only party represented by legal counsel at the hearing. CRARR's Executive Director, Fo Niemi, appeared on behalf of the Complainant. Mr. Beck was present at the hearing assisted by Paul Fromm, who is not a lawyer. Mr. Fromm acted as Mr. Beck's agent. He made an opening statement, posed questions to witnesses, and led final arguments on behalf of Mr. Beck. No one appeared on behalf of www.bcwhitepride.com. II. DECISION [5] For the reasons set out below, I have determined that the complaint regarding Mr. Beck is substantiated. With respect to www.whitepride.com, however, I have concluded that this is merely the Internet address of a website and not a person or group of persons within the meaning of s. 13 of the Act. Consequently, the complaint as against www.whitepride.com has not been substantiated. III. SECTION 13 OF THE ACT [6] In order for a complaint under s. 13(1) to be substantiated, it must be established that 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, was communicated telephonically or caused 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, by a person or group of persons acting in concert. [7] Prohibited grounds of discrimination include race, national or ethnic origin, colour, religion, and disability (s. 3). IV. WHAT ARE THE IMPUGNED MESSAGES IN THIS CASE? [8] Mr. Niemi testified that CRARR is an independent, non-profit organization based in Montreal, having as its mandate the promotion of racial harmony and equality within Canadian society. Its activities include conducting research, organizing conferences and seminars, and providing training regarding diversity management or dealing with discrimination. CRARR also provides individual assistance and representation to persons who believe they have been discriminated against because of their race, religion, ethnicity or other related grounds. [9] CRARR regularly receives correspondence from members of the public bringing to its attention matters of interest. In May 2003, an email was sent to CRARR suggesting that it look into a website called bcwhitepride.com. Mr. Niemi and his colleagues at CRARR viewed the site and came to the opinion that it violated s. 13 of the Act. They therefore took steps to advise the Commission of the website's existence and file the present human rights complaint. [10] Mr. Niemi testified that at the time when the complaint was filed (March 23, 2004), the material was viewed on a website the home page of which had a rather complex address: http://members.odinrage.com/bcwhitepride. Mr. Niemi referred to this website as bcwhitepride.com. By September 2004, several months after the complaint had been filed, the material that was found at this web address had been transferred to a website located at http://www.bcwhitepride.org. The text from the pages that Mr. Niemi had viewed on the original site had been carried forward unchanged to the new site, but a few slight modifications had been made to the appearance of the pages (such as text fonts and table formatting). The Commission and CRARR contend that the .com website was merely transformed to the .org website and that Mr. Beck communicated the impugned messages through the use initially of the bcwhitepride.com website and subsequently via bcwhitepride.org. [11] The website (at both Internet addresses) had a home page with a greeting welcoming visitors to the site. It set out some of the themes that were addressed within the site's other pages, by stating the following (all the excerpts from the website that I have included in this decision are reproduced without any corrections to typographical, grammatical and other errors): Welcome to BC White Pride! There's a bold new movement being championed in British Columbia focused specifically on educating White people regarding issues of concern such as immigration, media control, demographics, higher education and cultural degradation. The proud men and women of BC White Pride have made an informed and deliberate decision to join together to combat the premeditated decline of our people. We are men and women of European descent that stand for the preservation of our race, heritage and culture for future generations. We are deeply concerned with the current trend of immigration from non-White countries into both Canada and our beloved European homelands. We aim to expose the obvious monopoly of our media by the Jews who foment an agenda of liberalism, political correctness, multicultism and race mixing culminating in the breakdown of morality and family values in our proud culture. Moreover, we are frustrated with governmental policies that no longer serve the best interests of White people, the erstwhile founders of this great nation and so many others around the world. We hope to educate you to the facts that the Jewsmedia is not telling you, and to request assistance from you to help secure the existence of our people and a future for White children. This opening text was then followed up by the following passage: Did you know? People of unmixed European descent now consist of only 8% of the world's population! Only 2% of the world's population are white females within child bearing age or younger! Abortion rates and the elevated use of birth control among Whites combined with the fact that less White families are having children has put the white birthrate below replacement levels worldwide! Miscegenation (race-mixing) is at all time high in all White cultures and is being aggressively promoted by the Jewsmedia like there's no tomorrow, literally! Third world immigration, if left unchecked, will render North America, Europe and Australia with a non-White majority by the turn of the next century! Listen to the call of your once proud people! Help us make the country a better place for White families... [12] On the left side of the page was a column listing a number of topics, which are in fact links to the other pages of the website. By clicking on the topic, the related page opened for the reader. The column remained visible on each of the website's pages, enabling the visitor to access the other pages by clicking on the link at any time, without having to return to the home page. The column contained the following links: Immigration The Media The Jews Canadian Politics The Struggle at a Glance Racial Health Solutions (i) The Immigration link [13] The Immigration link brought the reader to a page containing a commentary entitled Canada's Failed Immigration Policy. The main premise of the commentary is that while Canada's immigration policy traditionally favoured hard-working people of European stock, the 1960's saw the rise of a tumultuous generation hellbent on undermining the traditional values of Canada. [14] The text relies upon figures released by Statistics Canada to support its conclusions. For instance, it is put forward that Canadian immigration policy now favours Asians over immigrants from all places of birth combined, based on the Statistics Canada figure that the origin of 53.2% of all persons immigrating to Canada in 2000 was identified as Asia and Pacific. The commentary goes on to posit that the reason for this calamity is that family class immigrants constitute 60% of all immigrants, arguing that Asians are displacing the founding race of this country at an alarming pace, specifically when we allow them to bring in family members from Third World nations. On the other hand, highly qualified European workers are forced to proceed through the rigours of the points system, which assesses official language proficiency and compares an applicant's occupational history with the list of underrepresented occupations in Canada. [15] Elsewhere in the commentary, figures are cited, which purportedly demonstrate that almost 22% of immigrants to British Columbia between 1961 and 1996 came from either the People's Republic of China, Taiwan or Hong Kong. This statistic prompts the text's author to state, Perhaps it's time to rename the province Chinese Columbia. The article then goes on to recount the efforts made in British Columbia at the start of the 20th century to prevent the entry of Asian immigrants. The article includes the following lyrics to a song that was supposedly sung in 1907 by opponents to the entry of Asians: Then let us stand united and tall, and show our fathers might that won the home we call our own, for the white man's land we fight! To the Oriental grasp and greed we'll never surrender, no never! White Canada forever! The article follows this excerpt with the comment, If only we possessed the collective courage of our founding forefathers. [16] The article concludes with the assertion that the premeditated extinction of Europeans in our great land is under way and that the immigrants who have come to Canada will continue to reap the fruits of our labour until our people are rendered a minority in our own land. The final sentence on this web page states, We must secure the existence of our people and a future for white children! (ii) The Media link [17] Mr. Niemi testified that when he initially visited the bcwhitepride.com website in 2003, clicking on this link did not result in his being redirected to another webpage. However, when he visited the website after its content had been moved to the new address (bcwhitepride.org), he was redirected to a page entitled Media Control in North America when he clicked on the Media link. [18] The article on this web page asserts that the television, filmmaking and other mass media industries in North America, are in reality [...] absolutely dominated by one group of people that clearly have an agenda that is not representative of the best interests of the majority White population. The commentary goes on to explain that these all-powerful masters of the media are Jews to a very large extent, and that the preponderance of the Jews in the media is so overwhelming that we are obliged to assume that it is due to more than mere happenstance. [19] The article then proceeds to set out the media outlets owned by the Asper family in Canada as well as to provide a list setting out the names of dozens of Jewish US Media Moguls. It takes the view that Jewish media control determines the foreign policy of the United States and permits Jewish interests rather than American interests to decide questions of war and peace. The article concludes as follows: It would be intolerable for such power to be in the hands of any alien minority, with values and interests different from our own, but to permit the Jews, who have historically held us with such contempt, to hold such power over us is tantamount to race suicide. Indeed, the fact so many White People today are so filled with a sense of racial guilt and self-hatred that they actively seek the death of their own race is a deliberate consequence of Jewish media control. Once we have absorbed and understood the fact of Jewish media control, it is our inescapable responsibility to do whatever is necessary to break that control. We must shrink from nothing in our quest to overthrow this insipid power that we have subconsciously allowed to enslave our minds. If we fail to destroy this loathsome beast, it will erode at the very foundations of our race and destroy us from within. (iii) The Jews link [20] As in the case of the Media page, Mr. Niemi was unable to view this web page in 2003, but when the website moved to the bcwhitepride.org internet address, the link became functional. The internet address of the actual page that Mr. Niemi was redirected to when he clicked on The Jews was http://bcwhitepride.org/juden.htm. The title of the article found thereon was A Brief History of the Jews. [21] The text challenges the general consensus of the public that centuries of persecution directed against the Jews should earn them `victim' status, and proposes that to really understand why the Jews have been persecuted, we must briefly look at their history in a nutshell. The article then proceeds to document in detail statements made and actions taken regarding Jews, throughout history. There is discussion in the article of the role Jews have played with regard to the `art' of usury, the foundation of communism, and in the establishment of international financial control run by ultrawealthy Jewish families that bought out Gentile companies and banks through legal, if unethical practices. [22] In its conclusions, the article expresses concern about how Jews are employing their vast power and their unchallenged control of almost every walk of life. It is stated that white nations are being manipulated and controlled by the Jews, and that it is in the Jews' best interest to protect themselves from those that understand their role in history and contemporary society by introducing the notion of White guilt for their persecution, through the controlled media and educational institutions. In the end, it is argued, it comes down to the destruction of White identity and nationalism. (iv) The Canadian Politics link [23] This web page consists of a commentary regarding the Liberal Party of Canada and the Canadian Alliance/Reform Party. The article described the Liberal Party's bending over backward to pander to racial minorities at the expense of the White majority as a disturbing trend, which was reflected in the appointment of Adrienne Clarkson (an immigrant from Hong Kong) as Governor General. Her husband, John Ralston Saul, is referred to as a race traitor. Prime Minister Jean Chretien is criticized for having appointed Rey Pagtakhan (a recent Filipino immigrant) and Hedy Fry (a non-white immigrant from Trinidad) as ministers. Efforts by the Liberal government of the time to stiffen sentences on hate crimes, launch national youth programs to fight racism and establish a national strategy to fight hate and bias activities, are criticized as constituting a Liberal campaign to undermine White society. [24] The efforts by the Canadian Alliance Party to become more politically inclusive are also criticized. The party is accused of having been infiltrated by multicultists at the upper echelon. It is highlighted that the son of the party's former leader, Stockwell Day, married a Filipino woman. Mr. Day is criticized for having even used his multiracial grandchildren in his campaign advertisements. The article concludes that the Alliance Party's liberal stances on many issues have attracted many South Asian, East Asian and Jewish representatives. Consequently, race conscious White Canadian voters have no real alternatives at the voting booth, and they must therefore take a revolutionary third position and look beyond the conventional political system to solve their problems. (v) The Struggle at a Glance link [25] This web page purports to contain a list with short descriptions of the largest and most influential factions that have emerged since the ideological overthrow of traditional racialist organizations like the American Nazi Party and the Ku Klux Klan (KKK). The article explains that these factions began after the golden age of the Ku Klux Klan. The reader is put on notice that the men and women of BC White Pride have elected not to affiliate with any groups listed and that these groups do not necessarily represent the interests or objectives of BC White Pride. [26] The list includes references to websites operated by these groups, referring to one such site as useful...for newcomers to the movement who wish to network and who seek education relating to prominent Canadians involved in the racialist struggle. Another of these websites is described as a great electronic meeting place for race conscious White people from all corners of the globe. (vi) The Racial Health link [27] The objective of this web page, according to its introductory paragraph, is to outline important issues relating to the tragic demise of White racial health on a global scale. The article is divided into three segments entitled respectively IQ and Race, Abortion and Race, and Euthanasia and Race. [28] The first section, IQ and Race, argues that many social evils, such as chronic unemployment, long term welfare dependency, crime, single motherhood, and poverty, would be reduced if the intelligence of the population could be increased. This is unlikely to occur, it is claimed, because the genetic component of intelligence is allegedly deteriorating through a process called dysgenisis, which results from the tendency of the most intelligent classes to have fewer children and through the large scale immigration of those with low intelligence. [29] This process is said to be accelerated in multiethnic societies, where certain minority groups with a lower level of intelligence have higher fertility rates than Whites. Blacks, it is asserted, have a significantly lower level of intelligence than Whites and Asians and this contributes to the over-representation of Blacks with respect to the social pathologies of poor educational attainment, single motherhood, crime, etc. Thus, concludes this section of the article, as the cognitive underclass continues to outbreed the intellectual elite in White nations across the globe, the average IQ of White societies will continue to fall. This will precipitate the decline of the great civilizations that our ancestors fought so hard to build. Only a society that aggressively controls immigration and encourages the adoption of fertility policies conducive to the improvement of its genetic stock can reverse dysgenis. [30] The Abortion and Race section of the article takes issue with policies that allow abortion on demand. It holds out that, more often than not, it is a potentially healthy, productive White baby that is aborted. As a result, the text goes on to say, abortion on demand is counterproductive in White nations specifically because our birth rate has fallen below replacement levels. Thus, White nations are unable to maintain a stable population base. [31] The article does not, however, argue for the prohibition of abortion in all cases. The criteria for aborting a foetus should depend primarily on considerations relating to the potential net gain or profit that the resulting individual will have on our society as a whole. It suggests that abortion be available with respect to non-White foetuses, given the well-documented differential IQ levels between races and that, on the whole, non-White foetuses have a negative aggregate genetic impact on our society. The article also supports abortion in situations where the foetus is deformed and will be born with a severe mental and/or physical disability. [32] This leads to the thesis of the article's third segment, Euthanasia and Race, which asserts that severely retarded and brain damaged do not qualify as net contributors to society, but [are] a tragic drain on their families and society as a whole. Advocates for the disabled are criticized for equating rights of even the most severely retarded person with those of the cognitive elite. Such disabled persons should be euthanized, it is argued, and this in turn will have an impact on the racial issue because white couples who are enslaved by severely disabled children are less likely to have more white children. The article condemns the fact that contemporary abortion laws allow the premeditated murder [of] a potentially healthy productive White foetus, while it is illegal and punishable by life sentence to kill a severely retarded or brain damaged person who needs constant care at taxpayers' expense for the duration of their pointless lives. In addition, the article posits that if the funds currently misappropriated to care for the severely disabled were spent providing tax breaks to large families, White people would be encouraged to have more, healthy children. In making its points on this issue, the article refers to the severely disabled as parasites, incognizant primates, and genetic throwbacks. [33] In short, the article concludes, policies aimed at reducing the natural inequalities between individuals and peoples are not only counterproductive, but wasteful considering the bell curve of attributes naturally occurring in any biological population. Equality, it is argued, is a myth propounded by those who would seek to dissuade us from our instinctual prerogative to cull the lesser beasts from the herd. (vii) The Solutions link [34] This article purports to offer some answers to readers who may be wondering what they can do to help their struggling race. One of the suggestions is to cease relying on television and the print media for information. Instead, doing one's own research on the Internet is recommended. It is claimed that more truth can be found through an independent investigation on the worldwide web than on television or in your daily Jewspaper. [35] Another proposed solution is to spread our message of hope and assist us in re-educating Whites who have succumbed to the ideologies propageated by the controlled media. This can be achieved, it is suggested, by approaching friends whose frame of mind might be compatible with the objectives of our cause. The reader is also encouraged to print out several flyers, which were available and could be viewed on the website, for legal distribution in libraries, educational institutions and parking lots. [36] The Commission entered into evidence two of these flyers. The first is in the form of a missing person bulletin. It contains a photo of a young, white girl. The caption accompanying the photo states the following: MISSING A Future For White Children! Description: Blonde, red or brown hair, fair skin, innocent, inquisitive, intelligent, trusting personality. Ultraliberal politicians and minority special interest groups have abducted her future. There will be no future for her in the Multicultural Canada that our government has planned. Lets take back our country and make it great, clean, decent and beautiful again for our children's sake. The Men and Women of BC White Pride want you to join in this great and patriotic effort. Join BC White Pride Today! Help us make this country a better place for White families. www.bcwhitepride.com [37] The second flyer contains a photo of a white mother with three white children. The title at the top of the page states BC WHITE PRIDE. A caption around the photo reads, We must secure the existence of our people and a future for white children. At the bottom of the flyer, appears the following text: Don't you think our heritage and way of life are worth preserving? Join BC White Pride Today! Help us make this country a better place for White families www.bcwhitepride.com [38] In the left and right margins of the flyer, one can view eight short messages. Only a portion of these messages is visible on the printout that was entered into evidence. One of the messages appears to say, White birthrates are well below replacement level, while non-white birthrates are at an all time high. Another states, At the turn of the next century, most White countries will have a White minority, while another says, Our media is virtually controlled by a small group of people that do not have the best interests of the White population in mind. V. ANALYSIS A. Is the material likely to expose members of the targeted groups 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, within the meaning of s. 13(1)? [39] In Nealy v. Johnston (1989), 10 C.H.R.R. D/6450, the Canadian Human Rights Tribunal found that the term 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. The Tribunal added that contempt suggests looking down upon or treating as inferior the objects of one's feelings. The two terms are not necessarily co-extensive. In some instances, hatred may be the result of envy of superior qualities such as intelligence, wealth and power, which contempt, by definition, cannot be. [40] The Nealy Tribunal 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 of the communication 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. [41] These findings were later endorsed by the Supreme Court of Canada in Canada (Human Rights Commission) v. Taylor, [1990] 3 S.C.C. 892. The Court added that the terms hatred or contempt in s. 13(1) refer to unusually strong and deep-felt emotions of detestation, calumny and vilification. [42] I find that the articles posted on the bcwhitepride.com and bcwhitepride.org websites contain matter that is likely to expose members of the targeted groups to hatred or contempt, within the meaning of s. 13(1), as interpreted in the jurisprudence. [43] The material purports to represent the views of those who are championing the cause of the proud men and women who have come together to combat the premeditated decline of people of European descent. But in advancing these views, non-Whites and the disabled are treated as persons whose value and contributions to society is less than white peoples'. Jews, meanwhile, are represented as a powerful menace to society, responsible for many of its evils. In short, anyone other than the we whose interests the website purports to defend is treated with extreme hatred or contempt. (i) How does the material expose non-white persons to hatred or contempt? [44] As the Commission persuasively argued at the hearing, the comments that expose non-Whites to hatred or contempt within the material were both specific and generalized. It is specifically asserted in the Racial Health article that Blacks have a significantly lower level of intelligence than Whites or Asians and that this contributes to the over-representation of Blacks with respect to social pathologies of poor educational attainment, single motherhood, crime, etc. Blacks are referred to as the cognitive underclass. These statements look down upon Blacks and treat them as inferior. Furthermore, the comments link Blacks' supposed lack of intelligence with social pathologies like crime. As the Tribunal in Warman v. Kouba, 2006 CHRT 50 (Kouba), noted at paragraphs 45-6, blaming current societal problems on a targeted group is a hallmark of hate messages. [45] In a more general way, Whites are presented as superior to, and more valuable than, other races. Thus, abortion of white foetuses is viewed as undesirable whereas it is acceptable with respect to others. Non-white foetuses are said to have a negative aggregate genetic impact on our society and therefore efforts should be made to encourage their abortion. This assessment strongly suggests that the lives of black persons are essentially valueless and thereby treats them with extreme contempt. [46] This matter of the inferiority of non-Whites is reiterated in the material's repeated references to immigration in Canada. Non-Whites are portrayed as undesirables whose entry into the country is a calamity that must be restricted. The Immigration article reminisces fondly back to an era in Canada when Asian immigrants were treated as second-class and when there were calls to fight for the white man's land to free it from the Oriental grasp and greed. This theme of a racial fight or war against the onslaught of non-Whites is reinforced with allusions to white people being under siege, fearful for the extinction of Europeans. Those who encourage the progress of non-white immigrants within Canadian society are criticized. Those who associate closely with non-white immigrants are vilified and called race traitors. Statements calling for the once proud people to rise up and, as the flyer entitled Missing asserts, take back our country, resemble a call to arms. As the Tribunal in Kouba, supra, noted, at paragraphs 76-7, appeals for violent action to be taken against a targeted group is another hallmark of hate messages. [47] The message in the Missing flyer is that a society that is accepting of multiculturalism ceases to be great, clean, decent and beautiful, and becomes a society in which the future of white children is threatened. This preoccupation with the future of white children reinforces the notion that the presence of non-Whites puts the well-being of white children in jeopardy. The suggestion being conveyed is that Whites should develop deep-felt emotions of detestation to those who will supposedly undermine and attack the well-being of white Children, i.e. non-Whites. The portrayal of a targeted group as preying upon children or other vulnerable persons has been identified in s. 13 related jurisprudence as another telltale sign of hate messages (see Kouba, supra at paras. 40-1). (ii) How does the material expose Jews to hatred or contempt? [48] The Tribunal in Kouba, supra, at paras. 24-5, pointed out that one of the hallmarks of hate messages, as developed in the growing body of s. 13 jurisprudence, is the portrayal of a targeted group as a powerful menace that is taking control of society's major institutions and depriving others of their livelihoods, safety, freedom of speech and general well-being. This is precisely the way that Jews are presented throughout the website. [49] The Jews article, for instance, argues that Jews use their vast power and their unchallenged control of almost every walk of life to manipulate and control White nations, as a result of which White identity and nationalism is being destroyed. There are numerous references to the purported Jewish control of mass media throughout the material, including the use of fabricated words like Jewsmedia and Jewspaper. To permit Jews to hold such power over us, states the Media article, is tantamount to race suicide. Jews are thus portrayed as a real and dangerous threat to Whites. What is particularly disconcerting is that the material appears to call for concrete, or even violent action, to overthrow this insipid power and destroy this loathsome beast, which is eroding at the very foundations of our race and will destroy us from within. [50] These statements clearly impart unusually strong emotions of detestation and vilification towards Jews. They create conditions in which hatred and contempt toward Jewish people can flourish by encouraging the public to resent Jews for being manipulative and menacing to the interests of others, and generally for failing to possess any redeeming qualities (see Smith v. Western Guard Party, 1979 CanLII 1 (C.H.R.T.); Citron v. Zundel (2002), 41 CHRR D/27 at paras. 139-40). [51] One also finds in the impugned material the use of ostensibly true stories and facts, such as those allegedly linking Jews with the development of objectionable activities like usury and communism, in order to make negative generalizations, a practice which has been found likely to expose members of the targeted group to hatred or contempt (see Kouba, supra, at paras. 30-2). [52] In addition, contempt towards Jews is demonstrated in the dehumanizing manner with which their persecution is portrayed. Jews are presented as having brought anti-Semitism upon themselves. The victims are effectively blamed for the discrimination that they have experienced and in so doing, the effect of the discrimination is downplayed. It has been held that the trivialization of past persecution or tragedy creates a climate of derision and contempt that is likely to expose members of the targeted group to these emotions (see Kouba, supra, at paras. 72-5). (iii) How does the material expose the disabled to hatred or contempt? [53] The material found in the Euthanasia and Race article unquestionably exposes disabled people to hatred or contempt. To begin with, people with severe mental or physical disabilities are treated with extreme contempt through the use of highly inflammatory and derogatory language, which portrays them as greatly inferior to the cognitive elite (see Kouba, supra, at para. 67). They are branded as parasites, incognizant primates, genetic throwbacks, genetically inferior, and lesser beasts that must be culled from the herd. [54] The article takes the position that the severely disabled and brain damaged are not net contributors to society, but rather a tragic drain on their families and societies. Criticism is laid on abortion laws that allow for healthy productive White foetuses to be aborted while it remains a crime to kill a severely retarded or brain damaged person that needs constant care for the duration of his or her pointless life. The obvious message underlying these remarks is that disabled persons are less worthy than able White persons and are therefore not entitled to the same basic rights, including the right to live. The disabled, by their very existence, are presented as harming the rest of society, a parasitic drain. It is hard to imagine any comments being more likely to expose disabled persons to hatred or contempt. (iv) Conclusion: The material is likely to expose the targeted groups to hatred or contempt [55] In sum, therefore, I find that there is matter found on the bcwhitepride.com and bcwhitepride.org websites that is likely to expose persons identifiable on the basis of a prohibited ground of discrimination (namely race, colour, religion, national or ethnic origin and disability) to hatred or contempt. B. Were the communications made repeatedly, within the meaning of s. 13 of the Act? [56] The Tribunal has held in the past that material communicated via the Internet is by that medium's innate characteristics alone, a repeated communication, particularly where no obstacles are put in place that would prevent anyone connected to the Internet from surfing his or her way to a website and viewing the material (see Warman v. Beaumont, 2007 CHRT 49 at paras. 51-7; Warman v. Harrison 2006 CHRT 30 at para. 44; Warman v. Kulbashian, 2006 CHRT 11 at para. 62; Warman v. Tremaine, 2007 CHRT 2 at paras. 116-9). Mr. Niemi testified that he was able to view the material just by typing in the Internet addresses of the websites. Clicking on the links found on the website enabled him to view the various articles comprising the impugned material. [57] I therefore find that the material was communicated repeatedly. C. Who communicated the impugned messages? (i) Did John Beck communicate the impugned messages? [58] Websites are identified by domain names (eg. bcwhitepride.org) that are registered with a domain name registration service (see Kulbashian, supra at para. 66). Information regarding the identity of these registrants is publicly available on the Internet through websites like whois.net. The registrant for bcwhitepride.com, as of August 2004, was NOLDC Inc., with an address in New Orleans, Louisiana. No name of an individual appears in the information provided. With respect to bcwhitepride.org, its registrant as of May 2005 was Domains by Proxy Inc. with an address in Scottsdale, Arizona. [59] Evidence was introduced regarding whois searches, during the hearing on the preliminary motion. The parties asked me to review the transcripts from this hearing and take the evidence led into consideration during my deliberations on the merits of the complaint. There was testimony at the preliminary hearing regarding the ease with which a registrant may submit false information with respect to names and addresses when registering a website. [60] Accordingly, the Commission contends that the registration information regarding bcwhitepride.com and bcwhitepride.org is misleading and that Mr. Beck is in fact the person who actually communicated the impugned messages via the Internet, on those websites. In order to establish this link between Mr. Beck and the messages, the Commission produced a series of emails that were exchanged in March 2004, between an individual named Shane Martinez and someone who was using renegade1488ca@yahoo.com as an email address. Mr. Martinez was called by the Commission as a witness at the hearing. He testified that he has been involved in the study of human rights and in social justice activism for over a decade. His work has included research into the activities of white supremacist movements on the Internet. [61] Mr. Martinez stated that in early 2004, he discovered a website called whiterenegade.com during the course of his research. He wanted to learn the identity of the person(s) responsible for this website, so he sent an email to the site's contact email address, pretending to be a female person named Rachel, who was claiming to be curious about the site's content. Mr. Martinez received a reply email from someone with the email address renegade1488ca@yahoo.com, who explained that John was his real name. John's email exchanges with Rachel (i.e. Mr. Martinez) were later followed up by a series of instant messaging (or chat line) discussions between the two persons. In one of the email exchanges, John wrote that he regularly posted messages under the pseudonym (or username) of Renegade, on a message board operated by a website called stormfront.org. [62] At the opening of the hearing into the merits of the complaint, Mr. Fromm, speaking on behalf of Mr. Beck, admitted that Mr. Beck was indeed the person who had communicated with Mr. Martinez in these email and chat line exchanges, using the renegade1488ca@yahoo.com email address. Mr. Beck also acknowledged that Mr. Martinez's printouts of the email and chat line exchanges were genuine and had not been tampered with. These admissions are consistent with Member Deschamps's findings in his preliminary ruling in this case. Mr. Beck did not admit, however, that the statements made by him in these exchanges were actually true. [63] The Commission contends that based on Mr. Beck's contributions to these email and chat line discussions, it is evident that he was the author and communicator of the impugned messages in this case. For instance, during an email exchange on March 8, 2004, Mr. Martinez praised the work done on the whiterenegade.com website and wondered if whiterenegade was also the name of a group. Mr. Beck replied: This site whiterenegade.com is my own personal online manifesto. It is not a group. However I did co-found a group called BC White Pride. I helped write much of the content on the site at www.bcwhitepride.com. [emphasis added]. [64] Mr. Fromm argued that little should be made of this assertion by Mr. Beck. To begin with, it is unclear what much of the content means. Was Mr. Beck the author of the material, and if so, of what portion? By claiming that he helped write the content, did Mr. Beck mean that he perfected or cleaned up the text as an editor, or perhaps that he provided the writer with research material? Mr. Beck, however, did not testify and did not lead any evidence to explain how limited his involvement may have been. [65] On the contrary, the Commission claims that circumstantial evidence establishes that Mr. Beck was the author of the material. The Commission identified a number of fairly striking similarities and common themes between the impugned messages on the one hand and, on the other hand, Mr. Beck's email and chat line statements along with his postings on the stormfront.org message board. The Commission submits that this additional evidence renders it more likely than not that Mr. Beck wrote and communicated the impugned messages. These alleged similarities include the following: In the exchanges with Mr. Martinez, Mr. Beck uses a number of uncommon terms, which also appear in the impugned messages, including the following examples: ° In one chat line exchange, Mr. Beck explains that he is upset with his church for allowing an Aboriginal mother and her children, whose father is white, to attend services. Mr. Beck considers the situation to be dangerous claiming that her presence within the church fosters an attitude of fanatical tolerance. The identical term is used in the impugned messages, under the Racial Health link, in the section devoted to euthanasia, where it is stated: More to the point, advocates of disabled rights are well aware of the psychological impact of conditioning people to accept and subsidize their genetically inferior counterparts and integrate them into society. [...] The mindset propagated by these pathological liberals encourages a philosophy of fanatical tolerance. [emphasis added] ° In the Canadian Politics portion of the impugned material, former Governor-General Adrienne Clarkson is described as an immigrant from Hong Kong who married race traitor John Ralston Saul. Similarly, in the email exchanges with Mr. Martinez, Mr. Beck wrote, If a White man marries a hook nosed Jewess and converts to Judaism, he a race traitor [sic]. The same term was used in a 2007 posting on stormfront.org by Renegade, in which white persons seeking to adopt trans racially are called would be race traitors. As I indicated earlier, Mr. Beck had declared to Mr. Martinez that he was posting messages on the stormfront.org message board, under the pseudonym Renegade. The concern expressed in the Racial Health section of the impugned messages regarding the genetic superiority of certain classes and the deterioration of their genetic stock is a theme that is also taken up by Mr. Beck in his email messages to Mr. Martinez. Thus, Mr. Beck wrote in one exchange: We can show the non-white races a little respect by staying away from their women, no matter how attractive the ODD ONE may be. This helps out our race by not introducing alien genetics to out [sic] gene pool, as well as being a good will gesture towards them. Similarly, Mr. Beck wrote under the Renegade user name, in a 2007 posting on stormfront.org, that he disapproved of non-Whites marrying white persons to improve their genetic stock, conduct which he described as an exploitation of the white race for their own benefit. The material found on the Solutions link of the impugned messages focussed on the future of our white children. Flyers could be downloaded containing photos of white children and the message that ultraliberals and minority special interest groups have abducted her future. Mr. Beck, in his chat line discussions with Mr. Martinez, demonstrates that he too has a particular interest in caring for the future of white children. Mr. Beck points out that his pastor has four perfect white teenage children and that he (Mr. Beck) has been a mentor to these white youth in the church. He claims to have subtly given them racial understanding and guidance by showing a lot of affection to white children but no attention to the mongrel children of the Aboriginal mother. Mr. Beck expresses hope that the impressionable white teenagers have seen this favouritism and that they follow his example. In the Racial Health section of the impugned messages, it is argued that the severely retarded and brain damaged should be euthanized. Similarly, Mr. Beck wrote in a posting on the stormfront.org message board under the user name Renegade that he supports the idea of mandatory euthanasia in cases where a healthy, productive, vibrant human being is transformed into a severely handicapped vegetable. [66] The Commission submits that further identification of Mr. Beck as the author and communicator of the impugned messages can be imputed from the content of the whiterenegade.com website. As I explained earlier, Mr. Beck boasted that the whiterenegade.com was his own personal online manifesto. The Commission claims that the website contains material some of which is almost identical to that of the impugned messages. For instance: In whiterenegade.com, an article dealing with abortion and the problem with pro-choice states: Study after study shows that 90% of abortions are performed for what amount to reasons of convenience. We find this repugnant because, more often than not, it is a potentially healthy, productive white baby that is being aborted. The waiting list for adopting a healthy White baby is about seven years. This is far too long a wait. This waiting time could be cut dramatically if there were more restrictions put on abortions. The almost identical text appears in the impugned messages found on bcwhitepride.com, in the Racial Health article under the Abortion and Race section. I have underlined the portions of the text that are identical to those found in whiterenegade.com: Study after study shows that most abortions are performed for what amount to reasons of convenience. More often than not it is a potentially, healthy, productive White baby that is aborted. Conversely, the waiting list for adopting a healthy White baby is seven years. This waiting time could be cut dramatically if there were more restrictions put on abortions. Elsewhere in whiterenegade.com, it is argued that there is a link between racial issues and the views expressed on the website, regarding euthanasia: How does this all tie into race? White couples that are enslaved to severely disabled child will be less likely to have more White children. The almost identical text (see underlined portions) appears in the impugned messages found on bcwhitepride.com: How does this alllayout-grid-mode:both; font-weight:normal"> relate to the racial issue? Specifically, White couples enslaved by severely disabled children will be less likely to have more White children. [67] These are just some examples. There are other instances where I find that virtually identical language has been used on both websites. Furthermore, there are common themes to the messages communicated on both websites. In a section called Love and Hate on whiterenegade.com, a list of examples of love from a pro-White perspective includes the love of precious White children, which is consistent with the fondness for white children demonstrated on bcwhitepride.com and bcwhitepride.org. Whiterenegade.com's list of hated things includes the fact that Jews have taken control over our news media, entertainment industry, government, and education system and that this control is used to undermine and destroy the White race. Yet another hated fact is the desecration of human life by taking brain injury victims and hooking them up to life support, thereby transforming a healthy, vibrant human being into a severely disabled vegetable. These are themes that are also found in the impugned messages of bcwhitepride.com and bcwhitepride.org. [68] The Commission also points out that throughout the email and chat line exchanges, Mr. Beck refers to himself as part of a group called BC White Pride, alluding to those of us at bcwp and my friend at bcwp. He describes himself as a co-founder of the group a number of times. [69] In my view, the inference can in fact be drawn from Mr. Beck's admission to writing much of the content on bcwhitepride.com as well as from the above mentioned links to and similarities with Mr. Beck's other material, that he was the author and the person who communicated or caused to be communicated the impugned messages. Given my earlier finding that the impugned messages contain matter that constitutes hate messages within the meaning of s. 13 of the Act, this inference, if believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from Mr. Beck (Ontario (Human Rights Commission) v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536 at 558 (O'Malley). It is incumbent upon Mr. Beck to provide a reasonable explanation demonstrating that the discrimination did not occur as alleged (for instance, that it was not he who engaged in the discriminatory practice), or that the conduct was somehow non-discriminatory. [70] As I stated earlier, Mr. Beck opted not to testify at the hearing and he called no witnesses. There is no evidence before me of Mr. Beck denying that he posted the impugned messages or that he was not their author, nor is there any evidence specifying what possible lesser role Mr. Beck may have played in helping write the material, as Mr. Fromm suggested in his submissions. The latter argument would, in any event, constitute a doubtful explanation, given that even a group of persons acting in concert may be found in breach of s. 13 for having communicated or caused to be communicated a hate message. [71] Mr. Fromm also argued that the views expressed on the whiterenegade.com site are in some way milder than the bcwhitepride.com material and would not constitute material that offends s. 13. From this, he contends, I should infer that Mr. Beck was not the author of the impugned material that is found on the bcwhitepride.com website. I reject this argument. To begin with, the question of whether the whiterenegade.com material violates s. 13 is not a matter that is before me in this case. More significantly, I see no foundation for drawing the inference that merely because a second text contains only portions of the first one, then necessarily someone else must have written the remaining portions of that first text. This is mere conjecture. There is simply no evidence to support this assertion. [72] In addition, Mr. Fromm contends that Mr. Martinez's evidence was gathered in an unethical manner and that it is objectionable for the Commission to be relying on material derived from such a sordid investigation. Mr. Fromm took particular issue with the fact that Mr. Martinez assumed a false persona and that he sent Mr. Beck several images of a woman that he had downloaded from the Internet without that woman's consent. Mr. Martinez sent these photos to Mr. Beck as purportedly true pictures of the fictional Rachel in order to be more convincing in the female persona that he had adopted in his exchanges. [73] I fail to see how the methods used by Mr. Martinez serve as an answer or reasonable explanation to the prima facie case that has been made against Mr. Beck. Whatever Mr. Martinez's methods may have been, the fact remains that it was Mr. Beck who wrote the messages in these email and chat line exchanges, utilizing the email address renegade1488ca@yahoo.com, and who declared having posted messages on stormfront.org, under the name Renegade. [74] Mr. Fromm also claims that Mr. Martinez is an unreliable witness, given his activities within anti-racist movements and his participation in demonstrations against certain individuals, including Mr. Fromm. However, the question of Mr. Martinez's credibility with respect to his evidence regarding the content of his email and chat line exchanges was already addressed in the preliminary ruling in this case. The Tribunal determined that the email and chat line transcripts had not been tampered with and that they were truthful and trustworthy, a fact that Mr. Fromm, speaking for Mr. Beck, also admitted at the hearing. Given that the authenticity of the documents has been conceded, Mr. Martinez's credibility is essentially immaterial. [75] I agree with Mr. Fromm that many of Mr. Beck's messages in these exchanges demonstrate that he genuinely believed he was conversing with a young woman who appeared to be interested in developing a personal relationship with him. Mr. Fromm argues that Mr. Beck may have embellished his comments as a result, particularly in his description of himself and his activities, just so he could impress Rachel. However, Mr. Beck did not testify or lead any other evidence as to what these misrepresentations may have been, nor as to whether they encompass any of the passages that I have highlighted. I have no evidence to contradict Mr. Beck's explicit admissions in his email and chat line exchanges. Besides, many of these discussions, which occurred in 2004, contain messages similar to those that Mr. Beck posted on stormfront.org in 2007, after the complaint was filed and long after his conversations with the fictional Rachel had ceased. There is nothing before me to suggest that Mr. Beck was trying to impress anyone with these recent stormfront.org postings. [76] I also reject Mr. Fromm's submission that Mr. Beck was somehow prejudiced by the fact that the Commission had not specified prior to the hearing which portions of the bcwhitepride.com material it intended to use as evidence of s. 13 violations. I would point out that the material found on bcwhitepride.com, which was subsequently moved to bcwhitepride.org, consisted apparently of less than 30 printed pages in total, not a particularly voluminous amount of material, in my view. Mr. Beck did not assert that the Commission or CRARR had failed to disclose these pages to him prior to the hearing's opening. [77] Furthermore, most of the material that I have referenced in this decision, which was highlighted by Mr. Niemi in his testimony, had also been excerpted or alluded to in the complaint form that CRARR filed in 2004, and in the Commission's and CRARR's Amended Statement of Particulars, dated November 14, 2006. The hearing into the merits of the complaint began on June 18, 2007. Mr. Beck can hardly claim to have been taken by surprise in this regard. Besides, given the relatively small size of the bcwhitepride.com website (as I mentioned, less than 30 pages), I do not find that Mr. Beck suffered any prejudice by the fact that Mr. Niemi also singled out a number of passages that were not specifically mentioned in the complaint form or Amended Statement of Particulars themselves but were similar in nature. Mr. Beck knew that the Commission was challenging the content of the website as a whole. I am satisfied that this knowledge was sufficient for him to understand the case he had to meet. There was no evidence of prejudice at the hearing. [78] I therefore find that a reasonable explanation has not been provided in answer to the prima facie case made out against Mr. Beck. I conclude that the matter that has been found to constitute hate messages within the meaning of s. 13 of the Act was communicated repeatedly via the Internet by Mr. Beck. The complaint against Mr. Beck has therefore been substantiated. (ii) Did bcwhitepride.com communicate the impugned messages? [79] The impugned messages were initially viewed by Mr. Niemi on a website the home page of which had the following Internet address, as it appears at the bottom of the printout that was filed in evidence: http://members.odinarage/bcwhitepride. CRARR brought its complaint against the person(s) directly responsible for the website, although the address given on the complaint form was somewhat more elaborate (members.odinarage/bcwhitepride/immigrations.htm). CRARR indicated in the complaint that the website was also known as BCWhitepride.com. On a typewritten form entitled Complaint Summary which the Commission subsequently prepared, the name and address of respondent is shown as being simply www.bcwhitepride.com. As I mentioned earlier, no one appeared before the Tribunal on behalf of bcwhitepride.com. [80] More importantly, I have no evidence before me that bcwhitepride.com even exists as a person or group of persons acting in concert, within the meaning of s. 13 of the Act. The evidence only establishes that in 2003, one was able to access a website with an Internet address (members.odinarage/bcwhitepride/immigrations.htm) within which the term bcwhitepride appeared. In his preliminary ruling in this case, Member Deschamps found that a group calling itself BC White Pride did exist. However, as I mentioned earlier in this decision, I denied the Commission's motion to add the group as a party. [81] It is evident, in my view, that the bcwhitepride.com referred to in the complaint was meant to identify a website, a simplified version of a fairly complex Internet address, and that CRARR sought to file the complaint against the persons responsible for it, not against the website itself. Furthermore, even if one were to rely on the Commission's categorization in the complaint summary of www.bcwhitepride.com as the respondent, it has not been established that bcwhitepride.com exists as a person or group of persons, within the meaning of s. 13 of the Act, capable of engaging in the discriminatory conduct contemplated therein. The complaint against bcwhitepride.com has therefore not been substantiated. [82] I would also note in passing that in its final submissions, the Commission advised the Tribunal that it was not seeking any remedy against www.bcwhitepride.com. VI. REMEDIES A. An order that the discriminatory practice cease (s. 54(1)(a)) [83] The Commission and CRARR seek an order that Mr. Beck cease and desist the discriminatory practice, pursuant to s. 54(1)(a) of the Act. Given my findings that Mr. Beck communicated hate messages within the meaning of s. 13 of the Act, such an order is justified. [84] I therefore order John Beck to cease and desist from communicating, by the means described in s. 13 of the Act, namely the Internet, any matter of the type contained in those messages that I have identified in this decision as being 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. [85] Mr. Niemi testified that he had still been able to access the messages on the bcwhitepride.org website as recently as November 2006. If that remains the case, Mr. Beck is ordered to remove the material that has been found in breach of s. 13 from the bcwhitepride.org website or from any other location on the Internet where Mr. Beck has posted the material. B. Penalty (s. 54(1)(c)) [86] The Tribunal may order a respondent who engaged in a discriminatory practice set out in s. 13 of the Act, to pay a penalty of up to $10,000, pursuant to s. 54(1)(c). Section 54(1.1) enumerates 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, and The wilfulness or intent of the respondent, any prior discriminatory practices that he or she has engaged in, and his or her ability to pay the penalty. The Commission submits that these factors weigh heavily in favour of the maximum penalty available. [87] With regard to the first set of criteria, I find that the discriminatory practice in this case constitutes a serious and significant breach of s. 13 of the Act. It is evident that the impugned material discriminates against a wide range of people, and encompasses comments that are vicious and dehumanizing, especially with respect to the disabled, a particularly vulnerable group within society. Negative and destructive stereotypes are brought forth with respect to Jewish persons. The remarks regarding non-Whites undermine their dignity and self-worth and contribute to disharmonious relations among various races and cultures, which, as the Supreme Court commented in Taylor, supra at paragraph 42, erodes the tolerance and open-mindedness that must flourish in a multicultural society committed to the idea of equality. I would also note that the material was placed on a website that appeared to be dedicated to the communication of these very messages, in contrast to instances where the impugned material has consisted of a number of relatively short postings on message boards (see e.g., Warman v. Beaumont, supra at para. 98). [88] In addition, I am persuaded that Mr. Beck intentionally placed this material on the Internet knowing that the communication of these messages was likely to expose persons of the targeted groups to hatred or contempt and would thus be in breach of the Act. For instance, on the whiterenegade.org site, which Mr. Beck defined as his personal online manifesto, he expressed a passionate and holy hatred of laws preventing hate speech. In his exchanges with Mr. Martinez, Mr. Beck spoke of his contempt for those who wished to stop the kind of statements found on the bcwhitepride.com and .org websites. In my view, it is reasonable to infer from these statements that he had knowledge of the Act's provisions regarding hate messages but that he opted to wilfully breach them just the same. [89] I have no findings before me of any prior discriminatory practices by Mr. Beck. The material on bcwhiterenegade.org and stormfront.org, while helpful in determining Mr. Beck's involvement in the bcwhitepride.com and .org websites, was not the object of CRARR's s. 13 complaint, nor was any notice given to the responding parties that this other material was being presented with a view to establishing the existence of additional discriminatory communications. It would be a breach of procedural fairness to Mr. Beck for me to assess whether this other material would constitute a discriminatory practice under the Act. Furthermore, I have no way of knowing if the bcwhiterenegade.org material was posted prior to the impugned messages in this case. Certainly the 2007 stormfront.org postings were made well afterwards. [90] There is some evidence available regarding Mr. Beck's ability to pay the penalty. During the hearing on the preliminary motion to amend the complaint, the Commission produced copies of Mr. Beck's then most recent income tax return summaries, for the years 2004 and 2005. It is not necessary for me to reveal the exact amounts shown but suffice it to say that his declared total income was very modest. In addition, Mr. Martinez testified during that hearing that the information he had garnered in the course of his investigation showed that Mr. Beck lived in a garage, a fact that was fully verified by a search on an Internet-based telephone directory, 411.ca. That being said, I have no evidence as to Mr. Beck's assets or liabilities nor what his income may be in 2007. [91] Taking all of these factors into account, I order Mr. Beck to pay a penalty 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 date on which this decision is served on Mr. Beck. C. Witness fee [92] Mr. Beck has requested a witness fee from the Commission for his attendance, over the course of eight days in total, at the hearing on the preliminary motion to amend the complaint, which resulted in his being added as a respondent in the present case. The Commission had sought and obtained a summons from the Tribunal requiring Mr. Beck's attendance on November 27 and 28, 2006, at the hearing which was to take place in Penticton, BC. The Commission served the summons on Mr. Beck by process server together with an amount of $50.00. Mr. Beck appeared at the hearing on the designated dates. However, the start of the proceedings was postponed to the second day, November 28, 2006, due to bad weather that had delayed the Tribunal member's arrival. [93] The hearing on the motion continued over a total of seven days (November 28, 29 and 30, 2006, and April 10 to 13, 2007). Mr. Beck attended on each of those hearing dates, although he was not served with any other summons. Mr. Beck was ultimately never called to testify. [94] Mr. Beck is now seeking a witness fee with respect to his attendance at the hearings over the entire cumulative eight day period. He is also requesting reimbursement of his daily travel expenses relating to his driving by car to and from his home in Kelowna, a distance of 60 km each way, along with his daily parking fee of $4.00. He has also claimed the cost of lunch money. [95] Section 50(6) of the Act provides that any person summoned to attend a hearing is entitled in the discretion of the member to receive the same fees and allowances as those paid to persons summoned to attend before the Federal Court. The practice in the Federal Court is governed by rules 42 and 43 of the Federal Court Rules, which state that a witness is entitled to the fees and travel expenses set out in Tariff A of the Rules. Section 3 of the Tariff states that witness fees should be paid in the amount of $20 per day plus reasonable travel expenses, or the amount permitted in similar circumstances in the superior court of the province where the witness appears, whichever is greater. [96] The hearing where Mr. Beck appeared was held in British Columbia. Schedule 3 of Appendix C to the Supreme Court Rules of British Columbia, issued pursuant to the Court Rules Act, R.S.B.C. 1996, c. 80, sets out the fees that are payable to witnesses in that province. Witnesses are entitled to a daily witness fee of $20. However, a witness who is a party or a present officer, director or partner of a party to the proceeding is not entitled to the fee. At the time of the hearing on the preliminary motion, Mr. Beck was not a party to the complaint. There is no evidence before me that he was an officer, director or partner of the sole respondent party to the case at the time, bcwhitepride.com, which, in any event, I have determined is not a person or group of persons within the meaning of s. 13. Mr. Beck only became a party pursuant to Mr. Deschamps' ruling of May 18, 2007, amending the complaint. [97] Schedule 3 also provides that where the hearing is held within 200 km from the witness' residence, a travel allowance of 30 cents per kilometre is payable. A reasonable allowance for meal expenses is also payable. [98] The Commission produced with its submissions, a copy of the Treasury Board of Canada Secretariat's kilometric rates for use of privately owned vehicles driven on authorized government business travel, for the period encompassing the first two days of hearing on the preliminary motion. The rate for travel in British Columbia was 47.5 cents per kilometre at that time. [99] The Tribunal has the discretion to vary the amounts payable for witness fees in accordance with the circumstances of each case (see Day v. Department of National Defence, 2003 CHRT 7). I find that the Treasury Board Secretariat's travel expense rate would be reasonable in the present case. I also note that the entitlement under the rules of British Columbia's Superior Court would be lesser and, in accordance with the Federal Court Rules, would therefore not apply. [100] I accept Mr. Beck's claim for a witness fee in relation to the entire eight day period. The Commission never indicated that it would not be calling him as a witness, nor did it request that the summons be withdrawn or cancelled, as Mr. Deschamps pointed out when the issue of witness fees arose on the final day of the hearing on the preliminary motion (see Transcript, April 13, 2007, at pages 925-42). I note that the Tribunal's summons form, which the Commission filled out and served on Mr. Beck, states that the person being summoned must attend to give evidence at the indicated place and time of the hearing, and do so from day to day until the hearing is concluded or the Tribunal otherwise orders. The Tribunal never issued an order releasing Mr. Beck from his requirement to attend throughout the course of the hearing on the motion, nor did the Commission ask the Tribunal to do so. [101] The Commission argues that Mr. Beck chose to attend over the entire period because the main question at issue was whether he should be added as a respondent in the case. Mr. Beck may very well have opted to attend even if he had not been summoned, but the fact remains that he was summoned to attend at the request of the Commission and that he was not released from this requirement throughout the course of the hearing on the motion. [102] Consequently, I order the Commission to pay Mr. Beck a witness fee and reimburse his expenses, in the following amounts: A daily witness fee of $20.00 x 8 days = $160.00 120 km (round-trip distance from home to hearing) x 47.5 cents x 8 days of hearing = $456.00; $4.00 parking x 8 days of hearing = $32.00; $15.00/day (which I consider to be a reasonable sum for lunchtime meal expenses) x 8 days of hearing = $120.00. The total to be paid by the Commission to Mr. Beck is therefore: $768.00 - $50.00 (the sum that I understand was already provided to Mr. Beck when he was served with the summons) = $718.00. Signed by Athanasios D. Hadjis OTTAWA, Ontario January 9, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1120/0206 STYLE OF CAUSE: Center for Research-Action on Race Relations v. www.bcwhitepride.com and John Beck DATE AND PLACE OF HEARING: June 18 to 20, 2007 Penticton, British Columbia DECISION OF THE TRIBUNAL DATED: January 9, 2008 APPEARANCES: Fo Niemi For the Complainant Catherine J. Boies Parker For the Canadian Human Rights Commission No one appearing For the Respondent: www.bcwhitepride.com Paul Fromm For the Respondent: John Beck

2008 CHRT 10

CHRT

Tahmourpour v. Royal Canadian Mounted Police

en

2008-04-16

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6675/index.do

2023-12-01

Tahmourpour v. Royal Canadian Mounted Police Collection Canadian Human Rights Tribunal Date 2008-04-16 Neutral citation 2008 CHRT 10 File number(s) T1151/3306 Decision-maker(s) Jensen, Karen A. Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE ALI TAHMOURPOUR Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ROYAL CANADIAN MOUNTED POLICE Respondent DECISION 2008 CHRT 10 2008/04/16 MEMBER: Karen A. Jensen I. INTRODUCTION II. AN OVERVIEW OF THE COMPLAINT III. WHAT ARE THE SPECIFIC ISSUES IN THIS COMPLAINT? IV. WHAT MUST BE PROVEN WITH REGARD TO SECTION 7? A. Was Mr. Tahmourpour Subjected to Discriminatory Remarks, Hostile Treatment and Verbal Abuse? B. The Evaluation of Mr. Tahmourpour's Performance at Depot C. The Decision to Terminate Mr. Tahmourpour's Contract D. The Assessment of Mr. Tahmourpour's Suitability for Re-enrollment V. WHAT MUST BE PROVEN WITH REGARD TO SECTION 14 OF THE ACT? A. Was Mr. Tahmourpour a victim of harassment on the basis of a prohibited ground? VI. WHAT IS THE APPROPRIATE REMEDY IN THE PRESENT CASE? VII. ORDERS I. INTRODUCTION [1] Ali Tahmoupour is a Muslim Canadian who was born in Iran. He had always dreamed of becoming a police officer. [2] On July 12, 1999 he was given the opportunity to achieve his dreams. On that date he entered the Royal Canadian Mounted Police (RCMP) Training Academy in Regina, Saskatchewan (known as Depot). On October 20, 1999, Mr. Tahmourpour's training contract was terminated prior to completion of the program. Mr. Tahmourpour believes that the termination of his training contract was the culmination of three months of harassment and discrimination on the basis of his race, religion and ethnic or national origin. [3] Mr. Tahmourpour filed a complaint with the Canadian Human Rights Commission (the Commission) on March 21, 2001 alleging violations of sections 7 and 14 of the Canadian Human Rights Act. II. AN OVERVIEW OF THE COMPLAINT [4] Mr. Tahmourpour alleged that from the first day of training at Depot he was singled out for negative treatment on the basis of his religion, race and national or ethnic origin. He stated that he was ridiculed for wearing a religious pendant and for signing his name in the Persian style. He was subject to ongoing verbal harassment, hostile treatment and negative performance evaluations by his instructors. This had the effect of undermining his confidence and impairing his ability to develop and demonstrate the necessary skills at Depot. When Mr. Tahmourpour challenged one of the instructors who was treating him negatively, the instructor in question began mounting a campaign to have him removed from Depot. At the urging of this instructor, Mr. Tahmourpour was given negative and inaccurate performance evaluations which ultimately led to his dismissal from the training program. The final act of discrimination occurred, in Mr. Tahmourpour's view, when the RCMP denied him the ability to return to the program on the basis of an inaccurate evaluation of his mental stability. [5] It is Mr. Tahmourpour's view that the negative treatment he received was a manifestation of systemic discrimination against visible minorities at Depot. According to him, the systemic discrimination at Depot consisted of the RCMP's failure to address a culture of disrespect and negativity towards visible minority cadets at Depot, as a result of which the attrition rates for visible minorities were higher than for non-visible minority cadets. [6] The RCMP denies that there was systemic discrimination at Depot during the time that Mr. Tahmourpour was there. The RCMP states that Mr. Tahmourpour's performance at Depot was fairly evaluated and found wanting. His training contract was terminated for no other reason than that he failed to meet the standards at Depot. When he was informed that his contract was terminated, Mr. Tahmourpour's negative reaction to this event demonstrated that he could not deal with challenges. Therefore, the RCMP was justified in putting a note on his file recommending that he not be considered for re-enrollment. [7] The Canadian Human Rights Commission did not participate in the proceedings. However, it remained a party to the proceedings and indicated its interest in any preliminary, resolution, enforcement or judicial review proceedings that might arise. III. WHAT ARE THE SPECIFIC ISSUES IN THIS COMPLAINT? [8] Mr. Tahmourpour alleges that the following events took place, and that they constitute harassment and differential treatment on the basis of race, religion and national or ethnic origin: Mr. Tahmourpour was subjected to discriminatory remarks, hostile treatment and verbal abuse by instructors at Depot; Mr. Tahmourpour's performance at Depot was improperly evaluated; The Respondent terminated Mr. Tahmourpour's training contract on the basis of false pretenses; Mr. Tahmourpour was improperly designated as being ineligible for re-enrollment in the Cadet Training program at Depot; and Mr. Tahmourpour was the victim of harassment on the basis of a prohibited ground of discrimination while at Depot. [9] For the reasons that follow, I have found that Mr. Tahmourpour's complaint is substantiated. IV. WHAT MUST BE PROVEN WITH REGARD TO SECTION 7? [10] Section 7 of the Act defines a discriminatory practice as adverse differentiation on the basis of a prohibited ground of discrimination. [11] The Complainant has the initial burden of establishing a prima facie case that he was subjected to adverse differentiation on the basis of his race, religion and ethnic or national origin. 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); and Dhanjal v. Air Canada, (1997), 139 F/T.R. 37 at para. 6). [12] 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). The Tribunal must then determine, on a balance of probabilities, whether the allegation of discrimination has been substantiated. A. Was Mr. Tahmourpour Subjected to Discriminatory Remarks, Hostile Treatment and Verbal Abuse? (a) The Reference to Mr. Tahmourpour's Religious Pendant [13] On July 12, 1999 Mr. Tahmourpour attended his first day of Physical Training (PT) at Depot. The Instructor, Sergeant Paul Hébert (now Superintendent), instructed the cadets to change into their fitness clothing and to remove all jewelry and watches. Mr. Tahmourpour approached Sergeant Hébert to explain that he wore a religious pendant and that he did not want to remove it. Sergeant Hébert replied that this was acceptable. [14] Mr. Tahmourpour requested that Sergeant Hébert keep the information about his religious pendant confidential; he did not want to be singled out as different on the basis of his religious affiliation. Mr. Tahmourpour testified that contrary to his request, Sergeant Hébert announced to all of the cadets in Troop 4 that there was no jewelry to be worn during Physical Training, except for Ali here, who's allowed to wear his religious pendant. He stated that Sergeant Hébert made the comment in a loud, sarcastic and condescending voice while rolling his eyes in the direction of Mr. Tahmourpour. [15] Mr. Tahmourpour testified that for several days after this incident he was questioned by his troop mates about his religion and the reason he wore a pendant. He stated that this made him feel uncomfortable and concerned that he had been identified as different. [16] On October 14, 1999, Mr. Tahmourpour had a conversation with Sergeant Hébert during which Sergeant Hébert apologized for his comment regarding the religious pendant. According to Mr. Tahmourpour, Sergeant Hébert stated that he would employ a different method for dealing with exemptions for religious jewelry in the future. [17] The RCMP Dress and Hygiene Instructions provided to the cadets at the time that Mr. Tahmourpour was at Depot stipulated that no jewelry was to be worn, except for medic alert bracelets. It did not provide exceptions for religious jewelry. This put cadets in a position where they either had to remove their religious jewelry, or approach the instructor as, Mr. Tahmourpour did, to request an exemption. [18] On the basis of this evidence, I find that Mr. Tahmourpour has established a prima facie case that the RCMP Dress and Hygiene Instructions, and the announcement made by Sergeant Hébert in front of Troop 4, adversely differentiated against him on the basis of his religion. The Respondent's Explanation [19] Sergeant (now Superintendent) Paul Hébert testified on behalf of the RCMP. He admitted that he made an announcement to Troop 4 that no jewelry was to be worn in PT, except for Mr. Tahmourpour, who would be permitted to wear his religious pendant. [20] Sergeant Hébert explained that he made the announcement to all the cadets because he did not want them to give Mr. Tahmourpour a hard time because he was not following the rule. Normally, if a cadet neglected to take jewelry off for PT, the troop would be required to do push ups as a reminder. To avoid this, the cadets would remind one and other to remove their jewelry. Sergeant Hébert felt he should announce to Troop 4 that Mr. Tahmourpour was permitted to wear his religious jewelry so that the cadets would not remind him to take it off before PT class. [21] Sergeant Hébert stated that Mr. Tahmourpour did not tell him that he wanted the information to be kept confidential. Had he known this, he would not have made the announcement to the entire troop. He would have told only the right marker. The right marker makes sure that the whole troop is on time for class and in proper uniform. It would be necessary to tell the right marker that an exception had been made to the uniform rule so that he or she would not give the cadet a hard time for not being in proper uniform. [22] Sergeant Hébert's admission that he would not have made the announcement to the entire troop had Mr. Tahmourpour asked him not to, undercuts his explanation that it was necessary to provide this information to everyone. [23] Sergeant Hébert also acknowledged that a better practice would have been to publicly inform the cadets about the rule and the exceptions for religious jewelry and medic alerts, without mentioning any names. Then, if there were problems arising from the use of jewelry in PT class, the instructor could approach the cadet(s) on an individual basis and discretely discuss the situation. [24] Sergeant Hébert stated that his tone of voice during the announcement would have been loud because it was a noisy environment. However, he would not have used a sarcastic voice because he respected people's beliefs and values. [25] I accept Sergeant Hébert's testimony that the announcement was made publicly to Troop 4, but in a neutral manner. This does not, however, change the fact that Mr. Tahmourpour felt that he had been identified as being different from the rest of the troop on the basis of his religion. Although several of his troop mates testified on behalf of the RCMP that they did not know about his Muslim background, this does not mean that Mr. Tahmourpour was not questioned about his religion by other cadets who did not testify. [26] One of the challenges that Mr. Tahmourpour faced in this case was to present evidence from his former troop mates who are now RCMP officers. Mr. Tahmourpour stated that he had difficulty finding individuals who would testify against the RCMP in this case. [27] Moreover, Mr. Tahmourpour's own perception that he had been identified as different is sufficient for me to find that, although unintended, the effect of the RCMP's policy with respect to dress and hygiene and Sergeant Hébert's announcement about Mr. Tahmourpour's religious pendant was to adversely differentiate against Mr. Tahmourpour on the basis of his religion. This allegation is therefore, substantiated, on a balance of probabilities. (b) Discriminatory Remarks and Treatment by Corporal Dan Boyer [28] The Head Instructor of the Firearms Unit was Corporal Dan Boyer. Corporal Boyer (now retired) was known for his loud, commanding presence on the Firearms Range. Many cadets were afraid of making mistakes on the Range because Corporal Boyer was harsh and brusque in his reprimands. [29] Mr. Tahmourpour testified that Corporal Boyer was constantly hostile and verbally abusive towards him. He stated that Corporal Boyer would stand very close to him at the firing range and scream into his ear that he was a loser, a coward, fucking useless and incompetent. Mr. Tahmourpour conceded that Corporal Boyer yelled and was verbally abusive to other cadets in Troop 4. However, he stated that Corporal Boyer directed significantly more of his negative attention towards Mr. Tahmourpour than the other cadets. This had a very negative effect on Mr. Tahmourpour's ability to perform in Firearms. [30] Mr. Tahmourpour stated that Corporal Boyer made it clear that he knew his behaviour was offensive. He often announced to Troop 4 that he was politically incorrect and he did not care who knew this or objected to it. [31] Dr. Scot Wortley, a criminologist from the University of Toronto, testified on behalf of Mr. Tahmourpour. He was qualified as an expert in racism and policing. Dr. Wortley testified that the term politically correct is pejorative and sarcastic. It is meant to convey an attitude of disdain towards human rights. Dr. Wortley stated that when a person in a position of authority states that he is politically incorrect, it may communicate the idea that the system does not take complaints of discrimination seriously and that discriminatory attitudes are tolerated. [32] Mr. Tahmourpour testified that on one occasion, fairly early in the training program, Corporal Boyer watched him sign an evaluation form and then stated: What kind of fucking language is that, or is it something that you've made up? Mr. Tahmourpour signs his name from right to left in the Persian style he learned when he was a child in Iran. He has continued to sign his name in this way. He was deeply offended when Corporal Boyer made the offensive remarks about his signature. [33] Mr. Tahmourpour stated that he was unable to concentrate and perform to capacity in Firearms because he was in constant fear of rebuke and condemnation from Corporal Boyer. [34] His poor performance in Firearms Training, which ultimately led the termination of his training contract, was due to Corporal Boyer's prejudicial dislike and mistreatment of him. [35] Sergeant Brar testified on behalf of Mr. Tahmourpour. He was an instructor and troop facilitator at Depot from 1998 to 2000. Sergeant Brar is a visible minority; he is of East Asian descent. While on the firing range with his troops, Sergeant Brar observed that Corporal Boyer focused a lot of negative attention on visible minority cadets and women (unless he appeared to find them attractive, in which case he would treat them favourably). He stated that Corporal Boyer was particularly loud and abusive with visible minority and female cadets. Corporal Boyer was more jovial with Caucasian males and attractive female cadets. [36] Sergeant Brar stated that he had observed that Corporal Boyer's behaviour had an effect on cadets' performance. When he yelled in their ear and berated them loudly, Sergeant Brar noticed that the cadets did not perform well. [37] Sergeant Brar brought Corporal Boyer's differential treatment of the women and visible minority cadets to the attention of the Officer in Charge of Depot, Inspector Keith Clark. Sergeant Brar could not recall the specific date that he reported Corporal Boyer's behaviour to Inspector Clark. He told Inspector Clark that he believed that there would be complaints of harassment and racial discrimination as a result of Corporal Boyer's behaviour. Sergeant Brar stated that Inspector Clark did not ask for any further information. [38] Sergeant Brar testified that he and Corporal Boyer were not on good terms during the time that he was at Depot. He stated that it was his impression, based on what he observed about Corporal Boyer's behaviour, that the latter gentleman did not like him because of his race and ethnicity. [39] Sergeant Brar testified about an incident between himself and Corporal Boyer in which Corporal Boyer berated Sergeant Brar for a decision that he had made with respect to one of the cadets in his troop. Sergeant Brar stated that Corporal Boyer's tone of voice and abusive language towards him on the telephone was inappropriate given that he was speaking to a colleague of the same rank. Sergeant Brar hung up on Corporal Boyer rather than allowing Corporal Boyer to continue berating him. [40] On the basis of the evidence above, Mr. Tahmourpour has made out a prima facie case that Corporal Dan Boyer made a derogatory remark about Mr. Tahmourpour's signature that was based on Mr. Tahmourpour's ethnic or national origin and that Corporal Boyer was verbally abusive toward Mr. Tahmourpour. This evidence, in addition to the evidence that Corporal Boyer flaunted his political incorrectness, and Sergeant Brar's evidence that he was harder on visible minority cadets and instructors than their Caucasian counterparts, provides sufficient circumstantial evidence to establish a prima facie case that Corporal Boyer's hostile and abusive conduct towards Mr. Tahmourpour was based, at least in part, on Mr. Tahmourpour's race, religion and national or ethnic origin. The Respondent's Explanation [41] Corporal Boyer testified on behalf of the RCMP. He was a Firearms instructor at Depot from July 1996 to 2001. He admitted that he made a comment about Mr. Tahmourpour's signature. However, he stated that he did not swear at him. Corporal Boyer observed Mr. Tahmourpour signing one of the feedback forms. He noticed that Mr. Tahmourpour signed his name from right to left and then added a few scribbles at the end. The signature looked like it was written in another language. Corporal Boyer testified that he did ask Mr. Tahmourpour what language his signature was in, or whether it was just something that he had made up. Corporal Boyer testified that he asked Mr. Tahmourpour about his signature out of curiosity; he was genuinely interested in different languages. Also, he stated that Mr. Tahmourpour was signing a legal document and he wanted to make sure that it was his real signature. [42] Corporal Boyer admitted that he swears at work. He admitted that he was told by the troops that he yelled and was loud. He admitted that there were other complaints about him but he could not recall the specifics of any of the complaints. He said that it was possible that he had been warned about his condescending and inappropriate comments to cadets. Corporal Boyer admitted that one of his performance reviews stated that he had a filthy mouth, but that he had worked on this problem. Yet, he admitted that he still swore in front of his family and therefore, his efforts had not been entirely successful. Corporal Boyer also admitted that there had been complaints prior to his retirement that he swore at cadets. [43] On the basis of this evidence, I find that it is more probable than not that Corporal Boyer asked Mr. Tahmourpour: What kind of a fucking language is that, or is it something that you just made up? Corporal Boyer's statement that he was genuinely curious about other people's languages and cultures did not ring true. It sounded rehearsed and insincere. Moreover, it was inconsistent with other evidence that I heard about Corporal Boyer's tendency to degrade visible minority cadets. [44] His explanation with regard to the authenticity of Mr. Tahmourpour's signature did not make sense and also sounded fabricated. The manner in which Mr. Tahmourpour signed the Feedback form would have no bearing whatsoever on the authenticity or validity of the contents of the document. It simply connoted that the cadet had been given the document. Therefore, I do not accept Corporal Boyer's explanations about his signature comment. [45] Corporal Boyer denied that he was harder on Mr. Tahmourpour than the other cadets in Troop 4. He stated that, like a number of Firearms instructors, he was loud and aggressive. He stated that he was not a bully, although he was aware that he could possibly intimidate people. Corporal Boyer said that he used this style because Firearms was a very dangerous environment and it was critical to ensure that order and decorum was maintained at all times on the line. [46] Corporal Boyer stated that he was not politically correct at all times. He thought politically correct meant never swearing and yelling. He viewed Depot as a politically correct world where you don't swear and try keep things as polite as possible. Corporal Boyer stated that he swears and yells and in that sense, he is not politically correct. However, he did not see himself as racist. [47] Corporal Boyer was also questioned about his reaction to a direction from his supervisor that he remove the men's magazines that he had left in the men's washroom. (I infer that men's magazines refers to material depicting women in sexually explicit ways which is seen by many as not conducive to gender equality). Corporal Boyer stated that his first response to the direction to remove the magazines may have been that Depot was trying to be politically correct. Corporal Boyer stated that by that he would have meant that Depot was a fair environment and some of the material might have been offensive to people. [48] Corporal Boyer's evidence was not consistent or convincing. It is highly probable that he knew that political correctness meant more than not swearing, or he would not have responded that Depot was trying to be politically correct when he was told to take the men's magazines out of the washrooms. I think he knew, but was not willing to admit on the stand, that political correctness meant respecting the rights of women and minority groups, among others. I find it more probable than not that Corporal Boyer told people that he was politically incorrect, and by that he meant that he would say whatever he wanted about people even if it was sexist or racist. In my view, this is what reasonable listeners would think when they heard Corporal Boyer declaring that he was politically incorrect. [49] Constable Brendon McCarney testified on behalf of the RCMP. He was a visible minority member of Troop 4 during the time that Mr. Tahmourpour was in Troop 4. Constable McCarney stated that he strongly disliked Corporal Boyer. He was confrontational; he would yell at the cadets right in their faces, very close to them. [50] Constable McCarney was subjected to a tirade from Constable Boyer. He was stunned. He made sure that he did not repeat the mistake that prompted the reaction. He did not feel singled out, however. He stated that anyone who made a mistake was yelled at by Corporal Boyer, including Caucasian cadets. [51] Constable McCarney stated, however, that he considered Corporal Boyer to be politically incorrect. By that he meant someone who is rude and uses inappropriate words to refer to an individual's race, sexual orientation or colour. He stated that someone who is politically incorrect with respect to race could be called racist. In that sense, Constable McCarney thought that Corporal Boyer could be racist, although he did not use racist terms with him. Corporal Boyer was simply mean to him. [52] I find that Constable McCarney's evidence corroborates Mr. Tahmourpour's assertion that although Corporal Boyer was hard on all the cadets, his treatment of visible minority cadets had an added perniciousness. There is further evidence to support this conclusion in the testimony of Corporal Eldon Draudy. Corporal Draudy testified on behalf of the RCMP. He is a Caucasian male. Corporal Draudy stated that he found Corporal Boyer to be very intimidating. He was afraid of making mistakes because Corporal Boyer would yell in a very loud voice if a mistake was made. Corporal Draudy did make a mistake. Corporal Boyer yelled at him for not having his head in the game and for not concentrating. Corporal Boyer told him that he could put his life or someone else's life in danger. [53] Corporal Draudy did not refer to Corporal Boyer as mean or abusive as did Sergeant Brar, Constable McCarney and Mr. Tahmourpour (all visible minorities). Rather, Corporal Draudy stated that he appreciated Corporal Boyer's approach because the range is a dangerous place and Corporal Boyer had to maintain strict control over it to ensure that no one was hurt. Corporal Draudy's experience of being corrected by Corporal Boyer was quite different from the experiences of the visible minority members and cadets who testified. Corporal Draudy was told that he did not have his head in the game, a comment that would be considerably easier to accept than being told, as Mr. Tahmourpour was, that he was fucking useless. [54] On the basis of this evidence I find it more likely than not that Corporal Boyer treated visible minority cadets differently and more negatively than non-visible minority candidates. I also find it more probable than not that Corporal Boyer was verbally abusive and hostile towards Mr. Tahmourpour at least in part on the basis of his race, religion, ethnicity or national origin. [55] Corporal Boyer denied that he was racist; he has many friends and family members who are from visible minority groups. However, in assessing the weight to be accorded to such a statement, I must consider that it is quite possible that Corporal Boyer's attitudes with respect to visible minority cadets and RCMP officers are markedly different from his attitudes towards his friends and family. [56] There was evidence from an RCMP survey of Regular Members in 1996 that indicated that 51 percent of Caucasian male members felt resentment towards their visible minority, female and Aboriginal colleagues in the RCMP, based on their perception that employment equity initiatives have given these RCMP officers an unfair advantage. There was no evidence that this attitude had changed between 1996 and 1999 when Mr. Tahmourpour was attending training at Depot. [57] Corporal Boyer was, like all of the instructors and facilitators at Depot, a regular member of the RCMP. In my view, it is a reasonable inference, based on the Regular Members' Survey and on the evidence presented about Corporal Boyer's behaviour at Depot, that his behaviour toward Mr. Tahmourpour may have been based, at least in part, on resentment that he, like many regular Caucasian Males, felt towards members of visible minority groups and women in the RCMP. [58] In conclusion, I find that Corporal Boyer made a derogatory comment about Mr. Tahmourpour's signature that was based on a prohibited ground of discrimination. He also adversely differentiated against Mr. Tahmourpour on the basis of a prohibited ground by being especially verbally abusive and hostile towards Mr. Tahmourpour at Depot. B. The Evaluation of Mr. Tahmourpour's Performance at Depot (a) The First Evaluation [59] On September 10, 1999, Mr. Tahmourpour received a Cadet Performance Feedback Sheet dated September 8, 1999 that listed 12 NI's in Applied Police Sciences (APS). NI signifies needs improvement. An NI is assigned when a cadet's performance is deficient, even if only slightly so. Cadets are provided with written notification when they receive an NI. If a cadet receives two NI's in the same competency, he or she is given a U, or an Unacceptable rating. [60] The criticism in the September 8, 1999 Feedback document focused on Mr. Tahmourpour's alleged weaknesses in communication skills, group participation, self-assessment, ability to handle stress, and decision-making skills. A number of examples were provided that allegedly demonstrated his weaknesses in these areas. Mr. Tahmourpour was given one month to improve his performance; a meeting was set to discuss his progress. [61] Mr. Tahmourpour alleged that almost all aspects of the September 8, 1999 evaluation were false. He stated that his performance to that point in time was no more deficient than that of any other cadet, and that the negative assessments constituted adverse differential treatment on the basis of his race, religion and ethnic or national origin. In the alternative, if his performance was weak in any of the areas listed in the evaluation, it was because of the discriminatory treatment he was receiving. Unlike his fellow cadets, he was not provided with a non-discriminatory environment in which to develop and demonstrate his capabilities. [62] I will deal with two of the examples provided in the September 8, 1999 evaluation: Mr. Tahmourpour's weak communication skills and the pepper spray incident, the latter of which allegedly demonstrated his weaknesses in the handling stress and decision-making. These two examples are illustrative of the issues raised in this case. (i) Mr. Tahmourpour's Communication Skills [63] Mr. Tahmourpour's facilitators reported that he had a lot of difficulty in listening and communicating effectively. He demonstrated this during an anger management simulation on August 18, 1999. At the time, Mr. Tahmourpour failed to listen to clients who were offering a suitable course of action. Mr. Tahmourpour stated that although he did not perform remarkably well during this session, his performance was certainly no worse than other cadets in his Troop. [64] Another example that was provided in the September 8th evaluation of Mr. Tahmourpour's poor listening and communication skills involved the community consultative group scenario. Scenarios are role plays of situations that occur during the course of police work. They require the cadets to apply the information and skills that they have acquired in training to solve the problem in the scenario. [65] Mr. Tahmourpour volunteered to play the role of a police officer whose task was to facilitate a community meeting regarding an issue of concern to local residents. Corporals Bradley and Jacques reported that the members of a fictitious community brought different problems to the table and what started as a constructive meeting ended up in a destructive situation where community members were obviously upset with the police officer. They stated that this occurred because Mr. Tahmourpour failed to use good communication and consensus-building skills to define the problem and arrive at a solution. He failed to listen to the community members and seemed to have his own agenda. [66] In contrast, Mr. Tahmourpour stated that the community meeting went very well. He stated that the residents of the community wanted the by-laws changed so that guests to their home would not receive parking tickets when they visited. He told them that the law was the law, and that he would try to work through the appropriate channels to see what could be done. Mr. Tahmourpour thought that all of the participants were quite happy with that result. His troop mates gave him positive feedback on his handling of the incident. The Respondent's Explanation [67] Corporal (now Inspector) Bradley testified that from the beginning, she perceived that Mr. Tahmourpour had a great deal of difficulty in scenario training. He had difficulty reading the environment and responding appropriately. She stated that his difficulties stemmed from poor communication skills. Communication skills are more than just speaking. They involve listening, taking in information and responding appropriately. As a result of his inability to communicate effectively, Mr. Tahmourpour was poor in all aspects of risk assessment, police and public safety assessment and interactions with suspects. [68] Corporal Bradley stated that Mr. Tahmourpour was given regular verbal feedback about his communication skills. For example, in the anger management scenario, Mr. Tahmourpour was unable to respond to the cues and to use the techniques that he had been taught. In keeping with the standard procedure, his performance was critiqued after the scenario. Corporals Jacques and Bradley testified that the feedback would have been provided in a constructive way. [69] With regard to the Community Consultative Group, Corporal Bradley stated that Mr. Tahmourpour seemed to have formulated an approach to dealing with the problems presented in the meeting. Regardless of the information or emotion that was presented to him, he would not deviate from his plan. The result was that he did not listen to people and would not react to what they were saying. The group became increasingly angry when they perceived that Mr. Tahmourpour was not responding to the issues they were raising. He did not use the techniques that had been taught to engage in interest-based negotiation such as paraphrasing, identifying interests, asking questions, reading emotions and saying things like ok, I can see that this is really important to you, what can we do to help you with this? [70] Inspector Bradley provided credible testimony regarding Mr. Tahmourpour's communication difficulties. She performed well during a rigorous cross-examination on this point. When challenged, for example, about the fact that Mr. Tahmourpour's peers thought that he remained in control throughout the Community Consultative Group, Inspector Bradley stated that it was not inconsistent to remain in control of the group (which was generally positive) and yet, be unresponsive to the needs and interests that were being raised during the meeting. She did not waiver in her assessment that Mr. Tahmourpour's performance during this meeting was unacceptable. She was able to respond to the questions put to her by counsel for the Complainant in a calm, straightforward manner. She was assertive and forthright, and spoke with conviction and an air of candour that I found convincing. [71] In contrast, I found Mr. Tahmourpour's evidence on the issue of his communication skills to be less credible. He asserted that his performance in the Community Consultative Group was excellent because he came up with a solution. It appeared to me that he did not fully appreciate that there is more to communication than expressing one's own ideas and coming up with a solution to a problem. For example, when Mr. Tahmourpour was asked what he thought was meant by active listening he stated that he thought that it meant taking good notes. [72] Mr. Tahmourpour also demonstrated his weakness in self-assessment during the hearing. He agreed in cross-examination that he might have some weaknesses in communication skills. Yet, when asked what these weaknesses were, Mr. Tahmourpour was unable to identify any area. He often repeated that, like everyone, he had areas that he needed to work on. But, when pressed on what those might be, he was evasive. [73] Therefore, I think it more probable than not that by September 8, 1999 Mr. Tahmourpour had demonstrated that he was failing to develop certain communication skills that are essential to police work: active listening, consensus building, interest-based negotiation, and speaking in a commanding tone of voice. The first part of Mr. Tahmourpour's prima facie case, therefore, is not made out. [74] However, Mr. Tahmourpour asserted, in the alternative, that his weaknesses at Depot resulted from the constant unfounded criticism that he received at Depot. Mr. Tahmourpour did receive a lot of attention from the instructors at Depot. Some of the attention he received came in the form of sincere efforts to assist him to overcome weaknesses in areas such as communication skills. However, as I have already noted, he was also subjected to verbal harassment and derogatory remarks by Corporal Boyer that were based, at least in part, on his race, religion and/or ethnic or cultural background. Mr. Tahmourpour stated that he felt intimidated and his confidence was seriously undermined by this treatment. [75] Mr. Tahmourpour testified about his feelings of alienation and vulnerability arising from a session on sensitivity training that was held early in the program. He stated that Corporal Jacques introduced the session by stating: This is the session where we are going to teach you all how to be politically correct so that you don't get yourselves into trouble. After that introduction, one cadet stated: Let's go to Fort McMurry, eh. Then another cadet quipped: Let's stop for some photocopier juice and some varsol first, eh? The cadets imitated the accent of some Aboriginal Canadians when they made these statements. Apparently, many of the cadets laughed at these remarks. According to Mr.Tahmourpour, Corporal Jacques did not object to the statements or reprimand the cadets for making them. Mr. Tahmourpour stated that he felt extremely uncomfortable and alienated from his troop mates as a result of these obviously racist comments. [76] The Respondent did not provide any evidence in response to these allegations. Therefore, I find, on a balance of probabilities, that the events occurred as described by Mr. Tahmourpour and that their effect was to make Mr. Tahmourpour feel vulnerable to racism at Depot. [77] It is generally understood that racism and discriminatory treatment in general have a detrimental effect on the victim's ability to function effectively in the workplace (see for example: Nkwazi v. Correctional Service Canada [2001] C.H.R.D. No. 29 at para. 119; Naraine v. Ford Motor Co. [1996] O.H.R.B.I.D. No. 23 at para. 93, rev'd on an another point: (2001), 209 D.L.R. (4th) 465 (O.C.A.); Hinds v. Canada (Employment and Immigration Commission) [1988] C.H.R.D. No. 13). Therefore, in analyzing the particular allegations in a human rights complaint, the complainant's conduct must be assessed in the context of the wider work environment. If the work, (or in this case, training) environment was poisoned with discrimination and harassment, the Tribunal must determine whether this affected the complainant's conduct or performance. [78] When I consider Mr. Tahmourpour's conduct in the context of the discriminatory treatment he was experiencing at Depot, I find it more probable than not that this treatment was a factor in the difficulty he was having in developing and demonstrating acceptable communication skills. In an atmosphere where racial intolerance and harassment is tacitly condoned, and where cadets like Mr. Tahmourpour are subjected to verbal abuse and bullying, it is reasonable to infer that their performance will be negatively affected. For that reason, I find that although the facilitators' criticism of his communication skills was likely an accurate reflection of what they were seeing, it was not necessarily an accurate reflection of Mr. Tahmourpour's true abilities in this area. Mr. Tahmourpour was not provided with a non-discriminatory environment in which to develop and demonstrate his communication skills. Therefore, I find, on a balance of probabilities that the second part of Mr. Tahmourpour's prima facie case with respect to this aspect of the September 10, 1999 evaluation has been made out. (ii) The Pepper Spray Incident [79] On August 26, 1999, Troop 4 participated in a session where they received pepper spray in the face and then performed a series of tasks. The purpose of the session was to provide the cadets with a personal experience of the effects of pepper spray and to evaluate their performance under stress. Each cadet was matched with a partner whose role was to assist his or her troop mate afterwards to wash the spray out of the eyes and to recover. The cadets lined up with their partners. When their names were called, one cadet moved forward to receive the spray, while the other stayed close at hand to assist. [80] In the Cadet Performance Feedback Sheet dated September 8, 1999, Corporals Bradley and Jacques stated that prior to the pepper spray session, Mr. Tahmourpour was so nervous that he did not think he could go through with it. They further stated that during the testing, his anxiety made him oblivious to his surroundings. As a result, he was missing from the line-up when his partner was about to be sprayed. Other troop mates had to locate him so that he could look after his partner. [81] Mr. Tahmourpour testified that the evaluation of his performance during the pepper spray session was inaccurate. In his view, he did very well during the session. He was not missing when it was his partner's turn to be sprayed; he was right there to assist him as required. [82] Mr. Tahmourpour stated that the pepper spray evaluation was one of a number of false evaluations that were included in the September 8, 1999 Feedback document in order to make a case against him at the instigation of Corporal Boyer. Corporal Boyer had taken a prejudicial dislike to him and was doing everything he could to have his training contract terminated, according to Mr. Tahmourpour. [83] According to Mr. Tahmourpour, the September 8 evaluation in APS was completed on September 9 or 10, after he had had a confrontation with Corporal Boyer on September 9, 1999. On September 9, Corporal Boyer gave Mr. Tahmourpour a U for having a dirty pistol. Mr. Tahmourpour disagreed that his pistol was dirty. He asked for a second opinion. Corporal Boyer then flew into a rage and stated: Get the fuck out of my face or I'll kick your ass. Mr. Tahmourpour stated that the two men nearly came to blows, but because Mr. Tahmourpour backed down, they did not. Mr. Tahmourpour alleged that the September 8 Feedback in APS and was trumped up in response to suggestions from Corporal Boyer. [84] As proof that the evaluation was prepared in response to Corporal Boyer's pressure, Mr. Tahmourpour pointed to the fact that prior to September 8, 1999, he had only received formal feedback in Police Defensive Tactics and Firearms. He had received no formal feedback in APS for which Corporal Bradley and Corporal Jacques were the instructors. Then suddenly, on September 8, 1999 he received 12 NI's in APS. According to Mr. Tahmourpour, the September 8, 1999 was the first time that he learned that his performance in APS was seriously deficient. Contrary to the Cadet Assessment Procedures, he had not been told at the time of many of the incidents cited in the evaluation, that his performance was deficient. Those incidents date as far back as August 18, 1999 - about three weeks prior to the issuance of the formal feedback. The pepper spray incident was almost a full 2 weeks prior to the September 8, 1999 Feedback. If his performance had been deficient at that time, he should have been made aware of it then. [85] According to the Cadet Assessment Procedures, if no formal feedback is received, a cadet can assume that his or her performance is at the Professional (or P) level. Feedback is to be given immediately or as soon as possible after the event occurred so that the cadet has time to improve. Mr. Tahmourpour did not receive any formal feedback at the time of many of the incidents cited in the September 8, 1999 evaluation, and specifically for the pepper spray session on August 26, 1999. This constituted a significant deviation from the standard evaluation procedure. Together with the timing of the evaluation, it suggests that there was another factor influencing the Feedback on September 8, 1999 besides the instructors' concerns about Mr. Tahmourpour's performance. [86] Corporal Boyer had already demonstrated a prejudicial dislike towards Mr. Tahmourpour. Corporal Jacques and Corporal Boyer were in close contact with one and other since they both taught Firearms. Therefore, it is likely that Corporal Boyer had an influence on Corporal Jacques' opinion of Mr. Tahmourpour. [87] On the basis of the evidence presented by Mr. Tahmourpour, I find that he has established a prima facie case that he was treated differently from the other cadets in the evaluation of his performance in the pepper spray incident, and that his status as a visible minority cadet was a factor in this treatment. The Respondent's Explanation (i) What happened at the Pepper Spray Session? [88] Corporal Brendon McCarney provided a DVD of some of the troop's activities and training sessions. One of the activities that was recorded on the DVD was the pepper spray session. There was only one pepper spray session per troop at Depot. [89] Corporal McCarney testified that the troop hired a videographer to record a selection of activities to keep as a memento of their experiences at Depot. The DVD recording did not include all of the activities and sessions at Depot. The Tribunal accepted the DVD as evidence with the proviso that it did not represent the entirety of the experiences at Depot. Therefore, the events that are portrayed in the DVD must be examined in the context of all of the evidence presented during the hearing. [90] The DVD recording showed Troop 4 marching in to the area where the pepper spraying was to take place. They were in two lines. Mr. Tahmourpour was in a line beside Cadet Lasson, who was his partner for the pepper spray session. The DVD recording showed that Mr. Tahmourpour was not missing when Cadet Lasson was being sprayed: the video shows that Mr. Tahmourpour was, at that point in time, there to help his partner, Cadet Lasson. Cadet Meyer, however, was not there immediately when his partner, Cadet Lyle, was due to be sprayed in the face. The recording shows that a call went out to wait until Cadet Meyer was located. It would appear, therefore, on the basis of the DVD recording, that it was Cadet Meyer who was not there to assist his partner, not Mr. Tahmourpour. [91] Like the other cadets who testified in this case, Corporal McCarney had no recollection that any of the cadets were missing when their partner was being sprayed. However, when he watched the DVD again, he acknowledged that Cadet Meyer had to be located when his partner, Cadet Lyle, was about to be sprayed. He also acknowledged that the DVD showed that Mr. Tahmourpour was there when his partner, Cadet Lasson, was about to be sprayed. He stated that the cadets received only one treatment of pepper spray each. [92] Corporal Bradley was not present at the pepper spray incident; she had no recollection of the events other than what she had been told by Corporal Jacques. Corporal Bradley admitted that from what she observed on the recording, Mr. Tahmourpour was there for his partner and performed as well as the other cadets during the pepper spray test. However, she stood by the information that was provided to her by her fellow troop facilitator, Corporal Jacques, that at some point in time, Mr. Tahmourpour was not there for his partner when he was pepper-sprayed and had to be located. [93] Corporal Jacques stated that the problem with Mr. Tahmourpour's conduct was that he did not line up with the troop before the pepper spray session commenced. His troop mates had to find him and get him into line with the rest of the troop so that he could support his partner while he was being pepper sprayed. The line-up prior to the commencement of the pepper spray session was not shown on the DVD. [94] Corporal Jacques admitted in cross-examination that, contrary to his usual practice, he did not make a note of Mr. Tahmourpour's failure in his diary. He also admitted that he usually made notes in his diary of significant training events. He kept thorough notes about Mr. Tahmourpour's progress, but this incident was not in his notes. [95] There was another problem with Corporal Jacques' testimony. In spite of the witness exclusion order that was in effect, Corporal Jacques was informed prior to testifying about the DVD recording of the pepper spray incident and the difficulty that the previous witnesses had experienced in reconciling the content of the recording with the Feedback document indicating that Mr. Tahmourpour was absent when his partner was about to be pepper sprayed. This provided Corporal Jacques with an opportunity to present his evidence in a way that would address this difficulty. As a result, the witness exclusion order was effectively circumvented. This caused me to question the authenticity of the evidence that Corporal Jacques provided on this point. I am not sure that he would have recalled the moment when Mr. Tahmourpour was allegedly absent from the line-up had he not been provided an opportunity to consider the evidence that had been presented prior to testifying. Furthermore, the event was not noted in his diary, and he relied extensively on those notes to refresh his memory. [96] Finally, Corporal Jacques testified that Mr. Tahmourpour was not in line when the troop was preparing for the exercise. Yet, the Feedback document indicates that Mr. Tahmourpour was not ready when his partner was about to be sprayed. The wording of the Feedback document suggests a much more immediate absence from his place in line. It suggests the kind of conduct that was observed from Cadet Meyer who was not there when his partner was about to be sprayed. [97] On the basis of this evidence, therefore, I find that Mr. Tahmourpour's description of the pepper spray incident is more probable. He was, in fact, there for his partner when the time came for Cadet Lasson to be sprayed. He may have been nervous about the incident, but no more so than the other cadets appeared to be for what was clearly an intensely unpleasant and stressful event. I find therefore, that the Feedback document was not accurate. (ii) Was the September 8, 1999 Feedback influenced by Corporal Boyer? [98] The timing of the September 8, 1999 Feedback suggests that parts of it may have been fabricated, or at the very least, hastily and inaccurately prepared on September 9 or 10, in response to the incident that occurred on September 9, 1999 between Corporal Boyer and Mr. Tahmourpour. Based on the evidence that I heard, I think it more probable than not that part of the Feedback document was prepared on September 8, 1999 on a computer at Depot, and then additions were later made to it on September 9 or 10, 1999. [99] Corporal Boyer stated that he could not recall inspecting Mr. Tahmourpour's pistol on September 9, 1999. He denied, however, that he had threatened to beat Mr. Tahmourpour up on that day. He stated that he would have been in severe trouble had he done such a thing. He admitted, however, that he has used the term kick your ass in other contexts with cadets. [100] Corporal Boyer also could not recall if Mr. Tahmourpour had asked for a second opinion regarding the pistol's cleanliness. Corporal Boyer stated that if a cadet asked for a second opinion, he would calmly deny it and move on. Even though he admitted to being authoritarian, he stated that he would not be upset to hear a cadet make that kind of request. Corporal Boyer's testimony on this point is not consistent with the evidence that I heard about Corporal Boyer's temper on the range, nor with what he himself said about his manner with cadets and his propensity to swear. Corporal Boyer would not, in my view, have taken a challenge to his authority lightly. [101] I think it is more probable than not that Mr. Tahmourpour did challenge Corporal Boyer's assessment of the cleanliness of his weapon and asked for a second opinion. I accept Mr. Tahmourpour's version of what happened when he did so. His evidence on this point was most consistent with other evidence in this case. [102] Mr. Tahmourpour alleged that after the confrontation occurred, Corporal Boyer falsely issued 2 NI's and a U in Firearms on September 9, 1999, and then urged his fellow instructor, Corporal Jacques to issue negative feedback to Mr. Tahmourpour also. [103] Corporals Bradley and Jacques denied that this was the case. However, Corporal Bradley did admit that the instructors spoke to one and other about the cadets' performance and that Corporal Boyer was not one to keep his opinions to himself. [104] Corporal Jacques, who taught APS with Corporal Bradley, was also cross-trained to Firearms and worked closely with Corporal Boyer. That meant that Corporal Jacques taught both APS and Firearms at Depot. Corporal Jacques struck me as someone who might well be influenced by an experienced officer with an extremely strong personality like Corporal Boyer. [105] Interestingly, on September 10, 1999 Corporal Jacques noted in his diary that Mr. Tahmourpour did not have the basic qualities to be a police officer. Yet, up until September Mr. Tahmourpour's performance at Depot had not merited a single NI other than two in Firearms and one for improper handcuffing in PDT. Out of the blue, on September 10, 1999, Mr. Tahmourpour was presented with a performance evaluation indicating that he had 12 NI's in APS. In cross-examination, Corporal Jacques was asked: If during July and August, Mr. Tahmourpour demonstrated that he lacked the basic qualities to be a police officer, and was so clearly off the mark, why had he not received a single NI in APS during that time? [106] Corporal Jacques responded that Mr. Tahmourpour was given informal verbal feedback on an ongoing and immediate basis that his performance in the areas outlined in the September 8th evaluation was weak. Some of the NI's would have come as a surprise to him, but not all. He would have known from the feedback that was being given to him on a regular basis that his performance was below what was expected. [107] Corporal Bradley stated that early in the program, it does not make sense to give the cadets formal feedback for the many mistakes they are making. The provision of formal feedback at this stage of training could result in the early and unfair termination of a training contract. Therefore, cadets are given informal verbal feedback and time to improve before formal feedback is issued. [108] However, in my view providing Mr. Tahmourpour with verbal feedback that he could improve in certain areas would certainly not have signaled to him that his performance was so deficient that he was at risk of receiving 12 NI's in APS. Corporal Jacques' admission that some of the NI's would have come as a surprise to Mr. Tahmourpour indicates that, contrary to the Cadet Assessment Procedures, Mr. Tahmourpour was not given immediate feedback on his performance in all respects, and that the September 8 Feedback was, therefore, a deviation from the standard practice at Depot. [109] The Respondent failed to provide a reasonable explanation as to why the standard practice was not followed in this case. Furthermore, it has not refuted Mr. Tahmourpour's assertion that Corporal Boyer's discriminatory conduct towards Mr. Tahmourpour was a factor in the September 8, 1999 Feedback. On the contrary, Corporal Jacques' response to a question about the Cadet Cumulative Data Sheet led me to the conclusion that he prepared at least some of the September 8 Feedback after the incident between Corporal Boyer and Mr. Tahmourpour over the pistol inspection. This supports the theory that discrimination was a factor in the September 8 Feedback. [110] The Cadet Cumulative Data Sheet (CCDS) is a document that is used by the troop facilitators to keep track of all the Feedback that is given to the cadets by the various instructors at Depot, and the dates on which the Feedback is provided. It is a master evaluation sheet. Feedback from the instructors is usually recorded on the CCDS in chronological order. However, in Mr. Tahmourpour's case, the 2 NI's and 1 U in Firearms that he was given on September 9, 1999, were entered before the 12 NI's that were purportedly given to Mr. Tahmourpour on September 8, 1999. [111] Corporal Bradley explained that this sometimes happens when instructors provide their Feedback forms late or the facilitators have not had time to update the Cumulative Data Sheet. However, in this case, it was the facilitators who were preparing the September 8th Feedback and who should have been able to enter that on the Cumulative Data Sheet immediately after preparing it. Then, when the Feedback was received from Firearms on or after September 9, 1999, it would have been entered after the September 8th Feedback from the facilitators. [112] Corporal Jacques was questioned about this anomaly. His answer was equivocal. He stated: the only thing that I can think of now is that the three Feedback Sheets that were dated September 9, from Firearms were entered first, while I was working on the other uh ... before the other document was served to Cadet, Mr. Tahmourpour and that's why it got entered after the September 9th Feedback Sheets. The first part of Corporal Jacques' answer (before the uh) suggests that he was working on the September 8th Feedback Sheet containing the 12 NI's on September 9 or later, when the three Feedback Forms (containing the 2 NI's and a U) from Corporal Boyer came in. This lends credence to Mr. Tahmourpour's theory that the Feedback he received from Corporals Bradley and Jacques was influenced, at least in part, by Corporal Boyer's negative impressions of him. I think that the second part of Corporal Jacques' statement was an attempt to put a different spin on what happened. [113] Therefore, I find that it is more probable than not that Corporal Jacques was influenced by Corporal Boyer's racist attitude towards Mr. Tahmourpour. Corporal Jacques responded to that influence by providing an inaccurate evaluation of Mr. Tahmourpour's performance during the pepper spray session. [114] Accordingly, I find that discrimination was a factor in the September 8th Feedback regarding Mr. Tahmourpour's performance in APS. (b) Corporal Boyer's Request for File Review [115] On September 30, 1999, Corporal Boyer made a request for the review of Mr. Tahmourpour's file. A file review is the first step in the process of terminating a cadet's contract. [116] The Cadet Assessment Procedures stipulate that a cadet's contract will be terminated if the cadet receives 2 U's in the same competency during one assessment period, with no improvement shown. A contract may also be terminated if the cadet receives a total of 2 U's in different or the same Competencies. [117] Corporal Boyer made the request for a file review on the basis of 2 U's and 5 NI's in Firearms. The feedback related to a number of issues within Firearms such as the manipulation and handling of a shotgun and a pistol, the proper loading of a firearm, failing the shooting accuracy benchmarks and finally pistol cleanliness. [118] Mr. Tahmourpour took issue with some, but not all of the evaluations that were given to him in Firearms. In particular, he alleged that the 2 U's that he was given for having a dirty pistol on September 9, 1999 and September 28, 1999, were fabricated by Corporal Boyer to build a case for the termination of his contract. [119] Mr. Tahmourpour received an NI for having a dirty pistol on August 26, 1999. He took this negative evaluation very much to heart. He cleared the NI by presenting a clean pistol on two subsequent occasions. He became an expert in cleaning a pistol. He cleaned pistols for everyone in the troop and they passed their weapons inspection; he did not, however. [120] Mr. Tahmourpour stated that on September 9th when he received a U for a dirty pistol, he knew his weapon was in pristine condition. Therefore, he disputed Corporal Boyer's assertion that it was dirty and merited a U. Furthermore, he stated that if his pistol was truly dirty, he should have received an NI, not a U, since he had cleared the previous NI, and therefore, was starting fresh. [121] Mr. Tahmourpour testified that on September 28, 1999, he again presented his pistol for inspection, this time to Corporal Jacques. Corporal Jacques claimed that it was dirty. Mr. Tahmourpour stated that it was not dirty. After further inspection and attempts to dislodge the dirt, Corporal Jacques agreed with Mr. Tahmourpour that there was a textured discoloration in the magazine part of the weapon. This was a design flaw, not dirt. He permitted Mr. Tahmourpour to go on the range and shoot with the pistol. After the shooting, Corporal Boyer approached Mr. Tahmourpour and insisted that his weapon had been dirty and that he would have to sign the feedback document assigning him a U. Mr. Tahmourpour protested, stating that Corporal Boyer had not even been present for the inspection. [122] The Feedback documents for both dirty pistol incidents were drafted and signed by Corporal Jacques. They did not indicate who had performed the inspections. [123] Corporal Boyer concluded his request for a file review by stating that according to the Cadet Assessment Procedures, 2 U's in the same competency meant that file review should be requested with a view to terminating the cadet's training contract. [124] Mr. Tahmourpour presented credible evidence that his pistol was clean when he presented it for inspection on September 9 and 28, but Corporal Boyer judged it to be dirty. Mr. Tahmourpour has, therefore, established a prima facie case that Corporal Boyer treated him differently than other cadets with respect to the evaluation of his performance in the Firearms Unit. Given the discriminatory statements and verbal abuse of Mr. Tahmourpour by Corporal Boyer, I find, on a prima facie basis, that the differential treatment with respect to the evaluation of Mr. Tahmourpour's performance and the consequent request for file review were based, at least in part, on a prohibited ground of discrimination. The Respondent's Explanation [125] The Respondent asserted that the evaluation of Mr. Tahmourpour's performance in Firearms was entirely fair and accurate; Mr. Tahmourpour's pistol was dirty on September 8, 1999 and on September 28, 1999. [126] Corporal Boyer explained that there is an unwritten policy in Firearms that a cadet is automatically assigned a U if his or her pistol is dirty in situations where he or she has had a previous NI for pistol cleanliness, even if that NI has been cleared. There is no discretion according to Corporal Boyer. Corporal Jacques however, did not mention this policy; he simply stated that if the pistol is found to be dirty a second or third time and it is clear that no effort has been made, the cadet will receive formal feedback. Sergeant Guay (now Chief Superintendent), the officer in charge of Firearms instruction at the time, testified that a U is given when a weapon is consistently dirty. [127] On the basis of the evidence that I heard, I was not convinced on a balance of probabilities, that Corporal Boyer's statement about the automatic U for a second dirty pistol was accurate. Given the serious consequences of receiving a U, I think it more likely than not that if there was an automatic U policy with respect to gun cleanliness, it would be set out in the Cadet Assessment Procedures. Certainly, the cadets and the instructors would have to be made aware of the policy. Yet, none of the other witnesses in this case testified about such a policy. Therefore, I find that it was a discretionary decision on the part of the Firearms instructor to assign an NI or a U for a second dirty pistol. [128] The Respondent's evidence with regard to the pistol inspection on September 9, 1999 was weak: Corporal Boyer could not recall that inspection, and Corporal Jacques did not address either of the two pistol inspections in his testimony. The note in the Request for File Review states that on September 9th the pistol was filthy. [129] In contrast, Mr. Tahmourpour's evidence about the pistol inspection on September 9, 1999 was clear and unshaken on cross-examination. He knew that his pistol was clean. He had become an expert in cleaning pistols. However, to be sure that it was clean, Mr. Tahmourpour had asked a fellow troop mate to check it before the September 9th inspection. Although none of the troop mates who testified could recall checking his pistol, Corporal Draudy stated that it was common to do so. He said that it was likely that Mr. Tahmourpour would have had his pistol checked before presenting for inspection. Mr. Tahmourpour stated that he knew he could not afford to make any mistakes in training at this point. He was so sure that his pistol was clean that when Corporal Boyer told him that it was dirty, he demanded a second opinion. [130] Corporals Bradley and Hébert stated that in situations where there was a disagreement, it is a good idea to obtain a second opinion. Sergeant Guay, on the other hand, thought that this was inappropriate. There was, however, evidence that second opinions were provided on occasion in training, and that Firearms Instructors would inspect pistols together to ensure that they had properly assessed their cleanliness. Yet, Corporal Boyer refused to do this. He was angry that Mr. Tahmourpour had the temerity to ask for a second opinion. Therefore, he assigned Mr. Tahmourpour a U, even though he could have assigned an NI if the pistol had in fact, been dirty. [131] Mr. Tahmourpour's evidence stands as the clearest account of what happened on September 9, 1999. The Respondent has not refuted Mr. Tahmourpour's assertion that his pistol was clean on September 9, 1999. [132] Corporal Boyer had a clear recollection of the September 28th inspection. However, his description of the incident differed greatly from that of Mr. Tahmourpour. Corporal Boyer said that he did the inspection himself. He found that Mr. Tahmourpour had done a good job of cleaning most of the pistol. However, he had missed a piece of carbon in a portion of the barrel where residue is often found. Corporal Boyer was able to dislodge this piece of carbon quite easily with a pen. [133] Mr. Tahmourpour, on the other hand, claimed that Corporal Jacques inspected his pistol on September 28 and had agreed with him, upon closer inspection, that the apparent dirt was in fact, a textured discoloration inside the gun. [134] The issue thus boils down to one of credibility. Unfortunately, neither gentleman provided consistently credible testimony throughout the hearing. Both had a tendency to present evidence in a manner to suit their own purposes. This made it difficult to determine what really happened. [135] As is often the case, it is probable that the truth lies somewhere between the two versions of the events. My best assessment of the evidence is that Corporal Jacques inspected Mr. Tahmourpour's pistol on September 28, 1999. He told Mr. Tahmourpour that his pistol was dirty. Mr. Tahmourpour, however, insisted that the dirt was really a textured discoloration. Rather than getting into a fight with Mr. Tahmourpour over this, Corporal Jacques sent him onto the Range to practice shooting. (There was evidence that this was done to teach cadets the effect of having a dirty pistol.) Later, when Corporal Boyer was told what had happened, he inspected Mr. Tahmourpour's gun to see if there was a textured discoloration. He found no such flaw. He was able to flake the carbon in Mr. Tahmourpour's gun off with a pen. Since Mr. Tahmourpour had just been firing his gun, it is likely that there would have been carbon in the barrel. [136] I do not think that it can be said, with any degree of accuracy, whether Mr. Tahmourpour's pistol was dirty on the 28th. What can be said, however, is that there were two very negative encounters on September 9 and September 28, 1999, regarding the cleanliness of Mr. Tahmourpour's pistol that were not handled well by Corporal Boyer. He exhibited a degree of animosity towards Mr. Tahmourpour that is not fully explained by the fact that Mr. Tahmourpour challenged his instructors' opinions. [137] A request for a file review is made only when a cadet has received two U's in the same competency (which in this case, was pistol cleanliness). The U that Mr. Tahmourpour received from Corporal Boyer on September 9, 1999 was the only U he had received in training up to that point. Thus, even if Mr. Tahmourpour's pistol was, in fact, dirty on September 28, 1999, Corporal Boyer's request for file review on September 30, 1999 was improper; at best, it would have been based on only 1 U for pistol cleanliness. Indeed, even if Mr. Tahmourpour's gun was dirty on September 28, 1999, Corporal Boyer could have given him an NI. He chose not to do this. [138] Given the direct and circumstantial evidence of Corporal Boyer's discriminatory attitude toward Mr. Tahmourpour, I find, on a balance of probabilities, that Mr. Tahmourpour's race, religion and/or ethnic or national background was a factor in Corporal Boyer's assessment of the cleanliness of Mr. Tahmourpour's pistol on both September 9 and September 28, 1999. [139] On a balance of probabilities, I find, therefore, that Corporal Boyer's request for file review was improper and was based, at least in part, on a prohibited ground of discrimination. (c) The October 8th Cadet Performance Feedback and The October 7th Termination Request [140] On October 7, 1999, Corporals Bradley and Jacques submitted a request for the termination of Mr. Tahmourpour's training contract based on their review of his file. The 2 U's that Mr. Tahmourpour received for pistol inspection triggered the review of his file which ultimately led to the request for the termination of Mr. Tahmourpour's contract. The request for termination was made one day prior to the completion of the one month deadline that Mr. Tahmourpour had been given to improve his performance in Applied Police Sciences. [141] In the Termination Request, Corporals Bradley and Jacques noted that Mr. Tahmourpour would be receiving an additional set of 5 U's in APS on the following day, on October 8th in a Cadet Performance Feedback Sheet. October 8th was the one month deadline for improvement in APS. Corporals Bradley and Jacques stated that in spite of obvious effort on Mr. Tahmourpour's part, he had shown no real improvement in the APS areas where he was deficient in September. Therefore, they stated that the termination request was not based on the two U's in Firearms alone. It was also based on the 5 U's that he was to receive in APS. [142] Mr. Tahmourpour disputed the entire contents of the Cadet Performance Feedback Sheet dated October 8, 1999, and the Termination Request dated October 7, 1999. He maintained that they were based on false evaluations, exaggerations and underestimations of his performance at Depot. The following are two examples of his allegations in that regard: (1) The Request for Termination states that Mr. Tahmourpour had difficulty in learning and applying the techniques in Police Defensive Tactics and that his skills in this area were weak. Mr. Tahmourpour said this was inaccurate. He asserted that the PDT instructor, Corporal Sloan, had told him that she was happy with his performance in PDT. He had failed his first test in PDT on August 25, 1999 for poor handcuffing technique (for which he received an NI), but improved and then passed the re-test with Corporal Brock, an instructor who was known for being tough but fair (the NI was replaced with a P on October 1, 1999). [143] The Request for Termination indicates that Corporal Sloan did not think that the PDT re-test was a good measure of Mr. Tahmourpour's abilities in PDT because it was not one of the most difficult tests. It dealt with combative behaviour which did not involve a great deal of decision-making. [144] Mr. Tahmourpour stated that he knew these views were not those of Corporal Sloan. During the meeting on October 7, 2008 to discuss the Request for Termination, he asked Corporals Jacques and Bradley if they would bring Corporal Sloan in to the meeting to clarify her views on his PDT skills and the re-test. His request was denied. [145] There was a significant difference between the wording of the Request for Termination dated October 7, 1999, and the Cadet Performance Feedback Sheet dated October 8, 1999. In the latter, Corporal Jacques stated that he observed the testing and felt that the test did not allow for the demonstration of enough skills to upgrade Mr. Tahmourpour's NI to a P. This would suggest that it was Corporal Jacques, not Corporal Sloan, who thought that the PDT re-test was not a good test of Mr. Tahmourpour's abilities. [146] Regardless of whether the PDT re-test was a good test of Mr. Tahmourpour's skills, by the time the termination request was made he did not have a single NI in PDT. Therefore, according to Mr. Tahmourpour, it was inaccurate and unfair to allege that he was weak in PDT. If he was weak, there should have been NI's on his record since an NI is to be assigned for performance that is even slightly deficient. If no formal feedback is provided, a cadet is entitled to assume that his or her performance is professional, according to the Cadet Assessment Procedures. (2) The Memorandum requesting termination of Mr. Tahmourpour's contract indicates that he was being given 5 U's in APS because he had not been able to show improvements in the areas discussed one month ago. Those areas related to communication, decision-making, planning and coordination, risk management and self-evaluation as demonstrated in scenarios, Physical Training, Applied Police Sciences, and Firearms. [147] Mr. Tahmourpour stated that, contrary to the October 8th Feedback Sheet and the Termination Request, he had demonstrated real improvements in these areas in the following ways: While he performed poorly in the first scenario involving a domestic disturbance on August 18, 1999, on September 30, 1999 Corporal Jacques noted that he had improved, although some mistakes were made. Mr. Tahmourpour was not given an NI for his performance in this scenario. Therefore, according to the Cadet Assessment Procedures, his performance in this scenario was deemed to be professional (P). That constituted an improvement from the August 18th domestic disturbance scenario. Mr. Tahmourpour testified that his second detachment visit on or about September 24, 1999 went very well. Detachment visits, which occur halfway through training, involve a visit to a mock RCMP Detachment unit where the cadets are called out to deal with situations, just as though they were on police duty at an RCMP Detachment anywhere in Canada. The Detachment scenarios require the cadets to integrate and apply many of the skills they have learned in the various units in training. The visit usually happens over a two day period. Mr. Tahmourpour's performance on the second day was monitored by Corporal Torsky. Mr. Tahmourpour stated that Corporal Torsky was exceptionally happy with his performance on the second day of the detachment visits. He was not given any feedback, which meant that his performance on this scenario was at the professional level. Mr. Tahmourpour performed very well on the Firearms Simulator Test. The simulator is a computerized system on a large screen television monitor that responds to the cadet's reactions. Mr. Tahmourpour was told that the simulator was quite difficult and that in fact, it was more difficult that any other scenario. He identified himself as a police officer and was able to defend himself against numerous simulated attackers. Corporal Jacques told Mr. Tahmourpour that he was quite impressed with Mr. Tahmourpour's performance on the firearms simulator. Mr. Tahmourpour performed well in instinctive shooting. Instinctive shooting is a technique where the individual looks at the target and without utilizing the sights of the pistol, fires at the target. It is very hard to acquire this skill and requires a lot of practice to master. Mr. Tahmourpour stated that the Request for Termination failed to take into account the fact that he had passed the Physical Abilities Requirement Evaluation (PARE) test on both test dates and that he had reduced his time in the PARE test by 35 seconds during the 24 weeks he spent at Depot. [148] Mr. Tahmourpour has established a prima facie case that his abilities in the program were not assessed fairly on the Cadet Performance Feedback Sheet and in the termination request. His accomplishments and improvements were minimized or not noted at all. His performance in PDT was not fairly assessed. [149] Dr. Wortley testified that systemic discrimination is often manifested in the underestimation or minimization of an individual's abilities. He hypothesized that systemic discrimination may be one of the reasons that the attrition rate for visible minority cadets at Depot was roughly twice as high as that of non-visible minority cadets during the time that Mr. Tahmourpour was in attendance there. [150] Dr. Wortley analyzed three sets of data provided by the RCMP with respect to attrition and failure rates at Depot. Attrition refers to early departures from the program for a number of reasons including failure, personal reasons and misconduct. The first set of data provided by the RCMP related to attrition rates for the period 1996-2000. Those statistics showed an attrition rate for non-visible minority cadets at Depot of 5.97% over the five year period. The average attrition for visible minorities is 13.35% over the five-year period in question. For 1999/2000, the year that Mr. Tahmourpour's contract was terminated at Depot, the attrition rate for visible minorities was 16.98%, and for non-visible minorities it was 6.88%. [151] The second set of statistics for attrition rates for the period from 1996-2001 revealed a similar pattern. The attrition rate for visible minorities was 2.24 times higher than the attrition rate for non-visible minorities. Dr. Wortley stated that this was a statistically significant difference. [152] The third set of statistics presented the failure rates of cadets at Depot from 1998-2003. The failure rate is a subset of the attrition rate. Attrition rates cover cadets who have left the program for personal reasons, have been expelled for misconduct and who have failed. The third set of statistics revealed that the rate of failure among visible minority cadets in the training program (12.2%) was almost double that of the Caucasian candidates (6.5%). Furthermore, for the year that Mr. Tahmourpour was at Depot, the failure rate for visible minority cadets (19.6%) was almost three times that of the Caucasian cadets (7.0%). The same is true of 2000-2001. [153] I accept Dr. Wortley's testimony that despite some problems with the RCMP's means of obtaining and reporting these statistics, they constitute the best information available. I also accept his testimony that they reflect the actual number of cadets who were in the program, and are not a sample group. As a result, the problems regarding sample size that are associated with social science research are not an issue in this case. I find, therefore, that the statistics are reliable on a balance of probabilities. [154] On the basis of this evidence I find that during the year that Mr. Tahmourpour was in attendance at Depot, the attrition rate for visible minority cadets was 16.98%, and for non-visible minority cadets it was 6.88%. The failure rate was 19.6% for visible minorities and 7% for non-visible minorities. [155] Given the circumstantial evidence of differential attrition rates and discriminatory attitudes towards visible minority members and cadets, I think that it is a reasonable inference that the minimization or discounting of Mr. Tahmourpour's abilities in the October 8 Feedback and in the Request for Termination was based, at least in part, on his race, religion and/or ethnic or national origin. Mr. Tahmourpour has, therefore, established a prima facie case with regard to this allegation. The Respondent's Explanation [156] The RCMP denied the existence of systemic racism at Depot. It presented Dr. Garry Bell, an RCMP employee, as an expert witness to respond to the analysis of the data on attrition rates provided by Dr. Wortley. Dr. Bell was the Acting Officer in Charge of Cadet Training who agreed with the recommendation that Mr. Tahmourpour not be considered for re-enrollment at Depot. Given the closeness of his connection to one of the parties in the case, and to one of the questions being litigated, the Tribunal was of the view that the probative value of Dr. Bell's opinion evidence would be significantly outweighed by its prejudicial effect. Therefore, the Tribunal did not permit Dr. Bell to testify as an expert in this case. [157] The RCMP provided data indicating that the attrition rates for regular RCMP members for the period from 1997-2004 was significantly lower than that of the non-visible minority members. The RCMP also produced a statement from the Canadian Human Rights Commission dated May 16, 2007, indicating that the RCMP had demonstrated that it was fulfilling its obligations under the Employment Equity Act with regard to regular members. Those obligations require the RCMP to identify and remove employment barriers against women, Aboriginal people, members of visible minority groups and disabled persons. [158] The evidence provided by the Respondent with regard to the employment equity obligations and the attrition rates of regular members did not address the situation of cadets at Depot. It applied exclusively to individuals who are employed by the RCMP. Cadets at Depot are not yet employed by the RCMP. They are not paid to attend the Academy and they are not considered to be employees. Therefore, I find that the RCMP did not provide evidence to counter the evidence presented by Mr. Tahmourpour with regard to the attrition rates at Depot. [159] The RCMP contended that Mr. Tahmourpour's race, religion and/or national or ethnic origin had absolutely nothing to do with his dismissal. He was simply unable to demonstrate the required skills by that point in training and showed no likelihood that he would be able to do so in the future. The RCMP denied that Mr. Tahmourpour was unfairly evaluated. [160] Corporal Bradley stated that while Mr. Tahmourpour may have passed the re-test in PDT with Corporal Brock, the scenario in the re-test did not provide an opportunity to test the areas where Mr. Tahmourpour had been identified in APS as having been weak: communication skills, decision-making, risk-assessment, and self-evaluation. That explanation may explain why one day after the interview in which Mr. Tahmourpour disputed that Corporal Sloan had said he was weak in PDT, the Feedback Document dated October 8, 1999 indicated that Corporal Jacques did not think the re-test was a good measure of Mr. Tahmourpour's APS-related performance. [161] However, the RCMP's explanation does not explain why Mr. Tahmourpour was reported as being weak in PDT. Corporal Bradley admitted that Corporal Brock, who conducted the second PDT test and removed Mr. Tahmourpour's NI in this area, was an extremely competent PDT instructor and that his evaluation of Mr. Tahmourpour's ability in PDT could not be second-guessed. Mr. Tahmourpour did not receive any NI's in PDT other than for the first test which he then cleared with Corporal Brock. Therefore, his PDT skills should have been considered professional and not the subject of comment in the Termination Request. If Mr. Tahmourpour had not been put on notice, through the issuance of formal NI's in PDT, that his performance was deficient enough to count towards the termination of his contract, he was entitled to assume that his performance in PDT was professional. [162] It is significant that Corporal Sloan, who allegedly made the negative comments about Mr. Tahmourpour's performance in PDT, was not called as a witness by the RCMP. [163] I find that the RCMP did not provide a satisfactory explanation with regard to the negative assessment and portrayal of Mr. Tahmourpour's performance in PDT. [164] Corporal Bradley gave very convincing testimony about the difficulties that Mr. Tahmourpour was having with respect to communication skills and self-evaluation in APS. During Mr. Tahmourpour's testimony, I observed some of the same weaknesses. For example, Mr. Tahmourpour's ability to self-assess seemed to me to be weak. He asserted that, like all cadets, he had weaknesses. Yet, when asked what those weaknesses were he was unable to respond. As has already been noted, Mr. Tahmourpour's idea of active listening was taking good notes. I also noted that Mr. Tahmourpour was often evasive in his responses to questions put to him by his own counsel and by counsel for the Respondent in cross-examination. His responses particularly to the questions about his activities after he left Depot were unclear, contradictory and hard to follow. [165] I also note the testimony of Mr. Tahmourpour's three fellow troop mates that his skills in many areas were so weak that they would be afraid to work with him in the field. There was credible evidence that Mr. Tahmourpour had difficulty performing competently in scenarios, and that this was largely a function of his inability to listen to people, to integrate the information he received and to formulate an appropriate course of action based on that information. [166] However, I am troubled by the fact that evaluations of arguably legitimate weaknesses in Mr. Tahmourpour's performance at Depot were included among evaluations, such as the PDT evaluation, the pistol cleanliness evaluation and the pepper spray evaluation, that were improper or that discounted his abilities. [167] Moreover, the Cadet Performance Review that was provided a month (or so) after the September 8th evaluation indicated that Mr. Tahmourpour had made no real progress. On that basis he was given the 5 U's that formed part of the termination request. Yet, the RCMP witnesses agreed that Mr. Tahmourpour had improved his PARE time, and had performed well in instinctive shooting and in the Firearms Simulator test. Corporal Jacques stated that Mr. Tahmourpour had performed to a professional standard on the second day of the detachment visit and that he had shown sufficient improvement in the domestic disturbance scenario that no formal feedback had been issued. Yet, these improvements or positive performances are not noted in the one month Cadet Performance review. [168] Any positive achievements that are noted in the Assessment are discounted. Mr. Tahmourpour passed his PDT test, but the test was not a good measure of his abilities in APS. He passed his APS exam, but he could not apply the knowledge that he had demonstrated in the exam. While this may be true, the lack of inclusion of his success in the above-mentioned areas conveys a distinctly different picture of Mr. Tahmourpour than had they been included. [169] Corporal Hébert stated that in a Request for Termination, it is assumed that those areas that are not discussed are professional; only the problematic areas are presented. I accept this explanation as far as the request for termination is concerned, but with respect to the one-month follow-up assessment, I was not given a satisfactory explanation as to why Mr. Tahmourpour's improvements were not noted. Furthermore, I was not given a satisfactory explanation as to why the facilitators did not wait until they had completed the one-month follow-up assessment before they requested Mr. Tahmourpour's termination. [170] When asked whether improvement in PDT, and in the second day of the detachment visit, and the absence of an NI in the second domestic disturbance scenario constituted improvement, Corporal Bradley simply maintained that Mr. Tahmourpour was not showing improvement. Clearly, that was not the case. The improvements may not have been sufficient for Corporals Bradley and Jacques to change their opinions of Mr. Tahmourpour's suitability for police work. However, their failure to provide a balanced account of Mr. Tahmourpour's performance up to that point in training, as well as their inclusion of inaccurate assessments, strongly suggests that there was another factor influencing their assessment of Mr. Tahmourpour's file. The RCMP has not rebutted the prima facie case raised by Mr. Tahmourpour that his race, religion and/or ethnic or national origin were a factor in the assessment of his file and the request for termination of his training contract. [171] I accept Corporal Bradley's testimony that she had real concerns about Mr. Tahmourpour's communication skills, judgment and ability to solve problems. She did not think that he would be able to do police work because of these deficiencies. The problem with this explanation, however, is that in a training environment where derogatory comments about race are condoned and directed at people like Mr. Tahmourpour, where evaluations are inaccurate and improper, and where instructors take pride in being politically incorrect, it is difficult for someone like Mr. Tahmourpour to develop and demonstrate his skills in these areas. I find it reasonable to infer that such conditions erode one's confidence and ability to perform well. Therefore, the Respondent's explanation that Mr. Tahmourpour's performance at Depot was weak is not satisfactory. Mr. Tahmourpour's performance was more likely than not affected by the discrimination to which he was exposed. C. The Decision to Terminate Mr. Tahmourpour's Contract [172] On October 20, 1999, the Commanding Officer of Depot, Chief Superintendent Lynn Twardosky terminated Mr. Tahmourpour's training contract. The decision was based on the recommendation made to the Commanding Officer by Corporals Bradley and Jacques. In her written decision, the Commanding Officer stated that she concurred with Corporals Bradley and Jacques' decision to terminate Mr. Tahmourpour's contract. [173] The recommendation and decision to terminate Mr. Tahmourpour's contract were based on discriminatory assessments of Mr. Tahmourpour's skills. In addition, they were based on his performance in a program where he was not given an equal opportunity like other cadets, to develop and demonstrate his abilities and skills at Depot. Therefore, I find that discrimination on the basis of a prohibited ground was a factor in the termination of Mr. Tahmourpour's training contract. D. The Assessment of Mr. Tahmourpour's Suitability for Re-enrollment [174] Mr. Tahmourpour was told that it was not uncommon for cadets to fail the training program and then be re-admitted by the RCMP at a later point in time. When his contract was terminated, Mr. Tahmourpour hoped that this would be the case for him. However, to his surprise, he discovered that a memorandum had been placed on his file, dated December 23, 1999, indicating that he was to be given no consideration by the Recruiting Division for re-enrollment. [175] The author of the memorandum was Sergeant Champigny, the Career Manager at Depot at the time. Sergeant Champigny did not testify. However, in the Memorandum he stated that during the termination process, Mr. Tahmourpour demonstrated physical symptoms that appeared to be related to stress. He reported that on two separate occasions, Mr. Tahmourpour's troop mates escorted him to the Medical Treatment Centre because he was vomiting, shaking, hyperventilating and was incoherent. Sergeant Champigny reported that Corporals Bradley and Jacques consulted with the F Division staff psychologist (no name given) who described Mr. Tahmourpour's behaviour as passive suicidal ideation. Sergeant Champigny reported that a follow-up discussion with Dr. Roy, another staff psychologist, revealed that Dr. Roy had concerns about Mr. Tahmourpour's ability to handle difficult and challenging situations. Dr. Roy would not recommend Mr. Tahmourpour for re-engagement. [176] Mr. Tahmourpour stated that he went to the Medical Treatment Centre on only one occasion on October 15, 1999, for treatment of vomiting, hyperventilation and shaking. He stated, however, that he did not meet with a psychologist or a doctor. He denied that suicide had ever entered his thoughts. He was sick, exhausted and upset about the discrimination he had experienced at Depot and the termination of his training contract. [177] After Mr. Tahmourpour left Depot, he sent a letter to the troop via Corporals Bradley and Jacques in which he expressed his hope that he and his troop mates would be reunited at some point in the future. Corporal Bradley and Corporal Jacques found this to be very odd. They were concerned that he had not accepted the reality of his termination. Corporal Jacques provided a copy of Mr. Tahmourpour's letter to Dr. Roy and suggested that he let the people in staffing know what his opinion was of Mr. Tahmourpour's mental state. [178] Mr. Tahmourpour has established a prima facie case that he was treated differently from other cadets who had not successfully completed their training. He was denied the opportunity to re-enroll at Depot on the basis of a medical opinion that appears to have been given without ever having met him. Moreover, the evidence strongly suggests, on a prima facie basis, that Mr. Tahmourpour's facilitators were instrumental in ensuring that he would not be permitted to re-enroll at Depot. Given the foregoing evidence of the discriminatory treatment of Mr. Tahmourpour and the systemic discrimination at Depot, I find that there is a prima facie case that the denial of an opportunity to re-enroll was based, at least in part, on Mr. Tahmourpour's race, religion and/or ethnic or national background. The Respondent's Explanation [179] The RCMP alleged that Mr. Tahmourpour became mentally unstable after he was given the news on October 7, 1999 that a request had been made to terminate his training contract. Staff psychologists provided their opinions that Mr. Tahmourpour should not be considered for re-enrollment given his evident inability to deal with stress and challenges. [180] Corporals Droudy and Mangat testified that Mr. Tahmourpour began behaving very strangely after he received the news that his contract was being terminated. He left Depot for long periods of time without a jacket, slept a lot on the weekend and appeared unkempt and disheveled. They reported this behaviour to Corporal Jacques. Corporal Jacques stated that he and Corporal Bradley contacted Dr. Yaholnitsky-Smith, an RCMP staff psychologist for F Division, who advised them that Mr. Tahmourpour might be suffering from passive suicidal ideation. Corporal Jacques was not sure that Mr. Tahmourpour had met with Dr. Yaholnitsky-Smith, but he thought that he had met with the doctor, Dr. Dufour. Neither Dr. Dufour, nor Dr. Yaholnitsky-Smith testified. There were no medical records to confirm that Mr. Tahmourpour met with either of these two doctors. [181] The Memorandum from Sergeant Champigny does not say that Mr. Tahmourpour met with Dr. Yaholnitsky-Smith, or that she provided a formal diagnosis. It simply states that the troop facilitators consulted with the F Division psychologist who described the behaviour as passive suicidal ideation. [182] The staff psychologist at Depot, Dr. Robert Roy, testified. He was hampered by the fact that he did not have Mr. Tahmourpour's medical file; it was destroyed pursuant to an RCMP policy regarding the retention of records. Dr. Roy had almost no independent recollection of the events in this case. He based his testimony on what he thought must have happened. [183] Dr. Roy could not recall meeting with Mr. Tahmourpour. He admitted that at the time that Mr. Tahmourpour was leaving Depot, he was probably on holiday. Yet, Dr. Roy thought that he must have met with Mr. Tahmourpour, however briefly, because Sergeant Champigny referred to an opinion he had provided about Mr. Tahmourpour. Dr. Roy stated that if he had met with Mr. Tahmourpour, he would have made a very qualified statement about his mental stability. He would not have provided a firm diagnosis because he was sure that he had not met with him at length. Dr. Roy would have recommended that Mr. Tahmourpour have a full psychological work-up before being considered for re-enrollment. [184] The Memorandum about Mr. Tahmourpour does not recommend a full psychological assessment prior to considering Mr. Tahmourpour for re-enrollment. That would have been the reasonable approach to dealing with the RCMP's concerns about Mr. Tahmourpour's reaction to disappointment and challenge. Instead, the recommendation to deny Mr. Tahmourpour consideration for re-enrollment was unconditional, and was based on cursory psychological examinations, if any. [185] The RCMP has failed to provide a satisfactory explanation that discrimination on the basis of a prohibited ground was not a factor in the recommendation and consequent decision to refuse Mr. Tahmourpour re-enrollment at the Academy. V. WHAT MUST BE PROVEN WITH REGARD TO SECTION 14 OF THE ACT? [186] 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. Harassment, as proscribed under the Act, has been broadly defined as repetitive and 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.); and Canada (Canadian Human Rights Commission) v. Canada (Canadian Armed Forces) (re Franke) [1999] 3 F.C. 653 (T.D.) at paras 43 and 45). A. Was Mr. Tahmourpour a victim of harassment on the basis of a prohibited ground? [187] Mr. Tahmourpour alleged that Corporal Boyer's conduct constituted harassment on the basis of his race, religion and/or ethnic or national origin. He stated that Corporal Boyer repeatedly screamed in his ear on the Firing Range that he was a loser, a coward and incompetent. Mr. Tahmourpour told Corporal Boyer that his conduct was upsetting him, and yet, Corporal Boyer persisted. Mr. Tahmourpour stated that Corporal Boyer's constant verbal abuse of him negatively affected his self-confidence and his performance at Depot. Sergeant Brar testified that he observed Corporal Boyer to exhibit this kind of behaviour towards female and visible minority cadets. [188] Mr. Tahmourpour alleged that Corporals Bradley and Jacques also subjected him to harassment on the basis of a prohibited ground. He stated that Corporals Bradley and Jacques regularly removed him from class to ridicule and criticize him for his personal traits, including his soft-spoken voice, his tendencies to sit back in class and to take too many notes. [189] Mr. Tahmourpour stated that Corporals Bradley and Jacques met with him on a daily basis during the lunch period thereby preventing him from marching with his troop to the dining hall for lunch. As a result, he stated that he missed lunch almost every day, especially towards the end of training, and sometimes would even miss another meal during the day to speak with Corporals Jacques and Bradley. Mr. Tahmourpour stated that he was too embarrassed to enter the dining hall alone after his meetings with Corporals Bradley and Jacques; all the cadets would suspect that there was something wrong if he did this. So, he regularly missed meals. [190] The different treatment that Mr. Tahmourpour received from Corporals Jacques and Bradley was exhibited publicly, according to Mr. Tahmourpour. He stated that prior to being shown a video about two officers who were killed in action, Corporal Bradley described one of the deceased officers as similar to Mr. Tahmourpour in his soft-spoken manner. She stated that this perceived weakness had contributed to the officer's death and suggested that this kind of officer would be a danger to himself and to other officers. [191] Mr. Tahmourpour stated that on September 10, 1999, he met with Corporals Jacques and Bradley to discuss a performance feedback evaluation. He described the meeting as extremely antagonistic. For over an hour Corporals Bradley and Jacques yelled at him in an abusive and hostile manner, at times standing directly in front of his face. Mr. Tahmourpour testified that during the meeting of September 10, 1999, Corporal Bradley stated that she could not understand his English. [192] Mr. Tahmourpour established a prima facie case that he was subjected to harassment on the basis of a prohibited ground of discrimination by Corporals Bradley, Jacques and Boyer. It should be noted that Mr. Tahmourpour also adduced the transcript of an audio-taped telephone conversation that he had with one of his troop mates, Constable Rob Lasson, about Mr. Tahmourpour's experiences at Depot. At its best, the transcript could be said to lend some support to Mr. Tahmourpour's case that his instructors were particularly hard on him. However, it consisted of self-serving and hearsay evidence that was not tested through cross-examination. I accorded it very little weight as a result. The Respondent's Explanation [193] Corporal Boyer denied that he verbally harassed Mr. Tahmourpour. However, based on the evidence that I have reviewed in these reasons, I find that Corporal Boyer harassed Mr. Tahmourpour on the basis of his race, religion and/or ethnic or national origin. Corporal Boyer asked Mr. Tahmourpour what kind of fucking language is that or did you make it up? when Mr. Tahmourpour signed a feedback form early in training. He went on to berate Mr. Tahmourpour regularly and publicly for his poor performance in Firearms. Corporal Boyer also told Mr. Tahmourpour get the fuck out of my face or I'll kick your ass when Mr. Tahmourpour asked for a second opinion about the cleanliness of his pistol. [194] Mr. Tahmourpour's evidence of verbal harassment on the basis of a prohibited ground of discrimination was corroborated by that of Sergeant Brar and Constable McCarney. While Corporal Boyer was generally loud and aggressive with all cadets, he was significantly more so with Mr. Tahmourpour and other visible minorities. I have found this differential treatment to be based on a prohibited ground. Therefore, I find, on a balance of probabilities, that Corporal Boyer harassed Mr. Tahmourpour on the basis of a prohibited ground contrary to s. 14 of the Act. [195] Corporal Bradley denied that she removed Mr. Tahmourpour from class or kept him back from lunch on a daily basis. She stated that the only meetings that occurred with Mr. Tahmourpour were during the issuing of formal feedback. [196] Corporal Bradley stated that the tone of the meetings was professional and sensitive. She denied that she screamed at Mr. Tahmourpour or that she told him that she did not understand his English. She also denied that she referred to Mr. Tahmourpour when she was introducing the session about the two constables who were killed on duty. [197] Corporal Bradley stated that the procedure for each of the feedback meetings was standard. The Feedback Sheet would be reviewed. The deficiency was linked to a particular skill area or competency. The cadet would be asked for his or her comments and input. An action plan would be formulated to deal with the identified deficiencies taking into account the suggestions made by the cadet. [198] Corporal Bradley stated that she provided verbal feedback to Mr. Tahmourpour during classes but that it was done in a constructive way. That is, she would tell him what he had done well and what he could do to improve. She denied repeatedly telling Mr. Tahmourpour that he should not be sitting back and taking notes. She did not have a problem with this behaviour; rather she told Mr. Tahmourpour that he needed to participate more effectively during training. [199] Corporal Bradley provided her testimony on this point in a forthright and convincing manner. She struck me as a direct, well-spoken individual who would not mince words, but who would express herself in a professional manner. Therefore, I accept her testimony that she did not pull Mr. Tahmourpour out of class every day to berate him about his performance. [200] Corporal Jacques stated that he may have met with Mr. Tahmourpour more frequently than Corporal Bradley, but that he did not meet with Mr. Tahmourpour on a daily basis, nor did he pull him out of class or hold him back from his meals on a daily basis. It is plausible that Corporal Jacques would have met with Mr. Tahmourpour more frequently than Corporal Bradley since he was Mr. Tahmourpour's instructor in both Firearms and APS. [201] Like the testimony of Corporal Bradley on this point, I found Corporal Jacques' testimony with regard to the tenor and frequency of his meetings with Mr. Tahmourpour to be convincing. Although I concluded earlier that Corporals Bradley and Jacques facilitated and furthered Corporal Boyer's initiative to eliminate Mr. Tahmourpour from the training program, the additional and distinct allegation of aggressive and coercive behaviour stands in stark contrast to the overall evidence of the conduct and comportment of Corporals Bradley and Jacques. Constable McCarney, for example, whose testimony I found to be very forthright and frank, testified that out of the numerous courses he has taken with the RCMP, he has yet to experience instructors who are as patient and professional as Corporals Jacques and Bradley. [202] In contrast, I found Mr. Tahmourpour's testimony regarding the frequency and tenor of the meeting he had with Corporals Bradley and Jacques to be less credible. Mr. Tahmourpour stated that he was pulled out of class or kept late by Corporals Bradley and Jacques almost every day during training. Towards the end of his training period, the frequency of these meetings increased to several times a day. As a result, he missed meals on a daily basis. In spite of missing so many meals, Mr. Tahmourpour testified that he was able to gain 9 pounds and reduce his PARE time by 35 seconds. He achieved this on a diet of cookies and ready-to-go food from Wal-Mart. I found Mr. Tahmourpour's testimony on this point implausible. [203] Mr. Tahmourpour may have felt that he was receiving more verbal and formal feedback than his troop mates. However, on a balance of probabilities I find that he did not meet with his troop facilitators with anywhere near the degree of frequency that he reported. Moreover, I find it improbable that he was subjected to verbal abuse when he did meet with them. [204] Therefore, I find, on a balance of probabilities that Mr. Tahmourpour was not subjected to harassment on the basis of a prohibited ground of discrimination from Corporals Bradley and Jacques while at Depot. VI. WHAT IS THE APPROPRIATE REMEDY IN THE PRESENT CASE? [205] The Tribunal derives its remedial jurisdiction from s. 53 of the Act. The remedies contemplated therein are designed to stop the discrimination that is occurring from continuing, to prevent future discrimination from occurring, and to compensate individual victims for past or ongoing discriminatory practices. (i) Compensation for Discriminatory Conduct [206] The goal of the remedial provisions is to provide complainants with compensation for the losses caused by the discriminatory conduct (Canada (Attorney-General) v. McAlpine (1989), 12 C.H.R.R. D/253 at para. 13 (F.C.A.)). Therefore, to establish entitlement to a remedy, 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.)). Until recently, the Court of Appeal's decision in Morgan stood for the proposition that to establish a causal connection, 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 ((Chopra v. National Health and Welfare 2004 CHRT 27; aff'd: 2007 FCA 269; Canada (Attorney General) v. Uzoaba [1995] 2 F.C. 569 (F.C.T.D.); Canada (Attorney General) v. Green [2000] 4 F.C. 629 at para 142 (F.C.T.D.); and Culic v. Canada Post 2007 CHRT 01). However, in its 2007 decision in Chopra, the Federal Court of Appeal has suggested that there was no consensus on the serious possibility test among the three justices who decided Morgan. Therefore, that test may be subject to some question. Nonetheless, I am bound by decisions such as Green wherein the Trial Division stated that the serious possibility test is the means of determining whether there is a causal connection between the discriminatory conduct and the loss. [207] So long as there is a serious possibility that the respondent's conduct caused the damage for which compensation is being claimed, any uncertainty with regard to the probability that the conduct caused the damage must be factored into the assessment of the quantum of damages (Green, supra, at para 142). [208] The case law makes a distinction between situations where the discrimination has caused a direct loss or denial of employment for which instatement or reinstatement is an appropriate remedy, and situations where the discrimination has caused the complainant to lose an employment or training opportunity. In the latter situation, Tribunals have held that the appropriate remedy is to require the respondent to provide the lost or denied opportunity, with or without financial compensation. (See for example: Canada (Canadian Human Rights Commission) v. Greyhound Lines of Canada (1987), 8 C.H.R.R. D/4184 (F.C.A.); Chapdelaine v. Air Canada (1991), 15 C.H.R.R. D/22 (Can. Rev. Trib.) at para. 19-32; Bitonti v. College of Physicians and Surgeons of British Columbia 2002 BCHRT 29 at para. 33; and Chopra v. Department of National Health and Welfare 2004 CHRT 27; aff'd: 2007 FCA 269). [209] Recently, the Federal Court of Appeal has approved the distinction between lost employment opportunity and direct loss of employment in the assessment of remedy. In Chopra, the Tribunal concluded that a mere but serious possibility existed that Dr. Chopra would have won the employment competition but for the discriminatory practice. However, in attempting to quantify the likelihood that Dr. Chopra would have won the employment competition, it found that there was only a 33 1/3 percent chance that he would have won the competition. Therefore, rather than ordering instatement in the position, the Tribunal ordered compensation in the form of wages for the lost opportunity. The Tribunal reduced the compensation by two thirds to reflect the relatively high uncertainty that Dr. Chopra would have been successful in the competition. On appeal, Dr. Chopra argued that having found that there was a serious possibility that he would have won the competition, the Tribunal was required to order instatement in that position. The Court disagreed. It held that Dr. Chopra had been compensated for what he lost, the opportunity to compete for the Indeterminate position on a non-discriminatory basis. Having been compensated for the loss of the ability to compete on a fair basis, it would be double compensation to then award him the position itself. [210] In the present case, the RCMP's discriminatory conduct caused Mr. Tahmourpour to lose the opportunity to develop and demonstrate, to his full potential, the necessary skills to become an RCMP officer. I find that there is a serious possibility that had the discrimination not occurred, Mr. Tahmourpour would have successfully completed the training at Depot. Indeed, the failure rate for non-visible minority cadets was only 6.88% (the attrition rate was 7%) for 1999, indicating that when discrimination was not a factor, the vast majority of cadets successfully completed the program. On that basis, I find that one of the appropriate remedies in this case is an order that Mr. Tahmourpour be given the opportunity to re-enroll in the next available training program at Depot. The parties may also agree to a different date for re-enrollment that is mutually convenient. [211] The order that Mr. Tahmourpour be offered re-enrollment in the Cadet Training Program is not to be interpreted as a requirement that he pass the Cadet Training Program. Mr. Tahmourpour must complete the training required of him, and achieve a professional rating in all of the required competencies and skills, in the same manner as all cadets who undertake the Cadet Training Program. If Mr. Tahmourpour completes the Training Program, he is to be treated in the same manner as all successful cadets. [212] Mr. Tahmourpour requested an order that he be immediately instated as a regular RCMP officer at a level commensurate with the members who attended the training Academy at the same time as he did. For the following reasons, I find that this remedy is not appropriate. [213] Firstly, Mr. Tahmourpour has not completed the RCMP training program. He missed 8 weeks of an intense 32 week program which, according to the evidence, are even more rigorous in terms of the skills that are developed and knowledge that is acquired than the preceding weeks. It is clear, then, that Mr. Tahmourpour has not acquired all of the skills that are necessary to be a police officer. It would be imprudent, to say the least, to order that the RCMP accept as a regular member, someone who does not yet possess the skills to be a police officer. [214] Secondly, Mr. Tahmourpour has not passed the required test for shooting accuracy which is a requirement for all RCMP officers before they are permitted to carry a weapon. Sergeant Brar testified that while there are administrative duties in the RCMP that do not involve the use of a firearm, any officer whether on administrative duties or not, may be called out during a crisis for active duty involving use of a firearm. For that reason, all officers, regardless of their position, must qualify every year in firearms use. Mr. Tahmourpour has not yet demonstrated that he is capable of passing that test. [215] Thirdly, those skills that Mr. Tahmourpour successfully acquired during the fourteen weeks he spent in training may have deteriorated over the past 8 years. He may be in need of a refresher. [216] Finally, I have found that the discriminatory treatment prevented Mr. Tahmourpour from demonstrating the knowledge and skills required to be a police officer. It has not yet been determined whether, in a non-discriminatory environment, he can demonstrate those skills and knowledge. That must be determined before he is engaged as an RCMP officer. [217] This does not, however, necessarily mean that Mr. Tahmourpour must repeat the entire training program. The evidence established that when cadets are unsuccessful at their first attempt at training and are re-enrolled, an assessment is done of their skills to determine the areas in which further training is needed and where no further training is needed. The same should be done for Mr. Tahmourpour. Should compensation for lost wages be provided to Mr. Tahmourpour for the loss of the opportunity to complete training that was caused by the RCMP's discriminatory conduct? [218] Yes. The RCMP's discriminatory conduct denied Mr. Tahmourpour the opportunity to complete training and to make his living as an RCMP officer. He must be compensated for the loss of wages that he would have earned. How is the compensation for the wage loss resulting from the denial of the opportunity to be calculated? [219] The Tribunal's approach in Chopra of providing compensation for wage loss, discounting for any uncertainty in obtaining the position, was found by the Court of Appeal to be an acceptable way of compensating for lost opportunity (Chopra, at para. 43). I shall follow suit. [220] The evidence indicated that non-visible minority cadets had a 93% chance of completing training. I find it appropriate to use this figure for determining the likelihood of Mr. Tahmourpour's completion of the program because, based on the evidence that I heard and the conclusions that I have drawn about Mr. Tahmourpour's performance in the program, it is reasonable to infer that had the discriminatory conditions not been present Mr. Tahmourpour would have had the same chance as a non-visible minority candidate to successfully complete the training. I am mindful of the following potential concerns with this inference: first, Mr. Tahmourpour demonstrated weaknesses in the program that may not have been related to the discriminatory conduct, and which may have reduced his chances of success from 93% to something less. However, there is no way of knowing whether these weaknesses would have appeared and to what extent they would have influenced Mr. Tahmourpour's chances of success had he not been subjected to discriminatory treatment; any estimate of their influence would be speculative to the point of arbitrariness. It would not be fair to discount Mr. Tahmourpour's compensation on such a highly speculative basis. [221] Secondly, I have not used the attrition and failure rate of visible minority candidates because, on the basis of Dr. Wortley's evidence, I find it more probable than not that at least one of the factors in the higher attrition rate for visible minorities than for non-visible minority cadets is discrimination. It would be inappropriate to discount Mr. Tahmourpour's chances of success on the basis of a figure that took into account discriminatory actions. [222] Therefore, I find that the compensation for wage loss must first be reduced by 7% to reflect the possibility that Mr. Tahmourpour might not have completed the program due to reasons that have nothing to do with discrimination. The evidence indicated that the average rate of attrition for regular members during the first 20 years of their employment is 1%. The Respondent provided no statistical evidence with regard to the attrition rates in Field Training. [223] On the basis of these statistics, I find that Mr. Tahmourpour's compensation for the wage loss he sustained as a result of the discriminatory practice should be discounted by 8% to reflect the attrition rate both at Depot and in the Regular Force. For what time period should Mr. Tahmourpour be compensated? [224] Mr. Tahmourpour claimed that he should be paid wages and benefits lost on a retroactive basis for the entire period from 1999 until instatement as an RCMP officer or, in the alternative, until the date of this decision with a further order for future wage loss in the event that instatement is not ordered. [225] Dealing first with the claim for retroactive wage and benefit loss, in Chopra, the Court of Appeal stated that in exercising its discretion under s. 53(2)(c) to award compensation for any or all of the wages lost as a result of the discriminatory practice, the Tribunal may well find that the principles underlying the doctrine of mitigation of losses in other contexts apply. Society has an interest in promoting economic efficiency by requiring those who have suffered a loss to take steps to minimize that loss as it is not in the public interest to allow some members of society to maximize their loss at the expense of others, even if those others are the authors of the loss. Thus while a tribunal is not bound to apply the doctrine of mitigation, it is not prohibited from doing so in the exercise of its discretion to determine the amounts payable to a complainant. [226] I find that it is appropriate to consider in this case whether Mr. Tahmourpour took steps to minimize his losses. Mr. Tahmourpour's evidence on this issue was weak. He stated that when he left Depot in October of 1999, he was upset, but not depressed. He moved to Toronto to seek work. However, when he arrived in Toronto he found that he was unable to work because he was experiencing insomnia and was unable to concentrate. Mr. Tahmourpour saw a doctor who prescribed medication for his sleep difficulty. He did not take the medication because it was too expensive. He obtained Social Assistance benefits on the basis of his doctor's report that he was unable to work. Social Assistance pays for drug expenses. Later in his testimony he stated that he took the medication when he had the money to purchase it. [227] Mr. Tahmourpour began taking courses to become a real estate agent in June of 2002. At that time, he had a doctor's note stating that he was unable to attend school or work because he was too ill. He stated that although his doctor thought he could not do this, he thought he could. [228] Mr. Tahmourpour became a licensed real estate agent in 2003. He stated that he was a poor real estate agent; he sold only one property and received a commission of $5,000 for this. [229] Mr. Tahmourpour took courses with the hope of becoming an interpreter and translator in the Persian language. He was certified by the Federal Government, the province of Ontario, and city of Toronto as a Persian interpreter. He paid $600 to become an interpreter. However, he was only able to earn $100 as a translator. [230] Mr. Tahmourpour stated that pursuing his human rights complaint has required almost full time effort. No employer would ever tolerate that much time away. Therefore, he could not work from the time he filed his complaint in 2001, until the present. [231] I find that Mr. Tahmourpour has not made sufficient efforts to minimize his losses from the time he left Depot until the commencement of the hearing in August 2007. I accept that from 2000-2002, it was difficult for him to work as a result of the psychological impact of his experiences at Depot. The fact that he did not take the medication prescribed to him by his physician for his difficulties troubles me, but I accept that he may not have been thinking clearly during this two year period. [232] However, in June of 2002, he felt well enough to embark on Real Estate courses notwithstanding the opinion of his physician that he could not work or go to school. By 2003, he was licensed to sell Real Estate and attempted to do so. Although he became a trained translator, he earned only $100 for his services during this time. I am not convinced that Mr. Tahmourpour put real effort into pursuing gainful employment that would have minimized his losses. Indeed, he stated that he could not do so because his human rights complaint took all of his time. [233] I do not accept that working on his human rights complaint required Mr. Tahmourpour's full-time effort. I accept that it took some time and that his case was more arduous than most because it reached the Federal Court of Appeal and involved two investigations by the Commission. He was self-represented in some of the legal proceedings. However, it would appear that, for at least some of the time since 2000, Mr. Tahmourpour has been assisted by legal counsel since there are letters written to the RCMP by his counsel dated May 4, 2000 on the record. Therefore, I find it unreasonable that Mr. Tahmourpour was unable to work at all (other than to sell one property and perform one translation assignment) from January 2002 to the present time. [234] Based on my knowledge of the time involved in complaints of this nature, the following represents a reasonable amount of time for a layperson such as Mr. Tahmourpour to spend on the tasks involved in this complaint: Drafting the complaint, cooperating with the Commission to provide information for the investigation, responding to the Commission's documentation and doing additional research to support the complaint - 60 hours; Preparing for and presenting the judicial review of the Commission's decision to the Federal Court Trial Division - 120 hours; Working with counsel on the appeal to the Federal Court of Appeal - 60 hours; Participating in the second investigation before the Canadian Human Rights Commission - 40 hours; Participating in the Tribunal process and preparing for the hearing - 200 hours. [235] By my calculation, the total amounts to 480 hours, or 12 weeks of work at 40 hours per week. [236] The RCMP shall pay Mr. Tahmourpour the full-time wages and benefits that he would have received for two years from January 2000 (if that is, in fact, the date when Troop 4 cadets began work as RCMP officers; if not, the appropriate date may be substituted). In addition, the RCMP must pay Mr. Tahmourpour the wages and salary that he would have received for an additional 480 hours of work. Those wages and benefits should be calculated on the basis of the average wage and salary from 2000 to August 2007, for regular members who graduated from Depot at the end of 1999. Mr. Tahmourpour may have an obligation to repay the money he received in Social Assistance benefits during this time. [237] Taking into account the period during which Mr. Tahmourpour could not work for health and complaint-related reasons, I find that Mr. Tahmourpour could have been gainfully employed until the present time. I do not accept that working on his human rights complaint precluded full-time employment from the time that he was well enough to work until the commencement of the hearing in August of 2007. People make all sorts of arrangements and accommodations to pursue important activities outside of full-time employment. Mr. Tahmourpour could have done so too. [238] The RCMP should be required to pay only the difference between what Mr. Tahmourpour would have earned at a full-time job and what he would have earned as an RCMP officer from the date upon which the grace period for health and complaint-related time ends until the date of this decision. The RCMP is therefore, ordered to pay the difference between the average full-time industrial wage in Canada for persons of his age, and the salary that he would have received as an RCMP officer for this time period. [239] The evidence indicated that Mr. Tahmourpour would likely have been promoted to Corporal after seven years working as a Constable. The compensation paid to Mr. Tahmourpour must reflect that change in rank. [240] The salary rates for the relevant time periods were entered into evidence at the hearing and filed as Exhibits C-1, Tabs 88 and 89. Those are the rates that are to be used in calculating the compensation unless the parties agree otherwise. [241] The evidence on the issue of over-time pay was not clear. Constable McCarney testified that regular duty constables usually make overtime pay. He was not sure how much that was. It depended upon the work given to the constable. I find that had he been employed during the period from January 2000 to the date of this decision, Mr. Tahmourpour would have received some overtime. Therefore, I order that Mr. Tahmourpour be paid the average amount of overtime pay given to other constables who graduated from Depot in 1999. Should there be an order for future wage loss? [242] There was no evidence that the discriminatory conduct caused any permanent damage to Mr. Tahmourpour's ability to work. He is relatively young at 35 years of age, and has the potential for a full career life ahead of him. Mr. Tahmourpour is still eager to become an RCMP officer. He said that if he was given the opportunity to embark on the training program at Depot again, he could ace it. [243] Therefore, until Mr. Tahmourpour is provided with an offer to enter the training program he should be paid the difference between the average full-time industrial wage in Canada for persons of his age and the salary that he would have received as an RCMP officer up to the date of the training offer. [244] Upon extension of the offer to attend training, the RCMP's obligation to compensate Mr. Tahmourpour for the loss of the opportunity to complete training in 1999 is extinguished. No further payments shall be made under this head of compensation. (ii) Prevention of discrimination in the Future - The Systemic Remedy [245] Section 53(2)(a) of the Act provides the Tribunal with the authority to order that the Respondent take measures to redress the practice or to prevent the same from occurring in the future. [246] I have found that Mr. Tahmourpour was a victim of systemic discrimination at Depot in 1999. Several of the RCMP witnesses testified that they thought that Depot was a much better training environment now that individuals like Corporal Boyer had retired. Corporal Bradley indicated that changes have been made to the training program since Mr. Tahmourpour's attendance there in 1999. Now, in addition to the opportunity that Mr. Tahmourpour had to raise concerns about his instructors to their supervisors twice during the program, the RCMP audits the courses regularly to ensure that the quality of instruction and evaluation is high. [247] Mr. Tahmourpour testified that one of the individuals against whom he had a complaint was the very supervisor who was designated to hear the cadets' concerns twice during the program. Mr. Tahmourpour did not feel comfortable raising his concerns with this individual or anyone else at Depot, for fear of reprisal. [248] Based on this evidence, and on a Report prepared by the RCMP in April 2006, entitled Employment Systems Review (ESR), I am not convinced that the above-noted changes are sufficient to prevent discrimination of the kind experienced by Mr. Tahmourpour from occurring in the future. The ESR is a study that was commissioned by the RCMP to determine whether the RCMP was in compliance with the Employment Equity Act. In the ESR Report, the authors state that although diversity training is part of the curriculum for the Cadet Training Program, the focus is on respecting diversity in police work. The Diversity Training does not specifically address diversity issues within Depot and within the RCMP. It does not deal with respecting diversity among RCMP employees. [249] The authors of the Report found that a number of designated group employees in the RCMP feel they do not experience a high degree of acceptance/respect of their cultural differences from colleagues within the RCMP. The authors recommended the development of a standardized Diversity Training course targeted to address the internal diversity of the RCMP. [250] The authors of the ESR reported that another area of concern is the prevalence of harassment that is experienced especially by women and to some extent, visible minorities. The response to complaints does not appear to be generally positive, and the consequences of lodging a complaint are so great that in some cases people do not lodge the complaint. There is mistrust of the internal system for investigating complaints. [251] Sergeant Lise Lachance, the Acting Officer in charge of Employment Equity, testified about the RCMP's efforts with respect to employment equity. She stated that the harassment policy is being revised, and the RCMP was making efforts to combat discrimination within its ranks. However, Sergeant Lachance was not sure whether these efforts extended to the Training Academy at Depot. [252] On the basis of this evidence, I conclude that the RCMP must take action to prevent the discrimination that occurred to Mr. Tahmourpour from occurring again. That action should address the issues set out below. However, I think it best to provide the parties with a period of 3 months from the date of this decision to reach an agreement on the exact nature of the measures that should be taken and a timetable for achieving them. I will retain jurisdiction over this portion of the decision in the event that the parties are unable to reach an agreement within 3 months. At that point, I will make a final determination on the appropriate measures to be taken by the RCMP. [253] The measures to prevent future discrimination should include the following: A policy and set of procedures for dealing with harassment and discrimination at Depot that provide an immediate opportunity for cadets to raise their concerns, without fear of retaliation or negative consequences, to someone with the authority to make changes. A copy of the Policy and Procedures should be provided to each cadet, as part of the welcome kit, upon arrival at Depot. A mandatory diversity/cultural sensitivity training program delivered to both cadets and all personnel at Depot that focuses on developing and promoting a culture of respect and tolerance for diversity within the RCMP. The issues raised in pages 59 - 64 of the Regular Members Survey, Report 3, September 1996, should be taken into account as well as any other relevant material. The suggestions for Diversity Training that are made in the Employment Systems Review by Lakshmi Ram and Associates (April 2006) should also be taken into account, specifically, the need for a training course targeted to address the internal diversity of the RCMP. An Advisory Committee or a Multi-Culturalism officer at Depot who makes recommendations to the Commanding Officer at Depot with regard to the prevention of discrimination and the promotion of respect and tolerance for diversity at Depot. The Commanding Officer should respond in writing to these recommendations and provide reasons if recommendations are rejected. (iii) Pain and Suffering [254] 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. Mr. Tahmourpour requested the maximum award. He testified that he was very upset by the discriminatory treatment he received. It caused him to experience a period of insomnia and difficulty concentrating. However, at times during his testimony he also stated that he was just upset when he left Depot, not depressed or incapable of functioning. Moreover, Mr. Tahmourpour did not always take the medication that would have reduced his suffering. [255] I find that while Mr. Tahmourpour experienced some pain and suffering as a result of the discriminatory conduct, it was not of the duration or intensity that merits an award of $20,000. In light of the circumstances of this case, Mr. Tahmourpour should be awarded $9,000 in pain and suffering. Special compensation - s. 53(3) of the Act [256] 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. [257] I find on a balance of probabilities that Corporal Boyer willfully or recklessly made discriminatory remarks and verbally harassed Mr. Tahmourpour. I find also that his discriminatory efforts to have Mr. Tahmourpour's training contract terminated were willful or reckless. Corporal Jacques and Corporal Bradley complied with the efforts to have Mr. Tahmourpour removed by providing evaluations that were inaccurate and unfair. [258] Prior to the termination of his contract, Mr. Tahmourpour sent a letter of rebuttal to the Chief Training Officer at the time. He addressed each point raised by Corporals Bradley and Jacques in the Request for Termination and alleged that he was treated in a discriminatory manner. The RCMP neither investigated, nor responded to his complaint of discrimination until it was required to respond to Mr. Tahmourpour's formal complaint to the Canadian Human Rights Commission. [259] To his credit, Sergeant Hébert apologized to Mr. Tahmourpour for his discriminatory remark regarding Mr. Tahmourpour's religious pendant. Sergeant Hébert's conduct is all the more notable in the context of the reckless disregard for the consequences of the other officers' discriminatory conduct. [260] I find therefore, that it is appropriate to order the RCMP to pay Mr. Tahmourpour $12,000 in special compensation. Costs [261] Section 53(2)(c) authorizes the Tribunal to award compensation for any expenses incurred by the victim as a result of the discriminatory practice. [262] Mr. Tahmourpour incurred expenses in the amount of $9,500 to pay for the Real Estate Board and interpreter courses. He claimed that these expenses, incurred as part of his efforts to mitigate his damages, should be reimbursed by the RCMP. I have found that Mr. Tahmourpour's efforts with regard to minimizing his damages were half-hearted at best. Nonetheless, Mr. Tahmourpour did incur expenses that would not have been necessary had he been permitted to complete training and earn a living as an RCMP officer. Therefore, I order that the RCMP reimburse Mr. Tahmourpour for the cost of the Real Estate and Translator courses. [263] The Federal Court has recently once again affirmed the Tribunal's authority to award reasonable legal costs: Canada (Attorney General) v. Mowat 2008 FC 118 at para. 40. See also: Canada (Attorney General) v. Thwaites, [1994] 3 F.C. 38 at para. 56; Stevenson v. Canada (Canadian Security Intelligence Service), 2003 FCT 341 at paras. 23-26; and Canada (Attorney General) v. Brooks, 2006 FC 500. [264] Therefore, I order that the RCMP pay Mr. Tahmourpour's reasonable legal costs as an expense arising from the discriminatory conduct. Mr. Tahmourpour did not provide evidence on the issue of legal expenses. 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 3 months of the receipt of this decision if an agreement has not been reached. Interest [265] Interest is payable in respect of 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. The interest on the lost wages shall run from the date that Mr. Tahmourpour would have started to work for the RCMP and shall be calculated as the wages would have become payable to Mr. Tahmourpour. [266] 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. VII. ORDERS [267] Pursuant to its authority under s. 53(2) of the Act, the Tribunal orders the following: Unless otherwise agreed upon, the Respondent shall offer Mr. Tahmourpour an opportunity to re-enroll in the next available RCMP Cadet Training Program at Depot; If Mr. Tahmourpour accepts the offer of re-enrollment, the Respondent shall undertake a fair assessment of his skills at the outset of the training program to determine the areas in which training is needed; The Respondent shall pay Mr. Tahmourpour compensation for salary and benefits he lost for the first 2 years plus 12 weeks of work as an RCMP officer after graduating from Depot. The compensation shall be discounted by 8%; The Respondent shall pay Mr. Tahmourpour the difference between the average full-time industrial wage in Canada for persons of his age, and the salary that he would have earned as an RCMP officer until such time as Mr. Tahmourpour accepts or rejects an offer of re-enrollment in the training program at Depot. The Respondent shall compensate Mr. Tahmourpour for the average amount of overtime paid to other constables who graduated from Depot in 1999, unless otherwise agreed upon by the parties. The compensation shall be discounted by 8%; The compensation must reflect a promotion to Corporal after 7 years; The parties shall attempt to agree upon the measures and a timetable for addressing the issues set out in the Systemic Remedy part of this decision. In the event that they are unable to reach an agreement on this portion of the award within 3 months from the date of this decision, the Tribunal will make a final determination; The Respondent shall pay $9,000 to Mr. Tahmourpour in compensation for the pain and suffering caused by its discriminatory conduct; The Respondent shall pay $12,000 to Mr. Tahmourpour pursuant to s. 53(3) of the Act; The Respondent shall pay $9,500 to Mr. Tahmourpour in compensation for the expenses he incurred in minimizing his losses. The Respondent shall also compensate Mr. Tahmourpour for the legal expenses he incurred in this matter; The Respondent shall pay interest on the compensation awarded in this decision as set out above. Signed by Karen A. Jensen OTTAWA, Ontario April 16, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1151/3306 STYLE OF CAUSE: Ali Tahmourpour v. Royal Canadian Mounted Police DATE AND PLACE OF HEARING: August 13 to 17, 2007 August 27 to 31, 2007 September 17 to 21, 2007 September 24 to 28, 2007 Toronto, Ontario DECISION OF THE TRIBUNAL DATED: April 16, 2008 APPEARANCES: Barry Weintraub For the Complainant No one appearing For the Canadian Human Rights Commission Derek Edwards For the Respondent

2008 CHRT 11

CHRT

Mowat v. Canadian Armed Forces

en

2008-04-22

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6676/index.do

2023-12-01

Mowat v. Canadian Armed Forces Collection Canadian Human Rights Tribunal Date 2008-04-22 Neutral citation 2008 CHRT 11 File number(s) T822/7203 Decision-maker(s) Sinclair, Grant, Q.C. Decision Content DONNA MOWAT Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN ARMED FORCES Respondent REASONS FOR DECISION 2008 CHRT 11 2008/04/22 MEMBER: J. Grant Sinclair [1] In a judgment dated January 30, 2008, the Federal Court set aside my decision on costs in the present case and referred it back to the Tribunal for redetermination (Attorney General of Canada v. Mowat, 2008 FC 118). The Court's judgment agreed with the Tribunal's power to make a compensation award of legal expenses in this case. It also made no comment on the appropriate quantum of compensation for legal costs awarded by the Tribunal. However, the Court decided that the Tribunal had failed under a duty to provide adequate reasons for its award of legal expenses and remitted it to the same Tribunal decision maker, without the necessity of further submissions or hearing. [2] The Attorney General of Canada has appealed the Federal Court decision on the ground of jurisdiction to award costs. The Attorney General of Canada has not brought a motion before the Tribunal to defer the issuance of its supplementary reasons nor, to the Tribunal's knowledge, has the Attorney General sought or obtained a stay prohibiting the Tribunal from rendering supplementary reasons in this matter. [3] Ms. Mowat was a Master Corporal at the time of her complaint, dated June 15, 1998 and filed with the Canadian Human Rights Commission. She alleged that the Canadian Armed Forces discriminated against her on the grounds of sex: i) by adversely differentiating against her in employment and refusing to continue her employment with the Canadian Armed Forces, contrary to section 7 of the Canadian Human Rights Act, R.S.C., 1985, c. H-6; and ii) by failing to provide her with a harassment free workplace contrary to section 14 of the Act. Included in her harassment complaint is an allegation of sexual harassment. [4] 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. 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 her legal costs). [5] The hearing of her complaint, which consumed approximately six (6) weeks, over 4,000 pages of transcript evidence and more than 200 exhibits. The Tribunal found that Ms. Mowat's complaint of sexual harassment was substantiated and she was awarded $4,000 plus interest for pain and suffering. The Tribunal dismissed all of her other allegations of discrimination, including her claims of discriminatory discharge, adverse differentiation in employment and harassment other than sexual harassment. [6] Both parties made written and oral submissions, on March 20, 2006, to the Tribunal on the question of legal costs. Ms. Mowat stated that she did not expect to recover 100%, or even 75%, of the total $196,313 of the legal fees she initially submitted. The Respondent argued that the Complainant's account should be denied or that her costs be strictly limited because the Complainant was unsuccessful for the most part of her allegations and the hearing was unnecessarily prolonged and complicated as a result of a lack of clear articulation of her complaints. [7] As noted above, the Tribunal's decision that it had jurisdiction to award costs under subsection 53(2)(c) of the Act was undisturbed by the Court's judgment. My supplemental reasons for assessing to Ms. Mowat the amount of $47,000 for her legal costs under subsection 53(2)(c) are as follows. [8] In the particular circumstances of this case, the Tribunal felt it would be helpful to have the Complainant's legal expenses expressed in a format similar to Tariff B of the Federal Court Rules. The Complainant complied by submitting her Bill of Costs dated May 30, 2006. By letter dated June 30, 2006, the Respondent replied with its own suggested amounts based on the Bill submitted by the Complainant. [9] The Complainant claimed preparation and attendance fees in respect of mediation and settlement conferences that took place separately in March 2002 and September 2003. This complaint was referred to the Tribunal in January 2003. I agree that the Complainant should recover partial fees before this Tribunal for participating in the September 2003 conference, but not for both. I therefore allowed 15 units for 5 hours of attendance and 4 units for preparation as being reasonable costs to be recovered by Ms. Mowat in respect of the settlement conference in 2003 only. [10] The Complainant claimed 5 units for documents disclosure. Full and complete disclosure is a requirement in proceedings before this Tribunal. I therefore allowed this item as claimed. [11] The Complainant claimed a total of 24 units with respect to the motion regarding the participation of the Canadian Human Rights Commission. I note that Complainant counsel prepared no materials, took no clear position and only made very brief submissions with respect to this motion. It would therefore be unreasonable, in my view, to expect the Respondent to bear this expense. I have disallowed this claim. [12] The Complainant requested the maximum units under column III of Federal Court Tariff B in respect of counsel fees for preparation for hearing under item 13(a) and then for 26 days of hearing under item 13(b). She further claimed the maximum for 22 full days and 5 half-days of attendance at hearing under items 14(a) and 14(b) of the Tariff. [13] As noted above, the Tribunal dismissed all of the Complainant's allegations of discrimination, as well as the allegation of retaliation under s. 14.1 of the Act. Ms. Mowat succeeded only on her complaint based on sexual harassment. The Tribunal also noted in its decision on the merits of the complaint 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. [14] Compelling as this may be for reducing the amount of fees that the Respondent should have to bear, it remains compelling also that the Commission exercised a clear discretion in deciding to refer Ms. Mowat's complaint to the Tribunal for inquiry. The Complainant, without the benefit of today's hindsight, was thus compelled to pursue the full gambit of her complaint. Such cases of alleged discrimination are very often factually complex. Moreover, at the end of the day, the Respondent was found to have discriminated against Ms. Mowat. [15] Having considered the foregoing, as well as the outcome of the complaint, the manner in which the Complainant's case was presented at hearing and having reviewed the number of days at hearing, I allowed 5 units under item 13(a) for preparation for hearing and 50 units under item 13(b) in respect of the 25 days following the first day of hearing. As to the claims for counsel fees for attendance at hearing, I have allowed a total of 275 units in respect of 137.5 hours of hearing. [16] No special reason being apparent for the need for second counsel, I have disallowed the Complainant's costs claimed under Tariff item 14(b). Based on the foregoing considerations and the complexity required in fitting the Tribunal's proceedings to the itemized Tariff of the Federal Court, I have allowed 5 units for counsel fees for the preparation and presentation of the Complainant's bill of costs. [17] The account submitted by the Complainant included an hourly rate of $250 for her counsel's fees. Counsel for the Respondent replied that the Federal Court Tariff B unit value of $120.00, as at April 1, 2005, would be more appropriate. In the circumstances of this case, and having particular regard for the limited success of Ms. Mowat's complaint, I am inclined to agree with the Respondent on this point. I have allowed a total of 359 units in respect of counsel fees. Applying a unit value of $120.00, this equates to an assessment of $43,080 for counsel fees. [18] The Complainant has submitted a claim of $6,499.83 for legal fees payable to the law firm of Gahrns & Laliberté. It is unclear how much and to what extent these services relate to the present complaint, but it is evident from the invoice produced that some consultation was relevant to the complaint referred before this Tribunal. The Respondent has been found liable for discriminating against Ms. Mowat. It is therefore reasonable, in my view, to allow the $800 paid out of pocket by the Complainant for this service, as was also agreed by Respondent counsel in oral submissions. [19] The approach taken by Respondent counsel with respect to the Complainant's claim for hotel expenses seems entirely reasonable to the circumstances of this case. It has therefore been allowed in an amount of $2,754. The claim of $265 for parking and taxis is less clear, however, and has been reduced to $115. Some documentation for parking and taxis has been produced as evidence of an expense, but a clear and convincing accounting is lacking. The claim for courier expenses has been reduced as well to $26.10 for similar reasons. [20] The claim of $81 in respect of the witness Campbell has been allowed. The witness's testimony was relevant to the complaint and it is clear that this amount was paid out of pocket. [21] The claims in amounts of $10.83, $2,166.75, $187.25, $26.75 and $404.46 for photocopies, faxes, binders, tabs, computer prints, long distance and mileage have been disallowed for lack of a clear accounting and their precise relationship to the proceedings before this Tribunal. It is not reasonable to expect the Respondent, on an assessment that is akin to a party-and-party basis, to pay for expenses such as these, which may otherwise be considered overhead, unless clearly accounted and demonstrated to have been incurred in direct relation to the proceedings at hand. [22] The Complainant also claims for a Pension Valuation costing $856.00. Respondent counsel argued that the Complainant was entirely unsuccessful with respect to the pension issue and should not be able to recover this expense from the Respondent as a disbursement. I agree and this amount has therefore been refused. [23] The Complainant has submitted a claim as well of $3,045.67 for transcripts. The Tribunal's remark that the case was marked by a fundamental lack of precision in identifying the theory of Ms. Mowat's case is once again relevant to the consideration of this item. Transcripts, other than for purposes of appeal, are a luxury. Absent special circumstances substantiating their exceptional utility to assist counsel at the hearing of this complaint (e.g., to help in reducing the time at hearing), the Respondent should not be expected to pay for this. This disbursement has therefore been refused. [24] Invoices were also submitted by the Complainant for a total of $343.90 for Quicklaw Research. It is fair to say that human rights law is somewhat less pervasive in practice as other areas of law. It is therefore extremely important, in the scheme of presenting a convincing argument to support a claim of discrimination under the Act, to assist the Tribunal in its deliberation by providing accurate and current case law. It might otherwise be argued that the cost of Quicklaw research should be considered as part of a law firm's overhead, rather than being an out-of-pocket expense. I have reduced this item to $143.90. This research is as much helpful to the Tribunal as it is to a party's case, but the very narrow success of the Complainant's complaint militates against allowing this expense in full. [25] Accordingly, and in addition to the earlier reasons given by this Tribunal, Ms. Mowat is awarded the total amount of $47,000 for her legal costs under s. 53(2)(c) of the Act. Ms. Mowat's interest claim to the date of this decision, for reasons already explained, is denied. However, interest is to be paid on the costs award from the date of this decision to the date of payment of the award, again calculated in accordance with Rule 9(12)(a) of the Tribunal Rules of Procedure. Signed by J. Grant Sinclair OTTAWA, Ontario April 22, 2008 PARTIES OF RECORD TRIBUNAL FILE: T822/7203 STYLE OF CAUSE: Donna Mowat v. Canadian Armed Forces DECISION OF THE TRIBUNAL DATED: April 22, 2008 APPEARANCES: Jerry W. Switzer For the Complainant No one appearing For the Canadian Human Rights Commission Derek Allen Sandra Nishikawa For the Respondent

2008 CHRT 12

CHRT

Fahmy v. Greater Toronto Airports Authority

en

2008-05-07

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6686/index.do

2023-12-01

Fahmy v. Greater Toronto Airports Authority Collection Canadian Human Rights Tribunal Date 2008-05-07 Neutral citation 2008 CHRT 12 File number(s) T1115/9605 Decision-maker(s) Garfield, Matthew D. Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MARIE-THERESE FAHMY Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - GREATER TORONTO AIRPORTS AUTHORITY Respondent REASONS FOR DECISION 2008 CHRT 12 2008/05/07 MEMBER: Matthew D. Garfield I. INTRODUCTION II. BACKGROUND III. THE USE OF INITIALS IV. THE COMPLAINT V. MOTION FOR NON-SUIT A. The Election Issue B. Ruling on the Motion for Non-Suit C. The Law With Respect to Non-Suit Motions D. The Prima Facie Case in Non-Suit Motions E. Particular Allegations and Facts in this Non-Suit Motion VI. REASONS FOR DECISION ON THE MERITS A. The Law B. Findings of Credibility (i) The Complainant (ii) S.M. C. The Allegations: Introduction D. Allegation #1: S.M. Took Away Her Work and Gave It to B.M. and M.G. E. Allegation #2: The September 3 or 4 Conversation Between S.M. and Ms. Fahmy F. Allegation #3: Issue of Accents and Communication Level of Employees G. Allegation #4: Security Clearance H. Allegation #5: Security Gateway and Other Training I. Allegation #6: S.M. Excluded Her From Meetings J. Allegation #7: Access to the Campus Area Network K. Allegation #8: CD Cabinet Key L. Allegation #9: Sexual Comments About Ms. Fahmy at Two Meetings M. Allegation #10: Her Work Performance Was Good: Her Employment Termination was Discriminatory (i) Was She Competent and Qualified to Do the Job? (ii) Inventory of Equipment (iii) Missed Technical Deadlines (iv) RFC Change Management Protocol (v) Heat Tickets (vi) Showing Aelita Migration Tool to M.G. (vii) Lynn Child's Complaint (viii) Vishwa Surajram's Complaint (ix) Conclusion About Work Performance and Employment Termination N. Allegation #11: Performance Appraisal and the Process was a Sham or Pretext VII. CONCLUSION I. INTRODUCTION [1] It was an extremely busy and stressful time. It was 2002 and the new Terminal 1 at Pearson International Airport in Toronto was rushing to completion. The employees in the Information Technology department of the Respondent Greater Toronto Airports Authority (GTAA) were on a tight time-line to get the computer system in operation for the new Terminal 1. This was the context in which the Complainant, Marie-Therese Fahmy, found herself when she joined the GTAA's IT Systems Operations as a network analyst in July 2002. [2] At first, things seemed fine for Ms. Fahmy. However, as time went on, from her perspective and that of her employer, issues emerged. This began with the arrival of her new manager a few weeks after she started work at GTAA. The relationship deteriorated. From the employer's perspective, her work performance was simply not consistently satisfactory. However, because her work performance had improved since the first performance appraisal, her probationary period was extended. On May 1, 2003 - ten months after she began - GTAA terminated her employment. She filed a grievance alleging wrongful termination and a complaint with the Canadian Human Rights Commission (Commission) alleging discrimination contrary to section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended (CHRA) based on the prohibited grounds of race, national or ethnic origin, colour and sex. II. BACKGROUND [3] The Commission referred the complaint to the Canadian Human Rights Tribunal (Tribunal) on December 30, 2005. The parties estimated ten days for the hearing. The Commission did not attend or participate at the hearing. At the first day of the hearing, counsel for the Complainant requested that the hearing be bifurcated. The Respondent consented. The Complainant's counsel indicated that she had recently taken over the case from previous counsel and was not able to get medical reports in time for the remedial portion of the hearing. Counsel also indicated that there were some mental health issues of the Complainant that her client did not wish to reveal unless it became necessary. They were not relevant to the liability part of the hearing. Because I was doubtful that the entire hearing could be completed in the agreed ten days in any event, I reluctantly agreed to bifurcate the hearing. [4] Unfortunately, my suspicions were confirmed. The hearing ended up taking 21 ½ days, including a motion for non-suit. While counsel for the parties underestimated the time needed, in fairness to them, there were other factors involved. Some of the witnesses took an inordinate amount of time on the stand. For example, the Complainant's testimony alone took almost eight days of hearing. Questions had to be repeated as answers were simply not responsive to the questions. There were many objections made throughout the hearing, mainly by counsel for the Respondent. I should add that many of her objections were sustained. [5] Aside from the length of the hearing, I was concerned about the length of time over which it was spread - one year exactly. This was due to the busy schedule of counsel. It was very difficult finding blocks of time that both counsel had available. I mention this because it has been five years since Ms. Fahmy's employment ended at GTAA. The Commission took 2 ½ years to refer the case to the Tribunal; the hearing itself was spread over one year. It is obviously not in the interests of either party (or the non-participating Commission) to have the matter take so long to reach a conclusion. From the parties' and the witnesses' points of view, memories fade and giving testimony becomes more difficult. From the Tribunal's perspective, it made it more challenging to adjudicate. However, I am satisfied that the viva voce evidence, along with the documentary evidence, was cogent enough that I am able to make findings of fact and law and come to a disposition. III. THE USE OF INITIALS [6] One will see throughout my Reasons for Decision that I make some strong findings regarding the credibility of the Complainant and certain witnesses, and their respective evidence. Because of this and the harsh accusations by the Complainant toward her manager in particular and against other witnesses, and by other witnesses against each other, I have decided to use initials for some of the witnesses, to protect their privacy and reputations. I have not used initials for the parties. IV. THE COMPLAINT [7] Ms. Fahmy claims that her rights under subsections 7(a) and 7(b) of the CHRA were violated by the GTAA. Section 7 reads: 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, based on a prohibited ground of discrimination. Ms. Fahmy is claiming the grounds of race, national or ethnic origin, colour and sex. She is a woman of colour, and of Egyptian origin. [8] The Complainant filed her Complaint on June 14, 2003. She had reformulated it several times. Indeed, the Commission initially refused to deal with her Complaint. I should add that this does not factor into my determination, as the hearing before the Tribunal is a de novo one. In my Reasons I address the particular allegations. [9] The gist of her Complaint (based on the actual Complaint form filed, her Statement of Particulars filed with the Tribunal (akin to a pleading) and her viva voce testimony) is against her manager, S.M., who became her manager a few weeks after she began to work at GTAA. His predecessor had hired her. In her Complaint form, she also mentions that A.W., project manager, operations, who supervised her from January-April 2003, ...tried to destroy my self-esteem, notwithstanding her testimony that he was very nice to her. But her focus is on S.M. He is not a party; the GTAA is the only respondent. In her letter to GTAA President and CEO Louis Turpen dated May 4, 2003 following her termination, she said she did not blame the GTAA, only S.M. for discriminating against her. She wrote: ...he didn't like me for my background. She did not mention any discrimination based on her gender. As well, in a letter to the Commission which was stamped received December 11, 2003, Ms. Fahmy wrote, I strongly believe that my Human Rights complaint is about giving my job to white people. There is no mention of gender or sex discrimination. She only claims discrimination based on sex later. As well, in the hearing, Ms. Fahmy alleged that A.W. secretly assigned technical jobs to the white contractors - nothing about gender-based discrimination. [10] Notwithstanding S.M. is not a party, of course GTAA may be deemed liable (analogous to vicarious liability under tort law) for any discriminatory conduct by him (or any other manager, employee, contractor/consultant as agent) in the course of his employment, pursuant to section 65 of the CHRA. This is so unless the respondent employer can show it did not consent to the discriminatory practice, took reasonable due diligence to prevent it and mitigated its effect. [11] In her Complaint form, Ms. Fahmy claims that her job was given to a less qualified white contractor. She also says her white manager, S.M., favoured the white guys over the accented people of colour. She writes that he made sexist comments to her. As well, Ms. Fahmy states that S.M. gave her an unfair performance appraisal, full of wrong accusation [sic]. She says she complained to Maria Maack, the human resources manager, about S.M.'s treatment of her, but to no avail. She also writes, [S.M.] avoided me and refused to acknowledge my good performance. [Her underlining.] V. MOTION FOR NON-SUIT A. The Election Issue [12] At the conclusion of the Complainant's case, counsel for the Respondent indicated she intended to bring a motion for non-suit. I received written submissions about the issue of whether GTAA would be put to an election not to call evidence if the motion was heard. I ruled that GTAA would not be required to make an election. [13] Regarding the issue of the election, I have a few comments. First, the Tribunal has the jurisdiction to decide whether an election is required and to hear a motion for non-suit: Filgueira v. Garfield Container Transport Inc., 2006 FC 785. Hughes J. pointed out at para. 22 that the matter of requiring an election is one of procedure, not of law or natural justice: Tribunals should be allowed reasonable latitude when it comes to procedure... Second, there are thoughtful decisions at the Tribunal-level both requiring and not requiring an election to be made prior to hearing a motion for non-suit. In both decisions, the respective members agreed that the question should be decided in the circumstances of each case: Chopra v. Canada (Department of National Health and Welfare), [1999] C.H.R.D. No. 5 and Filgueira v. Garfield Container Transport Inc., 2005 CHRT 30. In the civil context, most jurisdictions in Canada do not require an election.1 While there are sound legal and policy reasons for both determinations, I am more persuaded by the arguments in favour of not requiring an election. In the CHRA context, there is no pre-trial oral discovery process available to the parties. There is no motion for summary judgment.2 Indeed, an award of costs is not available to a victorious respondent in the CHRA proceeding before the Tribunal. A respondent dealing with a frivolous or vexatious complaint has little recourse to a summary determination short of a full hearing at the Tribunal, once the Commission has referred the complaint to the Tribunal. Accordingly, I do not believe it is fair to require a respondent to make an election not to call evidence as a condition precedent to having his motion for non-suit heard. No evidence was presented to me to suggest that not requiring elections increases the number of non-suit motions made, thus prolonging the hearing process. B. Ruling on the Motion for Non-Suit [14] On July 3, 2007, I heard argument on the motion for non-suit. Soon thereafter, I advised the parties of the following ruling: The motion for non-suit is dismissed. I am satisfied that there is some evidence which, if believed, could trigger liability under the CHRA. This does not suggest that the evidence will be believed and liability established at the conclusion of the hearing, whether GTAA elects to call evidence or not. In either situation (i.e., if GTAA calls evidence or not), when the hearing closes, I will undertake the usual weighing and assessing of the evidence, including credibility, which I am not permitted to do on a motion for non-suit. In the circumstances of this case, where the Respondent was permitted to bring the motion for non-suit without having to make the election not to call evidence, I think it would be inappropriate to issue detailed Reasons now. Accordingly, my Reasons for Decision will be issued upon the completion of the hearing. ... ... [15] One will see from my ruling above that I essentially gave no reasons, with the promise to give full reasons at the conclusion of the hearing. This addresses the commentary in the various cases dealing with elections and non-suits concerning whether reasons should be given, and when and to what extent, where an election is not required. Obviously it is not an issue where the motion for non-suit is successful or where an election is required to be given. Adjudicator Slotnick in Potocnik v. Thunder Bay (City), [1996] O.H.R.B.I.D. No. 16, at para. 16 cites with approval the approach taken in Tomen v. O.T.F. (No. 3), (1989) 11 C.H.R.R. D/223 not to give reasons. At para. 10, Adjudicator Slotnick states: ...where an adjudicator does not require an election and ends up rejecting the motion to dismiss the complaint, the proper procedure is to give no reasons. Otherwise, the party that is about to present its evidence would have the advantage of the adjudicator's thoughts on the evidence of the other party. In Filgueira, supra, Member Groarke refers to a respondent taking the temperature of the Tribunal. I agree that a respondent should not get an advantage from bringing an unsuccessful non-suit motion by getting to test the waters of a tribunal. The adjudicator should not give reasons, other than to say whether a prima facie test has been made out. That is the approach I have taken in this case. C. The Law With Respect to Non-Suit Motions [16] Sometimes referred to as a motion for dismissal in the case law, the purpose of the motion for non-suit makes sense. In the adversarial process, a defendant is not forced to lead evidence. The burden of proof rests with the proponent of the case - the plaintiff. The defendant should not be relied upon to help prove a plaintiff's case. As well, if a plaintiff is not able to present sufficient (or any) evidence to prove in fact and in law that liability should ensue, the defendant should not be obligated to run his or her case, at great expense to the parties and the public court system. [17] While a defendant's resources and the public purse should not be burdened to pay for frivolous or vexatious claims, the courts have set a high bar for non-suit motions to succeed. This is done through various means: the prima facie test requiring a presumption that a plaintiff's evidence be believed, in essence the benefit of the doubt going to the plaintiff; forcing an election to be made by a defendant (in those jurisdictions that require it); and the awarding of costs against an unsuccessful moving party. The courts have clearly determined that it should not be too easy for a defendant to knock out a lawsuit on a motion for non-suit. Perhaps there is a fear of delay to the process if unsuccessful non-suit motions became the norm. On the other hand, as Adjudicator Wildsmith stated in Gerin v. IMP Group Ltd., [1994] N.S.H.R.B.I.D. No. 4, at para. 21: ...I note that the motion for non-suit is a potential safeguard against abuse. D. The Prima Facie Case in Non-Suit Motions [18] There have been differences espoused by the courts over the years regarding the proper test to be applied to non-suit motions. For example, does the plaintiff need to adduce sufficient evidence or simply any evidence on the elements of the case to defeat a motion for non-suit? Is there a difference in the criminal vs. civil context? [19] On the civil side, and this includes for my purposes, the present case before me, the test for the moving party is: has there been some evidence led which, if believed, could trigger liability, in the absence of an answer from the defendant (or respondent in the CHRA context)? In other words, is there a case for the defendant to answer? If yes, the motion is dismissed; if the answer is negative, the motion is granted. An unsuccessful motion for non-suit does not mean that the plaintiff will win the day at the conclusion of the hearing proper. It simply means this high bar for a preliminary dismissal has not been reached. [20] It is important to note the different analytical approaches used in the non-suit and on the merits determination. As Member Groarke noted in another decision in Filgueira v. Garfield Container Transport Inc., 2005 CHRT 32, at para. 12, in a motion for non-suit there is a different kind of analysis undertaken than that carried out on the merits at the end of a hearing. The courts have been quite clear that a trial judge or adjudicator should not do the regular weighing and assessing of evidence, including credibility, that is done in the normal course at the conclusion of a trial or hearing. To confuse the two processes is an error in law. The trier at the non-suit is measuring the case from a prima facie perspective - very superficially, at first glance or sight as the Latin term prima facie literally means. No in-depth perusing of the evidence or assessment of the credibility of the witnesses is done. As Adjudicator Wildsmith correctly pointed out in Gerin, supra at para. 7: ...the quality of the evidence should not be assessed at this point. Further, as Adjudicator Baum wrote in Tomen, supra at para. 29: I am bound to view the evidence through a narrow prism. I am not, as such, evaluating conflicting evidence. I would add that that includes conflicting evidence within a complainant's own case, unless of course, it is simply so unbelievable. At the non-suit stage, there is almost an evidential presumption of truth - evidence if believed. The plaintiff or complainant gets the benefit of the doubt. Indeed, the bar is cast so high that it is only if the complainant's case is totally unbelievable or far-fetched (i.e., one would have to suspend one's belief to accept it) that it should be disbelieved.3 The result is that it is difficult for a moving party to be successful on a motion for non-suit. Furthermore, if the court or tribunal requires an election, given the high threshold, very few defendant or respondent lawyers would take that risk. [21] The role of the trial judge in a motion for non-suit was recently canvassed by the Ontario Court of Appeal in FL Receivables Trust 2002-A (Administrator of) v. Cobrand Foods Ltd. (2007), 85 O.R.(3d) 561. The Court held that the trial judge applied the wrong test in granting the non-suit motion ...by going beyond his limited mandate... on the non-suit motion. Laskin J.A. wrote at paras. 35-36: On a non-suit motion, the trial judge undertakes a limited inquiry. Two relevant principles that guide this inquiry are these. First, if a plaintiff puts forward some evidence on all elements of its claim, the judge must dismiss the motion. Second, in assessing whether a plaintiff has made out a prima facie case, the judge must assume the evidence to be true and must assign the most favourable meaning to evidence capable of giving rise to competing inferences... In other words, on a non-suit motion the trial judge should not determine whether the competing inferences available to the defendant on the evidence rebut the plaintiff's prima facie case. The trial judge should make that determination at the end of the trial, not on the non-suit motion. See John Sopinka, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths Canada, 1999) at 139. I assume that the Court is not suggesting the assumption of truth of the evidence includes evidence that is unbelievable in the extreme, or simply preposterous. [22] I also wish to point out that there is some confusion in the case law about whether the test requires that the evidence would or could trigger liability. Courts and tribunals have taken both approaches and some avoid the issue altogether. In Filgueira, supra, Hughes J. quotes with approval at para. 6 the following passage in Sopinka, Lederman and Bryant: The judge must conclude whether a reasonable trier of fact could find in the plaintiff's favour if it believed the evidence given in the trial up to that point. [My italics.] It appears clear that the Supreme Court of Canada has adopted the could approach, at least in the civil and criminal context, which I have followed here.4 I see no reason to deviate from it in proceedings before the Tribunal. [23] Is there a different evidential burden to establish a prima facie case of discrimination at the non-suit stage than outside such a motion, in the normal course of a hearing after both parties have led their case? This was not in issue before me in the instant case. Consequently, I leave that issue for another day. E. Particular Allegations and Facts in this Non-Suit Motion [24] I now turn to apply the law on non-suits to the allegations and facts in issue here. GTAA argues that there is no evidence which, if believed, is capable of supporting a finding of liability against it on either subsection 7(a) or 7(b) of the CHRA and in respect of any of the claimed prohibited grounds. The Complainant argues the opposite. [25] Having carefully examined the evidence, both viva voce and documentary, by the Complainant and her witnesses, as I indicated in my ruling, I was satisfied evidence existed which, if believed, could trigger liability. For purposes of the non-suit, I do not have to go through each of the allegations. A prima facie case need only be established on a single count under section 7 for each claimed prohibited ground, in order for the motion to be dismissed. I appreciate that some of the allegations involve the prohibited ground of sex and others the grounds of race, national or ethnic origin, and colour. Some of the allegations also involve all of the claimed prohibited grounds, as it is often difficult to parse people's immutable characteristics in the finding of discriminatory practices. [26] I have done this analysis on the motion for non-suit following these legal parameters: giving the benefit of the doubt to the Complainant, putting the absolute best interpretation on the evidence of her and her witnesses, and not taking into account questions of credibility. [27] With regards to the question of liability under section 7 on the basis of sex, for purposes of the non-suit only, I find that the allegation of improper sexual statements against Ms. Fahmy on two occasions by S.M. or A.W. (but not M.G.) could trigger liability of GTAA. In particular, S.G.'s evidence is believable, for purposes of the non-suit, that either S.M. or A.W. made disparaging comments behind Ms. Fahmy's back in two meetings among the three of them. The comments were sexually degrading and involved the Complainant performing fellatio and were made by a manager of GTAA. Such comments, even though not brought to her attention until after her employment termination, could have constituted adverse differential treatment and factored into her employment termination on account of her gender. Included in this determination is the evidence of Ms. Fahmy that S.M. made sexist comments like, It's still a man's world and let the men win. I also factor in the fact that Ms. Fahmy was the only woman in the IT department under S.M.'s supervision. [28] I also find for purposes of this non-suit only that there existed some evidence, which if believed, could result in liability contrary to section 7 on the basis of race, national or ethnic origin, and colour. In particular, the following incidents in totality show on a prima facie basis, adverse differential treatment of Ms. Fahmy culminating in the decision to terminate her employment on the basis of her race, national or ethnic origin, and colour: she was hired to be the technical lead on the MS Windows 2000 infrastructure project, but it was taken away from her and given to a white contractor with fewer qualifications than she, M.G.; Pre-Production Centre work was taken away from her and given to another white contractor, B.M., who was also less qualified than she; Ms. Fahmy was excluded from meetings, including one on January 30th, while the white contractors were not (i.e., A.W., D.M., B.M., M.G.); S.M. made a disparaging comment that could be viewed as being directed at accented employees/contractors of colour: I want people who can communicate better; white employees got training, but not the Complainant or the other people of colour; white, male colleagues had access to the Campus Area Network, but not her or the other employees/contractors of colour; and with respect to all claimed prohibited grounds, there is evidence that D.M. was told by S.M. to make-up performance/deficiency issues to justify terminating Ms. Fahmy's employment. This was said prior to her probationary period being extended and thus taints the bona fides of the whole performance appraisal process and extension of the probationary period. VI. REASONS FOR DECISION ON THE MERITS [29] Having dismissed the motion for non-suit, I asked counsel for the Respondent if she wished to call evidence. Understandably, Ms. Rusak answered yes and I proceeded to hear her witnesses and the brief Reply evidence of Ms. Fahmy. What follows are my Reasons for dismissing the Complaint on the merits. A. The Law [30] The initial onus of establishing a prima facie case of discrimination under the CHRA rests with a complainant or the Commission5: Ontario Human Rights Commission and O'Malley v. Simpsons-Sears Limited, [1985] 2 S.C.R. 536, at para. 28. Once that is established, the burden then shifts to the respondent to establish a justification or explanation for the discriminatory practice or action. The respondent's explanation should not figure in the determination of whether the complainant has made out a prima facie case of discrimination: Lincoln v. Bay Ferries Ltd., 2004 FCA 2004, at para. 22. [31] Also relevant to the instant case is the legal principle that: It is not necessary that discriminatory considerations be the sole reason for the actions in issue in order that the complaint may succeed. It is sufficient that the discrimination be one of the factors for the employer's decision: Morris v. Canada (Armed Forces) (2001), 42 C.H.R.R. D/443 (C.H.R.T.), at para. 69. [32] The case law recognizes the difficulty of proving allegations of discrimination by direct evidence. Discrimination is frequently practised in a very subtle and subterranean manner. Overt discrimination is rare: Basi v. Canadian National Railway Company (No. 1) (1988), 9 C.H.R.R. D/5029 (C.H.R.T.), at para. 5038. Rather, it is the Tribunal's task to consider all of the circumstances to determine if there is, in what is described in the Basi case as, the subtle scent of discrimination. [33] The standard of proof in discrimination cases is the ordinary civil standard of the balance of probabilities. According to this standard, discrimination may be inferred where the evidence offered in support of the discrimination renders such an inference more probable than the other possible inferences or hypotheses: Premakumar v. Air Canada (No. 2) (2002), 42 C.H.R.R. D/63 (C.H.R.T.), at para. 81. B. Findings of Credibility [34] As an adjudicator, I am mindful that the hearing room is an artificial environment where witnesses react in individual and different ways to the stresses of giving testimony, etc. Accordingly, their demeanour is used as only one indicium of credibility. More important is the content of their testimony and what they did, said and wrote (as documentary evidence is important too) in the past events that form the basis of the subject matter of the Complaint before me, and how their evidence fares in the context of the totality of the evidence presented. I also wish to add that finding a witness credible or not does not mean that everything the witness says or writes is accepted or rejected. I have tried to make sense of all the evidence and make findings of fact about what actually occurred. [35] As in many cases, credibility played an important part here. In my Reasons, I comment on the credibility of various witnesses. Here specifically, I wish to comment mainly on the credibility of the two most important witnesses in the hearing: the Complainant; and S.M. Although S.M. was not named as a party in the referral by the Commission, the Complaint and the theory of the Complainant's case always focused on S.M. as the alleged discriminator of Ms. Fahmy. [36] Ms. Rusak submits that the Complainant, D.M. and S.G. perjured themselves before the Tribunal; their testimony was so unbelievable. While I won't go so far as to find that they perjured themselves, by the end of the hearing their credibility was damaged. (i) The Complainant [37] The Complainant's credibility was in question throughout the hearing, both in terms of what she said on the stand and what she wrote in emails and letters, and juxtaposed against other witnesses' evidence. She was not very credible and her evidence not reliable in many instances. She was on the stand for almost eight days. Ms. Fahmy was frequently evasive. She did not answer many questions the first time asked; some required repeated asking, particularly in cross-examination. Sometimes she would contradict herself within the span of minutes, and certainly from the examination-in-chief to the cross-examination. I do not believe language was the problem. While English is not her first language, and while she may not be totally fluent, her language facility in English is very good: both verbal and written. I judge this by her testimony and the numerous documents she wrote that were entered into evidence. I even asked her if she was having difficulty understanding the questions. She answered no. I sometimes noticed that she would try to anticipate the cross-examiner's question before it was asked. I interjected numerous times, letting her know I understand it is stressful, but to listen carefully to the question and answer the question directly. [38] Aside from her evasive demeanour, the content of many of her answers was unbelievable. I do not think she answered many of the questions honestly. Indeed, there was one instance where Ms. Rusak was asking her a question and the Complainant said she wasn't concentrating because she was reading the performance appraisal exhibit. Counsel replied that that was not true, that the Complainant was looking right at her, staring her [counsel] down. Ms. Fahmy replied: Yeah. Okay...You don't know...I'm looking and I'm reading. I was watching Ms. Fahmy during the whole exchange. Ms. Rusak was correct. [39] Later in my Reasons under the specific headings of allegations, I will deal with some of the Complainant's evidence and that of other witnesses regarding her which raised concerns about her credibility. For now, I will give some examples. First, it was quite apparent that Ms. Fahmy misrepresented her experience in her curriculum vitae that was presented to GTAA via the placement agency, Agelon, when she was hired. In particular, in the curriculum vitae she gave to the Commission post-GTAA employment, she writes under the heading Work Experience that she was a Senior Network Analyst at GTAA. This is clearly untrue. In her testimony she acknowledged that she was hired at the GTAA as a Network Analyst and not as a Senior Network Analyst. She knew that there was a clear difference between the two jobs, in terms of classification, salary, duties and responsibilities. She did the same thing with other former employers on this c.v. (i.e., adding Senior). The c.v. she gave GTAA, via the placement agency, in April 2002 is different than the one produced to the Commission by the Complainant and which includes her employment post-GTAA. In addition, the dates she worked at several employers were not the same on both resumés: in one case, the Ontario Financing Authority, there was a seven month discrepancy. She also left out a company for which she had worked for over one year on her c.v. given to GTAA. When cross-examined on the discrepancies, she replied that a priest had told her it was alright to do so, ...it's not a lie if you put the same amount of years of experience. It doesn't matter how many companies. Ms. Fahmy indicated that she also was told it's okay to shrink your curriculum vitae as long as you highlight the important things. She also testified that she spoke with some human resources person in an Ontario government ministry about how to do the resumé and how to make it short. She implied that the Ministry employee told her it was alright to alter work periods so as to avoid gaps in employment. She also stated, ...when I apply for a job that's not senior, I go remove all my senior or put them back. It's not about how accurate it is. It's about answering questions for the employer and being able to do the job. In cross-examination, she admitted that the c.v. she presented to get her job at GTAA was not completely true and accurate. [40] Another area damaging her credibility and making her evidence unreliable involves the question of her being busy or not while working at GTAA, and whether she accepted the evaluation of her work in the performance appraisals. Suffice to say that her evidence was contradictory. At one point, she testified that she was not busy 50-60 percent of the time from January-May 2003, because work had been taken away from her. This is so notwithstanding she had put in consistently for overtime and the evidence of several witnesses was that it was a busy time and there was lots of work for everyone. As well, she had replied in an April 8, 2003 email to S.M.'s request of his employees' work schedules that she was quite busy: Daily activity: Support WNT/2000, and Exchange servers 90% of my time. In cross-examination, when it was put to her that her email reply was simply untrue, she replied that S.M. should know how busy they are: ...the manager should know what we are doing. She also testified that she was concerned if she had said she wasn't busy, that she might have been fired. [41] Ms. Fahmy's evidence about the work appraisals also raised credibility concerns about her. She testified that she had not read the entire November 8, 2002 appraisal; she had read parts of it; she didn't understand part of it. Later, she stated, A big part, I read but didn't agree with. A small part, I never read. This is coupled with the written response she gave to that issue. Having reviewed the appraisal and her written response, I conclude she could not have written what she did without having read the entire appraisal. Furthermore, in her May 5, 2003 letter to the Commission, Ms. Fahmy wrote at p. 2: Then I went home and read the performance appraisal and I found too many wrong accusations. Clearly she read it, as she should have, given it was her responsibility as a probationary employee to read the appraisal to understand what areas she needed to improve. [42] Regarding the content of the performance appraisal, she testified she didn't agree with it. There are clearly documents indicating her concern with some of it, including the suggestion that she missed many deadlines and the later giving of examples. Yet she also wrote that she agreed with it and would try to do better. She explains this by saying she was trying to win him over and that she didn't mean what she wrote. She wrote to S.M. that she likes him sooo [sic] very much, when in fact she testified she thought S.M. was a racist at that time, but was trying to win him. In essence, I find it difficult to determine whether she was telling the truth in the first instance, or telling the truth that she wasn't being truthful. [43] Her evidence regarding her December 6, 2002 meeting with human resources manager Maria Maack is not believable in the main as well. She avers that she showed Ms. Maack emails demonstrating S.M. was harassing her and didn't like her because she is a woman. There is no email corroborating this. She says she wanted Ms. Maack to start an investigation into the matter. She says Ms. Maack refused to do anything. Ms. Fahmy also wrote, The sex discrimination was raised between Maria Maack and me only. I find her evidence utterly unbelievable. I do not accept her testimony that she alerted a seasoned human resources manager, who trains others regarding discrimination and harassment issues and investigates such matters, and that Ms. Maack refused to do anything. This would be contrary to the collective agreement and internal anti-discrimination/harassment policies of the GTAA. As Ms. Maack stated, if she failed to respond like that, she (Ms. Maack) would no longer have a job. I accept Ms. Maack's viva voce evidence and her email to S.M. and to file dated December 9, 2002 as reflective of what occurred at the meeting. I wish to add that I found Ms. Maack quite credible on the stand. (ii) S.M. [44] S.M. was Ms. Fahmy's manager. He started several weeks after she began working at GTAA. He was a new manager and indeed, he testified that he had never done a performance review before. While I do not accept all of his testimony, for the most part, I find S.M. was quite credible as a witness and his evidence reliable. He answered the questions succinctly and his viva voce testimony was generally consistent with his emails and letters, and with the preponderance of the evidence in the case. [45] One area that I did not accept his evidence on concerned Ms. Fahmy remaining the technical lead on W2000 even to the last day. Having reviewed the testimony of the other witnesses and the documentary evidence, while still a network analyst (the position for which she was hired), by the time her employment was terminated, she was no longer the technical lead on W2000. For example, I accept Ozgur Erkucuk's evidence that she was eventually taken off the project. This will be discussed further in my Reasons. C. The Allegations: Introduction [46] I will deal now with the numerous allegations of the Complainant and issues that flow from them, under subsections 7(a) and 7(b) of the CHRA. Some involve all the claimed prohibited grounds, others involve sex only and some race, national or ethnic origin, and colour only. Unless stated otherwise, each allegation deals with all four claimed prohibited grounds. Ms. MacKinnon, counsel for the Complainant, argues that each allegation of adverse differential treatment may not on its own attach liability to GTAA, but collectively they do. [47] In final argument, Ms. MacKinnon submits that I make a finding of harassment, although she was not advancing a section 14 harassment claim. GTAA's counsel objected. GTAA was not put on notice of this and I indicated I would not allow the Complainant to do indirectly what she could not do directly. This case was always presented as one of a section 7 violation only; the Respondent did not receive reasonable notice. For natural justice reasons, no allegations of harassment will be considered against the Respondent. D. Allegation #1: S.M. Took Away Her Work and Gave It to B.M. and M.G. [48] This was a major part of Ms. Fahmy's Complaint. Ms. Fahmy says she was the technical lead of the Windows 2000 project at first, that her core duties were taken away from her, and given to two white, male consultants - B.M. and M.G. - who were less qualified than she. She claims that, as a consequence, she was relegated to less important duties. To deal with this allegation, I must examine exactly what her job was at GTAA. [49] Ms. Fahmy was hired as a network analyst. Technical lead was not the job title. Within the job description, she could be assigned various projects at the discretion of her manager, such as that of technical lead. A position vacancy notice and a job analysis data document outlining the job requirements and duties for a network analyst by GTAA were entered into evidence. Ms. Fahmy said they were applicable to her with some modifications. It included any assignments given to her by her manager. In her reply to GTAA's response to the Commission, she wrote: The position is strictly Windows 2000/NT implementation and support. Her major duty, according to her, S.M., A.W. and M.G., was to be technical lead for the Windows 2000 project, migrating data and users from Windows NT to Windows 2000. This was the biggest and most expensive project in the IT department at the time. D.L. was the project manager and D.M. was the architect. Ms. Fahmy was to work closely with D.M. [50] To have a better understanding of what her job was, let us examine what Ms. Fahmy wrote describing her job in her curriculum vitae post-GTAA employment at p. 2: Greater Toronto Airport Authority July 2002-May 2003 Senior Network Analyst Planned/implemented Active Directory Services and Windows 2000 Advanced servers' rollout. Maintained/monitored 72 NT/2000 servers including DHCP, WINS and DDNS. Configured Vlans and port security on Cisco switches 1900, 2900 and 3500 series. Maintained Exchange 5.5 server and Exchange 2000. Implemented SMS 2.0 and SQL 2000 server. Provide backup for RSASecurID. Involved in the computer's room layout and prepared all purchased cabinets and servers. [51] The above job duties in her own written words belie her Complaint and testimony that her job was reduced, and part of her duties given to others, leaving her in a lesser role. She writes that she Planned/implemented Active Directory Services and Windows 2000 Advanced servers' rollout. These are the technical lead duties which she both initially claimed she wasn't getting credit for by D.M. and V.J., and then later after it was apparent the system architecture didn't work and needed to be replaced or fixed, that she wasn't at all responsible, because the work was taken away from her. In her c.v. above, she conveniently doesn't mention that the rollout of the Windows 2000 system that she [p]lanned/implemented was a failure. [52] Throughout the hearing, there was confusion as to exactly what Ms. Fahmy's role was, including the nomenclature - technical lead, primary, senior, and coordinator. I accept the evidence that technical lead and primary were interchangeable. The term senior was used by different witnesses to mean: longest tenured, most knowledgeable, lead. Senior network analyst is also a term of art in the industry and indeed is a separate classification under the collective agreement at the GTAA. A.W., who came into the picture in January 2003 to deal with the W2000 system design and implementation problems, said the Complainant was the senior windows technical resource on the W2000 project. S.M. testified that she was the coordinator for Windows 2000 for his department: the senior, primary. He averred: The overall coordinating responsibility belonged to D.M. and D.L. ... She was the only permanent resource on the team [for the Windows 2000 project]. It was always her. It was never taken away; even to the last day, she was the main person responsible, even though I had concerns about her performance. He also said B.M. and M.G. were originally brought in to assist her as it was a big project. [53] Her contradictory testimony about her role and responsibilities is evident in these exchanges between her and Ms. Rusak: Q. ...you said that you misunderstood because you thought you were the senior on Windows 2000. A. When I was hired - yes, I'm not a senior with a title, but I am in charge of making sure that things go right with Windows 2000. And if there was a problem I fixed it. Q. ...You weren't hired as a senior, however you were trying to assume the role of a senior. A. I am not assuming the role...I know my Windows 2000 at the level of senior, yes. I'm not a senior. I just know my stuff as a senior...I'm the only one in charge. Only one person. And I was allowed to fix errors done by other people. So this is my responsibility. If they do a problem I fix it. So this is most knowledgeable person of Windows. ... ... Q. So you're saying that as the technical lead you couldn't determine who, to use your terminology, screwed up the systems, because there were too many people using the system. ... ... A. I'm not the technical lead. I wasn't totally technical lead. Q. You said you were the technical lead. I asked if you were the technical lead on the W2K project, you said yes. Now you're not the technical lead. A. No. I am not the technical -- my problem is [S.M.] undermined me and he did not want me to -- he didn't respect my knowledge, so I wasn't the technical lead. I supposed to, but I wasn't. [54] S.M. testified that: Her job was to understand what was being built so she could support it and accept the system on behalf of the department and then support it. In his email to Ms. Fahmy dated November 12, 2002 (after she received her first performance appraisal and replied that she was unclear as to her role), S.M. outlined her responsibilities: ... ... You are assigned to the Windows 2000 project team. The team is being managed by [D.L. and D.M.]. Your primary role (as always) was to assist with the building and rollout of the W2K technology while becoming our department's expert in the area of administration and future growth (design) of the W2K technology. I [sic] other words, continue to support the W2K team and make sure you understand how W2K was setup at L.B.P.I.A. Once the W2K environment is fully in production, you will be the main administrator for W2K in our group. [M.G.] will be your backup and should be involved in all W2K issues. Outside of this role, I expect that you continue to support any other production issues that might arise that do not impact you [sic] role on the W2K project. I also expect you to continue to respond to any pager calls you receive. I expect you to continue to contribute to the team and offer your ideas and suggestions when problems arise. ... ... [55] Several comments flow from the above email. First, I find it accurately reflected her role as of November 12, 2002. Second, her manager is clear in his expectations and in his communication of them to Ms. Fahmy. [56] S.M. gave testimony that following the sending of the above November 12th email to Ms. Fahmy in response to her saying she was confused about her role, she replied, Thank you for the update. She was not confused as to her role and responsibilities. However, he stated: One day, she understands it; a week later, she's confused again. I have to send her an email. It happened four or more times; she needed constant feedback. He later said that he never had to manage an employee or contractor so much. [57] The Minutes of the July 17, 2002 meeting regarding the Windows 2000 Network Infrastructure Design, attended by D.M., Imran Asmal and the Complainant and copied to D.L. and S.M. stated: Future management of the project will be based on equal participation of the three core team members [three attendees]. The Minutes were recorded by Ms. Fahmy. [58] Having examined the evidence in detail, I find that she was originally hired as a network analyst with the main responsibility of being the technical lead for the W2000 project, run by D.L. and D.M. Ms. Fahmy would have other duties and tasks assigned to her from time to time, but the W2000 project was to occupy most of her time. Consistent with this are the notes that confirm that S.M. had to tell her to stay focused on the W2000 project and not worry about other work projects. Ms. Fahmy's email to S.M. dated September 6, 2002 complaining that D.M. and V.J. were not sharing any of the credit for the build with her confirms her key role in the project: My help was totally denied and forgotten. I note that in the email, she sets out her role in the project which shows that she was integral to the build process. Ms. Fahmy is also very critical of D.M.'s work in that email. Indeed, in that same email, she wrote in bold, [D.M.] didn't have any experience with W2K Domain Migration. He said it clearly when we started this project. Now you call him the expert and I am the one who is learning. Whether she was right or not, this confirms S.M.'s evidence about her constantly challenging D.M. and not accepting his role. Interestingly, when the project looked successful, she was not denying her involvement or role and was complaining about the lack of credit being given to her. However, when it later became apparent that the system-build was a failure and would require an expensive fix or complete rebuild, she changed her tune. She downplayed the importance of her role and stated that she had no decision-making power. [59] While I accept the Complainant was originally hired to be the technical lead or primary on the W2000 project, I do not find that she discharged that function to the end of her employment on May 1, 2003. I don't accept S.M.'s evidence on this point. In that regard, I accept the evidence of A.W. and S.G. when they testified that the people associated with the unsuccessful first W2000 system-build were tarnished with its failure. Many of them were no longer there in February 2003 when GTAA hired a well-respected Microsoft expert to find out what went wrong and make recommendations. The Microsoft Report, which was released on February 28, 2003, was a devastating condemnation of the system designed and built by the D.L./D.M./V.J./Fahmy team.6 Ms. Fahmy was not one of the major players let go. I should add that GTAA stipulates, and S.M. stated this in his testimony, that the MS Report and Ms. Fahmy's role in the unsuccessful W2000 infrastructure build and implementation played no role in his decision to end her employment. While I believe this was not an explicit reason, I find that she was tainted by her involvement and association with the project as technical lead, as S.G. testified. This tainting, along with her other work and negative interactions with S.M., led to his losing confidence and trust in her abilities, and some of her responsibilities being taken away (i.e., technical lead on the W2000 project). [60] As well, it is natural that S.M., being a new manager, would want to bring in new people, especially after such a disaster, financial and time-wise. Further, I note the email from S.G. to M.G., and copied to Ms. Fahmy dated March 18, 2003 recapping this morning's meeting among S.M., S.G. and M.G. In that email, S.G. confirms that it was decided that M.G. would be the Primary or technical lead and Ms. Fahmy the Secondary for the Administration and Support of WINS [Enterprise W2000 system]. [61] I find that B.M. and M.G. were not brought in to replace Ms. Fahmy, as she claims. They were there originally to assist her in this major project in the fall of 2002. As well, M.G. was to be her back-up. I accept the evidence of M.G. and A.W. that it was standard practice and common sense to have a back-up for each technical lead or primary in case something happens to that person, they're on vacation, become ill, etc. A.W. testified that, ...in January, February, she was still technical lead and it was a major undertaking for one person. However, when it became apparent that the system was not working, the major people involved were tarnished - D.L., D.M. and Ms. Fahmy. It was a credibility smasher. Along with the issues of bad attitude and insubordinate/unprofessional behaviour by Ms. Fahmy in the eyes of S.M. (e.g., always challenging him and D.M., the November 13th door closing-opening incident in S.M.'s office, walking out on him during the November 8th meeting, etc.), I believe that S.M. decided to lessen her duties as the technical lead in the W2000 project. By the end of February 2003, with the Terminal 1 deadline fast approaching, and the Microsoft Report in, a decision had been made by those above S.M. to re-build the W2000 system, at a great monetary cost. I do not believe that S.M. had the confidence in Ms. Fahmy to leave her as the technical lead for the system-rebuild. S.G., A.W. and M.G. would be the major players in the new Enterprise W2000 project. She was technical lead in name only for the first W2000 project from March 2003 to the end of her employment. [62] While I find that, as of approximately March 2003, she was technical lead for the inoperative first W2000 project in name only and not the new Enterprise W2000 project, I do not see any liability under the CHRA attaching for several reasons. First and foremost, the decision was not related to any of the prohibited grounds claimed by Ms. Fahmy. It was based on her involvement in the unsuccessful first W2000 project, her inconsistent work performance and her personality conflict with her manager, S.M. Second, she did bear some responsibility for the first W2000 system's failure, along with D.L. as project manager and D.M. as the architect. Third, she was given additional important duties to fulfill such as purchasing equipment and doing the inventory. She also provided user support and responded to Heat tickets. As well, she was offered work at the Terminal 1 building construction site by S.M. and she turned it down. B.M. ended up being assigned the task. It is important to remember that she was hired as a network analyst, and that was what she was to the last day of her employment at GTAA. Her job description provided for flexibility in terms of assignments, as many jobs in workplaces do. As there were several network analysts working in IT Systems Operations and with overlapping duties, it is not surprising that management would juggle assignments among them. [63] With regards to the role of B.M. and M.G., I do not find that they replaced her. They had similar roles, but there were differences too. M.G. became the coordinator for the second W2000 project (Enterprise) in March 2003. He was promoted the following month by Gary Long on April 28th to coordinating the day to day Systems Operations activities while [S.M.] is focusing on the terminal. S.M. was still in charge of IT Systems Operations, but was essentially working out of the Terminal 1 construction site. I do find that the primary role on the W2000 system project was taken away from her and given to M.G. on the Enterprise system - the successor to the failed first system-build. According to the March 18, 2003 confirmatory email from S.G., it was decided that Ms. Fahmy would become the secondary for the Administration and Support of WINS. I find that this amounted to adverse differential treatment. However, I also find that the decision was not based on any prohibited ground of discrimination claimed by Ms. Fahmy. Accordingly, there is no violation of subsection 7(b) of the CHRA here. [64] Ms. Fahmy alleges that the Pre-Production Centre (PPC) work was taken away from her and given to B.M. I heard evidence that S.M. originally assigned Ms. Fahmy the coordination of the PPC work. However, S.M. testified that the project was late for many reasons. He asked Ms. Fahmy if she needed more resources. He averred that she said she was getting by. Later, she agreed to bring someone else in to assist - B.M. S.M. stated that in October more work came in and she agreed to have B.M. do it. S.M. advised the IT group in an email on November 13, 2002 that, [B.M.] will schedule and coordinate IT System Operations activities related to the PPC. The need for the PPC testing facility grew so S.M. eventually hired and dedicated a permanent resource to handle the work, David Piatek. Ms. Fahmy disputed S.M.'s version of these events; in particular, she said that she neither was consulted in advance nor agreed to B.M. taking over her role as coordinator of the PPC work. [65] I find that the work was initially assigned to her, but it wasn't getting done on time and more resources were required; hence, B.M. being brought in to assist. I also find that S.M. subsequently decided to reassign the coordinator's role for the PPC to B.M. and then later, to have the work done by Mr. Piatek. The foregoing may well constitute adverse differentiation of Ms. Fahmy. However, I find no nexus between the decision to initially bring in B.M. to assist and then take on the coordinating role for the PPC work, and any of the prohibited grounds of discrimination claimed by Ms. Fahmy. They were legitimate business decisions on the part of S.M. [66] I wish to add that, on another occasion, S.M. took away work from Imran Asmal and reassigned it to Ms. Fahmy. Mr. Asmal was not happy about this decision. [67] In the hearing and in her documentation, Ms. Fahmy alleges that not only did B.M. and M.G. replace her, but they were less than qualified to do so. It was challenged by S.M. As well, A.W., who was described as well respected in the IT field and senior by S.M., said that B.M. was a superstar and that many people sought his assistance. M.G.'s abilities were also lauded. He was promoted three times since he first joined GTAA. Indeed, at one point, Ms. Fahmy testified that, As long as he [M.G.] is not touching my job he is qualified. That suggests that she was less than sincere in her earlier assertions about their competence. Even D.M., who was predisposed to Ms. Fahmy in his testimony, stated that he saw no real difference in terms of technical competence among Ms. Fahmy, B.M. and M.G. I find that B.M. and M.G. were qualified to do the jobs GTAA hired them to do and assigned to them during that period. E. Allegation #2: The September 3 or 4 Conversation Between S.M. and Ms. Fahmy [68] Ms. Fahmy testified that S.M. told her to leave the W2000 system-build to V.J., an IT consultant who worked on the project and D.M., the architect who was responsible for the design of the infrastructure. When questioned by her, S.M. allegedly said, Are you challenging me? You're on probation. S.M. says Ms. Fahmy was repeatedly challenging the authority and decisions of D.M. and V.J. He said D.M. repeatedly complained to him about this. This was not corroborated by D.M. in his testimony. S.M. averred that he simply told her to let them do their jobs. I accept S.M.'s evidence on this point. He denies the part about saying, Are you challenging me. You're on probation. I do not believe he made that statement. [69] With regard to Ms. Fahmy constantly challenging D.M.'s role and decisions, perhaps in a way she was right. The first design and build for the Windows 2000 project was unsuccessful. However, she never brought this to the attention of S.M. at any stage. Indeed, during cross-examination, she at first refused to even agree that the first build was a failure. She eventually agreed. I believe she was resistant because of her involvement and association with the unsuccessful project. Or perhaps it was due to the strategy she was advised to adopt and that she set out in her September 6th email to S.M. complaining about not being given credit for her work in the W2000 project by D.M. and V.J.: I would like Gary Long to know what my role in W2K was. First I recall that I did have a similar problem at Nortel Networks. A co-worker advised me to do the following: 1. Not to be pro-active. 2. Let problems first escalate to top management, and then solve them. Everyone would learn that you resolved these problems. You would get noticed and you would be like a hero. [Her bolding.] Of course, it didn't turn out that way. She didn't resolve the problems and she was associated with the failing project. [70] By way of the prohibited ground of sex only, the Complainant argues that on September 3 or 4, 2002, S.M. made certain sexist comments. First, he said he didn't see many women in the IT field, and there were few in his graduating class. He allegedly said, It's a man's world, let the man win. Notwithstanding the comments appear in her Complaint as having been made on the same day, in the hearing Ms. Fahmy testified that they occurred on two separate occasions. I didn't separate them [allegations] by dates when I made my Complaint. S.M. admits to the first comment (i.e., lack of women in IT and his class). They are simply factual statements and certainly do not trigger liability under the CHRA. He denies the latter statements. I accept his testimony. [71] During the hearing, the Complainant testified that when she joined GTAA, she was told that [S.M.] doesn't like non-white people and all the people hired were white. This is hearsay evidence at its worst: no names, just pejorative, damaging accusations being made. Ms. Fahmy was reluctant to name those individuals. Her counsel stipulated that, The people that she has named and who will be called as witnesses will testify to what they told her of their views and -- of their views and how they came to those views, so we're content to rely on that and not to rely on the Complainant's evidence that there were other unnamed individuals who gave her their opinions as well. However, not one witness corroborated this hearsay statement about S.M. not liking non-whites. I give this evidence no weight and reject it. Regarding only white people being hired, this is not true, and indeed white employees were not all kept on. There is no pattern of discriminatory hiring and firing practices by S.M. Indeed, the majority of employees in his department were people of colour. Counsel for the Complainant did not argue there was a systemic discriminatory hiring pattern here. [72] I also heard evidence that Ms. Fahmy was the only female employee under S.M.'s supervision. Again, Ms. MacKinnon does not submit that there is a hiring pattern per se that constitutes a discriminatory practice. The fact that Ms. Fahmy was the only woman under S.M.'s supervision does not prove anything discriminatory per se. I have reviewed the evidence to determine if her being the only woman resulted in her being treated differently in a negative way. I don't find that to be the case. [73] I would like to comment on the testimony of one of the Complainant's witnesses, Ozgur Erkucuk. He worked as a network analyst with Ms. Fahmy. Like her, he is a person of colour and was a unionized employee. He later returned there as a consultant and currently reports to M.G. He testified that the GTAA workplace was multi-cultural and multi-racial. While he could not remember some of the statements he allegedly made to the Commission investigator, he was clear in his viva voce evidence. He testified that he did not hear or see anything that suggested the Complainant was discriminated against based on the prohibited grounds she claimed. He said it is true that she was the only woman in S.M.'s IT group. He also stated that it was understandable for a new manager, who doesn't know his employees' skills and performance levels, to bring in new people. Ms. MacKinnon insinuates in argument that the witness perjured himself. I note that she did not attempt to have him declared a hostile witness. While his evidence was undoubtedly not what the Complainant had hoped for (he was their witness), I find Mr. Erkucuk was a credible witness and I accept his evidence above. He was not able to corroborate any adverse differential treatment of Ms. Fahmy based on the claimed grounds under the CHRA. [74] I do believe the Complainant was a challenge for S.M. to manage, and he did not like her challenging his authority. I note that he complained about S.G. doing this, going over his head, etc. Perhaps as a new manager, S.M. was sensitive to employees/contractors challenging him. It appears the more Ms. Fahmy questioned him about things, such as why he was extending her probationary period, the more impatient he became. It's a fine line between questioning and challenging. I also believe that Ms. Fahmy's obsessive, constant haranguing of S.M. (e.g., by sending numerous emails on a single day on one issue and approaching him in person), who was extremely busy and away from the office often at meetings, got on his nerves. However, I don't see any connection based on the claimed prohibited grounds. Indeed, S.M. dealt with women in other departments at GTAA, including Maria Maack, and with a range of people from different racial and ethnic backgrounds. I accept Ms. Maack's evidence that there have been no complaints about S.M., other than Ms. Fahmy's, concerning his treatment and relationships with women or people of colour. F. Allegation #3: Issue of Accents and Communication Level of Employees [75] This allegation deals with the grounds of race, national or ethnic origin, and colour. Ms. Fahmy claims that, in the late summer of 2002, she overheard a conversation between S.M. and D.M. whereby S.M. allegedly remarked, I only want people who could communicate at a certain level. She claims he said he needs to hire more senior people that can communicate at my level. The Complainant testified that it was only said about non-white IT workers and that S.M. had a problem with accents. I note that Ms. Fahmy admitted that she never actually heard S.M. say he had problems with accents, only that he wanted better communication. D.M., who was the person to whom S.M. allegedly made the comment, testified that he remembered discussing separately with D.L. and S.M. the issue as to whether Ms. Fahmy could communicate at the appropriate technical level on projects. The discussions were about Ms. Fahmy, and not general in nature, which I interpret to mean they were not about other people. He didn't mention anything about accents. S.M. denied saying what Ms. Fahmy alleges. He said his only comment was that he wanted everyone, including clients, to communicate effectively in their emails. It had nothing to do with accents. I accept his explanation. S.M.'s testimony is more consistent with D.M.'s evidence. Ms. Fahmy also stated that S.M. only hired white contractors without accents. This is not so: for example, S.M. rehired Ozgur Erkucuk, who has an accent. [76] In her reply to GTAA's response to the Commission, she wrote: Two staff members said that he criticized our accents. They were very upset. She did not name the individuals. I accord no weight to this evidence. G. Allegation #4: Security Clearance [77] Ms. Fahmy asserts that she was delayed in starting her employment by two months because she was not given the proper security clearance. She says white contractors were allowed to start immediately without the clearance (i.e., B.M. and M.G.). Maria Maack and S.M. testified that this was a requirement for all employees in every department at GTAA, given the nature of the work at the airport. Sometimes an independent contractor could begin work immediately with restricted access. It depended on the circumstances. Employees needed to get the security clearance. I accept this explanation and fail to see any nexus between the practice and a prohibited ground of discrimination. H. Allegation #5: Security Gateway and Other Training [78] The Complainant alleges that she requested and was denied training for Internet Security Gateway and it was a pattern. The white contractors got training, while she and the other people of colour did not. S.M. testified that both Param Singh, a Senior Network Analyst and Ozgur Erkucuk, a full time employee of Turkish ancestry, received the training as they were the primary and secondary respectively for the I.S.G. No one else had access. As well, Ms. Maack testified that an employer is not obligated to provide training to a probationary employee, beyond what is required for their job. I have no evidence before me about whether she was treated any differently than other probationary employees, if any, under S.M's supervision. S.M. testified that race played no part in his decision as to who got what training. Indeed, some of the most expensive training went to contractors/employees of colour. I accept the above evidence of GTAA. I see no adverse differential treatment and certainly none tied to a prohibited ground of discrimination under the CHRA. I. Allegation #6: S.M. Excluded Her From Meetings [79] Ms. Fahmy claims that S.M. excluded her from meetings. She had difficulty providing detailed examples; her testimony focused on a January 30, 2003 meeting. She testified that she knew M.G. was going to meetings she should have been at because she could see notations of meetings on his desk. She averred: Meetings were behind my back about Windows 2000 so I did not know when [they took place]. She acknowledged, in cross-examination, the September 11, 2003 e-mail she sent to D.M. (entered into evidence) to help her remember the date of the Windows 2000 meeting she was excluded from: I need to use it as an example of excluding me from Windows 2000 meetings. D.M. replied that, as far as he could remember, the meeting took place at the very end of January. I find that the January 30, 2003 meeting was the only one from which she was excluded, and for legitimate and non-CHRA reasons, as will be addressed below. [80] The January 30th meeting was called by S.M.'s boss, Gary Long, to discuss the problems with the first W2000 system, including the crashing and major outages. It was of great concern to GTAA. I accept S.M.'s evidence that Mr. Long determined who would attend. Given the discussion would be very critical of the system-build, it was thought that the two major people involved, D.M. and Ms. Fahmy, would not be present. I accept the evidence of A.W. that he didn't want it to turn into a shouting match and blaming exercise. He asked Ms. Fahmy to stay behind to monitor the centre and any emergencies by users. It was a mandatory requirement that someone always be present in the control centre at IT. D.M. was not invited either. Unfortunately, he crashed the meeting. I am satisfied that Ms. Fahmy was not unfairly excluded from this meeting, but if she was, it was not connected to a prohibited ground of discrimination. Ms. Fahmy has not established on a prima facie basis that she was kept out of any other meetings and if so, that said action was linked to a prohibited ground. J. Allegation #7: Access to the Campus Area Network [81] The Complainant alleges that she was denied access to the Campus Area Network (CAN), but B.M. and M.G. were not. This prevented her from doing her job sometimes. Both S.M. and A.W. said she did not need access to CAN to do her job. S.M. averred that B.M. and M.G. weren't given access initially either. Later they were because S.M. was moving over in February-March onsite to Terminal 1 and they needed access to CAN. M.G. testified that B.M. was working on the T1 project and required access and M.G. was his back-up when B.M. went on vacation, etc. and thus, he too required access. We wanted to keep tight control on access to CAN. This came from both Bell Canada and GTAA. I accept the explanation given by GTAA and do not find any engagement of section 7 of the CHRA here. K. Allegation #8: CD Cabinet Key [82] Ms. Fahmy testified that at one point the cabinet containing the CDs of all departments was locked and she wasn't given a key, and this prevented her from doing some of her tasks. She wrote, Later, [M.G.] put a new lock on the cabinet and he gave the key to [B.M.], Calvin Ni [a person of colour] and kept one for himself. S.M. denied this, testifying: Everyone had access to the Cabinet with the CDs. The custodian was Vishwa [Surajram, a database administrator and senior person]. The key was in the top drawer. Everyone knew that. She could have accessed it. CAN and the CD key were never raised as issues prior to this hearing. Even if Ms. Fahmy was not aware the key was in the top drawer readily accessible, I find no connection between this and section 7 of the CHRA. L. Allegation #9: Sexual Comments About Ms. Fahmy at Two Meetings [83] This was the most serious allegation. It emanated from S.G., who joined GTAA in January 2003. He was on contract from MicroAge Consultants. He was technical project manager and senior solutions architect for the W2000 Enterprise project. Ms. Fahmy learned about these alleged comments in general terms from S.G. following her employment termination. [84] The allegation from S.G. at the time he testified was different from what he had told the Commission investigator some two years earlier. Differences are also apparent from his emails to and from Ms. Fahmy prior to the hearing. I should add that the emails were from Ms. Fahmy asking S.G. to assist at the hearing. She appears to be coaching him as to what to say, going over specific issues and what his response might be. He indicated to her that he would only tell the truth and that I am not sure how I can help since I did not get to work with you very much and can't really speak to your technical abilities. [85] Regarding the degrading sexual comments, in one undated email replying to Ms. Fahmy's email to him, S.G. wrote: ...I was also disgusted by his [S.M.'s] level of unprofessionalism and his sexist attitude when it came to discussing you. I will not repeat some of the things he said when I met with him in his office, but I can tell you that between him, [M.G. and A.W.], their discussion about women disgusted me. Although there is a reference to discussing you meaning Ms. Fahmy, he then says their discussion was about women, not specifically about Ms. Fahmy. [86] At the hearing, S.G. testified that there were two distinct incidents, both in S.M.'s office. He said there were probably more but he couldn't recall. At both meetings in February-March 2003, S.M., A.W. and he were present. He wasn't too sure if M.G. was present at either meeting. I find it odd that he wouldn't remember more about such meetings or have taken some action. He says he was shocked and in his email disgusted, yet he was almost condoning what was allegedly said by not leaving the meetings and/or reporting them. In an incident involving an employee who played a joke on someone else's computer pretending he was that person and gay, when A.W. learned of it, he quickly reported it to S.M. The latter reacted promptly and made the offending individual apologize both in writing and verbally. [87] S.G. testified that, at one of the two meetings, ...I remember one of the comments was she [Ms. Fahmy] would be less uptight if she got it more often... They didn't use that word, but I'll use that word. He said the words were more blunt. The witness did not recall who said it. He thinks there were laughter and chuckles. At the other meeting, S.G. averred that a comment was made about how well she [Ms. Fahmy] performed fellatio. The exact words were more graphic. Again, he thinks there was laughter and he's not sure who said it. [88] Later in his testimony, he became clearer: I don't know who actually said those comments. My guess is the conversation would have started with [A.W.]. Who made the comments I don't know. My guess is it started with [A.W.] but I don't know...I simply speculate based on the fact that every time he [A.W.] was around there was always a conversation that somehow had something to do with sex. As I indicated earlier, the relationship between S.G. and A.W. was visceral. A.W. testified with candour, We hate each other. [89] S.G. was cross-examined on numerous prior inconsistent statements. He was asked why he didn't tell the same story that he told the Tribunal to the Commission investigator two years earlier, when his memory was much better. He testified: ...I don't generally speak to women in that type of language and, like I said, I didn't know who this person was...I also appreciate the fact that it was a phone interview with a woman that I had never talked to and I didn't even know if she was from the Human Rights Commission. Well, she called and said she was, but I don't believe anything at face value over the phone. Ms. Rusak then responded, So you proceeded to tell her all this information about the GTAA and about [S.M.]. You're now saying that you talked to a woman that you didn't know [was a Commission investigator], you thought she may be, but maybe not, and you're just blurting all this stuff out?...But you divulged. You said you didn't use obscenities. You said a good fuck. That's an obscenity... S.G. admitted to being more graphic with the Commission investigator. Ms. Rusak was also able to elicit from the witness that he didn't say anything about fellatio to the Commission investigator. [90] Further inconsistencies were revealed in the following exchange between Ms. Rusak and the witness: Q. You're identifying one person, you're not taking a broad-brush approach. You're not saying [A.W.] may have said this. You actually never said to her, And by the way, [A.W.], any time he's around it's always sort of that kind [of] conversation. You didn't tell her that, did you? A. No, probably not. Q. And you identified [S.M.] as saying certain things, but certainly not the way you represented them yesterday when you said two comments were made specifically with respect to the complainant, but you don't remember who it was. That's different, isn't it? A. It is different. But like I said, that's four years ago. [91] The foregoing testimony is strikingly unbelievable. I give it no weight. It is also surprising that, if these comments had been made, he didn't leave the office, he didn't complain about them, and he only told Ms. Fahmy after she left the GTAA. This was also after S.G. ended his relationship with GTAA and MicroAge (with whom he was contracted), and he was angry at the GTAA (and A.W. and S.M.). In addition to A.W.'s testimony about his relationship with S.G., I accept S.M.'s testimony that his relationship with S.G. was poor, and that he was difficult to manage. [92] In cross-examination, S.G. testified that at the time he spoke to the Commission investigator he thought it was S.M. who made the comments. Now years later, I don't know. Ms. Rusak put it to him, Then you said it was [S.M.]. Later you tried to expand the net because the Complainant told you the decision-maker was [A.W.], not [S.M.]. He replied, That is news to me...I can say that [M.G.] was generally reserved and quiet in those kind of conversations...That's why I said I don't know if it was [S.M.], I don't know if it was [A.W.]. I can tell you it was not [M.G.]. [93] S.M., A.W. and M.G. denied these comments outright. S.M. and A.W. could not remember if the two meetings among the four of them even took place. M.G. was asked if he was ever present in a meeting with S.G., S.M. and A.W. He answered, Possibly... one time for sure. When asked in cross-examination if he would agree that if made, these comments would be offensive, A.W. replied, Not only sexist, but disgraceful and repugnant. Each of them testified that they had never heard sexist comments or seen sexist behaviour exhibited by the others. S.G., A.W. and M.G. were examined and cross-examined on these two alleged incidents. S.M. was examined, but not cross-examined about the two alleged meetings in his office. I also heard evidence that S.M. never made jokes of any type. Mr. Surajram testified that not only did he never hear S.M. make a sexist or racist comment or act in such a manner, he added that he never even heard him make a joke. A.W. said, I don't think [S.M.] even knows how to tell a joke. I was most troubled by S.G.'s evidence that it was common when A.W. was around for the conversation to degenerate into sexual banter. Based on S.G.'s inconsistencies about these incidents and his and A.W.'s poor relationship, I do not find that A.W. made those comments. [94] Based on my findings above and my earlier comments about S.G.'s credibility, and the unequivocal denial by S.M., A.W. and M.G. (tested or able to be tested in cross-examination), I am not prepared to find on the sole basis of S.G.'s testimony that such degrading sexual comments were made about Ms. Fahmy in those two alleged incidents. M. Allegation #10: Her Work Performance Was Good: Her Employment Termination was Discriminatory [95] Ms. Fahmy claims that her work performance was good and that her employment was terminated because she is a woman of colour of Egyptian origin. GTAA counters, indicating that while her performance was satisfactory at times, it was not consistently of a good enough quality for her to be retained. [96] The decision to terminate her employment was officially that of Gary Long, S.M.'s boss. Being a contractor, S.M. was not permitted to officially hire or terminate people's employment; notwithstanding, he signed her performance appraisals and letter of termination. He recommended to Mr. Long that her probationary employment be terminated effective May 1, 2003 - 10 months after she began working at GTAA. S.M. said he consulted A.W. S.M. was away onsite at the Terminal 1 building most of the time from March 2003 onward. S.M. was also influenced by the complaints on April 29th and May 1st from M.G. and B.M. respectively about her work. He was concerned too about Vishwa Surajram, a senior person at GTAA and Lynn Child, a systems administrator, having complained about Ms. Fahmy's work and not wanting her to work on their equipment in the future. S.M. was also concerned about the issue of Ms. Fahmy taking easier and fewer Heat tickets. [97] A.W. testified that from his perspective, the triggering event was that people didn't want Ms. Fahmy to work on their equipment or do work for them; the RFC (request for change) issues; and the inventory taking longer than expected. I escalated these issues to my supervisor, [S.M.] A.W. denies that he was asked to concoct reasons to justify terminating her employment. A.W. stated: If so, I would have nit-picked on everything. She was already on probation and we weren't seeing anything getting better. In the May 1, 2003 termination meeting, S.M. did indicate to her that she had done good work, but that it wasn't consistently of a satisfactory quality. As well, he mentioned that her Microsoft Exchange skills were poor. The May 1st letter of termination says in part: Although some improvement was noted for a period of a month, that improvement has not been consistent nor has it been on a continuous basis. In reviewing all your work from December 18, 2002 to the present, it is with regret that we find that you do not meet the requirements of the job as you have demonstrated weak technical skills and little or no understanding of your position's role and responsibilities. [98] GTAA stipulates that Ms. Fahmy had done good work. I reviewed the exhibits that spoke to this fact: e.g., emails from S.M. to her; and emails from clients thanking her for her work. The issue has always been the same: one of inconsistency. Aside from the one month period from November 12-December 17, 2002 when the second and last formal appraisal noting her improvement came out, GTAA says her performance was not consistently at a satisfactory standard. S.M. testified that he had prepared a performance appraisal in April 2003 (not entered into evidence), but it was never given to her because the decision was made to terminate her employment at the end of April. (i) Was She Competent and Qualified to Do the Job? [99] S.M. testified: On paper [she was qualified]; in the end based on results [over the ten months], she was not qualified. I so find. On paper she had the qualifications to be a network analyst at GTAA. She graduated with an engineering degree from Cairo University, she had certifications from Microsoft and a number of years' experience in the IT field in Canada (notwithstanding my finding about her misrepresentations on her curriculum vitae). Obviously GTAA agreed; they hired her. I also find that she demonstrated while working at GTAA a degree of technical knowledge and competence. However, competence includes other factors such as an ability to perform consistently at a proficient level. And performing and doing your job also include not just technical knowledge, but a positive attitude and cooperative approach to your supervisor and co-workers. In these areas she was lacking. In this regard, I accept A.W.'s testimony that he had a conversation with Ms. Fahmy in the cafeteria at the end of January 2003 about her autocratic style whereby he urged her to be more effective and less argumentative. He also stated: She wanted more projects. She wanted to be in charge of everything, and the other guys to do the mundane stuff...I told her by getting along better with people that would make her more effective. Ms. Fahmy denies this conversation. [100] Based on the testimony I heard from S.M. and the documentary evidence I have reviewed, I find that S.M. was consistent in advising Ms. Fahmy that her work was not consistently of a satisfactory standard. This included not just technical concerns, such as the RFC issue and the missed deadlines, but attitudinal concerns too (e.g., November 13th incident in his office, the constant challenging of D.M. and S.M.), and the issue of her requiring so much supervision and management. Ms. Maack testified that the Complainant was very high maintenance. S.M. testified that he has never since Ms. Fahmy had to spend so much time managing an employee. More management was required of her than normal for a probationary employee. I have indicated earlier in my Reasons my views that some of her behaviour was clearly unprofessional. [101] It is clear from the evidence, as stated in the termination letter, that Ms. Fahmy did not understand her role and responsibilities. The emails between her and S.M. show this, including the one from S.M. dated November 12, 2002 where he reiterates her responsibilities, and the one from her that generated S.M.'s response. [102] I also find part of the problem was that Ms. Fahmy had a rather unrealistic view of her work performance. In an email to GTAA President Turpen dated May 4, 2003, she wrote: After that [extension of her probationary period]7 he [S.M.] stopped giving me any projects because he found me too successful and he received much e-mail from customers thanking me for a good job. In a letter she writes that S.M. worried I was too successful. She also wrote that her work was perfect. Clearly this wasn't the case. Even if I accept half of the assertions of technical mistakes about her work, and don't even factor in the inappropriate behaviour toward S.M., she was assuredly not too successful and her work was far from perfect. Coupled with this assessment of her work was her inability to take direction from her supervisors on a consistent basis. I accept the evidence of S.M. that D.M. complained many times to him about what could be characterized as her insubordination and constant challenging of D.M.'s authority and decisions. This is believable given her email to S.M. dated September 6, 2002 where she was highly critical of D.M.'s work. In the Minutes of the November 13th meeting (with S.M., Ms. Maack and Ms. Erbiceanu of human resources, Ms. Fahmy and union representative Mark Daniels) at p. 4, Ms. Maack cautioned Ms. Fahmy that she was not the project lead: D.M. was the architect; and she wasn't a Senior Network Analyst; she was a Network Analyst. The above factors into one of the reasons the GTAA gave for her employment termination: she didn't understand her role and responsibilities. [103] Finally, while I find Ms. Fahmy has technical knowledge and IT training and education, her comportment was less than professional, specifically toward S.M. First, I heard evidence regarding her following S.M. around demanding that he meet with her regarding her November 8th negative performance appraisal, notwithstanding a follow-up meeting had been set to take place in the near future. Ms. Fahmy wrote in her reply to GTAA's response to the Commission: He walked to his desk and I followed him. Then I insisted to know whether [M.G.] would be my replacement, I just could not let it go.8 Her insistence culminated on November 13, 2002 with her coming to his office and closing the door, his opening it, her closing it, his opening it, etc. He had to raise his voice and direct her to leave his office. He testified that he was scared, not knowing what she was capable of doing or saying. He immediately called his wife and then human resources, wanting to meet with the vice-president of human resources. This encounter really shook him up and has affected him thereafter, according to S.M. I appreciate that the Complainant was stressed by her negative performance review. Even so, such action was unprofessional on her part. I find this incident contributed to the breakdown of trust and confidence between S.M. and Ms. Fahmy. [104] As well, Ms. Fahmy had written emails to S.M. saying she wanted to be close to him and respect him. In an email of October 4, 2002 she wrote in part: Please smile, have a good weekend. I was not challenging you but I liked you soooo [sic] much, and carred [sic] about [you] so much as a manager. In a November 13th email she wrote, You did not allow me to talk to you. I wanted you to make me feel better. I refuse to believe that you don't want to. As with the above interaction, this is unacceptable behaviour in any workplace. Having worked in Canada for thirteen years, Ms. Fahmy should have known better. These actions led to the deterioration of her working relationship with S.M. and in my view, even though not specifically asserted by S.M., damaged her credibility with him. [105] Based on the viva voce and documentary evidence as outlined below, I find the GTAA has provided a reasonable non-discriminatory explanation for its actions: (ii) Inventory of Equipment [106] A.W. testified that when he began his work at GTAA in January 2003 he was shocked to learn that there wasn't an accurate, up-to-date inventory of all IT equipment. He indicated an inventory is critical to running any IT department and the organization in general. He assigned several people to compile the inventory, including a portion to Ms. Fahmy. He testified that the others completed their parts much faster than Ms. Fahmy. Indeed, he had to keep after her, to find out when her work would be completed. She sent an email saying the inventory was complete on March 18, 2003. He found out afterward that it was not and asked her to fix the oversight. She did. He said, not only was it incomplete, but it took her much longer. And it was not a technically difficult task. I also heard evidence that he had wanted them to do a physical inventory, not just remotely from their desk computer. She did not do that. Further, after she had left the employ of GTAA, it came to A.W.'s attention that there were other errors in the inventory done by Ms. Fahmy. He averred: It was so inaccurate...it couldn't be used and had to be redone.9 A.W. testified that he had to ask her a couple times a week about the progress on the inventory. When asked why she wasn't doing it, he replied, I was of the view she didn't want to do it. I accept the evidence above. I would add that it was clear from Ms. Fahmy's evidence that she did not want to do this task; she felt it was menial and beneath her expertise. I don't think the deficiencies in it and her lack of timeliness speak to her technical competence. Rather, I find she simply did not want to do the inventory. Again, it comes down to a miscomprehension of her role and responsibilities on her part. (iii) Missed Technical Deadlines [107] I heard evidence from several witnesses about the issue of the technical deadlines missed by Ms. Fahmy. Ms. Fahmy denies she missed any deadlines. I have carefully reviewed the viva voce evidence, and the document outlining each of the missed deadlines. In particular, I note that D.M. prepared a list for S.M., at the latter's request, which S.M. then used to send to Ms. Fahmy. D.M. testified that he thought there were several contributors to the missed deadlines list, and that the list prepared by S.M. and entered into evidence, was probably a summation of those items. D.M. claimed that he was told by S.M. to make it up, use your imagination if necessary. I don't accept this. Furthermore, D.M. testified that he did not fabricate anything; the list he set out was accurate and true. He stated: ...I have my own moral codes to live by, and that doesn't include making up information that is not wholly truthful. I believe him when he averred that he honestly made the list. [108] It was clear in his evidence that D.M., who was called to testify on behalf of Ms. Fahmy, had no warm feelings toward GTAA, and S.M. in particular. There was a mutual parting of the ways on February 15th. He was overly antagonistic to GTAA's counsel during cross-examination; he essentially threatened legal action against her. Indeed, after hours of cross-examination and with pages of questions remaining, Ms. Rusak took the decision to end her cross-examination and allow me to draw my own conclusions about the witness' credibility. Suffice to say that he was not a particularly credible witness. In addition, I believe he was trying to give the absolute best interpretation or spin in Ms. Fahmy's favour in his evidence. [109] D.M. was cross-examined in great detail about each of the twelve specific items on the missed deadlines list. Even with his inclination to be as supportive as possible to Ms. Fahmy, he indicated that four of the twelve missed deadlines were her responsibility; others partly her fault; some she was responsible for in terms of delegating them; and others that may not have been her fault or responsibility. Even if I accept his evidence that not all of them are totally her fault, there are still considerable missed deadlines by Ms. Fahmy, as outlined in D.M.'s and S.M.'s testimony. I note that S.M. testified that after the meeting with Ms. Fahmy, she sent him a number of emails correcting him on only three of the twelve missed deadlines; she had no issue with the remaining nine or ten. He added that he thought all twelve were her responsibility.10 It is not necessary that I determine the exact number of missed technical deadlines. Suffice to say that I find that she had missed a number of deadlines. (iv) RFC Change Management Protocol [110] S.M. instituted a new system for managing changes to servers, etc. in the IT department. This was for security reasons. If not done properly, it can bring down the entire system and increase your risk. He sent an email to his team outlining the new procedure, including having a Request for Change (RFC) form filled out and approved by him before changes were made. Upon reviewing the evidence on this issue, I find that Ms. Fahmy did not consistently follow the proper RFC protocol. I accept A.W.'s testimony that she had to be given one-on-one training on this: She required supervision until the day she left. She also received the group training by Jeff Gardiner that the others received in March 2003. A.W. said they didn't have this problem of compliance with the RFC protocol with any employee or contractor other than Ms. Fahmy. S.M. averred that she never seemed to master the RFC form and process. S.M. testified: She wouldn't follow the one page procedure; it's 101 stuff, not challenging. After introducing the policy, I'm still supporting a resource. And she was confusing people as to the policy. I accept their evidence. However, I infer that her problem was not that she couldn't master or understand the form or procedure. She did understand; she is an intelligent person. The problem was she didn't want to follow the procedure. That's why she was not consistently compliant. Again, it comes down to a question of her attitude and her inability to consistently follow direction. I also find that she was unwilling to accept that her role sometimes included doing the administrative and menial part of her job. (v) Heat Tickets [111] The Heat ticket system involved the escalation of technical problems by GTAA's employees to the help desk. Ms. Fahmy and the others were responsible to resolve the computer and other IT problems of employees in the Heat queue, at the third-level tier of escalation. S.M., A.W. and M.G. testified about problems with Ms. Fahmy's performance in this regard. M.G. stated that the Complainant took on fewer tickets (requests from users to fix a problem) than B.M. or himself. As well, he claimed that she was selective in the ones she did. Marie took easier ones that could be resolved quickly; ones that took longer she didn't touch. S.M. corroborated M.G.'s testimony. S.M. said he was concerned about the quantity and selective choosing of less technically difficult tickets by Ms. Fahmy. [B.M.] did three or four times as many as Ms. Fahmy did in a month. I sent an email to the department; needed everyone to `pull their weight'. It was a very busy time. I spoke to her and she frowned and said, `I'll do it. I'll be careful.' The Complainant denied that she took fewer and easier Heat tickets. I accept the GTAA's evidence on this issue. (vi) Showing Aelita Migration Tool to M.G. [112] On the issue of her competence and inconsistent work performance, GTAA presented evidence that she was instructed twice to train M.G. on the Aelita migration tool before she did so. And even then, M.G. testified that, She demonstrated it at a basic level only; not how to use it. And she was the only one who knew how to use it. Ms. Fahmy denies this. I find GTAA's evidence on this point accurate. (vii) Lynn Child's Complaint [113] Lynn Child is a systems administrator at GTAA. S.M. and A.W. asserted that she complained about Ms. Fahmy's work building servers for her. Ms. Child and Vishwa Surajram were two examples given by GTAA to show that clients didn't want to use her services because of work performance issues. [114] Ms. Child testified that she was supposed to have a new server configured and installed on the new Windows 2000 domain. She said Ms. Fahmy eventually did it. However, she had difficulty getting information from her about the status of the work and it took inordinately long to complete. I had to go downstairs every day to find out what was going on with our servers...Should be Marie's task, not mine...Once Roger got involved, things moved and the problem got fixed. She said she hasn't had a similar problem since then with any other IT person at GTAA. She asked S.M. not to have Ms. Fahmy work on any of their projects ever again. Ms. Child conceded that Ms. Fahmy did in fact work for her again: Maybe small things, like rebooting. [115] In cross-examination, Ms. MacKinnon suggested to the witness that there may have been a communication problem. The delay may have been due to Ms. Fahmy thinking one of her colleagues had ordered a SAN cable that was required. Even if that were so, Ms. Fahmy was responsible as the contact person for Ms. Child. It was incumbent upon Ms. Fahmy to have kept on top of it and advise Ms. Child of the status. (viii) Vishwa Surajram's Complaint [116] I heard evidence that Mr. Surajram was a senior person at GTAA, a data base administrator who worked at GTAA for seven years. He was a major client of GTAA's IT Systems Operations. A.W. said that his area accounted for half the system work. Mr. Surajram testified that he had asked Ms. Fahmy in February or March 2003 to build a server. She did. Soon thereafter, he had problems with it. He asked that she rebuild it and she did. The same problem persisted. He then asked A.W. to assign someone else in the department to build it for a third and, hopefully, final time. Mr. Surajram didn't want Ms. Fahmy to attempt a third build. B.M. rebuilt it successfully. [117] Mr. Surajram was also asked about Ms. Fahmy's technical competence. He said that Ms. Fahmy took one or two weeks to do the two builds; it should have only taken one-half to one day. That's how long it took B.M., testified Mr. Surajram. The witness was candid. He said, It's hard to judge based on one example of her technical skills. But for the server build, she didn't have the technical skills. It's a standard request; not difficult. I would ask her technical questions and she said wait until the next day for the answer. That was unusual. [118] Ms. Fahmy denies that she ever built the server for Mr. Surajram. In cross-examination, Mr. Surajram conceded that he had no documentation to show the server was built. But he added, The server exists. While I find it odd that no documentation was entered to show the actual work was done, I am satisfied from the viva voce evidence of Mr. Surajram and A.W., along with the documentation referring to Mr. Surajram's complaint, that his evidence is reliable. I find Ms. Fahmy failed to properly build the server twice for Mr. Surajram, and that it took much longer than usual for that type of work to be completed. (ix) Conclusion About Work Performance and Employment Termination [119] Based on the foregoing, I conclude that Ms. Fahmy's work performance was not consistently satisfactory. There were numerous examples of work that were lacking in quality, hence weak technical skills, as indicated above. According to S.M., one example of her weak technical skills was with her faulty migration of his laptop. Another example involved her incorrectly shutting down the system. S.M. remarked, If [V.J.] did it, maybe one time. With Ms. Fahmy, it was seven to nine times when the server just rebooted on its own. I checked the log. Twice I know it was happening when she came out of the computer room and at that time, we didn't have remote control. It hasn't happened since she left the GTAA. She denies these allegations. She did not perform anywhere near the perfect level that she ascribed to her work. In a letter to the Commission undated but marked received on December 11, 2003, she wrote, Investigation is my only way to prove what I wrote in my complaint and how I performed my duties perfectly. See also her January 6, 2004 reply to the Commission at p. 20: My performance was constantly perfect. There was nothing wrong with my performance. This is not to say that she should have performed perfect work, and I am not suggesting that she failed to do any good work. She clearly did, and GTAA concedes as such. Included in work performance are her sometimes inappropriate interactions with her manager, S.M. and display of poor attitude. I find this is encapsulated in the clause little or no understanding of your position's role and responsibilities found in the May 1st termination letter. N. Allegation #11: Performance Appraisal and the Process was a Sham or Pretext [120] Ms. Fahmy alleges that the performance appraisal given to her on November 8, 2002, did not accurately reflect her work and was in fact part of a sham process designed to justify her discriminatory treatment and termination from employment. [121] Ms. MacKinnon argues that Ms. Fahmy was used as a scapegoat, set up to fail and the performance review system was a means to the end of terminating her employment. She also submits that there was evidence to show a hostile or poisoned workplace, although falling short of a systemic problem. Ms. Rusak objects, citing a lack of notice and an earlier ruling by me disallowing the Complainant from pursuing this avenue by asking about the conduct of managers in other departments towards female employees at GTAA. Consistent with my comment earlier in my Reasons about the issue of harassment, I will not make a finding about harassment or poisoned workplace at GTAA. The question of whether Ms. Fahmy was used as a scapegoat is one that I will determine. [122] I have reviewed carefully the viva voce and documentary evidence about the performance appraisals (November 8 and December 17, 2002) and numerous meetings addressing her work performance. I also note and accept S.M.'s evidence that while he may not have had many meetings with Ms. Fahmy since March 2003 when he was mostly working onsite at the Terminal 1 building, the ones he did have were significant. Under the collective agreement, GTAA is only required to have one performance review for a probationary employee, at mid-point in the period. It did that: the November 8, 2002 appraisal and the meetings to discuss it. S.M., Ms. Maack, the union representative, and human resources consultant Jennifer Erbiceanu, met with the Complainant on November 13 and 15, 2002 to discuss the appraisal. Detailed notes taken of these meetings were entered as exhibits. On December 17, 2002 Ms. Fahmy was given a second written performance appraisal, noting improvement in all areas to a satisfactory level, for the over one month period since the last one. Her probationary period was extended for another six months. Ms. Fahmy claims that she received no feedback on her performance after December 17th until her termination from work on May 1, 2003. I note that S.M. testified that he completed another performance appraisal of Ms. Fahmy in the second or third week of April. It was never given as Ms. Fahmy's employment was terminated on May 1st and it was not entered into evidence. [123] I find that the content of the performance appraisals given and the process were reasonable and satisfactory. The purpose of the process is to give feedback to the employee and to allow for improvement and for the employer to be able to assess the employee during this probationary period. I am satisfied that the November 8th appraisal, along with the November 13, 15, 22 and 29 meetings and the December 17 appraisal provided her with a reasonable assessment of her work from the perspective of GTAA. The appraisal process included the employer providing her with a list of missed deadlines. I also accept S.M.'s and A.W.'s evidence that she was provided with notice of concerns of her performance, in less formal situations than the written performance appraisals, including in 2003. [124] The process was not a pretext or a sham. The performance appraisal process was not a vehicle to facilitate a discriminatory dismissal. I also find that part of the problem was that Ms. Fahmy simply did not agree with the evaluation of her work by S.M. It is highlighted in the notes of the November 13, 2002 meeting among S.M., union representative Mark Daniels, Maria Maack, Jennifer Erbiceanu and Ms. Fahmy. This meeting was called as a result of the office incident that day involving the closing and opening of the door, and where S.M. was so concerned that he called his wife. GTAA made it quite clear in this meeting that if her work didn't improve by the end of her probationary period in December, her employment would be terminated. The notes indicate Ms. Fahmy indicated the problems with S.M. all started when she didn't want to be on just one project - [she] wanted more. Ms. Fahmy acknowledged that in her testimony. The one project she didn't want to exclusively work on happened to be the most expensive and significant one the IT department was working on at the time. [125] Even when she wrote and said to S.M. that she agreed with his criticisms, she was not genuine. It is clear from her testimony and her documents to the Commission that she didn't believe it when she wrote it and said it. She was trying to win him. Part of it may be understandable in that she was terrified of losing her job, but the sheer disingenuousness of it all makes one less sympathetic. To this day, she does not accept the critique of the GTAA. [126] I do find that GTAA did not bring the Lynn Child and Vishwa Surajram complaints about Ms. Fahmy's work to her attention. GTAA should have done so. However, its failure to do so does not amount to a violation of section 7 of the CHRA. There is no connection with a prohibited ground of discrimination. However, there were enough issues brought to her attention through the formal and informal processes that it should have been clear to Ms. Fahmy that there was a problem with her work from her employer's perspective. [127] Ms. Fahmy also asserted that the extension of her probationary period was a ruse or pretext to terminating her employment. I do not accept this. If GTAA had wanted to get rid of her as an employee, it could have done so at the end of her term in December 2002. GTAA had ample evidence. GTAA didn't have to extend her probation for six months. Ms. Fahmy says her former employer did so because it wanted to make sure it didn't get involved in litigation. If that was GTAA's motive, it didn't work out very well - five years later having dealt with the Commission, the grievance arbitration process and the hearing before the Tribunal. I accept S.M.'s testimony that he told her to relax, be yourself and wanted to give her more time to improve. I find that GTAA extended her probationary period in good faith, with the expectation and intention of allowing her the opportunity to improve, instead of with a view of better documenting its case for dismissal. [128] I appreciate that Ms. Fahmy does not believe GTAA was genuine in its decision to extend her probation. She testified, Around December, I knew there was a plot. However, based on the evidence, I see no plot, no sham, and no pretext to find a way to terminate her employment. As I indicated earlier, I do not accept D.M.'s testimony that he was asked by S.M. to make up deficiencies in Ms. Fahmy's work. D.M. himself said he did not do that. His missed deadlines list was accurate and prepared in good faith. And I find that the emails from A.W., M.G. and B.M. to S.M. complaining about Ms. Fahmy's work on April 29 and May 1, 2003 were not concocted or made in bad faith. I believe this cluster of emails was the last straw that prompted S.M. to recommend her employment be terminated on May 1st. I do find that S.M. and A.W. had properly advised employees who were complaining about Ms. Fahmy to put it in writing. That's a far cry from soliciting or making up false criticisms of her work performance. VII. CONCLUSION [129] In one of her letters outlining the particulars of her complaint to the Commission which was produced on March 12, 2004, Ms. Fahmy wrote at para. 6: My only sin was that I was not white and not a man. She also wrote at p. 14 of her response of January 6, 2004: ...I was treated as a slave because of what he [S.M.] did to me. It is unfortunate that she feels this way. However, the most persuasive evidence establishes otherwise. Any differential treatment that may be characterized as adverse, and her termination from employment, were based on non-CHRA-related reasons, as outlined in my Reasons for Decision. They had nothing to do with her being a woman, a person of colour, or of Egyptian origin. Accordingly, the Complaint is dismissed. Signed by Matthew D. Garfield OTTAWA, Ontario May 7, 2008 1See J. Sopinka, S.N. Lederman and A.W. Bryant, The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999, at pp. 139-41 for a discussion about the requirement (and lack thereof) of an election in non-suit motions across Canada and in England. 2A moving party on a motion for summary judgment is not required to make an election similar to the one on a motion for non-suit. 3 See Adjudicator Ratushny's comment about far-fetched testimony in Abary v. North York Branson Hospital (1988), 9 C.H.R.R. D/775 (Ont. Bd. Inq.), at para. 38202. 4 See Sopinka, Lederman and Bryant, supra, at pp. 138-39. 5The Canadian Human Rights Commission, while still remaining a party, participates less frequently in hearings before the Tribunal. 6 A.W. testified about the respective roles: The architect [D.M.] does the design; the project manager [D.L.] does the plan; and the technical lead [Ms. Fahmy] does the testing and works with both on the deployment. 7 Ms. Fahmy was told on November 29, 2002, and formally advised by letter dated December 16, 2002, that her probationary term would be extended a further six months to July 1, 2003. 8I believe M.G. when he testified that, on his second day on the job, on October 4th, Ms. Fahmy told him in the cafeteria that she thought he was there to take away her job, which kind of shocked me. He said he told her he wasn't there to take away anyone's job, but brought in on a contract. There was a lot of work. We didn't have enough bodies. 9This post-termination evidence may not be used by GTAA to buttress its decision to terminate Ms. Fahmy's employment. 10In S.M.'s missed deadlines list of November 14, 2002, there were twelve specific items and one general item (Many other tasks associated to her role on the Windows 2000 project team.) listed under the heading W2K project deliverables. There was also one specific item listed under the heading Department related issues. PARTIES OF RECORD TRIBUNAL FILE: T1115/9605 STYLE OF CAUSE: Marie-Therese Fahmy v. Greater Toronto Airports Authority DATE AND PLACE OF HEARING: January 8 to 12, 2007 January 22 to 26, 2007 August 7 to 10, 2007 September 10 and 11, 2007 December 17, 18, 20 and 21, 2007 January 9, 2008 Toronto, Ontario DECISION OF THE TRIBUNAL DATED: May 7, 2008 APPEARANCES: Mary MacKinnon For the Complainant No one appearing For the Canadian Human Rights Commission Paula M. Rusak For the Respondent

2008 CHRT 13

CHRT

Salem v. Canadian National Railway

en

2008-05-08

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6688/index.do

2023-12-01

Salem v. Canadian National Railway Collection Canadian Human Rights Tribunal Date 2008-05-08 Neutral citation 2008 CHRT 13 File number(s) T1190/0207 Decision-maker(s) Doucet, Michel Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE JAMEL BEN SALEM Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN NATIONAL RAILWAY Respondent DECISION 2008 CHRT 13 2008/05/08 MEMBER: Michel Doucet I. INTRODUCTION A. THE FACTS (i) The complainant (ii) The labour needs of Quebec's railway industry and the training program offered by CÉGEP Gérald-Godin (iii) The complainant registered for the training program (iv) The advertisement for the CN position and the candidate selection process B. Legal context C. Application of these requirements to this case I. INTRODUCTION [1] On June 20, 2005, Jamel Ben Salem (the complainant) filed a complaint in accordance with the Canadian Human Rights Act, S.C. 1985, c. H-6 (the Act) against the Canadian National Railway Company (CN). The complainant alleges that CN discriminated against him on the basis of race and national or ethnic origin in refusing to employ him, contrary to section 7 of the Act. [2] The Canadian Human Rights Commission did not attend the hearing. [3] From the outset, I must point out that the objective of this decision is not to determine whether the complainant would have made a good train conductor, or to redo CN's selection process. Rather, my role is to decide, relying on the evidence presented at the hearing, whether it has been established that CN discriminated against the complainant during the hiring process. [4] It is also not my role, given that this program is not under federal jurisdiction, to determine whether those responsible for the training offered at CÉGEP Gérald-Godin misled the complainant by giving him a reasonable expectation that after his training he would be automatically hired as a train conductor. I would however venture to make certain remarks about this program, including its selection process, as well as the role that some supervisors played in the complainant's disappointments. A. THE FACTS (i) The complainant [5] The complainant, a native of Tunisia, arrived in Canada with his family at the end of October 2002. On November 27, 2006, he received his Canadian citizenship. He says that from the time he arrived in Canada until March 8, 2005, he could not find anything other than part-time employment. [6] He therefore decided that he would pursue a Master of Mechanical Engineering degree at the École de technologie supérieure in Montréal until he found permanent employment. However, his family obligations prevented him from seeing this through. He then registered in a training program to obtain a teaching permit for vocational training. In July 2003, the Ministère de l'Éducation du Québec gave him his permit. [7] According to his curriculum vitae, the complainant has sixteen (16) years of experience in railway maintenance, mechanical manufacturing, quality systems and vocational training. He has a Bachelor of Mechanical Engineering degree that he received in Tunisia and an Attestation of Collegial Studies - Train Crews from CÉGEP Gérald-Godin, obtained in 2004. Later on, we will take a more in-depth look at the training program offered by the CÉGEP. [8] From 1986 to 1988, he worked for the national department of education of Tunisia as a vocational training instructor in mechanical engineering. From 1988 to 1989, he was an office manager for a company in Tunis. On June 1, 1989, he began work for the Société du métro léger in Tunis, as a junior engineer. In June 1990, he was certified for this position. His curriculum vitae states that he also worked at this company as an office planning manager and as an electromechanical maintenance foreman. He also filed in evidence a certificate from Belgium's International Institute for Transportation Education certifying that in 1995 he studied the [translation] international training cycle in railways and railway transport. There was no description of the substance of this training offered at the hearing. [9] To demonstrate his knowledge of English, the complainant filed in evidence a diploma from the Tunis British Council, indicating that his proficiency level in English was intermediate. According to this document, the candidate must complete 440 hours of instruction to achieve this level. The intermediate proficiency level means, according to the document, that the student is able to initiate and conduct conversation on a wide range of personal and factual subjects; understand the main points of authentic texts on factual topics; follow the gist of lectures and extensive rapid speech; write accurate summaries of discussions or texts and simple discursive compositions on abstract topics. They have an active vocabulary of about 3000 words. (ii) The labour needs of Quebec's railway industry and the training program offered by CÉGEP Gérald-Godin [10] Concerned by the manpower succession problems in Quebec's railway industry, the Société de promotion de l'industrie ferroviaire, of which Pierre Fallu, one of CN's witnesses, is the CEO, created a sectoral table of the railway industry in cooperation with Emploi-Québec. One of the mandates of this sectoral table was to establish a partnership between the representatives of different railway companies in the province of Quebec and training institutions in order to respond to the manpower training needs of the railway industry. [11] In March 2003, this sectoral table filed a report entitled [translation] The Railway Industry in Quebec, Manpower and Vocational Training. This report analyzed the problem of the aging labour force in the railway industry, assessed recruiting needs while targeting critical functions, and proposed a new training approach. The assessments made by the authors of the report led to the finding that the annual volume of train crew recruitment in the five years following its publication would be significant enough to warrant the development of a [translation] pre-employment training program for the functions of train conductor and locomotive engineer. [12] Generally, a train crew is made up of a conductor and a locomotive engineer. The duties of the train conductor and the locomotive engineer more or less vary according to the type of railway and its scale. Train conductors work as members of the train crew on road service (freight trains or passenger trains) or shunting. They ensure a proper formation of the trains and their safe arrival at the destination. They are also responsible for keeping the register. The main role of the locomotive engineer is to drive locomotives in order to ensure that rolling stock is picked up and delivered, and to ensure the transport of merchandise and passengers. To become a locomotive engineer, an individual must first be a train conductor. [13] According to the sectoral table, the Quebec railway industry planned to hire between 20 and 25 new locomotive engineers and between 30 and 35 new train conductors every year for the five years following the filing of the report. In order to respond to the industry's manpower training needs, the sectoral table, in cooperation with CÉGEP Gérald-Godin, developed and implemented a train crew training program for 2003 and 2004. [14] Beginning with an analysis prepared by the Railway Association of Canada, those supervising the new training program called [translation] Railway transport: train crews were able to prepare a competency profile for the train conductor and locomotive engineer professions. The training program was developed in cooperation with railway industry representatives and training experts. [15] The program offered by CÉGEP Gérald-Godin led to an Attestation of Collegial Studies. Its primary objective was to prepare manpower specifically trained to respond to the needs of the railway industry. It contemplated, according to its supervisors, training [translation] future employees to work as train crew members for road service or shunting. It added that at the end of their training, the candidates [translation] could be hired by railway companies in Quebec and Canada and be certified as train conductors or locomotive engineers. (iii) The complainant registered for the training program [16] On March 31, 2004, the complainant attended an information session at a Montréal hotel. At this meeting, CÉGEP Gérald-Godin, in cooperation with Emploi-Québec and the sectoral table, announced that a new training program would be established. This program was designed for an adult clientele seeking careers, in the words of the document given to the attendees, [translation] providing sound job opportunities, with attractive salaries and benefits as well as job security. It was also indicated that there would be [translation] on-the-job training on the list of courses offered under the program. [17] At this meeting, the supervisors explained the admissions procedure for the program. First, the candidate had to fill out the forms required by Emploi-Québec. According to Pierre Fallu, 30 or so individuals filled out the registration form and about 25 candidates were called to an admission interview. [18] Following this information session, the complainant went to Emploi-Québec to fill out the requisite form. He was then called to an interview by the CÉGEP's selection committee, presided over by Pierre Fallu, who was also the sectoral table coordinator and, as we stated earlier, the CEO of the Société de promotion de l'industrie ferroviaire. The committee also included Jacques Lacoste, the CÉGEP's representative, and Yannick Brunet, a railway industry representative. Neither Mr. Lacoste nor Mr. Brunet was called as a witness. [19] According to the interview synthesis report filed in evidence, Jacques Lacoste gave the complainant a mark of 7/10 for his interview. The other two evaluators, Mr. Fallu and Mr. Brunet, for their part, wrote the comment over on their assessment sheets. According to Pierre Fallu, he and Mr. Brunet were of the opinion that the complainant was overqualified for the position of train conductor and, if given such a position, would promptly resign from his train conductor functions once a better employment opportunity became available. It is interesting to note that none of the evaluators referred to any communication problems as a basis for refusing to admit the complainant to the program and none of them expressed any real doubt about whether he had the ability to work as a train conductor, other than that he was overqualified. It was indeed because of this [translation] overqualification that the committee initially recommended the complainant not be admitted to the program. [20] Since Emploi-Québec required a group of 15 to 20 students and the interview results fell short of this number, the selection committee decided to review its recommendations for certain candidates. According to Mr. Fallu's testimony, even though the complainant [translation] did not demonstrate that he had the skills to work as a train conductor, the committee, in order to meet Emploi-Québec's objectives, decided despite everything to accept him in the program. According to Mr. Fallu, the complainant was admitted to the program only in order to have the number of registrations required by Emploi-Québec. [21] On cross-examination, Mr. Fallu added that [translation] I can tell you, Mr. Ben Salem, that my first impression when I saw you at the interview was that you are accident-prone. You do not have the skills to deal with emergency situations. This comment is surprising because it is not mentioned in the interview report. Further, if it is true that Mr. Fallu had this opinion of the complainant, it is astounding that he agreed to admit him to the program. [22] Finally, 19 candidates, including the complainant, were accepted for the program. Training began on May 17, 2004. Even though the program was offered by CÉGEP Gérald-Godin, the courses were given on CN's premises at Central Station, in Montréal. Indeed, some of the instructors were CN employees. [23] The training program was made up of various modules. During the first session, students had to complete modules on [translation] railway infrastructure, [translation] the professions of train conductor and locomotive engineer, [translation] railway safety, [translation] the railway as a business, [translation] railway communications and [translation] job shadowing and on-the-job training. During the second session, the modules included [translation] introduction to computers, [translation] customer service and business relations, [translation] rail operating rules, [translation] authorization and record-keeping, [translation] inspections, manoeuvring and shunting tests, [translation] locomotive operation, [translation] operation of the locomotive and the train and, finally, a [translation] workplace internship. According to the program description, the internship was supposed to be 255 hours over an eight-week period. [24] On May 17, 2005, the complainant received his Attestation of Collegial Studies. His Bulletin d'études collégiales [Collegial Studies Transcript] indicates that his marks were higher than average in practically all of the courses. For example, in the [translation] railway safety module, his mark was 96, when the group average was 91; in [translation] the professions of train conductor and locomotive engineer, his mark was 94, when the group average was 82; in [translation] railway communications, his mark was 93 and the average was 90; and, finally, in the [translation] workplace internship, he was given a mark of 91, while the group average was 89. [25] The mark assigned for [translation] workplace internship is interesting to say the least. According to Mr. Fallu, the railway industry had indicated to those supervising the program that, with a few exceptions, it was not accepting interns. He added that the workplace internship requirement arose from financing requirements issued by Emploi-Québec. To my surprise, Mr. Fallu testified that the complainant had never completed a workplace internship. When I asked him why the complainant had been given a mark of 91 for an internship, he responded that [translation] all of the students received the same mark for that course. When I pointed out to him that the group average on the complainant's transcript was 89 and that therefore not all of the students could have received the same mark, he offered the following explanation: [translation] the CÉGEP had a problem on its hands. It was receiving government funds for an internship, but this internship never took place. To assign a mark, the student's progress in obtaining employment was observed. But there was no workplace internship. When I asked him how a mark could be assigned for an internship that never took place, he added the following: [translation] I have trouble understanding that, too; it was a delicate situation for the CÉGEP. The CÉGEP had no choice but to assign a mark for this module and they were graded on the steps the students took to find work. You should ask the CÉGEP; I was not involved. [26] On cross-examination, he added the following: [translation] Some companies agreed to do internships. The CÉGEP undertook to have internships. After I provided the information to the CÉGEP to the effect that the companies were not offering actual internships, but complementary training, the CÉGEP . . . decided to communicate with industries offering this additional training to see how workplace internships were conducted. I do not know how they worked this out with Emploi-Québec because it is a significant number of program hours. Later on he stated the following: [translation] There were marks for the internship, but in 95% of the cases, there was no internship. The witness' explanations on this point were far from satisfactory. [27] Jacques Lacoste, the educational consultant from CÉGEP Gérald-Godin wrote a quite flattering letter of recommendation for the complainant. Unfortunately, Mr. Lacoste was not called as a witness at the hearing. Regarding this letter, Mr. Fallu made another remarkable comment. According to him, those supervising the program had decided to standardize the students' letters of recommendation, to the extent that the letters were, according to Mr. Fallu, [translation] cut and paste letters. Such a process, if this is really what happened, is not very conscientious and betrays both a lack of respect and professionalism in respect of both potential employers and students registered in the program. [28] Mr. Fallu did not seem like a credible witness to me and, apart from a tendency to be defensive and blame others for the problems encountered, his testimony did not in any way clarify the issue that I have to decide. I must admit, however, having listened to this testimony, that I am in a better position to understand the complainant's frustration with Mr. Fallu and with the training program. (iv) The advertisement for the CN position and the candidate selection process [29] Christine O'Neill, CN's Director of Human Resources for Eastern Canada, testified at length regarding the respondent's hiring process. I found her to be a credible and trustworthy witness. Her answers to the questions were considered and measured. [30] She explained that, in March 2005, CN was looking for employees to carry out train conductor functions. She was at that time aware of the training program offered at CÉGEP Gérald-Godin because Ms. S. Seebeck, Director of Training at CN, who worked in close cooperation with the sectoral table, had informed her of it. However, she added that CN did not play a role in the recruitment or admission of students for this program and that CN had not made any undertaking to the students who were registered in it. However, Ms. O'Neill added that she was prepared to receive these students for interviews, because she was [translation] urgently seeking candidates for train conductor positions and she knew that these students, even though they had no practical experience, had the technical knowledge necessary to perform this work. Ms. Seebeck therefore referred her to Mr. Lacoste and she also sent her the curricula vitae of the students she had received from the CÉGEP. [31] In 2005, therefore, CN announced on its internet site that it was in the process of building a [translation] pool of candidates interested in a career as a train conductor. The advertisement describes the requirements of the position as follows: Good teamwork skills; Good people skills; Physically fit to do the work; Knowledge of the signals and the signal register for the purposes of obtaining the proper information; Good reading skills; Information technology skills and computer skills suitable for the work; Ability to properly analyze a situation and to react appropriately; Shifts far from home for periods of up to 6 days; Be on call, ready and able to work on assignment. [32] Ms. O'Neill added to the list of skills the knowledge of English, deemed essential to work as a train conductor with CN. Although this was not mentioned in the advertisement, when candidates filled out their application forms, they were asked a question regarding their knowledge of English and French. [33] The candidates who wanted to apply for train conductor positions had to apply through CN's website and fill out a form entitled Candidate Response Report which was a sort of a self-assessment done by the candidates. According to Ms. O'Neill, 71 people applied. Of these, 11 were from CÉGEP Gérald-Godin. Without explaining where she got this information, she added that the eight other students from the CÉGEP did not apply either because they had found employment elsewhere or because their knowledge of English was inadequate. [34] On January 25, 2005, the complainant applied through the website. To the question, Some of our positions require bilingualism. Can you read and speak fluently in both English [and] French?, the complainant responded yes. According to Ms. O'Neill some answers given on the Candidate Response Report could prompt the candidate's immediate disqualification. She gave as an example the response to the question regarding the candidate's bilingualism. If the candidate answered no to this question, the candidate was automatically excluded from the list, barring evidence to the contrary. The complainant was not disqualified at this stage. [35] The first stage of CN's hiring process consisted of a [translation] train movement test. This test is described as a [translation] a test of logic where candidates are asked to move railway cars on paper as they would have to do if they were hired for the job. The candidates had 25 minutes to complete this test. Ms. O'Neill corrected this test. [36] The complainant, having passed the train movement test, was called to an interview with Christine O'Neill on March 8, 2005. For some candidates, Ms. O'Neill stated that the interview would be held before two interviewers, the other interviewer being there to assess the candidate's technical knowledge. In the case of the students from CÉGEP Gérald-Godin, only Ms. O'Neill was present at the interview, because she presumed that they already had the necessary technical knowledge and that she did not need another interviewer to help her with these questions. [37] The candidates' interviews began on February 23, 2005, and continued until March 13, 2005. According to Ms. O'Neill, she always begins interview with general questions, so as to put the candidate at ease. She added that, as a general rule, she takes a lot of notes during interviews, while stating that [translation] if someone is speaking quickly, I have fewer notes, but if they are speaking more slowly, I can take notes that are more complete. In the case of the complainant, since he spoke slowly, she had the time to take more notes. [38] For the interviews, Ms. O'Neill referred to a document entitled Interview Guide for Entry-Level Transportation. According to this guide, the first area to be addressed is the candidate's work background. According to Ms. O'Neill's notes - taken in English even though the interview was held in French - the complainant explained to her at that time that he had a diploma in mechanical engineering and more than 13 years of experience in the railway industry. He also told her about the training program that he had completed at CÉGEP Gérald-Godin. Regarding the issue of why he wanted to work for the respondent, the complainant told her that he had always wanted to work for a Class 1 railway. [39] The witness stated that she [translation] assumed that the complainant had a good technical knowledge of a train conductor's work based on the courses that he had taken at CÉGEP Gérald-Godin and his previous experience. It was therefore not necessary to verify this aspect any further. She stated that during the interview the complainant was generally reserved and shy and that it was sometimes difficult to get answers out of him. [40] Ms. O'Neill explained that she then proceeded with a series of questions in order to gauge the complainant's reaction in specific work scenarios. [41] For a series of questions intended to measure what she describes as the [translation] orientation dimension, she gave the complainant a mark of three out of five on his answers in terms of substance and two out of five for his communication skills. According to her scale, three out of five is equivalent to [translation] good. With a mark of two, the candidate did not meet her requirements. Ms. O'Neill recognized that the complainant's interview guide is apparently the only copy on which she put numerical marks. She stated the following: [translation] I do not know why. I do not know if it was because I had time to do it, but that is the only place where I put marks. Often I put plus and minus signs, but I do not know why I did not do that in this case. [42] Then there were questions intended to gauge the candidate's autonomy. For this part of the interview, the complainant received a mark of two out of five, which indicated that he did not meet the expected requirements. Ms. O'Neill explained that, according to her assessment, the complainant's answers to questions that he was asked did not substantiate her finding that he was autonomous. She stated the following: [translation] He was passive, but reliable. With his attitude, CN loses money. [43] In terms of the [translation] reliability aspect, the complainant satisfied Ms. O'Neill's expectations. She even added that his answers in this part of the interview were [translation] very good, hence the mark of three that she gave him for reliability as well as communication. [44] In the section bearing on [translation] practical training, Ms. O'Neill explained that all train conductors must complete training and that her objective was therefore to assess whether the candidate would see this training through to the end, even if this training proved to be difficult. Once again in this part of the interview, Ms. O'Neill was satisfied with the substance of the complainant's answers, but she was quite critical in regard to his communication abilities. She said the following: [translation] When candidates come to an interview, skills are all very well, but they must be able to sell themselves. He [the complainant] had trouble communicating one on one with me. He was very passive at the interview. I had to push him to answer the questions. [45] In regard to the part bearing on the complainant's cooperation skills, Ms. O'Neill said that she was not satisfied with the answers given. She found that he had not managed to show that he had good cooperation skills. She stated that, on a train, the train conductors have no disciplinary power over their work colleagues - they must rather have negotiating skills. They must be in constant negotiation in order to [translation] make the train run smoothly. She considered that the complainant's answers did not show the necessary cooperative spirit. [46] Finally, she indicated that she always asks her final question in the other official language - in this case, English. While recognizing that the complainant had replied in English, she added that she had not [translation] understood his English very well and that his skills in this language were not sufficient to meet the requirements of the position. [47] In general terms, Ms. O'Neill explained that, following the interview, she did not have any concerns regarding the complainant's ability to [translation] learn the rules. What did concern her, however, was [translation] his ability to use his people skills and his communication abilities. At the end of the interview, according to Ms. O'Neill's assessment, the complainant did not qualify for the train conductor position. She stated that he did not meet the requirements in terms of good teamwork skills or his ability to properly assess a situation and react accordingly. Ms. O'Neill stated on cross-examination that she had not hired candidates who were less qualified than the complainant because she found that he was not qualified. [48] She added that she used the same interview guide for each candidate and that this guide was in her opinion the best available to her. She said that she relied on the answers she was given during the interview and on no other factors to make her decision. [49] On cross-examination, the complainant questioned Ms. O'Neill at length regarding the answers that the candidates who were hired gave during their interviews. Without undertaking an in-depth review of the witness' explanations, because my objective is not to rehash the interview process, I must point out that her answers seem credible and reasonable to me and are not at all consistent with a finding that the respondent discriminated against the complainant. [50] With regard to the allegations that she discriminated against the complainant because he is Arab, Ms. O'Neill, while acknowledging that she had interviewed only one Arab in 2005, namely, the complainant, added that she had tested more than one. For example, she explained that another Arab candidate had been tested, but that he had withdrawn his application because he had found another position with another company. In 2007, this candidate was again available and since he had already passed the written test, he was called to another interview and was ultimately hired. Today, he works as a train conductor with the respondent. [51] Ms. O'Neill also referred to another Arab candidate with the same training as the complainant, who in April 2007 applied to work as a trackman with the respondent and who had been hired. She added that he is now an assistant track supervisor. She pointed out that he has not been hired as a train conductor as he is not yet bilingual. [52] The complainant alleges, without supporting evidence, that the respondent had hired these individuals in response to his complaint, in order to counter it. I cannot agree with these arguments which are no more than suppositions. I note however that the complainant, after his first failure, never again applied to CN for work as a train conductor or for any other work; it is therefore impossible to know whether CN would have hired him. [53] As a result of its hiring process, the respondent recruited 25 new train conductors. Of the 11 candidates from CÉGEP Gérald-Godin who applied, only six reported for the interview. The remaining five allegedly withdrew their applications because in the interim they had found employment elsewhere. Of the six who were interviewed, five were offered employment. Of those five, Ms. O'Neill stated that there was [translation] one immigrant and one woman. [54] The complainant says that he contacted the CÉGEP a few days after his interview to see whether he had been hired to work as a train conductor at CN. Jacques Lacoste allegedly told him that his application had been rejected. The complainant says that he made several attempts to reach Ms. O'Neill to find out why his application had been rejected, but was unsuccessful. [55] On June 20, 2005, the complainant filed a complaint against CN. According to the complainant, CN's discrimination was deliberate because the decision not to hire him based on his ethnic origin was, in his opinion, made before he was called to the interview. B. Legal context [56] Section 7 of the Act provides that refusing to employ an individual for reasons based on a prohibited ground of discrimination, including inter alia national or ethnic origin, is a discriminatory practice (see also sections 3 and 15 of the Act). [57] The burden of proof, in a matter like this one, is first on 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, 1618; Basi v. Canadian National Railway Company (1988), 9 C.H.R.R. D/5029; Premakumar v. Air Canada, T.D. 03/02, 2002/02/04; and Lincoln v. Bay Ferries, 2004 FCA 204). [58] 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 (Ontario Human Rights Commission) v. Etobicoke (Borough), [1982] 1 S.C.R. 202, at page 208; Ontario Human Rights Commission and O'Malley v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536, at paragraph 28). [59] In a hiring context, a prima facie case is described as requiring evidence of the following elements: The complainant was qualified for the employment at issue; The complainant was not hired; Someone no better qualified but lacking the distinguishing feature, which is the gravamen of the human rights complaint, subsequently obtained the position. (Shakes v. Rex Pak Ltd. (1982), 3 C.H.R.R. D/1001, at paragraph 8918) [60] Once prima facie evidence has been established, the burden shifts to the respondent, who must then provide a reasonable explanation for the conduct alleged against the respondent (see Lincoln, supra, at paragraph 23). [61] The case law recognizes that it is difficult to establish discrimination through direct evidence. As stated in Basi, discrimination is often subtle. Overt discrimination is rare (see Basi, supra, paragraph D/5038). The Tribunal therefore must consider all of the circumstances to establish whether there is what was described as a subtle scent of discrimination (Premakumar, paragraph 79). [62] The standard of evidence in discrimination cases is the ordinary civil standard of the balance of probabilities. According to this standard, discrimination may be inferred where the evidence offered in support of the discrimination renders such an inference more probable than the other possible inferences or hypotheses (Premakumar, paragraph 81). However, discriminatory considerations need not be the sole reason for the practices at issue for a complaint to succeed. It is sufficient if these considerations are factors in the decision not to hire (Premakumar, paragraph 82, Holden v. Canadian National Railway (1990), 14 C.H.R.R. D/12 at paragraph D/15). [63] I must also point out that it is not the Tribunal's duty to determine the merits of the respondent's choice of candidates. There is a subjective element in every hiring process. The mere fact that the respondent used subjective criteria to assess the candidates and that it may have erred in doing so does not in itself expose its decision to challenge on grounds of discrimination, even though the existence of subjective criteria may require greater scrutiny of the hiring decision (see Folch v. Canadian Airlines International Ltd. (1992), 17 C.H.R.R. D/261, D/303; Morin v. Canada (RCMP), 2005 CHRT 41, at paragraph 213). C. Application of these requirements to this case [64] In Lincoln v. Bay Ferries Ltd, [2004] F.C.A. 204, the Federal Court of Appeal states at paragraph 22 that to answer the question as to whether prima facie evidence has been established, the Tribunal must not, at this stage, consider the respondent's answer. Therefore, to answer the question as to whether the complainant had the skills for the employment at issue, I will refer essentially to the evidence filed by the complainant. The evidence shows that the complainant had an Attestation of Collegial Studies from CÉGEP Gérald-Godin, confirming that he did pass the training program [translation] Railway transport: train crews. According to Ms. O'Neill, this program should have given him the technical knowledge necessary to work as a train conductor. Further, he had a diploma in mechanical engineering and some railway work experience in Tunisia, even though I acknowledge that this experience was not as a train conductor. The complainant also received a passing mark in the [translation] train movement test. For the purposes of establishing prima facie evidence, we can therefore find that the complainant established that he had the necessary technical qualifications for the train conductor position. [65] The evidence also established that the complainant was not hired for the desired position. Therefore, the first two tests in Shakes, necessary to establish prima facie evidence, have been satisfied. What of the third test, however? I cannot find based on the evidence whether the respondent hired someone who was less qualified than the complainant. However, I am prepared to find that prima facie evidence was nevertheless established for the purposes of this case. [66] On this point, I must point out that in Premakumar v. Air Canada, T.D. 03/02, 2002/02/04, the Tribunal emphasized that the Shakes tests, while useful guides, should not be rigidly or arbitrarily applied. Rather, the circumstances of each individual matter must be considered to establish whether, in the end, the complainant satisfies the O'Malley test, i.e., was 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? Therefore, applying this flexible approach to this case, I find that for the purposes of the first part of the decision that the complainant established a prima facie case of discrimination in the absence of an answer from the respondent. [67] With prima facie evidence established, the burden now shifts to the respondent, which must provide a reasonable explanation for the conduct alleged against it. [68] Ms. O'Neill clearly set out how the candidates for the train conductor position were assessed and the reasons why she considered that the complainant's profile was not adequate for this position. She pointed out, inter alia, the fact that, in her opinion, the complainant had communication problems, that she was not satisfied with his teamwork skills, that she considered that his reactions in certain circumstances did not meet the respondent's expectations and that his English-language skills were inadequate. [69] In regard to the train conductor job candidates' English-language skills, even though this requirement was not mentioned in the job advertisement, the uncontested evidence filed at the hearing clearly shows that the candidates knew that this would be a consideration in the decision whether or not to hire them. The Candidate Response Report asked the following question: Some of our position[s] require bilingualism. Can you read and speak fluently in both English [and] French? Indeed, and despite the fact that I assign little credibility to the evidence submitted by Pierre Fallu, he did testify to the effect that the students from CÉGEP Gérald-Godin had all been told not to apply to a Class 1 railway if their English was not adequate. [70] The complainant did not dispute this evidence. Rather, he sought to establish that he had this skill by filing in evidence a certificate from the British Council of Tunis, stating that he had some English skills. Ms. O'Neill did not seem to be persuaded of this during the interview and considered that the complainant's English-language skills were inadequate. No evidence was filed that would support my determining that Ms. O'Neill arrived at this conclusion based on the complainant's national or ethnic origin. [71] Considering all of the evidence, I am persuaded that the respondent met its burden and that it successfully established that its decision not to hire the complainant for a train conductor position was not at all based on discriminatory grounds. Ms. O'Neill explained the reasons why she had not hired the complainant and those explanations do not at all suggest that the complainant's race or national or ethnic origin was a consideration. Further, her explanations are reasonable and do not seem like pretext. [72] Although I sympathize a great deal with the complainant's situation and I can understand his frustration and disillusionment, inter alia in regard to the program offered by the CÉGEP Gérald-Godin, I cannot find that his situation was the result of a discriminatory practice by the respondent. I point out again that the Tribunal is not mandated to decide on the effectiveness, the correctness or the accuracy of the respondent's selection process, but rather to determine whether this process was tainted with discrimination, which, according to my assessment of the evidence filed, is not the case here. [73] Mr. Ben Salem's complaint is dismissed. Michel Doucet OTTAWA (Ontario) May 8, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1190/0207 STYLE OF CAUSE: Jamel Ben Salem v. Canadian National Railway DATE AND PLACE OF HEARING: December 18, 19, 20, 21, 2007 January 28, 2008 Montreal, Quebec DECISION OF THE TRIBUNAL DATED: May 8, 2008 APPEARANCES: Jamel Ben Salem For himself No one appearing For the Canadian Human Rights Commission André Sasseville William McMurray For the Respondent

2008 CHRT 14

CHRT

Warman v. Northern Alliance

en

2008-05-08

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6681/index.do

2023-12-01

Warman v. Northern Alliance Collection Canadian Human Rights Tribunal Date 2008-05-08 Neutral citation 2008 CHRT 14 File number(s) T1216/2807, T1217/2907 Decision-maker(s) Sinclair, Grant, Q.C. 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 - NORTHERN ALLIANCE AND JASON OUWENDYK Respondents RULING 2008 CHRT 14 2008/05/08 MEMBER: J. Grant Sinclair Charter Challenge [1] The Respondent, Jason Ouwendyk, has filed a Notice of his intention to question the constitutional applicability, validity and effect of ss. 13, 54(1) and 54(1.1) of the Canadian Human Rights Act. He alleges that these provisions violate ss. 2(a), 2(b), 2(d) and 7 of the Canadian Charter of Rights and Freedoms, and that they are not saved by s. 1 thereof. [2] The Tribunal invited the parties to file submissions as to how the question would be addressed during the hearing process. Mr. Ouwendyk suggests that the matter should proceed as in the Warman v. Lemire case, Tribunal File T1073/5405. This is a case dealing with another s. 13 complaint in which the respondent has raised a virtually identical Charter challenge regarding the same provisions of the Act. In that case, the evidence with respect to the constitutional issue as well as on the merits of the complaint was heard together. After a total of more than five weeks of hearings, the parties (which include a number of interested third parties and the Attorney General of Canada) are scheduled to make their final arguments in June 2008. [3] Given that there are other cases in addition to Warman v. Lemire where the constitutionality of these provisions is being challenged, and that the outcome of these cases may come to fruition before the end of the present case, the Commission submits that the constitutional issue be dealt with in a separate hearing after the evidence regarding the complaint's allegations has been heard and a finding is made thereon. [4] A similar issue arose in respect of the judicial review before the Federal Court regarding the Tribunal decision in Warman v. Kulbashian et al., Tribunal File T869/1903 and Court File no. T-572-06. The respondents in that case challenged the constitutional validity of the same sections of the Act that Mr. Ouwendyk is challenging in the present case, but they brought forward their challenge for the first time before the Federal Court. The matter had not been raised before the Tribunal. The Commission and the Attorney General of Canada argued that the judicial review should be stayed pending the outcome of the Lemire case. The Court agreed, stating that a stay of the present proceedings is appropriate on the grounds that the sole issue raised in the Applicants' Amended Notice of Application is currently the subject of adjudication before a tribunal in the Lemire matter (See 2007 FC 354, at para. 42). Among the factors considered by the Court were the risk of inconsistent findings, excessive costs and the capacity of the Court to grant the complete or comprehensive remedy. The Court noted that the Tribunal's disposition of the Lemire case, including any subsequent application for judicial review, will be available for the guidance of the Court when the Kulbashian et al. matter proceeds. [5] These factors are equally relevant to the present case. For the same reasons cited by the Court, it would be inappropriate to proceed with a virtually identical constitutional challenge as in the Lemire case. [6] The Tribunal therefore directs that the hearing into this complaint should proceed at this time, but solely on the evidence regarding the complaint's allegations. The hearing on the question of the constitutional validity of the impugned sections of the Act will be deferred pending the outcome in Lemire. If the complaint is substantiated, the Tribunal will not issue any order until the final determination by the Courts of the constitutional question. Motion to deny the issuance of subpoenas [7] The Respondent has requested that the Tribunal issue subpoenas for six Commission employees and a former Canadian Human Rights Tribunal member. The Respondent proposes to call these witnesses in support of their Charter challenge. [8] The Commission has filed a motion seeking an order denying this request. Given this decision to defer the hearing on the constitutional question, neither the Respondents' request nor the Commission's motion need be addressed at this time. Signed by J. Grant Sinclair OTTAWA, Ontario May 8, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1216/2807 and T1217/2907 STYLE OF CAUSE: Richard Warman v. Northern Alliance and Jason Ouwendyk RULING OF THE TRIBUNAL DATED: May 8, 2008 APPEARANCES: Richard Warman For himself Daniel Poulin For the Canadian Human Rights Commission No one appearing For the Respondent Northern Alliance Alexan Kulbashian For the Respondent Jason Ouwendyk

2008 CHRT 15

CHRT

Smith v. Canadian National Railway

en

2008-05-09

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6684/index.do

2023-12-01

Smith v. Canadian National Railway Collection Canadian Human Rights Tribunal Date 2008-05-09 Neutral citation 2008 CHRT 15 File number(s) T939/5904 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Decision 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 REASONS FOR DECISION 2008 CHRT 15 2008/05/09 MEMBER: J. Grant Sinclair I. INTRODUCTION A. Mr. Smith's Back Injury B. Mr. Smith's Return to Work Post Injury II. ISSUES III. DECISION IV. FINDINGS OF FACT A. Attempts to Return Mr. Smith to his Pre-Injury Job B. RTWP No. 1 - December 2000 - Locomotive Engineer C. RTWP No. 2 - March 2001 - Locomotive Engineer D. RTWP No. 3 - April 2001 - Locomotive Engineer (i) The July 12, 2001 Meeting - Attempt to Resolve Mr. Smith's Situation (ii) Dr. Clarke's Assessment (iii) The CN Temporary Job Offer - July 16, 2001 (iv) Mr. Smith's Functional Capacity Evaluation - October/November 2002 (v) Other Job Possibilities in Terrace E. Mr. Smith's Appeal to WCB Review Board - Decision - March 14, 2003 F. RTWP - June/July 2003 - Traffic Coordinator in Prince George G. RTWP No. 4 - Traffic Coordinator - Prince George, June/July 2003 (i) Duties of a Traffic Coordinator (ii) Mr. Smith's Concerns re: the RTWP for Traffic Coordinator H. The Technical Training - Traffic Coordinator - Thornton Yard - Vancouver, June 2003 (i) Phase One of the RTWP - Thornton Yard, Vancouver a) Mr. Smith's Diaries (ii) Phase Two of the RTWP - Prince George - July 2003 a) Mr. Smith's Diaries I. Mr. Smith's Union Grievance, June 2002 J. RTWP No. 5 - Assistant Traffic Coordinator - January 2004 (i) Mr. Smith's Duties and Responsibility of Assistant Traffic Coordinator (ii) Termination of the Assistant Traffic Coordinator RTWP K. Another Opportunity for the Assistant Traffic Coordinator Position L. Mr. Smith's Application for Canada Pension Plan Disability Pension M. Can Mr. Smith Work or is He Permanently Disabled? - Facts to Consider (i) September 21, 2004 letter (ii) Application for Judicial Review of the Arbitrator's Decision (iii) The WCAT Decision - February 2006 (iv) Dr. Appleton's 2006 Clinical Notes (v) Referral to Dr. Keyes, Neurologist (vi) Mr. Smith's Application for CN Disability Retirement Benefits (vii) Mr. Smith's June 29, 2006 Email Enquiry for Work with CN (viii) Mr. Smith's Proposed Accommodation - September 2006 (ix) Mr. Smith's Human Rights Complaint and the Remedies He Requested V. REASONS FOR DECISION A. Did CN Discriminate/Retaliate Against Mr. Smith by Rejecting his Application for a CN Disability Retirement Pension? B. Did CN Accommodate Mr. Smith? VI. CONCLUSION I. INTRODUCTION [1] James Smith is the complainant in this case. He is a locomotive engineer with the Canadian National Railway (CN), but has not worked in this position since 2001. [2] Mr. Smith began working for CN as a brakeman in Edmonton in 1979. In 1981, he moved to Prince George, British Columbia, as a conductor/brakeman. In 1987, he qualified and began working as a locomotive engineer with CN. [3] In 1989, Mr. Smith moved to Terrace, British Columbia, where he currently resides with his wife. They very much like living in Terrace. Mrs. Smith works as a library assistant for the local school board. She is qualified as a pharmacist. His children have left home. A. Mr. Smith's Back Injury [4] The history of events which ultimately led to Mr. Smith filing a discrimination complaint on February 28, 2002, with the Canadian Human Rights Commission began on November 17, 1997. It was on that day that he injured his back removing a derail (weighing about 60 lbs.) so that he could drive a locomotive out of the CN shops in Prince Rupert. As he described it, something went in my back. B. Mr. Smith's Return to Work Post Injury [5] Mr. Smith went off work on November 17, 1997. He consulted with his doctor, Dr. Appleton who filed an attending physician's report with the Worker's Compensation Board (WCB) on November 20, 1997, indicating that Mr. Smith had acute lower back problems. Dr. Appleton estimated his expected return to work to be on November 27, 1997. Mr. Smith filed a claim with the WCB on November 25, 1997. [6] During the time he was off work, Mr. Smith attended the Skeena Work Conditioning Clinic. According to the Clinic's February 18, 1998 report, Mr. Smith was fit to return to his pre-injury duties without limitations. [7] Mr. Smith did return to work on February 27, 1998. After he returned to work, he reported problems sitting because of pain in his left leg and lower back. As a locomotive engineer, he would spend most of the time sitting when operating the engine, doing runs from Terrace to other locations on the CN northern line such as Prince George, Prince Rupert, Smithers and Kitimat. [8] Mr. Smith went off work again on February 19, 1999. Because of his worsening condition, Dr. Appleton arranged for Mr. Smith to have back surgery, (a lumbar discectomy left L5-S1 disc) which was performed in Vancouver on March 12, 1999, by Dr. Padilla. According to Mr. Smith the surgery improved his condition. The pain he had been experiencing was considerably reduced. [9] After his operation, Mr. Smith attempted a number of return-to-work plans developed in conjunction with WCB and CN over the period 2000 to 2004. Three of the plans were designed to return Mr. Smith to his pre-injury job of engineer. The later two plans involved retraining Mr. Smith to work as a traffic coordinator/assistant traffic coordinator in Prince George. To do this job, Mr. Smith would have to relocate from Terrace to Prince George. [10] None of these return-to-work plans were successful. Mr. Smith stopped working as an engineer in March 2001. He has never returned to work for CN, although he remains on CN's employee roster without pay or benefits. II. ISSUES [11] The issues in this case as defined by Mr. Smith in his Statement of Particulars are as follows: Did CN discriminate against Mr. Smith on the grounds of his disability and family status by failing to accommodate him with suitable employment in the Terrace area; Did CN discriminate and/or retaliate against Mr. Smith for pursuing his complaint by misrepresenting to the WCB the suitability of the accommodations offered to him as a locomotive engineer and as a traffic coordinator in Prince George; by misrepresenting the medical difficulties he experienced while training in Prince George; and by misrepresenting his ability to complete the two traffic coordinators programs in Prince George; Did CN discriminate and/or retaliate against Mr. Smith when it rejected his application for a CN disability retirement pension. [12] As to Mr. Smith's claim that he should be accommodated in Terrace, this is the third legal proceeding in which Mr. Smith has raised this question. The first was pursuant to a grievance filed by Mr. Smith's Union, the Brotherhood of Locomotive Engineers on June 26, 2002. This grievance was dismissed in arbitration on July 14, 2003. [13] The second was by way of his appeal to the Workers Compensation Appeal Tribunal heard on November 29, 2005. In its February 10, 2006 decision, WCAT also rejected Mr. Smith's contention that CN should accommodate him in Terrace. [14] Nonetheless, Mr. Smith now brings the same issue before this Tribunal. III. DECISION [15] I have concluded that: CN did accommodate Mr. Smith through the three modified return-to-work programs designed to bring Mr. Smith back to service as a locomotive engineer in Terrace. And subsequently by offering him the position of traffic/assistant coordinator in Prince George. CN did not discriminate or retaliate against Mr. Smith in its dealings with the WCB. The evidence does not support the conclusion that Mr. Smith is totally and permanently disabled from engaging in any employment. CN did not discriminate or retaliate against Mr. Smith by refusing him a disability pension. [16] Mr. Smith's complaint is dismissed. IV. FINDINGS OF FACT A. Attempts to Return Mr. Smith to his Pre-Injury Job [17] Mr. Smith told Connie Araujo, his WCB case manager, of the difficulties he had with his return to work. She asked Dr. McDougall, a WCB Medical Advisor, to review Mr. Smith's medical evidence on file and advise her whether Mr. Smith had any permanent functional impairment which would prevent a return to work as an engineer. [18] Dr. McDougall, in his September 29, 1999 report, noted that Mr. Smith reported that he was still having problems with sitting, which is a large part of his pre-injury job. He could not answer at this point whether Mr. Smith could return as an engineer. [19] Dr. McDougall recommended certain restrictions for Mr. Smith, namely, avoid heavy or repetitive lifting, avoid twisting and bending and change positions from sitting to standing to walking when working. [20] WCB arranged with the WorkAble Centre in Terrace to visit the job site to examine the physical demands associated with both the engineer and brakeman/conductor positions in CN. This was partly in response to Mr. Smith's earlier request to move to a conductor/brakeman job. [21] Karen Chasney, a registered occupational therapist with WorkAble, visited the Terrace job site on October 7, 1999. In her October 21, 1999 report, Ms. Chasney provided a detailed description of the duties and responsibilities of both positions. She also reported on the concerns Mr. Smith expressed to her at their meeting on October 8, 1999, about returning to work as an engineer. [22] In her report, Ms. Chasney did not support Mr. Smith moving to a conductor/brakeman position because of the high risk for re-injury. She recommended that Mr. Smith could do his pre-injury job, initially starting as an extra to build his tolerance for the job and a graduated return-to-work plan be coordinated with CN, WCB and Mr. Smith. She also suggested that Mr. Smith alternate his position between sitting and standing when driving the locomotive. [23] In a number of WCB attending physician reports between September and November 1999, Dr. Appleton noted that Mr. Smith reported that his symptoms remained unchanged and that he continued to have problems with prolonged sitting. Dr. Appleton had doubts whether Mr. Smith could alter his position sufficiently when driving the engine as suggested in the WorkAble report. [24] Mr. Smith returned to work on December 13, 1999, on a run from Terrace to Kitimat. He was able to make the outbound trip but could not do the return trip. Instead he took a taxi home from Kitimat to Terrace. [25] Dr. Appleton examined Mr. Smith early in January 2000. Mr. Smith had reported a lot of pain when sitting for more than 20-30 minutes, depending on the chair. Dr. Appleton's view was that Mr. Smith could not do the engineer's job because of the prolonged sitting. [26] Ms. Araujo arranged for another WCB medical consultant, Dr. Naismith who examined Mr. Smith on January 28, 2000. Mr. Smith told Dr. Naismith that the main physical demands of his job were sitting and the safe operation of the locomotive. If sitting for more than 2 hours, he would develop pain in his back. [27] Dr. Naismith did not think that Mr. Smith's injury was a medical contra-indication to any activity within his symptoms. He felt that Mr. Smith's description of his restricted sitting tolerance was biologically plausible. But his sitting tolerance and the pain he experienced could not be measured medically. He did agree with Dr. Appleton to restrict the amount of sitting to reasonable levels of comfort. [28] The referrals to specialists continued. On February 17, 2000, Dr. F. Gouws, a WCB medical advisor, referred Mr. Smith to Dr. Wing, an orthopedic surgeon, for further medical examination. Dr. Wing examined Mr. Smith on May 5, 2000. In his medical report, Dr. Wing did not recommend any further surgery. He felt that Mr. Smith could do some type of work and suggested a modified return-to-work program. If Mr. Smith was not able to work as an engineer, an alternative occupation should be considered. [29] In July 2000, Todd McDonald, a WCB vocational rehabilitation consultant, became involved with Mr. Smith's claim. He wanted to consider a graduated return-to-work plan (RTWP) and asked Erin Fawcett, a CN claims officer, to contact CN safety officials to determine whether it would be a safety issue for Mr. Smith to stand while operating a locomotive engine. Erin Fawcett confirmed that the CN Safety Department did not consider this to be a safety issue. B. RTWP No. 1 - December 2000 - Locomotive Engineer [30] Mr. McDonald asked CN to develop a graduated RTWP and CN retained Karlene Dawson, a certified kinesiologist and disability management professional, to do this. Ms. Dawson prepared a RTWP which was reviewed and agreed to by WCB and CN. [31] In preparing this RTWP for Mr. Smith, Ms. Dawson consulted with Mr. Smith's supervisor in Terrace about the engineer's job duties; reviewed information from the WCB relating to any medical limitations or contra-indications for Mr. Smith returning to his pre-injury job; she also reviewed the October 21, 1999, WorkAble Report which outlined the physical demands of the job and its recommendations for Mr. Smith. [32] On August 22, 2000, Ms. Dawson spoke to Mr. Smith about the return-to-work plan she was developing for him. They talked about his tolerances, how long he can sit or stand. He told her that he could drive for about two hours at one time, and currently he was doing about five hours of home exercise. He also told her that as long as he continued with his exercises his back felt not too bad. [33] Ms. Dawson provided the RTWP to Mr. Smith on September 8, 2000. She asked him to review it and provide her with any comments or concerns. He thought it was a little too aggressive and was unsure if he was able to do it. Ms. Dawson was surprised. She thought that the information she had plus what Mr. Smith told her about his tolerances accorded with the RTWP. [34] Mr. Smith consulted again with Dr. Wing on October 23, 2000. Ms. Araujo had sent Dr. Wing the draft RTWP for Mr. Smith and asked for his comments. Dr. Wing's view was that the plan was totally appropriate for Mr. Smith. He recommended that Mr. Smith move and change positions from time to time when he is working. [35] The RTWP was to commence on December 12, 2000. Mr. Smith would do two trips per week in week one and week two of the plan. He would have three days off during these weeks so that he could rest and continue with his home exercises. [36] His work week would progressively increase so that he would add a trip in each subsequent week. During this period, Mr. Smith would be the fourth person on a three-man crew, which meant that he did not have the primary responsibility for the operation of the locomotive. The plan also provided he should alternate between sitting and standing as required. [37] Under the plan, Mr. Smith was required to keep a diary of his experience and fax it weekly to CN Occupational Health Services. He was to record his tasks, any physical symptoms and if the symptoms increased or decreased, so that the necessary modifications could be made. [38] On December 15, 2000, Ms. Dawson wrote to Dr. Appleton, about the spasms that Mr. Smith had told her he experienced when operating the engine. She included with her letter a physical demands analysis of the engineer's job and Mr. Smith's RTWP. She asked Dr. Appleton to comment on the spasms and provide an opinion whether the spasms resulted from any underlying medical condition that would affect his position as a locomotive engineer. [39] In his December 19, 2000 response, Dr. Appleton indicated that Mr. Smith was fit for graduated return to work as outlined and that his medical condition was stable. Dr. Appleton also suggested that Mr. Smith must be able to move around frequently, and prolonged sitting is a contra-indicator. [40] Mr. Smith returned to work on December 12, 2000. He did the Terrace to Kitimat run on December 12, 14 and 19, alternating between sitting and standing. On December 21, he only did the outbound run. [41] On December 28, 2000, Mr. Smith was scheduled for the Kitimat run. When he was sitting in the engine waiting to leave, he experienced intense spasms. He had to get off the engine and lay on the floor of the yard office. His wife came and took him to the hospital. He was examined, given medication and released. [42] Mr. Smith was able to make the return run from Terrace to Kitimat on December 29. But on the Terrace/Kitimat run on January 2, 2001, he reported that his spasms were so frequent and intense that he could not make the return trip. He took a taxi back to Terrace lying on the back seat all the way. Mr. Smith was unable to complete this RTWP. [43] On January 24, 2001, Dr. Trent Faraday, WCB medical consultant, was asked for his medical opinion as to whether there were any significant changes from January 2000 in Mr. Smith's medical condition. He replied on January 25, 2001, that there had not been any objective change in Mr. Smith's medical condition. [44] Dr. Faraday also confirmed Mr. Smith's physical work restrictions to be: avoid lifting greater than 30 pounds avoid prolonged sitting avoid excessive pushing, pulling, carrying and bending activities have the ability to change positions from sitting, standing and walking as required [45] Dr. Faraday concluded that Mr. Smith should complete the RTWP developed by Ms. Dawson and approved by Dr. Wing. C. RTWP No. 2 - March 2001 - Locomotive Engineer [46] Prior to the December 2000 RTWP, Mr. Smith had suggested to CN that he return to work as an engineer, doing yard work in the Terrace Yard. After the first RTWP failed and in response to Mr. Smith's suggestion, Ms. Dawson developed another plan. WCB was not involved in this RTWP. It was done on CN's initiative. [47] This RTWP provided that Mr. Smith would work in the yard office, spend two hours on the yard engine and another hour in the yard office. He would work as an extra person and was to try as many duties as possible during the term of the plan. [48] The plan was transitional, with Mr. Smith gradually increasing the hours and shifts worked in each week. Mr. Smith could take breaks as necessary, as he was working as an extra person on the crew. [49] The RTWP was to start in March 2001, to run two to four weeks. Dr. Coppin, a CN medical advisor, wrote to Dr. Appleton enclosing the RTWP. Dr. Coppin pointed out that this RTWP provided for modified duties and was limited to local yard work which would avoid prolonged periods in the locomotive cab. He asked for Dr. Appleton's support. Dr. Appleton agreed to this plan. [50] Dr. Appleton wrote in his clinical notes on March 6, 2001, that Mr. Smith, his Union representative and CN representatives had met and agreed to another RTWP which did not involve significant engineer's work. Dr. Appleton considered this to be a reasonable offer and had discussed this at length with Mr. Smith. [51] Mr. Smith started on March 1, 2001. But he was not able to complete the plan. On March 28, 2001, there was a meeting in Terrace between Ms. Dawson, Mr. Smith, his Union representative Wayne Wiederspiel, and the Terrace CN Superintendent, Darren Payment. At this meeting, they discussed the fact that Mr. Smith wasn't making much progress. He had difficulty operating the locomotive and wasn't able to continue at the pace that was outlined. All agreed that the RTWP should be terminated. [52] Mr. Smith said that he had no problem with the yard office duties. He was able to move around. But operating the yard engine caused him difficulty. He experienced pain and muscle spasms when his hours on the engine increased. [53] After the March 28, 2001 meeting, Mr. Wiederspiel offered some suggestions to Ms. Dawson that could assist Mr. Smith to return to his pre-injury job. These included putting a rubber mat in the locomotive engine to dampen the engine vibration, removing the back of the engine cab seat so that Mr. Smith could kneel on the seat when operating the engine. He also made recommendations concerning Mr. Smith taking rest breaks. Mr. Wiederspeil asked that CN reactivate the March RTWP and include some of his suggestions. D. RTWP No. 3 - April 2001 - Locomotive Engineer [54] CN agreed. Ms. Dawson drafted another RTWP in consultation with Mr. Wiederspiel. The previous RTWP was modified to include rubber matting, ensuring that Mr. Smith had supportive, comfortable safety boots when working; sitting, standing or kneeling as necessary, and removing the back of the seat in the locomotive engine cab. [55] Ms. Dawson sent a copy of this RTWP to Mr. Smith on April 26, 2001. He reviewed the plan and sent back his comments including some modifications which Ms. Dawson put into the plan. [56] According to Ms. Dawson, at no time did Mr. Smith indicate that he was not able to carry out this RTWP. In fact, he clearly gave the impression in his communication with Ms. Dawson that he was prepared to move ahead with it. [57] Ms. Dawson also sent a copy to Dr. Appleton on April 26, 2001, explaining the modifications and asked for his support. Dr. Appleton's response on May 22 was that he was concerned that the locomotive cab is too confined to allow Mr. Smith to vary his position. Dr. Appleton doubted whether there would be any further improvement in Mr. Smith's condition and he should look for alternate employment. Dr. Appleton rejected the plan and Mr. Smith never started it. (i) The July 12, 2001 Meeting - Attempt to Resolve Mr. Smith's Situation [58] On June 14, 2001, Dr. Appleton wrote to Ken Beddie, Manager of the WCB Terrace office, seeking a meeting to try to resolve Mr. Smith's situation. He had asked Ms. Araujo to arrange a meeting but she declined. Dr. Appleton said that he was quite incensed by this. Thus his letter to Ken Beddie. It was his medical opinion that Mr. Smith could not resume his engineer job as it required a lot of either standing or sitting for prolonged periods. He felt that a meeting was the only way to resolve the issue. [59] A meeting was held on July 12, 2001 in Terrace. In attendance was Mr. Smith and Dr. Appleton; Karlene Dawson, Murray Swanson, Dr. Faraday, Dr. Vaney, all from CN; Ken Beddie, Connie Araujo and Vivien Millin, a WCB vocational rehabilitation consultant. [60] There was discussion about the failed attempts to return Mr. Smith to his pre-injury position. Ms. Dawson advised that CN and the Union were looking for alternative work for Mr. Smith, but due to cutbacks in the area, there were no options. But if Mr. Smith was willing to relocate, CN would be able to accommodate him in a different job. [61] On March 30, 2001, Dr. Appleton had written to Dr. Clarke, a neurologist, asking him to assess Mr. Smith. He asked Dr. Clarke if he could identify physiological or psychological causes for Mr. Smith's symptoms. [62] Mr. Smith had seen Dr. Clarke on July 11, 2001, but had not yet sent his medical report to Dr. Appleton. They wanted to wait for Dr. Clarke's report and they also agreed that it would be useful for Mr. Smith to have a functional capacity assessment. [63] CN was to pay for this and it was up to CN to find available facilities and arrange for the assessment. (ii) Dr. Clarke's Assessment [64] In his July 11, 2001 medical report, Dr. Clarke reported a number of medical findings about Mr. Smith. These included what Mr. Smith reported as his concerns, namely, back spasms that he had experienced intermittently since 1997. Mr. Smith told Dr. Clarke that his spasms occurred after sitting between 20-60 minutes, depending on the chair, or if standing between 30-60 minutes. He also told Dr. Clarke that if he did not sit or stand for a prolonged period, he had very few back spasms. His self treatment is to lie on his back on a hot pad and that works well. He also reported to Dr. Clarke that he was quite active, walking from his home to the swimming pool, swimming about 40 laps regularly and doing some yard work at home. [65] Dr. Clarke's assessment was that Mr. Smith has a pretty normal neurological exam and does not have a lot of non-organic features. If he carefully manages his activities and does not sit or stand for prolonged periods of time, he is relatively comfortable and can function pretty well. [66] Dr. Clarke concluded that, given his history of recurrent spasms since 1997 and the requirement of his job to sit and stand for prolonged periods, it is unlikely that he could return to his pre-injury job and would be a good candidate for retraining. [67] In his February 14, 2002 clinical notes in reference to Dr. Clarke's assessment, Dr. Appleton noted that neither he nor Dr. Clarke are able to decipher the exact nature of Mr. Smith's muscle spasms or cause. (iii) The CN Temporary Job Offer - July 16, 2001 [68] Both Dr. Appleton and Mr. Smith were concerned that Mr. Smith had not received any income for some time. Rob Reny, CN Senior Manager Human Resources for Western Canada, had ongoing discussions with Dan Shewchuk, Vice-Chair of the Union, about Mr. Smith's return-to-work programs and what the next steps should be. [69] At the July 12, 2001 meeting, CN was asked if it would offer Mr. Smith short term work to alleviate some of Mr. Smith's financial problems, pending Dr. Clarke's assessment. [70] CN offered Mr. Smith three weeks employment in the Terrace yard and Mr. Swanson told him that he was to report to work on July 16, 2001. [71] Mr. Smith emailed Mr. Swanson later that day asking for an outline as to the proposed duties. He asked for the outline because he wanted to get Dr. Appleton's approval for the job duties. It is not clear why he needed this since Dr. Appleton was at the meeting when the temporary job was discussed. [72] Mr. Swanson emailed Mr. Smith on July 16, 2001 with an outline of the duties. The duties included doing sedentary desk duties, doing an inventory of office and stationery supplies, driving anywhere between 20 minutes to two hours in the yard with the opportunity to get out of the vehicle and stretch during stops, and walking to assist with the inspection of trains in the yard, which walking would not exceed one kilometre. [73] Mr. Smith did not report for work on July 16 as scheduled. Mr. Swanson called Mr. Smith on July 16 and left a message on Mr. Smith's answering machine saying that the outline had been sent to him. He also left a phone message on August 10 asking Mr. Smith to contact him about why he had not shown up for work. [74] Initially, Mr. Smith told CN that he did not get Mr. Swanson's email until August 23. He told CN that he did not recall getting Mr. Swanson's phone messages. [75] At the Tribunal hearing, Mr. Smith testified that he had not been honest with CN. He did receive the list of duties on his email on July 16. He did receive at least one of Mr. Swanson's phone messages. In fact, he was away on holidays with his wife and did not return until late August. Mr. Smith did not want CN to know that he went on vacation with his wife instead of reporting for work. (iv) Mr. Smith's Functional Capacity Evaluation - October/November 2002 [76] Mr. Smith's functional capacity evaluation occurred on October 3, 8 and 21, 2002. It was done by Julie Veillleux, an occupational therapist. Ms. Veilleux tested Mr. Smith's functional capacity and his physical abilities. She also made two job site visits to review the tasks and physical demands of the locomotive engineer position. [77] The first site visit was at the Terrace yard and included a run from Kitimat to Terrace on a locomotive engine. The second site visit was at the Thornton CN yard in Vancouver. The purpose was to look at other types of CN locomotives that CN operates. [78] In her November 6, 2002 vocational analysis report, Ms. Veilleux concluded that there was a good match between Mr. Smith's physical abilities and the physical demands of the engineer job. Her overall conclusion, however, was that she was not able to determine with reasonable confidence whether Mr. Smith was capable of working full time as an engineer. She noted that Mr. Smith had not been able to successfully complete three previous RTW programs. But there was no objective evidence to explain why. She proposed another RTWP to be closely monitored by medical rehabilitation professionals. (v) Other Job Possibilities in Terrace [79] Over the period from April, 2001 to May, 2003, there were discussions with CN about job possibilities for Mr. Smith in Terrace. Daryl Payment, Superintendent of Operations in Terrace, was asked about employing Mr. Smith in a taxi operation for the train crews. His response was that because there were a limited number of trains running in the B.C. north, it was not a feasible suggestion. Mr. Payment could not think of any other positions for Mr. Smith in Terrace. [80] In February, 2003, Mr. Smith had talked to Judy McKenzie, a CN personnel officer, about potential employment opportunities in Terrace. He suggested that he could drive train crews around the Terrace terminal or set up a website for CN or do computer work, or set up an Operation Lifesave Program for the local schools. [81] CN's position was that the Terrace terminal was a small location with very few offices or sedentary positions necessary to Mr. Smith's restrictions. With the downturn in economic activity in the Terrace area, the volume of traffic for CN was reduced significantly. Many of the non-running positions had been eliminated or transferred to other larger CN terminals such as Prince George, Edmonton or Vancouver. [82] As to setting up websites, CN's websites are provided by an external service provider or CN's Information Technology group in Montreal. [83] CN contracted with a taxi service to drive crews around the terminal. This would involve a lot of sitting. Further, it would not lead to full-time employment. [84] The operational people in Terrace and Mr. Smith's return-to-work team, all experienced and knowledgeable about CN's operation in Terrace, had been canvassed extensively for job possibilities in Terrace. There were no opportunities in Terrace to accommodate Mr. Smith other than creating a position that was not otherwise required. [85] CN's objective was to try to find full-time, gainful employment for Mr. Smith that would keep him employed over the long term, not create work projects. The suggestions provided by Mr. Smith regarding his employment at the Terrace location did not lend themselves to meaningful, long-term employment. E. Mr. Smith's Appeal to WCB Review Board - Decision - March 14, 2003 [86] In January 2002, Mr. Smith appealed to the WCB Review Tribunal regarding a number of decisions that the WCB officers had made relating to his injury claim. One of the issues before the Review Tribunal was whether modified employment as a locomotive engineer was suitable for Mr. Smith. The Review Tribunal concluded in its March 14, 2003 decision on this question that Mr. Smith's pre-injury job as modified was not suitable given his compensable condition. [87] The Tribunal concluded that the ideal job for Mr. Smith would allow him to sit, stand and walk as required. Standing while operating a locomotive is limited and there is little opportunity to walk around. [88] The Review Tribunal awarded Mr. Smith vocational rehabilitation benefits and a loss of earnings award. It gave the option to WCB and CN to consider another position with CN or retraining him in a different vocation. F. RTWP - June/July 2003 - Traffic Coordinator in Prince George [89] On April 15, 2003, shortly after the WCB Review Board decision, Todd McDonald, WCB Vocational Rehabilitation Consultant in Terrace, wrote to Tom Brown, Superintendent, CN Operations at Prince George. [90] He suggested that WCB and CN move to vocational rehabilitation for Mr. Smith within the work restrictions that the WCB medical advisor had earlier confirmed. [91] Mr. Brown replied to Mr. McDonald on May 7, 2003, offering to train Mr. Smith as a traffic coordinator in Prince George, B.C. This would consist of technical training in Vancouver and on the job training in Prince George. He believed that the position would provide Mr. Smith with optimum employment stability. He also noted that this job is for the most part sedentary and well within Mr. Smith's work restrictions. G. RTWP No. 4 - Traffic Coordinator - Prince George, June/July 2003 [92] Tanya Gordon, who was now the CN return to work coordinator developed another transitional return-to-work plan for Mr. Smith, this time for the position of traffic coordinator at Prince George. Ms. Gordon is a registered kinesiologist with a speciality in vocational rehabilitation and disability management. [93] The RTWP provided for CN sponsored training sessions, both at the Thornton Yard, Vancouver, for the technical, training from June 2 to June 27, 2003, and from June 29 to July 28 at Prince George for on-site practical training. [94] In developing this RTWP, Ms. Gordon considered a number of factors such as the WCB designated work restrictions for Mr. Smith; the physical demands and working conditions, job analysis for the traffic coordinator and Mr. Smith's October 2002 functional capacity evaluation. (i) Duties of a Traffic Coordinator [95] Traffic coordinators in Prince George are solely responsible for the operation of the Prince George Yard. They control the breakdown of trains entering the terminal and the building of trains exiting the terminal. They direct the yard crews in these yard operations. They are the contact for any customer issues and are the emergency contact within the Prince George terminal. [96] The traffic coordinator works in an office setting. They may sit or stand at their desk. With the flexibility of the cell phone and portable radio, they are not required always to be at their desk. They can go outside in the yard, take a break, but must stay in radio or phone contact. [97] The equipment used by the traffic coordinator includes a computer connected to the CN network, a portable radio, a radio at their desk, telephone, a cell phone, and a bank of monitors over the desk to monitor the yard operations via a set of cameras. [98] The physical tasks for a traffic coordinator include entering data on the computer, reading data on a computer screen, watching the monitors and operating the radio or phone. These tasks can be done either sitting or standing. [99] The heaviest thing a traffic coordinator may lift is a phone. It is one of the most sedentary of CN railroad jobs. [100] Traffic coordinator is a safety critical position. They are the contact for any emergency in the yard or if a road crew within the area has an emergency. For this reason, it is critical that the traffic coordinator be accessible for the entire shift. (ii) Mr. Smith's Concerns re: the RTWP for Traffic Coordinator [101] Initially, Mr. Smith was not in favor of this proposal. He told Mr. McDonald that he wanted CN to consider positions in Terrace before he would consider moving to Prince George. One of his reasons was that his wife's job was very important to her and she would not want to move. [102] Prior to the commencement of the plan, Ms. Gordon discussed it with Mr. Smith. He had some concerns with the date that the plan was to start, that it was too rushed and that he had family commitments in June when he needed to be in Terrace. He also had concerns about how the training was to be undertaken, and that the training was to be done in Vancouver and not in Terrace. [103] Ms. Gordon explained to Mr. Smith that the training materials and the training personnel were only available at Thornton Yard. Access to these resources was necessary. [104] She also told Mr. Smith he would be paid the wage rate for a traffic coordinator during the training, and CN expected him to be on site for eight hours a day. Or if not in training, then at least at the gym doing his exercise program. [105] CN would pay for his accommodation, transportation to and from Terrace and a per diem for expenses. As to his family commitments in June, Ms. Gordon adjusted the schedule so that he would be able to meet these commitments. H. The Technical Training - Traffic Coordinator - Thornton Yard - Vancouver, June 2003 [106] Mr. Smith ultimately agreed to proceed with the RTWP although he continued to maintain that CN should accommodate him in Terrace. [107] For its part, the Union accepted that Mr. Smith was capable of working as a traffic coordinator. The Union, however asked CN, no doubt at the urging of Mr. Smith, that Mr. Smith be given the traffic coordinator position in Terrace. [108] CN could not agree to this. There was no operational requirement for a traffic coordinator in Terrace. The traffic coordinator in Prince George coordinated the Terrace terminal and the Edmonton traffic coordinator controlled the rail movement in the other centers outside of Prince George and Vancouver. [109] Besides the lack of operational needs, it is not feasible for CN to have a single traffic coordinator in Terrace because it is a safety critical position and requires 24 hour/seven days/week coverage. [110] The WCB, through Mr. McDonald, was in favour of training Mr. Smith for this position in Prince George and encouraged Mr. Smith to move forward. Ms. Gordon had provided Mr. McDonald with the RTWP and he approved it. (i) Phase One of the RTWP - Thornton Yard, Vancouver [111] The RTWP was divided into two phases, classroom training at Thornton Yard and practical training in Prince George. [112] For the first week, Mr. Smith was to do six hours of training. He had ample opportunity to get up, take breaks, walk around and change position when required. He had two hours each day to access the employee fitness centre, within walking distance from the office. [113] Mr. Smith was to start at 8:30 and finish at 2:30, increasing to eight hours per day in the second week on Tuesdays and Thursdays. This would allow him to increase his tolerances and his endurance for working a full eight-hour shift. [114] WCB had final approval over the RTWP and the final decision as to the suitability of the position. Mr. McDonald had requested weekly reports from Ms. Gordon as to how the plan was progressing and if there were any problems that needed to be addressed by WCB. [115] Mr. Smith started his training on June 2, 2003. On June 6, 2003, Ms. Gordon met with Mr. Smith. He told her that he did not believe he was receiving the proper training as it was not in a classroom environment. She explained that the WCB wanted to expedite his return to work, the training was otherwise given only once per year and he would receive the full training for a traffic coordinator. [116] Mr. Smith was provided with the training modules for the traffic coordinator position and one-on-one access to a manager familiar with the materials. He was also given access to the computer systems he would be working with in the position. [117] Mr. Smith asked to be given a chair that that could accommodate his back problems. CN offered him several chairs in the office, including a receptionist chair, a steno chair, a high back Obusforme chair, but he was not able to find one that was suitable. [118] Mr. Smith felt that CN did not make sufficient effort to find him an appropriate chair. He even offered to accompany a CN official to a chair store. But he would only do so during working hours, not after his shift ended. In the end, he asked that CN transport his personal chair from home to Vancouver and CN did so. [119] According to CN, the chairs that were available to him were all chairs that met or exceeded the current ergonomic standards. They all had height adjustable backs, height adjustable seat pans and height adjustable arms. [120] His personal chair was one piece in nature, without an adjustable back, arm rests or seat pans. The only modification that Mr. Smith did was to put an Obusforme cushion support for his back. His chair did not meet any of the recommended ergonomic standards. a) Mr. Smith's Diaries [121] A key part of the RTWP was that Mr. Smith was to keep a daily diary to record the tasks he had completed and any symptoms he experienced before, during and after the tasks were completed. He was to inform Ms. Gordon, (she provided her direct line and her pager number) so that if Mr. Smith was having difficulty, the plan could be modified. [122] Mr. Smith reported in his diaries that from day one, he experienced pain and back spasms as the day progressed. He dealt with this by walking around or taking medication or lying down in a meeting room. Sometimes he would return to his hotel and lie down on a heating pad which would relieve his spasms. [123] As his training progressed, he reported that his spasms and back pain increased. By week three, he reported that his left leg was aching, and would get numb, and his gait was noticeably affected. Sometimes he would have to leave early and return to his hotel to lie down on a heating pad. [124] Although asked to do so, Mr. Smith provided very few details about his daily tasks. Rather, he concentrated on reporting his comfort levels, the physical difficulties he was having and what he would do to relieve the pain and spasms he experienced. [125] Mr. Smith understood that the purpose for the diaries was so that Ms. Gordon and the RTW team would know what tasks aggravated his condition. His view was that he didn't think it necessary to provide more details because Ms. Gordon knew what he was working on. She could reference his supervisor's summaries and the weekly progress reports which were discussed at the weekly meetings. [126] Weekly meetings between Ms. Gordon, Mr. Smith and his supervisor/trainers were part of the RTWP. At the June 13, 2003 meeting, a number of issues were discussed and a number of matters were raised by Mr. Smith. Mr. Smith felt he was progressing quite well through the training. He was beginning to understand the system and he found that the job shadowing with the traffic coordinators at Thornton Yard was quite helpful. [127] But he felt pressured working an eight hour day. Ms. Gordon pointed out that in week two he was only working eight-hour days on the Tuesday and Thursday, and the rest of the days were six-hour days, which he had successfully completed the first week. [128] Mr. Smith also voiced his concern about the frequency and difficulty with the back spasms he was having. Ms. Gordon told him that when he was having the back spasms or was just having a bad day overall, he could contact her and discuss options such as going to the fitness centre, going for a rest in the restroom, or going for a break to his hotel. [129] Ms. Gordon also told him that his job tasks were well within his restrictions. He did have the opportunity to get up, walk around and change positions as required. [130] Mr. Smith also told Ms. Gordon that he did not like having to eat out all the time. Ms. Gordon pointed out that his hotel had kitchen facilities and a fridge. Mr. Smith had the option of cooking his own meals, but he indicated that he did not like preparing meals just for one person. [131] At this meeting, Mr. Smith said that he did not like living in a hotel. He was having difficulty sleeping. Ms. Gordon told him that CN would not transport his bed from Terrace to Vancouver. [132] In Ms. Gordon's view, the concerns expressed by Mr. Smith confirmed the trend she was seeing over the course of developing the RTWP and during the first two weeks of training, whereby Mr. Smith would bring up barriers on a regular basis which were not related to the components of the plan. [133] In addition, his reports of back spasms were of particular concern because of the increasing frequency and length. The traffic coordinator position was safety critical and required Mr. Smith to be available at all times during the work shift. If he left the office to lie down or return to his hotel, he would not be able to respond to an emergency. (ii) Phase Two of the RTWP - Prince George - July 2003 [134] Mr. Smith completed the first phase of the RTWP on June 20, 2003, his last day at the Thornton Yard. At the weekly meeting on June 20, 2003, attended by Mr. Smith and the RTW team, Bruce Feltham, the manager in charge of Mr. Smith's training, reported that he believed Mr. Smith had acquired approximately 75 per cent of the skills and knowledge he needed to do the traffic coordinator job. He could acquire the rest through the hands-on experience in Prince George. [135] Dave Radford, CN Assistant Superintendent, Transportation, in Prince George had the overall responsibility for coordinating Mr. Smith's training program in Prince George, setting up the training shifts, monitoring and managing his development in the program. He arranged for Mr. Smith's accommodations in Prince George, his transportation back and forth from Terrace, as well as his transportation in Prince George to and from his hotel to the yard office. [136] Mr. Smith was assigned a supervisor whose role was to ensure that Mr. Smith obtained the correct training. His shifts were set up so that he would get a well-rounded overview of all that went on within the terminal, including the importance of the traffic coordinator being a 24-hour contact within the terminal. [137] Mr. Smith's training in Prince George started on July 2, 2003. Prior to that, near the end of June, Mr. Radford met with Mr. McDonald for a site tour of the terminal. The tour included the yard office, the traffic coordinator's work area where Mr. Smith would be working, and how the office would be renovated to accommodate him. Mr. Radford also explained the nature of the yard operations and the requirements for the position. [138] The renovations to the office area would consist of an adjustable height work station that would allow Mr. Smith to work both from a sitting or a standing position. He would be given an ergonomic chair and the office would be enlarged to accommodate this equipment. [139] Mr. Radford was committed to making the necessary expenditure but, because of the extensive renovations required, he wanted to wait until Mr. Smith was permanently in the job. In the interim, CN arranged to have his personal chair sent from Vancouver to Prince George. [140] Ms. Gordon had also explained to Mr. Smith that following the successful completion of the RTWP and confirmation of the permanent position, the necessary office equipment would be purchased and the office would be retrofitted. [141] Mr. Smith would work both weekdays and weekends. His scheduled hours were different from week to week to allow Mr. Smith to learn the different shifts and the different operating aspects of each shift. a) Mr. Smith's Diaries [142] As before, Mr. Smith was to provide daily diary entries. He was to record the tasks completed, whether he encountered any difficulty and record any symptoms he experienced. Again, Mr. Smith concentrated on recording his pain levels and the symptoms he had experienced. Rarely did he indicate his tasks or relate his symptoms to the tasks. [143] On occasion, he used the diaries to express disagreement with Ms. Gordon, for example, as to his work restrictions and his compensable condition. In his July 2 diary entry, he asked Ms. Gordon to provide him with the job description and statement of duties for the traffic coordinator and its classification level and point rating. [144] Brad Butterwick, Mr. Smith's supervisor, recorded Mr. Smith's progress at Prince George. He reported to Tanya Gordon that from July 2 to July 5, Mr. Smith arrived on time for work and, apart from observing Mr. Smith leaning on the desk, he did not observe any issues with pain or back spasms. [145] That is, except for July 10, when Mr. Butterwick reported that he observed that Mr. Smith was shaking, sweating and was very pale. He was taken in a taxi to the local hospital emergency room, examined and released. [146] According to Mr. Smith's diaries, in the week of July 2, he left early on one of the five shifts. In the July 10 week, he left early in three of the five shifts. For the July 17-21 week, he left early on three of the five shifts. And in the week of July 25, he left early on one of the four shifts. He reported in his diaries that on those occasions, he experienced painful spasms. [147] At some point during this period, Terry Petry, a CN risk management officer and a member of the RTW team, asked Mr. Smith to provide more details of his tasks in his diaries. Mr. Smith's response was that he was doing the duties of a traffic coordinator. If he had to keep a minute to minute account of when he was sitting or moving around or went to the washroom etc., this would distract from the very purpose as to why he was at Prince George. [148] Mr. Petry also asked Mr. Smith whether he was committed to relocate to Prince George. Mr. Smith's position was that he was willing to relocate his family and home to Prince George, but under duress. Duress, because he did not believe that CN had exhausted or seriously considered his request to be accommodated in Terrace. [149] On July 22, 2003, Dr. Appleton wrote to Mr. McDonald. Mr. Petry had asked Mr. Smith for a letter from his doctor to explain the spasms. In his letter, Dr. Appleton reported that Mr. Smith told him that he developed back spasms on a regular basis. For relief, he would take medication, lie down, stretch and relax. [150] He also said that Mr. Smith told him that the traffic coordinator position required him to sit up to 95% of the time and that he had little opportunity to move around, walk or stretch. It is true that, on paper, the physical demands and working conditions analysis for traffic coordinator showed 95% sitting and 5% standing. [151] But this was not the case for Mr. Smith. He could sit, stand or walk around as required. In fact, in two or three of his diary entries, he recorded that he was able to move around, change positions and take walks outside. [152] Mr. McDonald replied to Dr. Appleton on September 10, 2003. He advised Dr. Appleton that he was misinformed about the 95% sitting requirement. The traffic coordinator's job was absolutely suitable for Mr. Smith. It did not require prolonged sitting. In fact, in his experience as a vocational rehabilitation consultant, he had never seen a job that had as much flexibility to alternate between sitting, standing and walking within the office or outside. [153] Ms. Gordon was becoming concerned about the increased frequency of his back spasms that Mr. Smith reported in his diaries and his need to lie down sometimes for up to an hour or more at a time. She was also concerned about the number of times he left work early. [154] She told Mr. Smith that his diaries did not provide the information required. Instead of detailing the job tasks that he was doing, he had taken to basically discussing his pain levels, his discomfort and what he did for that discomfort. She reminded him that the diaries were a way to track his daily activities and what activities seemed to be causing him problems. [155] Finally, on July 29, 2003, Dave Radford wrote to Mr. Smith advising him that, although CN believed he was capable of performing the duties of a traffic coordinator with some additional training, he had yet to demonstrate any real commitment to the job. He refused to follow instructions regarding his diary entries. He had a pattern of leaving his work area and/or leaving his work unattended for non-work related issues, with increased frequency and duration as the plan progressed. Because of these issues together with the objective observations by his supervisors in Prince George, CN terminated this RTWP. Mr. Smith returned to Terrace. [156] On August 5, 2003, Ms. Gordon wrote a long letter to Mr. McDonald detailing the reasons why CN terminated the RTWP. She noted that Mr. Smith demonstrated the physical and mental ability to perform the traffic coordinator job. But in her view, he repeatedly placed obstacles in the way of his return to work that were not within the guidelines that WCB had provided to CN as to his physical capabilities and his compensable condition. [157] She referred to the frequency of his back spasms and Mr. Smith's self-imposed requirement that he lie down at work. Ms. Gordon noted that the traffic coordinator position allowed a great deal of flexibility for frequent breaks, for stretching, for short walks and for short periods to lie down. When working at his desk, Mr. Smith could perform his duties either standing or sitting. He could also walk outside for periods of time while doing non-desk duties, using a portable radio or cell phone. [158] Ms. Gordon also referred to Mr. Smith's inability to sometimes complete his shifts. The frequency of his early departures and time taken to lie on the floor negatively affected his on-site job training. The traffic coordinator is a safety critical position requiring him to be capable of responding to any emergency situation. Mr. Smith's need to leave the office or lie on the floor for extended periods of time would preclude him from responding to emergencies. [159] As to the level of commitment shown by Mr. Smith to the RTWP in Prince George, his supervisors noted his lack of interest and commitment to the plan. This was also reflected in his failure or refusal to provide more details in his diaries. [160] Ms. Gordon concluded that if these concerns could be resolved, CN was willing to continue with the RTWP leading to a permanent position of traffic coordinator. [161] Mr. Smith wrote a long response to the points raised by Ms. Gordon in his September 17, 2003 letter to Mr. McDonald. He pointed out that he did not choose his medical condition. He did experience muscle spasms and pain and could only recover with medication, heat and lying down. [162] On the question of his diaries, Mr. Smith's response was that he did report the duties he performed, the problems he was having with the work station and driving in the yard and the levels of pain he experienced. He said that he never received any feedback or response to the problems he noted. [163] Earlier, on August 18, 2003, Mr. Smith had written to Mr. McDonald demonstrating his commitment to relocating. He pointed that he had participated in the six week training program in Vancouver and Prince George. They had painted the exterior of their house in Terrace. He and his wife had driven around Prince George looking at real estate. Although they did not want to move, Mr. Smith believed that these actions demonstrated his determination and commitment to return to work. I. Mr. Smith's Union Grievance, June 2002 [164] It is noteworthy that while Mr. Smith was telling CN he was willing to relocate to Prince George, although under duress, he had asked his Union to file a grievance on his behalf as early as June 11, 2001. The Union did so on June 26, 2002. In its July 9, 2003 Statement of Issue submitted for arbitration, the Union's position was that Mr. Smith must be accommodated in his home terminal of Terrace. CN's failure to do so was a breach of the collective agreement and CN's obligation under the CHRA to properly accommodate him. The remedy requested was that CN accommodate Mr. Smith by way of appropriate employment at the Terrace terminal. [165] The grievance was dismissed. The issue for the arbitrator was whether CN had discharged its obligation under the CHRA to reasonably accommodate Mr. Smith's disability. [166] In his July 14, 2003 ruling, Arbitrator Piché accepted CN's position that there was no work of value to CN at Terrace that could be done by Mr. Smith. The duty to accommodate to the point of undue hardship does not require CN to create a position of no productive value to it. [167] Arbitrator Piché concluded that CN's offer of the traffic coordinator position and CN's previous efforts to return Mr. Smith to his pre-injury position as a locomotive engineer constituted reasonable accommodation. [168] As to the potential hardship for Mr. Smith and his family in moving to Prince George, he found that the duty to accommodate does not make CN the insurer of all aspects of Mr. Smith's economic and family life. CN's obligation is limited to workplace employment accommodation. [169] On October 1, 2003, Mr. McDonald wrote to Mr. Smith advising him that WCB would no longer provide any vocational rehabilitation benefits. The basis for his decision was that the traffic coordinator position was particularly suited for his return to work given his condition and work restrictions. In his view, the RTWP was not successful because of the barriers which Mr. Smith had raised. Accordingly, WCB would no longer be involved in any return to work process for Mr. Smith and Mr. Smith was not entitled to any projected loss of earnings. [170] Mr. Smith asked the WCB Review Division for a review of Mr. McDonald's October 1, 2003 decision. The review officer confirmed his decision on July 12, 2004. [171] On August 9, 2004, a WCB disability awards officer wrote to Mr. Smith advising him that the traffic coordinator job was a suitable accommodation within his work restrictions. [172] Mr. Smith asked for a review of this decision. The review officer's decision on March 31, 2005, was that the accommodated position of traffic coordinator was suitable and available to Mr. Smith. He could earn wages comparable to his pre-injury wages. It was reasonable for him to relocate to take up this position. Mr. Smith appealed this finding to the Workers Compensation Appeal Tribunal. J. RTWP No. 5 - Assistant Traffic Coordinator - January 2004 [173] But the accommodation saga did not end on July 29, 2003. Shortly after the arbitrator's decision, there were discussions and correspondence between Rob Reny from CN and Dave Brummund from the Union. Mr. Brummund asked Mr. Reny if CN would reinstate the RTWP for the traffic coordinator's position in Prince George. The Union's position was that Mr. Smith was capable of doing that job. [174] CN agreed to do so, but this time for the position of assistant traffic coordinator. Ms. Gordon was asked to prepare a revised RTWP. It was to commence on January 12, 2004, to be completed on January 30, 2004. This position was designed specifically for Mr. Smith, taking into account his work restrictions. CN would pay his salary, his transportation costs to and from Terrace, his accommodation, transportation to and from work, and a daily per diem for expenses. [175] CN also agreed that following the successful completion of his training, it would give Mr. Smith an adjustable ergonomic work station and chair, install more flexible flooring in the office and renovate the yard office to accommodate this equipment. [176] As before, Mr. Smith was to complete daily diaries recording his completed tasks, his comfort levels and whether he encountered any difficulties. (i) Mr. Smith's Duties and Responsibility of Assistant Traffic Coordinator [177] Mr. Smith was to assist the traffic coordinator on duty. He would not have the primary responsibility for the position. Mr. Smith would have access to the first aid room and could leave the traffic coordinator's area when required to lie down and deal with his back symptoms. [178] The assistant traffic coordinator is not a safety critical position. This would give Mr. Smith much greater flexibility to stand, to lie down and to walk around. [179] At his request, CN transported his personal chair from Terrace to Prince George. [180] Mr. Smith did not complete this RTWP. It appears from his diary entries that he worked from January 12 to January 27, 2004. He said that he had a very difficult time during this trial return to work. His diary entries are detailed, but describe the medical problems he experienced without relating them to the tasks he was doing. [181] Although Ms. Gordon and other members of the transition team reminded Mr. Smith a number of times of the importance of the diary information, Mr. Smith acknowledged that there was little in his diaries about the tasks he was doing. [182] Mr. Smith agreed that as assistant traffic coordinator, he could get up, move around or leave the office to lie down because the traffic coordinator would cover off his duties. He also agreed that the assistant traffic coordinator position was less demanding than the position of traffic coordinator. [183] Mr. Smith agreed that during the course of the work as an assistant traffic coordinator, he was not asked to do anything that exceeded his work restrictions. (ii) Termination of the Assistant Traffic Coordinator RTWP [184] Mr. Radford observed that, at the beginning, Mr. Smith did quite well. But as time went on, the amount of time he spent on the job during his shifts began to decrease. Mr. Radford was concerned that this would interrupt his training cycle. There was a limited amount of time to get Mr. Smith trained and he was running behind schedule. [185] On January 29, 2004, Mr. Radford received a voice mail in his office from Mr. Smith asking if he could meet him as soon as possible at a restaurant in Prince George. Mr. Radford drove there and found that Mr. Smith appeared to him to be in some pain. He asked Mr. Radford if he would accompany him to his hotel. Mr. Radford did so. [186] Mr. Smith told Mr. Radford that he had been experiencing significant pain. At that point Mr. Radford concluded that the RTWP should be ended. The best option to assist Mr. Smith was return him to Terrace where he could be with his wife and his doctor and deal with his medical problems. K. Another Opportunity for the Assistant Traffic Coordinator Position [187] On February 13, 2004, following the aborted RTWP, Mr. Brummund wrote to Mr. Reny requesting that Mr. Smith be given another opportunity for the assistant traffic coordinator position. He asked that CN provide an ergonomic chair, an adjustable work station and have an occupational therapist review the work area and perhaps suggest modifications. [188] On June 29, 2004, Mr. Reny replied to Mr. Brummund that CN would extend to Mr. Smith one final opportunity to return to work as an assistant traffic coordinator in Prince George. But, Mr. Smith had to give CN a written commitment to see the plan through to its end and to provide detailed daily diaries. [189] Mr. Reny was concerned that there had been little progress with Mr. Smith's return to work. In this exchange, he wanted to make it very clear that CN was looking for Mr. Smith to actively participate and cooperate in any future return-to-work attempts. It was still not clear to CN that Mr. Smith was willing to relocate. [190] CN would undertake the necessary renovations and equipment purchase upon the successful completion of the RTWP. CN would also maintain the flexibility introduced in the previous return-to-work programs, allowing Mr. Smith the opportunity to alternate between sitting, standing and walking. As well, he would be able to lie down in the first aid room when necessary. [191] Mr. Brummund's response to Mr. Reny's letter came on August 13, 2004. The Union wanted a precise definition of the commitment, and how did CN contemplate Mr. Smith seeing the RTWP through to its end. [192] As to the diaries, the Union's position was that Mr. Smith had been completing the diaries as required, but CN had not made any adjustments for Mr. Smith's medical problems. [193] Mr. Reny wrote back on August 20, 2004. Mr. Reny confirmed that CN would make the modifications requested upon Mr. Smith's successful completion of the return-to-work program. He noted the conclusions of the WCB and CN's Occupational Health Services that these modifications were not critical to Mr. Smith's successful completion of the training. All CN was asking was that Mr. Smith work through a basic three-week program to assess his ability to function in this workplace. [194] Most importantly, CN offered Mr. Smith the permanent position of assistant traffic coordinator in Prince George, to take effect immediately. But Mr. Smith had to cooperate in completing the task diaries for the return to work coordinator so that any necessary modifications can be made either to his work and/or work area. CN also offered to cover Mr. Smith's relocation costs to Prince George. Mr. Reny asked for the Union's and Mr. Smith's agreement. [195] Mr. Smith wrote to Mr. Brummund on September 1, 2004, responding to Mr. Reny's letter. He said that there was nothing new in this proposal. It was his view that no new remedies/solutions/modifications were offered by CN. [196] Mr. Reny emailed Mr. Brummund on October 12, 2004, pointing out that CN's intent has and continues to accommodate Mr. Smith with long term, permanent employment. Nothing has changed with CN's operations in Terrace that would accomplish this for Mr. Smith in Terrace. He asked that the Union respond to CN's August 20, 2004 proposal. [197] Mr. Reny emailed Mr. Brummund on January 11, 2005 asking for the Union's response. In his January 18, 2005 email to Mr. Brummund, Mr. Reny pointed out that CN had modified its offer in response to the specific requests from the Union. He asked again for the Union's position. [198] In emails to Mr. Shewchuck on June 14, 2005, August 15, 2005 and September 7, 2005, Mr. Reny repeated his request. [199] Despite these many requests by Mr. Reny asking the Union for its position to his August 20, 2004 offer, the Union has never formally replied. L. Mr. Smith's Application for Canada Pension Plan Disability Pension [200] On February 17, 2002, Mr. Smith applied for CPP disability benefits. The eligibility criteria require that the applicant has a disability that precludes doing any work on a regular basis, full-time, part-time or seasonal. The disability must be long term and of unknown duration. [201] Initially, Mr. Smith was denied CPP disability benefits. The decision of the Disability Specialist on April 12, 2002, was that his file information including medical reports indicated that although he could not work at jobs that required prolonged sitting or standing, he was still able to do some type of work. [202] Mr. Smith asked for a reconsideration of this decision. His request for reconsideration was denied on August 29, 2002, because he failed to satisfy the disability criteria. [203] Mr. Smith then appealed to the CPP Review Tribunal which heard his appeal on March 10, 2004. At that hearing, Mr. Smith took the position that he was incapable of doing any work as of February 2002. He made oral representations to the Tribunal to this effect, as did his wife. [204] Mr. Smith also submitted a letter from Dr. Appleton dated March 3, 2004. In his letter, after summarizing Mr. Smith's medical condition and work restrictions, Dr. Appleton stated that he considered Mr. Smith to be completely disabled from any form of meaningful employment. [205] The impetus for this letter came from Mr. Smith. In his clinical notes for March 3, 2004, Dr. Appleton noted that he met with Mr. Smith. Mr. Smith told him that he was appealing a negative CPP disability pension decision. The hearing was scheduled for March 10 and he needed a letter of support. [206] This opinion of Dr. Appleton should be contrasted to his opinion as expressed in his March 28, 2002 letter. There Dr. Appleton wrote To Whom It May Concern. He described Mr. Smith's medical condition, his back surgery and his work restrictions. Dr. Appleton then went on to say that even with these restrictions, Mr. Smith would have been able to return to the work force as of June 10, 2001. This letter was written by Dr. Appleton in connection with Mr. Smith's employment insurance application. [207] The Review Tribunal issued its decision on April 28, 2004. It concluded that Mr. Smith's disabilities rendered him incapable of doing any regular gainful employment from February 2002 when he first applied for a CPP disability pension. He was awarded a disability pension retroactive to June 2002. [208] Mr. Smith agreed in his application for the CPP disability pension to notify CPP of any changes in his medical condition; or a return to work (full, part-time, volunteer or trial period or any rehabilitation). He did not do so. [209] Mr. Smith did not advise CPP of his two RTWP's in June 2003 and January 2004 for which he was paid a full salary. He did not advise CPP of his November 2002 functional capacity evaluation, setting out his physical ability and functional capacity to work. [210] Mr. Smith did not tell CN, his Union or WCB that he had applied for a CPP disability pension in February 2002. He did not tell them about Dr. Appleton's March 4, 2004 letter advising that he was disabled and could not do any meaningful work. [211] Mr. Smith did not disclose in his CPP application or at the CPP Review Tribunal or later that he was one of the founding members of the Northwest Injured Workers Association (NIWA) which was incorporated on February 2, 2002. One of the main purposes of this organization was to provide advice and support for injured workers involved in the WCB process. [212] Mr. Smith is very much involved as a volunteer with the NIWA. He was instrumental in its incorporation. He has organized and has spoken at a number of rallies and meetings in Terrace and at other locations in the area. He was significantly involved in seeking financial support for NIWA to fund its activities and paid positions. If his funding efforts were successful, Mr. Smith hoped to occupy one of the paid positions. [213] Mr. Smith applied in the fall of 2002 or 2003 for the position of Workers' Advisor to the Minister of Labor. This would involve assisting WCB claimants by guiding them through the WCB process. M. Can Mr. Smith Work or is He Permanently Disabled? - Facts to Consider (i) September 21, 2004 letter [214] In September 2004, Dr. Appleton wrote a letter, To Whom It May Concern. In his letter, Dr. Appleton gave his opinion regarding CN's latest offer as set out in Mr. Reny's August 20, 2004 letter. Dr. Appleton opined that this work situation was no different from the previous assistant traffic coordinator training that Mr. Smith tried earlier. [215] Mr. Smith agreed that Dr. Appleton's understanding of the assistant traffic coordinator in Prince George was based on what he had told him. He said that he requested this letter from Dr. Appleton and wanted Dr. Appleton's opinion as to whether he could perform the duties of an assistant traffic coordinator. It is not clear why Mr. Smith wanted this. He already had Dr. Appleton's March 3, 2004 opinion which he submitted to the CPP Review Tribunal that he was incapable of working at all. (ii) Application for Judicial Review of the Arbitrator's Decision [216] The Union filed a judicial review application of the arbitrator's decision which it later abandoned. The Union's counsel, Clayton Cook, had discussed this with Mr. Smith and told him that there was little or no chance of success. [217] In a lengthy fax to Mr. Cook on June 20, 2004, Mr. Smith disputed this conclusion. After summarizing in detail the facts of his case, Mr. Smith reiterated his position which was put forward by the Union at the arbitration, that CN has a duty to accommodate him at his home terminal before alternative accommodation is even considered. He disagreed with the arbitrator's decision that the CN had made reasonable efforts to do this. [218] Mr. Smith wanted to proceed to the judicial review. The implication is that he was capable of working at that time, certainly in Terrace. But, in his discussions with and fax to Mr. Cook, he never told him that he is receiving a CPP disability pension. (iii) The WCAT Decision - February 2006 [219] As indicated earlier, Mr. Smith appealed to the Workers Compensation Appeal Tribunal (WCAT) a number of WCB decisions, including the March 31, 2005 decision of the review officer denying Mr. Smith a permanent disability award. The appeal was heard on November 29, 2005. Mr. Smith was represented by counsel. [220] In its February 10, 2006 decision, WCAT confirmed the review officer's decision that Mr. Smith was not entitled to a permanent disability award based on projected loss of earnings. In coming to this conclusion, WCAT concluded: that the medical evidence indicates that the ideal job for Mr. Smith would allow him to sit, stand and walk around as required; that the assistant traffic coordinator position meets his work restrictions and provides Mr. Smith with the ideal job opportunity and the maximum flexibility to deal with his back spasms should they occur; that Mr. Smith is fit to undertake the assistant traffic coordinator job; rejected Mr. Smith's argument that WCB and CN is obliged to look for any job that Mr. Smith could do in Terrace before looking elsewhere. If CN could provide a suitable job elsewhere it makes no sense to find a job paying a minimum wage in Terrace and pay a permanent disability award for wage loss; that Mr. Smith does not have deep roots in Terrace noting that he had lived there for 16 years but had previously lived in Prince George for eight years. His wife is employed part-time and works below her qualifications as a pharmacist. His children have left the home. On the whole, Mr. Smith's ties to Terrace are not strong and his preference for Terrace does not entitle him to a permanent disability award; that CN acted in good faith in offering the two training opportunities in Prince George to Mr. Smith and then offering the permanent position to him; Mr. Smith did not act in good faith by not taking advantage of this offer; that his difficulties in the training were in large part of his own making. The extent of his back spasms, the degree to which they are caused by certain activities, the degree of disability caused by them and the necessity to lie down to treat them are known only by Mr. Smith's reports. They are not independently verifiable. that Mr. Smith has declined a job which was suitable, available and which would match his pre-injury job rate. (iv) Dr. Appleton's 2006 Clinical Notes [221] On February 7, 2006, Mr. Smith met with Dr. Appleton. In his clinical notes, Dr. Appleton wrote that Mr. Smith is going to arbitration with the Human Rights Commission with regard to his back pain and CN's inability to provide him with alternate employment. It was Dr. Appleton's understanding that CN had offered Mr. Smith alternate employment which may have suited him, out of Terrace, but Mr. Smith refused to go. [222] After describing Mr. Smith's symptoms and his current activities, Dr. Appleton went on to write that Mr. Smith has a history of lumbar disc problems and his ongoing problem might be expected with prolonged sitting and standing. But his picture of back spasms, however, is not compatible with the above. It was Dr. Appleton's strong feeling that there is a very large emotional component here, although he does not think that Mr. Smith is malingering. [223] Dr. Appleton concluded that he told Mr. Smith in no uncertain terms that he does not find any physiological reasons to his overall spasming and that he would not be able to substantiate a physical reason for this if asked. [224] Mr. Smith met again with Dr. Appleton on May 24, 2006, a few days before the commencement of the Tribunal hearing into his complaint. In his clinical notes, Dr. Appleton wrote that Mr. Smith had concerns about Dr. Appleton's comments in his February 7, 2006 notes that Mr. Smith had been offered alternate employment out of Terrace but he had refused. [225] Dr. Appleton corrected this by noting that his comment related to an earlier consultation during which he and Mr. Smith discussed the possibility of work outside the area, compatible with his injuries. At that time Mr. Smith told him it would be difficult to move because of his wife's job. Dr. Appleton concluded that he was not aware of any job offered by CN that would be suitable for Mr. Smith, given his injuries. (v) Referral to Dr. Keyes, Neurologist [226] Mr. Smith asked Dr. Appleton to refer him to another specialist about his lower back spasms. Mr. Smith had come up with the name of Dr. Keyes, a neurologist. Although Dr. Appleton did not think that Dr. Keyes would have much to offer, he did make the referral. [227] Mr. Smith was assessed by Dr. Keyes on November 1, 2006. After his consultation with Dr. Keyes, Mr. Smith wrote him and indicated that the last time he tried to return to work, his employer offered him a computer job which involved sitting or standing at a work station. He had difficulties with this because of pain and muscle spasms. [228] For the most of his November 9, 2006 report, Dr. Keyes provided a detailed, technical medical diagnosis for Mr. Smith. He concluded that Mr. Smith has significant disc space narrowing which will be the cause of his low back pain. He did not recommend any further surgery, but did recommend that Mr. Smith's spasms and pain be treated with medication and ongoing physiotherapy. (vi) Mr. Smith's Application for CN Disability Retirement Benefits [229] On May 18, 2006, Mr. Smith applied for CN disability retirement benefits. To be eligible, an employee must be totally and permanently disabled. Totally and permanently disabled means a physical or a mental impairment that prevents an individual from engaging in any employment for which he/she is reasonably suited by virtue of his/her education, training or experience and that can reasonably be expected to last for the remainder of his/her lifetime. This was the first time Mr. Smith represented to CN that he was totally and permanently disabled. [230] In his completed and signed application, Mr. Smith acknowledged that he was receiving CPP pension benefits. He also acknowledged that there is no basis or opportunity to accommodate him and his disability. He released CN from any obligation to accommodate him that it may otherwise have had. [231] Dr. Appleton completed the attending physician portion of Mr. Smith's application. He wrote that Mr. Smith had lumbar disc prolapse and experienced mechanical low back pain, which was ongoing for years. Dr. Appleton reported Mr. Smith's WCB work restrictions as, limited sitting, bending, no lifting and frequent changes in position. [232] As to whether Mr. Smith was totally and permanently disabled as per the eligibility criteria, Dr. Appleton wrote that there is no occupation available to fit these restrictions. [233] Mr. Smith's application was not accepted by CN. Dr. Lapierre, CN's Chief Medical Officer, wrote to Mr. Smith on June 13, 2006 advising him that he did not meet the eligibility criteria. According to the available medical information, there was no indication that his medical restrictions would prevent him from working. [234] In reaching this conclusion, Dr. Lapierre reviewed medical information in Mr. Smith's file in CN's Occupational Health Services department and the CPP Review Tribunal's decision. Dr. Lapierre took into account the February 10, 2006 WCAT decision, in particular, the findings of WCAT that the assistant traffic coordinator job is suitable and available for Mr. Smith, is within his work restrictions and the wages for that job would match his pre-injury wage rate. [235] He also considered the August 20, 2004 job offer by CN to Mr. Smith. This offer was relevant to assess fitness for duty by comparing Mr. Smith's work restrictions with the requirements of the job. [236] On the basis of this information Dr. Lapierre concluded that Mr. Smith is not totally disabled and thus did not meet the criteria for a CN disability pension. [237] Dr. Lapierre said that the decision of the CPP Review Tribunal was not of much value in reaching his decision. There was no medical information in the decision that he could rely on. [238] Dr. Lapierre did not have discussions with CN officials regarding Mr. Smith's human rights complaint. It did not figure at all in his decision to reject Mr. Smith's disability pension application. (vii) Mr. Smith's June 29, 2006 Email Enquiry for Work with CN [239] On June 29, 2006, Mr. Smith sent an email to David Trites, CN's Return to Work Coordinator who had replaced Tanya Gordon. This was 10 days after the commencement of the Tribunal hearing on June 19, 2006. In his email, Mr. Smith indicated that he was pleased to have heard that Mr. Trites and Lynn Chorley, (CN's Occupational Health Team Leader) were both interested in finding him some work within his capabilities, as the assistant yard coordinator position has been unsuitable. Any positions or ideas they might have, he would be very interested in. He asked that Mr. Trites or the Terrace manager let him know of any ideas they come up with. (viii) Mr. Smith's Proposed Accommodation - September 2006 [240] When concluding his evidence in chief in September 2006, Mr. Smith was asked what he would consider to be acceptable employment at this point in time. He proposed that CN offer him the assistant traffic coordinator position in Terrace. As to what accommodations he would require to do this job in Terrace, Mr. Smith asked for the following: a suitable chair; a height adjustable work station; somewhere where he could lie down and with access to an electrical outlet for his heating pad; fatigue matting on the floor; flexibility to leave his work station to walk or lie down as required. [241] CN's August 20, 2004 offer, which remains open for acceptance, provides that upon completion of his training, CN will renovate the traffic coordinator's office, install a padded floor, and provide a suitable ergonomic chair and adjustable work station. [242] Mr. Smith would also be provided with a place to lie down and he would have the flexibility to leave his work station when required. He could do this because assistant traffic coordinator was not a safety critical position and he did not have primary responsibilities of the traffic coordinator. [243] The only difference between what CN has offered and what Mr. Smith has proposed is that one position is in Prince George and the other is in Terrace. Mr. Smith did not give any explanation as to why he thought he could do the assistant traffic coordinator in Terrace, but not in Prince George. (ix) Mr. Smith's Human Rights Complaint and the Remedies He Requested [244] In his February 28, 2002 complaint to the Canadian Human Rights Commission, Mr. Smith alleges that CN had discriminated against him on the grounds of disability by not accommodating his disability and by not offering him alternative employment. [245] In paragraph 49 of his amended Statement of Particulars dated June 6, 2006, Mr. Smith asks for an order that the CN provide him with suitable accommodation in the Terrace area, either by enabling him to perform the traffic coordinator's or assistant traffic coordinator's position or by offering him alternate suitable employment. [246] In paragraph 52A of his Statement of Particulars, Mr. Smith requests an order that CN approve his disability application and make up the pension deficiency which arose because he was unable to work and because CN failed to offer him suitable employment. [247] At the conclusion of his evidence in September 2006, Mr. Smith was asked by the Tribunal about the inconsistency between his request to be accommodated in Terrace with suitable employment, when at the same time, he is seeking a CN disability pension on the basis that he be totally and permanently disabled from any suitable employment. [248] Mr. Smith's response as expressed in his counsel's February 19, 2007 letter to the Tribunal is that he no longer seeks the remedy in paragraph 49 that CN provide him with suitable accommodation in Terrace. [249] Mr. Smith explained, through his counsel, that . . . due in part to the outcome of the referral . . . to Dr. Keyes, his answer to the question is that he doesn't wish to pursue the relief as, he no longer believes he will recover enough to be able to work on a regular basis. So, what this means is that Mr. Smith is conceding now, with the hindsight of 2007, that he has not been able to work throughout the period, pretty well the entire period that is covered by this complaint. . . . He is not conceding that he was . . . he did not believe that, he did not accept that until he was driven to that conclusion very recently. That was not his view back in 2001 or 2002. He still hoped at that time he would be able to work and, of course, there's lot of evidence that he tried. V. REASONS FOR DECISION A. Did CN Discriminate/Retaliate Against Mr. Smith by Rejecting his Application for a CN Disability Retirement Pension? [250] To succeed, Mr. Smith must establish a prima facie case of discrimination. To do so, Mr. Smith must show that he met the eligibility criteria for the disability pension and it was refused. [251] For a prima facie case of retaliation, he must show that his application was rejected because he filed his complaint with the CHRC. [252] Dealing first with Mr. Smith's discrimination allegation, Mr. Smith's position is that he has come to the conclusion that, with the hindsight of 2007, he is not able to work on a regular basis. His reasons are based in part on his referral to Dr. Keyes. [253] The decision as to whether Mr. Smith is totally and permanently disabled from engaging any employment must be based on objective medical evidence. The only medical evidence on this question is Dr. Appleton's March 3, 2004 letter To Whom It May Concern stating that he considered Mr. Smith completely disabled from any meaningful work. [254] But the weight to be given to this opinion must be significantly discounted. There are a number of reasons for this. First, it was written at Mr. Smith's request. He told Dr. Appleton about his upcoming CPP appeal and that he needed Dr. Appleton's support. [255] Second, Dr. Appleton, in his earlier March 28, 2002 letter, in support of Mr. Smith's employment insurance application indicated that Mr. Smith could return to work on June 10, 2001. [256] Third, Dr. Appleton, the medical practitioner most intimately familiar with Mr. Smith's medical condition was never called to testify in this hearing. This is so even though the first week of the hearing was held in Terrace where Dr. Appleton resides. The remaining weeks of the hearing were in Vancouver. Mr. Smith's counsel indicated to the Tribunal that Dr. Appleton would be in Vancouver during one of those weeks. [257] No explanation was given by Mr. Smith as to why Dr. Appleton did not give evidence before the Tribunal. [258] Fourth, Dr. Appleton's clinical notes and his WCB attending physician reports were entered as exhibits on behalf of Dr. Appleton at the hearing. But in the absence of Dr. Appleton, CN was not able, through cross-examination, to test the validity of his medical opinion regarding Mr. Smith. For the same reason, Dr. Appleton's assessment that he provided in Mr. Smith's CN disability application must receive the same fate. [259] Fifth, there are examples in the evidence which demonstrate that Dr. Appleton acted as an advocate for Mr. Smith. These include his March 28, 2002 and his March 3, 2004 letters, both of which he wrote at the instance of Mr. Smith. [260] There is also his intervention on behalf of Mr. Smith with Mr. Beddie in calling for a face to face meeting with Dr. Appleton, Mr. Smith, CN and WCB officials to seek a resolution of Mr. Smith's work situation. [261] Finally, the fact that none of the specialists who assessed Mr. Smith, including Dr. Wing, Dr. Clarke or Dr. Keyes offered the medical opinion that Mr. Smith was totally and permanently disabled from engaging in any employment. [262] But, it is not just the absence of objective medical evidence. Mr. Smith's own actions over the years 2002 to 2004 belie the conclusion that he was incapable of working. [263] At the same time that Mr. Smith was receiving a CPP disability pension from June 2002, Mr. Smith: caused his Union to pursue to arbitration on July 9, 2003, his grievance that CN should provide him with suitable employment in Terrace; in July 2004, discussed with Union counsel and reiterated by fax to Union counsel that the judicial review application of the arbitration should proceed and that CN had a duty to accommodate him with employment at Terrace; pursued his WCAT appeal in November 2000, in which he took the position that WCB is obliged to find work for Mr. Smith in Terrace before looking elsewhere; proposed at the hearing before the Tribunal in September 2006, that an acceptable accommodation would be for CN to offer him the assistant traffic coordinator position in Terrace; in his statement of Particulars dated June 2006, asked by way of remedy that he be accommodated in Terrace with the traffic coordinator or assistant traffic coordinator position or other alternate, suitable employment. Mr. Smith only resiled from this in February 2007 when faced with the inconsistency between this remedy request and his request that CN be ordered to approve his application for a CN disability pension; in his June 29, 2006 email to David Trite, CN's Return to Work Coordinator, advised him that he would be interested in any work within his capabilities that he or the Terrace manager might come up with; Mr. Smith never advised CPP, as he agreed to do in his CPP application, of his trial training in July 2003 and January 2004 or of his volunteer work with NIWA; did not tell CN, the Union counsel, or the arbitrator that he was receiving a disability pension on the basis that he was incapable of working. [264] Clearly Mr. Smith believed he was capable of working, be it traffic coordinator, assistant traffic coordinator or any other suitable employment in Terrace. [265] I have concluded, in the absence of any credible, objective medical evidence and on the basis of Mr. Smith's actions and the position he has taken, that Mr. Smith is not totally and permanently disabled from engaging in any employment. [266] As to Mr. Smith's allegation that CN retaliated against him by filing his complaint with the CHRC, I accept the evidence of Dr. Lapierre that he made his decision based on objective considerations and he did not take into account Mr. Smith's human rights complaint. B. Did CN Accommodate Mr. Smith? [267] Mr. Smith argues that he suffered from a disability, could not return to his pre-injury job, and CN did offer a suitable work alternative. Accepting that Mr. Smith has established a prima facie case, the question is whether CN accommodated his disability. [268] There are two legal principles coming out of the Supreme Court of Canada in Central Okanagan School District No. 23 v. Renaud, [1992] S.C.R. 970, that are relevant here. First, the Court said that the obligation to accommodate is limited by the words reasonable and short of undue hardship. These limiting factors are alternative ways of expressing the same concept. What amounts to reasonable measures will vary with the facts of each case. [269] The second principle from Renaud is that when seeking accommodation, the employee must accept a reasonable accommodation even though it might not be the preferred accommodation. If an employee refuses an offer for an accommodation that is reasonable in the circumstances, then the employer's duty is discharged. [270] Consider now the circumstances in this case. At the request of the WCB, CN developed RTWP No. 1 to commence in December 2000. It was a graduated RTWP which took into account the job duties for locomotive engineer, his WCB work limitations, the 1999 WorkAble report and discussions with Mr. Smith about his tolerances and current activities. [271] The plan was also reviewed and approved by Dr. Appleton, Dr. Wing, and by Dr. Faraday who had confirmed Mr. Smith's work restrictions. Mr. Smith did not complete this RTWP. [272] Following up on an earlier suggestion from Mr. Smith, CN developed RTWP No. 2 to start in March 2001. This was a graduated RTWP involving lighter duties and local yard work which would avoid prolonged sitting in the locomotive engine. Both Dr. Coppin and Dr. Appleton considered this to be a reasonable plan. Mr. Smith did not complete this RTWP. [273] RTWP No.3 was initiated by Mr. Wiederspiel from the Union, who had asked CN to reactivate the previous plan. CN agreed and modified the plan as per the Union's suggestions. [274] Mr. Smith also reviewed the plan and suggested further modifications to Ms. Dawson. At no point did he tell Ms. Dawson that he objected to participating in this modified plan. [275] It is clear that the goal of WCB and CN was to return Mr. Smith to his pre-injury job. Certainly Mr. Smith had doubts as to whether he could do so. Certainly Dr. Appleton had recommended that Mr. Smith avoid prolonged sitting, as had Drs. McDougall, Faraday and Wing. [276] On the basis that the RTWPs were drafted and prescribed a graduated return-to-work program to deal specifically with this concern; that RTWP No.1 and 2 were approved not only by the WCB, but also by Mr. Smith's medical advisors and CN's advisors; and that RTWP No.3 was at the behest of Mr. Smith's Union, I have concluded that these three RTWPs constituted reasonable accommodation within the Renaud principle. [277] Over the period from April 2001 to March 2003, the operational people in Terrace and Mr. Smith's return to work team were canvassed about other potential jobs for him in Terrace. Mr. Smith had also offered suggestions to CN to personnel officers in Edmonton. [278] The evidence is that were no opportunities in Terrace that could accommodate Mr. Smith except creating a position not otherwise required. Mr. Smith's suggestions would not produce long term, gainful employment. [279] In May 2003, CN, in conjunction with WCB and with the support of the Union, proposed RTWP No.4 to accommodate Mr. Smith in a traffic coordinator position in Prince George. His training took place on June/July 2003. Once again, Mr Smith did not complete the training and the plan was terminated. [280] In January 2004, CN offered to Mr. Smith RTWP No. 5, the position of assistant traffic coordinator in Prince George. This offer was to take effect immediately. Mr. Smith had only to complete the training program. He did not take up this offer. It remains outstanding. [281] The evidence is definitive that the assistant traffic coordinator position is the ideal job for Mr. Smith, given his work restrictions. It allows him to sit, stand and walk around as required. He can leave his work area to go to a designated room to lie down. The job is not safety critical. [282] That this is the ideal job for Mr. Smith was also the opinion of the WCB Review Board in its March 14, 2003 decision. And was the opinion of WCAT in its February 10, 2006 decision. The traffic coordinator position was considered by Arbitrator Piché to be a reasonable accommodation of Mr. Smith's disability under the CHRA. [283] Mr. Smith's evidence was that his back spasms which he experienced in his training, prevented him from doing the traffic coordinator job. But this is what Mr. Smith reported to Dr. Appleton, in his diaries and at the Tribunal hearing. This evidence is not objectively or independently verifiable as was pointed out by WCAT. As noted earlier, Mr. Smith had the opportunity to call Dr. Appleton or any other doctor who had assessed him. He chose not to do so. [284] In his February 7, 2006 clinical notes, Dr. Appleton wrote that it was his feeling that there was a large emotional component with Mr. Smith's back spasms and he could not find any physiological reason for his overall spasming. [285] On this question, I agree with the WCAT finding that the difficulties experienced by Mr. Smith during his training for traffic coordinator were, in large part, of his own making. [286] Also to be considered is Mr. Smith's continuing insistence before WCAT and before this Tribunal, that he be accommodated as a traffic coordinator in Terrace. If he could do this job in Terrace, he could do it in Prince George. I can only conclude that Mr. Smith was not willing to relocate from Terrace to Prince George. [287] Mr. Smith's Renaud obligation is to accept a reasonable accommodation. He can not expect the perfect solution. CN's offer for the traffic/assistant traffic coordinator position is a reasonable accommodation in all the circumstances. Mr. Smith has not met his Renaud duty. CN's duty to accommodate him is discharged. [288] Mr. Smith has also asserted that CN has discriminated against him on the grounds of family status. His argument is that relocating to Prince George would negatively impact on Mrs. Smith. She would have to give up her job as assistant librarian in Terrace. [289] Family status is not a ground in Mr. Smith's complaint. In his closing submissions, he did not present any jurisprudence as to whether these facts amounted to family status discrimination. [290] Further, I agree with Arbitrator Piché's opinion that the duty to accommodate under the CHRA does not make an employer the insurer of all of the employee's economic and family life. VI. CONCLUSION [291] CN did accommodate Mr. Smith's disability. CN did not discriminate or retaliate against Mr. Smith in its dealings with WCB. CN did not discriminate or retaliate against Mr. Smith in rejecting his application for a CN disability retirement pension. [292] Mr. Smith's complaint is dismissed. Signed by J. Grant Sinclair OTTAWA, Ontario May 9, 2008 PARTIES OF RECORD TRIBUNAL FILE: T939/5904 STYLE OF CAUSE: Jim Smith v. Canadian National Railway DATE AND PLACE OF HEARING: June 19 to 23, 2006 Terrace, British Columbia August 14 to 18, 2006 September 11 to 15, 2006 March 12 to 16, 2007 March 19 to 23, 2007 Vancouver, British Columbia DECISION OF THE TRIBUNAL DATED: May 9, 2008 APPEARANCES: James Sayre For the Complainant No one appearing For the Canadian Human Rights Commission Adrian Elmslie / Joseph H. Hunder For the Respondent

2008 CHRT 16

CHRT

Warman v. Marc Lemire

en

2008-05-16

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6693/index.do

2023-12-01

Warman v. Marc Lemire Collection Canadian Human Rights Tribunal Date 2008-05-16 Neutral citation 2008 CHRT 16 File number(s) T1073/5405 Decision-maker(s) Hadjis, Athanasios Decision type Decision Decision status Interim Grounds Colour National or Ethnic Origin Race Religion 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: May 16, 2008 Citation: 2008 CHRT 16 [1] A number of parties filed letters with the Tribunal over the last two weeks regarding the redacted portions of certain documents that the Commission had disclosed. In order to gain a better understanding of the matters at issue, on May 12, 2008, the Tribunal asked the Respondent to provide me with a digital copy of the documents in question, in redacted form. Ms. Kulaszka kindly so obliged on May 13, 2008. [2] I have now had the opportunity to view the said documents. They were apparently parcelled into eight groupings, and consist of the following: - Two briefs prepared by the London Ontario Police Service for the Crown Prosecutor’s office dated respectively September 28, 2001, and February 1, 2002. They relate to an investigation of James Scott Richardson, who was a respondent in the Tribunal case of Warman v. Kulbashian et al, 2006 CHRT 11, in respect of which the decision was rendered on March 10, 2006. Most of the redacted information appears to consist of the names and contact information of police investigators, witnesses and other individuals. - Emails sent on an MSN Hotmail account. They all appear to relate to the Canadian Ethnic Cleansing Team (CECT) which was another respondent in the above mentioned case of Warman v. Kulbashian et al. The redactions appear to consist of names and contact information. An email from Dean Steacy regarding the same case, addressed to a Det. [detective, I presume], whose name has been redacted. - Copy of a search warrant that again relates to the CECT. The name of the Applicant and the address where the warrant is to be executed are redacted. A memo to file by Dean Steacy regarding his conversation with a constable about Alexan Kulbashian and the CECT. The name and email address of the constable were redacted. A London Police Service mugshot of Mr. Richardson. The image of his face as well as his date of birth, his height and weight are redacted. - An excerpt from what appears to be the Commission’s Investigation Report regarding the above mentioned case of Warman v. Kulbashian et al. The name(s) of one or more police officers involved in the case have been redacted. - An email to Mr. Steacy from someone at the London Police Service, whose name has been redacted, regarding the above mentioned complaint against Mr. Kulbashian et al. Two briefs by the London Police Service to the Crown Prosecutor’s office regarding Mr. Richardson dated respectively February 1, 2002, and February 14, 2002. The names of and aliases used by the police investigators have been redacted. The names and contact information of persons interviewed for the investigation also appear to be redacted. An unredacted version and a redacted version of a single Charge Sheet regarding the criminal charges that were filed against Mr. Richardson. - An email between Harvey Goldberg and someone at B’Nai Brith, whose name and contact information have been redacted. Correspondence between the former CHRC Chief Commissioner Maxwell Yalden’s office and the Toronto Mayor’s Committee on Community and Race Relations. The name of the person with whom the Chief Commissioner is corresponding has been redacted as well as the name of someone from the Simon Wiesenthal Center who is referenced therein. Correspondence by Mr. Steacy with a Corporal at the BC Hate Crime Unit, whose name and contact information have been redacted. Memos to file by Mr. Steacy regarding conversations he had with a Constable and a Corporal at the BC Hate Crime Unit, whose names and contact information have been redacted. The memos are regarding BCWhitePride, which was a respondent in a human rights complaint that was referred to the Tribunal (C.R.A.R.R. v. www.bcwhitepride.com, Tribunal file no. T1120/0206). A memo to file by Mr. Steacy regarding communications he had with the National Security Office of an organization whose name has been redacted. The names and contact information of the individuals contacted have also been redacted. Email correspondence and related memo to file between Mr. Steacy and a police officer in London, Ontario, whose name and contact information have been redacted. The topic of the correspondence is the Complaint about the CECT. Memo to file by Mr. Steacy regarding conversations with someone at the Edmonton Police Hate Crimes Division, whose name and contact information have been redacted. The memorandum relates to Peter Kouba, who was the respondent in a human rights complaint that was referred to the Tribunal (Warman v. Kouba, Tribunal file no. T1070/5205). Mr. Kouba’s contact information was also redacted. Memo to file by Mr. Steacy regarding conversations he had with a Corporal of the Montreal Police Anti-gang Unit, and an investigator at the RCMP’s National Security Office. The names and contact information of the police officers have been redacted. The conversations relate to a human rights complaint. The name of the respondent was not redacted. Email between Mr. Steacy and someone with an e-mail address ending as police.london.ca. The name of the corresponding party has been redacted as was Mr. Steacy’s contact information. Memo to file by Mr. Steacy regarding a conversation he had with a Witness whose name has been redacted, regarding a human rights complaint. The names of the complainant and the respondent were not redacted. Memo to file by Mr. Steacy regarding a conversation he had with a Constable, whose name had been redacted, regarding the above mentioned complaint against the CECT. Memo to file from someone at the Commission, whose name has been redacted, to a Corporal at the RCMP Vancouver Detachment, Hate Crime Unit, whose name is also redacted. The conversation relates to the complaint filed against www.bcwhitepride.com. Memo to file by Mr. Steacy regarding a Detective whose name and contact information have been redacted. The memorandum relates to a complaint filed by a complainant, whose name and contact information have been redacted, against a respondent, whose name was not redacted. An address of a person referred to in the memo has also been redacted. - A series of email exchanges between Mr. Goldberg and someone who appears to work for the Winnipeg Police Service. The person’s name and contact information have been redacted, as well as what appear to be numerous lines of text. It is difficult for me to surmise what these redactions are from the remaining material. An email received by Mr. Steacy, Mr. Goldberg, and others (whose names have been redacted) from someone whose name has also been redacted. Numerous lines (possibly containing contact information) at the bottom of the email have also been redacted. In my viewing of the documents in grouping eight, I did not see any redactions. [3] Thus, it appears to me that most of the redactions relate to the names of individuals and their contact information. I am hereby instructing the Commission to provide me by May 20, 2008, the unredacted copies of the documents to verify these determinations. [4] Rule 6(d) of the Tribunal’s Rules of Procedure requires parties to disclose documents 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, i.e. that are arguably relevant. The obvious question that emerges, therefore, is the following: how are the names, email addresses, phone numbers, weight and height, etc. of the individuals referred to in these documents, arguably relevant to the proportionality test set out in R. v. Oakes, [1986] 1 S.C.R. 103, that was the basis for the Tribunal’s disclosure order in the first place (see Warman v. Lemire, 2006 CHRT 32 at paras. 32 and following)? [5] After I review the unredacted version of the documents, I will advise the parties whether the nature of the redacted information differs from my earlier descriptions and in what way. Those parties who seek the disclosure of the redacted portions will then be invited to provide me with their submissions as to the arguable relevance of the information. If I am satisfied that any of the redacted material is arguably relevant, the Commission will be required to make its submissions regarding any privilege that it may be claiming prevents the materials’ disclosure (Rule 6(e)). [6] On another matter, CAFE had filed letters dated May 6 and May 8, 2008, in which the following requests were made: One of the requests related to the redacted disclosure of the above mentioned documents. It was my intention to deal with this request by first reviewing the redacted documents at issue, which I have now done with this ruling. Another request related to the hearing schedule, which I addressed in the May 12, 2008 ruling but which now forms the object of a new motion by the Respondent, on which submissions are being awaited from the other parties. CAFE also sought to obtain an order that the Commission disclose complete versions of documents that were originally provided by the Commission in January 2007, some portions of which had been redacted based on a privilege claim pursuant to s. 37 of the Canada Evidence Act. As I have already stated in my earlier ruling in this case, Warman v. Lemire, 2007 CHRT 21 at para. 7, in hearings before the Canadian Human Rights Tribunal, objections to disclosure pursuant to s. 37 may only be determined by application to the Federal Court. CAFE contends that the Commission has withdrawn its s. 37 objections. However, I note that no such withdrawal is identified in the Federal Court’s ruling of January 15, 2008, Docket no. T-860-07, with the exception of the Commission’s objection to the issuance of a subpoena regarding Bell Canada. In any event, the matter before the Federal Court did not relate to the documentary disclosure that had occurred one year earlier, in January 2007. I am therefore not ordering the complete disclosure of documents in which s. 37 was claimed by the Commission. Finally, CAFE also requested that all documents related to a number of listed email user accounts be disclosed by the Commission, stating that they are highly relevant to the issues raised by Mr. Lemire in his constitutional motion. No further explanation is provided to explain what this relevance may be. In these circumstances, I am not ordering their disclosure. Signed by Athanasios D. Hadjis Tribunal Member Ottawa, Ontario May 16, 2008 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1073/5405 Style of Cause: Richard Warman v. Marc Lemire Ruling of the Tribunal Dated: May 16, 2008 Appearances: Richard Warman, for himself Margot Blight, 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

2008 CHRT 17

CHRT

Warman v. Lemire

en

2008-05-16

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6695/index.do

2023-12-01

Warman v. Lemire Collection Canadian Human Rights Tribunal Date 2008-05-16 Neutral citation 2008 CHRT 17 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 2008 CHRT 17 2008/05/16 MEMBER: Athanasios D. Hadjis [1] The Canadian Constitution Foundation (CCF) has requested that the Tribunal issue an order, pursuant to Rule 8 of the Canadian Human Rights Tribunal Rules of Procedure, granting it intervener status in the present case. [2] The CCF stated that it intends to advance a number of arguments demonstrating that any limitations placed on freedom of expression by s. 13 of the Canadian Human Rights Act infringe upon constitutional rights, and that due to the flaws in the provision's application and composition, the infringement cannot be justified under s. 1 of the Canadian Charter of Rights and Freedoms. Similar positions have been advanced by the Respondent as well as by two of the groups that were granted intervener status in February 2006, the Canadian Association for Free Expression and the Canadian Free Speech League. [3] The CCF indicates in its motion that it is a citizen-based organization with supporters across Canada. It is a non-profit corporation and a registered charitable organization. Its objects include the promotion of human and civil rights through the sponsoring of selective litigation with the goal of securing enforcement of the Constitution of Canada and the Charter set out therein. [4] The CCF's request comes extremely late in this hearing's process and the CCF has not provided a satisfactory explanation for the lateness of its request. The complaint was referred to the Tribunal on August 24, 2005. By February 2006, five groups had applied to the Tribunal seeking leave to appear as interested parties at the inquiry. The Tribunal, by ruling dated February 23, 2006, granted all of them permission to participate (Warman v. Lemire, 2006 CHRT 8). The groups were granted intervener party status but solely with respect to the constitutionality of s. 13 and any related provisions thereof. In addition, given the constitutional issue raised by the Respondent, the Attorney General exercised its rights, pursuant to s. 57 of the Federal Courts Act, R.S.C. 1985, c. F-7, to participate and adduce evidence at the hearing, and make submissions in respect of the constitutional question. [5] The hearing of evidence in this case began on January 31, 2007, and most of the testimonial evidence was adduced over a total of four weeks, ending on March 1, 2007. Three additional witnesses were heard over a total of five days in May-June 2007 and one day in March 2008. [6] The Tribunal has 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 (Q.L.)). The administration of this case has been to say the least, unwieldy and challenging. Each of the parties is represented by legal counsel or agent. Dates for final oral submissions, to be made over the course of three days, have been set and a tiered schedule for the exchange of written arguments between the parties has been established. Most of the evidence adduced during the hearing has related exclusively to the constitutional issue. A party seeking to now join the case and to make submissions will not have had the benefit of viewing that evidence first hand, which could potentially limit the relevance and accuracy of its submissions. [7] The addition of a tenth party to this hearing will further weigh down and complicate these proceedings, which the Tribunal is, after all, mandated by s. 48.9 (1) of the Act, to conduct as informally and expeditiously as the requirements of natural justice and rules of procedure allow. In particular, permitting the CCF to participate may require additional submissions to be made by all other participants who are adverse in interest. [8] Furthermore, as the Tribunal in Schnell v. Machiavelli and Associates Emprize Inc. [2001] C.H.R.D. No. 14 at para. 6 (CHRT) (QL) noted, interested party status will not be granted if it does not add significantly to the legal positions of the parties representing a similar viewpoint. As I have already indicated, the CCF's conclusions with regard to s. 13 of the Act reflect those of at least three of the parties already participating in this case. If the CCF has any specific arguments that if feels may be relevant to the constitutional issue, nothing prevents it from sharing them with the Respondent and any of the existing interveners so that they may be put before the Tribunal by these participants' more than able counsel and agents. [9] Finally, while I note that none of the participants has objected to the proposed intervention of the CCF, I believe that the absence of an objection is not determinative to the disposition of a motion that will impact on the efficient management of the hearing. [10] For these reasons, the CCF's request is denied. Signed by Athanasios D. Hadjis OTTAWA, Ontario May 16, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1073/5405 STYLE OF CAUSE: Richard Warman v. Marc Lemire RULING OF THE TRIBUNAL DATED: May 16, 2008 APPEARANCES: Richard Warman For himself Margot Blight 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

2008 CHRT 18

CHRT

Kelly v. Mohawk Council of Kahnawake

en

2008-05-27

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6690/index.do

2023-12-01

Kelly v. Mohawk Council of Kahnawake Collection Canadian Human Rights Tribunal Date 2008-05-27 Neutral citation 2008 CHRT 18 File number(s) T1268/8007, T1269/8107, T1270/8207 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MARGARET KELLY (STACEY) Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - MOHAWK COUNCIL OF KAHNAWAKE - and - COUNCIL OF ELDERS - and - DEPARTMENT OF INDIAN AND NORTHERN AFFAIRS CANADA Respondents RULING 2008 CHRT 18 2008/05/27 MEMBER: Athanasios D. Hadjis [1] The Department of Indian and Northern Affairs Canada (the Department), has made a motion requesting that the Tribunal exercise its discretion to refuse to hear the Complainant's current complaint on the basis that the same matter has already been disposed of and conclusively determined by the parties in 2003, when they signed a negotiated settlement in a case that involved the same parties and raised identical issues (Tribunal Number T683/7101). Background [2] In 1999, the Complainant filed human rights complaints against the Mohawk Council of Kahnawake (MCK) and the Department (then known as the Department of Indian and Northern Development). She alleged that the MCK refused to accept her as a Band member based on her family status, and that this refusal resulted in her being denied services from the MCK. She claimed that this denial of services constituted a discriminatory practice within the meaning of s. 5 of the Canadian Human Right Act. Furthermore, she alleged that the Department also discriminated against her by continuing to fund the MCK for the provision of these services that were allegedly being denied to her. [3] In 2003, the Complainant settled her complaints with the MCK and the Department. According to the Minutes of Settlement (Settlement Agreement), the Complainant agreed to release and forever discharge the Department from all manner of actions, claims or demands, of whatsoever kind or nature in any way connected with the matters alleged in the complaint against the Department. [4] The Settlement Agreement was later approved by the Commission, pursuant to s. 48(1) of the Act and, at the Commission's application, it was made an Order of the Federal Court, pursuant to s. 48(3) of the Act. [5] In 2005, the Complainant filed new complaints against the MCK and the Department. She also filed a compliant against the Council of Elders alleging that it had discriminated against her under s. 5 of the Act, in its determination on July 25, 2005, that she did not satisfy the membership criteria to be recognized as a member of the Band. In the 2005 complaint against the Department, the Complainant alleges that the discrimination against her by the Council of Elders was a direct result of the Department's allowance of this type of discrimination and its lack of intervention to prevent it. The Complainant also holds the Department responsible for the denial to her of services by the MCK. The res judicata issue [6] The Department contends that pursuant to the doctrine of res judicata, the Tribunal cannot revive or relitigate her claims against the Department as those issues were already raised in the 1999 complaint against the Department and were validly and conclusively settled in the Settlement Agreement. [7] For the doctrine of res judicata to apply: The same issues or cause of action must be decided in both proceedings; The decision which is said to create the estoppel must be a final decision; and The parties or their privies must be the same. (See O'Connor v. Canadian National Railways Co., 2006 CHRT 5 at para. 27.) [8] In the present case, the Department alleges that the Complainant has raised the same issues or causes of action in both complaints, centring on the Department's power and duty to intervene and prevent the MCK's discriminatory practices in the delivery or provision of services and benefits. [9] The Department asserts that its role has not changed since the first complaint was filed in 1999. There is no evidence before the Tribunal, however, at this stage of the case, to support this assertion. The parties have yet to even file their Statements of Particulars pursuant to the Tribunal's Rules of Procedure. [10] Furthermore, the Complainant has stated in the 2005 complaint that the Department's alleged discriminatory practice is linked to the decision by the Council of Elders to refuse her Band membership. The Department contends that the activities of the Council of Elders can be subsumed with those of the MCK and that thus, the parties and issues in both the 1999 and 2005 complaints are identical. There is no evidence before the Tribunal at this stage, however, to confirm this contention. [11] In addition, the Complainant refers, in the 2005 complaint, to a Membership Law that the MCK adopted in 2004 (after the Settlement Agreement), which has contributed to the discrimination that she has experienced, by failing to recognize her as a Band member. The Department responds that this new fact is not material, as the basic issues in the 1999 and 2005 complaints are the same, i.e., is it within the power of the Department or the Minister of Indian and Northern Affairs, under the Indian Act, to address the recognition of the Complainant as a member of the MCK Band? This question was resolved through the settlement, it is argued, and the doctrine of res judicata bars us from reconsidering it. In my view, however, the question regarding the Membership Act and its implications for this case is one that should be determined on the basis of an evidentiary record. [12] I therefore find that the preliminary exception raised by the Department is premature at this stage. I make a similar finding with respect to the Department's subsidiary submission that to continue with this matter would constitute an abuse of process. I am not ruling that the Department's allegations are without any merit, but the determination thereof requires a more complete record. [13] Therefore, while I am dismissing the Department's motion at this time, I reserve the Department's right to present a similar motion at a later stage in the hearing process. Signed by Athanasios D. Hadjis OTTAWA, Ontario May 27, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1268/8007, T1269/8107 and T1270/8207 STYLE OF CAUSE: Margaret Kelly (Stacey) v. Mohawk Council of Kahnawake, Council of Elders and Department of Indian and Northern Affairs Canada RULING OF THE TRIBUNAL DATED: May 27, 2008 APPEARANCES: Julius H. Grey / Isabelle Turgeon For the Complainant Daniel Poulin For the Canadian Human Rights Commission Mary Lee Armstrong For the Respondent (Mohawk Council of Kahnawake) No one appearing For the Respondent (Council of Elders) Virginie Cantave For the Respondent (Department of Indian and Northern Affairs Canada

2008 CHRT 19

CHRT

Mohamed, Abucar, Farah, Yusuf, Yusuf, Hagi, Hassan, Osman v. UPS Canada Ltd.

en

2008-06-04

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6692/index.do

2023-12-01

Mohamed, Abucar, Farah, Yusuf, Yusuf, Hagi, Hassan, Osman v. UPS Canada Ltd. Collection Canadian Human Rights Tribunal Date 2008-06-04 Neutral citation 2008 CHRT 19 File number(s) T1224/3607 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision status Interim Grounds Religion Sex Decision Content Between: Amina Mohamed, Suldana Hagi Abucar, Asha Farah, Nadifo Yusuf, Dales Yusuf, Anisa Hagi, Run Egal Hassan, Halimo Osman Complainants - and - Canadian Human Rights Commission Commission - and - UPS Canada Ltd. Respondent Ruling Member: Karen A. Jensen Date: June 4, 2008 Citation: 2008 CHRT 19 [1] The Complainants in this case have alleged that the Respondent discriminated against them on the basis of their religion by refusing to hire them or terminating their employment because they would not shorten the length of their skirts and/or wear pants on the job. The Complainants are devout practicing Muslim women. They cover their bodies, by among other things, wearing a long skirt and a headscarf. The original complaint form alleges discrimination on the basis of religion only. The Commission seeks to add discrimination on the basis of sex to the complaint. [2] In its motion, the Commission states that the proposed amendment arises out of the same set of factual allegations as the original complaints, and that it will not be putting forward any new facts to support the proposed amendment. On the basis of this assertion and the Commission’s indication that it intends to rely on the material filed by the parties in relation to the complaints, the Respondent, United Parcel Service, has not opposed the motion. [3] The Tribunal has discretion to amend complaints. The question is whether the proposed amendment would seriously undermine the fairness of the process. If a proposed amendment opens up a new and unanticipated route of inquiry, it will not usually be allowed. The practical issue is usually whether the respondent has had sufficient notice to meet the requirements of natural justice (Gaucher v. Canadian Armed Forces 2005 CHRT 1, at para. 18). [4] In the present case, the amendment sought would not alter the allegations of fact set out in the complaints. It would merely insert a reference to another ground of discrimination. This change does not put the Respondent at a disadvantage since the change has not altered the facts of the complaints. The allegations in the complaint encompass both gender and religion as the bases for the alleged discriminatory conduct. The Respondent has not indicated that it will suffer any prejudice as a result of the amendment. [5] Therefore, the Commission’s request to amend the complaint to add the allegation of discrimination on the basis of sex to the complaint is granted. Signed by Karen A. Jensen Tribunal Member Ottawa, Ontario June 4, 2008 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1224/3607 Style of Cause: Amina Mohamed, Suldana Hagi Abucar, Asha Farah, Nadifo Yusuf, Dales Yusuf, Anisa Hagi, Run Egal Hassan, Halimo Osmanv. UPS Canada Ltd. Ruling of the Tribunal Dated: June 4, 2008 Appearances: No submissions made, for the Complainants Ikram Warsame, for the Canadian Human Rights Commission Derek L. Rogers and Andrea York, for the Respondent

2008 CHRT 2

CHRT

Tourangeau v. Greyhound Canada Transportation Corporation

en

2008-01-11

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6838/index.do

2023-12-01

Tourangeau v. Greyhound Canada Transportation Corporation Collection Canadian Human Rights Tribunal Date 2008-01-11 Neutral citation 2008 CHRT 2 File number(s) T1198/1007 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content RACHEL TOURANGEAU Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - GREYHOUND CANADA TRANSPORTATION CORPORATION Respondent RULING 2008 CHRT 2 2008/01/11 MEMBER: Athanasios D. Hadjis [1] The Respondent, Greyhound Canada Transportation Corp. (Greyhound), alleges that the Complainant, Rachel Tourangeau, has shown complete indifference in the prosecution of her complaint and that as a result she has abandoned her claim. Greyhound has therefore moved to dismiss the complaint. Facts [2] Ms. Tourangeau filed her human rights complaint with the Canadian Human Rights Commission (Commission) on April 13, 2006. She alleged in her complaint that the staff at Greyhound's bus terminal in Fort McMurray, Alberta, subjected her to discriminatory treatment on the basis of her race and national/ethnic origin, when she attempted to pick up her ticket and board a bus, on March 10, 2006. [3] The Commission referred her complaint to the Tribunal on March 8, 2007, along with a form setting out the current contact information of the parties. The Tribunal, in turn, began contacting the parties as part of its case management process. Unfortunately, the Tribunal's attempts to reach Ms. Tourangeau at the address provided by the Commission proved fruitless. Letters that the Tribunal had mailed to her, which included notices convening her to participate in case management conference calls, were returned with an indication from the post office that she had moved. [4] The Commission informed the Tribunal that it did not know Ms. Tourangeau's new address but that it had managed to find the address of her daughter. The Commission suggested that this address be used as an alternate for the purpose of serving documents on Ms. Tourangeau. The Tribunal therefore sent a letter to Ms. Tourangeau, by courier, care of her daughter's address. The letter was returned to the Tribunal marked unclaimed. [5] On October 30, 2007, Greyhound filed its present motion with the Tribunal. Greyhound sent a copy of its Notice of Motion to Ms. Tourangeau care of her daughter's address by registered mail. This time, the document was accepted by her daughter, and on November 28, 2007, Ms. Tourangeau called the Tribunal to provide her current contact information. [6] On December 6, 2007, Ms. Tourangeau mailed her submissions in reply to the present motion in which she states that she is still interested in pursuing her complaint against Greyhound and that she is very sorry that the Tribunal was unable to reach her by mail or telephone. She explained that she was certain that she had given her new address to someone from Human Rights who had contacted her at an earlier point. Analysis [7] Greyhound contends that the Tribunal should dismiss the complaint due to Ms. Tourangeau's failure to advance her own complaint or to participate in the process in any manner since the very early stages of filing her complaint. [8] The Tribunal may dismiss an action for delay or want of prosecution in instances where there has been an inordinate and inexcusable delay that is likely to seriously prejudice the defendants or, alternatively, where the case has remained static for an unreasonable length of time, such that the delay constitutes an abuse of the Tribunal's process (see Johnston v. Canadian Armed Forces, 2007 CHRT 42 at paras. 29-34). [9] In my view, the facts of this case do not justify a dismissal. The 21 month period that has elapsed since the complaint was filed is neither inordinate nor unreasonable. I do not find the delay inexcusable either. Ms. Tourangeau claims that she had given her new contact information to someone from Human Rights. In this regard, Greyhound suggests that she probably provided that update after an earlier move. Greyhound referred me to a letter that a Commission-appointed conciliator had sent to Greyhound on January 24, 2007. In this letter, the conciliator wrote that he had been slow in following up on the file because Ms. Tourangeau had recently moved and it had taken him some time to get in touch with her. Greyhound surmises that, given the Commission's subsequent inability to provide the Tribunal with her current whereabouts, she must have moved again thereafter, without providing her new address to the Commission. That may well be, but there is no evidence before me to indicate that this failure to update the Commission was anything more than an error of omission on her part. The delay created by this error is not inexcusable. [10] I also draw no inference against Ms. Tourangeau from the fact that the letter sent by the Tribunal to her daughter was returned unclaimed, whereas Greyhound's Notice of Motion that was later sent to the same address was accepted. I note that Ms. Tourangeau's current address is hundreds of kilometres away from her daughter's. I do not think it appropriate to hold Ms. Tourangeau responsible for the fact that her daughter failed to claim the Tribunal's earlier letter from the post office, and forward it on to her mother. [11] Finally, I am not persuaded that Greyhound has been seriously prejudiced by the inconvenience it has experienced in this case, including participating in two case management conference calls that ultimately proved unproductive due to Ms. Tourangeau's absence. [12] For these reasons, Greyhound's motion is dismissed. Ms. Tourangeau is, however, directed to inform the Tribunal of any future changes regarding her contact information as soon as they occur. Signed by Athanasios D. Hadjis OTTAWA, Ontario January 11, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1198/1007 STYLE OF CAUSE: Rachel Tourangeau v. Greyhound Canada Transportation Corporation RULING OF THE TRIBUNAL DATED: January 11, 2008 APPEARANCES: Rachel Tourangeau For herself No one appearing For the Canadian Human Rights Commission Joyce Mitchell For the Respondent

2008 CHRT 20

CHRT

Warman v. Marc Lemire

en

2008-06-05

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6703/index.do

2023-12-01

Warman v. Marc Lemire Collection Canadian Human Rights Tribunal Date 2008-06-05 Neutral citation 2008 CHRT 20 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: June 5, 2008 Citation: 2008 CHRT 20 [1] This ruling is in regard to (i) the Respondent’s request that the deadlines for written submissions on final arguments be extended and that the hearing of final arguments be postponed to September 2008, and (ii) the request by the interested party Canadian Association for Free Expression (C.A.F.E.) that closing arguments be postponed in order to call at least seven more witnesses to testify while reserving the right to add further witnesses. [2] The present complaint was filed with the Commission on November 24, 2003. The Commission referred the complaint to the Tribunal on August 24, 2005. On November 25, 2005, the Respondent filed a Notice of Constitutional Question, indicating his intention to question the constitutional applicability, validity and effect of sections 13 and 54(1), (1.1) of the Canadian Human Rights Act. The Respondent proposed that the issue be argued as a preliminary motion. On December 6, 2005, the Respondent filed with the Tribunal his Notice of Motion on the constitutional issue together with his written submissions and Book of Authorities. On December 19, 2005, the Tribunal advised the parties that the motion would be dealt with at the hearing in the context of the factual framework of the case. [3] On February 3, 2006, the Attorney General of Canada exercised the right, pursuant to s. 57 of the Federal Courts Act, RSC 1985, c. F.7, to participate and adduce evidence at the hearing, as well as to make submissions, in respect of the constitutional question. In the meantime, a number of groups petitioned the Tribunal to be granted interested party status, including C.A.F.E. The Tribunal authorized the groups’ participation on February 2, 2006, (Warman v. Lemire, 2006 CHRT 8) but only regarding the constitutional issue. They were not to be permitted to overlap or repeat the evidence, cross-examination, or submissions of the Complainant, the Commission, the Respondent or the Attorney General of Canada. [4] The Tribunal allotted time to the interested parties and the Attorney General of Canada to file their Statements of Particulars, expert reports, and related documents pursuant to the Tribunal’s Rules of Procedure. During a case management conference held on May 19, 2006, all the parties provided their estimates for the duration of their evidence and their respective availabilities. Hearing dates were set down for a total of four weeks, extending over a period beginning on January 29, 2007, and ending on March 2, 2007. [5] On March 30, 2006, the Respondent wrote to the Commission requesting that documents relating to the activities of the Commission regarding hate on the Internet, beyond the scope of the present complaint, be disclosed on the ground that they were arguably relevant to the constitutional issue. In a subsequent letter dated April 28, 2006, the Respondent’s counsel said that it is obviously highly relevant to this challenge that it be seen how s. 13 operates within the context of the Canadian Human Rights Act and the Canadian Human Rights Commission’s broad powers and mandate. [6] The Commission questioned the arguable relevance of this material, arguing that the issue regarding the constitutionality of s. 13 is one of law and what was being requested went far beyond this scope, amounting to a fishing expedition. The Attorney General of Canada concurred, arguing that the Federal Court is the correct forum in which to raise the constitutional or any other legal challenge to the Commission’s exercise of discretion of the investigation of the complaint or to address any allegation of institutional or systemic bias on the part of the Commission towards those who advocate particular views. [7] The parties joined issue, therefore, on this disclosure question and after formal submissions were filed, the Tribunal issued a ruling on August 16, 2006 (Warman v. Lemire, 2006 CHRT 32), authorizing in part the disclosure being sought by the Respondent. It is noted in the ruling (at paras. 31-33) that the Respondent claimed that he was seeking this disclosure because he intended to argue that the deleterious effects of s. 13 of the Act may be so severe that the measure is not justified by the purposes it intends to serve, in reference to the proportionality test set out in R. v Oakes, [1986] 1 S.C.R. 103. The Respondent assured the Tribunal that it was not a review of the lawfulness of the Commission’s activities that he was seeking, but rather a review of whether the deleterious effects of the legislation on freedom of speech outweigh the salutary effects (para. 37). [8] The Tribunal found that the parties on each side of the issue raised interesting points that could be properly submitted before the Tribunal adjudicating on the merits of the constitutional challenge and the complaint as a whole (Warman v. Lemire, 2006 CHRT 32). [9] In the ensuing months, a debate developed between the Commission and the Respondent about whether the Commission’s disclosure of documents in respect of the Commission activities issue was complete. In replying to a motion that the Respondent had filed in this regard, the Commission presented supporting affidavits from two of its employees, Dean Steacy and Harvey Goldberg. On January 16, 2007, the Respondent informed the Tribunal of his intention to cross-examine Messrs. Steacy and Goldberg on these affidavits. He also asked that the proceedings, which were scheduled to begin two weeks later, be adjourned. [10] On January 26, 2007, the Tribunal advised the parties that all outstanding issues of disclosure and adjournment would be dealt with at the opening of the hearing, on January 29, 2007, in Toronto. On that first day, the Respondent requested subpoenas for Messrs. Steacy and Goldberg, as well as Ms. Hannya Rizk, another Commission employee, in order to have them testify. The Respondent amended his witness list to include these individuals. The Tribunal agreed to issue the subpoenas. Given that the hearing was about to begin, the Tribunal accepted the Respondent’s suggestion that those three witnesses testify in Ottawa, where they reside, during a one-day hearing to be held following the four weeks that had already been scheduled. [11] Several weeks later, as the hearing was progressing, the parties indicated to the Tribunal that it would be preferable to reserve separate hearing dates for final arguments, some time after the close of evidence, in order to better enable the parties to prepare and organize their submissions. Three days (May 9 to 11, 2007) were therefore set aside for that purpose. [12] The initial four weeks of hearings, held in Toronto and Mississauga, ended on March 1, 2007, the parties declaring that there would be no other witnesses called other than the three who remained to testify in Ottawa (Mr. Steacy, Mr. Goldberg and Ms. Rizk). Although one day had originally been set aside for their evidence, due to Ms. Rizk’s unavailability, the three days in May that had been previously reserved for final arguments were reallocated to hearing the witnesses. Ms. Rizk testified on May 9, 2007, and Mr. Steacy testified on May 10, 2007. The May 11th date was cancelled due to the illness of Commission counsel. Mr. Goldberg, therefore, testified over a three-day period, from June 25 to 27, 2007, the three new days that had been set for arguments after the May 9 to 11 dates had been reallocated to hear witnesses. Thus, the one extra day that had been originally allocated to hear three witnesses ending up being extended to five days. [13] Pursuant to undertakings made during Mr. Goldberg’s testimony, the Commission disclosed, in July 2007, a series of documents, said to number 300 pages in total. [14] During the course of Mr. Steacy’s and Ms. Rizk’s testimonies, the Commission made a number of objections under s. 37 of the Canada Evidence Act. As the Federal Court has the exclusive authority to rule on such objections, the questions objected to remained unanswered. [15] On May 17, 2007, the Respondent filed an application to the Federal Court for adjudication of the s. 37 objections, and on July 5, 2007, the Respondent sought an adjournment of proceedings sine die from the Tribunal, pending the outcome of the Federal Court application. On August 17, 2007, the Tribunal granted the Respondent’s request for an adjournment (Warman v. Lemire, 2007 CHRT 37). The Tribunal noted that had any of the parties indicated that they had any other evidence to adduce, aside from that which related to the s. 37 objection, the Tribunal would have continued the hearing pending the outcome of the Federal Court application, but that was not the case. [16] The Federal Court ultimately ruled, on January 15, 2008, that it could not properly consider the s. 37 application, given the Commission’s disclosure a few weeks earlier of the information regarding which the Commission had previously invoked s. 37. [17] Consequently, the Tribunal directed that Ms. Rizk and Mr. Steacy could be recalled by the Respondent to testify and answer the previously objected to questions and any follow-up questions directly related to those answers. Both Ms. Rizk and Mr. Steacy therefore testified on March 25, 2008. [18] On March 31, 2008, the Respondent petitioned the Tribunal for an order that the Commission disclose additional documents and information. The Commission replied on April 10, 2008, that it did not oppose the order sought, although it noted that the records responsive of the request will be of little or no relevance. [19] The Commission sent a portion of the documents to the Respondent and other parties on April 25, 2008, and the remaining portion of ten additional pages was sent on May 1, 2008. The Commission had redacted some information from these documents, including the names and contact information of some individuals. On May 5, 2008, the Respondent contested these redactions and sought their full disclosure in original form. The Tribunal will be addressing this request in a separate ruling. The Respondent also sought an order to have final arguments, which had been rescheduled for June 11 to 13, 2008, postponed again to a later date to allow the Respondent to obtain disclosure of the documents in their original form and to apply to enter the documents as exhibits in the case. [20] On May 12, 2008, the Tribunal agreed to extend the dates. The parties were asked to provide the Tribunal with their availability in the weeks of July 7th and 14th, 2008, for final arguments. The Tribunal also authorized the Respondent to file any of the recently disclosed documents directly into evidence by submitting them to the Tribunal Registry in a binder. [21] The Respondent was apparently not satisfied with the extension given. On May 13, 2008, the Respondent wrote again to the Tribunal requesting a further extension for written submissions to August 2008 and carrying forward the hearing on final arguments to September 2008. His counsel pointed out that the case involves thousands of pages of exhibits and transcripts and she would have difficulty meeting her deadlines. She added that she is working alone while some of the other parties have the benefit of having more than one counsel assigned to the case. [22] Parallel to the Respondent’s requests for extensions, the interested party C.A.F.E. was making its own requests. On May 5, 2008, the interested party C.A.F.E. informed the Tribunal that it supported the Respondent’s request for the suspension of deadlines until at least the autumn and made a demand that the hearing be re-opened to hear further testimony occasioned by the material in the last minute disclosures or that may be revealed in the unredacted disclosures that were being sought by the Respondent. [23] On May 13, 2008, the interested party C.A.F.E. made a formal motion of its own to postpone closing argument dates and to call additional witnesses. The interested party C.A.F.E. also made a motion to argue Apprehension of Bias by the Tribunal member in this case. This latter motion will be dealt with in a separate ruling. [24] The interested party C.A.F.E. states in its motion that it proposes calling at least seven witnesses, including Mr. Steacy and Mr. Goldberg. The interested party C.A.F.E. also reserves itself the right to add further witnesses. The reason given for its request is the extremely late and incomplete disclosure by the Commission. The interested party C.A.F.E. also raises the ridiculous obstruction by Mr. Steacy, who has restricted vision, in not bringing his assistant along when he testified on March 25, 2008, thus forcing counsel to read documents to him. One must wonder, however, how using the intermediary of the assistant to read the documents to him would have been any faster. [25] The alleged late and incomplete disclosure consists of the documents communicated in July 2007 after Mr. Goldberg testified and the documents that the Commission provided in April/May 2008, pursuant to the Respondent’s March 31, 2008 letter. Analysis [26] As I already indicated, this complaint was referred to the Tribunal almost three years ago. Section 48.9 (1) of the Canadian Human Rights Act provides that proceedings before the Tribunal shall be conducted as informally and expeditiously as the requirements of natural justice and the rules of procedure allow. There is a duty upon human rights tribunals, and other tribunals as well, to ensure the timely disposition of complaints, a point that was highlighted by the Nova Scotia Court of Appeal in Nova Scotia Construction Safety Association v. Nova Scotia Human Rights Commission, 2006 NSCA 63, at paras. 76-7: [76] Recognizing the well known principle that a key objective of human rights legislation is to be remedial, the process for inquiring into and exposing acts of discrimination must be expeditious in order to be effective. Otherwise, the salutary benefit of public scrutiny, enlightenment and appropriate redress in the face of proved violations, is lost. An efficient and timely disposition of complaints is in the interest of both complainants and those whose behaviour is impugned. It is also in the public interest. People and businesses need to get on with their lives. Unlike fine wine, protracted human rights litigation does not improve with age. [77] In this I find the observations of LeBel, J., although in dissent, in [Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44,] especially apt: 140 Unnecessary delay in judicial and administrative proceedings has long been an enemy of a free and fair society. At some point, it is a foe that has plagued the life of almost all courts and administrative tribunals. It’s a problem that must be brought under control if we are to maintain an effective system of justice, worthy of the confidence of Canadians. ... [27] More recently, in a case dealing with the judicial review of a Tribunal decision, Canada Post v. P.S.A.C. 2008 FC 223 at paras. 264-5, the Federal Court made similar observations, noting that a legal hearing without discipline and timeliness both delays and denies justice. The Court went on to recite the well-known axiom, justice delayed is justice denied, adding that a fair hearing is not a continuous process. A fair hearing is one where a party knows the case against it and has an opportunity of addressing that case within a reasonable time, at which point the Tribunal has a duty to adjudicate upon the case. [28] These observations by the courts have been reflected in the Tribunal’s Practice Note No. 1, entitled Timeliness of Hearings and Decisions, which is found on the Tribunal’s website, http://www.chrt-tcdp.gc.ca/about/tribunalrules_e.asp. The Practice Note concludes with a reminder to all participants in Tribunal inquiries of their obligation to assist in the timely completion of the hearing and deliberation process and of the Tribunal’s intention to adhere firmly to Parliament’s directive in subsection 48.9(1) of the Act. [29] There is another compelling reason to move in a timely manner that is specific to this case. As the Respondent noted in his submissions, a judicial review of a Tribunal decision is currently before the Federal Court, the proceedings of which have been stayed since April 2, 2007, pending the disposition of the present case (Kulbashian v. Canada (Human Rights Commission), 2007 FC 354). The Court indicated that the outcome of the present hearing and any subsequent application for judicial review will provide it with guidance in deciding the Kulbashian case. I also understand that in at least one other s. 13 case currently pending before the Tribunal, the portion of the hearing dealing with a similar constitutional challenge has also been deferred, pending the outcome of this case. Thus, the longer it takes for the present case to run its course, the longer these - and perhaps other cases - will remain pending. [30] The parties in the present case, including the interested parties, confirmed to the Tribunal that they had no intention to call any other witnesses after the testimonies of the three Commission employees, which would have been completed on June 27, 2007, after Mr. Goldberg’s evidence, were it not for the s. 37 objections and ensuing application to the Federal Court for determinations thereof. [31] The interested party C.A.F.E. claims that witnesses should be recalled and new ones summoned because of the late disclosure of documents arising from Mr. Goldberg’s evidence. However, those documents have been in C.A.F.E.’s possession since July 2007. No request ever came to call new evidence in this regard until the last few weeks. The Tribunal did receive a request from the Respondent that these documents be entered directly into the record without the necessity of recalling the witness, and that request was granted. The communication of documents by the Commission in July 2007 does not, therefore, justify the recall of witnesses and calling of new witnesses at this stage. [32] With respect to the documents provided in April and May 2008, the Tribunal has allowed their entry into evidence as well. More importantly, I have looked at all of these documents and quite simply, the documents speak for themselves. A portion of them are emails made by Mr. Steacy under an assumed name, similar to those upon which he testified. The remaining documents, which make up the bulk of the material in question, demonstrate that the Commission cooperates with several community groups and police services on matters relating to s. 13. These are basically the facts alleged in the Respondent’s Amended Statement of Particulars dated December 18, 2006, at paragraph 75, in support of his arguments on the constitutional issue: 75. The Commission itself states that the complaint process is only one part of what it terms the broader fight against hate motivated activity in Canada. It works with ISP’s, NGO’s, the police and government departments in extra-judicial ways to stop the viewpoints which it deems to be hate. It is empowered by its legislation to undertake this destruction of free speech behind closed doors in private meetings and with favoured groups and organizations. The Commission works closely with Edmonton, Alberta and London, Ontario Police Hate Crime Units, among others, to seize computers and evidence in raids on the homes of people whom Mr. Warman has filed complaints against. This evidence is later used at Tribunal hearings. Section 13 is being used as a de facto criminal provision, using the police power of search and seizure to obtain evidence. Most of these people are never subsequently charged under the Criminal Code. Furthermore, ample evidence of the cooperation between the Commission and police services as well as community groups has already been adduced during the earlier hearings. I do not see why this evidence needs to be revisited. As the Supreme Court noted in R. v. Malmo-Levine; R. v. Caine, 2003 SCC 74, at para. 27, a trial judge is not required to listen to repetitive evidence that does not advance the work of the court. [33] What remains, therefore, to be determined is whether, on the one hand, the impugned Commission activity is evidence that the deleterious effects of s. 13 on freedom of speech are so severe that they outweigh the salutary effects, as the Respondent and some of the interested parties contend, or whether on the other hand, evidence of such activity has no bearing on the proportionality analysis to be conducted under s. 1 of the Canadian Charter of Rights and Freedoms, as the Commission, the Attorney General, the Complainant and the other interested parties contend. This question will be addressed in final arguments, as I have said repeatedly during the case whenever I have ruled, over the emphatic objections of the Commission and the Attorney General, that this sort of evidence can be adduced. [34] The interested party C.A.F.E.’s motion to recall witnesses and call additional witnesses is therefore dismissed. [35] With respect to the Respondent’s motion for an extension beyond the one which was already granted earlier this month, the Tribunal is obviously mindful of the significant amount of letters, motions, exhibits, and other documents exchanged in this case and particularly over the last few weeks. The Tribunal is also aware that the July hearing dates that it suggested to the parties in response to the extension requests were determined without any prior consultation with the parties as to their specific availability for three consecutive days during the weeks in July that the Tribunal is available. What is of fundamental importance to the Tribunal at this stage is ensuring that parties and their counsel be fully prepared to present all of their arguments to the Tribunal on all of the significant questions of law and fact in this case. In the circumstances, but in keeping with the requirement for an expeditious yet fair process, I see no harm in granting an extension for a few more weeks, thereby ensuring everyone’s total preparation and availability for final arguments. [36] As a result, the deadlines for written submissions can be rescheduled as well. The Attorney General has indicated that he takes exception to the accordance of additional time to the other parties to prepare their written submissions, claiming that unfairness would arise from their having viewed his submissions, which he filed on schedule on May 9, 2008. With respect, I do not see the prejudice. The whole point of the exercise is to place material before the Tribunal so that it may better understand the positions of the parties, particularly as they are presented during their oral arguments. If the Attorney General feels it important to supplement its submissions due to the subsequent filings by the others, he may do so in accordance with the deadlines outlined in the following schedule: The Complainant and Canadian Human Rights Commission will file their submissions on the merits by August 6, 2008; The Complainant, the Canadian Human Rights Commission, and the Respondent will file their submissions on the constitutional issue by August 6, 2008; The Respondent will file his submissions on the merits by August 22, 2008; With regard to the constitutional issue, the responding submissions of the main parties (and this of course would include the Attorney General of Canada, in reference to my earlier comments) and the principal submissions of the interested parties will be filed by August 22, 2008. [37] The parties are to provide the Tribunal registry with their dates of availability in the weeks of September 8 or 15, 2008, for a hearing to be conducted in the western sector of the Greater Toronto Area. Signed by Athanasios D. Hadjis Tribunal Member Ottawa, Ontario June 5, 2008 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1073/5405 Style of Cause: Richard Warman v. Marc Lemire Ruling of the Tribunal Dated: June 5, 2008 Appearances: Richard Warman, for himself Margot Blight, 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

2008 CHRT 21

CHRT

Walden et al. v. Canada (Social Development)

en

2008-06-06

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6704/index.do

2023-12-01

Walden et al. v. Canada (Social Development) Collection Canadian Human Rights Tribunal Date 2008-06-06 Neutral citation 2008 CHRT 21 File number(s) T1111/9205, T1112/9305, T1113/9405 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content RUTH WALDEN ET AL. Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - SOCIAL DEVELOPMENT CANADA, TREASURY BOARD OF CANADA, AND PUBLIC SERVICE HUMAN RESOURCES MANAGEMENT AGENCY OF CANADA Respondents RULING 2008 CHRT 21 2008/06/06 MEMBER: Karen A. Jensen [1] On December 13, 2007, the Tribunal issued a decision in which it found that the Respondents have been discriminating against the Complainants by treating them differently from the male-dominated group of medical advisors working in the CPP Disability Benefit Program, who perform substantially similar work to that of the Complainants. In particular, the Tribunal held that the Respondents' refusal, since March of 1978, to recognize the professional nature of the work performed by the medical adjudicators in a manner proportionate to the professional recognition accorded to the work of the medical advisors, was discriminatory. Upon the request of the parties, the Tribunal declined to order a remedy for the discriminatory practice. It gave the parties time to negotiate a remedy, failing which the Tribunal would make a conclusive determination after providing the parties with an opportunity to present evidence if necessary, and argument. The parties were unsuccessful in reaching an agreement. Therefore, a hearing was set for the week of July 28 - August 1, 2008. [2] The Respondents have brought a motion requesting permission to lead evidence on their proposal for redressing the discriminatory practice. They would also like to adduce evidence with regard to whether the discriminatory practice resulted in any wage loss to the Complainants and, if so, what the basis for calculating the loss should be. Evidence Regarding the Proposal to Redress the Discriminatory Practice [3] The Respondents' proposal to redress the discriminatory practice identified in the December 13, 2007 decision of the Tribunal is that a new Nursing (NU) classification be created within the Health Services (SH) Group which would include medical adjudicators. There are currently two sub-groups under the NU classification: Hospital Nursing (HOS) and Community Health Nursing (CHN). The proposal would see a third sub-group added to the NU Classification. [4] The Respondents assert that the Tribunal needs to hear from Patricia Power, Senior Advisor to the Vice-President of Strategic Infrastructure, Organization and Classification Sector, Canada Public Service Agency and Charles Tardiff, Project Coordinator and Senior Researcher, Expenditure Analysis and Compensation, Planning Division, Treasury Board Secretariat, to understand why the discriminatory practice is best redressed by the creation of a third NU sub-group for the medical adjudicators. [5] Counsel for some of the Complainants and the Canadian Human Rights Commission are both in disagreement with the Respondents' position. They contend that a new NU category is not appropriate. Rather, the medical adjudicators and medical advisors must share a classification standard, although they may be separated by different levels within that classification. Both parties argue that this remedy is implicit in the Tribunal's December 13, 2007 decision. They contend that nothing further is needed than an order from this Tribunal requiring the creation of a new classification standard that encompasses the work of both the adjudicators and the advisors. Treasury Board must then exercise its exclusive authority to classify positions within the Federal Public Service to create this classification standard. There is no need, according to the Complainants and the Commission, for further evidence on this issue. [6] I agree with the Respondents that they should be permitted to adduce evidence regarding their proposal for redressing the discriminatory practice. In paragraph 138 of the December 2007 decision, I provided examples of the action that Treasury Board might have taken to address the concerns that had been raised over the years by the adjudicators about the classification of their position. However, the examples in that paragraph were not provided as possible remedies for the discriminatory practice that was found to exist in the December 2007 decision. Indeed, I left that issue open for the parties to negotiate or, in the event that they were unsuccessful, for the Tribunal to conclusively determine after the parties had been given a chance to adduce further evidence (if necessary) and make submissions. [7] The Respondents have a proposal regarding the remedy that they think is most appropriate in the circumstances. Ms. Power and Mr. Tardiff will provide evidence to support that proposal. The Complainants are free to challenge the evidence and the proposal as well as arguing that their position is preferable to that of the Respondents. The Complainants are certainly free to call evidence of their own should they see fit. However, it would be unfair for the Tribunal to deny the Respondents the opportunity to call evidence and make arguments with respect to their proposal, given that the December 2007 decision did not provide an indication of what the appropriate remedy would be and indeed, left open the option of presenting evidence and argument on that issue. Evidence Regarding the Existence of and Compensation for Wage Loss Resulting from the Discriminatory Practice [8] In order to calculate compensation for any lost wages which may have resulted from the Respondents' discriminatory practice, the adjudicators' wages must be compared to the wages of an appropriate comparator group. The Respondents assert that the appropriate comparator group is the NU-CHN-02 or NU-CHN-03 position, not the medical advisors, to whom the Tribunal compared the work of the adjudicators in the December 2007 decision. They base this assertion on the fact that in the December 2007 decision, the Tribunal found the work of the adjudicators and advisors to be sufficiently different to justify a different level of classification and a difference in salary and benefits. Therefore, according to the Respondents, the medical advisor position is not an appropriate comparator. The Respondents assert that their position is further supported by the Tribunal's decision to bifurcate the hearing, and the fact that the medical adjudicators have, until recently, sought recognition as nurses. [9] In my view, it is both appropriate and necessary to engage in a comparison of the wages and work of the advisors and the adjudicators for the purpose of determining whether a wage loss has resulted from the discriminatory practice. Section 53(2)(c) of the Canadian Human Rights Act provides the Tribunal with the authority to compensate the victim(s) for any or all of the wages that the victim(s) were deprived of as a result of the discriminatory practice. The discriminatory practice that was identified by the Tribunal in the December 2007 decision was not the Respondents' refusal to classify the adjudicators as nurses. Rather, the Tribunal found that the Respondents are pursuing a discriminatory practice of treating the advisors and the adjudicators as though they were doing different work even though they were doing substantially similar work, and classifying them accordingly (Walden et al v. Social Development Canada et al, 2007 CHRT 56, at paras. 11, 95 and 143). The remedy must flow from the differential treatment of the adjudicators relative to the advisors. This requires a comparison of the relative value of the work performed by the adjudicators and the advisors. [10] However, a determination of the value of the work performed by the adjudicators relative to the advisors does not preclude a comparison of the value of the adjudicators' work to the value of other positions such as the NU-CHN-02 and NU-CHN-03 positions. It may be that the comparison between the advisors and the adjudicators reveals that the value of the adjudicators' work is equivalent to that of the NU-CHN-02 or NU-CHN-03. In that case, the Respondents might argue that the adjudicators' wage loss should be determined on the basis of a comparison with the wages of the CHN positions at the relevant time. The Complainants and the Commission are, of course, free to lead evidence of a different nature and to argue that the wage loss should be differently calculated. [11] It would be of assistance to the Tribunal to hear testimony from a job evaluation expert regarding the various means of determining the value of the adjudicators' work relative to that of the advisors. Therefore, the Tribunal grants the Respondents' request to open the hearing to receive evidence from a job evaluation expert on the understanding that the appropriateness of using the medical advisor position as a comparator must be addressed. Pain and Suffering [12] In the December 2007 decision, the Tribunal found that some compensation should be provided to the Complainants pursuant to s. 53(2)(e) of the Act for the pain and suffering that they experienced as a result of the discriminatory practice. The Tribunal left the quantum of this award to be negotiated by the parties or to be determined by the Tribunal if no agreement was reached. The parties have been unable to agree to the quantum and therefore, this matter will be determined following the hearing on remedy. [13] The Tribunal is in agreement with the parties that no further evidence is needed on this point. However, to assist in the determination of the quantum, it would be helpful to have a complete list of the Complainants (both unrepresented and represented by counsel) with the start and end dates (in the event that they are no longer employed there) of their employment with the CPP Disability Benefit Program. Signed by Karen A. Jensen OTTAWA, Ontario June 6, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1111/9205, T1112/9305 and T1113/9405 STYLE OF CAUSE: Ruth Walden et al. v. Social Development Canada, Treasury Board of Canada and Public Service Human Resources Management Agency RULING OF THE TRIBUNAL DATED: June 6, 2008 APPEARANCES: Lawrence Armstrong For the Complainants Ikram Warsame For the Canadian Human Rights Commission Patrick Bendin/Claudine Patry For the Respondents

2008 CHRT 22

CHRT

Warman v. Marc Lemire

en

2008-06-09

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6707/index.do

2023-12-01

Warman v. Marc Lemire Collection Canadian Human Rights Tribunal Date 2008-06-09 Neutral citation 2008 CHRT 22 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: June 9, 2008 Citation: 2008 CHRT 22 [1] On May 16, 2008, the British Columbia Civil Liberties Association (BCCLA) applied for leave to intervene in the Constitutional Challenge of ss. 13 and 54 of the Canadian Human Rights Act before this Tribunal. It is seeking permission to file a written argument, introduce evidence, receive and reply to all other parties’ arguments and evidence regarding the proper interpretation of ss. 13 and 54, to cross-examine witnesses and to present oral argument. The BCCLA does not anticipate calling witnesses but requests permission to apply for the right in the future. [2] The Commission, the Complainant and the Attorney General of Canada have objected to the BCCLA’s request. [3] As was noted in the Tribunal’s recent ruling in the present case, which dealt with a similar request by the Canadian Constitutional Foundation (CCF) (Warman v. Lemire, 2008 CHRT 7), the Tribunal has wide discretion with respect to the granting of interested party status. Just like the CCF, however, the BCCLA has made its request extremely late in this hearing’s process, as we approach the dates for final oral submissions, after having heard over five weeks of evidence. The present circumstances thus differ significantly from those that were before the British Columbia Human Rights Tribunal, which recently granted the BCCLA intervenor status before the commencement of the hearing (Elmasry v. Roger’s Publishing Ltd., 2008 BCHRT 199). [4] The BCCLA claims that it had intended to seek interested party status in the present case as early as 2006 but that it was unable to secure legal counsel to represent it. That may well be, but the fact remains that its request actually arrived in May 2008. The concerns and issues raised by the Tribunal in the earlier ruling denying the CCF’s request to intervene at this late stage apply equally to the BCCLA. [5] As was noted in that ruling as well, nothing prevents the BCCLA from sharing any specific arguments that it feels are relevant to the constitutional issue with those parties in this case who are challenging the constitutionality of ss. 13 and 54. [6] The British Columbia Civil Liberties Association’s request is therefore denied. Signed by Athanasios D. Hadjis Tribunal Member Ottawa, Ontario June 9, 2008 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1073/5405 Style of Cause: Richard Warman v. Marc Lemire Ruling of the Tribunal Dated: June 9, 2008 Appearances: Richard Warman, for himself Margot Blight, 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

2008 CHRT 23

CHRT

Hunt v. Transport One Ltd.

en

2008-06-10

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6708/index.do

2023-12-01

Hunt v. Transport One Ltd. Collection Canadian Human Rights Tribunal Date 2008-06-10 Neutral citation 2008 CHRT 23 File number(s) T1191/0307 Decision-maker(s) Jensen, Karen A. Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE NANETTE HUNT Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - TRANSPORT ONE LTD. Respondent DECISION 2008 CHRT 23 2008/06/10 MEMBER: Karen A. Jensen [1] Nanette Hunt brought a complaint against her former employer, Transport One Ltd., alleging that she was sexually harassed by Harry Wadhwa, the General Manager of Transport One Ltd., and Wayne Dibbley, a dispatcher with Transport One Ltd. [2] No one appeared at the hearing on behalf of the Respondent, Transport One Ltd. Moreover, the Respondent did not participate in the case conferences that were held prior to the hearing. The Tribunal sent numerous letters by courier and mail to two addresses in Windsor, Ontario informing Mr. Wadhwa about the case conferences and the hearing into this matter. [3] Notwithstanding the Tribunal's efforts to invite the Respondent's representative(s) to participate in the case management and inquiry process, they chose not to respond to the Tribunal, to present themselves for the case management conferences or to appear for the hearing. [4] Rule 9(8) of the Tribunal's Rules of Procedure authorizes the Tribunal to proceed with an inquiry into the complaint even though a party fails to appear before the Tribunal where the Tribunal is satisfied that the party received proper notice of the hearing. Although the rules cannot expand the Tribunal's legal authority, they do serve as notice to the parties of measures that may be taken by the Tribunal in conducting an inquiry into the complaint. [5] The Tribunal was satisfied that the Respondent received proper notice of the hearing, and therefore, that it was fair to proceed with the hearing in the absence of the Respondent. [6] At the hearing, Ms. Hunt testified about the incidents that gave rise to the filing of her complaint on September 19, 2005. Although she was not cross-examined since the Respondent did not appear at the hearing, I found Ms. Hunt's testimony to be forthright, sincere and consistent; I found her to be a credible witness. There were no other witnesses. [7] The Canadian Human Rights Commission did not appear at the hearing. [8] Ms. Hunt testified that on July 14, 2005, she was hired by Mr. Harry Wadhwa as an office manager for a new transportation brokerage company by the name of Transport One Ltd. located in Windsor, Ontario. Ms. Hunt started work on July 25, 2005. In the beginning, the only people working at Transport One Ltd. were Ms. Hunt and Mr. Wadhwa. However, shortly after she was hired, Mr. Wadhwa hired Mr. Wayne Dibbley as a dispatcher. Later, Mr. Wadhwa hired Mr. Mike Bronson to be the Sales Manager of Transport One Ltd. [9] Ms. Hunt, Mr. Wadhwa, Mr. Dibbley, and then latterly, Mr. Bronson, all worked together in a 40 foot trailer. The legal relationship between Harry Wadhwa and the Respondent Transport One Ltd. was unclear. At the hearing, Ms. Hunt adduced evidence that Mr. Wadhwa's parents owned the property on which the trailer was parked. Ms. Hunt thought that Mr. Wadhwa shared ownership of the company with his parents. She said that Mr. Wadhwa ran the operation, and that his parents were not involved in the day-to-day functioning of the business. On the basis of this evidence, I find that, at the very least, Mr. Wadhwa acted as the agent of the Respondent Corporation in hiring employees and in directing the overall operations of Transport One Ltd. [10] Ms. Hunt's office was at the east end of the Transport One Ltd. trailer/office. Her computer was the only one that had Internet access. As a result, Mr. Wadhwa and Mr. Dibbley often leaned over her to view her monitor or asked Ms. Hunt to get out of her chair so that they could use her computer to gain access to the Internet. [11] On August 18, 2005, Mr. Dibbley and Ms. Hunt were working alone in the Transport One Ltd. trailer/office. Mr. Dibbley began making comments of a sexual nature about Ms. Hunt's physical appearance, stating, among other things, that she looked good in jeans and that he liked it when she bent over her desk. Ms. Hunt ignored the comments and continued to do her work, hoping that Mr. Dibbley would stop. [12] On August 18, Ms. Hunt was wearing a jacket with a t-shirt underneath. The jacket zipper was ¾ of the way down. After making the comments noted above, Mr. Dibbley came up behind Ms. Hunt and reached around in front of her. He grasped the zipper on her jacket and began pulling it up. As he did so he rubbed her breasts. In an angry voice, Ms. Hunt asked him what he was doing. Mr. Dibbley replied that her chest was distracting him. He then went over to the trailer door, opened it and stood on the threshold staring at Ms. Hunt. Mr. Dibbley told Ms. Hunt that he needed some fresh air to settle down what was happening in his pants. After that, he left the trailer for a few minutes. [13] When he came back into the trailer later that same morning on August 18, 2005, Mr. Dibbley approached Ms. Hunt again and told her to unzip her zipper stating that he liked the view better that way. He kept staring at her chest area and making sexual comments. Ms. Hunt testified that she was visibly upset; she was crying and sulking. She said she felt sick and on the verge of vomiting at work. She was outraged by Mr. Dibbley's behaviour. [14] In the afternoon of August 18, Mr. Wadhwa called Ms. Hunt at the office and asked her to drive over to his house and take him to work. Ms. Hunt complied with the request. She stated that after she returned to the office with Mr. Wadhwa, she was still very upset about the events of the morning; she was crying and sulking. Ms. Hunt left the trailer at one point during the afternoon of August 18 because she was so upset. While she was standing outside the trailer crying, Mr. Wadhwa approached her. He put his arm around her and told Ms. Hunt that all she needed was a good man to give it to her. [15] Ms. Hunt did not testify about her response to Mr. Wadhwa's embrace and comment. She was unrepresented during the hearing and at times, clearly found it difficult to relate her experiences to the Tribunal without assistance. It was also apparent to me that Ms. Hunt did not think that she needed to go into all of the details of her complaint because they were in the complaint form that she had submitted to the Commission. [16] In her complaint, Ms. Hunt said that she responded to Mr. Wadhwa's suggestion that all she needed was a good man to give it to her by asking him if he knew one (a good man). His reply was plenty, pointing to himself as he spoke. Ms. Hunt stated in her complaint that at that point, she turned and walked back into the office, grabbed her keys and left. [17] I accept the information in Ms. Hunt's complaint as sufficiently reliable to fill the gap left in her testimony regarding her response to Mr. Wadhwa. Although Ms. Hunt did not seek to have her complaint entered into evidence, the Tribunal is entitled, pursuant to s. 58(3)(c) of the Act, to accept information where it sees fit even if that information would not be admissible in a court of law. The complaint form is signed by Ms. Hunt and dated September 19, 2005, a short time after the incidents occurred. The information in the complaint was therefore produced while it was still fresh in her memory. For these reasons, I have accepted the information provided therein with regard to this particular incident. [18] Ms. Hunt testified that on August 19, 2005 she again found herself working alone with Mr. Dibbley. She stated that Mr. Dibbley kept coming over to her desk, asking her to move, brushing up against her or reaching around her. That morning, Mr. Wadhwa again called to ask Ms. Hunt to drive him to work. When Ms. Hunt attempted to leave the trailer to go pick Mr. Wadhwa up, Mr. Dibbley blocked her way to the door with his arm. She attempted to get past him several times, but he would not let her pass. Ms. Hunt then used more force to push her way past Mr. Dibbley, but as she did so Mr. Dibbley rubbed her breast and stomach area. Ms. Hunt was extremely upset by this incident. [19] When she picked Mr. Wadhwa up from his home, Ms. Hunt told him what had happened and how upset she was about it. Mr. Wadhwa's response was that it'll be o.k.. [20] Upon her arrival at work on August 22, 2005, Ms. Hunt learned that Mr. Dibbley had been assigned to do dispatch work in the afternoons. This meant that she would see less of Mr. Dibbley in the foreseeable future. However, she was still worried about what might happen with Mr. Wadhwa. [21] On August 24, 2005 Ms. Hunt told Mr. Bronson, now general manager, how upset she was about the treatment she was receiving, and that she was going to look for a new job. Mr. Bronson encouraged her to stay at Transport One Ltd., stating that things would improve. He did not explain to her what he meant by this comment. Ms. Hunt decided to terminate her employment with Transport One Ltd. later that day, when Mr. Wadhwa called her a fucking idiot because she could not find a post-it note that she had placed on her computer. [22] As noted, the Respondent did not appear at the hearing and therefore, did not provide a response to the version of events conveyed by Ms. Hunt concerning her five weeks' of employment at Transport One Ltd. Sexual Harassment [23] Section 14(1)(c) of the Canadian Human Rights Act stipulates that it is a discriminatory practice to harass an individual on the basis of a prohibited ground of discrimination in matters related to employment. Section 14(2) deems sexual harassment to be harassment on the basis of a prohibited ground of discrimination. [24] Sexual harassment has been defined as unwelcome conduct of a sexual nature that is detrimental to the work environment (Janzen v. Platy Enterprises, [1989] 1 S.C.R. 1252 at p. 1284). In order to determine if the conduct is unwelcome, the Tribunal will look at the complainant's reaction at the time the incident occurred and assess whether she expressly, or by her behaviour, demonstrated that the conduct was unwelcome. A verbal no will not be required in all cases (Canada (Canadian Human Rights Commission) v. Franke, [1999] 3 F.C. 653 (T.D.) at para. 36). Nonetheless, the complainant must establish, for instance by her body language or by her repetitive failure to respond to suggestive comments, that she had in some way signaled to the harasser that his conduct was unwelcome. A sexual advance may incite a strong refusal and outrage or may be met with stony silence and evasion. Both responses signal unwanted or unwelcome behaviour (Miller v. Sam's Pizza House, [1995] N.S.H.R.B.I.D. No. 2 (Q.L.). [25] The second element of the definition requires the conduct to be sexual in nature. Human rights tribunals have recognized a broad scope of conduct which may fall under the definition of sexual harassment, depending on the circumstances, including gender-based insults, sexist remarks, comments about a person's looks, dress, appearance or sexual habits (Franke, at para. 37). [26] Finally, fairness requires the employee, whenever possible, to notify the employer of the alleged offensive conduct (Franke, at para. 47). [27] Harassment generally requires an element of persistence or repetition, although in certain circumstances a single incident may be enough to create a hostile work environment. Some forms of unwanted sexual attention, such as sexual assault, may be severe enough to constitute sexual harassment even though they have occurred only once. Such incidents would, because of their gravity, immediately create a poisoned work environment. The more serious the conduct and its consequences are, the less repetition is necessary; conversely, the less severe the conduct, the more persistence will have to be demonstrated (Franke, at paras. 43-45). [28] For example, in Goodwin v. Birkett, there was only one incident of sexual conduct but it involved physical contact (Goodwin v. Birkett, 2004 CHRT 29, at para. 22; aff'd: 2007 FC 428). The complainant awoke at 3:00 a.m. to find the respondent in her bed at a hotel, caressing her inappropriately. She told him to stop and he left the room. The Tribunal held that this incident was serious enough to poison the work environment. Therefore, it constituted sexual harassment. [29] In the present case, Ms. Hunt's testimony describing Mr. Dibbley's conduct meets the test for sexual harassment. There were two incidents of physical contact that were of a sexual nature: pulling Ms. Hunt's jacket zipper down; and barring her exit from the trailer. During both incidents, Mr. Dibbley fondled Ms. Hunt's breasts and stomach area. On the first occasion, he made sexually suggestive remarks to her. On the second occasion, Mr. Dibbley attempted to bar Ms. Hunt from leaving the trailer as a means of requiring her to submit to sexual touching. This was very frightening to her. [30] Ms. Hunt testified that she let Mr. Dibbley know that the sexual contact was unwelcome by angrily asking him what he was doing at the time of the first physical incident, and by evading him, crying and refusing to talk with him. Ms. Hunt was very upset by Mr. Dibbley's conduct; she felt sick to her stomach at work, and her ulcer symptoms flared up. Ms. Hunt informed her employer, Mr. Wadhwa, about what had happened on August 19, 2005. [31] Thus, although Mr. Dibbley's conduct occurred on two occasions only, the very serious and physical nature of the sexual conduct and its consequences for Ms. Hunt were enough to create a poisoned work environment. [32] Did Mr. Wadhwa's crude sexual proposition and embrace on August 18, 2005 constitute sexual harassment? According to Ms. Hunt's testimony, Mr. Wadhwa put his arm around her while she was outside the trailer crying, and told her that all she needed a good man to give it to her. Ms. Hunt was crying and visibly upset before Mr. Wadhwa embraced and propositioned her. Ms. Hunt's emotionally vulnerable state would have provided the first clue to her employer that his attention, which was clearly of a sexual nature, would not be welcome. [33] Although it is less common to analyze the complainant's behaviour prior to the impugned incident(s) to determine whether the attention was unwelcome, I think that it is appropriate to do so where, as in the present case, the complainant is in a subordinate employment relationship to the alleged harasser, and therefore may not be in a position to clearly voice her or his negative reaction to the behaviour after it has occurred. In addition, an examination of the complainant's behaviour prior to the impugned incident recognizes that it is incumbent upon those who wish to offer their sexual attention to their subordinates to ascertain, prior to offering that attention, whether it would likely be welcome. [34] Rather than inquiring into the source of Ms. Hunt's distress when she was outside of the trailer, Mr. Wadhwa took advantage of her emotional vulnerability and made a crude sexual proposition. In light of his authority over Ms. Hunt, Mr. Wadhwa's sexual attention took on a more coercive nature than if it had come from an employee at the same level as Ms. Hunt. Mr. Wadhwa's remark made Ms. Hunt feel all the more vulnerable at work, since the very person she was counting upon to address the situation with Mr. Dibbley had demonstrated that he too was seeking to take sexual advantage of her employment with Transport One Ltd. [35] After the embrace and the remark about needing a good man to give it to her, Ms. Hunt asked Mr. Wadhwa whether he knew any good men. She then turned her back on him, walked to the trailer, collected her things and left the workplace. Seen as a whole, this sequence of actions indicates that Ms. Hunt did not welcome Mr. Wadhwa's sexual attention. [36] I conclude that although it occurred only once, the conduct of Mr. Wadhwa, the person who hired Ms. Hunt, was sufficiently serious and unwelcome to independently create a hostile work environment for her. It therefore constituted sexual harassment. The Respondent's Liability for the Sexual Harassment [37] Section 65 of the Act deems the act of an officer, a director, an employee or an agent of an organization in the course of employment, to be the act of the organization unless the organization can establish that it did not consent to the commission of the act, and that it exercised all due diligence to prevent the act or to mitigate or avoid the effect of the act. [38] An employer make take a number of measures to prevent harassment from occurring in the workplace including: instructing newly hired employees that harassment will not be tolerated in the workplace; providing information sessions about harassment to employees, supervisors and directors of the company; developing harassment policies and investigation procedures and posting them in a public place. Effective strategies to mitigate the effects of harassment include: providing information to the individuals involved about the process and measures that will be taken to address the alleged harassment; providing separate work spaces for the alleged harasser and the complainant; conducting a timely and fair investigation of complaints of harassment; taking appropriate disciplinary action against harassers and providing victims with information about the disciplinary action taken; making counseling services available to the individuals involved. The appropriateness of some of these measures will depend upon the circumstances of the case. [39] In the present case, there was no evidence that Transport One Ltd. had taken any measures to prevent sexual harassment from occurring. There was no evidence of anti-harassment policies and investigation procedures, information sessions for employees or any other similar preventative measures. [40] Ms. Hunt testified that some action was taken to mitigate the effects of Mr. Dibbley's harassment of Ms. Hunt: he was moved to the afternoon shift thereby reducing the contact between the two employees. However, Ms. Hunt had no assurance that Mr. Dibbley's unwanted sexual attentions would be permanently curtailed as there had been no investigation or meaningful discussion about the problem with Mr. Wadhwa. In addition, Ms. Hunt was not informed that Mr. Dibbley had been reprimanded and told that the harassment of employees would not be tolerated. Finally, nothing was done to address the sexual harassment of Ms. Hunt by Mr. Wadhwa. [41] Mr. Bronson, the Sales Manager/General Manager at Transport One Ltd., told Ms. Hunt not to quit on August 24, 2005. He told her that the situation would improve. However, there was no indication of when and how this improvement would take place. Moreover, Mr. Bronson did not explain how he was in a position to ensure that the conduct of his superior, Mr. Wadhwa, would be addressed. [42] For these reasons, I find that Transport One Ltd. did not exercise all due diligence to prevent the sexual harassment of Ms. Hunt and to mitigate or avoid the effects of it on her. Transport One Ltd. is, therefore, liable under s. 65(1) of the Act for the actions of Mr. Dibbley and Mr. Wadhwa. The Appropriate Remedy [43] The Tribunal derives its remedial jurisdiction from s. 53 of the Act. The remedies contemplated therein are designed to stop the discrimination that is occurring from continuing, to prevent future discrimination from occurring, and to compensate individual victims for past or ongoing discriminatory practices. [44] Ms. Hunt testified that she thought that Transport One Ltd. may no longer be operational. She thought that it might even be bankrupt. There was, however, no evidence before me that Transport One Ltd. has been the subject of any proceedings or orders under the Bankruptcy and Insolvency Act. In the absence of any such information, it remains appropriate for the Tribunal to exercise remedial jurisdiction under s. 53. [45] Ms. Hunt requested a remedy that would hold Transport One Ltd. accountable for what happened and would prevent others from experiencing the harassment that she experienced. She requested compensation in the amount of $10,000 for pain and suffering. [46] Ms. Hunt suffers from an ulcer. She takes medication to control the symptoms. During the five weeks that she was employed at Transport One Ltd., her ulcer symptoms flared up. She constantly felt sick to her stomach. She believed that the stress of the unwelcome sexual attention she was receiving from Mr. Dibbley and Mr. Wadhwa was the cause of the flare up. Ms. Hunt's doctor prescribed a stronger medication to treat her ulcer condition. [47] Although it is clear that Ms. Hunt experienced a significant degree of suffering as a result of the sexual harassment by Mr. Dibbley and Mr. Wadhwa, I think that there were other factors in the work environment that contributed to her physical and emotional distress that were not related to the discriminatory conduct. For example, Ms. Hunt testified that the lack of office equipment and the physical condition of the office environment were a source of frustration for her. She was also upset about the number of personal errands that she was asked to run for Mr. Wadhwa. In light of the fact that not all of her pain and suffering was attributable to the discriminatory conduct, I find that an award of $6,000 is appropriate in the circumstances. [48] In order to prevent harassment of the nature experienced by Ms. Hunt from occurring in the future, it is necessary to make an order requiring the Respondent to take certain measures. At a minimum, information (whether in the form of Policies and Procedures, or simply a statement by a company official) should be provided to everyone in the workplace which explains what harassment is, that harassment will not be tolerated, and sets out the procedures that will be followed in the event that harassment does occur. It goes without saying that any such information is only effective in preventing harassment if it is fully understood by everyone in the workplace. To that end, information sessions or sensitization programs are useful to provide employees, supervisors and company directors with the knowledge that is needed to make anti-harassment policies work. [49] In order to prevent discrimination of the nature experienced by Ms. Hunt from occurring in the future, it is appropriate to make the following orders, pursuant to s. 53(2)(a) of the Act: If the Respondent has Sexual Harassment Policies and Procedures, it shall provide these documents to the Canadian Human Rights Commission for review. In the event that the Respondent has not developed Policies and Procedures that deal with the prevention and handling of sexual harassment complaints, it shall do so in consultation with the Commission. Once in final form, a copy of the Policies and Procedures shall be displayed in a manner that is accessible to all employees; and, The Respondent shall provide, at its own cost, a program for the employees, officers and directors of the Company to sensitize them to the issue of sexual harassment. It shall consult with the Canadian Human Rights Commission regarding the content of the program and potential program providers. [50] In addition, pursuant to s. 53(2)(e), the Tribunal orders that: 3. The Respondent shall provide compensation to Ms. Hunt in the amount of $6,000 for the pain and suffering that she experienced as a result of the discriminatory conduct. Signed by Karen A. Jensen OTTAWA, Ontario June 10, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1191/0307 STYLE OF CAUSE: Nanette Hunt v. Transport One Ltd. DATE AND PLACE OF HEARING: April 28, 2008 Windsor, Ontario DECISION OF THE TRIBUNAL DATED: June 10, 2008 APPEARANCES: Nanette Hunt For herself No one appearing For the Canadian Human Rights Commission No one appearing For the Respondent

2008 CHRT 24

CHRT

Coupal and Milinkovich v. Canada Border Services Agency

en

2008-06-16

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6709/index.do

2023-12-01

Coupal and Milinkovich v. Canada Border Services Agency Collection Canadian Human Rights Tribunal Date 2008-06-16 Neutral citation 2008 CHRT 24 File number(s) T1240/5207 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Ruling Decision status Interim Grounds Age Disability Decision Content Between: Marie-Claire Coupal and Biserka (Biba) Milinkovich Complainants - and - Canadian Human Rights Commission Commission - and - Canada Border Services Agency Respondent Ruling Member: J. Grant Sinclair Date: June 16, 2008 Citation: 2008 CHRT 24 [1] The Public Service Alliance of Canada (PSAC) requests that it be added as a party to the complaints of Marie-Claire Coupal and Biserka Milinkovich against the Canada Border Services Agency (CBSA). [2] Ms. Coupal was a Border Service Officer (BSO) at the Windsor Land Border crossing when CBSA introduced Use of Force Training (UFT) for its officers. The training provides BSOs with the knowledge and skills needed to deal with potential or actual conflict in the course of their duties. Ms. Coupal alleged that as a result of a partial disability and her age, she was not able to participate in UFT. She complained that CBSA restricted her work duties as a result of her inability to complete the training, and this in turn resulted in a loss of employment opportunities. [3] Ms. Milinkovich was a successful candidate for a BSO position at the CBSA International Mail Operations in Toronto. She alleged that CBSA prevented her from taking a position as a BSO because it assumed that her physical restrictions would not permit her to complete the UFT. [4] At issue in both complaints is whether CBSA’s Use of Force Training (UFT) Policy for BSOs discriminates against the Complainants on the basis of their disability or age, contrary to s. 7 of the Act. Ms. Coupal’s complaint includes the additional allegation that the UFT requirement deprives or tends to deprive her or a class of individuals of an employment opportunity on the basis of their disability and/or age, contrary to s. 10 of the Act. [5] PSAC wishes to be added as a complainant in order to address the allegations regarding systemic discrimination in Ms. Coupal’s s. 10 complaint, and to seek an appropriate remedy on behalf of all Border Service Officers in the event that the complaints are substantiated. [6] The Complainants consent to the motion. [7] CBSA opposes the motion to add PSAC as a party arguing that the Tribunal does not have the jurisdiction to add PSAC as a complainant and, in the alternative, that PSAC has not met the test for adding a party. [8] The Tribunal has jurisdiction under s. 48.9(2)(b) of the Act to add parties to existing proceedings. In the majority of cases, this jurisdiction has been exercised to add respondents rather than complainants. [9] It has been said that adding parties should be done with caution and only after careful consideration of a number of factors. These factors include: whether the addition of the party is necessary to resolve the complaint; whether it could not reasonably have been foreseen that the new party should have been added when the complaint was filed; and, whether the addition of a party will result in serious prejudice to the opposing party (See for example: Brown v. National Capital Commission, 2003 CHRT 43 ; Wade v. Canada (Attorney General), 2008 CHRT 9; and, Groupe d’aide et d’information sur le harcèlement sexuel au travail v. Barbe, 2003 CHRT 24 where the Tribunal granted a motion to add a complainant. See also : Syndicat des employés d’exécution de Québec-Téléphone v. TELUS Communications (Québec) Inc. 2003 CHRT 31 at para. 30; and, Smith v. CNR 2005 CHRT 23 at para. 52). [10] In the present case, PSAC contends that its participation as a complainant is necessary since only PSAC can provide the information that would assist the Tribunal to fashion an appropriate remedy in the event that the s. 10 complaint is substantiated. An appropriate remedy, according to PSAC, would be one that applies to all of the BSOs across Canada. BSOs perform extremely diverse functions across the country in approximately 12,000 Points-of-Entry across Canada, which include land border crossings, airports, seaports, postal services and immigration detention centres. [11] As a result of the diversity of their work and workplaces, the nature and extent of the risks that BSOs face on the job varies greatly. So too does the need for UFT. Information about the nature and extent of the risks facing this diverse work group is needed, it is argued, to design a remedy that is not restricted to the Complainants’ workplaces – the Windsor Land Border crossing and the International Mail Operations in Toronto. [12] Assuming, without deciding, that the scope of the complaint is broad enough to encompass a remedy for all BSO’s throughout Canada who are in similar circumstances to those of the Complainants, I see no reason why the Complainants could not call a PSAC witness who could provide the information outlined above. It is not necessary to have PSAC added as a party in order to provide this information to the Tribunal. [13] The denial of party status to PSAC would not impede the Complainants from making arguments with respect to the appropriate systemic remedy that should be ordered in the event that the complaint is substantiated. It is noteworthy, in that regard, that PSAC appears to be working very closely with the Complainants on this matter. [14] This is not a case like Brown v. National Capital Commission, 2003 CHRT 43, where it was necessary to add Public Works as a respondent because without that party the appropriate remedy would be unenforceable. Nor is it similar to Groupe d’aide et d’information sur le harcèlement sexuel au travail v. Barbe, where the Tribunal added the victim of the discriminatory conduct as a complainant. In that case, it was appropriate to add Ms. Des Rosiers as a complainant in order to properly resolve a complaint that was exclusively about her. [15] PSAC’s response to the point that Ms. Coupal is free to call a PSAC representative to testify about other BSOs is that the Respondent will likely object to this evidence on the grounds that it is irrelevant: the scope of the complaints is limited to the particular circumstances of the Complainants’ workplaces and therefore, any information about other workplaces is irrelevant. [16] If PSAC had a concern that the scope of the complaint might not be large enough to encompass the circumstances of all BSO’s working throughout Canada, then it should have raised that concern when the complaint was drafted or as soon after that as it became aware of the complaint. [17] As PSAC stated, it was engaged in ongoing discussions with the Respondent on the Use of Force Training issue since at least 2001. [18] Moreover, it appears that PSAC has been involved in the present complaints since at least the investigation stage. PSAC had the opportunity to request that it be added to the complaint if it felt this was necessary before the referral was made to the Tribunal. [19] This is all the more apparent when one considers that the complaint was initially dismissed by the Commission and on judicial review, it was returned to the Commission for further investigation and reconsideration. PSAC would therefore have had ample opportunity to become aware of the case and to request that it be added prior to referral. [20] Once the complaint has been referred to the Tribunal, the addition of a party may result in a deprivation of the benefit of certain procedural protections that are provided at the pre-referral stage. These protections include the opportunity to persuade the Commission during its investigation process, that it should refuse to deal with the complaint because, for example, 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 (Warman v. Lemire 2006 CHRT 48 at paras. 4-7). [21] PSAC argues that there is no procedural unfairness to the Respondent in circumventing the Commission process given that the Respondent has known since 2001 that PSAC had concerns about the UFT as it was applied to aging and disabled workers. PSAC’s position with respect to the complaints will therefore come as no surprise to the Respondent. This may be so but this argument does not address the loss of procedural protections that may be otherwise available if PSAC is added as a complainant at this stage of the proceedings. [22] For all of these reasons, the Tribunal concludes that this is not an appropriate case in which to exercise its discretion under s. 48.9(2)(b) to add PSAC as a complainant to the proceedings. The motion is dismissed. Signed by J. Grant Sinclair Tribunal Member Ottawa, Ontario June 16, 2008 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1240/5207 Style of Cause: Marie-Claire Coupal and Biserka (Biba) Milinkovich v. Canada Border Services Agency Ruling of the Tribunal Dated: June 16, 2008 Appearances: Alison Dewar and Lisa Addario, for the Complainants No submissions made, for the Canadian Human Rights Commission Sandra Nishikawa and Sean Gaudet, for the Respondent

2008 CHRT 25

CHRT

Jeffers v. Citizenship and Immigration Canada and Canada Border Service Agency

en

2008-06-16

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6710/index.do

2023-12-01

Jeffers v. Citizenship and Immigration Canada and Canada Border Service Agency Collection Canadian Human Rights Tribunal Date 2008-06-16 Neutral citation 2008 CHRT 25 File number(s) T1255/6707 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision status Interim Grounds Colour National or Ethnic Origin Race Decision Content Between: Keith Jeffers Complainant - and - Canadian Human Rights Commission Commission - and - Citizenship and Immigration Canada and Canada Border Service Agency Respondents Ruling Member: Karen A. Jensen Date: June 16, 2008 Citation: 2008 CHRT 25 [1] The Respondents, Citizenship and Immigration Canada and Canada Border Service Agency, have requested an order preventing certain evidence from being adduced at the hearing into a complaint filed by Keith Jeffers in April of 2004. The complaint involves allegations that between 2002 and 2004, Mr. Jeffers was subjected to discriminatory treatment on the basis of his race and national or ethnic origin at Pearson International Airport when he was sent for questioning regarding his citizenship. [2] The Respondents are requesting an order preventing the Complainant from introducing the report of Dr. Scot Wortley entitled Racial Differences in Customs Searches at Pearson International Airport as evidence in the hearing of the present matter. The Respondents are also requesting an order preventing the Complainant from introducing the report entitled Canada Customs Visible Minority Study as evidence in the hearing of this matter. The latter study was conducted by COMPAS Inc, a multi-audience research firm. [3] There was some uncertainty as to whether Dr. Wortley would be testifying as an expert witness at the hearing. However, that now appears to be resolved; the Commission, rather than the Complainant, intends to call Dr. Wortley as an expert witness and to introduce his report during his testimony. [4] The Respondents maintain, nonetheless, that Dr. Wortley’s report is inadmissible for a number of reasons. These reasons include the assertion that the report is unreliable, unnecessary and irrelevant. The Respondents further assert that Dr. Wortley’s report has not been accepted by a number of other tribunals and courts. Therefore, this Tribunal should rule, in advance of the hearing, that Dr. Wortley’s report will not be admitted during the hearing into the present complaint. [5] I am of the view that the admissibility of the Wortley report is a matter that is best left for determination at the hearing. One of the criteria for the admissibility of expert evidence is that the evidence be given by a properly qualified expert. The Commission and/or the Complainant have not yet had the opportunity to attempt to qualify Dr. Wortley. Therefore, a determination on the admissibility of the Wortley report is not possible at this time. The Respondents are free to raise their objections to the admissibility of the report at the appropriate time during the hearing. [6] The Respondents argue that the COMPAS report on the Canada Customs Visible Minority Study is inadmissible for the same reasons as the Wortley report and for an additional reason: the author of the study will not be testifying. Therefore, the COMPAS report will be no more than hearsay evidence of a highly prejudicial nature, and for these reasons it is inadmissible, according to the Respondents. [7] The Commission responds that the COMPAS report is not an expert report, but rather an internal document commissioned by one of the Respondents. The report is relevant and essential for the Tribunal to determine if racial profiling applies in this particular case, according to the Commission. It also argues that the Respondents may call evidence to rebut the material in the COMPAS report should they see fit. The Complainant has not provided any submissions on the issue. [8] When faced with a pre-hearing objection to the admissibility of evidence, the Tribunal—as master of its own proceeding—is not required to decide the objection at the pre-hearing stage, or exactly as framed. However, there are cases such as the present one, where an advance ruling would significantly assist counsel in preparing for the hearing and would promote an expeditious and fair hearing. In such cases, it is appropriate to assess the evidence as it has been proposed and determine, prior to the hearing whether its value is worth what it costs. (See Morin v. Canada (Attorney General), 2003 CHRT 46 at para. 6) [9] I think that the Respondents’ argument in the present case with respect to the COMPAS report has merit. The Commission is seeking to have the report entered into evidence as proof of the truth of the contents. The report is hearsay evidence unless it is submitted through the testimony of the author of the study or another individual who has direct knowledge of the study and the production of the report. [10] Although the Tribunal may admit hearsay evidence, it is not required to do so. In determining whether to admit hearsay evidence, it is appropriate for an administrative tribunal to consider the factors of reliability and necessity (R. v. Khan [1990] 2 S.C.R. 531; Telus Communications Inc. v. Telecommunications Workers Union, 2005 FCA 262 (CanLII) at paras. 26-29). These factors must be applied in a flexible manner and with due regard to the latitude that is afforded to the Tribunal to admit evidence that would not otherwise be admissible in a court of law (s. 50(3)(c) of the CHRA; Telus, supra, at para. 28; and R. v. Hawkins [1996] 3 S.C.R. 1043 at para. 68). [11] In the present case, the Commission has not indicated why it is necessary to introduce the evidence through someone other than the author of the COMPAS report or another individual with direct knowledge of the study and production of the report. The introduction of the report indicates that the principal investigator for the study and author of the report was Stephen Kiar, a senior partner of COMPAS. Initially, in its Statement of Particulars, the Complainant stated that it would be calling a representative of COMPAS to testify about its report. Later, in a case management conference call, the Complainant told the parties and the Tribunal that it would instead be calling the Executive Director of the African-Canadian Legal Clinic to introduce the COMPAS report. The Tribunal directed the Complainant to provide an amended Statement of Particulars including a revised list of witnesses as well as a summary of their anticipated testimony. The Complainant has not provided the requested document, nor did it provide the reason that Mr. Kiar, or another individual with direct knowledge of the study and the production of the report, could not be called as a witness. Therefore, the necessity of introducing this evidence through the Executive Director of the African-Canadian Legal Clinic has not been established. [12] Moreover, there are questions about the reliability and probative value of the conclusions in the COMPAS report. Two of the conclusions in the report are that Black people in Toronto tended to be subject to more delays or searches, particularly when returning from the Caribbean, and this group felt they were treated unfairly by Customs officers. However, at page 3 of the report, the author states: This research was qualitative in nature, not quantitative. As such, the results provide an indication of participants’ views about the issues explored, but cannot be generalized to the full population of visible minority travelers. At page 6 of the report, the author states that readers should not view this research as statistically representative of visible minority travelers. [13] Does this mean that the conclusions provided in the report such as the ones set out above cannot reliably be applied to the case at hand? If that is the case, then the probative value of the COMPAS report may be minimal. Moreover, given that the conclusions are central to the inquiry in this case and are prejudicial to the Respondents’ case, it would be unfair to admit the evidence without providing the Respondents with an opportunity to cross-examine the author or another individual with direct knowledge about the study and the report about the statements. [14] For these reasons, the COMPAS report shall not be admitted into evidence through the testimony of a representative of the African-Canadian Legal Clinic. This order is without prejudice to the right of the Commission or the Complainant to request that the report be admitted through another witness. Signed by Karen A. Jensen Tribunal Member Ottawa, Ontario June 16, 2008 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1255/6707 Style of Cause: Keith Jeffers v. Citizenship and Immigration Canada and Canada Border Service Agency Ruling of the Tribunal Dated: June 16, 2008 Appearances: Cecil Norman, for the Complainant Ikram Warsame, for the Canadian Human Rights Commission David Cowie, for the Respondents

2008 CHRT 26

CHRT

Keeper-Anderson v. Southern Chiefs Organization Inc.

en

2008-06-20

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6711/index.do

2023-12-01

Keeper-Anderson v. Southern Chiefs Organization Inc. Collection Canadian Human Rights Tribunal Date 2008-06-20 Neutral citation 2008 CHRT 26 File number(s) T1167/4906 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE LORETTA KEEPER-ANDERSON Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - SOUTHERN CHIEFS ORGANIZATION INC. Respondent DECISION 2008 CHRT 26 2008/06/20 MEMBER: J. Grant Sinclair I. INTRODUCTION A. Ms. Keeper-Anderson's Human Rights Complaint II. FACTS A. The Alleged Harassment (i) The First Incident - SCO Golf Tournament Dinner - September 2002 (ii) The Second Incident -The October 2003 Meeting (iii) The Third Incident - December 2003 Christmas Party (iv) The Fourth Incident - Del Assiniboine's Queries re: Ms. Keeper-Anderson's Maternity Leave - January/February 2004 B. Probationary Status C. Ms. Keeper-Anderson Leaves the SCO D. The Second ROE E. Legal Proceedings III. REASONS FOR DECISION A. Harassment - S. 14 of the CHRA 15 B. Termination of Her Employment - S. 7 of the CHRA 18 IV. REMEDY I. INTRODUCTION [1] The Complainant is Loretta Keeper-Anderson. Her complaint is against the Southern Chiefs Organization Inc. (SCO), an umbrella organization made up of 36 southern Manitoba First Nations communities. [2] Ms. Keeper-Anderson is a First Nations woman from the Fisher River First Nations and is the mother of seven children. She has a Bachelor of Arts degree and several years experience working with First Nations in southern Manitoba. [3] Ms. Keeper-Anderson was first hired by SCO in May 2001 as a researcher for the Framework Agreement Initiative/Child and Family Services Table. She worked as a researcher until November 27 , 2001, when she became SCO/CFS project manager. [4] The FAI is a master contribution agreement between Canada and the Assembly of Manitoba Chiefs (AMC). Under the FAI, the AMC has signed a sub-agreement with the Manitoba Keewatinowi Okimakanak (MKO) to coordinate the CFS program on behalf of all the First Nations in Manitoba. MKO signed a sub-sub-agreement with SCO to coordinate the CFS program for the First Nations in southern Manitoba. [5] The AMC/MKO agreement requires MKO to provide progress and financial reports to the AMC Executive on the CFS work plan activities in accordance with a reporting date schedule. The reports must meet this schedule for the funding to flow from Canada to the AMC and then to MKO and SCO. [6] The project which Ms. Keeper-Anderson managed involved meeting with each of the First Nations communities in southern Manitoba to interview and collect information from the elders and from others in the communities regarding traditional child rearing. [7] After the information was gathered, it was to be translated from Cree and Ojibway to English and compiled into a Consolidated Report to be presented to the AMC and MKO and used for negotiating a self-government agreement on Child and Family Services with the federal government. [8] On February 12, 2004, Ms. Keeper-Anderson left SCO. She purported to go on sick leave because of complications with her pregnancy and thereafter on maternity and parental leave. Ms. Keeper-Anderson claims that she had every intention of returning to SCO after her leave was over. [9] The SCO's position is otherwise: SCO says that Ms. Keeper-Anderson never requested or received authorization to take sick or maternity leave as required under the SCO's employment policy. And says SCO, just prior to leaving in February 2004, she told some staff members that she quit. The SCO claims that Ms. Keeper-Anderson resigned her position on February 12, 2004. A. Ms. Keeper-Anderson's Human Rights Complaint [10] Ms. Keeper-Anderson's human rights complaint is two-fold. First, she claims that SCO has failed to provide a harassment-free workplace. Secondly, she claims that SCO wrongfully terminated her employment and treated her negatively during her employment. For these two allegations of discrimination, she relies on sex (pregnancy) as the prohibited ground. Her complaint to the Canadian Human Rights Commission is dated October 13, 2004. II. FACTS A. The Alleged Harassment (i) The First Incident - SCO Golf Tournament Dinner - September 2002 [11] In September 2002, SCO held a golf tournament at the Kingswood Golf & Country Club Ltd. in La Salle, Manitoba. Approximately 75 people were in attendance, including Chiefs and Council, business partners and SCO staff. [12] It was Ms. Keeper-Anderson's birthday and a male prankster, a Rent-A-Nerd was hired to attend the golf tournament dinner as a surprise for her birthday. [13] Ms. Keeper-Anderson testified that without her knowledge or permission, the Rent-A-Nerd was given personal information about her. In her view, the Rent-A-Nerd used this information to publicly humiliate her. She said he joked about the large number of children she has, the fact that she breast-fed all her children, and the size of her breasts. [14] After the golf tournament dinner was over, Ms. Keeper-Anderson said that she told Elva McCorrister, SCO Executive Director, that she was very uncomfortable with the Rent-A-Nerd's comments about her. She kept her personal life very private from her professional life and felt it was inappropriate to make that kind of information public. [15] Ms. Keeper-Anderson spoke to her supervisor, Stuart Wuttke, immediately after the incident and told him how upset she was. She also told Bethany Ettawacappo and Eileen Doerksen, two SCO staff who were seated at her table, that she was embarrassed by the conduct of the Rent-A-Nerd. [16] She did not file any formal complaint with Mr. Wuttke or with Ms. McCorrister. [17] Later, Ms. Keeper-Anderson learned that Donna Hall, an administrative assistant at SCO, was the one who had given the information to the Rent-a-Nerd. [18] Ms. McCollister said that prior to the dinner, it was vaguely mentioned to her that an act or a comedian would be performing at the golf tournament dinner. She did not know it would be a Rent-A-Nerd. [19] Ms. McCorrister did not recall Ms. Keeper-Anderson voicing her complaint at the dinner. The next morning, she met with her staff, told them she did not authorize this, and refused to authorize SCO payment for the Rent-A-Nerd. (ii) The Second Incident -The October 2003 Meeting [20] Ms. Keeper-Anderson alleges that shortly after she advised SCO in October 2003 that she was pregnant, Grand Chief Margaret Swan, Elva McCorrister, and Stuart Wuttke had a meeting. Ms. Keeper-Anderson was not at the meeting. But she testified that during the meeting, those three discussed the fact of her pregnancy and Chief Margaret Swan told Mr. Wuttke to get rid of Loretta because she's pregnant. Ms. Keeper-Anderson said that Mr. Wuttke told her that he was to fire her, but he refused because he did not have a good reason for doing so. [21] Chief Swan did not remember this meeting. But she did remember having meetings with Ms. McCorrister about Ms. Keeper-Anderson's work performance. As to Ms. Keeper-Anderson's allegation that she wanted Ms. Keeper-Anderson fired because she was pregnant, Chief Swan said this was ludicrous. [22] Chief Swan has seven children, is a single parent, and worked during all of her pregnancies. She believed that she was more lenient with Ms. Keeper-Anderson because she was pregnant and a single parent. [23] Ms. McCorrister's recollection was that Chief Swan had called this meeting. She was not happy with the progress of CFS program. There had been a recent SCO summit and Ms. Keeper-Anderson was one of the presenters. Her presentation did not go well and the chiefs had a number of complaints about her. [24] Chief Swan was upset about this. She was responsible to the chiefs for the CFS project and she wanted it done well. In any case, Ms. Keeper-Anderson was not terminated and continued to work as the project manager. (iii) The Third Incident - December 2003 Christmas Party [25] In December 2003, SCO held their annual Christmas party at the Royal Crown Restaurant in Winnipeg. At the time, Ms. Keeper-Anderson was four months pregnant. It was Chief Swan's practice at the Christmas party to ask each employee to come to the front and she would present them with a Christmas gift. [26] When Ms. Keeper-Anderson went up to the front, she said that Chief Swan commented, I'm surprised you haven't had a miscarriage yet with all the pressure we've put you under this year at Southern Chiefs. Ms. Keeper-Anderson said that she was visibly upset by Chief Swan's comment. [27] Ms. McCorrister said that it was the practice of Chief Swan to make a comment to each of the staff when they were called up to receive their gift. Ms. McCorrister could not recall Ms. Keeper-Anderson approaching her to complain about Chief Swan's comment at the Christmas dinner. Nor did Ms. Keeper-Anderson ever put any complaint in writing. [28] Chief Swan did not recall exactly what she said to Ms. Keeper-Anderson, but may have said something like she was surprised Ms. Keeper-Anderson didn't have a miscarriage because of all the stress everyone at SCO was experiencing. [29] But she did not intend her comment to be derogatory or insulting. When she would give a gift a staff member, she would say good things or sometimes funny things about them. Things to make them feel good, not bad. She made a personalized comment to each employee. She did not single out Ms. Keeper-Anderson. [30] Ms. Keeper-Anderson never told Chief Swan that she was offended by her comment. If she had, Chief Swan said, she would have apologized. (iv) The Fourth Incident - Del Assiniboine's Queries re: Ms. Keeper-Anderson's Maternity Leave - January/February 2004 [31] Elva McCorrister went on sick leave in January 2004. Del Assiniboine took her place as the Acting Executive Director. Ms. Keeper-Anderson claims that on at least three separate occasions in January/February 2004, Mr. Assiniboine initiated discussions with her regarding the specific dates of when she planned to take maternity leave, when she would return to work, and if she was going to recommend someone to replace her while she was gone. [32] She assured Mr. Assiniboine that she would give SCO adequate notice before she went on maternity leave. She recommended Jeff LaPlante, a policy analyst who worked with her on the project and who could continue the work without interruption. [33] Ms. Keeper-Anderson claimed that her assurances did not satisfy Mr. Assiniboine's concerns. She felt that she was being harassed by Mr. Assiniboine by his questioning as to when she planned to take her maternity leave. [34] Mr. Assiniboine's usual position at SCO was health advocate. He explained that in the Indian world, they are always concerned with their babies, born or unborn and as they are growing up until they become adults. [35] He would always make a point of visiting not only Ms. Keeper-Anderson, but all the staff in the office, when he came in. He would spend a few minutes in each of their offices talking to them. That was the context within which, he says, he would ask Ms. Keeper-Anderson how she was feeling, if she was doing well and when she planned to take maternity leave. B. Probationary Status [36] Ms. Keeper-Anderson received a letter dated December 2, 2002, from Stuart Wuttke stating that he was placing her on probationary status from December 2, 2002 to March 31, 2003. He set out a number of reasons for doing so. These included her unsatisfactory performance at the November 27-28, 2002 SCO summit, when delivering her oral report; her failure to provide timely budget updates and quarterly and annual reports for the CFS project; her failure to attend regularly monthly meetings of the CFS directors for southern Manitoba; her lack of involvement at the FAI/CFS internal and joint meetings; and her failure to act as a manager and her inability to direct staff. Her lack of management of the program and failure of her team to produce quality work had raised serious concerns about the viability of the project. [37] Mr. Wuttke placed certain conditions on her probationary status, which included requiring her to attend CFS directors meetings as outlined, provide a supplementary report on the status of the CFS project and complete all community reports and the Consolidated Report by March 30, 2003. [38] Interestingly, another of the conditions was that Ms. Keeper-Anderson must attend her law school classes to a maximum of 1.5 days per week. Ms. Keeper-Anderson found this condition very confusing because Mr. Wuttke was telling her that she was not keeping up with her work, and yet requiring her to attend 1.5 days a week at to law school. [39] At this time in 2002, Ms. Keeper-Anderson was attending law school part-time and working at SCO. Mr. Wuttke had encouraged her to go to law school and he had assured her that she would be assisted with her job responsibilities. [40] She missed some meetings because she was at law school. She was not being helped with her job. She was also getting criticism from upper management about not getting her work done. [41] On occasion, Mr. Wuttke would call her and tell her about an important meeting that she had to attend. This began to happen with more frequency and she missed a lot of classes. So she withdrew from law school, did not finish the first term and came back to work full-time. [42] Ms. Keeper-Anderson refused to sign the letter acknowledging the terms of her probationary status. She said that she discussed the letter with Mr. Wuttke and told him that there were conflicting requirements within the letter. His response was that the letter came from higher authority and he was required to write it. [43] Ms. Keeper-Anderson testified that she spoke to Ms. McCorrister about her probationary status and that she wanted to appeal it. According to Ms. Keeper-Anderson, Ms. McCorrister said that she did not need to write a letter and to disregard Mr. Wuttke's letter. Ms. Keeper-Anderson asked Ms. McCorrister what she meant by that and Ms. McCorrister told her that she would not be placed on probationary status. [44] Nonetheless, Ms. Keeper-Anderson wrote to Ms. McCorrister on December 5, 2002, informing her, as per their conversation, that she would be submitting an appeal in writing regarding her probationary status by January 15, 2003. Ms. Keeper-Anderson did not follow up and never submitted an appeal. [45] In her evidence, Ms. Keeper-Anderson also addressed the timelines imposed by Mr. Wuttke. She said that during this time, the project staff consisted of only herself and one other person. Ms. Keeper-Anderson spoke on numerous occasions to Mr. Wuttke and Ms. McCorrister about the problems she was having to completing the reports. She had to send the reports back to each community to each of the persons interviewed for their review. The information gathered from the communities was in Ojibway or Cree and had to be translated into English. [46] Eventually the project did hire three translators a few months after Mr. Wuttke's letter. The Consolidated Report was completed in July 2003 and the community reports were done earlier. [47] It is noteworthy that on January 29, 2003, shortly after she was put on probationary status, Dave Rundle, the Executive Director of the Anishinaabe Child and Family Services for the three First Nations communities in the southern Manitoba, wrote to Marlyn Bennett, Research Coordinator, First Nations Research Site on January 23, 2003. [48] In his letter, Mr. Rundle recommended Ms. Keeper-Anderson for the position of Lead Researcher for the Children and Disabilities in Canada Research Project. He described Ms. Keeper-Anderson as the Project Manager for the FAI/CFS Project at SCO. He noted that one of her primary duties was to carry out community consultations within the Southern First Nations communities which Ms. Keeper-Anderson had successfully completed. [49] Ms. McCorrister also wrote to Marlyn Bennett on January 21, 2003, recommending Ms. Keeper-Anderson for this position. She also noted that Ms. Keeper-Anderson had successfully completed the Community Consultation for the CFS/FAI for the First Nations in southern Manitoba. C. Ms. Keeper-Anderson Leaves the SCO [50] Wednesday, February 11, 2004, was a regular payday. Ms. Keeper-Anderson did not receive hers. She phoned Mr. Assiniboine on February 12, 2004, and asked him why she had not been paid. She said his response was that he was justified in holding back her pay because he did a review of her personnel file and noticed that she was placed on probationary status in December 2002. [51] Mr. Assiniboine's version is somewhat different. He said that he explained to Ms. Keeper-Anderson that SCO did not have enough money at that time to pay all the staff. SCO had not received its funding from MKO. MKO couldn't access funding through the AMC because SCO had not provided its reports on a time. [52] As Acting Executive Director, he decided that senior management would not be paid and any money SCO had in the bank would be used to pay the administrative assistants. Those not responsible for reports or finances would be paid first. [53] He was not paid on that day, nor was Chief Swan or Ms. McCorrister. However, Mr. Assiniboine was able to arrange an extension to SCO's line of credit and everyone was paid on February 13, 2004, including Ms. Keeper-Anderson. [54] Mr. Assiniboine's version of their discussion about her probationary status also differs considerably from that of Ms. Keeper-Anderson. He testified that Steve Clark, Executive Director of MKO had raised concerns at a meeting with SCO on February 9, 2004, about Ms. Keeper-Anderson's failure to submit reports on a timely basis and her lack of participation at CFS committee meetings. [55] After the meeting, Mr. Assiniboine reviewed Ms. Keeper-Anderson's personnel file and noticed that she had previously been placed on probationary status for many of the same reasons as expressed by Mr. Clark. He also noted that Ms. Keeper-Anderson had not attended a February 11, 2004 meeting when requested to do so by Chief Swan because she said she was too busy. [56] During their telephone conversation, Mr. Assiniboine said that he raised these concerns with Ms. Keeper-Anderson and told her that he was considering putting her on probationary status again or taking some sort disciplinary action. This had nothing to do with her not getting paid. Her response was, that's it, I'm out of here. [57] Ms. Keeper-Anderson did agree that she said to Mr. Assiniboine at the end of their telephone conversation, I'm out of here. But she did not say that she quit. [58] Mr. Assiniboine also testified that on February 13, 2004, he spoke to Gladys Cochrane who told him that Ms. Keeper-Anderson had handed in her keys, cell phone and said, I quit. [59] On February 16, 2004, Mr. Assiniboine wrote to Ms. Keeper-Anderson that she has been away from work without her supervisor's permission. This could be considered an abandonment of employment should she continue to stay away without authorization. [60] He enclosed a copy of SCO Personnel Policy Manual so that she could follow the proper procedures to request leave. He also wrote that if she does not respond by March 1, 2004, he would consider that she has abandoned her position and he would take the necessary action to hire someone to fill the position. [61] Mr. Assiniboine was not sure whether this letter was sent to Ms. Keeper-Anderson. She said that she never received it. [62] When Ms. McCorrister returned from her sick leave, she learned that Ms. Keeper-Anderson was not working at SCO. She said that Ms. Cochrane told her that, on February 12, 2004, Ms. Keeper-Anderson had handed in her keys and her cell phone on and said that she quit. [63] Ms. Cochrane gave Ms. McCorrister the February 12, 2004 memorandum she had prepared at the time. In this memorandum, Ms. Cochrane recorded that Ms. Keeper-Anderson had handed in her keys to SCO offices, her parking pass and her cell phone and chargers. There was no mention in her memorandum that Ms. Keeper-Anderson told her that she quit. Ms. Keeper-Anderson denied that she said this to Ms. Cochrane. [64] Ms. McCorrister also testified that at a farewell luncheon on February 13, 2004 for other employees leaving SCO, Ms. Keeper-Anderson approached her and they hugged. When Ms. McCorrister asked her how she was doing, she replied, you know I quit. Didn't you hear I quit? [65] On March 22, 2004, Ms. McCorrister wrote to Ms. Keeper-Anderson that SCO had not heard anything from her since she handed in her keys and cell phone to Gladys Cochrane on February 12, 2004. She referred to SCO's leave policy and procedures and noted that Ms. Keeper-Anderson never made a formal request for sick or maternity leave, either orally or in writing. She concluded that SCO has assumed that she has abandoned her position and SCO will be filling it in the near future. It is very puzzling that in her letter, Ms. McCorrister made no mention of the fact that Ms. Keeper-Anderson had told her more than a month earlier that she had quit. [66] Ms. McCorrister explained that every SCO employee goes through orientation. They are given a copy of SCO Personnel and Policies Manual which has the policies and procedures for sick leave, maternity leave, and parental leave. [67] Sick leave for more than three days must be supported by a doctor's certificate given to the Executive Director. For maternity leave, the employee must notify the Executive Director at least four weeks before the leave is to commence which can not start earlier than 11 weeks before delivery. The employee must also provide a doctor's certificate confirming the pregnancy and the estimated delivery date. [68] The employee must make a request in writing to the Executive Director for parental leave at least four weeks before the leave is to start. When leaving SCO, the employee must return their cell phone, their office keys, and any other equipment that belongs to SCO. [69] Ms. Keeper-Anderson's telling of the events is that she went on sick leave on February 12, 2004. Before she left on that day, she handed in her office keys, her cell phone and parking pass to Gladys Cochrane, SCO Office Manager. [70] Ms. Keeper-Anderson agreed that she did not make any formal request for sick or maternity or parental leave. Part of the reason for not doing so was because of the comments Chief Swan had made at the Christmas party. She took those words literally and felt she was being pressured. She did not want to tell them that she had complications with her pregnancy and have it used against her. [71] Ms. Keeper-Anderson did get a medical certificate dated February 13, 2004, from her doctor which indicated that Ms. Keeper-Anderson was unable to work due to illness and pregnancy. Ms. Keeper-Anderson had spoken to someone at the Employment Insurance office who told her that if she wanted to claim EI sick leave and maternity benefits, she had to obtain a doctor's certificate and a Record of Employment (ROE). [72] She met with Bethany Ettawacappo, SCO Financial Officer at the time and submitted the medical certificate to her. She asked Ms. Ettawacappo to prepare an ROE and told her that she would be returning to SCO after her leave was finished. [73] Ms. Ettawacappo prepared the ROE dated February 13, 2004. In the Comments section of the ROE, she wrote, 16 - employee on sick leave February 16/04- May 12/04, maternity incl. parental leave May 13/04 to May 13/05. [74] Ms. Ettawacappo testified that she was the person who prepared the ROEs. She also said that she had never been told that the ROE had to be approved by management. During her time at SCO, she only issued three ROEs and this was the first for sick leave. Ms. Ettawacappo was not aware that SCO had a Personnel Manual. So she was not aware that when an employee wanted to take leave, they had to make a written request. She did say, however, that an employee would probably have to, that would be assumed. [75] Ms. Ettawacappo did not tell Mr. Assiniboine that she had issued an ROE for Ms. Keeper-Anderson. She did not speak with Ms. McCorrister about this because she left SCO on February 24, 2004, before Ms. McCorrister returned to work. [76] Ms. Keeper-Anderson submitted the ROE and medical certificate to EI and applied for sick leave benefits and maternity benefits. Her application was approved on March 8, 2004, effective February 15, 2004, for sickness benefits to May 4, 2004, and subsequently for 50 weeks of maternity and parental leave benefits. [77] As to Ms. McCorrister's March 22, 2004 letter, stating that she had abandoned her position, Ms. Keeper-Anderson's response was that she had taken the proper procedures to let SCO know that she was going on leave, as per her discussion with Ms. Ettawacappo. [78] She did not abandon her position with SCO. It was evident from the ROE that she would be returning. She did not request holiday or vacation pay because she had every intention of returning to SCO. She also denied that she told Ms. Cochrane that she was quitting. [79] Ms. Keeper-Anderson did not discuss the ROE with Mr. Wuttke, her supervisor, or contact him after February 13, 2004, to tell him that she had left on sick leave. D. The Second ROE [80] Ms. Keeper-Anderson received a letter from Ms. McCorrister dated August 24, 2004, advising her that SCO had issued a new ROE because the February 13, 2004 ROE was incorrect. Now the comment section of the new ROE read, E Quit - not returning. [81] SCO did not discover the February 13, 2004 ROE, until it was found under a pile of papers in August 2004 by the new finance officer when she was cleaning up the office. SCO was alerted that a ROE had been issued when the EI office called about Ms. Keeper-Anderson's benefits. [82] Ms. McCorrister explained that SCO had obtained legal advice that the first ROE was completed without SCO management authority by Ms. Ettawacappo on information supplied by Ms. Keeper-Anderson herself. SCO was advised to issue a new ROE that accurately reflected the facts. [83] According to Ms. McCorrister, SCO would issue a ROE when a manager or the executive director informed the finance officer that an employee was leaving SCO. The finance officer would then have the authority to issue an ROE setting out the reason why the employee is leaving. E. Legal Proceedings [84] After Ms. Keeper-Anderson received Ms. McCorrister's March 22, 2004 letter, on March 29, 2004, she telephoned Ms. McCorrister and told her that she had not abandoned her position, that she planned to return to work as soon as possible, and that she did not take holiday pay because she had every intention of returning to work after her maternity leave was over. [85] According to Ms. Keeper-Anderson, Ms. McCorrister said that she would not reconsider her decision. Ms. Keeper-Anderson then retained a lawyer who wrote to SCO on June 28, 2004. Her lawyer asserted that, contrary to the SCO's position, Ms. Keeper-Anderson had not abandoned her job. Rather, she was on sick leave with respect to complications arising from her pregnancy and this was clearly set out in the February 13, 2004 ROE. Her lawyer asked that, in accordance with the Employment Standards Code, Ms. Keeper-Anderson be reinstated at the end of her maternity leave. [86] SCO responded on August 19, 2004, in a letter from its legal counsel. SCO's position was that its internal investigation confirmed that Ms. Keeper-Anderson did in fact resign from her position on February 12, 2004. [87] Examples in support of this conclusion were her telephone conversation with Mr. Assiniboine on February 12, 2004, in which Ms. Keeper-Anderson said, That's it. I'm out of here, and hung up the phone. [88] And after she had talked to Mr. Assiniboine, she went to Gladys Cochrane's office and handed in her keys and cell phone, said that she quit and left the office without further explanation. [89] Ms. Keeper-Anderson's lawyer replied on August 25, 2004, saying that she was reviewing the issues raised in the SCO's letter. Nothing resulted from this exchange of letters between the lawyers and Ms. Keeper-Anderson did not pursue any further legal action. III. REASONS FOR DECISION A. Harassment - S. 14 of the CHRA [90] For some time, there has been indications in the jurisprudence that the gender component of harassment is broad enough to encompass all unwelcome conduct targeting the victim's gender which poisons the work environment. [91] The main conceptual structure for harassment under s. 14 of the CHRA was first enacted by the Supreme Court in Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252. There the Court said that the test for sexual harassment is unwelcome conduct of a sexual nature that poisons the work environment. [92] This test was further elaborated by the Federal Court in Canada (Human Rights Commission) v. Canada (Armed Forces), [1999] 3 F.C. 653 (Franke). In Franke, the Court pointed out that the conduct or comments must be sexual in nature or gender-based. The range of conduct which would qualify for harassment includes gender-based insults, sexist remarks, or comments about a person's look or appearance. It would also include jokes or comments that cause awkwardness or embarrassment. [93] The conduct must be unwelcome. What must be examined is the response or reaction of the complainant at the time of the incident. Did the complainant expressly or by her behavior show that the conduct was unwelcome. Did the complainant notify the employer of the alleged unwelcome conduct. If the conduct was sexual in nature or gender related and shown to be unwelcome, there must be further inquiry, namely, whether the conduct resulted in a poisoned work environment. [94] This will depend on the persistence or seriousness of the conduct. In Franke, the Court considered that the more serious the conduct, the less repetition is necessary to establish harassment. The less serious, the more persistence must be demonstrated. The Court also pointed that, when determining whether the conduct falls within the ambit of sexual in nature or whether it is sufficiently severe or persistent to create a poisoned workplace, the reasonable person standard applies. [95] Ms. Keeper-Anderson relies on four incidents to demonstrate a breach of s. 14. It is not clear whether Ms. Keeper-Anderson considers the pay cheque incident to be harassment or adverse differentiation. In my opinion, it does not matter how it is characterized. As will be seen, I conclude that it is neither. [96] Consider then the four alleged incidents of harassment. It is clear that the Rent-A-Nerd comments as reported by Ms. Keeper-Anderson were gender-based. They referenced the number of her children, that she was breastfeeding and the size of her breasts. [97] At the dinner, Ms. Keeper-Anderson told both SCO executive director and her supervisor that she was upset and embarrassed by the comments. That the comments crossed the boundary of her professional and private life and were unwelcome. [98] But I am not persuaded that the conduct of the Rent-A-Nerd was so serious and/or persistent as to create a poisoned work environment for Ms. Keeper-Anderson. They may have been embarrassing or upsetting for Ms. Keeper-Anderson. It was an isolated incident. The presence of the Rent-a Nerd was nothing more than a transient event. It did not become an enduring feature of Ms. Keeper-Anderson's employment experience. Nor is there any evidence that it negatively altered her working conditions at SCO. [99] I characterize the same way the remarks made by Chief Swan at the December 2003 Christmas party. They were gender-based to the extent that they referred to Ms. Keeper-Anderson's pregnancy. Ms. Keeper-Anderson said that she was upset by this. But both Ms. McCorrister and Chief Swan testified that Ms. Keeper-Anderson never told them that she was offended by the Chief's comments. [100] Again it was a one-off incident. It occurred more than a year after the Rent-a Nerd. Chief Swan testified that she did not single out Ms. Keeper-Anderson. It is very difficult to conclude that this had the effect of poisoning Ms. Keeper-Anderson's workplace environment. [101] As to the October 2003 meeting, Ms. Keeper-Anderson was not present. She did not say how she learned that Chief Swan wanted her fired because she was pregnant. The only evidence is that Mr. Wuttke told her that he was to fire her but refused because there was no reason to do so. Ms. Keeper-Anderson was not terminated. She continued to work at SCO. [102] Finally, there is the allegation that Mr. Assiniboine repeatedly asked her, during January/February 2004, when she would be taking maternity leave. Mr. Assiniboine's evidence was that as the SCO health advocate, he had a genuine interest in Ms. Keeper-Anderson's well being. And as acting executive director, he would have to know when Ms. Keeper-Anderson would be taking maternity leave and plan accordingly for the project. I fail to see how these inquiries could be characterized as gender-based harassment. [103] A final consideration is that these incidents were unrelated, isolated, and occurred over the period from September 2002 to January 2004. They were certainly not persistent. [104] I have concluded that a reasonable person would not, in these circumstances, consider that these incidents were sufficiently serious or repetitive as to poison Ms. Keeper-Anderson's work environment. Ms. Keeper-Anderson has not established a contravention to s. 14 of the CHRA. [105] Ms. Keeper-Anderson referred to telephone conversation that she had with Mr. Assiniboine on February 12, 2004. She claims that Mr. Assiniboine told her that she had not received her pay cheque because she had been placed on probationary status in December 2002. [106] It is not clear whether Ms. Keeper-Anderson is alleging harassment or adverse differentiation. In my view, given the facts, it is neither. I accept Mr. Assiniboine's evidence that the reason why Ms. Keeper-Anderson was not paid on this day was that SCO did not have the funds to do so. [107] Other SCO staffs including Chief Swan, Ms. McCorrister and Mr. Assiniboine were not paid. Ms. Keeper-Anderson was not singled out on this occasion. And she was paid two days later, as were the others. B. Termination of Her Employment - S. 7 of the CHRA [108] Dealing now with the termination of her employment, Ms. Keeper-Anderson has established a prima facie case of discrimination under s. 7(a) of the CHRA. But for her pregnancy and the sickness related to the pregnancy, she would not have absented herself from the workplace; but for her absence from the workplace, SCO would not have formed the opinion that she had abandoned her job. The conclusion of abandonment led to the refusal to continue to employ. [109] SCO now has the burden of providing a reasonable, non-discriminatory explanation for its conduct. SCO initially took the position that Ms. Keeper-Anderson had abandoned her employment. However, this position became untenable on March 29, 2004 when Ms. Keeper-Anderson called in to say, quite unequivocally, that she had not resigned her position and was planning to come back. [110] This is when the true refusal to continue to employ occurred. At this point, SCO's position was based, not on any theory of abandonment, but apparently on Ms. Keeper-Anderson's previous failure to provide advance notice of - and obtain advance authorization for - her absence from the workplace. Moreover, it would appear that the refusal was also based on the effluxion of time, a lapse of over two months. [111] Viewed from the perspective of March 29, 2004, is reliance on Ms. Keeper-Anderson's earlier breach of the leave policy a reasonable explanation for no longer employing her? I do not think so for these reasons: at the time SCO refused to reconsider its decision, it knew of Ms. Keeper-Anderson's true intent, i.e. to return to work after her pregnancy-related leave; for a significant amount of time prior to March 29, 2004, SCO knew that Ms. Keeper-Anderson was pregnant and would be seeking maternity leave in the near future. [112] SCO made no attempt to establish that timely compliance with the leave policies was a bona fide occupational requirement. Therefore the only avenue available to rebut the prima facie case is to demonstrate that its employment refusal was unconnected with Ms. Keeper-Anderson's pregnancy. This, it has been unable to do. [113] Its position from March 29, 2004 onward amounted to a refusal to retroactively grant the complainant leave related to the birth of her child. Again, while such a refusal may have been completely justifiable on the grounds of undue hardship - given the lapse of time and the possibility that someone new may have already been hired - no such justification was alleged in this case. [114] By the same token, SCO did not attempt to justify its actions on the grounds that Ms. Keeper-Anderson's somewhat surreptitious means of obtaining a ROE without going through proper channels revealed dishonesty incompatible with the maintenance of the employment relationship. [115] What is left is the fact that SCO, in refusing to reconsider its conclusion of abandonment, did so in full knowledge of the pregnancy-related reasons for the complainant's absence, and her intention to return to work as soon as possible. In these circumstances, its refusal to continue to employ her was based, at least in part, on the prohibited ground of sex. Therefore, this aspect of the complaint has been substantiated. IV. REMEDY [116] Ms. Keeper-Anderson requested that the Tribunal award: lost income for the period May 2005 to May 2007 being $90,000 at $45,000/annum; lost of benefits of $5,000; $5,000 for pain and suffering; $15,000 as damages for the willful and reckless conduct of SCO; costs incurred in selling her house; legal costs; interest on the above amounts. [117] Before I can decide what Ms. Keeper-Anderson should receive by way of remedy, I need to know the total income received from all sources by Ms. Keeper-Anderson from May 2005 to May 2007, and whether she is required to reimburse EI for EI benefits or any other government agency for income assistance benefits which she received in that period. [118] Ms. Keeper-Anderson is also to provide any legal accounts showing the legal costs she incurred relating to her complaint. [119] Ms. Keeper-Anderson is to provide the Tribunal and SCO counsel with this information by July 15, 2008. In the meantime, I urge the parties to try and agree on compensation for Ms. Keeper-Anderson. [120] I remain seized of this complaint until the question of remedy is finalized. Signed by J. Grant Sinclair OTTAWA, Ontario June 20, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1167/4906 STYLE OF CAUSE: Loretta Keeper-Anderson v. Southern Chiefs Organization Inc. DATE AND PLACE OF HEARING: June 4, 5 and 6, 2007 Winnipeg, Manitoba DECISION OF THE TRIBUNAL DATED: June 20, 2008 APPEARANCES: Loretta Keeper-Anderson For herself No one appearing For the Canadian Human Rights Commission Harold Cochrane/Voula Kotoulas For the Respondent

2008 CHRT 27

CHRT

Lavoie v. Treasury Board of Canada

en

2008-06-20

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6712/index.do

2023-12-01

Lavoie v. Treasury Board of Canada Collection Canadian Human Rights Tribunal Date 2008-06-20 Neutral citation 2008 CHRT 27 File number(s) T1154/3606 Decision-maker(s) CAHILL, Kathleen Decision type Decision Decision Content BRIGITTE LAVOIE Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - TREASURY BOARD OF CANADA Respondent DECISION 2008 CHRT 27 2008/06/20 MEMBER: Kathleen Cahill I. INTRODUCTION II. THE FACTS A. Evidence of the complainant, Ms. Lavoie B. The respondent's evidence C. The Commission's evidence III. ISSUES IV. ADMISSIBILITY OF THIS COMPLAINT V. LEGAL BACKGROUND VI. ANALYSIS A. Prima facie evidence of discrimination (i) The facts particular to Ms. Lavoie (ii) The new policy B. Did the respondent provide a reasonable explanation? (i) Parental leave trends (ii) Statistical evidence filed at the hearing (iii) Bona fide occupational requirement VII. THE RELIEF REQUESTED BY MS. LAVOIE AND THE COMMISSION: A. Amendment of the policy to eliminate discriminatory aspects B. Loss of opportunities or privileges and loss of salary C. Special compensation D. Interest VIII. THE TRIBUNAL'S ASSERTION OF JURISDICTION I. INTRODUCTION [1] On January 19, 2004, Brigitte Lavoie (Ms. Lavoie) filed a complaint against Treasury Board of Canada (the respondent) alleging that the new Term Employment Policy (the new policy) discriminates on the basis of sex. [2] Ms. Lavoie alleges that paragraph 7(2)(a) of the new policy breaches sections 7, 8 and 10 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act), based on the fact that periods of maternity leave or parental leave without pay are not counted in calculating the cumulative three-year working period required for conversion from term employee status to indeterminate employee (permanent) status in the federal Public Service. [3] The Canadian Human Rights Commission (the Commission) attended the hearing which was held at Ottawa on September 24, 25, 27 and 28, 2007, and from January 21 to January 25, 2008. [4] Based on an agreement made when the first complaint of discrimination was filed by Ms. Lavoie on July 10, 2007, the respondent contends that Ms. Lavoie cannot dispute the new policy in a personal capacity, which includes claiming relief on a personal basis. For the reasons given in the decision, I dismiss this ground of inadmissibility. [5] For the reasons stated below, I have determined that the respondent differentiated adversely against Ms. Lavoie in the course of employment when it refused to count the period of parental leave in determining her eligibility for an indeterminate appointment (section 7 of the Act). For the same reason, I find that the new policy deprived Ms. Lavoie of employment opportunities (section 10 of the Act). [6] By not counting the maternity leave or parental leave, the respondent's new policy differentiates adversely in the course of employment (section 7 of the Act) female term employees who take maternity and/or parental leave and deprives or tends to deprive these employees of employment opportunities on the basis of their sex (section 10 of the Act). [7] I also order the respondent to amend the new policy in such a way as to remove the discriminatory aspects to the effect that periods of maternity leave or parental leave longer than 60 consecutive calendar days are not counted for the purposes of calculating cumulative service for an indeterminate appointment. [8] Accordingly, Ms. Lavoie's complaint is allowed. II. THE FACTS A. Evidence of the complainant, Ms. Lavoie [9] Historically, the Long Term Specified Period Employment Policy (the former policy) provided the right to convert a term appointment to an indeterminate appointment for any person in a term appointment for a five-year period. Under the former policy, leave without pay, regardless of the period of time, was taken into account in calculating the cumulative service of five years. [10] At the end of 2002, the respondent adopted a new term employment policy (the new policy) pursuant to which the necessary cumulative service to convert a position would thereafter be three years. This new policy excluded leave without pay of more than 60 consecutive calendar days from the calculation of cumulative service. [11] Pursuant to the new policy, maternity leave and parental leave are considered as leave without pay. Accordingly, the period of this leave is not taken into account in calculating the three years of cumulative service. [12] The new policy came into force at Industry Canada on April 1, 2003, with immediate application to term contracts already in effect. Therefore, as of April 1, 2003, for all contracts in effect, periods of leave without pay of more than 60 consecutive days were no longer counted when calculating the cumulative service of three years. [13] With the application of the new policy, Ms. Lavoie's parental leave, from April 1, 2003, until the end of her contract (August 5, 2003), was not counted as part of the cumulative service of three years. According to Ms. Lavoie, if the period of absence starting from April 1, 2003, had been counted, her term position would have been converted to an indeterminate appointment. Accordingly, Ms. Lavoie would have been given indeterminate employee status. [14] Ms. Lavoie obtained her first term employment contract on August 7, 2000, as a programmer-analyst at the Intellectual Property Office at Industry Canada. This one-year contract was successively renewed in August 2001 and August 2002, specifically beginning on August 5, 2002 until August 5, 2003, inclusively. There was no interruption of service between the two contract renewals. [15] During maternity leave in December 2000, the complainant was replaced in her duties by her spouse, himself a term employee hired after Ms. Lavoie. [16] Regarding the nature of her work at the time that she took her leave in August 2002, Ms. Lavoie declared that she performed the same work as three male indeterminate employees, one female term employee and two consultants. [17] At the beginning of 2002, Ms. Lavoie told her superiors that she intended to take a second maternity leave. In approximately April 2002, she was told that because of her impending absence, she would be immediately changing teams, since there had to be a person available for the project on which she was working. After indicating that she intended to file a complaint of discrimination, her superiors changed their decision, apologized for the imbroglio and advised her that she would be continuing in the same team. [18] On August 19, 2002, Ms. Lavoie took maternity leave ending on December 8, 2002 (17 weeks), followed by parental leave until August 19, 2003. [19] Initially, Ms. Lavoie undertook to return to work on March 3, 2003. [20] On February 21, 2003, she notified Industry Canada by e-mail that she had to extend her parental leave because she had not found anyone to take care of her child and because there was no space available at the daycare before the summer. [21] The same day, Sylvie Manseau, her immediate supervisor, sent the following e-mail to the complainant: [translation] As you plan to extend your maternity leave, I must advise you that your position will not be extended beyond August 5, 2003. As you are already aware, CS-02 competitions are currently taking place for indeterminate positions and, as indicated in the e-mail that I sent to you on December 5, 2002, the terms of employees who are not appointed to one of these positions will end at the close of the competition. [22] At the end of the exams and interview (March, April and May 2003) in which Ms. Lavoie had participated, she was informed in May 2003 that she had finished last in the CS-02 competition, i.e. eighth where there were seven indeterminate positions. Ms. Lavoie explained that she placed eighth in the competition because of the refusal of her then-supervisor, Ms. Goulet, to allow her to participate free of charge in training on a new work method in electronic language. This training was held during her maternity leave absence. Ms. Goulet explained to her that if she wanted to benefit from this training, she had to personally assume the expense, which according to Ms. Lavoie was approximately $10,000. Ms. Lavoie could not afford this expense. [23] Ms. Lavoie was the only one of the eight term employees at her workplace who did not obtain an indeterminate appointment. Her husband was among the seven individuals who did obtain an indeterminate appointment. [24] On June 2, 2003, Marc Lalande, Supervisor, Compensation and Benefits Division, informed Ms. Lavoie that under the collective agreement, considering that she had extended her leave beyond March 3, 2003, and that her contract ending on August 5, 2003, would not be renewed, she had to reimburse Industry Canada for the maternity benefits she received pursuant to the Supplementary Unemployment Benefit Plan (SUBP), i.e. $12,897.62. [25] On June 11, 2003, Ms. Lavoie received a letter from Sylvie Manseau of Industry Canada, confirming that her employment would end on August 5, 2003. [26] On June 2, 2003, Ms. Lavoie filed a grievance contesting Industry Canada's refusal to pay her parental benefits (SUBP) for the period between January and August 2003. [27] On July 10, 2003, Ms. Lavoie filed with the Canadian Human Rights Commission against Industry Canada a complaint of discrimination on the basis of sex, based on sections 7, 10 and 14 of the Act. [28] On July 18, 2003, Ms. Lavoie filed a grievance contesting Industry Canada's refusal to pay her the maternity allowance retroactive adjustment (SUBP) following the salary increase negotiated between Treasury Board and her union, the Professional Institute of the Public Service of Canada. [29] On July 30, 2003, a letter signed by Mario Blais, Compensation Advisor, stated that Ms. Lavoie owed a gross amount of $12,899.42 in maternity benefit overpayments (SUBP). [30] During a mediation session on October 20, 2003, Ms. Lavoie and Industry Canada agreed to settle the complaint filed with the Commission on July 10, 2003. It is important to point out that at the hearing, the parties waived all immunity from disclosure in regard to the agreement. [31] The principal elements of this agreement are as follows: Without [translation] an admission of liability in regard to the complaint, Industry Canada gave Ms. Lavoie an indeterminate appointment to begin on November 17, 2003. M s. Lavoie undertook to reimburse the benefits received under the SUBP. Ms. Lavoie acknowledged that [translation] this settlement is complete and final compensation for the alleged incidents and accordingly Industry Canada is discharged of all of the claims and causes of action resulting from the incidents in question. The grievances filed by Ms. Lavoie [translation] would follow their normal course and were not withdrawn. [translation] The complainant and her union reserve the right to file a complaint against the Treasury Board Secretariat regarding its policy entitled `Term Employment Policy'. [32] The Commission approved this settlement on October 27, 2003. [33] Ms. Lavoie began her new indeterminate employment with Industry Canada on November 17, 2003. [34] On January 19, 2004, Ms. Lavoie filed a new complaint before the Commission, this time against Treasury Board, alleging that the new policy was discriminatory, claiming losses resulting from the benefits of which she was allegedly deprived based on, in Ms. Lavoie's opinion, the application of the new policy. [35] At the hearing, Ms. Lavoie stated that during the mediation meeting, all of the remedies resulting from the application of the new policy, including her request to have the new policy abolished, had not been discussed. [36] Ms. Lavoie testified that the representatives of Industry Canada had never wanted to discuss all of her claims relating to the application of the new policy, so that the agreement settled only the matter of the indeterminate appointment. [37] At the hearing, Ms. Lavoie stated that the Industry Canada representatives in attendance at the mediation stated that her claims resulted from the application of the new policy and that only Treasury Board had the authority to address these issues. [38] According to Ms. Lavoie, it was in this context that it was agreed and stated in the agreement that she reserved the right to file a complaint with the Commission against Treasury Board contesting the new policy. [39] Following the loss of her employment in August 2002, Ms. Lavoie testified that she lived on loans. Because of these accumulated debts, she had to file for bankruptcy in 2006. The complainant separated from her spouse and sold her house. In accordance with the terms of the agreement, she reimbursed the benefits received pursuant to the SUBP. [40] Isabelle Pétrin, Labour Relations Officer for the Professional Institute of the Public Service of Canada, attended the mediation meeting held on October 20, 2003. [41] Ms. Pétrin testified that at this meeting, the Industry Canada representatives had always maintained that they were not responsible for anything involving the new policy; as a result, the substance of the discrimination complaint was not discussed. [42] According to Ms. Pétrin, the employment start date, i.e. November 17, 2003, was not negotiable from the point of view of the Industry Canada representatives. [43] Before closing her case, Ms. Lavoie stated that she was including the Commission's evidence in her evidence. B. The respondent's evidence [44] Lise Séguin testified at the hearing. [45] In 2002-2003, Ms. Séguin was Human Resources Director of the Intellectual Property Office at Industry Canada. At that time, Ms. Séguin was responsible for all of the complaints filed at the Commission against the department. [46] Ms. Séguin attended the meeting held on October 20, 2003, as a human resources advisor. At that time, she was accompanied by Agnès Lajoie, Director of the Patent Branch at the Intellectual Property Office. [47] Ms. Séguin explained that Ms. Lavoie had told her story. Then each party left to confer. On returning, Agnès Lajoie stated that they were prepared to offer a permanent position to Ms. Lavoie, namely an indeterminate appointment. [48] Ms. Séguin testified that the date of November 17, 2003, is explained by the fact that management had taken a gamble by increasing its resources despite the lack of operational needs, but was however anticipating the departure of one person as of November 17, 2003. It was in this context that the date of November 17, 2003, was proposed. [49] According to Ms. Séguin, there was no discussion regarding the new policy, apart from Ms. Pétrin's alleged statement at one point that the new policy discriminated against pregnant women. [50] For Ms. Séguin, the new policy was not their responsibility; Industry Canada had not instigated this new policy, but rather Treasury Board. [51] Ms. Séguin did not wish to discuss the new policy. To the contrary, Industry Canada had to apply the new policy and it did so. [52] Ms. Lavoie and Ms. Pétrin were the ones who asked that the agreement specify the right to file a complaint against Treasury Board. For Ms. Séguin, Ms. Lavoie had the right to complain about any policy and this was not their responsibility. [53] Ms. Séguin stated that she does not make it a practice to reserve compensation claims for other departments. She would not have signed an agreement of such magnitude if there had not been a waiver such as the one referred to in article 2 of the agreement. [54] On cross-examination, Ms. Séguin acknowledged that she could not agree on relief measures inconsistent with the application of the new policy. [55] Ila Murphy, Senior Project Officer with the Treasury Board Secretariat, was an active participant in developing the new policy as well as in the consultations preceding its adoption. [56] Ms. Murphy explained that the Public Service Alliance of Canada (PSAC) had, during the collective agreement negotiations in the autumn of 2001, requested that the number of term employees be reduced. [57] This is how, in November 2001, PSAC and the respondent came to agree to establish a joint committee made up representatives of PSAC and of the respondent to study the term employment situation in the Public Service of Canada. [58] This committee carried out research to identify the categories of persons contemplated by term employment within the Public Service and consulted various interested parties, including employees and managers. [59] In performing its mandate, this committee organized workshops across Canada with term employees as well as managers. [60] There was a survey of term employees who were PSAC members. Ms. Murphy stated that of the 1,251 term employees who responded to the survey, 71% were women. [61] This participation rate is representative of the percentage of women holding term appointments within the Public Service which, according to the report, was 61% at March 31, 2002. In September 2001, the average age of indeterminate employees was forty-three (43) years while the average age of term employees was thirty-seven (37) years. [62] The joint committee filed a report in August 2002 setting out several observations including some regarding the treatment of term employees. [63] One of the principal observations was the very significant insecurity felt by the majority of term employees: the inability to make plans for the future, difficulty obtaining loans and mortgages, hesitance to start a family, stress related to financial responsibilities, anxiety every year on each contract renewal. [64] Without amounting to a major finding, the report notes that there was sufficient mention of term employees that were not extended for maternity reasons. [65] As a supporting document of the report, there are the results of the 14 focus groups made up of term employees, PSAC members. The insecurities of these employees are reported, including those of some women who feared that if they were to become pregnant that their employer would let their term lapse at the earliest opportunity. [66] One of the principal recommendations is formulated as follows: Term employees in the federal Public Service should be automatically converted to indeterminate status after two years of cumulative service, in the same department, without a break in service of more than 60 consecutive calendar days. [67] The report recommends progressively implementing the reduction of the period of cumulative service, namely: When the policy comes into effect, employees with three or more years of service would be converted to indeterminate appointments; One year after the policy comes into effect, employees with two or more years of service would be appointed; Thereafter, term employees would be given indeterminate appointments after accumulating the required two years of service. [68] Ms. Murphy explained at the hearing that one of the concerns was to avoid readjustments of the workforce within a department. Therefore, due consideration had to be given to the risk of having a surplus of indeterminate employees in a given unit, which could eventually lead to indeterminate employee dismissals. Dismissals involve costs. [69] The public interest and the additional burden on taxpayers were considered in developing a new policy. It had to be ensured that this new policy would not involve additional costs for the Crown. [70] According to Ms. Murphy, it was a matter of balancing the fair treatment of term employees and maintaining a certain operational flexibility in favour of the managers. [71] Then, Ms. Murphy and a colleague, André Carrière, prepared a first draft of the policy that was the subject of a consultation with the unions, including PSAC. [72] This draft specifically provided for the exclusion of leave without pay in calculating cumulative service. The draft also included a change with regard to the recommendation made by the Joint Committee. Instead of the two years referred to in the report, the cumulative service provided in the draft policy was three years, without reference to a progressive implementation as the report had provided. [73] Ms. Murphy explained that this change in regard to the service period was due to the managers who considered that the two-year period was too short. A two-year period could create a risk that managers would be prompted to prefer hiring temporary employees. Unlike term employees, temporary employees have fewer benefits, are not unionized and do not receive merit ratings. [74] On December 20, 2002, the Right Honourable Lucienne Robillard, President of the Treasury Board, publicly announced the new policy, specifying in her news release that the deputy heads of the departments would have from April 1, 2003 to April 1, 2004, to implement it. [75] The news release summarizes the changes, including the following: The threshold for term to indeterminate appointment will be three years in the same department without a break in service longer than 60 consecutive calendar days. A period of leave of absence without pay longer than 60 consecutive calendar days, while it will not constitute a break in service, will not be included in the calculation of the cumulative working period for appointment to indeterminate status. [76] Ms. Murphy confirmed in her testimony that the new policy did not make a distinction between the various categories of leave without pay. [77] Dr. Simon Langlois, a tenured professor of the sociology department at the Université Laval, testified as an expert. Dr. Langlois filed a report entitled [translation] Parental leave in Canada. Sociological trend analysis. [78] First, Dr. Langlois painted a sociological portrait of parental leave trends, pointing out the development of an increasing number of men taking parental leave. According to Dr. Langlois, this increase in fathers taking parental leave appears to be related to the adoption of new policies in the Employment Insurance Plan improved in 2001. Dr. Langlois reported that Statistics Canada qualified the trend as a significant increase. [79] A survey established that men tend to take shorter leave, i.e. generally less than six months. In fact, more than two thirds returned to work in the month following the birth or adoption of the child. [80] The same survey indicates a willingness on the part of the parents to take longer leave when conditions are more favourable. Dr. Langlois pointed out that the adoption of the new Régime d'assurance parentale au Québec (RQAP) illustrates this trend of fathers' behaviour. In fact, men represented one third of the RQAP beneficiaries in the first year that the program came into effect. These results are higher than those recorded by Statistics Canada in all of Canada. [81] Recognizing that equality of men and women in terms of taking parental leave has not been [translation] perfectly achieved, Dr. Langlois determined that an increasing number of fathers will take parental leave in the future. [82] Second, Dr. Langlois noted an emerging trend of sharing duties and responsibilities in family matters. The responsibility traditionally assigned to mothers because of inter alia restrictive cultural norms are fading to give way to a better balance in sharing duties and responsibilities within the couple. [83] Dr. Langlois analyzed the statistics provided by the respondent in regard to taking more than 60 days of leave without pay among term employees in the respondent's employ. He was of the opinion that a firm conclusion could not be made in terms of the causal relationship between women taking maternity leave and parental leave and the effect of this leave on indeterminate conversion. Dr. Langlois pointed out in his report that, except for 2003-2004, the statistics do not systematically establish a disproportionate effect on female term employees. Finally, Dr. Langlois was of the opinion that the statistics did not support a conclusion regarding the effect on the number of women having access to indeterminate employment. C. The Commission's evidence [84] Dr. Jeffrey G. Reitz, professor of sociology at the University of Toronto, testified as an expert witness. Dr. Reitz filed a report in which he principally assessed whether the statistical data provided by the respondent at the request of the Commission revealed a prejudicial effect of the new policy on women hired for term appointments within the Public Service of Canada. [85] First, Dr. Reitz noted that there are more women among term employees. It is more likely that more women than men will become term employees with the Public Service of Canada. According to the statistics provided by the respondent, 59.8% were women in 2003-2004, 59.8% in 2004-2005 and 59.4% in 2005-2006. [86] Dr. Reitz is of the opinion that a negative impact of the new policy on women can be assessed from two perspectives: Are women more likely to be affected by the fact that absences longer than 60 consecutive calendar days are excluded from cumulative service? Is there a decreasing incidence of indeterminate conversion among women or can we observe that a longer period is required for women to obtain indeterminate conversion? [87] After analyzing the statistics provided by the respondent, Dr. Reitz determined that the new policy had a negative effect on women and created obstacles to their eligibility for indeterminate employment. [88] Among term employees, the numbers indicate that women tend to take leave of more than 60 consecutive days. This difference between genders is explained inter alia by maternity, but also by an increased incidence of long-term parental leave among women. Finally, the number of men taking parental leave of less than 60 days is higher than the number of women. [89] On the second perspective of his analysis, even though it is more difficult to assess in terms of causal relationship, Dr. Reitz observed inter alia that the percentage of women obtaining indeterminate conversion after three years was lower than expected, considering that there are more women among term employees. [90] Indeed, he noted that a greater percentage of women had indeterminate conversion at the end of seven years. For Dr. Reitz, this observation could be the result of the application of the new policy and indicate that taking maternity leave and/or parental leave of more than 60 days significantly delayed a number of women in acquiring indeterminate employee status. III. ISSUES [91] Does the Tribunal have the jurisdiction to hear Ms. Lavoie's complaint filed on January 19, 2004, based on the settlement made in the previous complaint? [92] In the affirmative, was Ms. Lavoie discriminated against on the basis of sex within the meaning of sections 7 and 10 of the Act? [93] Are the provisions of paragraph 7(2)(a) of the new policy discriminatory toward women on maternity leave and/or parental leave under sections 7 and 10 of the Act? IV. ADMISSIBILITY OF THIS COMPLAINT [94] The respondent submitted that the complaint filed by Ms. Lavoie is inadmissible, taking into account that she waived claims to other relief in the settlement dated October 20, 2003. Specifically, the respondent contends that Ms. Lavoie compromised all aspects of this complaint against the respondent when she accepted the agreement dated October 20, 2003. [95] From the outset, bear in mind that on February 5, 2007, Karen A. Jensen, member of this Tribunal, decided a motion on the inadmissibility argument filed by the respondent in this matter (see: 2007 CHRT 3). [96] Ms. Jensen determined that the respondent's motion seeking the dismissal of the complaint on the grounds that the issues raised had been settled and would now be moot could not be granted. [97] Relying inter alia on sections 40 and 53 of the Act, Ms. Jensen dismissed the respondent's motion on the grounds that the Act does not require that a complaint contemplate individual relief or that the complainant be the victim of discriminatory practices. [98] Secondly, Ms. Jensen wrote that when the settlement was made, Ms. Lavoie reserved her right to file a complaint against the respondent Treasury Board in regard to the new policy. Ms. Jensen determined that the discriminatory nature of the new policy had therefore not been examined. [99] Finally, Ms. Jensen left it to this Tribunal to determine, in the event that the complaint were founded, whether Ms. Lavoie was entitled to claim relief, given the settlement reached with Industry Canada. [100] At this hearing, the respondent acknowledges that Ms. Lavoie may challenge the new policy. It disputes, however, her right to contest it on a personal basis, including the right to claim relief measures. [101] For the reasons given below, I determine that Ms. Lavoie reserved the right to challenge the new policy on a personal basis in every aspect, including that of claiming relief measures on a personal basis. It is important to refer to the principal aspects of this agreement (see: Bushey v. Sharma, 2003 C.C.R.D. No. 7, paragraph 20): Without [translation] an admission of liability in regard to the complaint, Industry Canada gave Ms. Lavoie an indeterminate appointment to begin on November 17, 2003. Ms. Lavoie undertook to reimburse the benefits received under the SUBP. Ms. Lavoie acknowledged that [translation] this settlement is complete and final compensation for the alleged incidents and accordingly Industry Canada is discharged of all of the claims and causes of action resulting from the incidents in question. The grievances filed by Ms. Lavoie [translation] would follow their normal course and were not withdrawn. [translation] The complainant and her union reserve the right to file a complaint against the Treasury Board Secretariat regarding its policy entitled `Term Employment Policy'. [102] Note that the agreement was between the complainant and Industry Canada and that the waiver (article 2) specifically contemplates Industry Canada. Ms. Lavoie expressly reserved the right to file a complaint against the respondent Treasury Board in regard to the new policy. Ms. Lavoie did not receive any financial compensation for the alleged discriminatory aspect of the new policy. [103] On reading the agreement, I find that Ms. Lavoie did not waive the right to challenge the policy on a personal basis or the right to claim relief measures in the event that her complaint were allowed. [104] At the hearing, the parties asked me to receive testimony regarding the discussions which took place during the mediation. According to the parties, the agreement is clear on reading, but they do not interpret it the same way. [105] After analyzing the testimonial evidence given on this point by Ms. Lavoie and the respondent, I find that the discussions between the parties on October 20, 2003, confirm that the agreement contemplated only the settlement of the claims that were the responsibility of Industry Canada. [106] Ms. Séguin confirmed the testimony of Ms. Lavoie and that of Ms. Pétrin to the effect that there was no discussion of the new policy because it was not their responsibility, but rather that of Treasury Board. In short, Ms. Séguin could not discuss the discrimination alleged by the complainant or the resulting relief measures. This is how the complainant came to reserve the right to challenge the new policy. [107] The respondent submitted at the hearing the argument on the indivisibility of the Crown. Ms. Lavoie responded that Ms. Jensen had already decided this issue on the first motion. In any event, I find that in this case, Ms. Lavoie and Industry Canada agreed to leave pending all of Ms. Lavoie's allegations bearing on the new policy and the resulting relief measures. The parties did not divide the Crown into two distinct legal entities, but rather severed the allegations. Accordingly, the respondent's motion for inadmissibility is dismissed (see: Bushey v. Sharma, 2003 C.H.R.D. No. 15, paragraph 143). V. LEGAL BACKGROUND [108] Section 7 of the Act provides that it is a discriminatory practice to refuse to continue to employ any individual, or in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination, including sex. [109] According to section 10 of the Act, it is a discriminatory practice for an employer to establish or pursue a policy or practice, or to enter into an agreement affecting any matter relating to employment that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination. [110] In a matter such as this, the burden of proof is first on the complainant, Ms. Lavoie, and the Commission, who must establish prima facie evidence of discrimination (see: Israeli v. Canadian Human Rights Commission and Public Service Commission (1983), 4 C.H.R.R.D/1616,1618; Basi v. Canadian National Railway Company (1988), 9 C.H.R.R.D/5029; Premakumar v. Air Canada, T.D. 03/02, 2002/02/04; and Lincoln v. Bay Ferries, [2004] F.C.A. 204). [111] Prima facie evidence is evidence 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 (see: Ontario (Human Rights Commission) v. Etobicoke (Borough), [1982] 1 S.C.R. 202, at page 208; Ontario (Human Rights Commission) v. Simpson Sears Ltd., [1985] 2 S.C.R. 536, at paragraph 28). [112] In Lincoln v. Bay Ferries Ltd (supra, at paragraph 22 of the decision), the Federal Court of Appeal states that to answer the question as to whether prima facie evidence has been established, the Tribunal must not, at this stage, take into account the respondent's answer. [113] Once prima facie evidence has been established, the respondent's explanations must be reasonable or satisfactorily explain the otherwise discriminatory practice (see: Lincoln v. Bay Ferries Ltd., supra, paragraph 23 of the decision; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), [2005] F.C.A. 154, at paragraphs 26 and 27). [114] It must be pointed out that the conduct of an employer will not be considered discriminatory if the employer is able to establish that 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 (BFOR) (paragraph 15(1)(a) of the Act). For a practice to be considered to have a BFOR, it must be established that the 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 (subsection 15(2) of the Act). [115] Discrimination on the basis of pregnancy or childbirth is discrimination on the basis of sex (subsection 3(2) of the Act and Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219). Subsection 3(2) also contemplates the period following childbirth (see for example: Tomasso v. Canada (Attorney General), 2007 FCA 265, paragraphs 117 and 119). [116] In Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252, 1279 (Dickson J.), the Supreme Court of Canada defined discrimination on the basis of sex as follows: . . . 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 related to gender. [117] The case law recognizes the difficulty establishing allegations of discrimination through direct evidence. The Tribunal must take into account all of the circumstances to establish whether there is what was described in Basi (supra) as the subtle scent of discrimination. [118] To determine whether there is discrimination on the basis of sex, I must examine the evidence filed by Ms. Lavoie regarding the effect of their policy on Ms. Lavoie's personal situation. I must also determine whether the new policy has discriminatory effects on female term employees based on gender. It is important to note that even if Ms. Lavoie's personal situation did not establish prima facie evidence of discrimination, I must nevertheless determine whether the respondent's new policy makes distinctions based on gender. [119] At the hearing, Ms. Lavoie and the respondent did not make any specific arguments regarding section 8 of the Act. I find on this basis that Ms. Lavoie abandoned this argument. Accordingly, my analysis will not bear on an alleged breach of this section. [120] In this case, Ms. Lavoie and the Commission must establish the following: The respondent differentiated adversely against Ms. Lavoie in the course of employment when it refused to count the parental leave absence in determining her eligibility for an indeterminate appointment (section 7 of the Act). For the same reason, the new policy deprived Ms. Lavoie of employment opportunities (section 10 of the Act). By failing to include the maternity leave and parental leave, the respondent's new policy differentiates adversely in the course of employment (section 7 of the Act) in regard to female term employees who take maternity leave and/or parental leave and deprives or tends to deprive these employees of employment opportunities on the basis of their sex (section 10 of the Act). [121] Ms. Lavoie alleges that in the course of employment, there was adverse differentiation in her regard because of the application of the new policy on the basis that from April 1, 2003, her leave of absence was no longer counted for the purposes of calculating cumulative service. Accordingly, she was four months short of the three years of uninterrupted service, depriving her of the right to become an indeterminate employee. [122] The respondent contends that all of the evidence submitted by Ms. Lavoie and the Commission is not sufficient to find that there was prima facie evidence of discrimination for the reasons that I would summarize as follows: Paragraph 7(2)(a) of the new policy applies to all persons who are on leave without pay, including those on sick leave or disability leave, educational leave, secondment, personal obligation leave, etc. Accordingly, maternity leave and parental leave are not the only ones contemplated by the new policy. Considering the foregoing, the respondent submits that Ms. Lavoie as well as all of the female term employees taking maternity leave and/or parental leave must be compared with others who are on leave without salary; Men and women are also contemplated by paragraph 7(2)(a) since, for example, men as well as women may take parental leave, sick leave or disability leave. As soon as a measure affects men as much as women in the same way, which would apply to this case, this measure cannot be considered discriminatory based simply on the fact that more women than men are likely to be affected by this measure; Only a measure with a disproportionate effect on female persons could be considered to discriminate on the basis of sex. [123] For the reasons stated hereafter, I find that the complainant, Ms. Lavoie, and the Commission established prima facie evidence of discrimination based on sex. VI. ANALYSIS A. Prima facie evidence of discrimination (i) The facts particular to Ms. Lavoie [124] Ms. Lavoie was given her first term employment contract in August 2000 as a programmer-analyst with Industry Canada. This contract for a term of one year was successively renewed in August 2001 and August 2002. There was no interruption of service between the contract renewals. I agree with Ms. Lavoie's claim that she had acquired the three years of cumulative service on August 5, 2003. [125] Ms. Lavoie's evidence indicates that Ms. Manseau told her that because of the extension of her maternity leave, she had to advise Ms. Lavoie that her employment contract would not be extended beyond August 5, 2003. There was therefore a need until August 5. I note indeed that this e-mail does not make any reference to the availability of work or the time for the duties to be performed. To the contrary, it is specified therein that there were competitions open for indeterminate appointments. Accordingly, I determine on this basis that the needs for which the complainant had been hired existed until August 5, 2003, and continued to exist beyond that date. [126] I also accept based on the evidence that before she left for her maternity leave, her future unavailability was called into question to such an extent that it was decided that she would change teams. Certainly, the supervisors changed their minds, but we cannot disregard the fact that the complainant's availability because of her announced maternity leave preoccupied Industry Canada representatives. Finally, the refusal to accommodate Ms. Lavoie by refusing her the opportunity to participate in training unless she assumed the costs herself appears to me to reinforce the idea that Ms. Lavoie's maternity leave was not appreciated. [127] Ms. Lavoie also testified that before she left on maternity leave in 2002, she was performing the same work as the indeterminate employees. [128] As stated earlier, in the time surrounding the coming into effect of the new policy, there were competitions held to fill seven indeterminate positions. These positions were filled, one of them by Ms. Lavoie's spouse. [129] From the preceding, I find that at all relevant times there was a permanent need for the term appointment of programmer-analyst for which the complainant had a contract ending on August 5, 2003, and that this need existed beyond August 5, 2003. [130] Ms. Lavoie's evidence establishes that but for the application of the new policy, i.e. not counting the parental leave time, Ms. Lavoie would have been appointed as an indeterminate employee as of August 6, 2003. The next step is to examine the new policy. (ii) The new policy [131] As already stated, the Long Term Specified Period Employment Policy (the former policy) provided for conversion of a position for any person who had worked in a term appointment for five years of cumulative service. Under the former policy, a period of unpaid leave was taken into account in calculating the five years of cumulative service. [132] According to the new policy which came into effect at Industry Canada on April 1, 2003, three years of cumulative service would be required to convert a term appointment to an indeterminate one. This new policy excludes unpaid leave from the calculation of cumulative service. [133] Maternity leave and parental leave are considered as leave without pay. Specifically, paragraph 7(2)(a) reads as follows: Departments/agencies, in determining whether a period of term employment in the same department/agency will count as part of the cumulative working period, must take the following into consideration: (a) a period of leave of absence without pay longer than 60 consecutive calendar days does not constitute a break in service and will not be included in the calculation of the cumulative working period for appointment to indeterminate status under this policy; [134] Ms. Lavoie and the Commission submit that this paragraph is discriminatory toward the complainant and all female term employees on maternity leave and/or parental leave. [135] Ms. Lavoie was entitled to 17 weeks of maternity leave and 37 weeks of parental leave. In fact, the complainant's period of absence coincided with the period during which she qualified for employment insurance benefits, i.e. 17 weeks of maternity leave, two weeks of waiting period and 37 weeks of parental leave. [136] In order to decide whether there is prima facie evidence of discrimination on the basis of sex, I must first determine the purpose of the plan conferring the benefit or the right at issue (see: Battlefords and District Co-operative Ltd. v. Gibbs, [1996] 3 S.C.R. 566, paragraph 33). [137] The purpose of the new policy is to balance the fair treatment of term employees with the need for operational flexibility. The policy statement states that the term employment option cannot be used to [fill] a permanent ongoing need. [138] In order to meet this objective, the respondent provided that term employees employed for a cumulative working period of three years without a break in service longer than 60 consecutive calendar days must [be] appoint[ed] . . . indeterminately at the level of his/her substantive position. For the purposes of the analysis, I will describe the right to be appointed as an indeterminate employee the [translation] conversion entitlement. [139] This conversion entitlement is the issue in this matter. In matters of discrimination, a distinction must be made between the rights resulting from compensatory benefits and non-compensatory benefits, i.e. those relating to the employee's status. And so, a bilingualism bonus conditional on the performance of work falls under the first category. Performance of the work is required to obtain the bonus. Accrual of seniority, the right to employment, the right to keep one's employment, the right to tenure are described as non-compensatory benefits and relate to the status of the employee. Underlying this second category is the notion that performance of the work is not required to acquire or maintain the right. We are therefore referring to a benefit or a right that results from employee status (see primarily: Ontario Nurses Association v. Orillia Soldiers Memorial Hospital, (1999), 42 O.R. (3d) 692, paragraphs 63, 70 and 71, applying the same criteria: Fernandes v. IKEA Canada, (2007) BCHRTD. No. 259, paragraphs 24, 25, 26, 27 and 31). [140] In this case, the conversion entitlement falls under the second category. It is intrinsically connected to the status of the employee. Accordingly, this implies that Ms. Lavoie and the other female term employees who take maternity leave and/or parental leave must be compared to all term employees who did not take a break in service longer than 60 consecutive calendar days (see: Ontario Nurses Association v. Orillia Soldiers Memorial Hospital, supra, at paragraphs 63, 70 and 71). [141] The respondent submitted that the relevant comparator group was all of the employees on leave without pay. Accordingly, I could not find prima facie evidence of discrimination since all of the employees of this classification were treated equally (see: Bernatchez v. La Romaine (Conseil des Montagnais), 2006 CHRT 37 and Dumont-Ferlatte v. Canada (Employment and Immigration Commission), 1996 D.C.D.P. No. 9). In both of these decisions, the complainants were claiming benefits described as compensatory, i.e. those that I described from the first category. Therefore in Bernatchez, the complainant was challenging the fact that her employer did not calculate the additional maternity leave benefits on the basis of the annual earnings of the persons who performed the work. The indemnity at issue was a benefit extended to employees on maternity leave and did not constitute earnings. Accordingly, the complainant had to be compared to persons on leave without pay. In Dumont-Ferlatte, the complainants alleged that it was discriminatory to deprive women on maternity leave of cumulative annual leave and sick leave credits and of the right to benefit from a monthly bilingualism bonus. Once again, the rights at issue are described as compensatory benefits. [142] The respondent also referred to Cramm (see: Cramm v. Canadian National Railway Company, 1998 IIJCan 2938 H.R.R.T. and Canadian Human Rights Commission v. Canadian National Railway Company (re Cramm), (2000) IIJCan 15544 (F.C., Mr. Justice MacKay). Contrary to Ontario Nurses Association, I note that in Cramm, the debate bears primarily on the performance of work requirement. The Tribunal does not describe the nature of the right sought by Mr. Cramm. In other words, for the reviewing court, was this a right under the first or second category? In my opinion, this question is fundamental since the answer identifies the comparator group. As I already stated, I consider that the conversion entitlement falls under the second category. For the reasons given in the foregoing paragraphs, I find that the comparator group is that of employees who did not take a break in service longer than 60 consecutive calendar days. [143] I must point out that it is not always necessary to determine a comparator group. In this case, it is my opinion that for maternity leave, determining a comparator group appears pointless since only women take maternity leave. On this point, I agree with the comments made by the Court of Appeal of Québec in Commission des écoles catholiques du Québec v. Gobeil, (see: [1999] R.J.Q. 1883 (Robert J.)) where the Court held that a school board's refusal to hire, on a part-time basis, a teacher who was not available based on her pregnancy was discriminatory: [translation] Pregnant women, but for their pregnancy, would be available. For this reason, I cannot adhere to a comparative analysis likening them to unavailable persons in order to determine whether or not there is a distinction. A rule that has the effect of depriving pregnant women of the right to be hired when they otherwise would have had access thereto necessarily breaches the right to full equality. The distinction created by the availability clause arises from the fact that childbirth and maternity leave hinder women from getting the contract to which they would be entitled. [Emphasis added.] [144] On its very face, excluding maternity leave absences of more than 60 consecutive days from the calculation of the cumulative service, in the course of employment, differentiates adversely in relation to term employees exercising their right to this leave (section 7) and deprives or tends to deprive them of employment opportunities (section 10). To use the wording of the Court of Appeal in Gobeil (supra), the connection between discrimination on the basis of sex and not including maternity leave is self-evident. In fact, only women take maternity leave. Further, when a woman takes maternity leave for 17 weeks, the time recognized for term employees, her absence necessarily exceeds the 60 calendar days. As a result, women who take maternity leave also extend the time for acquiring the conversion entitlement and even risk being deprived of this right if the term contract is not renewed in such a way as to recover the time that was not counted. This is in itself sufficient to establish prima facie evidence of discrimination on the basis of sex. [145] For parental leave, prima facie evidence must include establishing that there is a disproportionate negative effect on women since parental leave applies to men as well as women. For this reason, I must examine the statistical evidence (see: Walden v. Canada (Social Development), (2007) CHRD No. 54, paragraphs 39, 40 and 41, Premakumar, supra, paragraph 80). [146] Ms. Lavoie and the Commission submit that the statistical data clearly establish that it is largely women who take parental leave of more than 60 consecutive days. Ms. Lavoie and the Commission relied on table 12j (October 2007), primarily on the figures for the years 2003-2004. In this timeframe, 204 women took maternity leave and 164 took parental leave in the 52 weeks following the birth or adoption of a child. Indeed, we observe that 49 men benefited from parental leave in the same timeframe. In 2004-2005, 151 women took maternity leave, 169 women and 38 men took parental leave. In 2005-2006, 141 women took maternity leave, 136 women and 36 men took parental leave. During the same periods, table 12d (October 2007) indicates that a majority of men take parental leave for less than 60 days. [147] Besides the fact that we note that the data provided by the respondent at the request of the Commission indicates that in 2003-2004, one man went on maternity leave, it is my opinion that these figures are trustworthy. Accordingly, I dismiss the respondent's argument to the effect that the statistics are unreliable. These figures establish sufficient evidence of a disproportionate negative effect of the new policy on women who take parental leave. In fact, it is clear that more women than men take parental leave for more than 60 consecutive days. In 2003-2004, 77% of persons taking parental leave exceeding 60 consecutive days were women. This is a statistical reality that I cannot disregard. Like Ms. Lavoie, we must remember that women who take parental leave following the birth of a child have also taken maternity leave. Men are not likely to take both types of leave. Like women who take maternity leave, women who go on parental leave delay the time for acquiring the conversion entitlement and are deprived of this right if the term contract is not renewed in such a way that they will be able to recover the time that was not counted. In the case of Ms. Lavoie, this clearly had the effect of depriving her of the conversion entitlement. [148] In analyzing the prima facie evidence, I also considered the testimony of the Commission's expert, Dr. Reitz, whose findings were stated earlier. Bear in mind that Dr. Reitz determined, on analyzing the statistics, that the new policy has a negative effect on women and creates obstacles to their eligibility to become indeterminate employees and that some figures appear to suggest that the new policy significantly delays a number of women in acquiring indeterminate employee status. [149] Certainly, I observe that certain statistical data on the time required for women to obtain an indeterminate appointment includes appointment conversion situations, but also situations where the person obtains a permanent appointment through a competition. As the figures were filed by consent, certain explanations in their regard would have been desirable. [150] That said, I am of the opinion that I must take into consideration all of the circumstances to determine whether prima facie evidence of discrimination has been established (see: Premakumar, paragraphs 80 and 81). As I pointed out, prima facie evidence is evidence 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 (see: Ontario (Ontario Human Rights Commission) v. Etobicoke (Borough), [1982] 1 S.C.R. 202, at page 208; Ontario (Human Rights Commission) v. Simpson-Sears Ltd., [1985] 2 S.C.R. 536, at paragraph 28). [151] The respondent submits that the reviewing court in Cramm (supra) determined that quantitative evidence is insufficient to determine that more women than men suffer prejudicial effects. First, I observe that the reviewing court made these remarks after finding that it must compare the treatment of other employees absent on leave due to sickness or injury to those absent for other reasons. In this case, I dismissed the respondent's argument to the effect that the comparator group was all of the term employees on leave without pay. Therefore, I need not ask whether women on parental leave are differentiated more adversely than other employees on leave without pay. For the purposes of establishing whether or not there is prima facie evidence of discrimination, I can use statistical evidence to determine whether there is sufficient evidence. The statistical data submitted in this case clearly establishes that contrary to men, a substantial majority of women take more than 60 consecutive days of parental leave. The figures indicate that there is prima facie evidence of a disproportionate negative effect of the policy in regard to women who take parental leave. [152] Of the evidence filed, I find that the refusal to include maternity leave and/or parental leave is prima facie evidence of discrimination in the course of employment, differentiating adversely (section 7 of the Act) in relation to female term employees who take maternity leave and/or parental leave. This refusal to include the leave also establishes prima facie evidence of discrimination under section 10 of the Act, as it deprives or tends to deprive these employees of any employment opportunities on the basis of their sex (section 10 of the Act). [153] Finally, in the case of Ms. Lavoie, I find that the refusal to include her period of absence for parental leave establishes prima facie evidence of discrimination by differentiating adversely in her regard in the course of employment under section 7 of the Act and by preventing her from acquiring indeterminate employee status, which according to the terms of section 10 of the Act, deprived her of her employment opportunities. [154] In conclusion, all of the evidence submitted by Ms. Lavoie and the Commission establishes prima facie evidence of discrimination in breach of sections 7 and 10 of the Act (see: Premakumar, paragraph 80 and 81). [155] At the hearing, the possibility was raised that the complaint could also have been examined on the ground of discrimination on the basis of family status. However, the complaint exclusively contemplates discrimination on the basis of sex and the submissions at the hearing were based on the proposal to the effect that the discriminatory conduct was on the basis of sex. Accordingly, I will not formulate any conclusion on the ground of discrimination on the basis of family status. B. Did the respondent provide a reasonable explanation? [156] As mentioned earlier, once there is prima facie evidence of discrimination, the respondent must give a reasonable explanation. In this case, the respondent must establish that the refusal to include the period of absence of more than 60 consecutive days because of maternity leave or parental leave is based on a BFOR (paragraph 15(1)(a) of the Act). To this end, the respondent must establish that counting these absences for the purposes of conversion entitlement would impose undue hardship on the respondent in terms of health, safety and cost (subsection 15(2) of the Act). Before embarking on this analysis, I will address the evidence submitted by the respondent on the subject of parental leave trends and then the respondent's argument on the statistical evidence filed at the hearing. (i) Parental leave trends [157] The respondent contended that in my analysis, I must consider that more and more men are taking parental leave. The respondent's expert, Dr. Langlois, testified regarding an emerging trend in that area. Dr. Langlois is of the opinion that in Canada [translation] restrictive cultural norms in regard to women appear to be diminishing, resulting in an increase in the number of fathers taking longer parental leave, in part or entirely in the mother's place. That said, this trend does not mean that men take parental leave in the same proportion as women and for the same time. Dr. Langlois points out that in Canada, one inquiry established that more than two thirds of men returned to work in the month following the birth or adoption of the child. [158] For maternity leave, this trend is of no use given the biological reality associated with the birth of a child, including the psychological and physiological aspects for the mother in connection with the pregnancy and childbirth (see: Tomasso v. Canada (Attorney General), 2007 FCA 265, paragraphs 117 and 119). [159] I must emphasize that the right to equality of Ms. Lavoie and other term employees taking parental leave must be assessed in the present based on the evidence filed. It cannot be inferred from a trend, or be deferred based on a trend. (ii) Statistical evidence filed at the hearing [160] While I consider that this aspect must be addressed in the prima facie evidence analysis, which was done, I would add a few remarks about the statistical evidence filed at the hearing. The respondent submits that according to Cramm (supra), mere numerical superiority of a group affected by a neutral rule does not establish in the absence of other evidence that there is a disproportionate negative effect on the largest numerical group. I think it worthwhile to point out that this remark was inspired by a decision of the Supreme Court bearing on section 15 of the Canadian Charter (see: Thibaudeau v. Canada, [1995] 2 S.C.R. 627 and Thibaudeau v. M.N.R., [1994] F.C. 189 (C.A.)). I am of the opinion that we cannot systematically apply this comment without taking into consideration the issues specific to each matter; especially in a context where the litigation does not arise from the Charter but from a human rights act. In Brooks (supra, paragraph 29), the Supreme Court of Canada pointed out, in a matter of discrimination based on pregnancy, that the removal of unfair disadvantages which have been imposed on individuals or groups in society is a fundamental objective of human rights legislation. [161] In a context where the respondent's expert recognizes that there are [translation] restrictive cultural norms in respect to women, we cannot abide by these norms or principles set out in Brooks when I note that a substantial majority of female term employees are the predominant users of the parental leave exceeding 60 consecutive days. (iii) Bona fide occupational requirement [162] The Supreme Court set out a three-step method for determining whether a BFOR has been established (see: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 3 (Meiorin)). Hence, the respondent can justify the impugned standard if it establishes: that the employer adopted the standard for a purpose rationally connected to the performance of the job; that the employer adopted the particular standard in an honest and good faith belief that it was necessary to the fulfilment of that legitimate work-related purpose; that the standard is reasonably necessary to the accomplishment of that legitimate work-related purpose. To show that the standard is reasonably necessary, it must be demonstrated that it is impossible to accommodate individual employees sharing the characteristics of the claimant without imposing undue hardship upon the employer. The respondent must show that it considered and reasonably rejected all viable forms of accommodation. (i) Did the respondent adopt the standard for a purpose rationally connected to the performance of the job? [163] The objective of the new policy is to balance the fair treatment of term employees with the need for operational flexibility. The policy statement states that term appointments cannot be used to [fill] a permanent ongoing need. Therefore, the justification of reducing the cumulative service from five years to three years is largely supported by the evidence, particularly the testimony of Ms. Murphy and the report filed by the Joint Committee in August 2002. This report sets out several observations regarding the situation of term employees including primarily the great deal of insecurity felt by the majority of term employees. Insofar as the exclusion of leave without pay of more than 60 consecutive days from the cumulative service must be assessed in a more general context, such as the objective of the new policy, I find that this standard is rationally connected to the performance of the job and the duties at issue. [164] Accordingly, the first element of the defence has been established. (ii) Did the respondent adopt the standard in good faith? [165] On this point, I am of the opinion that the respondent adopted its standard in good faith. Accordingly, the second element of the defence has been established. (iii) Is the standard reasonably necessary to the accomplishment of the respondent's objective in such a way that it cannot accommodate the complainant and the other women who take maternity leave and/or parental leave without undue hardship? [166] From the outset, it must be emphasized that the new policy applies to employees like Ms. Lavoie, term employees of the respondent and who have been appointed under the Public Service Employment Act (PSEA) or any exclusion approval order made thereunder. While the new policy was the subject of a consultation with certain unions, this consultation cannot be used to justify the identified discriminatory effects. [167] The respondent argued that the exclusion of leave without pay of more than 60 consecutive days from the cumulative service must be assessed in the context where under this new policy, the period was reduced from five years to three years. In her testimony, Ms. Murphy explained that one of the concerns was avoiding workforce adjustments within the department. The risk of having a surplus of indeterminate employees in a unit could eventually lead to dismissals of indeterminate employees. This involves costs. Ms. Murphy stated that it had to be ensured that this new policy would not involve additional costs for the Crown. [168] Ms. Murphy also stated that the new policy is intended to strike a balance between fair treatment for term employees and maintaining a certain operational flexibility in favour of the managers. Ms. Murphy explained that for some managers, the two-year service period was too short to assess whether there was an ongoing need. According to the managers consulted, a two-year period would have prompted some of them to retain the services of temporary employees. [169] With regard to the work performance requirement, Ms. Murphy stated that this requirement was necessary in order to be able to assess the permanent needs of a position. [170] Ms. Murphy explained that these were all considerations in the adoption of the new policy, in its current form. [171] In my opinion, these considerations do not establish that it is impossible for the respondent to accommodate Ms. Lavoie and the other women taking maternity leave and/or parental leave without undue hardship. [172] On the subject of the work performance requirement, I must admit that the respondent did not establish a connection between this requirement and the exclusion of unpaid leave of more than 60 consecutive days. First, I note that paid leave is counted for the purposes of calculating cumulative service. Therefore, the fact that the person is absent from work does not appear, at least in part, to always be a requirement. [173] Further, the former policy did not count leave without pay while the wording of this policy also provided that term appointments should be used only in situations where a need clearly exists for a limited time and is not anticipated to [fill] a permanent ongoing need. The new policy uses in essence the same wording, indicating that term employment cannot be used to [fill] a permanent ongoing need. From the foregoing, I must find that it is the needs of the position itself that are assessed and the performance of the work by the person appointed to that position does not determine these needs. People can, for example, be replaced. This is what occurred when Ms. Lavoie's spouse replaced her during one maternity leave. The needs for the position were therefore connected to the work to be performed. [174] The evidence does not establish that the respondent proceeded with an analysis contemplating the possibility of counting the unpaid leave in the calculation of cumulative service, specifically, maternity leave and parental leave. The respondent did not provide any evidence on this subject, or on how including this leave could cause undue hardship for the respondent. Inter alia, I do not have any evidence of the additional cost associated with counting this leave in calculating the three-year period. I cannot assess the existence of undue hardship on the basis of the evidence filed. In short, the respondent has not shown me that it would be impossible to include the time for maternity leave and parental leave in the calculation of cumulative service. [175] This same finding also applies to Ms. Lavoie's situation because the respondent's evidence does not establish the existence of undue hardship justifying the respondent's refusal to include the complainant's parental leave in calculating the three years. Finally, the respondent's evidence does not establish that it was impossible to include the time of the complainant's parental leave. [176] Yet, the collective agreement applicable to the parties provides in certain situations that maternity leave and parental leave are considered as service. The respondent thus appears to recognize the principle of accommodation and the relevance of counting this leave in service. [177] The evidence does not reveal any specific consideration or study on the part of the respondent on the possibility of accommodating women who take maternity or maternity leave. In a context where term employment with the respondent is a more vulnerable professional activity and where it is clearly recognized that women are very much in the majority in this type of precarious employment, the opportunity to accommodate these women taking maternity leave or parental leave became an incontrovertible issue. [178] The respondent, to use the words of Madam Justice McLachlin in Meiorin, chose a standard that is uncompromisingly stringent (supra, paragraph 62). A formula that can only be accepted en bloc, i.e.: three years excluding leave without pay, including maternity leave and parental leave. This en bloc formula establishes a lack of flexibility. [179] As pointed out by Julie C. Lloyd, member, in Hoyt v. Canadian National Railway, 2006 CHRT at paragraph 33: Employers must be innovative in their search to accommodate an employee. They must be flexible and creative. [180] The respondent has not established to me that it sought the flexibility and creativity that was necessary in this case. [181] I find that the respondent did not examine all of the options that would enable it to accommodate Ms. Lavoie and woman with term appointments taking maternity leave or parental leave. [182] The respondent is a significant employer with human and technical resources at its disposal enabling it to perform an appropriate analysis of the measures available that would not cause it undue hardship. [183] In short, the respondent did not file any evidence enabling me to find that in calculating cumulative service there is or was undue hardship caused by including Ms. Lavoie's parental leave, i.e. four months, or the maternity leave or parental leave taken by female term employees of the respondent since the new policy was adopted. [184] For all of these reasons, I find that the complaint is founded and must be allowed. VII. THE RELIEF REQUESTED BY MS. LAVOIE AND THE COMMISSION: A. Amendment of the policy to eliminate discriminatory aspects [185] Ms. Lavoie and the Commission are asking me to order the respondent to amend the new policy so as to eliminate the discriminatory aspects. In my opinion, such a request is appropriate. Insofar as the respondent maintains a standard whereby maternity leave or parental leave of more than 60 cumulative calendar days is not taken into account in calculating cumulative service for an indeterminate appointment, I am of the opinion that it is appropriate to order the respondent to amend the policy, so as to remove the aspects that discriminate on the basis of sex. [186] Accordingly, I order in accordance with paragraph 53(2)(a) of the Act, that the respondent cease the discriminatory practice and take 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, and specifically order the respondent to amend the new Term Employment Policy which came into force on April 1, 2003, so as to remove the aspects that discriminate on the basis of sex, namely those relating to the exclusion of maternity leave and/or parental leave from the calculation of cumulative service for indeterminate appointments. B. Loss of opportunities or privileges and loss of salary [187] In accordance with paragraph 53(2)(b), the Tribunal may order the respondent to make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that are being or were denied the victim as a result of the practice. [188] In accordance with paragraph 53(2)(c), the Tribunal may order a respondent to 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. [189] The respondent acknowledged that if the complaint were allowed, the relief requested by Ms. Lavoie was admitted, including the amount claimed. This relief is as follows: Two-week waiting period for employment insurance (August 19 to September 1, 2002): $2,008.00 Additional benefits (SUBP) for the period from September 2, 2002 to August 5, 2003: $28,959.00 Additional benefits (SUBP) for the period from August 6, 2003 to August 20, 2003: $1,864.26 [190] However, the respondent contests the loss of salary claimed by the complainant for the period from September 19, 2003 to November 18, 2003. The amount claimed for this period is admitted, i.e. $5,790.99. However, the respondent argues that in signing the agreement with Industry Canada, Ms. Lavoie waived her claim to any loss of salary before the date she began the indeterminate appointment, i.e. November 19, 2003. For the same reasons stated in the matter of inadmissibility submitted by the respondent, I find that Ms. Lavoie did not waive the loss of the salary of which she was deprived as a result of the non-conversion of her appointment. [191] I would add that in acknowledging the right to the indemnity for the period from August 6, 2003 to August 20, 2003, the respondent acknowledges that Ms. Lavoie did not waive the claim to any loss of salary as of August 6, 2003, the date that she obtained the conversion entitlement for her appointment. [192] Accordingly, I award all of the relief sought by Ms. Lavoie pursuant to paragraphs 53(2)(b) and 53(2)(c), including $5,709.99 for the loss of salary for the period from September 19, 2003 to November 18, 2003. [193] Considering the foregoing, I order the respondent to pay to the complainant, Ms. Lavoie, $38,622.25 for loss of privileges and salary under paragraphs 53(2)(b) and 53(2)(c) of the Act. C. Special compensation [194] Pursuant to paragraph 53(2)(e), the Tribunal may award compensation of up to $20,000 to a victim as special compensation. [195] In my opinion, while the evidence was not substantial as to the moral repercussions that the respondent's practices had on the complainant, it is clear from her testimony that these events undeniably affected Ms. Lavoie and caused her loss of dignity. The right to employment is fundamental in our society and is an important component of human dignity. Further, I acknowledge inter alia the stress associated with financial responsibilities and with the fact that she knew it was all over as of August 6 2003. In short, it is apparent to me that Ms. Lavoie experienced periods of insecurity at a time when she had to assume the responsibility of three children. [196] Considering all of these circumstances, I order the respondent to pay to the complainant, Ms. Lavoie, $5,000.00 as compensation as provided under paragraph 53(2)(e) of the Act. D. Interest [197] Interest is payable in regard to all of the monetary claims awarded pursuant to this decision in accordance with subsection 53(4) of the Act. I order that the interest be paid on the amounts awarded pursuant to this decision, in accordance with subsection 9(12) of the Canadian Human Rights Tribunal Rules of Procedure. The interest on the amounts awarded to compensate for the loss of privileges shall run from August 6, 2003, calculated from the time when benefits would have been payable. For the loss of salary corresponding to the amount of $5,790.99, interest shall run from September 19, 2003, also calculated from the time when benefits would have been payable to Ms. Lavoie. The interest on the compensation to be paid for moral prejudice shall run from the date of the filing of the complaint, i.e. January 19, 2004. VIII. THE TRIBUNAL'S ASSERTION OF JURISDICTION [198] The Tribunal shall retain its jurisdiction to receive evidence, to hear additional arguments and to make additional orders in the event that the parties disagree regarding the interpretation or the implementation of the relief ordered. [199] I retain my jurisdiction pursuant to the foregoing paragraph for 60 days from the date of receipt of this decision by the parties. Kathleen Cahill OTTAWA, Ontario June 20, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1154/3606 STYLE OF CAUSE: Brigitte Lavoie v. Treasury Board of Canada DATE AND PLACE OF HEARING: September 24, 25, 27 and 28, 2007 January 21, 22, 23, 24 and 25, 2008 Ottawa, Ontario DECISION OF THE TRIBUNAL DATED: June 20, 2008 APPEARANCES: Lise Leduc/Colleen Bauman For the Complainant Giacomo Vigna For the Canadian Human Rights Commission Nadine Dupuis/Vincent Veilleux For the Respondent

2008 CHRT 28

CHRT

Warman v. Canadian Heritage Alliance and Melissa Guille

en

2008-06-24

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6713/index.do

2023-12-01

Warman v. Canadian Heritage Alliance and Melissa Guille Collection Canadian Human Rights Tribunal Date 2008-06-24 Neutral citation 2008 CHRT 28 File number(s) T1089/7005, T1090/7105 Decision-maker(s) Deschamps, Pierre 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 - Canadian Heritage Alliance - and – Melissa Guille Respondents Ruling Member: Pierre Deschamps Date: June 24, 2008 Citation: 2008 CHRT 28 [1] The Tribunal is seized of a motion brought by the Respondents, Ms. Melissa Guille and Canadian Heritage Alliance, to dismiss the complaint brought against them in the present file for the following reasons: 1. the actions taken by the Canadian Human Rights Commission in the present case (see herein) are contrary to natural justice and due process as guaranteed by sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms; 2. the actions taken by the Commission are a further violation of the Respondents’ guaranteed right to a fair trial as also guaranteed by sections 7 and 11(d) of the Canadian Charter of Rights and Freedoms. Alternatively, the Respondents request that the case be reopened and the witnesses recalled for examination of the issue of the Complainant, Mr. Richard Warman, and the Commission posting messages on websites subject to complaints. [2] The Respondents allege that, in the present case, the Commission has not disclosed information relating the Commission’s investigators secretly creating accounts on forums they judge controversial. The Respondents further argue that withholding this information constitutes a breach of the principles of natural justice and fairness as well as an abuse of process. [3] In support of these allegations, the Respondents rely on a statement made in the case of Warman v. Lemire by Ms. Margot Blight, the lead Commission attorney. The Respondents allege that the latter stated that the Commission’s explicit policy has been to withhold such information from any Freedom of Information requests and legal disclosure responsibilities. [4] Furthermore, in relation to the Warman v. Lemire case, the Respondents allege that the Commission’s lead investigator, Dean Steacy, testified that the Commission did not maintain a list or central registry of user accounts that the Commission and police created on forums. In addition, the Respondents allege that Mr. Steacy would have admitted in the course of his testimony that someone could technically be found liable for content posted by police or investigators as they didn’t keep a central registry. The Respondents states that Mr. Steacy testified that in some cases, no one but he and one other Commission employee knew of the practice of creating infiltration accounts on forums being investigated. [5] The Respondents finally claim that considering that the present case involves hefty fines for a low-income simple parent and a possible lifetime ban to post messages contrary to a ridiculously vague Act [sic], the complaint should be dismissed. [6] The Complainant’s position is that the present motion is unsupported by any evidence whatsoever and that the Tribunal cannot rule on it without reopening the case to hear evidence. [7] As for the Commission, it is of the view that nothing in the allegations made by the Respondents in their motion justifies in any way the granting of the motion to dismiss the complaint or reopen the case. The Commission argues that the allegations made by the Respondents would be more appropriately dealt with in the context of the constitutional challenge brought by the Respondents, which the Tribunal will deal with once a decision on the merits of the case has been rendered. In this respect, the Commission argues that the motion brought by the Respondents is untimely, without foundation and before the wrong forum. [8] The Tribunal has not yet ruled on the merits of the case. The Tribunal has already ruled that once a decision is rendered on the merits of the case, it would suspend the execution of its decision, if the Respondents were found to be in breach of section 13 of the Canadian Human Rights Act, and entertain the constitutional challenge brought by the Respondents. [9] The Tribunal is of the view that, given the nature of the issues raised by the Respondents in the present motion, i.e. actions by the Commission contrary to the principles of natural justice and due process as well as the right to a fair trial guaranteed by Sections 7 and 11(d) of the Canadian Charter, these will be better dealt with in the context of the constitutional challenge brought by the Respondents. The notice of constitutional question filed by the Respondents refers already to sections 1, 2(a), (b) and (d) as well as section 7 of the Act as the basis for the Respondents’ constitutional challenge. [10] The proposition that the Tribunal should dismiss the present complaint on the basis of the testimony of witnesses rendered in another case has no legal basis. Furthermore, to reopen the case to hear additional evidence at this point in time would only prolong proceedings which have extended over an already too long period of time. [11] Hence, Respondents’ motion to dismiss the complaint and, alternatively, to reopen the case is denied. It will be open to the Respondents to raise again the issues contained in its motion in the context of the constitutional challenge that the Tribunal has already decided it would entertain once the decision on the merits has been rendered. Signed by Pierre Deschamps Tribunal Member Ottawa, Ontario June 24, 2008 Canadian Human Rights Tribunal 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: June 24, 2008 Appearances: No submissions made, for the Complainant K.E. Ceilidh Snider, for the Canadian Human Rights Commission Alexan Kulbashian, for the Respondent, Melissa Guille Paul Fromm, for the Respondent, Canadian Heritage Alliance

2008 CHRT 29

CHRT

Warman v. Lemire

en

2008-06-26

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6714/index.do

2023-12-01

Warman v. Lemire Collection Canadian Human Rights Tribunal Date 2008-06-26 Neutral citation 2008 CHRT 29 File number(s) T1073/5405 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content 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 2008 CHRT 29 2008/06/26 MEMBER: Athanasios D. Hadjis [1] The interested party, Canadian Association for Free Expression, Inc. (CAFE), has made a motion demanding that I recuse myself from this case on the basis of a reasonable apprehension of bias. In its motion, CAFE states: Recently, due to Internet searches, it has come to the attention of CAFE that member Hadjis has on numerous occasions worked with the Canadian Jewish Congress, who have received Interested Party Status in these proceedings over the vigorous objections of the Respondent. [2] The Respondent indicated in his submissions on CAFE's motion that he supports CAFE's submissions that there is a reasonable apprehension of bias but sees no benefit to another member hearing either the motion or the case. I take it, therefore, that the Respondent is not seeking an order that I recuse myself. The interested party, Canadian Free Speech League (CFSL), has advised the Tribunal that it supports CAFE's argument that there is a reasonable apprehension of bias. None of the other parties has indicated any support of CAFE's motion. [3] CAFE requested in its motion that a separate Tribunal member hear this motion. However, as the Federal Court pointed out in Samson Indian Nation and Band v. Canada [1998] 3 F.C. 3 (F.C.T.D.), [1997] F.C.J. No. 1652 (Q.L.) at para. 66, aff'd Samson Indian Nation and Band v. Canada, 1998 CanLII 7815 (F.C.A.), the judge against whom a disqualification application is made should hear the application for recusal. No authority has been cited to me to support the assertion that a Tribunal member other than the one against whom the disqualification allegation is made must hear the application. Sara Blake states in Administrative Law in Canada, 4th ed. (Markham: LexisNexis Canada, 2006) at 114-5: When an allegation of bias is made, the tribunal should rule on the allegation. If it rules that it is not biased, it may continue with the hearing. It is not obliged to halt the proceeding. A tribunal is not to be paralysed every time someone alleges bias. In Flamborough (Town) v. Canada (National Energy Board) [1984] F.C.J. No. 526 (F.C.A.), Justice Mahoney stated: I should have added that the proposition that a member of a tribunal against whom an allegation of an apprehension of bias has been made cannot, himself, dispose of or participate in disposing of that allegation is utterly fatuous. The practical effect, if that were the law, would be the paralysis of tribunals, and trial courts, at the whim of anyone willing to allege bias. The availability of judicial review and appeal ensures that such charges will, ultimately, be dealt with by a disinterested judiciary. I note that in Arsenault-Cameron v. Prince Edward Island, [1999] 3 S.C.R. 851, Justice Bastarache personally dealt with the motion seeking his recusal from the case. Where allegations of bias have been made before the Canadian Human Rights Tribunal in the past, it has been the practice for Tribunal members to hear and rule on the motions for recusal that have been brought against them (see e.g. Caza v. Télé-Métropole inc., (2002), 43 C.H.R.R. D/336; Warman v. Bahr, 2006 CHRT 46). [4] I will therefore render the ruling on CAFE's application for recusal. The Test for Reasonable Apprehension of Bias [5] The test for reasonable apprehension of bias, as restated by the Supreme Court in Wewaykum Indian Band v. Canada, 2003 SCC 45 at para. 74, and derived from its previous decision in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, is as follows: What would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude? The Court in Wewaykum noted that the standard refers to an apprehension of bias that rests on serious grounds, citing an excerpt from Committee for Justice and Liberty at 395, which states: The grounds for this apprehension must, however, be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the very sensitive or scrupulous conscience. [6] It is noteworthy that the Supreme Court in Wewaykum, a case dealing with judicial bias, applied the Committee for Justice and Liberty test, which was developed in the context of administrative tribunals. [7] I have considered the matters raised by CAFE in its motion and have determined that the test for reasonable apprehension of bias has not been satisfied, for the reasons set out below. Facts Alleged [8] Although CAFE's motion refers to my having worked on numerous occasions with the Canadian Jewish Congress, only one incident is cited in its motion: On November 24, 1997, Athanasios Hadjis issued a joint press release with the Canadian Jewish Congress denouncing Jacques Parizeau, claiming that Mr. Parizeau blame[s] particular communities around the result of a democratic process. Mr. Hadjis went on to say that such an attitude is irresponsible as it contributes to the exacerbation of tensions within our society. The Canadian Jewish Congress states in its press release that the CJC and Mr. Hadjis's Hellenic Congress of Quebec are a coalition. [9] CAFE did not provide the Tribunal with a copy of the press release in question and I do not specifically recollect it. I can state though that it most certainly would not have been a joint press release by me and the CJC, and that the Hellenic Congress of Quebec (HCQ) was definitely not Mr. Hadjis's. Obviously some clarification is needed. The HCQ was an umbrella organization for various associations active within Quebec's Greek (Hellenic) community. The HCQ's mandate, as I recall, included articulating the views of Quebecers of Hellenic origin on matters of public interest. I served on the Board of Directors of the HCQ from about 1993 until January 1999. [10] During the 1990's, as all Canadians are well aware, Quebecers engaged in a public debate about the province's future within Canada. Part of this discussion touched upon the role and views of Quebec's minorities on the matter, and the HCQ did not hesitate to express the Hellenic community's opinions and concerns in this regard. It eventually became evident that other cultural communities (ethnic groups) within Quebec shared similar opinions. Thus, the HCQ occasionally issued joint statements and presented briefs with organizations representing these other communities, in particular the Italian community (National Congress of Italo-Canadians) and the Jewish community (Canadian Jewish Congress, Quebec Region). The joint press release referred to in CAFE's motion may have been one of those joint statements. The role of HCQ spokesperson was rotated amongst the members of the HCQ's Board of Directors. In addition to these media statements, the three groups also organized meetings between members of their communities and other Quebecers in order to encourage and foster dialogue. [11] At no time did any of the matters discussed between these organizations while I was involved deal with any of the issues arising in the present complaint, including hate messages, freedom of expression, the Canadian Human Rights Act, and the Canadian Human Rights Commission. Furthermore, I do not know nor have I ever dealt with any of the individuals who have represented the CJC in the present case. I would note finally that I have never been a member of the CJC nor have I ever acted as their counsel. Analysis [12] To begin with, as the Supreme Court noted in Wewaykum, supra, at para. 85, the passage of time is a significant factor that must inform the perspective of the reasonable person assessing the impact of a member's or judge's involvement. The Court pointed out that most arguments for disqualification rest on circumstances that are either contemporaneous to the decision-making, or that occurred within a short time prior to the decision-making. My involvement with the HCQ dates back over nine years, and my last dealings with the CJC Quebec Region, to even earlier than that. This is a significant period of time. [13] In Zündel v. Citron, [2000] 2 F.C. 225 at paras. 43-5, the Federal Court of Appeal highlighted the fact that the Tribunal member in question had been assigned to the case nine years after the publication of a press release that was the basis of the recusal application. The Court held that this passage of time, along with certain other factors, was sufficient to expunge any taint of bias. In Weywaykum, supra, the issue giving rise to the request for Justice Binnie's recusal had taken place 15 years prior to the hearing in which he was sitting. The Court found that a reasonable person, viewing the matter realistically, would not come to the conclusion that Justice Binnie's prior activity affected his ability, even unconsciously, to remain impartial (at para. 90 of the decision). [14] The nature of the adjudicator's involvement is also a significant factor. In Arsenault-Cameron, supra, at para. 4, Justice Bastarache cited with approval a finding from a South African court to the effect that no recusal application could be founded on a relationship of advocate unless the advocacy was regarding the case to be heard. However, even when there is involvement in the same case, the passage of time can serve to mitigate the apprehension of bias. In Wewaykum, the matter in question related to Justice Binnie's involvement, as Assistant Deputy Minister in the federal Justice Department, in the very case under appeal that he was now adjudicating as a member of the Court, and in which the Attorney General of Canada was a party. Nonetheless, the Court concluded that a reasonable apprehension of bias had not been established and Justice Binnie was not disqualified from hearing the appeals. [15] As I have already indicated, my involvement with the HCQ and, more importantly, its dealings with the CJC Quebec Region, were not related in any way to the matters at issue in this case. I find that this factor together with the significant passage of time would, on that basis alone, lead an informed person, viewing the matter realistically and practically, to conclude that there does not exist a reasonable apprehension of bias in this case. [16] However, CAFE has cited a number of events that occurred during the hearing to argue that there is in fact a reasonable apprehension of bias. Before addressing them, I think it is important to note the comments of the British Columbia Court of Appeal in Middelkamp v. Fraser Valley Real Estate Board, 1993 CanLII 2884 at paras. 11, 13, cited with approval in Samson, supra (F.C.T.D.): As I believe the Chief Justice of this Court has said on more than one occasion, a trial is not a tea party. But bias does not mean that the judge is less than unfailingly polite or less than unfailingly considerate. Bias means a partiality to one side of the cause or the other. It does not mean an opinion as to the case founded on the evidence nor does it mean a partiality or preference or even a displayed special respect for one counsel or another, nor does it mean an obvious lack of respect for another counsel, if that counsel displays in the judge's mind a lack of professionalism. . . . Bias does not equate with what might be found in the end to be an unsatisfactory trial. I will leave it to others to judge whether I have been unfailingly polite and considerate with all parties in this case, but even a failure to meet these standards does not necessarily constitute evidence of bias. [17] CAFE suggests in its motion that my ruling early in this hearing process to allow the CJC to participate as an interested party over the vigorous objections of the Respondent indicates bias. My decision to grant the CJC leave to participate in this case along with all the other interested parties (Warman v. Lemire, 2006 CHRT 8) was given with self-explanatory reasons that would not, in my view, lead an informed person viewing the matter realistically and practically to conclude that a reasonable apprehension of bias exists. Furthermore, like any Tribunal ruling, it is subject to judicial review. I would also note in passing that the Tribunal granted CAFE interested party status in this case over the equally vigorous objections of the Commission. [18] CAFE places great emphasis as well on the Tribunal's alleged rush to end the case even though a number of documents had been recently disclosed. CAFE suggests that this is demonstrative of some party's pressure on the Tribunal to get this hearing over. The matter of the case's scheduling and the treatment of documents that have been produced since June 2007 has been addressed in my ruling of June 5, 2008, Warman v. Lemire, 2008 CHRT 20. I believe it should be evident from paragraphs 26 and following of that decision what factors were considered by the Tribunal for the scheduling of hearing dates in this case. They are not demonstrative, in my view, of any undue influence by, or bias in favour of, some party in this case. [19] CAFE also claims that bias was demonstrated by me when all the work was put onto Respondent counsel to argue why the hearing should proceed following the Federal Court's decision of January 15, 2008, with respect to the application that he had mounted pursuant to s. 37 of the Canada Evidence Act. I would note, first of all, that the Court had indicated, without providing details, that the information that formed the subject of the s. 37 application had been disclosed. This raised the possibility that any further examinations of the witnesses who were to testify regarding this information were no longer necessary. Furthermore, all parties were invited to make submissions on how the case should proceed, not just the Respondent. The Respondent was asked to present his submissions first, partially because his counsel had indicated, during the case management conference call of February 6, 2008, that she intended to file some additional evidence. The Respondent's counsel did not express any objection to proceeding this way during the conference call. In any event, I fail to see how these circumstances are demonstrative of bias. [20] CAFE makes a similar claim with respect to my decision to request that the Respondent provide me with mountains of documents. These were in fact digital copies of Commission documents containing redactions to which the Respondent objected, which were sent to the Tribunal by email, in PDF file form. As I explained in my ruling, Warman v. Lemire, 2008 CHRT 16, at para. 1, I had asked the Respondent to provide me with those copies in order to gain a better understanding of the subject matter of the dispute that had given rise to an exchange of numerous letters amongst the parties. After viewing the documents, I issued the above mentioned ruling in which I ordered the Commission to provide me with the unredacted version of those documents, for comparison and determination of the validity of those redactions. Again, I do not see how these facts are demonstrative of bias. [21] In sum, therefore, I am not persuaded that the information and submissions put forward by CAFE would lead an informed person, viewing the matter realistically and practically - and having thought the matter through - to conclude that a reasonable apprehension of bias exists. The serious or substantial grounds required for such an apprehension of bias have not been established. [22] I would also underscore CAFE's statement in its motion that the joint press release only came to its attention recently, due to Internet searches. There is no evidence to indicate that this information has not been publicly available on the Internet or elsewhere since CAFE's involvement began in this case (February 23, 2006) nor indeed since 1997 when the press release was apparently published. Arguably, CAFE may have impliedly waived any assertion of a reasonable apprehension of bias as a result (see In Re Human Rights Tribunal and Atomic Energy of Canada Ltd. [1986]1 F.C. 103 (F.C.A.)). I need not make any findings on this point, however, given my earlier conclusions on the bias claim. [23] For these reasons, CAFE's application for my recusal is denied. Signed by Athanasios D. Hadjis OTTAWA, Ontario June 26, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1073/5405 STYLE OF CAUSE: Richard Warman v. Marc Lemire RULING OF THE TRIBUNAL DATED: June 26, 2008 APPEARANCES: Richard Warman For himself Margot Blight 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

2008 CHRT 3

CHRT

Bignell-Malcolm v. Ebb and Flow Indian Band

en

2008-01-15

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6832/index.do

2023-12-01

Bignell-Malcolm v. Ebb and Flow Indian Band Collection Canadian Human Rights Tribunal Date 2008-01-15 Neutral citation 2008 CHRT 3 File number(s) T1171/5306 Decision-maker(s) Lloyd, Julie C. Decision type Decision Decision Content JEAN BIGNELL-MALCOLM Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - EBB AND FLOW INDIAN BAND Respondent REASONS FOR DECISION 2008 CHRT 3 2008/01/25 MEMBER: Julie C. Lloyd I. INTRODUCTION II. THE ISSUES III. EVIDENCE AND ANALYSIS IV. REMEDIES I. INTRODUCTION [1] The complainant, Jean Bignell-Malcolm, is a First Nations woman of Cree descent. She alleges that the respondent, Ebb and Flow Indian Band, refused to hire her as the Director of Education for the Ebb and Flow School because of her race and ethnic or national origin, contrary to section 7(a) of the Canadian Human Rights Act (CHRA). [2] The respondent, Ebb and Flow Indian Band, is a First Nations band constituted under the Indian Act of Canada. The Ebb and Flow community is located approximately two hundred kilometers north of Winnipeg, Manitoba and is comprised of persons of different races, ethnic and national origins, though the majority of the population is Ojibway. [3] The hearing extended 5 days in October of 2007. The complainant, the respondent and the Canadian Human Rights Commission were represented by counsel. II. THE ISSUES [4] The issues for determination in this complaint are as follows: Has the complainant made out a prima facie case that the respondent engaged in a discriminatory practice by refusing to hire her because of her race or her national and ethnic origin? If the complainant has made out a prima facie case of discrimination, has the respondent provided a reasonable explanation for the otherwise discriminatory conduct? If the complaint is found to have been substantiated, what remedies are appropriate? III. EVIDENCE AND ANALYSIS [5] Where a complainant, as Ms. Bignell-Malcolm has, makes an allegation that she has been refused employment for discriminatory reasons, the onus starts with her. The complainant must first make out a prima facie case of discrimination. If such a case is proved, then the onus shifts to the respondent to provide a reasonable explanation. a) Has the complainant, Ms. Bignell-Malcolm, made out a prima facie case of discrimination? [6] There is no rigid test to be applied where considering whether a prima facie case of discrimination has been made out in a complaint alleging refused employment. A trier of fact must be flexible and sensitive to the facts of each case. Ultimately, the question will be whether the complainant has satisfied the test set out by the Supreme Court of Canada in Ontario Human Rights Commission v. Simpson Sears [1985] 3 S.C.R. 36 at 558 (O'Malley): if believed, is the evidence led by the complainant complete and sufficient to justify a verdict in the complainant's favour, in the absence of an answer from the respondent? [7] That being said, it will often be sufficient for the complainant in circumstances such as this to prove the following facts. First, that she or he applied a job for which he or she was qualified, but did not receive it. Second, that a person no more qualified, but not sharing a personal characteristic enumerated as a prohibited ground of discrimination in the CHRA, got the job, or that the employer continued to advertise for the position (see Shakes v. Rex Pak Ltd. (1982), 3 C.H.R.R. D/1001; Israeli v. Canadian Human Rights and Public Service Commission (1983), 4 C.H.R.R.D. and Premakumar v. Air Canada [2002] C.H.R.D. No. 3, (at paragraph 77). [8] The relevant evidence led by this complainant is as follows. Complainant's Evidence [9] Ms. Bignell-Malcolm testified that she had been a resident of the Ebb and Flow community for more than 20 years by the time the events relevant to this complaint took place. She moved to the community after marrying a member of the Ebb and Flow Indian Band in about 1982 and she became a member of the Band in 1984. [10] Ms. Bignell-Malcolm testified that she began working at the Ebb and Flow School in 1983, working first as a secretary. In 1992 she commenced a Bachelor of Education degree with a focus in aboriginal education. While she earned her degree Ms. Bignell-Malcolm worked at the Ebb and Flow School as a counselor. She completed her Bachelor of Education degree in about 1998 and then continued her studies, earning a 5th year certificate in education and administration, again with a focus on aboriginal education. Ms. Bignell-Malcolm was a teacher at the Ebb and Flow School from 1995 to 1999 and then commenced work with the Western Region Tribal Council in Dauphin, Manitoba, as its Director of Education. Ms. Bignell-Malcolm continued to live in the Ebb and Flow community and commuted to and from Dauphin. [11] In about May of 2003, Ms. Bignell-Malcolm learned that the Ebb and Flow Indian Band was looking for a Director of Education for its school. A job posting for the position had been published in the community. Ms. Bignell-Malcolm testified that she reviewed the job requirements listed in the posting and knew that she met each of the listed requirements. The qualifications listed for the position included those of a University Degree in Education with a 5th year designation in Administration and four years of previous experience in education administration. Ms. Bignell-Malcolm applied for the job. [12] On June 23 of 2003, Ms. Bignell-Malcolm was interviewed for the position. In attendance at the interview were the Band Chief, the four members of the Band Council, the four members of the Band's Education Committee, and at least one of the community's Elders. Ms. Bignell-Malcolm described the interview as a very positive experience. For close to an hour she shared her thoughts and vision for the Ebb and Flow School and education system. She described the tone of the meeting as very amicable. [13] On July 10, 2003, Ms. Bignell-Malcolm learned that she had been offered the job. Ralph Beaulieu, the Chief of the Ebb and Flow Indian Band, had written to advise her that she was being offered the position of Director of Education. The Chief had also advised Ms. Bignell-Malcolm that the start date for the position would be August 1, 2003 and that there would be a meeting set up later in the month of July to discuss the terms of her employment, including her salary. A salary range for the position had not been included in the job posting or in the offer of employment. Ms. Bignell-Malcolm wrote to the Western Region Tribal Council resigning her position effective August 1, 2003. [14] In mid-July, 2003, Ms. Bignell-Malcolm received a telephone call from a friend and former colleague at the Ebb and Flow School. Her friend advised Ms. Bignell-Malcolm that she had heard rumours that the Chief and Band Council had decided to offer Ms. Bignell-Malcolm a salary much lower than one she should receive given the position, her education and experience. She further advised that the salary offer would be made in an attempt to discourage Ms. Bignell-Malcolm from taking the job. Ms. Bignell-Malcolm testified that she did not take much notice of this information. It was her testimony that after such a positive interview experience, after being offered the job and welcomed by the Chief to the Ebb and Flow School system, she was sure that she would be treated fairly regarding the terms of her employment, including the matter of her salary. [15] On July 23, 2003, Ms. Bignell Malcolm attended at a further meeting to discuss the terms of her employment. She testified that she arrived for the meeting at noon, the time she was advised that the meeting would start, and that she was made to wait nearly two hours before being called in. In attendance at the meeting were again, the Chief, the Band Councilors and the members of the Education Committee. Ms. Houle, the acting Director of Education was also in attendance along with at least one Elder. Ms. Bignell-Malcolm testified that the atmosphere at this meeting, unlike that of the June 23, 2003 interview meeting, was very tense. There was no opening prayer, which was the community's custom before meetings commenced. She testified that Chief Beaulieu advised her that the Band would offer a salary of $52,000.00 per annum. Ms. Bignell-Malcolm testified that she was taken aback by this offer. She was earning $60,000.00 per year working as Education Director for the Western Region Tribal Council. She was also aware that the former Direction of Education for the Ebb and Flow School system earned an annual salary of over $60,000.00 and she knew that at least one of the school counselors at the school, an employee to whom she would be much superior, earned $58,000.00 per year. Ms. Bignell-Malcolm expressed her concern about the salary level and proposed that she receive $72,000.00. She was asked to leave the room to allow the other attendees to discuss further the matter of her salary. [16] When she returned to the meeting room, Ms. Bignell-Malcolm testified that Chief Beaulieu said to her sternly, The offer is $55,000.00. Take it or leave it. She testified that she immediately accepted the job. She had resigned her position as Director of Education for the Western Region Tribal Council and felt that she had no choice but to accept the position even though she thought the salary unduly low. The Chief told her that he would give her until Friday, July 25, 2003 to tender a written acceptance of the offer. She testified that the next day, July 24, 2003, she gave the letter accepting the offer to her husband, Robert Malcolm, who worked at the Band office, and asked him to deliver it to the Chief's office. A copy of the letter was entered as evidence at the hearing. The letter carries a stamp that indicates it was received at the Band office on July 24, 2007. [17] On July 24, 2003, at 11:00 p.m., Ms. Bignell-Malcolm testified, Chief Beaulieu called her at home, waking her up. The Chief advised that the offer of employment had been rescinded. He did not tell her why. He did, however, mention that he had received a petition from some residents of the community, implying, she believed, that this petition was, at least in part, the reason for the decision to rescind the offer of employment. The Chief did not read the petition to her or summarize its content. [18] The position of Director of Education continued to be performed by Ms. Houle, who was at the time the acting Director of Education. Ms. Houle had a four-year Education degree and had been a school counselor at the Ebb and Flow School for several years. Ms. Houle had neither training nor experience in education administration. She was Ojibway. The Band continued to advertise for the position of Director of Education and eventually hired Arlene Mousseau for the position. Ms. Mousseau had a Bachelor of Education degree. Ms. Mousseau, did not, however, have the 5th year certificate in education and administration earned by Ms. Bignell-Malcolm, an advertised requirement for the position, and did not have Ms. Bignell-Malcolm's experience either in teaching or administration. Ms. Mousseau was not Cree. She was Ojibway. [19] I find that a prima facie test of discrimination has been made out on these facts alone. The complainant, Ms. Bignell-Malcolm, has led evidence in support of the asserted facts. First, she was qualified for the job of Director of Education for the Ebb and Flow school. Then, she applied for the job and did not get it. Ms. Houle, who continued as acting Director of Education, was not more qualified and was not of Cree descent. Ms. Houle did not share Ms. Bignell-Malcolm's race or national or ethnic origin. The respondent continued to advertise for the position and it was later filled by Ms. Mousseau. Ms. Mousseau was not more qualified for the position and again, being Ojibway, did not share Ms. Bignell-Malcolm's, race or national or ethnic origin. Additional Evidence [20] While not necessary for Ms. Bignell-Malcolm to make out her prima facie case of discrimination, other evidence was tendered by the complainant at the hearing that will be relevant to my analysis of whether the respondent's explanation for its prima facie discriminatory conduct was reasonable. I will deal with this evidence here to suit the narrative. [21] Ms. Bignell-Malcolm, prior to filing the within complaint, retained counsel and commenced a civil law suit for wrongful dismissal after her employment offer was rescinded. In the course of advancing the civil litigation, Ms. Bignell-Malcolm received a copy of the petition mentioned earlier. Further, counsel for Ms. Bignell-Malcolm examined Ms. Houle for discovery in the civil law suit and her transcript on discovery as well as the petition were tendered as evidence. Ms. Bignell-Malcolm testified that it was upon hearing Ms. Houle's evidence and upon reviewing the petition, that she became convinced that she had been a victim of discrimination and filed the within complaint. I did not hear evidence about the status of the wrongful dismissal suit at the time of the hearing of this complaint. [22] Counsel for the respondent argued that neither the petition nor the transcript were admissible before this Tribunal as evidence. I find, however, for the following reasons that both the petition and the transcript of the examination for discovery of Ms. Houle are admissible. [23] There is a principle of general application in civil litigation that evidence obtained in one proceeding is confidential and is not to be disclosed for any purpose other than those of the proceeding in which the evidence was obtained (Lac d'Amiante du Quebec Ltee. v 2858-0702 Quebec Inc. [2001] 2 S.C.R. 743 (Lac d' Amiante) and J-Sons Inc. v. N.M. Paterson & Sons Ltd., [2003] M.J. No. 461 (C.A.) (J-Sons). In the province of Manitoba, where Ms. Bignell-Malcolm commenced her wrongful dismissal action, this principle has been codified in Rule 30.1(3) of the Manitoba Court of Queen's Bench Rules, Manitoba Regulation 553/88 as amended. All parties and their lawyers are deemed under this Rule to have undertaken not to use evidence collected for any other purpose. [24] In civil litigation, the discovery process undertaken before the trial of a matter allows parties adverse in interest to compel one another to disclose documents and to answer questions whether the other party wants to make disclosure and answer questions or not. This invasion of privacy is deemed necessary to do justice between the parties to a law suit in advance of a trial. The fruits of discovery, however, must be used only to serve this justice and must otherwise be kept confidential. It is improper to use them for any collateral purpose or in any other proceeding (J-Sons, supra and Lac d'Amiante, supra). This principle of confidence protects individual privacy interests and preserves the integrity of the process of civil litigation as without this protection of privacy, parties to a law suit might fail to make complete disclosure of all of the facts relevant to a law suit. Persons found to have violated this rule of confidentiality can be held to be in contempt of court (N.M. Paterson & Sons Ltd. v. St. Lawrence Seaway Management Corp. [2002] F.C.J. No. 1713 aff'd [2004] F.C.J. No. 946 (C.A.)). [25] While the CHRA directs that this Tribunal is not bound by the ordinary rules of evidence (s. 50(3)(c)), section 50(4) directs that a panel may not admit in evidence anything that would be inadmissible in a court by reason of any privilege. My reading of Lac d'Amiante, particularly paragraph 42 of that decision suggests to me that the principle of confidence is a form of privilege. LeBel J., discussing the common law roots of the principle of confidentiality, writes that where evidence is relevant and not protected by some other form of privilege, the evidence is producible and the principle of confidence attaches. For the purpose of the following analysis I will assume without deciding that the principle of confidence is a form of privilege. [26] The confidence principle is not, however, without limit. The Supreme Court of Canada in Lac d'Amiante, supra, identified that while the principle of confidentiality is central to the protection of privacy interests and to the preservation of the integrity of the civil litigation system, there can be circumstances where exceptions are properly made. [27] One exception to the confidence principle identified in Lac d'Amiante arises in the context of impeachment. The confidentiality rule can be found to have no application where a party wishes to establish in another proceeding that a witness has given inconsistent versions of the same fact (Lac d'Amiante, supra, at para. 77). This exception is codified in the Manitoba Rules. Rule 30.1(6) directs that the confidentiality undertaking does not prohibit the use of evidence obtained in one proceeding to impeach the testimony of a witness in another proceeding. [28] The transcript of Ms. Houle was tendered for the purpose of impeaching her testimony and accordingly, the evidence is admissible, being an exception to the principle of confidentiality. [29] The following is the relevant excerpt of the transcript of the examination for discovery of Ms. Houle: Q: Do you speak Saulteaux? A: Yes, I do, fluently too. Q: What language do the teachers use when they are in a classroom? English or Saulteaux? A: English and we have a Native Studies, Native language. And that's one of the reasons the elders didn't really accept Jean, because she is Cree and none of us are Cree. We are all Ojibway. Q: So the elders didn't like the idea of having somebody Cree who has a Cree background as education director? A: Yes, they also said how are we going to communicate with her when she doesn't even speak our language. Q: The elders, I take it, all speak at least some level of English? A: Some. [30] A second exception to this principle is evidence can be found to be admissible in another proceeding where to do so would serve the interests of justice. (Lac d'Amiante, supra, at para 76). This exception has also been codified in the Manitoba Rules. Rule 30.1(8) directs that a court may order that the deemed confidentiality undertaking can be held inapplicable where it is found that the interests of justice outweigh any prejudice that would result. [31] I find that the petition is admissible in service to the interests of justice. First, the petition is evidence of a nature that would support an inference that the respondent had included a discriminatory consideration in its decision to rescind Ms. Bignell-Malcolm's offer of employment. The purpose of the relevant section of the CHRA is to eliminate discrimination in the area of employment. It has been long recognized that the purpose of human rights legislation is that of the protection of fundamental human rights, a purpose of vital importance in Canadian society (Zurich Insurance Corp. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321 at paragraph 57). Admitting evidence that would support an inference of discrimination serves a purpose of vital importance and serves the interests of justice. [32] Weighing the interests of justice against the prejudice that might be visited on the respondents should this document be disclosed, I find that the balance favors disclosure. In reaching this conclusion I note that the petition was circulated widely among the Elders in the Ebb and Flow community and was given to a child for delivery to the Chief in a public place. I also note that in the minutes of the Chief and Council meeting dated July 25, 2003, during which the decision to rescind the job offer was made, the petition was made an attachment. It does not appear that this document was dealt with in a manner that would suggest it was intended to be kept confidential. [33] Further, a petition is a document of a rather public nature. Petitions, such as this one, are a demand or a prayer issuing from its signators to a governing body, a public body, in the hope that the governing body, here the Chief and Council, will take a particular action. This type of document is not one that one would consider confidential in most circumstances. I find that little prejudice would be visited on the respondent by the disclosure of the petition and that the interests of justice outweigh any prejudice that might be experienced. I find for these reasons that the document is admissible in the present proceeding. [34] A relevant portion of the petition reads as follows: It took many years for the previous Chief and Council to gain control over our Education and it was their promise to us that we would always have our own people administering our Education program. Jean does not even speak our language. As Elders we promote our Education program. Will an interpreter be provided to us when we speak to Jean? [35] The Manitoba rules regarding this confidentiality principle contemplate that a party will seek a court's approval in advance of disclosing evidence produced in any particular proceeding. The complainant did not do so. It is possible that the respondent may have some recourse before the Manitoba Court of Queen's Bench. I do not believe, however, that the complainant's failure to seek such prior approval means that this Tribunal is unable to admit the evidence if satisfied that admission is proper and appropriate in the circumstances, as I have on the facts before me. b) Has the respondent provided a reasonable explanation for the prima facie discriminatory conduct? [36] As a prima facie case of discrimination has been made out, the onus shifts to the respondent to provide a reasonable explanation for its otherwise discriminatory conduct. The respondent has the burden of rebutting the complainant's prima facie case by providing a reasonable explanation for its decision to rescind Ms. Bignell-Malcolm's offer of employment. (Morris v. Canada (Canadian Armed Forces), [2005] F.C.J. No. 731 at paragraph 36 (C.A.), Lincoln v. Bay Ferries Ltd., [2004] F.C.J. No. 941 at paragraph 23 (C.A.)) [37] The evidence led by the respondent and relevant to its explanation, was as follows. Respondent's Evidence [38] Charles Cochrane gave evidence at the hearing. Mr. Cochrane was the first Director of Education for the Ebb and Flow School, holding the position from 1997 to 2003. It was Mr. Cochrane's evidence that in 1995 the Band decided to assume direct control of its education system. The Department of Indian and Northern Affairs controlled the local school before then. Mr. Cochrane described that between 1995 and 2003 there were extensive community consultations while the community's education policy was finalized. The education policy manual was finally published in January of 2003. [39] Mr. Cochrane described that during this period of extensive consultation, the community made a clear direction that they wanted to ensure that any Director of Education for the Ebb and Flow School must be fluent in Saulteaux. [40] Chief Beaulieu gave evidence at the hearing. The Chief testified that the job posting for the position of Director of Education was supposed to include fluency in the Ojibway language as a requirement, but the requirement had been omitted. The Chief described that this language requirement was a widespread community expectation: the community expected that the Director of Education for the Ebb and Flow School would speak Saulteaux. Chief Beaulieu testified that it was the Band manager, Robert Malcolm, who prepared the job posting and that the Chief had not reviewed the posting in advance of it being circulated. Robert Malcolm is the husband of Ms. Bignell-Malcolm, and the Chief testified that while the omission may have been an error, he suspected that Mr. Malcolm had omitted the qualification deliberately so that his wife would be able to win the position even though she did not speak Saulteaux and was therefore not qualified. [41] Chief Beaulieu testified that when the job candidates were interviewed, no questions were asked with respect to fluency in Saulteaux. The Chief testified that each of the interviewers were supplied with a list of questions that were to be asked of each candidate. This list of questions did not include a question asking whether the candidate was fluent in Saulteaux. The list of questions had been prepared by Mr. Malcolm, the Band manager, and again the omission was the result of Mr. Malcolm's mistake or misdeed. Ms. Bignell-Malcolm was offered the job, the Chief testified, because her qualifications and her performance in the interview were superior to the other candidates. As the language requirement had not arisen, it was decided that Ms. Bignell-Malcolm was the most qualified. Had any of the persons involved in the interview and candidate selection process remembered that fluency in Saulteaux was a requirement for the position of Director of Education, Ms. Bignell-Malcolm would not have been offered the job. [42] The Chief testified that the meeting of July 23, 2003 was acrimonious in tone. The Chief did not remember whether Ms. Bignell-Malcolm was made to wait for two hours before being called in. He testified that Ms. Bignell-Malcolm was rude from the moment she joined the meeting. The Chief testified that Ms. Bignell-Malcolm announced as soon as she entered the room that she would not work with the Education Committee. He testified that she pointed her finger aggressively at him and declared, I will only talk to you. He testified that he was shocked by Ms. Bignell-Malcolm's behavior at the meeting. He testified that Ms. Bignell-Malcolm was offered, at first, $52,000.00 per year, that Ms. Bignell-Malcolm objected that the salary was far too low. He had further discussions with the panel members and increased the offer to $55,000.00 per year. He testified that Ms. Bignell-Malcolm did not accept the job during the meeting. She was given until Friday, July 25, 2007 to consider the offer and to tender a written response. [43] The Chief testified that it did not occur to him, until the evening of July 24, 2003, that as Ms. Bignell-Malcolm did not speak Saulteaux, she was not qualified for the position of Director of Education. On that evening, Chief Beaulieu testified, he was playing pool with his brother. A young girl from the community came to the pool hall and gave him the petition mentioned earlier in these reasons. The Chief testified that it was only upon looking at the petition that he realized the mistake made that led to Ms. Bignell-Malcolm being offered the position. The Chief testified that he immediately went to his father's home. His father had been the Chief of the Ebb and Flow Indian Band for twenty years prior to the start of Chief Beaulieu's tenure as Chief. Chief Beaulieu's father had signed the petition. The Chief testified that he sought his father's advice and that his father told him that he should listen to the Elders. The Chief testified that he decided to follow his father's advice; he decided to listen to the Elders and to rescind the employment offer because the petition had reminded him that fluency in Saulteaux was a requirement for the position of Director of Education and that for this reason, Ms. Bignell-Malcolm was not qualified for the job. The Chief denies that race, national or ethnic origin were considerations informing the decision. Language was the only consideration. [44] Chief Beaulieu testified that he called the members of his Band Council. He was able to reach two of the four councillors and the two he spoke to were in agreement that the offer made to Ms. Bignell-Malcolm must be rescinded because she was not fluent in the Ojibway language. The Chief testified that after having obtained the approval of a majority of Chief and Council, he immediately called Ms. Bignell-Malcolm to advise her that the offer was being rescinded. The next morning the Chief and his council members met at the Band office and formally ratified the decision. The Chief testified that he did not receive Ms. Bignell-Malcolm's letter accepting the job until Monday, July 28, 2003. The Chief testified that he did not know why the letter carried a stamp indicating that it had been received in the Band office on July 24, 2003. He testified that it was Mr. Malcolm, the Band Manager and Ms. Bignell-Malcolm's husband, might have stamped the letter and marked it with a date that was incorrect. Is the Respondent's Explanation Reasonable? [45] I find that if the respondent's explanation was believable, it may have been a reasonable one. However, for the following reasons I find that the explanation tendered by the respondent is not credible and that accordingly the respondent has failed to discharge its onus of rebutting the complainant's prima facie case of discrimination. [46] The explanation given by the respondent has two key elements. First, that fluency in Saulteaux was a requirement for the Director of Education position. Second, that the Chief and Council rescinded the offer on July 24, 2003 as that was the date that the Chief read the Elders petition and remembered that fluency in Saulteaux was a job requirement. I find, for the following reasons, first, that the evidence supports an inference that fluency in Saulteaux was not a requirement for the position of Director of Education when Ms. Bignell-Malcolm was offered the job. Second, I find that the evidence supports an inference that the decision to rescind the job offer was made not on July 24, 2003, as the Chief testified, but earlier. Fluency in Saulteaux not a job requirement [47] In finding that the evidence supports an inference that Saulteaux was not a requirement for the position of Director of Education at the time the job was offered to Ms. Bignell-Malcolm, I note first that the education policy manual does not identify that the position of Director of Education could be filled only by a person fluent in Saulteaux. In his testimony, Mr. Cochrane speculated that the omission of the language requirement likely arose because at the time of the community consultation he was the Director of Education and was fluent in Saulteaux. He was expected to hold this position for years to come and so the language requirement was overlooked. Mr. Cochrane, however, in his testimony, described his role as being in large part that of a transcriber during the community consultations. He testified that he listened to the community consultations and recorded the conclusions reached and the directions made. If the community had directed expressly that the position of Director of Education could be held only by a person fluent in Saulteaux, and if Mr. Cochrane's job was, as he described, one largely of the transcription of community directions, one would expect to find the requirement in the policy manual. [48] I also find it to be significant that the matter of fluency in Saulteaux as a job requirement for the Director of Education position did not arise at any time between the date Ms. Bignell-Malcolm was interviewed for the job, being in early May, 2003, and July 24, 2003, the date the Chief testified that he finally remembered the requirement and rescinded, with his Council's approval, the job offer. Surely, in all of the circumstances, the requirement would have occurred to someone earlier than July 24, 2003. First, the education policy document was published in January of 2003, just a few months before the position of Director of Education was advertised. One would expect that the content of the policy would be reasonably fresh in the minds of people in the community. Even if this Tribunal were to accept that the language requirement was improperly omitted from the job posting and the list of interview questions, it is difficult to believe that the requirement would not occur to anyone involved in the interview and candidate selection process before Ms. Bignell-Malcolm was offered the position on July 10, 2003. [49] I note that the interview process was undertaken by at least a dozen of the leaders of the Ebb and Flow community. The entire Board of Education was in attendance, the Chief and Council and at least one Elder. Further, Ms. Bignell-Malcolm was a long time resident and active member of the Ebb and Flow community and had been employed in the school for several years. It would have been well known in the community that Ms. Bignell-Malcolm did not speak Saulteaux. I find the respondent's evidence that the language requirement did not arise because it had been improperly omitted from the job posting and the interview question list to be not credible. In all of the circumstances, it seems to me that had fluency truly been a job requirement, that requirement would have occurred to someone involved in the interview and candidate selection process and Ms. Bignell-Malcolm would not have been offered the job on July 10, 2003. [50] I also find it difficult to believe that two more weeks would pass by between July 10, 2003 and July 24, 2003 until the Chief finally remembered the job requirement. I find that the inference that arises on all of the evidence relevant to this element of the respondent's explanation is that fluency in Saulteaux did not arise as a job requirement for the position of Director of Education, because it was not a job requirement for the position at the relevant time. When did the respondent decide Ms. Bignell-Malcolm should not be appointed Director of Education? [51] I find that the evidence is most consistent with an inference that the respondent made its decision to rescind the job offer before July 24, 2003, contrary to the respondent's assertion. [52] Ms. Houle testified that news travels fast in the little community of Ebb and Flow. She testified that she began receiving telephone calls soon after the job was offered to Ms. Bignell Malcolm. Members of the community, she testified, were upset that Ms. Bignell Malcolm was being offered the position of Director of Education. Ms. Houle also testified that she spoke to Chief Beaulieu at the time she began receiving these calls and that he had confirmed to her that he was receiving similar telephone calls. The Chief testified that he did not recall receiving any telephone calls. I find the Chief's evidence on this point non-credible and prefer that of Ms. Houle. I believe that the Chief was well aware that members of the community were unhappy that Ms. Bignell-Malcolm had been offered the position of Director of Education shortly after the offer was made on July 10, 2003. [53] Further, both the respondent and the complainant agree that the meeting of July 23, 2003, a meeting at which the final details of Ms. Bignell-Malcolm's engagement were to be worked out, was acrimonious. The Chief describes that Ms. Bignell-Malcolm was rude, confrontational, demanding and unreasonable right from the start of the meeting. Ms. Bignell-Malcolm denies this. One would expect that this would be a meeting at which a spirit of good-will would prevail, particularly at its beginning. Ms. Bignell-Malcolm had just been offered a job that she was to be starting in a week. Why would a person, soon to be the Director of Education, at a meeting that included members of the Board of Education, take that very opportunity to announce that she would not work cooperatively with that very Board? Why would she be rude and disrespectful? Further, if her behavior was as utterly inappropriate as described by the Chief, one would expect that the panel would have considered rescinding the offer at that time rather than to increase the salary proposal by $3,000.00 a year. I find the respondent's evidence regarding Ms. Bignell-Malcolm's behaviour to be non-credible. A more credible explanation for the acrimonious tone of this meeting is that a decision had been made by the respondent in advance of the meeting to try to encourage Ms. Bignell-Malcolm to refuse the job by offering her an unduly low salary and generally treating her poorly at the meeting. [54] I also find it to be significant that the petition dated July 24, 2003 and delivered to the Chief that evening carries a note at the end of the signatures: I have spoke to the other Elders in the Community, but because of the AWAKE, a lot of these Elders were not home. So, verbally they agreed to sign, but ran out of time due to the rush of this letter (sic throughout). I did not hear evidence to explain what the AWAKE was, but it appears that the AWAKE was an event that had caused some Elders to be away from their homes when the petition was being canvassed. One cannot help but wonder why the petition was undertaken so quickly after the acrimonious negotiation meeting, and why there is a reference to the shortness of time. It seems reasonable to infer that this petition was undertaken after the meeting for the purpose of fabricating a justification for the Chief and Council to rescind Ms. Bignell-Malcolm's job offer after the respondent had been unsuccessful in causing her to decline the job during the July 23, 2003 meeting. The reference to time pressure suggests that the person or persons circulating the petition knew that Ms. Bignell-Malcolm had been given only until the next day to present a written acceptance. [55] Further I find it to be significant that the respondent did not tell Ms. Bignell-Malcolm that the job offer was being rescinded because she was unqualified. Why would the respondent fail to disclose this reason to her? If fluency in Saulteaux was a requirement for the job; a requirement that the interview and candidate selection committee disregarded in error, one would expect that the respondent would be forthright, confess its error and tell Ms. Bignell-Malcolm that she was unqualified by reason of her lack of fluency. The respondent did not do that. [56] For these reasons, I find that the respondent has failed to provide a reasonable explanation for its prima facie discriminatory conduct. The evidence supports the inference that fluency in Saulteaux was not, as the respondent asserted, a requirement for the position of Director of Education at the relevant time. Further, the evidence supports an inference that the respondent decided that Ms. Bignell-Malcolm would not be the Director of Education for the Ebb and Flow School not in the evening of July 24, 2003, as the respondent asserted, but no later than the meeting of July 23, 2003. The respondent's explanation is not credible and therefore it is not reasonable. I find that the complaint has been made out on the basis of this evidence alone. [57] There is, in this case, further evidence that tends to suggest more directly that the respondent's conduct was based, at least in part, on a discriminatory animus. Namely, the transcript of Ms. Houle's examination for discovery and the petition, both of which were discussed earlier. [58] During her discovery, Ms. Houle agreed that the community had a problem with Ms. Bignell-Malcolm because she was Cree and also because she did not speak the language. During her testimony before this Tribunal, Ms. Houle stated that what she meant to say during her examination for discovery was that the Elders were concerned that Ms. Bignell-Malcolm was Cree only because they would be unable to communicate with her. [59] I find that the transcript effectively impeaches the testimony given by Ms. Houle at the hearing of this matter. The transcript contains sworn evidence given by Ms. Houle in a proceeding undertaken before Ms. Bignell-Malcolm had filed the within complaint alleging discrimination on the ground of race and national or ethnic origin. During her examination for discovery, Ms. Houle would have had no reason but to communicate truly and accurately the concerns expressed by the Elders. For these reasons, I prefer the evidence given by Ms. Houle at her examination over the evidence given by her at the hearing. I find that this evidence supports an inference that the respondent's decision to rescind Ms. Bignell-Malcolm's offer of employment was based, at least in part, on discriminatory considerations. [60] I also find that the petition supports an inference of discriminatory animus. In the petition the Elders express not one, but two reasons for their objection to Ms. Bignell-Malcolm being hired as Education Director. The petition identifies a concern about her lack of fluency in Saulteaux, but a second concern expressed was that Ms. Bignell-Malcolm was not one of our people. Indeed, the wording used was, . . . we would always have our own people administering our Education program. Jean does not even speak our language. This wording suggests that the Elder's primary concern was race, national or ethnic origin and that language was a secondary concern. I find that this petition is further evidence that would support an inference that the respondent's decision was based, at least in part, on a discriminatory consideration. The Respondent's Alternate Defence: Aboriginal Employment Preference Program [61] The respondent argued that if I find that its decision was based, in whole or in part, on the consideration of race or national or ethnic origin, the decision is not discriminatory for reason of Aboriginal Employment Preference Program created by the Canadian Human Rights Commission. I find for the following reasons that the respondent cannot rely on the Aboriginal Employment Preference Program. [62] The Canadian Human Rights Commission has recently reviewed and updated its Aboriginal Employment Preference Program. This program is enabled by section 16 of the CHRA, which allows an employer to create a special program designed to prevent disadvantage or reduce disadvantage when the disadvantages are based on or related to a prohibited ground of discrimination, such as race, national or ethnic origin. The CHRC program directs that it is not a discriminatory practice for an employer to give preferential treatment to aboriginal persons in hiring, promotion or other aspects of employment, when the primary purpose of the employer is to serve the needs of aboriginal persons. Aboriginal preference is a defence that can be used by an employer if a complaint is made alleging a person was denied employment because they were not aboriginal. [63] I find that this program does not afford a defence to the respondent. First, the respondent specifically denied, in its response to Ms. Bignell-Malcolm's complaint that its decision was in any way related to her race, national or ethnic origin. The explanation provided by the respondent was that its decision was based on language alone. It is nonsensical for the respondent to insist that it did not base a decision on race, national or ethnic origin and then to argue in the alternative that if they did, they did so pursuant to a special program that had been created in the community. These positions are not alternative to one another; they are wholly inconsistent with one another. [64] Further, the Commission's program contemplates the employment of aboriginal persons in preference to non-aboriginal persons. The program also allows employers to require job applicants to have knowledge and/or experience with the language, culture, history and customs of a particular First Nation, band or tribe when such requirements are directly related to the job requirements. However, the Program does not allow for preference to be given to members of a particular First Nation, band or tribe. The Commission's program strikes an important balance. The program recognizes the historic disadvantages suffered by Aboriginal persons, the importance of redressing past wrongs and of preserving the cultural heritage and autonomy of our First Nations people. The program does not, however, allow First Nations persons to discriminate against one another on the basis of their membership in a First Nation, band or tribe. Respondent's alternative defence: Bona Fide Occupational Requirement [65] The respondent has also argued in the alternative that should this Tribunal find that the respondent's decision not to hire Ms. Bignell-Malcolm was made at least in part on the basis of race, national or ethnic origin, then requiring that the Director of Education have a facility in the Saulteaux language is a bona fide occupational requirement of the position of Director of Education. I find this defence has no application to the facts of this case. [66] Language is not coincident with and race, ethnic or national origin. Persons of Ojibway descent may or may not speak Saulteaux. Persons of Cree descent may or may not speak Saulteaux. Fluency in a particular language cannot, without more, be a bona fide occupational requirement justifying discrimination on the basis of race, national or ethnic origin. Conclusion [67] For the reasons outlined above, I find that the complaint has been substantiated. IV. REMEDIES a) Compensation for lost wages [68] Ms. Bignell-Malcolm asks for compensation for lost wages from September 1, 2003 to December 31, 2006, pursuant to section 53(2)(c) of the CHRA. Section 53(2)(c) empowers a tribunal, upon having found a complaint substantiated, to compensate the victim for any or all of the wages that the victim was deprived of as a result of the discriminatory practice. [69] The Federal Court of Appeal has recently considered the analysis appropriate to making awards in compensation for lost wages. In Chopra v. Canada (Attorney General), [2007] F.C.J. No. 1134, Pelletier J.A., writing for the Court, directs that the central consideration when considering such an award is to determine whether there exists a causal connection between the lost wages and the discriminatory act or acts. The principles that limit recovery in damage assessments in civil litigation, such as remoteness and foreseeability, have no application. A wrongdoer may be ordered to compensate its victim for losses caused by his or her conduct whether or not such losses could have reasonably been foreseen. Section 53(2)(c) gives the Tribunal discretion when considering an award in compensation for lost wages. The section directs that a tribunal may order compensation in respect of any or all wages lost as a result of discriminatory conduct, though this discretion must be exercised in a principled manner (Chopra, supra, at para. 37). Further, although a tribunal may consider whether a victim has taken steps to mitigate his or her damages, mitigation is not a mandatory consideration. Mitigation can be considered should the Tribunal view it to be appropriate in the circumstances. [70] Ms. Bignell-Malcolm obtained alternate employment fairly quickly after the respondent failed to hire her. She was required to find employment outside the Ebb and Flow community and to commute to and from work. The positions she obtained were less remunerative than the position of Director of Education in the Ebb and Flow School system, a position she accepted at a salary level of $55,000.00. Between September of 2003 and December of 2006, Ms. Bignell-Malcolm worked for five different employers. The only significant break in her employment was between April of 2004 and December of 2004. In April of 2004 Ms. Bignell-Malcolm testified that she decided to resign from her job at the Sioux Valley Education Authority. She testified that in the spring of 2004 she wanted to help plan her daughter's wedding. She was also very homesick and depressed. She decided that she would leave her job, move back home and set up a restaurant with her daughter. The restaurant did not succeed and was closed down by the end of December, 2004. [71] Between September of 2003 and December of 2006, Ms. Bignell-Malcolm earned a total income of $134,330.86. Had she been working as the Director of Education for the Ebb and Flow Indian Band during this time earning a salary of $55,000.00 per annum, she would have earned a total income of $187,916.66. I find that it is appropriate that Ms. Bignell-Malcolm receive compensation for lost wages. In respect of quantum, I order that she receive the difference between the income actually received between August 1, 2003, being the date upon which her job as Director of Education for the Ebb and Flow School system would have commenced, until December 31, 2006, except that I do not include any compensation for the months of May, 2004 through December, 2004, as Ms. Bignell-Malcolm left her job voluntarily to pursue other interests. Although the duty to mitigate is not a mandatory consideration under this head of damages, I find that it is appropriately applied here to reduce the award for lost wages. b) Compensation for pain and suffering [72] Ms. Bignell-Malcolm seeks an award, pursuant to section 53(2)(e) of the CHRA, that she receive compensation for pain and suffering. She testified that the respondent's conduct, found herein to be discriminatory, caused her significant distress. She describes trembling, and feeling like she was in shock after the Chief called late in the evening, waking her. She also testified that she suffered distress arising from the discrimination. She testified that her distress arose in part because she did not know the reasons that this job, a job that she very much wanted, had been taken from her so abruptly. She describes that she was depressed, that she suffered because she had again to leave her own community to work. She was homesick and worried about her family. [73] I find that the respondent's conduct caused Ms. Bignell-Malcolm to suffer serious pain and suffering. I order the Respondent to pay Ms. Bignell-Malcolm $7,000.00 in compensation for pain and suffering. c) Special Compensation [74] The complainant asks for special compensation. Section 53(3) of the CHRA empowers the Tribunal to award a maximum of $20,000.00 should the Tribunal find that a respondent has engaged in a discriminatory practice either wilfully or recklessly. I find that the respondent's conduct was wilful and that it was reckless. I find that the Chief and Council rescinded Ms. Bignell-Malcolm's employment when they knew or ought to have known that they were engaging in a discriminatory practice. I find that the deceitful manner in which the job was rescinded suggests a degree of knowledge on the part of the respondent that they knew what they were doing was wrong. Special compensation is accordingly appropriate and I award $5,000.00. d) Legal Expenses [75] The complainant asks for an order directing that the respondent pay the legal expenses incurred by her during the course of this proceeding. The complainant also asks that the respondent pay the legal fees incurred during her pursuit of the wrongful dismissal law suit. Sections 53(2)(c) and 53(2)(d) both empower 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.' [76] Chairperson Sinclair has recently made a careful review of Federal Court jurisprudence dealing with this issue (Mowat v. Canada Post Corporation, 2006 CHRT 49). He concludes that the predominance of authority from that court is that the Tribunal has the power to award compensation for legal expenses under section 53(2). [77] I agree with this conclusion and am further persuaded that this Tribunal has the jurisdiction to award legal expenses for the reasons articulated by Chairperson Mactavish (as she then was) in her decision of Nkwazi v. Canada (Correctional Service), [2001] C.H.R.D. No. 29 [Nkwazi]. Chairperson Mactavish notes 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.) [78] The Federal Court of Appeal decision in Chopra does not deal expressly with the matter of legal costs. The decision deals with a claim for lost wages. The decision does, however, consider the proper interpretation of section 53(2)(c), which is one of the sections of the CHRA that confer upon this Tribunal the jurisdiction to award legal costs. Pelletier J.A. directs that the central consideration when making awards pursuant to this section is that of a causal nexus between the expenses incurred and the discriminatory conduct. Considerations such as remoteness, foreseeability have no application, and mitigation can be considered where appropriate, but is not a mandatory element of the analysis. Awards made pursuant to this section are always discretionary. [79] Turning first to the claim for legal costs incurred in this complaint, I find that it is appropriate to order that some of these expenses be paid. I find that the respondent's discriminatory conduct caused Ms. Bignell-Malcolm to engage the services of legal counsel. But for this discriminatory conduct, Ms. Bignell-Malcolm would not have filed this complaint and would not have reasonably sought the assistance of counsel. I find, however, that it is significant that the Canadian Human Rights Commission was represented at the hearing. Commission counsel do not represent complainants, they represent the public interest. It was perfectly reasonable for Ms. Bignell-Malcolm to engage counsel to represent her interests. [80] However, counsel for the Commission took an active role in examining witnesses and in closing submissions. Counsel for the complainant was of great assistance to the Tribunal, but shared much of the work during the hearing with Commission counsel. In these circumstances I find that the respondent should not be made to pay all of the complainant's legal fees. I order that the respondent will pay the reasonable legal expenses incurred by Ms. Bignell-Malcolm in her pursuit of this complaint, provided that the respondent will pay only one half of the legal expenses incurred by the complainant from October 22, 2007 to October 26, 2007, being the dates of the hearing. [81] Turning to the legal expenses incurred by the complainant in the wrongful dismissal action commenced by her and discussed earlier, I prefer not to exercise my discretion to order these expenses payable. It appears that the legal expenses incurred in respect of the wrongful dismissal suit were to some extent caused by the discriminatory conduct: had the respondent not rescinded the employment offer, Ms. Bignell-Malcolm would not have commenced the law suit. However, the reason that the complainant commenced a civil suit rather than a human rights complaint was not the discriminatory conduct per se, but the failure of the respondent to be frank in respect of the reasons underlying its decision. While there is some nexus between the discriminatory conduct and these legal expenses, I decline to order that the respondent compensate the complainant for these legal expenses. e) Other Expenses [82] The complainant seeks compensation for rent while working outside of her community. She claims $1,218.91 for rent while working at the Sapotewak Education Authority for three and a half months; rent in the amount of $2,200.00 paid while working at the Sioux Valley Education authority for four months, and rent in the amount of $1,500.00 paid while working in Winnipeg for six months. These claims are for living expenses incurred during the time period for which I have ordered the respondent to pay lost wages. The income earned by the complainant while working at these jobs will be deducted from her lost wage claim, and so it is reasonable that the costs associated with earning this income be paid by the respondent and I so order. I do not, however, order that the respondent compensate the complainant for her January 4, 2004 hotel bill, her cellular phone charges, a fitness club membership, furniture (that she still owns) or cable hook-up and service charges. f) Interest [83] Interest is payable in respect of all the awards made in this decision. 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. With respect to the award for lost wages, interest will run from December 31, 2006. For legal costs, interest will run from October 26, 2007, being the last day of the hearing. Interest will be payable in respect of the other expenses from the date each expense was incurred. f) Retention of jurisdiction [84] 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 remedies ordered in the within decision. Should the parties require direction on any remedial matter they may request same within 60 days of the date of this decision. Signed by Julie C. Lloyd OTTAWA, Ontario January 25, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1171/5306 STYLE OF CAUSE: Jean Bignell-Malcolm v. Ebb and Flow Indian Band DATE AND PLACE OF HEARING: Winnipeg, Manitoba October 22 to 26, 2007 DECISION OF THE TRIBUNAL DATED: January 25, 2008 APPEARANCES: Karlee Blatz For the Complainant Giacomo Vigna For the Canadian Human Rights Commission J.R. Norman Boudreau For the Respondent

2008 CHRT 30

CHRT

Warman v. Lemire

en

2008-06-26

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6651/index.do

2023-12-01

Warman v. Lemire Collection Canadian Human Rights Tribunal Date 2008-06-26 Neutral citation 2008 CHRT 30 File number(s) T1073/5405 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content 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 2008 CHRT 30 2008/06/26 MEMBER: Athanasios D. Hadjis [1] This ruling relates to the matter of the redacted documents referred to in my earlier ruling, Warman v. Lemire, 2008 CHRT 16. I have since viewed the redacted and unredacted versions of the documents and I have provided the parties with a general description of the redacted portions. [2] The Commission was invited to address the disclosure issues raised by the Tribunal in its ruling, by May 29, 2008, and the other parties by June 2, 2008. Only the Commission and the Respondent filed submissions. [3] The Commission submits that it is only required to disclose arguably relevant material, adding that personal information about individuals is not arguably relevant and that, in fact, disclosure thereof may be prohibited by the Privacy Act, R.S., 1985, c. P-21. The Respondent contends that there is no personal information to be found in the documents, particularly with regard to the names and addresses of police officials doing police work. Police, it is argued, are fully aware and expect that documents generated in their work will be subject to production and review by courts. [4] I view the entire issue of privacy as a proverbial red herring in this matter. The first criterion in determining what is subject to disclosure under the Tribunal's Rules of Procedure is relevance to an issue, fact or form of relief sought, as identified by any of the parties, i.e. arguably relevant, in the case. Irrespective of what any party's secondary motivation may be for excluding material from disclosure, if the material is not arguably relevant, it need not be disclosed, and accordingly, the Tribunal will have no authority to direct that such disclosure occurs. [5] As I already suggested in paragraph 4 of my earlier ruling, the question that must be addressed in determining the arguable relevance of this material is how the names, email addresses, phone numbers, weight and height, etc. of the individuals referred to in these documents, are arguably relevant to the proportionality test set out in R. v. Oakes, [1986] 1 S.C.R. 103, that was the basis for the Tribunal's disclosure order in the first place. [6] The Respondent's submissions are not responsive to this question and are therefore not persuasive in regard to the issue at hand. [7] The Respondent's request that the Commission disclose the redacted portions is therefore denied. [8] I would note, in passing, that although the Respondent filed a written waiver from Alexan Kulbashian allowing the Commission to disclose unredacted copies of all documents which contain his private information, the fact remains that this information has not been shown to be arguably relevant to the issues of this case. Consequently, the Tribunal will not be directing that this disclosure take place. Signed by Athanasios D. Hadjis OTTAWA, Ontario June 26, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1073/5405 STYLE OF CAUSE: Richard Warman v. Marc Lemire RULING OF THE TRIBUNAL DATED: June 26, 2008 APPEARANCES: Richard Warman For himself Margot Blight 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

2008 CHRT 31

CHRT

Public Service Alliance of Canada v. Canada Revenue Agency

en

2008-07-14

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6652/index.do

2023-12-01

Public Service Alliance of Canada v. Canada Revenue Agency Collection Canadian Human Rights Tribunal Date 2008-07-14 Neutral citation 2008 CHRT 31 File number(s) T1288/1808 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 and CATHY MURPHY Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADA REVENUE AGENCY Respondent RULING 2008 CHRT 31 2008/07/14 MEMBER: Karen A. Jensen [1] This is a ruling on a motion by the Complainants, Cathy Murphy and the Public Service Alliance of Canada (PSAC). The Complaint involves allegations that the Respondent maintains a discriminatory policy of charging compounded interest at high rates on notional tax arrears on income received as a result of an order of this Tribunal in a pay equity case. Approximately 250,000 people received payments as a result of an order of this Tribunal on October 29, 1999. [2] The motion is for an order bifurcating the hearing into this matter so that the liability portion of the inquiry may be heard and determined first leaving the remedy to be heard at another hearing, if necessary. The principal reason for the request is that if the complaint is substantiated, evidence would have to be gathered from thousands of people in order to calculate the precise amount owing to the approximately 250,000 people affected by the complaint. This would require a significant amount of time and would unduly delay the hearing on liability, according to the Complainants. [3] The Commission supports the Complainants' request to bifurcate the hearing. [4] The Respondent opposes this request on the basis that it is unnecessary. In the Respondent's view, the principles governing remedy may be established at the hearing without the need to calculate the individual damages of every potential recipient. The Tribunal may address the issue of remedy by providing the framework necessary to calculate the damages for each individual. In the Respondent's view, the Tribunal could remain seized of the matter of individual damages to permit the parties to come back before the Tribunal if necessary. [5] The Complainants have proposed an alternative to bifurcating the hearing: instead of reserving all of the issue of remedy to a second stage, the parties would address the issue of remedy in the main part of the hearing and leave the individual calculations to be determined later, if necessary. [6] The Respondent consents to the alternative request. However, it says that Ms. Murphy should be required to prove her damages in the main hearing rather than revisit this issue at another hearing. [7] In my view, the Complainants' second request need not, and should not require a bifurcation of the hearing. The Complainants' submissions on this motion clearly indicate that although the precise quantum of damages for each individual affected by the decision would vary, the formula or calculation required to arrive at the quantum would be ascertainable and would apply to all of the approximately 250,000 individuals. [8] Therefore, the Respondent is correct in saying that if evidence is led about the method of calculating the individual damages, the Tribunal could make a determination on that issue and leave it to the parties to do the individual calculations. In that way, liability and remedy would be dealt with in one hearing with the Tribunal retaining jurisdiction over the issue of individual damages, should a need arise for further determination. Ms. Murphy's case may provide a useful example of how to calculate individual damages. [9] Complainants' counsel has indicated that although he cannot conceive of any remedy at this stage which would require a separate, individual assessment, he reserves the right, in the event that such a remedy is identified, the request that that aspect of the remedy stage be bifurcated as well. I am not sure that I understand what is meant here. However, I would reiterate that I do not see a need, based on the material that has been presented to date, to bifurcate the hearing. As I see it now, a single hearing is the most expeditious and fair means of resolving this matter. Signed by Karen A. Jensen OTTAWA, Ontario July 14, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1288/1808 STYLE OF CAUSE: Public Service Allinace of Canada and Cathy Murphy v. Canada Revenue Agency RULING OF THE TRIBUNAL DATED: July 14, 2008 APPEARANCES: David Yazbeck For the Complainants K.E. Ceilidh Snider For the Canadian Human Rights Commission Catherine A. Lawrence For the Respondent

2008 CHRT 32

CHRT

Montreuil v. Canadian Forces

en

2008-07-25

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6649/index.do

2023-12-01

Montreuil v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2008-07-25 Neutral citation 2008 CHRT 32 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 2008 CHRT 32 2008/07/22 MEMBER: Karen A. Jensen [1] This is a ruling about the process that will be followed to complete the inquiry into the complaint of Micheline Anne Montreuil against the Canadian Forces (CF). [2] Ms. Montreuil considers herself to be a transgendered person. She was born a man and went by the name of Pierre Montreuil until the mid to late 1990's when she began the medical process to become a woman. She did not complete this process. [3] From April of 1997 to August of 1999, the Complainant served with the CF as a male member of the First Reserve of the Régiment des Voltigeurs de Québec. In 1999, the Complainant was granted a voluntary discharge from the CF. In that same year, the Complainant applied, as a female, for re-enrollment in the Canadian Forces. Her request for re-enrollment and employment with the CF was denied in 2002. [4] Ms. Montreuil filed a complaint with the Canadian Human Rights Commission on October 23, 2002 alleging that her request for re-enrollment and employment was denied on the basis of her gender and/or a perception that she was disabled. The CF's response was that Ms. Montreuil did not meet the medical requirements for re-enrollment, and she did not establish that the circumstances had changed since her discharge in 1999 such that she should be re-enrolled in the CF. [5] Tribunal Member Pierre Deschamps commenced the hearing into this matter on October 23, 2006 and completed it on December 21, 2007. On February 9, 2008 Mr. Deschamps' appointment to the Canadian Human Rights Tribunal ended. He was not re-appointed. The Tribunal Chairperson decided not to exercise his discretion under s. 48.2(2) of the Act to permit Mr. Deschamps to conclude the inquiry into the present case. The Chairperson assigned the case to the Vice-Chairperson of the Tribunal for case management. [6] On May 13, 2008, the Vice-Chairperson invited the parties to consider the possibility of a case settlement conference to discuss options for resolving the dispute. The Respondent declined the invitation. The Vice-Chairperson then requested submissions from the parties on the procedure to be followed to conclude the inquiry into this matter. [7] The Complainant and the Canadian Human Rights Commission (the Commission) propose that the case be reheard by another member on the basis of the transcripts, documentary evidence and digital voice recordings of the evidence. If necessary, some of the witnesses can be re-called to testify as the Member sees fit. [8] In contrast, the Respondent is of the view that the principles of natural justice, and specifically the rule that he or she who hears must decide require that the case, in its entirety, be reheard de novo. The Respondent does not consent to a rehearing on the basis of the documentary evidence, transcripts and digital voice recordings of the hearing before Member Deschamps. [9] The principle he or she who hears must decide requires that anyone who takes part in a decision must have heard the evidence and the representations of the parties in the manner in which the law requires that they be heard (Doyle v. Canada (Restrictive Trade Practices Commission), [1985] 1 F.C. 362 (F.C.A.). This principle is a significant component of the audi alteram partem rule of natural justice (relating to the tribunal's fairness duty), and no one disputes its application in the present case (International Woodworkers of America, Local 2-69 v. Consolidated- Bathurst Packaging Ltd., [1990] 1 S.C.R. 282). [10] Does the principle he or she who hears must decide require a new hearing or may the matter be reheard on the basis of the previous record? The weight of judicial and tribunal authority favours a de novo hearing where one or more of the parties do not consent to a rehearing on the basis of all or part of the record of the previous hearing. [11] For example, in Beauregard c. Québec (Commission de la function publique), 1987 CanLII 786 (Q.C. C.A.), the Quebec Court of Appeal held that it was a breach of natural justice for the Commission de la fonction publique to appoint a new commissioner to hear a wrongful dismissal complaint half way through the proceedings even though a transcript of the evidence was available. [12] In Moyer v. New Brunswick (Workplace Health, Safety and Compensation Commission) 2008 NBCA 41, the New Brunswick Court of Appeal reviewed a decision of the New Brunswick Appeals Tribunal. The Appeals Tribunal heard argument on the admission of new evidence and then adjourned. When it reconvened, two of the members of the original panel had been replaced by two new members. The Court of Appeal held that it was a breach of procedural fairness for a newly composed panel to decide Mr. Moyer's case without having first alerted him to the change of composition of the panel, and then afforded him the opportunity to commence the hearing anew. [13] The Federal Court quashed a decision of a seven member National Parole Board in O'Brien v. Canada (National Parole Board) [1984] 2 F.C. 314, because four of the members of the Parole Board were not present at the interview. The four members based their decision exclusively on the written record. This was found to be a violation of the rule that he or she who hears must decide. [14] Human rights tribunals have applied this jurisprudence to decide whether they have an obligation to rehear a case de novo in the absence of consent to rehear it on the basis of the previous record. For example, in Salvadori v. British Columbia (Ministry of Health) [1996] B.C.C.H.R.D. No. 33 (Q.L.) the British Columbia Council of Human Rights decided that a hearing into the complaint of a number of doctors had to be recommenced when the member who started hearing the case was unable to continue. The evidence was recorded and transcripts of the hearing were available. However, not all of the parties were willing to proceed on the basis of the transcripts. After carefully reviewing the submissions and authorities, Member Patch concluded that proceeding with the inquiry on the basis of the transcripts of the evidence without the consent of all parties would be a violation of the rules of natural justice. [15] In Davis v. City of Toronto 2008 HRTO 15, the Ontario Human Rights Tribunal decided that the principle of audi alteram partem required that a new hearing be held when the member who had started the hearing was unable to finish the hearing. The only written record of the proceedings was the handwritten notes of Commission counsel and the previous member who had heard the first part of the case. The parties did not agree that the notes could be used by the new member instead of commencing the hearing de novo. [16] The new member stated that the case raised serious issues concerning the complainant's right to be hired as a firefighter by the City. It involved the application of human rights legislation, which has been recognized as quasi-constitutional in nature. Facts in relation to the hiring process as well as the complainant's medical condition were disputed, and the credibility of the complainant would be an issue. The new member stated that this is the type of case that is consistently dealt with by the Tribunal through an oral hearing, presided over from beginning to end by the same panel. On that basis she decided that it would be inappropriate to rely upon the hand-written notes as a record of the proceedings. She was not convinced that her resumption of the hearing partway through the evidence would be consistent with the principles of procedural fairness. [17] I find the Davis and Salvadori cases instructive. Like the Ontario and British Columbia Tribunals, this Tribunal has a legislative mandate to make final determinations on complaints involving quasi-constitutional rights. The Tribunal's decisions as well as its decision-making process are similar in nature to a judicial proceeding. [18] The Commission and the Complainant argue that given the resemblance of the Tribunal's decision-making process to that of a judicial proceeding, the Tribunal is justified in adopting the approach used by the courts and other quasi-judicial tribunals when they are in similar situations to the present. [19] For example, the Federal Court Rules permit the Chief Justice to replace a judge in a case with another judge and to order that the case be reheard on such terms as he or she considers appropriate (Rule 39 of the Federal Court Rules). However, to date there appears to be no case law interpreting this Rule. [20] Moreover, the Federal Court Rules do not provide clear legislative authority to indicate that the Tribunal, as opposed to the Federal Court, has the authority to abrogate the rules of procedural fairness. Similarly, the British Columbia Rules of Court, which were relied upon in Garbutt v. Burbank 2000 BCSC 14, and the Quebec Code of Civil Procedure, which was cited in Commission de reconnaissance des associations d'artistes et des associations des producteurs (January 13, 2006, Dossier: 2000-0193 (AD) (unreported)), do not provide the Tribunal with the authority to abrogate or modify the rules of natural justice or procedural fairness without the consent of the parties. [21] These two cases were cited by the Commission as support for their assertion that the Tribunal could proceed with the inquiry on the basis of the transcripts without full consent of the parties. However, the case law is clear that the rules of natural justice may only be abrogated by clear legislative authority (Kane v. Board of Governors of University of British Columbia (1980), 18 B.C.L.R. 124 (S.C.C.) at 135). The rules applicable to courts in other jurisdictions do not provide the Tribunal with clear legislative authority to abrogate the rules of natural justice. [22] The question remains however, as to whether the Tribunal may rehear the case on the basis of some or all of the previous record provided the parties consent to this? Citing Doyle, supra, the Respondent asserts that the Tribunal is not permitted to do so. The Doyle case involved the judicial review of a report prepared by a Commission established under the Canada Corporations Act regarding allegations of fraud committed by Mr. Doyle. Mr. Doyle was not present at the hearings, but was represented by counsel for some of the proceedings. Mr. Doyle's counsel absented himself from the last part of the proceedings in protest over the manner in which the proceedings were being conducted. Mr. Doyle applied for judicial review of the report alleging that there were numerous problems with the proceedings. Among those problems was the fact two of the three persons who signed the report did not attend all the hearings. The Federal Court of Appeal found that this defect in procedural fairness to be sufficient to invalidate the report. It constituted a violation of the rule that he or she who hears must decide. [23] The Court of Appeal stated that the rule he or she who hears must decide affects the decision maker's jurisdiction. For that reason its violation may be invoked even by a litigant who waived his right to be heard by the court which passed judgment on him. Thus, a defendant who voluntarily declines to attend the hearing thereby waives the right to be heard; he or she does not, however, waive the right to be judged by a judge who has heard the evidence. [24] In the text Practice and Procedure Before Administrative Tribunals, authors Robert Macaulay and James Sprague offer the opinion that Doyle does not stand for the proposition that the principles of natural justice do not allow for a voluntary and informed choice to waive a full rehearing of the case. Rather, the case stands for the proposition that waiving the right to be heard in a matter does not constitute a waiver of the necessity that the decision-maker must have him or herself reviewed all of the evidence and argument before him or her, even though a party has elected not to put any such evidence in him or herself (at pages 22-22 - 22-24). It stands also for the proposition that waivers of aspects of the he or she who hears rule must be explicit. [25] Macaulay and Sprague argue that like other aspects of the audi alteram partem principles such as bias, the he or she who hears rule should be capable of waiver. They state: Fair play is a function of the circumstances in which it is found and a breach of the he who hears rule can hardly be seen to be unfair to a party who has waived its application. I fail to see any social policy objection to an applicant voluntarily and knowingly electing to have his case judged by someone who has not personally heard all of the evidence. One might agree, for example, to have the decision-maker review transcripts of past proceedings. This latter course may be socially laudable where the delays and expenses inherent in rehearings can be avoided in cases where they serve no practical purpose. (Sprague and Macaulay, at page 22-23) (emphasis added) [26] I agree with the statement above. In my view, there is nothing to stop the parties from agreeing that certain portions of the transcripts may be entered as evidence. Indeed, s. 50(3)(c) of the CHRA authorizes the Tribunal to receive and accept any evidence and other information, whether on oath or by affidavit or otherwise, that the member or panel sees fit, whether or not that evidence or information would be admissible in a court of law. [27] In the Davis and Salvadori cases, the Ontario Human Rights Tribunal and the British Columbia Council of Human Rights emphasized that their ruling that the case must be reheard de novo did not mean that oral evidence on every aspect of the case was required if the parties agreed otherwise. The members encouraged the parties to work towards an agreement on the manner that evidence would be put before the Tribunal. In Davis, the Ontario Human Rights Tribunal stated that among the options the parties could explore were the use of the previous members' notes as the basis of a jointly produced statement of facts or evidence, or as the basis of affidavits of evidence in chief, in either case subject to the leading of evidence and cross examination on areas not agreed to. In Salvadori, Member Patch suggested that non-contentious documents and testimony from the prior hearing could be adduced through the written record of that hearing. [28] In the present case, it is clearly in the interests of all parties to have this matter resolved expeditiously and fairly. The hearing into this case took ninety-seven days to complete. There is no question in my mind that this case can be reheard in much less time than it took in the first hearing. It is likely that much of the testimony and many of the documents are not contentious. It may even be that the parties can agree to put the examination-in-chief testimony of the non-expert witnesses in on the basis of the transcripts and then cross-examine the witnesses viva voce. What is required is good faith effort on the part of all to come to an agreement upon the testimony and documentary evidence that is not contentious and does not need to be adduced in the same manner as previously. [29] The case manager will meet with the parties and assist them to attempt to reach an agreement on what parts of the evidence from the previous hearing may be adduced in the new hearing without the need for further viva voce testimony on those matters. Karen A. Jensen OTTAWA, Ontario July 22, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1047/2805 STYLE OF CAUSE: Micheline Montreuil v. Canadian Forces RULING OF THE TRIBUNAL DATED: July 22, 2008 APPEARANCES: Micheline Montreuil For herself Ikram Warsame For the Canadian Human Rights Commission Guy Lamb / Claude Morissette For the Respondent

2008 CHRT 33

CHRT

Germain v. Groupe Major Express Inc.

en

2008-07-22

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6650/index.do

2023-12-01

Germain v. Groupe Major Express Inc. Collection Canadian Human Rights Tribunal Date 2008-07-22 Neutral citation 2008 CHRT 33 File number(s) T1179/6106 Decision-maker(s) Doucet, Michel Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MAGALY GERMAIN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - GROUPE MAJOR EXPRESS INC. Respondent REASONS FOR DECISION 2008 CHRT 33 2008/07/25 MEMBER: Michel Doucet I. INTRODUCTION A. LEGAL CONTEXT B. THE FACTS C. APPLICATION OF THE LAW TO THE FACTS (i) Credibility of the witnesses (ii) The maternity leave D. RELIEF I. INTRODUCTION [1] By way of introduction, it would be worthwhile to review the purpose of the Act, as well as the Tribunal's role. [2] The Canadian Human Rights Act, R.S.C. 1985, c. H-6, as amended (the Act), is intended to give rise to individual rights of vital importance. Considering the powerful language of section 2, the purpose of the Act is clear. In order to promote the goal of equal opportunity for each individual to achieve the life that he or she is able and wishes to have, the Act seeks to prevent all 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, which would deprive an individual of employment opportunities. It is the discriminatory practice itself that the Act seeks to prevent. The purpose of the Act is not to punish wrongdoing but to prevent discrimination (see: Canadian National Railway Company v. Canada (Canadian Human Rights Commission), [1987] 1 S.C.R. 1114, at paragraphs 24 and 25). [3] The purpose of the Act, therefore, is not to assign or punish moral blameworthiness. There is no doubt that Canadian legislation is usually drafted so as to avoid any reference to intent, evidently apart from subsection 53(3) of the Act where Parliament has provided that intent may have an impact on the compensation that the person who engages in a discriminatory practice may be ordered to pay to the victim. [4] In Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, at page 547, the Supreme Court of Canada made its position clear regarding the purpose of such an Act, finding that its scope extends beyond intentional discrimination: It is the result or the effect of the action complained of which is significant. If it does, in fact, cause discrimination; if its effect is to impose on one person or group of persons obligations, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory. [5] The importance of human rights legislation was recognized in Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145. Mr. Justice Lamer, as he then was, points out at page 158 that such legislation need not be treated as another ordinary law of general application. It should be recognized for what it is, a fundamental law. This principle was further articulated by Mr. Justice McIntyre, on behalf of a unanimous Supreme Court, in Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150, at page 156: 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 nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement. [6] The case law therefore has recognized that the Act is fundamental and quasi-constitutional, so that human rights legislation prevails over other legislation (see also: Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R. 84; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554). [7] The purpose of Canadian human rights legislation is to protect against discrimination and to guarantee rights and freedoms. With respect to employment, its more specific objective is to eliminate exclusion that is arbitrary and based on preconceived ideas concerning personal characteristics which, when the duty to accommodate is taken into account, do not affect a person's ability to do a job. [8] In the following passage from the Report of the Commission on Equality in Employment (1984) (also called the Abella Report), at page 2 (passage referred to in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Montréal (City); Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Boisbriand (City), [2000] 1 S.C.R. 665, at paragraph 37), the Commission eloquently explained that: Equality in employment means that no one is denied opportunities for reasons that have nothing to do with inherent ability. It means equal access free from arbitrary obstructions. Discrimination means that an arbitrary barrier stands between a person's ability and his or her opportunity to demonstrate it. If the access is genuinely available in a way that permits everyone who so wishes the opportunity to fully develop his or her potential, we have achieved a kind of equality. It is equality defined as equal freedom from discrimination. Discrimination in this context means practices or attitudes that have, whether by design or impact, the effect of limiting an individual's or group's right to the opportunities generally available because of attributed rather than actual characteristics. What is impeding the full development of the potential is not the individual's capacity but an external barrier that artificially inhibits growth. [9] In that legislative context, 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 Canadian Human Rights Commission (the Commission). It has many of the powers of a court of justice. 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 must undertake its own independent investigations of complaints: the investigative functions have deliberately been assigned by Parliament to a different body, the Commission. [10] The hearing before the Canadian Human Rights Tribunal is intended to give the Tribunal the opportunity to hear relevant evidence and arguments so that it can determine whether there has been discrimination. At the hearing, complainants have the opportunity to explain, through their evidence, how they were discriminated against and what remedy they are seeking. The respondent will have the opportunity to refute the complainant's allegations and, where applicable, to counter the claims for relief. [11] It is not the Tribunal's place to presume facts which should have been adduced, to make determinations on unfounded speculation or to redo counsel's work. The Tribunal takes the record as it is and makes the decision that is the fairest in light of the facts and arguments before it. A. LEGAL CONTEXT [12] On September 12, 2004, Magaly Germain (the complainant) filed a complaint against Groupe Major Express Inc. (the respondent). The complainant alleged that the respondent had discriminated against her in the course of employment contrary to section 7 of the Act. More specifically, the complainant alleged that the respondent discriminated against her on the basis of her pregnancy by refusing to allow her to return to work following her maternity leave. The respondent, on the other hand, argued that it did not refuse to allow the complainant to return to work, but that rather it was she who voluntarily left her employment when she accepted a position elsewhere. [13] Since 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 classical distinction between direct discrimination and indirect discrimination has been replaced by a standardized analysis of human rights complaints. Under this analysis, the complainant must first establish prima facie evidence of discrimination. [14] Prima facie evidence is evidence 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. The allegations made by the complainant must be credible in order to justify the finding that there is prima facie evidence (see: Singh v. Statistics Canada, [1998] C.H.R.T. No. 7, aff'd [2000] F.C.J. No. 417 (F.C.T.D.), and Dhanjal v. Air Canada, [1997] F.C.J. No. 1599, (1997) 139 F.T.R. 37). The decision-maker need not take the respondent's answer into account in determining whether the complainant has established prima facie evidence (O'Malley v. Simpson-Sears Ltd., [1985], 2 S.C.R. 536, at paragraph 28; see also Dhanjal v. Air Canada, supra, at paragraph 6, and Moore v. Canada Post Corporation and Canadian Union of Postal Workers, 2007 CHRT 31, at paragraph 85). [15] Once prima facie evidence has been established, the burden shifts to the respondent to provide a reasonable explanation for the alleged conduct. [16] The standard of proof in discrimination cases is the ordinary civil standard of the balance of probabilities. According to this standard, 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 v. Air Canada, [2002] C.H.R.D. No. 3, at paragraph 81). A complainant need not establish that discrimination was the only factor influencing the conduct alleged in the complaint. The complainant need only establish prima facie evidence that discrimination was one of these factors (see: Basi v. Canadian National Railway Company (1988), 9 C.H.R.R. D/5029). B. THE FACTS [17] The respondent is an interprovincial and international trucking business operating essentially in Quebec, Ontario and the United States. Daniel Gaudreau is the President. In 2002, the respondent made a proposal to its creditors under the Bankruptcy Act, R.S.C. 1985, c. B-3. The first meeting of the creditors took place on October 18, 2002. The proposal was accepted by the creditors and went into effect on November 5, 2003. (The issue of the effect of the proposal in this matter was the subject of a preliminary decision: Germain v. Groupe Major Express Inc., 2007 C.H.R.T. 57.) [18] The complainant was hired by the respondent on July 1, 2002. The terms of the employment agreement were documented in writing and signed by both parties. According to this agreement, the complainant was hired as a [translation] company operations dispatcher. The agreement provided that her duties would be to assist management [translation] in the daily management of client transport needs and, more specifically, to plan client needs and the delivery service with the drivers, to oversee driver's logs and to support their needs, to verify road expenses and any other work required by management and related to dispatch. [19] For this work, the employment contract provided that the complainant would receive a weekly salary of $770, the equivalent of an annual salary of $40,040. The agreement, drafted by the respondent, did not provide for a probationary period or a training period. However, on cross-examination, the complainant said that [translation] on July 2, I was in `training', thereby recognizing that there was a training period at the beginning of her employment. During his examination, Mr. Gaudreau stated that when she was hired in July [translation] [the complainant] had to become familiar with the business and the drivers. The second week, she began to take control and to better understand the business and the operation of our LINK computer system. Based on this, I find that if there was a training period, it did not go beyond the first two weeks after she was hired. [20] Around the end of July or beginning of August 2002, the complainant learned that she was pregnant. Her due date was March 23, 2003. She said that she immediately advised her employer of this, which Mr. Gaudreau did not deny. [21] The first month of pregnancy was no picnic. The complainant often suffered from nausea. She said that she was not in the best physical shape. She stated that she had to miss work on several occasions at the beginning of September 2002. On September 26, 2002, her physician gave her a medical certificate stating that she would be absent from work on September 26 and 27 for health reasons. However, she did not return to work after these two days of sick leave. [22] On October 25, 2002, her physician issued a new medical certificate, placing the complainant off work from September 26, 2002, until she gave birth. On the certificate, the physician indicated that she had stopped working [translation] for health reasons (significant stress and insomnia incidental to her work). When she testified, the complainant stated that she was on preventative cessation of employment because of complications due to the fact that the [translation] placenta was not in place which [translation] could be dangerous for the baby. However, I note that the medical certificate did not refer to the medical condition described by the complainant and that the complainant did not file any evidence to support this statement. In any event, the respondent did not dispute this evidence. [23] According to the complainant, she had a good relationship with her employer until she stopped working on September 26, 2002. To support this statement, she stated that in December 2002, despite the fact that she was on medical leave, she was invited to the company's Christmas brunch. According to her, her due date was then known by the respondent, but there was no issue as to the expected date of her return to work. [24] The complainant gave birth as expected in March 2003. In April, she visited the respondent to show her newborn to her coworkers. She stated that it was at that time that she left a letter, dated April 14, 2003, indicating that she would be returning to work on January 12, 2004. It was also at that time that she met her replacement, Antoine Genest. [25] In June 2003, the complainant said that she received a call from Mr. Gaudreau, who asked her whether she would be able to return to work earlier, because he wanted to leave on vacation in July. She added that he even offered the services of his sister-in-law as a caregiver. The complainant stated that it was impossible for her to return to work at that time because her baby was only three months old and she had to breast feed. [26] She said that she had another conversation with Mr. Gaudreau in August 2003. At that time, Mr. Gaudreau wanted to know when she would be returning to work. She added that he was insistent that she return to work as soon as possible. She said that his insistence was stressful for her; she did not want to lose her job. She stated that she had attempted to find a caregiver for her child, but was unsuccessful. She said that she explained to Mr. Gaudreau that as long as she was unable to find a [translation] reliable caregiver, she would not be returning to work until January 2004, as originally planned. [27] Mr. Gaudreau had a different version of the events that occurred after the complainant gave birth. While acknowledging that she came to visit with her newborn in April 2003, he added: [translation] She called us to say that she missed her job and that she was anxious to return. She said that she would return in June if she could find a caregiver. He added that in August 2003, she called him to tell him [translation] that she knew that the company was not doing well financially. She asked whether there was a possibility that the company would close. According to Mr. Gaudreau, the complainant was concerned at that time about her job security. [28] The respondent added that it was not until September 2003 that it learned of the letter dated April 14, 2003, in which the complainant stated that she planned to return to work in January 2004. At the hearing, Mr. Gaudreau added that he was [translation] very surprised to see that the letter was dated April. This was wrong. It was in September that we received it and that she told us that she would be returning on January 12, 2004. We are categorical about that. I received that letter in September, not in April. She was still saying that she wanted to come back in June, that she was eager to return. When the Tribunal asked him whether he had a copy of the letter that the company had received with the date of receipt stamped on it, he answered that the respondent did not stamp the date of receipt on letters that it received. He was therefore not able to file evidence supporting his allegations to the effect that the complainant had antedated the letter. [29] On cross-examination, Mr. Gaudreau testified that the complainant was supposed to return to work in June 2003. He added that in June, she contacted him to ask him whether she could return to work in August or September, because she was unable to find a caregiver for her child. Finally, he added that she wrote the employer in August to advise it that she would be returning on January 12, 2004. This letter from August, if it exists, was never filed in evidence at the hearing and there was no explanation given to the Tribunal to explain why it had not been filed. [30] Even though he cross-examined the complainant on the contents of her letter dated April 14, 2003, the respondent's counsel never indicated that his witness, Mr. Gaudreau, would be testifying that he had not received the letter until September or that he would be alleging that the date on complainant's letter was false. [31] In any event, whether or not the respondent received the letter in April or, as it alleged, in September, it never told the complainant, in writing or orally, that it did not accept her return-to-work date. At least, it did not provide any evidence to that effect. [32] Mr. Gaudreau stated that the decision was made in September 2003 to hire a trainee to assist Antoine Genest, the complainant's replacement, because he was overwhelmed. Mr. Gaudreau added that indeed: We negotiated that if he performed well we would keep him if [the complainant] did not return. [33] On October 17, 2003, the complainant called Mr. Gaudreau to discuss her proposed return in January 2004. It was during this conversation that Mr. Gaudreau told her that she no longer had a place [translation] on the team and that he had hired Mr. Genest to work as a full-time dispatcher. According to the complainant, he added that he was willing to propose to her other companies where she could work. [34] After this conversation, the complainant said that she called the normes du travail du Québec, at which time it was suggested that she write a letter to her employer to determine whether the employment ties had indeed been severed. [35] On October 22, 2003, the complainant sent a letter to Mr. Gaudreau confirming their conversation of October 17. In this letter, which she says was intended as a follow-up to their telephone conversation, she told her employer that she was [translation] surprised to learn . . that he had waited until September and that since she had not returned to work, he had to hire François [the trainee] because [he] could no longer manage `dispatch'. The complainant added in her letter that she had asked Mr. Gaudreau whether she [translation] still had a place with the company and that he had answered [translation] that his team of dispatchers was now complete [and] that he could no longer guarantee her a position. She said that he added that [translation] it would be preferable that she begin to seek [new] employment. The complainant wrote that she had asked Mr. Gaudreau whether he had intended to wait until January 10 to tell her that she no longer had a job, to which he responded, once again according to the letter, that he [translation] no longer had her phone number. [36] She also wrote in her letter that the employer had told her that her replacement's salary was $39,000 per annum, which was less than the salary that it had paid her and that this in itself justified its decision to [translation] no longer guarantee her position. She wrote: What you are forgetting is that maternity leave exists so that the mother can devote all of her time and energy to her newborn. However, in this situation, I will spend the last two and a half months of my leave worried and insecure and probably looking for another job because during this same conversation you made me feel as though you could not guarantee me a quality of life at work equivalent to the one I had before I left. [37] Finally, she asked her employer to confirm in writing before November 5, 2003, that she could return to her work in January 2004, in the same position and with the same salary. The respondent did not respond to the complainant's letter. [38] On cross-examination, the complainant stated that she had sent this letter to the respondent by registered mail. During his testimony, Mr. Gaudreau said that he did not recall receiving this letter. When asked by the respondent's counsel to file a copy of the postal receipt confirming the letter had been sent, the complainant gave him a document which appeared to have satisfied counsel since he did not continue that line of questioning. During the final submissions, the respondent did not revisit this point. [39] Unfortunately, the postal receipt was not filed into evidence and the Tribunal therefore could not examine it. However, I am persuaded that if there had been a problem with the document, the respondent's counsel would not have hesitated to file it and, as he did not do so, I can only infer that this confirms that the letter had indeed been sent. [40] As she did not receive a response from the employer, the complainant said that she began to look for work. On November 3, 2003, she was hired by a company by the name of Royal Wood Shavings for which she had worked before the respondent had hired her. The date she was hired for this new employment is somewhat surprising, considering that in her letter dated October 22, she had given her employer until November 5 to confirm whether or not it would let her return to her position in January 2004. She explained that she had decided to look for work, because she knew that it would be difficult to find work in Québec City in January. [41] According to Mr. Gaudreau, on November 2, he called Royal Wood Shavings, one of the respondent's clients, and [translation] to his great surprise the complainant answered the telephone. He added: [translation] I asked her: What are you doing there? If you wanted to return to work, why didn't you return to us? All that she said to me was that Groupe Major Express was not secure. She was not sure whether or not we would remain open. I saw that [the complainant] was not interested in Groupe Major Express. A little later on, he added: [translation] The conversation did not affect me. I was rather surprised that she was there. We did not know that she was there. As far as we were concerned, she was still ill, she was looking for a caregiver. I knew nothing of her efforts to find work elsewhere. She had never been dismissed. We were surprised to see . . . we wanted to know why she had gone to work elsewhere. We had been waiting for her at Groupe Major Express for more than a year at that point. To follow up on this conversation with the complainant and, faced with the [translation] uncertainty of her return, Mr. Gaudreau said that he decided to confirm that Mr. Genest would be given permanent status as head dispatcher. [42] During her testimony, the complainant did not refer to a telephone conversation that she allegedly had with Mr. Gaudreau in the beginning of November 2003. I also observe that the respondent's counsel did not question the complainant regarding this conversation. [43] Mr. Gaudreau also referred to another conversation that he had allegedly had with the complainant in December 2003. According to Mr. Gaudreau, the complainant had called him to tell him that she wanted to return to work on January 12, 2004. He says that he told her that [translation] she had to make up her mind. You are working at `Royal Wood Shavings.' Are you coming back or not? [44] According to the complainant, the conversation to which Mr. Gaudreau referred did not take place in December 2003, but rather in January 2004. According to her, Mr. Gaudreau called her to ask her to come back to work for the respondent. Also according to the complainant, he offered her a different position with a salary of $23,000, which was much less than what she was earning before her maternity leave. He also told her she would no longer be working as head dispatcher. In the complainant's opinion, this offer was unacceptable because even in terms of salary she was earning more at Royal Wood Shavings, where her salary was $27,000. She stated that she asked Mr. Gaudreau to send her the offer in writing, adding that in any event [translation] she was pregnant once again. [45] The complainant added that she never did receive a written confirmation of the offer that Mr. Gaudreau made to her in January 2004. She added that she had also never followed up on this conversation because she [translation] did not take the offer seriously. [46] Mr. Gaudreau did not deny that he had called the complainant at home, although his testimony on this point was somewhat confused: [translation] I called [the complainant] at home. She had called to find out whether her job was still available for January 12. I told [the complainant] that given your experience we would make her an offer. We offered her $30,000 per annum. The young man [trainee] was earning $27,000. She had more experience than him so I gave her a raise [sic]. At the end of three months we would see. She never talked about putting it in writing. She said okay, I'll call you back. She called me back 15 minutes later to tell me that she refused my offer. You give me $40,000 a year or I will not come back. I told her that I could not pay her $40,000 a year. I asked her to do her three months of `training'. You did not even finish your first month. I have not finished showing you the `job'. She categorically refused. She hung up on me. She called back and said she wanted $40,000. I said no, I cannot give you $40,000 and I cannot let you have the position you had before, because you do not have the experience to do it. She refused and said that, in any event, I am pregnant again and she hung up on me. [47] On cross-examination, he added that following this conversation her refusal [to accept his offer] liberated us. [48] After their conversation in January, Mr. Gaudreau called the complainant back in May or June 2004. According to the complainant, he wanted to know how she planned to repay the $1,500 that the employer had paid her when she left on maternity leave. In fact, the employer had at that time paid the complainant three weeks of salary, two of which were to be reimbursed by the Commission de la santé et de la sécurité au travail du Québec (the CSST), at least according to what the parties believed at the time. However, since the respondent was a federal undertaking, the CSST refused to reimburse the employer. In an agreement dated January 7, 2003, the complainant undertook to repay this amount in increments of $100 per week for 15 weeks upon her return to work after her maternity leave. According to the complainant she told her employer during their conversation in June 2004 that she did not at that time have the means to pay back this amount. The issue was finally settled in an arbitral award dated March 3, 2005, in a proceeding under Division XVI of Part III of the Canada Labour Code involving the same two parties. C. APPLICATION OF THE LAW TO THE FACTS (i) Credibility of the witnesses [49] The complainant has the initial burden of proof to establish a prima facie case of discrimination. Once this initial burden has been met, the respondent must then provide a justification or an explanation for the alleged discriminatory practice. In this case, the evidence filed by the parties was limited to the complainant's testimony and the testimony of Mr. Gaudreau, for the respondent. As expected, these witnesses did not have the same recollections or the same interpretation of relevant events. On many points, their testimony was contradictory, forcing me to choose whose testimony was the most credible, which is never an easy task. [50] Even though her testimony was not free of inconsistencies and ambiguities, on the issue of credibility I tend to prefer the evidence submitted by the complainant for the reasons that follow. Inter alia, the complainant supported many of her claims with evidence in writing. For example, she submitted in evidence a letter dated April 14, 2003, informing her employer that she would not return to work until January 2004. On the other hand, on this point the respondent's witness made only an unfounded statement to the effect that the date of this letter had been falsified and that, in any event, he had not received it until August or September 2003. However, he did not file the copy of the letter received by his company and, when I asked whether the respondent had in its possession a letter with a stamp indicating the date of receipt, he answered that the respondent did not stamp the dates of receipt on the letters it received. This explanation did not persuade me and indeed it did not explain why the letter of August or September 2004 had never been filed. [51] I also observed that, during the complainant's cross-examination, the respondent's counsel did not really question her about the substance of this letter and in particular he did not draw her attention to the fact that his witness was going to testify that he had not received the letter in April and that he was indeed going to impugn the date indicated on the letter. On this point, I note that the rule established in Browne v. Dunn (1893), 6 R. 67 (H.L.), requires counsel to warn witnesses that counsel later intends to impugn their credibility, unless witnesses have already been notified that their credibility will be challenged. The justification for this rule was explained as follows by Lord Herschell, at pages 70-71, of the decision: Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that the imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. (See also: R. v. Lyttle, [2004] 1 S.C.R. 193 and Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 2nd ed., LexisNexis Butterworth, pages 954-957.) [52] Furthermore, although in certain respects the complainant's testimony was somewhat inconsistent, I found her testimony far more credible overall than the testimony of the respondent's witness. [53] In regard to the telephone conversation of October 17, 2003, the complainant filed in evidence a letter dated October 22, 2003, confirming the substance of the discussions that she had allegedly had with Mr. Gaudreau. Mr. Gaudreau did not deny receiving this letter, even though he said that he did not remember it. I also observe that during the complainant's cross-examination, the respondent's counsel asked to see the postal receipt confirming that the letter had been sent by registered mail. After reviewing this document, Mr. Jobidon did not ask the witness any other question on this point, and did not ask that the receipt be filed in evidence. I find on this basis that the document confirmed that the letter was sent on or about the date indicated. I also find that the content of the letter faithfully reflects the conversation that took place between these two individuals, since it was not challenged by the respondent. [54] When he testified, Mr. Gaudreau referred to two conversations that he had with the complainant in November and December 2003. The complainant never referred to these conversations and she was never cross-examined about them. According to Mr. Gaudreau, it was during this conversation in November that he learned that the complainant was working at Royal Wood Shavings. He added that following this conversation, he decided to confirm the permanent status of Mr. Genest, the complainant's replacement, as head dispatcher. Then Mr. Gaudreau's testimony became difficult to follow. According to him, the complainant contacted him again in December 2003 to tell him that she was still interested in returning to work for the respondent in January 2004. Mr. Gaudreau told her that [translation] she had to make up her mind. You are working at `Royal Wood Shavings'. Are you coming back or not? If the respondent had learned at the beginning of November that the complainant had accepted employment elsewhere and if this had prompted the confirmation of Mr. Genest's position as head dispatcher, as Mr. Gaudreau stated, why then would he in December again have discussed the possibility of her returning to work? [55] On cross-examination, Mr. Gaudreau explained that he had [translation] agreed to take back the complainant even though Mr. Genest had just been given permanent status. He added that the second dispatcher position was still available [translation] because we decided to lay off the second dispatcher [the trainee] to replace him with the [complainant]. Why then would he act this way when already in November 2003 he considered that the complainant had left her job? According to Mr. Gaudreau, the decision to dismiss the [translation] trainee from the position of [translation] second dispatcher on December 22, 2003, was made because of the complainant's possible return. Accordingly, this conversation, if it took place, must have taken place before December 22, 2003, the date that the trainee was relieved of his duties. In that case, why did Mr. Gaudreau not inform the complainant at that time that the respondent was not going to take her back as head dispatcher, especially since he had already confirmed that Mr. Genest was head dispatcher? [56] The chronology of the events as presented by Mr. Gaudreau is difficult to follow. Even though he had spoken with the complainant about her possible return during a telephone conversation in December 2003, it appears that he did not tell her that the business was [translation] reviewing employees' salaries because of financial difficulties until a conversation in January 2004. He even stated that all [translation] the salaries were decreased by 15%. He added that during this conversation: [translation] [The complainant] was told that we would take her back, but that we would renegotiate her salary, because the business could not pay two salaries of $40,000. François [the trainee] left on December 22. The complainant called back on January 10 and asked if the work was ready. I told her that yes, we are ready to have you back. Given the training that you were unable to complete at the beginning of your employment, given your lack of experience, we will put you on as second dispatch behind Antoine who at this time has one year of experience. We cannot appoint you as head dispatcher with only two weeks of training. In 2003, we had 30 trucks and not 20 as we had when she began. [57] When Mr. Gaudreau stated that the business [translation] could not pay two salaries of $40,000, he was clearly referring to the fact that Antoine Genest was now employed as head dispatcher and that he received a salary of $40,000. Yet on cross-examination, he stated that [translation] [Antoine Genest] was employed as a dispatcher until September 2004. He left the employment for health reasons. He knew from the beginning that it was a temporary position, but because we did not know when [the complainant] was coming back, it was extended [emphasis added]. Therefore, Mr. Genest had to fill this position on a temporary basis until the complainant's return. The respondent therefore had not originally intended to employ him on a permanent basis; it had asked him to replace the complainant during her maternity leave. When Mr. Genest was hired, there was also no issue about the complainant having failed to complete her training period. [58] Mr. Gaudreau did not deny that he had called the complainant at home in January 2004, even though his testimony was somewhat confused: [translation] I called [the complainant] at home. It was she who called to ask whether her job would still be there on January 12. He contradicted himself from one sentence to the next, first stating that he called the complainant, then immediately adding that it was the complainant who called him. According to the substance of this conversation, set out above, the respondent wanted to renegotiate the complainant's salary, claiming that she had not completed her training. The employment contract did not provide for any training period, or for a salary decrease in the event of prolonged absence. [59] On cross-examination, Mr. Gaudreau added an interesting comment: [translation] Her refusal liberated us. I interpret this remark as an indication that as of that moment the respondent considered the employment ties with the complainant to be severed. This statement is surprising to say the least in light of his earlier testimony to the effect that he had decided to confirm Mr. Genest's employment as head dispatcher, the position that the complainant had held, following his conversation with the complainant in November 2003. When Mr. Gaudreau confirmed Mr. Genest's employment, he was aware of the fact that the complainant was still expecting to return to work for the respondent. It appears now that it was the complainant's refusal to accept a different position at a lower salary in January 2004 rather than the conversations of November and December 2003 that was [translation] liberating. [60] For all of these reasons, I do not assign much credibility to the testimony of the respondent's witness and where this testimony is inconsistent with the complainant's testimony, I prefer the complainant's testimony. (ii) The maternity leave [61] Although pregnancy is not an accident or an illness and is often a condition that is desired, it is undisputable that it is a valid health ground for leave from employment. For the employee, the economic consequences of the inability to perform the tasks involved in the employee's work are the same, regardless of whether this inability is the result of a pregnancy or another health ground resulting in leave from employment. The failure to consider pregnancy in this way is contrary to one of the purposes of anti-discrimination legislation, namely the removal of unfair disadvantages which have been imposed on individuals or groups in society (see section 2 of the Act which refers to the right to be equal with other individuals to make for themselves the lives that they are able and wish to have). Further, we can consider this disadvantage as a disadvantage imposed on women, because they are the only ones capable of giving birth. Indeed, Parliament codified this observation at subsection 3(2) of the Act which provides specifically that [w]here the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex. [62] It also indicates that in finding that women, following childbirth, are not entitled to maternity leave without deleterious effects on their employment, we undermine the objectives of anti-discrimination legislation by sanctioning one of the most significant ways in which women have been disadvantaged. It would sanction imposing a disproportionate amount of the costs of pregnancy upon women. Removal of such unfair impositions upon women and other groups in society is a key purpose of anti-discrimination legislation (see Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219, at paragraphs 28 and 29). [63] The purpose of maternity leave is not to encourage family formation. It is rather to protect the health and well being of pregnant women and new mothers. It goes without saying that pregnancy and giving birth are very stressful on the health of new mothers. Maternity leave is intended to allow them to recover, so that they can reasonably effectively return to the work force (see B.C. Government and Service Employees Union v. British Columbia (2002), 216 D.L.R. (4th) 322, at paragraph 17, as interpreted in Tomasson v. Canada (Attorney General), 2007 F.C.A. 265). [64] In the case before us, the complainant was on parental leave when her employer advised her in October 2003 that she no longer had a place with its company and that she had to seek employment elsewhere. Although it is true that in January 2004, the employer offered a position to the complainant, that position was not the one that she had before going on sick leave as a result of her pregnancy. The employment that was offered to her by the employer was a demotion with a substantially lower salary. [65] From all of the evidence filed before me, I find that the complainant established a prima facie case of discrimination against her by the respondent based on her pregnancy in refusing to let her return to work, in the same position and at the same salary, following her maternity leave and her parental leave. [66] The burden is now on the respondent to provide a reasonable explanation of the impugned conduct. The respondent did not file evidence to satisfy this burden. First, it offered an explanation to the effect that the complainant had accepted employment elsewhere in November 2003. Later, it explained that it was prepared to employ the complainant in January 2004, but in another position and a lesser salary since she had not completed her training and her replacement was more experienced. Yet, as we saw earlier, this explanation was not persuasive and contradicted the evidence filed by the complainant. The incomplete and inconsistent evidence filed by the respondent prompts me to find that it failed to provide a reasonable explanation for the impugned conduct. [67] I therefore find that Ms. Germain's complaint against her employer, Groupe Major Express Inc., is founded. D. RELIEF [68] In terms of the relief sought by the complainant, I must tackle the same problem that I had when I made the decision on the merits based on the respondent's evidence, but this time it is the complainant's evidence that is far from satisfactory and conclusive. What follows is therefore a summary of the evidence filed before me. [69] The complainant is not seeking reinstatement with the respondent's team. She is claiming, however, the salary that she says that she lost as a result of her dismissal. I observe however that there was no concrete evidence filed to support this claim. [70] At best, she filed her employment history from November 2003. So, from November 2003 until March 2004, the complainant worked for Royal Wood Shavings. In March 2004, her physician put her on preventative cessation of employment because of her pregnancy. On August 25, 2004, she birth to her second child. Following her maternity leave, she did not return to work for Royal Wood Shavings. She explained that she had just separated from the father of her second child and since he also worked for Royal Wood Shavings, she was not comfortable returning there. [71] After leaving Royal Wood Shavings, she said that she worked, as of September 2005, for three months, for a transport brokerage named Voyageur 2000. She added that it was full-time employment and that she received a salary of $35,000 per annum. She explained that she left this employment because she had to leave the family household and return to live with her mother as a result of her recent separation. [72] Since she had exhausted her employment insurance during her maternity leave, she said that she received social assistance for the period following her departure from Voyageur 2000. In July 2006, she went to work for Saint-Lambert Transport, a transport brokerage. Finally, on November 20, 2006, she found part-time employment with FEDEX. Although she said that she is still working for FEDEX, she added that she has been on parental leave since March 2, 2008, because she is due on June 16, 2008. Further, she stated that she stopped working in September 2007. [73] I cannot, based on this incomplete evidence, find that the complainant lost salary and I will therefore not make any order to that effect. [74] The complainant is also claiming $20,000 in compensatory damages under paragraph 53(2)(e) of the Act, arguing that the respondent's conduct deprived her of three months of maternity leave. She stated that she had to find a caregiver in a panic in November because she had to find work and that her life was [translation] turned upside down, at the same time causing her some stress. [75] The evidence filed at the hearing in support of this claim appears to me to be meagre to say the least and certainly insufficient to justify the amount claimed by the complainant which is the maximum provided under the Act. This evidence is limited to the complainant's testimony to the effect that she had been affected by the respondent's conduct (see Transport Jeannot Gagnon v. Dumont 2002 FCT 1280). [76] However, I agree that the respondent's conduct caused pain and suffering to the complainant, if only in terms of anxiety. I therefore award compensation in the amount of $3,500 for pain and suffering. [77] The complainant is also claiming an amount for the reimbursement of her legal fees. In support of this claim, she filed a contingency fee agreement that she had signed with her counsel. I cannot on the basis of this evidence allow the complainant's claim. A contingency fee agreement cannot be considered as evidence of the fees that the complainant must pay to counsel. [78] The interest on the $3,500 awarded as relief is payable in accordance with subsection 53(4) of the Act. It must be calculated in accordance with subsection 9(12) of the Canadian Human Rights Tribunal Rules of Procedure (03-05-04) at simple interest on an annual basis awarded at the bank rate set by the Bank of Canada. Interest shall run from the date of the complaint to the date of the payment of the compensation. Signed by Michel Doucet OTTAWA, Ontario July 25, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1179/6106 STYLE OF CAUSE: Magaly Germain v. Groupe Major Express Inc. DATE AND PLACE OF HEARING: March 31, 2008 April 1, 2008 Quebec, Quebec DECISION OF THE TRIBUNAL DATED: July 25, 2008 APPEARANCES: Jérôme Carrier For the Complainant (No one appearing) For the Canadian Human Rights Commission Jacques Jobidon For the Respondent

2008 CHRT 34

CHRT

PSSRB Pay Equity Employees Association v. Treasury Board of Canada and Public Service Staff Relations Board

en

2008-08-01

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6657/index.do

2023-12-01

PSSRB Pay Equity Employees Association v. Treasury Board of Canada and Public Service Staff Relations Board Collection Canadian Human Rights Tribunal Date 2008-08-01 Neutral citation 2008 CHRT 34 File number(s) T1266/7807 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Ruling Decision status Interim Grounds Sex Decision Content Between: PSSRB Pay Equity Employees Association Complainant - and - Canadian Human Rights Commission Commission - and - Treasury Board of Canada - and – Public Service Staff Relations Board Respondents Ruling Member: J. Grant Sinclair Date: August 1, 2008 Citation: 2008 CHRT 34 [1] The complainant, Public Service Staff Relations Board Pay Equity Employees Association, filed a complaint with the Canadian Human Rights Commission on November 27, 2001, under ss. 10 and 11 of the Canadian Human Rights Act. The respondents are Treasury Board of Canada (TB) and the Public Service Staff Relations Board (PSSRB). [2] The complainant now brings a motion to the Tribunal asking that the Tribunal adjourn its proceeding, pending the release of the decision of the Federal Court in the action Public Service Alliance of Canada et al v. Her Majesty the Queen in Right of Canada. [3] The PSAC action was filed in the Federal Court on November 8, 2000. PSAC’s claim is on behalf of employees of seven separate government employers or agencies who were not provided with the same wage rates and benefits given to TB employees as a result of the July 29, 1998 Tribunal pay equity decision and the November 16, 1999 Tribunal Consent Order. PSAC alleges that the failure to do so violates s. 15 of the Canadian Charter of Rights and Freedoms. [4] The complainant Association and the respondents, TB and PSSRB, are not parties in the Federal Court action. The PSSRB is a separate employer under the Public Service Staff Relations Act. [5] It appears from the materials filed, that the main, if not the only issue in the PSAC action is, who is the employer of the employees of the seven separate employers/agencies. [6] The complainant argues in its motion that the determination of this issue in the PSAC action will be persuasive, serve to narrow the issues before the Tribunal and could even potentially avoid the need for a Tribunal hearing. This is so, says the complainant because the interpretation of employer is the threshold issue in the PSAC action and in the complaint before the Tribunal. [7] The complainant provides no explanation as to why this is the threshold issue for the Tribunal and it is unclear why this is so. But, even assuming this to be so, the complainant’s stated position before the Tribunal in pre-hearing case management sessions is that if PSAC action is unsuccessful in the Federal Court, it will still proceed with the complaint before the Tribunal. Similarly, the respondents’ stated position is to proceed before the Tribunal even if PSAC is successful in its Federal Court action. [8] More to the point, the jurisprudence of the Tribunal is very clear with respect to requests to adjourn Tribunal proceedings. The Tribunal decisions in Leger v. Canadian National Railways and Baltruweit v. Canadian Security Intelligence Service state that a Tribunal, when exercising its discretion to adjourn, should do so when demanded by principles of natural justice. Some examples which could be persuasive to an adjournment, are delay in bringing the complaint; the unavailability of witnesses or evidence; the need to obtain counsel; late disclosure, all of which would prejudice a party’s ability to make full representation before the Tribunal. Within this jurisprudence, there is nothing in the complainant’s motion that would support an adjournment. [9] The fact that the Tribunal has not proceeded to hearing in Thwaites et al, Boyes et al, Adamson et al, Bakker et al and Delf v. Air Canada and Air Canada Pilots Association is not helpful to the complainant. These complaints raise the very issues that were decided by the Tribunal in Vilven & Kelly v. Air Canada and Air Canada Pilots Association, which decision is now before the Federal Court on judicial review. The facts in the complainant’s motion are totally dissimilar. [10] The PSAC action is scheduled for October 2008, to run for 40 days. That, plus the time for a decision (assuming no appeals) means that the Tribunal hearing could be delayed for another year. The result would be no Tribunal hearing for at least eight years after the complaint was filed. Certainly, this is not in conformity with the Tribunal’s mandate that proceedings before the Tribunal be done expeditiously. [11] As noted in Leger and Baltruweit, the appropriate forum to stay the Tribunal hearing is the Federal Court. The motion is dismissed. Signed by J. Grant Sinclair Tribunal Member Ottawa, Ontario August 1, 2008 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1266/7807 Style of Cause: PSSRB Pay Equity Employees Associationv. Treasury Board of Canada andPublic Service Staff Relations Board Ruling of the Tribunal Dated: August 1, 2008 Appearances: Richard Harkin, for the Complainant K.E. Ceilidh Snider, for the Canadian Human Rights Commission Marie Crowley, Sharon Johnston and Talitha Nabbali, for the Respondents

2008 CHRT 35

CHRT

Walden v. Social Development Canada

en

2008-08-08

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6658/index.do

2023-12-01

Walden v. Social Development Canada Collection Canadian Human Rights Tribunal Date 2008-08-08 Neutral citation 2008 CHRT 35 File number(s) T1111/9205, T1112/9305, T1113/9405 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content RUTH WALDEN ET AL Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - SOCIAL DEVELOPMENT CANADA, TREASURY BOARD CANADA AND PUBLIC SERVICE HUMAN RESOURCES MANAGEMENT AGENCY CANADA Respondent RULING 2008 CHRT 35 2008/08/08 MEMBER: Karen Jensen [1] Just prior to the commencement of the hearing to deal with issues regarding remedy, the Commission and the Complainants brought a motion requesting the production of documents in the possession of an individual whom the Respondents intended to call as an expert witness. The Respondents countered that the documents were subject to litigation privilege. [2] I deferred resolution of the issue to the hearing, stating that I would provide a ruling if and when that became necessary. During the hearing, Complainant counsel requested that I issue a ruling before the witness who was called as an expert by the Respondents was to testify. They asserted that I did not have to wait until the cross-examination of the witness to do so but rather, could order the production of the documents forthwith. [3] For the reasons provided below I determined that there was no right to the automatic production of the expert's files once the witness had been called to testify, as contended by the Complainants. Rather, I held that the Tribunal should inspect the documents to determine whether litigation privilege had been waived or not, and if so to order the production of the documents. I provided a summary of my reasons orally. The following constitute the written reasons that I told the parties that I would provide. Should there be any inconsistencies between my oral reasons and the present reasons, the present reasons are to prevail. I. Issue One: Does the Tribunal have Jurisdiction to Inspect the Documents? [4] In Blood Tribe (Department of Health) v. Canada (Privacy Commissioner) 2008 SCC 44 334, the Supreme Court held that the Privacy Commissioner did not have the jurisdiction to inspect documents over which a claim of solicitor-client privilege had been asserted. The Court stated that express language is required to abrogate solicitor-client privilege because it is presumptively inviolate (Blood Tribe at para. 26). [5] The issue in the present case is different from that in the Blood Tribe case. Here we are dealing with litigation privilege. As the Supreme Court noted in Blank v. Canada (Minister of Justice), 2006 SCC 39, litigation privilege and solicitor-client privilege are two very different legal constructs; they are driven by different policy considerations and generate different legal consequences. Therefore, I do not think that the reasoning in Blood Tribe applies to the present case. II. Issue Two: Is Litigation Privilege Over the Expert's File Automatically Waived Once the Expert is Called to Testify? [6] Litigation privilege means that documents prepared for the dominant purpose of litigation, including expert reports, do not have to be revealed to adverse parties unless the privilege is waived: Blank, supra. However, normally the party who commissioned an expert report will waive the litigation privilege, and file the report in court. Once the privilege is waived, adverse parties are entitled to see the report as well as other documents in the expert's file. (Lax Kw'alaams Indian Band v. Canada (Attorney General) 2007 BCSC 909) [7] Canadian courts have taken different approaches to determining the scope of litigation privilege waiver. The Respondents assert that by operation of sections 2 and 40 of the Canada Evidence Act, the Tribunal is obliged to apply the law in Ontario. Section 40 of the Canada Evidence Act stipulates that in all proceedings over which Parliament has legislative authority, the laws of evidence in force in the province in which those proceedings are taken apply to those proceedings. [8] I am not sure that it can be said that the proceedings were taken in Ontario. To be sure, Ms. Walden filed her complaint in Ontario, but she is not the only complainant in this matter. There are approximately 400 other Complainants who reside and work in cities across Canada. The events giving rise to the complaints occurred in more than one province. [9] The parties reached an agreement whereby all Complainants, other than Ms. Walden, were considered to have filed a complaint when they contacted a regional representative Complainant who put their name on a Complainant list. Otherwise, the Complainants would likely have filed individual complaints in the Commission's regional offices throughout Canada. [10] It must also be recognized that the proceedings in issue are of an administrative nature and the initiating documents (the complaints) were not filed at a local court house, but rather with a federal agency (the Commission) which has a national mandate. Moreover, the Commission's requests for the institution of an inquiry are made to the Tribunal, which also has a national mandate. [11] In light of the foregoing facts, it is virtually impossible to identify a single province as being the locus of the proceedings. For this reason, while reliance must be placed on jurisprudence from provincial superior courts, the law of evidence of one province cannot be readily excluded in favour of the law of another. Moreover, a review of the case law cited by the parties together with related precedents suggests that a consensus on the state of the law in a given province is not always discernable. For these reasons, I have decided not to limit my review of the law to the Ontario jurisdiction. [12] There are at least two approaches in Canada to the waiver of litigation privilege: one favours greater production, and the other leans toward a more narrow view of the waiver of litigation privilege. [13] The case of Vancouver Community College v. Phillips, Barratt (1987), 20 B.C.L.R. (2d) 289 is an example of the approach favouring greater production. In that case, the British Columbia Supreme Court held that the exception to litigation privilege extends broadly to all documents in the witness's possession which are relevant to the preparation or formulation of the opinions offered, as well as to his or her consistency, reliability, qualification and other matters touching on the witness's credibility (see also: Jesionowski v. Gorecki [1992] F.C.A. no. 816; Browne (Litigation Guardian of) v. Lavery [2002] O.J. No. 564 (S.C.) [14] Not all courts have been willing to construe the waiver of litigation privilege so broadly. For example, in Bell Canada v. Olympia and York Developments Ltd. (1989), 68 O.R. (2d) 103 (H.C.J.) the court dealt with a motion to compel an expert to produce all correspondence between himself and the instructing solicitor. The court refused to order such production stating that to do so would jeopardize solicitor and client privilege. In doing so, the court refused to apply the reasoning in Vancouver Community College, supra (see also: Edmonton (City) v. Lovat Tunnel Equipment Inc. 2000 ABQB 182; R. v. 1278481 Ontario Ltd. 2007 NLTD 151; Highland Fisheries Ltd. V. Lynk Electric Ltd. (1989), 63 D.L.R. (4th) 493 (N.S. S.C.); Martin v. Inglis 2002 SKQB 24) [15] I think that the approach taken by the British Columbia Supreme Court to the common law on litigation privilege and waiver in Lax Kw'alaams Indian Band v. Canada (Attorney General) 2007 BCSC 909 represents a balanced approach to addressing the issue. That case involved a request to have the working files of three expert witnesses for the defense resource biologists produced. The files included draft reports, communications between counsel and the experts as well as other reports. [16] The Court stated: I do not think that the statements by Finch J., as he then was, in Vancouver Community College v. Phillips, Barratt regarding exceptions to the waiver of litigation privilege can be taken as blanket exceptions which will apply in all cases regardless of the circumstances. He was citing examples where exceptions may occur, but the principle he was espousing was that the court must balance the competing policies of disclosure versus privilege and determine what is fair in each particular case (Lax Kw'alaams Indian Band, supra, at para 15). [17] In determining whether litigation privilege has been waived, the decision maker should have regard to the following principle: when an expert witness who is not a party is called to testify, or when his or her report is tendered in evidence, he or she may be required to produce documents in his or her possession which are or may be relevant to matters of substance in his or her evidence or credibility, unless it would be unfair or inconsistent to require such production. [18] The British Columbia Supreme Court resolved the dispute by examining the documents to determine if litigation privilege applied. The Court held that some of the documents were to be disclosed because they went to the substance of the opinion or the credibility of the witness but not all of them. (see also: Piché et als v. Lecours Lumber Co. Ltd. et al (1993), 13 O.R. (3d) 193 in which the Ontario Court (General Division) used a similar approach to resolving claims of litigation privilege, albeit applying a different test.) [19] It should also be noted that a number of courts that have employed an approach similar to that of the court in Lax Kw'alaam Indian Band, supra, have relied upon a passage from Sopinka and Lederman's text on The Law of Evidence in Canada in which the authors comment on the Vancouver Community College by stating: As to the expert's credibility, caution should be exercised before that becomes the basis for wide-ranging disclosure of all solicitor-expert communications and drafts of reports. In any event, it might just lead to a general practice among solicitors of destroying drafts after they are no longer needed just to avoid the problem. (Sopinka and Lederman, The Law of Evidence in Canada (2nd ed.) at p. 763, cited in Martin v. Inglis, supra, at para. 10) [20] I think that these comments are important to bear in mind when assessing whether litigation privilege has been waived over documents in the expert's possession. [21] The Respondents were asked to provide me with copies of the documents over which litigation privilege is asserted. I stated that I would review them to determine whether the privilege has been waived having regard to the principles set out above. Signed by Karen Jensen OTTAWA, Ontario August 8, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1111/9205, T1112/9305 and T1113/9405 STYLE OF CAUSE: Ruth Walden et al. v. Social Development Canada, Treasury Board of Canada and Public Service Human Resources Management Agency RULING OF THE TRIBUNAL DATED: August 8, 2008 APPEARANCES: Laurence Armstrong For the Complainants Ikram Warsame For the Canadian Human Rights Commission Patrick Bendin/Claudine Patry For the Respondents

2008 CHRT 36

CHRT

Brown v. Société de transport de l'Outaouais

en

2008-08-29

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6655/index.do

2023-12-01

Brown v. Société de transport de l'Outaouais Collection Canadian Human Rights Tribunal Date 2008-08-29 Neutral citation 2008 CHRT 36 File number(s) T1278/0808 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE BOB BROWN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - SOCIETE DE TRANSPORT DE L'OUTAOUAIS Respondent RULING 2008 CHRT 36 2008/08/29 MEMBER: Karen A. Jensen [1] The Respondent, Société de transport de l'Outaouais (STO), has asked the Tribunal to add the Ottawa-Carleton Regional Transit Commission (OC Transpo) and the Attorney General of Quebec (the A.G.Q.) as respondents in Bob Brown's complaint against the STO. The Canadian Human Rights Commission, OC Transpo and the A.G.Q. oppose the request. [2] Mr. Brown is a quadriplegic and uses a wheelchair for mobility. He lives in Ottawa's downtown core. During Ottawa's winter festival (Winterlude) in 2005, he was unable to board an STO bus going to an event in Jacques Cartier Park in Gatineau, Quebec because the STO bus was not wheelchair accessible. He complained to the Canadian Human Rights Commission that STO had discriminated against him on the basis of his disability. [3] In 2005, the STO and OC Transpo had an agreement to share the provision of bus services for Winterlude events. The events took place in both Ottawa and Gatineau, Quebec, which is just across the river from Ottawa. OC Transpo states that the buses it made available during Winterlude 2005 were low-floor buses which were accessible to persons with disabilities. The STO states that the buses it used at this time were not wheelchair accessible. The STO provided an adapted transit service which was not available to Mr. Brown because he is not a resident of Quebec. However, OC Transpo's adapted bus service was available to Mr. Brown. [4] The Tribunal has the jurisdiction to add parties. However, the discretion to do so should be exercised cautiously and only when necessary to resolve the complaint (Smith v. CNR 2005 CHRT 23; Desormeaux v. OC Transpo (oral ruling: October 2, 2002 (T701/0602)); Syndicat des employés d'exécution de Québec-téléphone v. Telus Comunications 2003 CHRT 31). The Addition of OC Transpo as a Respondent [5] The STO argues that OC Transpo's participation as a party is necessary for the resolution of the complaint. Given that the bus services were jointly offered by the two organizations, they must both be named as parties, according to the STO. [6] I disagree. It is the STO's service that is the subject of the complaint in this case, not the bus services, in general, that were provided during Winterlude. Mr. Brown has alleged that unlike able-bodied Ontario residents who wanted to attend events in Quebec, he was unable to board an STO bus. He does not take issue with the bus services provided by OC Transpo during Winterlude. Therefore, the fact that bus services during Winterlude 2005 were jointly offered by OC Transpo and the STO does not necessitate the addition of OC Transpo as a respondent. [7] The Respondent also argues that OC Transpo should be added as a party because it is OC Transpo's responsibility to provide bus services to Ontarians with disabilities. This allegation suggests a possible defense to the complaint and the need perhaps, to call a witness from OC Transpo to testify. However, it does not raise a question of liability on the part of OC Transpo since there is no suggestion that OC Transpo denied Mr. Brown transportation services on the basis of his disability. [8] With respect to remedy, Mr. Brown is seeking the accommodation necessary to use STO's bus services to travel to locations in Quebec as able-bodied travelers may do. In the event that the complaint is substantiated, OC Transpo's presence as a party is not necessary to provide such a remedy. [9] For these reasons, the STO's request to add OC Transpo as a respondent is denied. The Addition of the A.G.Q. as a Respondent [10] The STO requests that the Attorney General of Quebec be added as a respondent because Mr. Brown's complaint may bring the constitutionality of the Act Respecting Public Transit Authorities (the Act) and the Policy on admissibility for adapted transportation (the Policy) into question. According to the STO, the Act and the Policy require that adapted transit users be residents of Quebec. Mr. Brown's demand that he should be accommodated regardless of his residency constitutes a challenge to the requirements of the Act and the Policy. Therefore, the STO argues that the A.G.Q. must be added as a respondent to defend the constitutionality of the Act and the Policy. [11] This argument must also be rejected. Neither Mr. Brown nor the Commission has directly or indirectly challenged the constitutionality of the Act or the Policy. The issue in the complaint is whether the failure to provide wheelchair accessible transportation to Mr. Brown was discriminatory or not. The STO may choose to raise the residency requirements in its defense, but the constitutionality of the Act and the Policy have not been put in issue. [12] Moreover, even if a constitutional question had been raised, the parties would be required only to provide notice to the A.G.Q. so that he might present evidence and make submissions if so desired (s. 57 of the Federal Courts Act). In this case, the A.G.Q. does not view a constitutional question as having been raised, and declines to participate in this matter. It is neither necessary nor appropriate to add the A.G.Q. as a party over his objections. [13] Therefore, the STO's request to add the A.G.Q. as a respondent is also denied. Signed by Karen A. Jensen OTTAWA, Ontario August 29, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1278/0808 STYLE OF CAUSE: Bob Brown v. Société de transport de l'Outaouais RULING OF THE TRIBUNAL DATED: August 29, 2008 APPEARANCES: Bob Brown For himself Ikram Warsame For the Canadian Human Rights Commission Raymond Doray For the Respondent

2008 CHRT 37

CHRT

Wiseman v. Attorney General of Canada

en

2008-09-09

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6656/index.do

2023-12-01

Wiseman v. Attorney General of Canada Collection Canadian Human Rights Tribunal Date 2008-09-09 Neutral citation 2008 CHRT 37 File number(s) T1162/4406 Decision-maker(s) Sinclair, Grant, Q.C. 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 2008 CHRT 37 2008/09/9 MEMBER: J. Grant Sinclair [1] Elizabeth Millar, a consultant on behalf of the Canadian Association of Correctional Supervisors/John Wiseman, asks the Tribunal to postpone indefinitely the hearing of Mr. Wiseman's human rights complaint dated September 30, 2003. The reason for this request is that the complainant does not have the financial resources to fund the Tribunal process. [2] Ms. Millar has previously made the same request that the Tribunal hearing be postponed indefinitely. The parties filed written submissions. The Tribunal denied the request on June 25, 2007. The Tribunal did allow the complainant more time to November 16, 2007, to decide whether he wished to proceed. The complainant confirmed at that time that he did. [3] The complainant wants the hearing of his complaint deferred until the resolution of a human rights complaint filed by the CR group in 1984, and a complaint by the PA group in 2006. Neither of these two complaints have been investigated by the Commission. As to the PA complaint, Ms. Millar indicates that a Federal Court hearing is expected in 2009. There is no timetable as to when the CR and PA complaints will be resolved or, if not, if and when the complaints will be referred to the Tribunal. [4] Further, it is not clear as to how the resolution of these complaints will result in a resolution of Mr. Wiseman's complaint. At best is the June 20, 2007 letter of Mr. Hunt, then counsel for Mr. Wiseman, in which he says . . . a settlement made on behalf of the tens of thousands would likely be a harbinger of eventual resolution of the ATL complaint. Similarly, a decision of the Tribunal, whether in favour of PSAC or the respondent would more likely then not, point the way to the eventual disposition of the ATL complaint. [emphasis added] [5] Section 48.9 (1) of the Canadian Human Rights Act provides that proceedings before the Tribunal shall be conducted as informally and as expeditiously as the requirements of natural justice and rules of procedure allow. The Commission has requested the Tribunal to institute an inquiry into the complaint and the Tribunal has an obligation to proceed with an inquiry as expeditiously as possible. [6] Indeed, the danger of delay was commented upon by the Federal Court in Canada Post Corporation v. Public Service Alliance of Canada and Canadian Human Rights Commission, 2008 FC 223. In its decision, commenting on the length of the Tribunal process in that case, the Court said (at paras. 264-265): In my view, the Tribunal breached its duty under section 53 of the CHRA, and breached the duty to provide the parties with a fair hearing. A fair hearing is not a continuing process. A fair hearing is one where a party knows the case against it and has an opportunity of addressing that case within a reasonable time. At that point, the Tribunal has a duty to adjudicate upon the case. A legal hearing without discipline and timelines both delays and denies justice. Justice delayed is justice denied. . . . [7] There are two parties to this case, the complainant and the respondent. The respondent also has a right to know the case against it and the right to meet that case within a reasonable time. [8] Although the Tribunal appreciates the dilemma of the complainant, it is not reasonable or fair to ask that the Tribunal adjourn its proceedings for an indefinite period and depending on circumstances which may not occur for many years, if they occur at all. [9] Accordingly, Ms. Millar's request on behalf of John Wiseman to adjourn this hearing indefinitely is denied. Signed by J. Grant Sinclair OTTAWA, Ontario September 9, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1162/4406 STYLE OF CAUSE: John Wiseman v. Attorney General of Canada RULING OF THE TRIBUNAL DATED: September 9, 2008 APPEARANCES: John Wiseman For himself No one appearing For the Canadian Human Rights Commission Robert MacKinnon For the Respondent

2008 CHRT 38

CHRT

Dennis v. Eskasoni Band Council

en

2008-09-12

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6653/index.do

2023-12-01

Dennis v. Eskasoni Band Council Collection Canadian Human Rights Tribunal Date 2008-09-12 Neutral citation 2008 CHRT 38 File number(s) T1134/1606 Decision-maker(s) Hadjis, Athanasios Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE PERRY DENNIS Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ESKASONI BAND COUNCIL Respondent DECISION 2008 CHRT 38 2008/09/12 MEMBER: Athanasios D. Hadjis I. THE PARTIES' PARTICIPATION AT THE HEARING INTO THE COMPLAINT II. THE FACTS GIVING RISE TO THIS COMPLAINT A. Mr. Dennis' car accident B. The Eskasoni Fishery C. The Fit to Work Policy D. The 2004 Testing E. The 2005-2006 Testing III. THE LEGAL PRINCIPLES APPLICABLE TO THIS CASE IV. THE SECTION 7 COMPLAINT A. Has a prima facie case been established under s. 7? (i) Was Mr. Dennis disabled (i.e. drug dependent) within the meaning of the Act? (ii) Did the Band perceive Mr. Dennis as being drug dependent? V. THE SECTION 10 COMPLAINT A. Has a prima facie case been established under s. 10? B. Has the Band discharged its burden of providing a reasonable explanation? (i) Did the Band adopt its policy for a purpose or goal rationally connected to the job or function being performed? (ii) Did the Band adopt its standard in good faith? (iii) Is the standard reasonably necessary to the accomplishment of the purpose or goal? a) Safety as a consideration - a safe workplace b) Impairment is a safety hazard c) Is the drug and alcohol screening process an effective means to detect the presence of a hazard in the workplace? d) Cost as a factor - The impact on the Band's commercial fishery e) Is the Band's hardship undue? f) Does the policy place an undue burden on employees? VI. SECTION 67 OF THE CANADIAN HUMAN RIGHTS ACT [1] The Complainant, Perry Dennis, alleges that the Respondent, the Eskasoni Band Council, did not hire him to work as a deckhand on a fishing boat because he failed to pass a pre-employment drug screening test. He claims that the Respondent's decision discriminated against him on the basis of his disability (drug dependency), under s. 7 of the Canadian Human Rights Act, and that the Respondent's drug screening policy is itself discriminatory, within the meaning of s. 10 of the Act. I. THE PARTIES' PARTICIPATION AT THE HEARING INTO THE COMPLAINT [2] The Commission had initially referred five other complaints, along with Mr. Dennis', to the Tribunal. Shortly before the hearing began, four of those complainants settled their complaints with the Respondent. The Commission then advised the Tribunal that it would no longer participate at the hearing. Two days into the hearing, the other remaining co-complainant also settled his case. [3] Mr. Dennis was not represented by legal counsel at the hearing into his complaint. On the sixth day of the hearing, after Mr. Dennis had closed his case, he suddenly and without any notice to the Tribunal or the registry officer, collected his things and left the hearing room during a break in the proceedings, at around 11:45 AM, accompanied by his common law spouse, Mary Lou Gould. He never returned. I adjourned the proceedings for about two hours while the registry officer attempted to telephone Mr. Dennis at home. There was no response. I asked all persons present, including the Mi'kmaq interpreter assigned to this case, whether Mr. Dennis had mentioned why he had left and for how long. No one was able to provide any further details. Mr. Dennis was only observed picking up his papers and leaving without saying anything. The Respondent, at that time, was part way through its examination in chief of an expert witness. Given the circumstances, and particularly Mr. Dennis' sudden departure without any notice, excuse, or explanation, I decided to proceed in his absence. The Tribunal's digital voice recording system continued to record the proceedings and a copy of the audio recording was subsequently provided to both parties. [4] Later that afternoon, the registry officer sent an e-mail message to Mr. Dennis informing him that the hearing would continue as scheduled the following day. He was invited to contact the registry officer by e-mail or telephone. Mr. Dennis replied by e-mail to the registry officer that evening. He explained how he felt alone and overwhelmed by the proceedings, placing some blame on the Commission for failing to participate at the hearing and abandoning him to the wolves. The following morning, Mr. Dennis sent an e-mail to the registry officer asking whether Ms. Gould could appear on his behalf. She had been in attendance at the hearing since its outset and had already testified. I granted Mr. Dennis' request and she presented herself that afternoon. She is not a lawyer. She cross-examined the remaining witnesses who were called to testify by the Respondent and she made final submissions on Mr. Dennis' behalf. [5] The Respondent, for its part, was represented by legal counsel throughout the course of the hearing. II. THE FACTS GIVING RISE TO THIS COMPLAINT A. Mr. Dennis' car accident [6] Mr. Dennis is a registered member of the Mi'kmaq First Nation community of Eskasoni situated about 40 km south of Sydney, Nova Scotia. The Respondent is the community's band council (the Band). [7] Mr. Dennis grew up in Eskasoni and has spent most of his life there. He is 38 years old. In 1989, he was involved in a serious car accident. His injuries included fractures to his neck. He testified that the fractures have left him with several painful chronic health problems. From time to time, his neck will swell up, which restricts head rotation and causes him neck and shoulder pain as well as sharp headaches. His physicians initially prescribed him some strong medication to deal with the pain but it had the effect of making his face look droopy and sad, even though he felt fine. When he took weaker dosages, be claims to have become addicted to the pills, although he did not provide any further elaboration or explanation in his evidence. [8] Around 1990, Mr. Dennis discovered that using marijuana would relax him and ease his pain in his shoulders and neck, without the above-mentioned side effects that his physician-prescribed medication had caused him. He did not use marijuana on a daily basis, but only on the occasions when his pain would flare up. On some pain-ridden days, however, he would not take any marijuana and simply lived with his condition and the pain. [9] At one point in 2004, Mr. Dennis recalls asking a physician at Eskasoni's health clinic to prescribe marijuana medicinally for him. Mr. Dennis claims that although the physician did not disapprove of his marijuana usage, he told Mr. Dennis that he was not authorized to give such prescriptions. Mr. Dennis did not apparently try to find another physician who possessed such authorization. Instead, Mr. Dennis continued to acquire his marijuana through other unspecified means. The physician was not called as a witness in this case. B. The Eskasoni Fishery [10] Prior to 2000, the Band's fishery operation was quite modest. It was run by a department of the Band known as the Eskasoni Fish & Wildlife Commission (EFWC). Most of its activity was in fisheries research and conservation. There were only about five full-time employees and between 15 and 40 casual workers throughout the year. [11] In two 1999 decisions (R. v. Marshall, [1999] 3 S.C.R. 456 and R. v. Marshall, [1999] 3 S.C.R. 533), the Supreme Court affirmed the treaty rights of Mi'kmaq persons to hunt and fish, and to trade in the product of these activities, in order to earn a moderate livelihood for themselves and their families. Following these decisions, the federal Department of Fisheries and Oceans (DFO) entered into agreements with First Nations to provide them with the tools that would enable them to develop their commercial fisheries. The Band signed such an agreement in 2000 (the Marshall Agreement), pursuant to which the DFO provided funding for the purchase of fishing licences, vessels and other equipment, the construction of buildings, and the training of fisheries workers. [12] When the Marshall Agreement was implemented in 2000, there were very few Band members who had the skills required to fish commercially. Consequently, the Band put in place programs to train individuals as certified deckhands, first mates, and captains. Mr. Dennis had done some work from time to time as a deckhand for non-native fishers between 1992 and 2000, but he had never gained his certification. Mr. Dennis therefore registered for the Band-offered training and he successfully obtained his deckhand certificate in 2000. [13] A deckhand's duties include cleaning, maintaining, mending and emptying nets. Deckhands also place catches such as shrimp into special bags, empty and bait traps, and clean the deck and bilge. A deckhand takes directions from the captain who, aside from guiding the boat, also operates the hauler or winch that is used to lift traps and nets into the boat. [14] The fishing season for most of the species fished by the Band runs typically from March to November. In order to distribute jobs equally amongst the qualified deckhands in Eskasoni, the EFWC compiled a list annually on which band members would place their names and phone numbers. As a boat would get prepared to go out to sea, the EFWC would call up deckhands off the list on a rotational basis. The fishers were compensated based on the size of the catch and the price at which it was sold. This form of employment was considered seasonal work that entitled a fisher to obtain employment insurance benefits in the off-season, provided his or her earnings exceeded a basic threshold (about $11,000). Mr. Dennis placed his name on the list and was called to work in 2001, 2002, and 2003. His 2003 earnings were just under $30,000. Thus, Mr. Dennis and the other EFWC deckhands were neither full-time nor indeterminate employees of EFWC. Their employment was casual. In 2005, the EFWC handed off management of the commercial fishery to a corporation called Crane Cove Seafoods, which was wholly owned by the Band. For all intents and purposes, the Band remained in charge of its commercial fishery. [15] According to the testimonies of the current Chief and several band councillors, reports began surfacing during the commercial fishery's first two years of operation in 2001-02, about fishers going out to sea while under the influence of drugs or alcohol. Therefore, on December 10, 2002, a motion was passed by the Band Council that commercial fishers submit to mandatory drug testing. In the ensuing months, the Band appointed Jim Maloney to take charge of the development of a drug testing policy. Mr. Maloney was a member of another First Nation community in Nova Scotia. In the past, the Band had assigned him the task of developing other programs. By the summer of 2003, the proposed policy, entitled the Eskasoni Fit to Work (Drug and Alcohol) Program Policy, had been prepared. [16] Mr. Maloney testified that he conducted a number of information sessions for Eskasoni's commercial fishers in order to introduce them to the new policy. Posters were put up advertising the events and a one-page letter summarizing the policy was sent to the address of anyone involved in the EFWC fishery. The same letter was distributed to anyone who attended the information session. The letter was entitled Open Letter to the Community of Eskasoni - Fit to Work (Drug and Alcohol) Program. It stated that the people of Eskasoni had identified drug and alcohol abuse as a serious problem that was affecting everyone's life within the community and that the Band's Chief and Council were committed to resolving the problem. The letter went on to state that the policy was required in the Eskasoni commercial fishing operations, since commercial fishing is recognized as one of the most dangerous professions, making safety in the workplace essential in protecting the lives of those involved. [17] The letter also noted that the policy provides a series of progressive steps, linked to treatment, for those who test positive, so that they may ultimately return to work. C. The Fit to Work Policy [18] On September 16, 2003, the proposed policy was formally adopted by the Band Council. Its implementation was to begin during the 2004 fishing season. The policy states that its general purpose is to ensure that EFWC employees comply with and set an example in the community, by being drug and alcohol free in a safe, alcohol and drug-free workplace. The policy also extends to contractors and contract workers. Some of the specific objectives mentioned include: preventing employees from being in a position where impaired performance becomes a risk to them and the safe operation of EFWC facilities and equipment, preventing accidents and injuries resulting from the use of drugs and alcohol, and encouraging and supporting those with drug, alcohol and substance addictions in achieving and maintaining a drug and alcohol free quality of life. [19] The policy puts an onus on EFWC management and staff to read, understand and acknowledge the policy. Employees must meet a fitness to work standard, which is defined as being fit and capable of performing their work. This includes being free from the influence of alcohol, illegal drugs, medications or substances that will affect performance. Employees are expected to seek advice and follow appropriate treatment if they suspect they have or are developing a substance dependency. [20] The policy provides that all EFWC employees are subject to drug and alcohol testing as a requirement of employment. Any job offer is conditional on passing the required test. Furthermore, random testing is to take place at the discretion of the employer throughout the year, without any advance notice. Testing may also take place after the occurrence of a significant incident that causes or has the potential to cause death, injury, or loss/destruction of equipment. In addition, if managers have reasonable cause to believe that an employee's actions, appearance or conduct while on duty are indicative of drug or alcohol use, they may require that the employee be tested, but the decision must be made with the concurrence of a second person wherever possible. [21] The substances for which testing is conducted are the following: under the category of drugs - cannabinoids (marijuana, hashish, hash oil), stimulants (cocaine, opiates, amphetamines) and veterinarian anaesthetics (phencyclidine (PCP)); and, under the category of alcohol - beverage alcohol, ethyl alcohol or other low molecular weight alcohols, including methyl or isopropyl alcohol. The policy details how the screening test is carried out to see if any drugs and alcohol are present in amounts exceeding certain concentration levels (which are listed in a table). A positive result (i.e., in excess of these cut-off levels) is submitted to a more advanced test for further confirmation. Positive confirmation tests are then reported to a medical review officer for further evaluation and to ensure that an individual is not assigned a false positive laboratory result. [22] Where the medical review officer's evaluation confirms the initial result and rules out the possibility of a false positive, a series of assessment and treatment options are made available under the policy. If it is the first time that the individual has tested positive, it will be recommended that the person seek drug and alcohol assessment and/or treatment, but this is strictly voluntary. The phone numbers for the Native Alcohol and Drug Abuse Counselling Association (NADACA) and the Mi'kmaq lodge, where addiction counselling is available, are listed in the policy. An individual who wants to try to be hired again or to return to work must complete a return to work drug screening test that produces a negative result before being considered for the job. [23] If the individual tests positive a second time, then he or she will be required to see an addiction counsellor at NADACA for assessment but follow-up treatment will be voluntary, not mandatory. The individual remains ineligible to work. After a third failure, assessment and treatment become mandatory. The individual must complete the treatment before being re-hired, and the re-hiring is subject to the findings and recommendations provided by the addiction counsellor or treatment facility. [24] After a fourth failure, the person will be dismissed and not eligible for re-hire until proof of sobriety for a period of one year. Thomas Johnston, the EFWC's executive director, testified that the EFWC interpreted this period not to mean exactly twelve months but rather just until the next fishing season. Thus, even if some fishers did not pass the fourth test in October, they could nonetheless enter the testing process all over again the following spring, along with all the other fishers. [25] The policy stipulates that the EFWC will cover the cost of an initial substance abuse assessment of an individual who tests positive, but the cost of any other assessments or treatments is not covered by the EFWC. All testing results are confidential and are not to be disclosed except to the appropriate EFWC manager. Communication and correspondence of positive test results utilize a code rather than the individual's name and EFWC management is to maintain the list that matches the names with the codes in a secure location. [26] An individual who commits a policy violation during an on-call period or while working on EFWC premises, vessels or equipment is, at EFWC's discretion, subject to immediate dismissal, suspension from work without pay, removal from EFWC vessels or premises, police notification where there is the presence of illegal drugs, or placement on return to work status. In this latter instance, the individual will be considered for a return to work after being re-tested, as discussed above. D. The 2004 Testing [27] Mr. Maloney testified that for the 2004 fishing season, the Band hired on outside firm, East Coast Mobile Medical Inc. (East Coast), to conduct the drug testing on site in Eskasoni over the course of one day. He added that he sent notices to all fishers advising them that they had to register under the Fit to Work Program by March 8, 2004, on a list set up at the EFWC's offices. These notices were also broadcast on the local community television station. [28] Mr. Dennis claimed in his testimony that he never got this notice and that he only learned of the drug testing process mere days before it was conducted on May 14, 2004. The evidence calls into question this claim. He testified that he was out to sea in January and February, when the notices were distributed, although the evidence was that crews would usually leave port for no more than three days at a time. In addition, Mr. Dennis' denial of knowledge was contradicted by the drug testing registration sheet that was filed in evidence. His name appears on the list along with his telephone number, his Band number, and an annotation stating after 5 pm. Mr. Maloney testified that he recalled Mr. Dennis phoning him to register and indicating that he would prefer doing the testing after 5 pm. Mr. Maloney added that he did not object to this request since the EFWC was trying to be as flexible as possible in order to ensure that each fisher would be tested. [29] Furthermore, there is evidence that in March 2004, after the EFWC began registering persons for the testing, several fishers joined forces to form a union to oppose the imposition of the Fit to Work policy. Mr. Dennis helped organize the union and his name appears as a supporter in an open letter that was prepared prior to March 15, 2004. The letter invites all Eskasoni residents to attend a union meeting dealing with the Fit to Work policy. The meeting was held on March 22, 2004, and the minutes show that Mr. Dennis attended. It does not seem credible, therefore, for Mr. Dennis to claim that he did not know until mere days before, that the testing was forthcoming. [30] Mr. Dennis disapproved of the policy. He felt that it was an attack by the Chief and the Band Council against certain Band members, to prevent them from earning a good income. After being tested on May 14, 2004 (urinalysis and breathalyser), he contacted Mr. Johnston, who at the time was director of operations at EFWC, and learned that he had failed the urinalysis by testing positive for the presence of cannabis. Mr. Dennis testified in chief that he was not told he could be re-tested that season. He claims that Mr. Johnston told him that he would be denied work that summer and that he could only re-test the following year at his own cost. [31] Mr. Dennis' evidence on these points is contradicted by the evidence of Mr. Maloney and East Coast's business records. Mr. Maloney recalls having spoken to Mr. Dennis on the phone after he had failed the pre-employment drug testing. He remembers Mr. Dennis stating that he was eager to be re-tested and, hopefully be allowed to return to work that summer. [32] So Mr. Maloney undertook to book a new appointment for testing, which would have to take place at East Coast's facility in North Sydney, Nova Scotia. Mr. Maloney testified that he advised Mr. Dennis by telephone that an appointment was set for June 18, 2004. Mr. Dennis never showed up for this appointment. Mr. Maloney therefore booked a second appointment for Mr. Dennis, for August 6, 2004. Mr. Maloney recalls telling Mr. Dennis that it was important he attend because East Coast had billed the Band for the first appointment even though Mr. Dennis had not shown up. The East Coast records show that Mr. Dennis had been booked for both of these appointments, but that he had not shown up on either date. [33] I find this evidence persuasive and I am not convinced by Mr. Dennis' claim that he was told to come back next year to be re-tested. I note that such a response does not accord with the policy, which states that a person is entitled to be re-tested as many as four times. If the individual fails the fourth test, he or she may still take the test again one year later. This is the only time limitation mentioned. There are no time conditions attached with respect to the first re-testing. Presumably, whenever an individual feels ready to retake the test, he may do so. The entire testing and re-testing process set out in the policy is intended to be completed by the end of the annual fishing season, in keeping with the re-hiring process that takes place at the start of each fishing season. Thus, every fisher must pass a test every year, even if he or she tested negative the previous season. Furthermore, the policy provides that even in the worst case, where an individual fails the test four times, he or she remains ineligible for re-hire only until the following year. [34] Mr. Dennis emphasized in his testimony that East Coast only came to Eskasoni once a year to test all the fishers. This may have been the source of his misunderstanding regarding when he could take a re-test. There was some suggestion in the evidence that he may have been unwilling to go elsewhere to take the test. It was not unreasonable, however, for the Band to have required an individual who is seeking employment but failed the initial on-site test, to attend East Coast's offices in North Sydney (about an hour's drive from Eskasoni) to be re-tested, rather than paying for East Coast to bring its equipment down to Eskasoni again just to test one individual. [35] Although Mr. Dennis did not go to East Coast's facility in North Sydney to be tested, he did visit the Eskasoni Community Health Centre on June 23, 2004, where he was examined by an attending physician. The physician handwrote Mr. Dennis a five line note addressed to whom it may concern in which he stated that, based on his examination, Mr. Dennis appears to be fit to work. No further comment is provided and in particular, there is no mention made of any testing by the physician for drugs or alcohol. [36] Since Mr. Dennis did not end up taking another drug screening test in 2004, he was not cleared to work as a fisher for the EFWC that year. [37] After learning that he had failed the drug screening test, Mr. Dennis filed a Letter of Grievance with the Band, complaining of unfair testing by the EFWC. He alluded in the letter to a protest that the fishers involved in the union had conducted outside the EFWC offices for several days in May 2004. Allegedly, the Chief had met with them and agreed to allow fishers to work even if they tested positive. However, several days after the alleged agreement, the Band Council met and reaffirmed that the policy would be enforced. Mr. Dennis refers in his grievance to the Canadian Human Rights Commission policy on alcohol and drug testing which he had apparently consulted. He asserted that the Commission's policy clearly states that his rights were being infringed. [38] Interestingly, Mr. Dennis makes no mention in his letter of any requirement for him to use marijuana as a pain medication for his neck and shoulder. He refers to having experienced headaches, fatigue, depression, insomnia, and loss of appetite, but he attributes these problems to the many stressors brought upon him by the application of the policy that resulted in his inability to work. Mr. Dennis attached the above-mentioned physician's note to his grievance letter. [39] On July 7, 2004, Mr. Dennis filed the present human rights complaint, in which he stated that he was denied employment because of the fact that I have a physical disability and I take the drug marijuana. In his Statement of Particulars, however, which he later filed jointly with the Commission, he made no mention of a physical disability, but instead alleged that the Band discriminated against him on the basis of disability or perceived disability, which he specified as being drug dependency. He did not allege discrimination based on any disability relating to his back and neck injury. He led his case in keeping with the allegations set out in the Statement of Particulars. The Band, in turn, took the position that the disability in issue is drug dependency and presented its case accordingly. Although the actual complaint is somewhat ambiguous in its description of the alleged discrimination, it would in my view be unfair to the Band to treat this matter as anything other than a claim of discrimination based on drug dependency, given the way that the case has unfolded. E. The 2005-2006 Testing [40] Drug screening was conducted for all fishers again, in 2005, and Mr. Dennis was tested on April 22, 2005. He tested positive for cannabinoids. In cross-examination, Mr. Dennis was asked if he sought re-testing in 2005. He could not recall but said that he must have been doing something. There is no evidence in the record to indicate that he sought re-testing in 2005. [41] As the 2006 fishing season was approaching, Mr. Dennis decided to take measures to ensure he could pass the drug screening. He stopped using marijuana altogether. However, the anguish he was feeling of not being able to earn a good living and look after the well-being of his family had led to his becoming very depressed. One evening, he began drinking alcohol even though he had been sober for seven years. His drinking became excessive, to the point that the RCMP had to intervene and take him to the detachment where he spent the night. [42] Fortunately for Mr. Dennis, a community Elder learned of his troubles and stepped in to help Mr. Dennis by taking him to a sweat lodge. Traditional healing methods were administered to him for his pain, including the application of bear grease. Mr. Dennis testified that he became better able to cope with his pain as a result of these healing methods. [43] On March 24, 2006, Mr. Dennis was tested again for the presence of drugs. This time the tests came back negative. His name was thus added to the list of available fishers and he worked that season. [44] In 2007, Mr. Dennis did not register to take the EFWC's drug testing. Mr. Dennis apparently formed the mistaken opinion that he did not need to formally register for testing in 2007 because he had passed the previous year. He thought he was entitled to merely show up on the day of the testing and provide his sample. This understanding was inaccurate. Mr. Dennis (and all fishers) had to formally register each year for testing. Since Mr. Dennis had not registered he was not entitled to submit himself for testing in 2007. [45] Regarding the 2008 season, the hearing was completed as the fishing season was about to start. The EFWC's fishing manager testified that Mr. Dennis had not shown up for his scheduled drug testing appointment on March 28, 2008. The evidence before me with respect to this event and the 2008 season overall is, however, insufficient for me to make any findings. III. THE LEGAL PRINCIPLES APPLICABLE TO THIS CASE [46] Mr. Dennis' complaint is brought pursuant to sections 7 and 10 of the Canadian Human Rights Act. Section 7 makes it a discriminatory practice to refuse to employ, or to continue to employ, an individual, on a prohibited ground of discrimination. Section 10 makes it a discriminatory practice for an employer 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. [47] Section 3 of the Act designates disability as a prohibited ground of discrimination. Section 25 of the Act specifies that the term disability includes previous or existing dependence on alcohol or a drug. [48] The initial onus is on a complainant to establish a prima facie case of discrimination (Ont. Human Rights Comm. v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at para. 28 (O'Malley)). 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. [49] 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). IV. THE SECTION 7 COMPLAINT A. Has a prima facie case been established under s. 7? (i) Was Mr. Dennis disabled (i.e. drug dependent) within the meaning of the Act? [50] I find that Mr. Dennis did not demonstrate that he was disabled within the meaning of the Act. The evidence unquestionably establishes that he was a user of marijuana but it was not sufficient to establish prima facie that he was drug dependent. [51] Mr. Dennis testified that he suffers from chronic pain as a result of the traffic accident in which he was involved in 1988. Several documents dating from 1988-89 were filed detailing some of the treatments that he received following the accident. His common-law spouse attested in her evidence to the outward signs of pain that Mr. Dennis presents to this day. There is no basis, in my view, to question Mr. Dennis' claims about the physical pain that he experiences. [52] More importantly, however, no evidence was put before me that he was dependent on marijuana when he failed the drug test in 2004 and filed this complaint. To establish a prima facie case, the evidence led must be sufficient to cover the allegations made. Mr. Dennis' allegation is that he is dependent on the drug and is therefore disabled. But I find that his evidence only demonstrates that he used the drug, not that he was dependent on it. The New Shorter Oxford English Dictionary's definition for the word dependent, in the context relevant to s. 25 of the Act, is the following: Resting entirely on someone or something for maintenance, support, or other requirement; obliged to use something; unable to do without someone or something, especially a drug; maintained at another's cost. (emphasis added) The French rendering of s. 25 utilizes the term la dépendance ... envers l'alcool ou la drogue. Le Petit Robert de la langue française, 2006 defines dépendance, in this context, as: État résultant de la consommation répétée d'une substance toxique, qui se caractérise par le besoin de continuer la prise et d'augmenter les doses. Translated to English : State resulting from the repeated use of a toxic substance, characterized by the need to continue its use and increase the amount taken. [53] Both these definitions, in my view, capture the meaning of the term as it is used in s. 25. Applying these definitions to the present case, I find that there is insufficient evidence to establish prima facie that Mr. Dennis was dependent on marijuana (i.e., unable to do without it, or alternately, in a state where he needed to continue its use and increase the amount taken). [54] He did not call any physician (including the Eskasoni Community Health Centre physician whom he visited on June 23, 2004) to testify that he was dependent on marijuana, nor did he file any expert report to the same effect. No other witness was called to confirm the extent of his marijuana usage, even though Mr. Dennis initially stated in his testimony in chief that everyone in the community knew of his condition and of his habit. In cross-examination, however, he testified that the majority of the people in the community did not know he smoked marijuana. Mr. Dennis claimed that even his children had not known that he was using marijuana. He complained about the fact that in not hiring him, the Band had effectively made it known publicly that he had failed the drug and alcohol pre-screening test, which he viewed as a violation of his right to privacy. On balance, it appears to me that his marijuana use was, in fact, not very evident. [55] Mr. Dennis testified that he was using marijuana as a pain medicine, which he would take in varying amounts that he would try to stretch out as much as possible. The fact that the policy was forcing him to change his way of life and begin using other means to cope with his neck and shoulder pain bothered him. He preferred to use marijuana over other pain medications that his physicians had prescribed to him in the past. He stated in his evidence that he wondered why the Band was requesting him to give up his marijuana use. I note again, however, that he made no mention of any drug dependence in the grievance letter that he sent to the Band prior to filing the present complaint. [56] Mr. Dennis confirmed that by applying traditional healing methods, he was able to accept and cope with the pain relating to the injuries he had suffered in the 1988 car accident. He therefore ceased using marijuana to deal with the pain and thus passed the EFWC's pre-employment drug screening in 2006. He testified that he did not experience any withdrawal symptoms after stopping his marijuana use. There was no indication in his testimony or elsewhere in the evidence that the traditional healing methods he received at the sweat lodge were in any way used to address a drug or alcohol dependency. This was not a drug or alcohol rehabilitation treatment that he received. [57] In determining whether Mr. Dennis was disabled due to a drug dependency, I am mindful that the notion of disability is not to be interpreted narrowly. Disability may exist even without proof of physical limitations or the presence of an ailment (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. City of Montreal, [2000] 1 S.C.R. 665 at para. 76). Nevertheless, in the circumstances of this case, the evidence regarding Mr. Dennis' drug usage does not support his claim that he was dependent on a drug. (The matter of whether the Band perceived him as disabled is addressed in the next section of this decision). [58] His assertion that he used marijuana regularly has not been contradicted, and the results of the pre-employment drug testing of 2004 and 2005 would not be at odds with such a finding. However, regular use of marijuana does not necessarily constitute frequent use. As I elaborate later in this decision, expert evidence was led to show that even a single use of marijuana will be detected by a drug test even ten days later. More frequent use can be detected even one to two months later. [59] I am not persuaded that the mere presence of the drug in his system, nor for that matter the other evidence regarding his marijuana usage, establishes prima facie that he was dependent on the drug within the meaning of the Act (i.e. that he could not do without it or that he had a continuing need to use it, in increasing amounts). (ii) Did the Band perceive Mr. Dennis as being drug dependent? [60] As the jurisprudence in similar cases instructs us, however, the fact that a tribunal is not persuaded that a complainant is drug dependent and therefore suffers from a disability, is not fatal to that person's human rights complaint (see Milazzo v. Autocar Connaisseur Inc., 2003 CHRT 37 at paras. 82-88, Alberta (H.R.C.C.) v. Kellogg Brown and Root (Canada) Company, 2007 ABCA 426 at paras. 29-30, leave to appeal to SCC denied May 29, 2008 (docket no. 32505)). The prohibition against discriminating on the basis of a disability has been extended to cases where an employer refuses to employ an individual based upon a perception that the individual is dependent on alcohol or drugs. [61] There is no evidence before me to suggest that the Band actually perceived Mr. Dennis to be drug dependent. Mr. Dennis certainly did not call any witnesses or produce any document affirming the existence of such an opinion. Nothing before me indicates that any questions were asked or any investigation was carried out by the Band in order to determine whether Mr. Dennis was drug dependent (see Milazzo at para. 90). In fact, Mr. Maloney testified that the Band never assumed that an individual who tested positive on the first test (like Mr. Dennis) was addicted, as demonstrated by the fact that drug or alcohol dependency assessments or treatments were not required of Mr. Dennis and others like him before they could take the test for a second time. [62] None of the Band's employees who gave evidence at the hearings testified knowing that Mr. Dennis was using marijuana. Mr. Dennis asserted in his own testimony that he never went to work in previous years while under the influence of marijuana. Thus, presumably, no outward signals were available to the EFWC and the Band of his marijuana usage, let alone any indication that would result in their perceiving him as being drug dependent. [63] As the Milazzo Tribunal held, at para. 92, in order to benefit from the protections afforded by the Act, a complainant must demonstrate the involvement of one or more of the prescribed grounds listed in s. 3 of the Act. Having failed to establish even on a prima facie basis that he was either disabled due to drug dependency or was perceived by the Band to be so disabled, Mr. Dennis has not established a prima facie case of discrimination, and accordingly, his s. 7 complaint is dismissed. V. THE SECTION 10 COMPLAINT [64] In contrast to complaints under s. 7, which relate to employer actions affecting specific, named individuals, s. 10 addresses the discriminatory effect that employer policies or practices may have or may tend to have on an individual or class of individuals (Milazzo, at para. 94). The focus is therefore not confined to Mr. Dennis' own situation. A. Has a prima facie case been established under s. 10? [65] Extensive evidence was led about the widespread problem of drug and alcohol use at Eskasoni. I note that one of the Band's declared objectives for adopting the policy was to encourage and support those with substance addictions in achieving and maintaining a drug and alcohol free quality of life. The number of Eskasoni residents who sign up to be fishers has increased significantly over the years. As the proportion of the Eskasoni population that joins the ranks of the commercial fishers increases, it becomes more likely that persons struggling with substance abuse, and thus dependent on drugs or alcohol (i.e. disabled within the meaning of s. 25) will seek out this work, only to fail the drug and alcohol screening test. Those who fail will be - at least temporarily - deprived of the opportunity to work as fishers. Just as in Milazzo, in my view, the policy in the present case will therefore inevitably affect individuals who suffer from substance related disabilities. [66] A drug testing policy that has the effect of depriving these individuals, who fall within the protected class of disabled persons, of employment opportunities, is thus prima facie discriminatory under s. 10 of the Act. I note in passing that the Band's counsel acknowledged in his final submissions that a great deal of jurisprudence suggests that drug testing cases of this sort are prima facie discriminatory (see Milazzo at para. 97). B. Has the Band discharged its burden of providing a reasonable explanation? [67] 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 Band has sought to demonstrate that there was a bona fide occupational requirement (BFOR) for the adoption of the drug testing policy (s. 15(1)(a) of the Act). To do so, the Band must establish that accommodating these individuals, who are either drug dependent or perceived as such, would impose undue hardship on the Band, considering health, safety and cost (s. 15(2) of the Act). [68] 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). 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 cannot accommodate the complainant or persons with the complainant's characteristics without experiencing undue hardship. (i) Did the Band adopt its policy for a purpose or goal rationally connected to the job or function being performed? [69] The focus of this first step in the analysis is not on the validity of the standard or policy but rather on the validity of its more general purpose (Meiorin, at para. 59). I am satisfied, on the evidence, that the purpose of the Band's adoption of the Fit to Work policy was to prevent employees from being injured as well as from causing damage to the Band's property, due to drug or alcohol related impairment. These objectives are in my view rationally connected to the performance of fishers' jobs (deckhands, first mates, captains) in a safe environment, as well as helping to assure the long term viability of their jobs. (ii) Did the Band adopt its standard in good faith? [70] At this step in the analysis, a respondent must establish that it adopted the standard or policy with an honest and good faith belief that it was necessary to the accomplishment of its purpose, with no intention of discriminating against the claimant (Meiorin, at para. 60). If the imposition of the standard was not thought to be reasonably necessary or was motivated by discriminatory animus, then it cannot be a BFOR. [71] As I indicated earlier, soon after Eskasoni's commercial fishery began operating in 2001, reports began surfacing of fishers being out at sea while under the influence of drugs or alcohol. The current Chief of the Eskasoni Band is Charles Joseph Dennis. He was director of the commercial fishery at that time. He testified that he was receiving many complaints from people working on the Band's vessels who were worried about their personal safety because other fishers were impaired. Chief Dennis recalled one captain telling him that while out at sea one day, he thought all his crew had fallen overboard. Just as he was about to call the coast guard, he noticed puffs of smoke coming from inside the vessel's lifeboat. All three deckhands had crawled inside it to smoke drugs. [72] Thomas Johnston, who was EFWC Director of Operations until 2004, testified that on one occasion a captain was so drunk while fishing that he passed out. One of the deckhands had to steer the vessel back into port and in the process bumped it against the wharf. Mr. Johnston also heard reports that some fishers were trafficking in drugs on the Band's fishing boats as well. As I already mentioned, there is widespread usage and abuse of alcohol and drugs within the Eskasoni community. [73] The Band contends, therefore, that it adopted the Fit to Work policy in the honest and good faith belief that it would assist in preventing or reducing the incidence of alcohol and drug usage by its employees and thereby prevent them from being injured and causing damage to Band property. As a bonus, the Band hoped that the policy would help curb substance abuse within the community at large. [74] Mr. Dennis appeared to suggest in his evidence that the policy was adopted with another intention entirely: to adversely affect particular individuals or families within the Eskasoni community. The evidence does not support this claim, however. The minutes from a number of Band council meetings were produced at the hearing. They document the councillors' broad support for the policy's adoption. Their declared reasons for supporting it all relate to workplace safety and the encouragement of substance-free living within the community. No other motive is indicated. Mr. Dennis suggested that some of the councillors were coerced into adopting these positions of support for the policy but he did not present any foundation for this belief. His assertion was not corroborated by other witnesses or evidence. Mr. Maloney, in his testimony, stated that family issues arise in any small community and that family feuds and factions might have played a little bit of a role, but that the major issue for the Band was safety and maintaining the fishery's productivity and viability. He did not elaborate any further on how these feuds may have played themselves out. Mr. Johnston agreed that a dispute did arise between some families over the policy, but that only occurred after its adoption, as groups within the community began taking sides over its implementation. Of note, none of the alleged targets of the Fit to Work policy were called as witnesses to comment on whether they perceived the situation in the manner alleged by Mr. Dennis. [75] Perhaps most importantly, as the question relates to the second of the three steps in the Meiorin analysis, there has been no assertion made or evidence brought forward that the Band's animus, as expressed by the Supreme Court in Meiorin, was to discriminate against drug dependent (i.e. disabled) persons, which is the group that Mr. Dennis alleges in his complaint had been discriminated against. [76] I find the evidence regarding the Band's alleged ulterior motives for the adoption of the policy to be unpersuasive. They constitute nothing more than mere conjecture on Mr. Dennis' part. I am satisfied that the Band has established that the policy was adopted in the good faith belief that it was necessary for the fulfillment of the objectives stated in the first step of the Meiorin analysis. (iii) Is the standard reasonably necessary to the accomplishment of the purpose or goal? [77] In order to satisfy this step in the analysis, the Band must demonstrate that it cannot accommodate drug and alcohol dependent persons (i.e. disabled persons) who test positive for the presence of drugs or alcohol in their systems, without experiencing undue hardship considering health, safety and cost (s. 15(2) of the Act). The Band alleges that undue hardship would be experienced in this case based both on the factors of safety and cost. a) Safety as a consideration - a safe workplace [78] The Band contends that it is required to make every effort to prevent impaired employees from working on its vessels for the safety of those very employees. The Band must therefore test its workers for the presence of drug and alcohol. Any accommodation that would prevent the Band from keeping workers who fail their test off its vessels would impose undue hardship on the Band. [79] On the question of workplace safety, Mr. Dennis conceded in his Statement of Particulars, prepared jointly with the Commission, that the work of a captain of a commercial fishing vessel is safety sensitive. Mr. Dennis did not make any similar concession with respect to the other available jobs on the Band's fishing vessels. The Band, for its part, contends that safety is a major concern with respect to all of its employees who fish on its vessels (captains, first mates, and deckhands). [80] For the purpose of this analysis, I do not believe it is important to make distinctions between so-called safety sensitive work and non-safety sensitive work. What must really be determined is whether accommodating the class of individuals in questions (drug or alcohol dependent persons) would impose undue hardship to the Band considering safety, as the matter has been raised in the present case. [81] Greg Johnstone, the consultant who helped draft the Fit to Work policy, was called by the Band to testify as an expert in risk management in the workplace, occupational health and safety, as well as in toxicology. His expertise in these areas was established at the hearing. Mr. Johnstone stated that as part of any employer's duty to ensure the health and safety of all workplace parties, the guiding rule or principle is one of prevention. One of the key elements of a health and safety management system consists of identifying, evaluating and controlling hazards. The greater the exposure to hazards that could lead to accident or harm, the greater that safety becomes a matter of concern for the job, thereby justifying the need for effective recognition, evaluation, control and prevention of the harm associated with the hazard. [82] In the case of a commercial fishing operation such as the one run by the Band, the very nature of the activities and the environmental exposure to the elements create large hazards, risks, and probabilities of occurrence of harm, which according to Mr. Johnstone render the work highly safety-sensitive. In this context, I take him to mean that safety thus becomes a matter of increased concern due to the prevailing working conditions. Mr. Johnstone pointed out that safety becomes an issue even with respect to the most mundane of jobs on a vessel that is out on the water and away from shore because if an urgent situation arises (e.g. rough seas, fire on board, pulling in a person who has gone overboard, etc.), every worker would be expected to assist. Mr. Maloney testified that the vessels fish 100 to 200 km off-shore, where weather and ocean conditions change quickly. Some boats have had their windows blown out by the rough seas and crews have had occasion to simply cut their lines and rush back to port. [83] Mr. Johnstone referred to a number of studies regarding fishing vessel safety confirming the dangerous nature of commercial fishing. He also cited the Nova Scotia Workers' Compensation Board Rate Book, which lists the premiums payable by employers. They vary depending on the levels of compensation that the Board has had to pay to workers in the past. According to Mr. Johnstone, the actual risk of harm associated with particular types of jobs is thus reflected in the magnitude of the premiums. The premiums for jobs involved in the commercial fishery (on the water) are near the top of the scale for the province. In Mr. Johnstone's opinion, as soon as a worker sets foot on a vessel and leaves port, the very nature of the work becomes dangerous with numerous specific hazards and circumstances under which those hazards can lead to harmful outcomes including loss of life. [84] Mr. Dennis spoke about some of those hazards in his own evidence. His vessel broke down four times in one year and had to be towed back into port. He stated that while the Coast Guard Service will not let fishers go out on windy days, he has been at sea on occasion in rough waters. When he works on vessels harvesting snow crab, the equipment he uses includes a hauler comprised of a system of pulleys and hydraulics, which lifts traps out of the water. The captain controls the hauler while the deckhands grab the ropes, empty the traps, re-bait them and place them up over the edge of the boat to be dropped into the water. Shrimp boats operate with a winch that pulls up a net. Deckhands empty the net as it is hauled in and place the shrimp into bags. Mr. Dennis admitted that if the equipment involved in the commercial fishery is not properly maintained, the fishers could get hurt if, for instance, a cable is not in good shape or one of the pulleys comes loose. [85] Mr. Dennis was the only deckhand on the vessels on which he worked who wore a life vest (which he had purchased for himself). Deckhands are not required to wear life vests at sea, which exposes them to further risk of harm if they fall overboard and which would hamper, one would think, the rest of the crew's efforts to save them even more. Mr. Dennis also recalled an incident were a fellow deckhand dove under the water to untangle a rope that was caught in the boat's propeller. The individual was badly injured in the process. [86] In my view, the evidence is more than persuasive that workplace conditions put the safety of all employees working on the Band's fishing vessels very much at risk, including the job of deckhand. b) Impairment is a safety hazard [87] According to Mr. Johnstone, an individual whose functional capacity and fitness for dangerous work is impaired due to drugs or alcohol, is a major hazard to his or her safety and that of others within this type of workplace environment. Such a hazard must be approached with the same prudence and due diligence as one would exercise in the presence of, for instance, faulty or inadequate equipment, a lack of employee competency, or unsafe working conditions. In these circumstances, an employer must apply the same principles and measures of a sound safety management system to a person, who is in essence a hazard, as they must to non-human hazards. That is, the employer must proactively seek out, evaluate, monitor, and control the respective hazards in the interests of preventing the adverse outcomes that could reasonably be expected to occur if they were not controlled. Mr. Johnstone associates this approach with the concept in risk management known as the Precautionary Principle, which holds that protective action should be taken by stake holders when there is reasonable evidence that not to do so could lead to harm. [88] The Fit to Work policy adopted by the Band provided that testing would be conducted for the presence of alcohol and five types of drugs (known as a Panel V test): Cannabis (marijuana, hashish, hash oil), Amphetamines (e.g. speed, crystal meth) Opioids or Opiates (e.g. morphine, oxycodone), Cocaine (including Crack) Phencyclidine (PCP) (a veterinary general anaesthetic). Mr. Johnstone referred to a Panel V test as being typical and constituting the industry standard. All of these drugs can impair a person's functions in the period immediately following consumption. [89] According to Mr. Johnstone, the mere presence of a drug known to be capable of impairing the worker should be the basis of employing the Precautionary Principle, by removing the subject employee from the workplace where safety is a serious concern, until adequate evaluation and management of any associated risk is achieved, particularly where the amount of the drug detected exceeds acceptable cut-off levels. [90] This evidence is persuasive. It is clear, in my view, that an impaired employee poses a major hazard to the safety of himself and others in workplaces such as the fishing vessels of the EFWC. c) Is the drug and alcohol screening process an effective means to detect the presence of a hazard in the workplace? [91] Mr. Dennis contends that drug and alcohol screening is ineffective as a means for detecting the presence in the workplace of a hazard related to the impairment of workers. He argued, for instance, that testing for cannabinoids does not measure present impairment but merely the presence of the drug in the individual's system from past usage. Mr. Johnstone explained in his testimony that cannabis is a drug that is absorbed by body fat. Although the blood level of the drug may drop, an amount continues to leak out from the body fat. A single usage of marijuana may be detected (i.e., will exceed the levels established in the Fit to Work policy) up to ten days later. Regular usage (weekly or daily) may be detected one or even two months later. [92] Is there, therefore, any value in testing for drugs such as cannabinoids where the usage may have occurred weeks earlier and where the testing is not conducted while the subject is at work? Mr. Johnstone testified that there are lingering and residual effects associated with drug use, including cannibinoids. These effects include sustained disturbances in body functions (sleep and hormone disturbances), nutrition deficiencies, health or toxicity damage to organ systems, preoccupations with relationship difficulties, and even the financial or legal problems associated with drug use. Even if a person has suspended or ended his substance use, one or more of these symptoms can contribute to relapse or return to use, perhaps while the person works on a vessel. In the case of alcohol, Mr. Johnstone referred to hangovers, which persist even though the alcohol may no longer be present in an individual's blood. The lingering effects such as headaches and tiredness will continue to impair the person's functionality and thereby put him or her at risk. [93] Mr. Johnstone testified that some drugs like PCP, cocaine, as well as marijuana when taken in high dosages, can result in the user experiencing flashbacks well after the drug was taken. These flashbacks result in sensory perceptions that cause the user to become preoccupied with fantasies, unpleasant memories or other distractions, resulting in impairment. Such flashbacks are particularly profound with drugs like PCP. Mr. Johnstone pointed out that nowadays, PCP has been known to be added to street drugs like marijuana to give it an increased effect, simulating a good quality product. [94] In the broader sense, with regard to the value of finding persons testing positive even though they are no longer impaired, Mr. Johnstone points out that the detection of a drug that is known to impair worker safety can and should be treated in much the same way as the smell of alcohol on a driver's breath alerts a police officer to the necessity of inquiring into the driver's blood alcohol level. As Mr. Johnstone notes, the big problem from a safety perspective is the high level of uncertainty associated with having a positive test while not knowing the extent of impairment, if any, present in the worker and how that may increase risk. In his opinion, drug testing is an effective and useful measure that provides some objective foundation from which to proceed with other measures that may ultimately effectively address problems. As the Tribunal in Milazzo similarly found, at para. 171, although a positive drug test does not indicate that a worker was actually impaired while on the job, it serves as a red flag that can assist in identifying workers who are at higher risk. [95] Are there any alternative means for assessing the risk? Could the Band rely on the fishers themselves to refuse to board a vessel if they are under the influence of drugs or alcohol? Mr. Dennis testified that he never worked while under the influence of marijuana. Such assurances, however, do not preclude the possibility of the fishers continuing to be subject to the lingering post-usage effects that Mr. Johnstone highlighted in his evidence. More importantly, Mr. Johnstone pointed out that drug users are not inclined to notify their supervisors of their drug use or impairment, and are in fact much more likely to deny their use and the drug's effects on them. Once drug users reach the advanced stages of abuse or addiction (stages which presumably would come within the meaning of drug dependency under s. 25 of the Act), many manifestations of that state contribute to denial and their inability to evaluate their own state of fitness. [96] Can supervisors themselves be relied upon to identify drug impairment amongst their employees? The Fit to Work policy anticipated this possibility. In the list setting out management responsibilities under the policy, managers were directed to confront employees about any observed impairment and to suggest such employees obtain - or refer them to - appropriate assessment and treatment. Managers could submit employees whom they reasonably suspected to be using drugs or alcohol, to testing. In the period leading up to the policy's implementation, the Band provided training on how to identify employee drug usage during the information sessions that were given exclusively to captains. [97] Mr. Johnstone testified that while subjective observations may be of some use, they are not an effective means to assess risk. To begin with, there may be insufficient interaction between the supervisor and the employee to enable him to observe any impairment. The Band's fishing vessels obviously do not constitute large workplaces but nevertheless, evidence was led of at least one captain who was apparently so preoccupied with his own job tasks that he failed to observe his entire crew sneak away into a lifeboat and consume drugs. Of greater concern is the state of the supervisors themselves. As I indicated earlier, there were incidents reported of captains being impaired by drugs or alcohol. On the water, there is no one to supervise them. Finally, even the most well-trained supervisor may be effectively fooled by an employee who is in fact using drugs. Mr. Johnstone testified that despite his many years of training and experience in the areas of toxicology and impairment, he can be manipulated by an experienced person with a history of drug use. Drug and alcohol testing, therefore, provides an objective scientific tool that cannot be fooled like individuals who would draw their conclusions based solely on subjective observations of a person's eyes or demeanour, for example. [98] Some may also question the effectiveness of testing given the possibility that individuals may refrain from using drugs or alcohol in advance of their test, pass the screening, but then use drugs or alcohol thereafter and possibly work while still under their effect. Mr. Johnstone addressed this concern by pointing out that pre-access testing is an opportunity to screen someone before placing that person and his co-workers in a hazardous situation. However, it is possible that a person will test negative and then use a substance thereafter and thus go to work impaired. Nevertheless, the process is worthwhile in at least helping to identify those who are so dependent that they have lost self-control and cannot regulate their consumption, if only long enough to pass the test. [99] I am satisfied, therefore, that the Band's drug and alcohol screening process is an effective means to detect the presence of safety hazards within the workplace and ultimately, of attaining the goal of preventing fishers from working while impaired. d) Cost as a factor - The impact on the Band's commercial fishery [100] Safety was not the only reason for the Band to be concerned about the hazards and risks created by the presence of impaired workers within the workplace. The Band relies heavily on the proceeds from the commercial fishery for the general well-being of the community and its members. The Band was worried about the financial losses it would suffer were the fishery's operations to be disrupted. [101] The Eskasoni Band's finances have been in a critical state for years. By 1995, its accumulated deficit had reached $14 million. The Department of Indian and Northern Affairs (INAC) intervened and imposed a system of co-management on the Band whereby an independent auditing firm was assigned to co-manage the Band's operations. Since 2001, Alan Simpson, a chartered accountant, has served as the Band's co-manager. He testified that a 15 year plan has been put in place to reduce the deficit by $875,000 annually. This objective has to be met while at the same time, the Band must continue to provide services to the community that include social assistance (about $10 million per year), education (another $10 million annually), and housing (about $1 million per year). The Band's total operating budget is about $50 million. According to Mr. Simpson, INAC and other government funding does not exceed $30 million. The Band therefore relies on other sources of funding to balance its budget and meet its deficit reduction objectives. These additional sources include gaming, tobacco sales, and the commercial fishery. The latter accounts for about $2 million in net annual contributions to the budget. Without the infusion of the commercial fishery revenues, the Band would be unable to meet its targets. It would otherwise be required to cut spending in sectors such as housing or social assistance. This reliance on commercial fishery revenues and other local sources of income is accentuated by the fact that the Band's population, according to Band manager Gerard Francis, is increasing at a much greater rate than the rate at which government funding has been rising. [102] The Band has faced some significant challenges in maintaining its revenues from the commercial fishery. Seafood prices have dropped significantly since 2001 when the EFWC's post-Marshall Agreement commercial fishery first began operating. There has only been a very modest rise in prices in the last year, solely with regard to a few of the species harvested. Furthermore, the increase in operating costs, namely fuel for the vessels, threatens to cut into profits, although this phenomenon was likely not as much a factor in 2004 when Mr. Dennis filed his complaint. The point is that the viability of the Band's commercial fishery is fragile; any number of factors may put it at risk. At the same time, the Band relies heavily on the revenues generated from it, not to mention the roughly one hundred fishers and their families who depend on the income they earn from the seasonal work and the employment insurance benefits to which they are then entitled in the off-season. Employment opportunities in Eskasoni are limited and unemployment rates are high. The availability of this gainful employment, in turn, eases the demand for social assistance from the Band. [103] The Band argues that allowing the use of alcohol and drugs on the vessels to go unheeded will put this source of income at risk. Mr. Maloney mentioned in his evidence that by 2003, problems were developing regarding the availability of crews. Call-outs for deckhands came at all hours of the day, including overnight, due to changing weather patterns and tides. Eskasoni's vessels were deployed from harbours that were quite a distance away from the community (e.g., Louisbourg, Arichat), which meant that crews needed a bit of time to reach the vessels. The window of opportunity was therefore small. According to Mr. Maloney, many crew members did not respond to these calls for duty and their failure to do so was often due to drug or alcohol use. They just were not in a condition to go to work. In 2003, a lot of product was left in the water, including 300,000 lbs. of shrimp worth about $600,000. Other bands had to be invited to collect the shrimp. [104] Gerard Francis, the Band's manager, testified of his fear that the DFO may revoke the Band's licences and seize its vessels if it caught crews using drugs and alcohol while at sea. Another concern, of which the Band was aware when the policy was adopted according to the testimony of several witnesses, was the potential for criminal liability under amendments to the Criminal Code enacted following the tragic loss of life at the Westray mine in Nova Scotia. Bill C-45 created an explicit duty amongst those who have responsibility for directing the work of others to take reasonable steps to prevent bodily harm or fatal injuries among workers, failing which the employer organization and its senior officers could be charged with an offence, which carries high maximum fines. The Band's legal counsel at the time had informed the Band Council of these new provisions. [105] In sum, therefore, taking all of the circumstances into account, the Band has, in my view, established that it would experience hardship considering both safety and cost, if it failed to implement a policy in an effort to prevent crew members from working on its vessels while impaired by drugs and alcohol. But a further question remains to be answered; is that hardship undue? e) Is the Band's hardship undue? [106] In determining the answer to the question, courts and tribunals must be sensitive to the various ways in which individual capabilities may be accommodated, as well as be innovative yet practical when considering how this may best be done in particular circumstances (Meiorin at para 64). [107] One approach to exploring the accommodation of individual capabilities suggested in Meiorin is to consider whether different ways of performing the job were available. The evidence in the present case precludes this possibility. All of the work to be performed by the fishers was to be at sea, whether as deckhands, first mates, or captains. The hazards and risks linked to fishing on the water cannot be dissociated from the job tasks of these positions. Mr. Johnstone testified that even people with other occupations on some commercial fishing vessels, such as cooks, are exposed to similar hazards and risks as other crew members. They are expected to contribute along with all crew members if an emergency arises while at sea. Moreover, they may be subject to particular hazards related to their specific job, such as fire or explosion from the fuels and ingredients used to cook. In any event, I have no evidence before me of any jobs other than deckhands, first mates, and captains, being available on the water, at the EFWC. [108] Mr. Dennis contends that the EFWC should offer alternate employment in non-safety sensitive positions to those who test positive, at least for the period during which they may be receiving counselling and treatment for their substance dependency. He even went so far as to suggest that if no other jobs are available, these fishers should continue to receive some compensation while in treatment. [109] Mr. Johnston, the EFWC Executive Director, testified that aside from the fishing crews, the commercial fishery has a staff of about ten people working during the busy fishing season, most of whom are laid off at the end of the season. These positions include two monitors who perform security functions on the docks, two dispatchers or call out persons, one person who organizes the work schedule, and one person who moves the traps and lines around on the dock. There are also a number of employees with science backgrounds involved in the EFWC's research section as well as three full-time bookkeepers/accountants. Mr. Leonard Denny, the commercial fishery manager, testified that even in the summer, the commercial fishery runs a tight ship in terms of staffing, consisting of the fishers and the few above-mentioned employees. No other jobs are available. [110] I am satisfied by the Band's evidence that it has no alternative employment to offer in the commercial fishery to persons who fail their drug screening test, and that it would be unreasonable to expect the Band to either create jobs or simply pay fishers a salary while they are in treatment for their dependencies (see Hydro-Québec v. Syndicat des employé-e-s de techniques professionnelles et de bureau d'Hydro-Québec, section locale 2000 (SCFP-FTQ), 2000 SCC 43 at paras. 15-18; Canada (Human Rights Commission) v. Canada (Human Rights Tribunal), [1997] F.C.J. No. 1734 (Q.L.)(T.D.) (Dumont-Ferlatte) at para. 44). It is important to note that the fishers like Mr. Dennis are not indeterminate employees although they have the opportunity to be rehired each year. The compensation that the fishers receive is generated by the sale of the seafood that they catch. The commercial fishery does not have another source of income. More importantly, the evidence is clear that the commercial fishery was established with the mission of generating employment and revenues for the Band and its members; it was not meant to serve as a replacement for the Band's social assistance program. f) Does the policy place an undue burden on employees? [111] Mr. Dennis argued that the Band's drug testing policy placed an undue burden on those to whom it applied, which according to Meiorin at para. 65, is one factor that can be considered in assessing whether a policy is reasonably necessary. He emphasized the unfairness to persons like him who may test positive in their test and were denied employment, but who in fact were never previously observed working while impaired. [112] However, even if an employer's policy is viewed by some as unfair, it does not necessarily result in a breach of the Canadian Human Rights Act. As the Tribunal in Milazzo, at para. 180, pointed out, the fact that an employee tests positive in an employer-sponsored drug test does not automatically mean that the employee is disabled and therefore entitled to the protection of the Act. [113] The opportunity to re-test, obtain an assessment and receive treatment available under the Fit to Work policy stands in stark contrast to the component of the policy in Milazzo that was the basis on which the Tribunal found that the policy in that case did not satisfy the Act's requirements. In that case, prospective employees suffering from drug related disabilities saw their offers of employment simply withdrawn, without first addressing the issue of accommodation, a practice that the Tribunal held employers were not entitled to pursue. The Tribunal contrasted the treatment of prospective employees with the opportunity afforded to existing employees who came forward and informed the employer of their drug or alcohol problem. The employer allowed such workers to rehabilitate themselves and return to work. The Tribunal suggested that at a minimum, a similar form of accommodation should be extended to prospective employees. [114] In the present case, I note that the Fit to Work policy is significantly more accommodating to prospective employees than the policy that was at issue in Milazzo. As such, the policy reflects the guidance given in Meiorin, at para 68, that the standard set by the employer should itself provide for individual accommodation, if reasonably possible. The policy states that individuals who tested positive could take the test again. Mr. Maloney testified that such persons were given a document explaining the nature of the testing and what circumstances would yield positive results. This provided them with the information they needed to adjust their practices, pass the next drug-screening test, and enable them to get back to work. An employee who failed again could re-test two more times before being definitively turned down for employment, but the bar to employment would only last until the following year. The employee would in the process be encouraged or required, depending on the number of drug testing failures, to seek assessment and/or treatment of his or her problem. As a result, the employee hopefully would succeed in the treatment and not fail the test again in the future. [115] I have already determined that the Band would have experienced hardship based on safety and cost were it required to have individuals who test positive in a drug-screening test work on its vessels. Accommodating these individuals through alternate employment on land or sea was not an option as there were no such jobs available. Furthermore, requiring the Band to remunerate a fisher who is not working (and therefore not generating any income for the fishery) would be unreasonable. Either of these forms of accommodation would have, in my view, unquestionably imposed undue hardship on the Band. On the other hand, the accommodation procedures that the Band incorporated into the policy were more than reasonable. Individuals were afforded ample opportunity to be re-tested during the fishing season, and whatever the outcome, they could always try again the following year. [116] For these reasons, I find that the Band has demonstrated that it was reasonably necessary to adopt the Fit to work policy for the accomplishment of Band's goals of protecting its employees from injury and its property from damage. Step 3 of the Meiorin analysis has been satisfied. The Band has therefore discharged its burden. Accordingly, Mr. Dennis' s. 10 complaint is dismissed. VI. SECTION 67 OF THE CANADIAN HUMAN RIGHTS ACT [117] As part of its defence to the complaint, the Band argued that the Fit to Work policy was a measure of self governance exercised by the Band pursuant to the provisions of the Indian Act and that as such, it was exempt from the provisions of the Canadian Human Rights Act, pursuant to s. 67. Given my findings dismissing the complaint on other grounds, it is unnecessary to address this argument. Signed by Athanasios D. Hadjis OTTAWA, Ontario September 12, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1134/1606 STYLE OF CAUSE: Perry Dennis v. Eskasoni Band Council DATE AND PLACE OF HEARING: March 3, 4, 5, 6, 7, 2008 March 17, 18, 19, 2008 March 31, April 1, 2, 3, 4, 2008 Sydney, Nova Scotia DECISION OF THE TRIBUNAL DATED: September 12, 2008 APPEARANCES: Perry Dennis/ Mary Lou Gould For himself/ Representing the Complainant No one appearing For the Canadian Human Rights Commission Christopher Conohan For the Respondent

2008 CHRT 39

CHRT

Chopra v. Health Canada

en

2008-09-19

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6654/index.do

2023-12-01

Chopra v. Health Canada Collection Canadian Human Rights Tribunal Date 2008-09-19 Neutral citation 2008 CHRT 39 Decision-maker(s) Deschamps, Pierre Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE SHIV CHOPRA Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - HEALTH CANADA Respondent DECISION 2008 CHRT 39 2008/09/19 MEMBER: Pierre Deschamps I. INTRODUCTION II. PRELIMINARY ISSUES A. The scope of the complaint B. The findings and rulings of previous Tribunals (i) The Drennan complaint (ii) The Liston comments (iii) The Gunner incident (iv) The Scott appointment C. The career of Dr. Chopra at Health Canada D. The unfair treatment of Dr. Chopra (i) The Zohair complaint (ii) The Elanco complaint (iii) The suspension imposed on Dr. Chopra by Dr. Lachance (iv) The exclusion of Dr. Chopra from certain projects E. The credibility of Dr. Chopra III. THE SUBSTANTIVE ISSUES A. The relevant provisions of the Canadian Human Rights Act (i) Section 7 (ii) Section 10 (iii) Section 14 (iv) Section 14.1 (v) Section 65 B. The relevant legal principles (i) Discrimination (ii) Retaliation (iii) Harassment C. The relevant allegations (i) Issues related to different appointment opportunities a) The Scott appointment (1995) b) The Self-appointment of Dr. Paterson to the position of Director, BVD (1997) c) The Lachance appointment (1998) d) The Alexander appointment (1999) e) The Butler appointment (1999) (ii) Issues related to incidents potentially discriminatory a) The Lachance comments b) The five-day suspension c) The Zohair complaint d) The Elanco complaint e) The exclusion from the Flumequine project (iii) The issue of systemic discrimination IV. REMEDIES V. ORDER I. INTRODUCTION [1] On February 11, 2004, the Canadian Human Rights Commission referred complaint H47521 to the Canadian Human Rights Tribunal requesting, pursuant to section 49 of the Canadian Human Rights Act, an inquiry into the complaint. [2] The record shows that in fact two complaint forms were referred to the Tribunal. The original complaint form, dated May 13, 1998 indicates as the date of the alleged conduct 1992 and ongoing while the complaint form amending the complaint form signed May 13, 1998, which is dated Januray 12, 1999, indicates as the date of the alleged conduct 1993 and ongoing. [3] In his complaint, the Complainant, Dr. Shiv Chopra who, at all relevant times, was a drug evaluator with the Health Protection Branch at Health Canada, alleges that Health Canada discriminated against him by treating him in an adverse differential manner in the course of his employment by denying him promotional opportunities based on his race, colour and national or ethnic origin (East Indian) contrary to sections 7 and 10 of the Canadian Human Rights Act. The record shows that the Complainant later alleged that he had been harassed and retaliated against by Health Canada, allegations that bring into play sections 14 and 14.1 of the Act. [4] The Commission was not present at the hearing. The Complainant and the Respondent were represented by Counsel. [5] This complaint raises legal issues which go beyond a determination of discrimination in relation to sections 7 and 10 of the Act as well as of harassment and retaliation with respect to sections 14 and 14.1 of the Act. [6] The record shows that, in 1992, the Complainant filed a complaint with the Canadian Human Rights Commission which covered events that had taken place prior to September 16, 1992. This complaint was first heard by a three member panel of this Tribunal, the Soberman Tribunal, which made findings of fact that went beyond September 16, 1992. [7] The record shows that the decision rendered by the Soberman Tribunal was subsequently set aside by the Federal Court of Canada and another member of the Tribunal, Mr. Athanasios Hadjis, was assigned to hear new evidence. The Hadjis Tribunal made findings of fact on events that had occurred after September 16, 1992 as well as decided issues that had arisen after September 16, 1992. [8] At the hearing, the scope of the complaint became an issue with respect to what period of time was covered by the complaint. In addition, given the findings and rulings made by the Soberman and Hadjis Tribunals, the issue of res judicata was raised as to which issues had been judicially decided by the previous Tribunals. [9] Before inquiring into the substance of the complaint, i.e. the possible breach by the Respondent of sections 7 and 10 of the Canadian Human Rights Act, as well as sections 14 and 14.1 of the Act, the Tribunal will address a number of preliminary issues which may have an impact on the determination of the substantive issues. II. PRELIMINARY ISSUES [10] There are five preliminary issues that have to be dealt with before examining the substantive aspects of the complaint: A. the scope of the complaint, B. the findings and rulings of previous Tribunals, C. the career of Dr. Chopra at Health Canada, D. the unfair treatment of Dr. Chopra at Health Canada and E. the credibility of Dr. Chopra. A. The scope of the complaint [11] The record shows that, on May 13, 1998, the Complainant filed a complaint form with the Canadian Human Rights Commission bearing the number H47521. In his original complaint, the Complainant alleges that Health Canada, from 1992 and onwards, discriminated against him by treating him in an adverse differential manner throughout his employment by denying promotional opportunities based on his race, colour and national or ethnic origin contrary to section 7 of the Canadian Human Rights Act. [12] On January 12, 1999, the Complainant filed a second complaint form amending the complaint form signed on May 13, 1998, bearing the number H47521. In his amended complaint, the Complainant alleges that Health Canada, from 1993 and onwards, had discriminated against him by treating him in an adverse differential manner throughout his employment by denying promotional opportunities based on his race, colour and national or ethnic origin contrary to sections 7 and 10 of the Canadian Human Rights Act. [13] At the hearing, the Complainant argued that the amended complaint form did not replace the first complaint form but amended it so as to add section 10 of the Act as an additional ground of discrimination. According to the Complainant, the time period covered by the complaint remained the same and covered the period extending from 1992 and onwards. [14] The Respondent argued that the second complaint in fact replaced the first one and that the time period covered by the complaint was the period extending from 1993 and onwards. The Respondent further argued that events that had taken place in 1992 had already been dealt with by previous Tribunals, the Soberman and the Hadjis Tribunals, and could not be the object of further litigation. [15] The fact of the matter is that the two complaint forms, both the original one dated May 13, 1998 and the amended one dated January 12, 1999 were referred to the Tribunal. The issue pertaining to the reasons that lead Dr. Chopra to sign an amended complaint form with a different date in the period box thus becomes moot; so is the issue as to whether or not the amended complaint form was meant to replace the original complaint form. As stated, both the original complaint form and the amended complaint form were referred to the Tribunal. [16] Furthermore, the record shows that the Complainant, after a long exchange between himself and Counsel for the Respondent in the course of his cross-examination, admitted that the period covered by the present complaint was the period extending from 1993 to 1999. [17] The Tribunal thus finds that both complaint forms, the original complaint form as well as the amended one, are properly before the Tribunal and that the period of time covered by the complaint extends from 1993 to 1999. B. The findings and rulings of previous Tribunals [18] The record shows that many events referred to in the present proceedings were the object of findings and rulings in previous decisions of this Tribunal related to the complaint brought by the Complainant against the Respondent on September 16, 1992, i.e. the Soberman and the Hadjis Tribunals, as well as by the complaint brought by the National Capital Alliance on Race Relations (NCARR) against Health Canada. For example, the record shows that the Hadjis Tribunal allowed evidence and made findings on events which were technically outside of the scope of the 1992 complaint which covered events up to September of 1992, notably events which occurred in 1993 and 1994. [19] Before the start of this hearing, the Respondent brought a motion asking the Tribunal to strike out certain aspects of the complaint given the findings of Mr. Hadjis in Chopra v. Canada (Department of National Health and Welfare), [2001] C.H.R.D. No. 20 (QL) as well as in National Capital Alliance on Race Relations (NCARR) v. Canada (Health and Welfare), [1997] C.H.R.D. No. 3 (QL). The Tribunal was reluctant to remove certain aspects of the complaint. However, the Tribunal considered different allegations and made a series of rulings. [20] The Tribunal finds that it is bound by previous findings and rulings of this Tribunal, notably those made by the following members: Soberman, Sinclair, Hadjis and Groarke and that, in as much as issues have already been considered and decided upon by other members of this Tribunal, these issues cannot be relitigated. They however form part of the history of the human rights litigation between the parties. They provide the background to the current complaint. This said, providing some background or context to the present complaint does not mean relitigating issues which have already been decided upon. [21] The Tribunal finds, after carefully reviewing the Soberman and Hadjis decisions, and given the issues that were raised in the present proceedings, that the following events need to be considered to assess their inclusion in or exclusion of the issues that the Tribunal has to rule upon: 1. the Drennan complaint, 2. the Liston comments, 3. the Gunner incident, 4. the Scott appointment. (i) The Drennan complaint [22] In the particulars to his amended complaint form, the Complainant states that some time in 1993 (sic), Dr. W.G. Drennan, Dr. M.S. Wong (sic), Dr. L. Ritter and an unnamed human resources officer planned to personally defame him by setting him up for a spurious charge of negligence of duty. According to the Complainant, the negligence charge was to be used in his performance appraisal and resulted in two grievances and an external investigation. The Complainant further alleges that when this was discovered, there was no impact on the perpetrators involved, nor did he receive an apology. [23] The record shows that in his 2001 decision, Mr. Hadjis dealt with the complaint made by Dr. Drennan against Dr. Chopra in 1990. The record indicates that Dr. Chopra only learned about the existence of the complaint in 1993 pursuant to an Access to Information request which he had filed. [24] With respect to the Drennan complaint, the record shows that on July 23, 1990, Dr. Drennan who worked at the Bureau of Veterinary Drugs, filed a complaint against Dr. Chopra about the emergency release of a drug. The complaint was documented in a memorandum addressed to Dr. Yong, Chief of the Human Safety Division, and had been put in Dr. Chopra's personal file. The complaint alleged that, on July 11, 1990, Dr. Drennan had confronted Dr. Chopra regarding the latter having failed to proceed promplty with the issuance of a certain drug to treat poultry in Saskatchewan. The records shows that, apparently, Dr. Yong concluded, at the time, that the complaint was unfounded and that Dr. Chopra had not acted inappropriately. Dr. Yong therefore did not, the record shows, follow up on the memorandum, but unfortunately, it remained in Dr. Chopra's file. Several months after the memorandum was sent, Dr. Yong informed Dr. Chopra of the complaint during the preparation of his 1990-91 performance appraisal, but Dr. Chopra apparently had no knowledge that the memorandum had found its way into his personal file (Hadjis decision, par. 144). [25] In his decision, Mr. Hadjis states that Dr. Chopra's concern with this incident, as it relates to the complaint he was seized with, is that the verbal exchanges which occurred between him and Dr. Drennan, in July 1990, came only two days after Dr. Chopra had written to the Chairperson of the Public Service Commission, with a copy to Deputy Minister Catley-Carlson, voicing his concerns about employment equity in the federal public service as well as his frustration in not having been approached by Health Canada or any other government organization for a management position (Hadjis decision, par. 146.) [26] With respect to Dr. Chopra's concerns, Mr. Hadjis ruled that other than the short span of time between the two events, there did not appear to be any evidence to link them and noted again that the Soberman Tribunal did not refer to this evidence at all in its decision and went on to reject the suggestion that discrimination against Dr. Chopra was a factor in Dr. Drennan's complaint or that it was linked to Dr. Chopra's complaints and allegations of discrimination (Hadjis decision, par. 290). [27] The Tribunal finds that the issues related to the Drennan complaint have been thoroughly considered by the Hadjis Tribunal. Counsel for the Complainant acknowledged in the course of these proceedings that the complaint made by Dr. Drennan in 1990, the existence of which was discovered in December 1993, was the object of a ruling by Mr. Hadjis. Furthermore, in his ruling in Bassude v. Health Canada, 2005 CHRT 21, par. 11, Member Groarke made it clear that the parties were bound by Mr. Hadjis's findings. [28] Hence, this Tribunal will not revisit the issues, findings and rulings pertaining to the Drennan complaint and make additional findings of fact, such as whether or not it was made in retaliation to Dr. Chopra's Employment Equity Report, whether or not it was an attempt on the part of Health Canada to discredit Dr. Chopra, whether or not it constituted boardroom racism as alleged by Counsel for the Complainant and what could have been the reasons for management at Health Canada for not informing Dr. Chopra of the existence of the complaint and rule on them. All the findings and non-findings made by Mr. Hadjis in his decision about the Drennan complaint are res judicata. (ii) The Liston comments [29] The record shows that the comments made by Dr. Liston about Dr. Chopra in September 1992, and which are captured in a memo written by Ms. Shirley Cuddihy, referred to as the Cuddihy memo, were considered by the Hadjis Tribunal. [30] It stems from the Hadjis decision that, in September 1992, the Deputy Minister at Health Canada requested from the Human Resources Directorate the opinion of senior management as to why Dr. Chopra had not been promoted to management levels, and Ms. Shirley Cuddihy, Chief of Staff Relations Operations in the Human Resources Directorate, was assigned to this task. [31] The record shows that Ms. Cuddihy met with Dr. Liston, the Assistant Deputy Minister of the Health Protection Branch at that time, and that the latter made the following comments which became part of the memo she sent to her supervisor, Mr. Rod Ballantyne: As promised, my notes from my conversations with Drs. Liston and Somers. Dr. Liston provided comments of both a broad nature and as well relating specifically to S. Chopra General Employees who are being considered solely for technical positions seem to fare better than when being considered for management positions. The cultural differences are minimized when we are only looking for the scientific approach. However when we start looking for the soft skills such as communicating, influencing, negotiating - quite often their cultural heritage has not emphasized these areas and they are at a disadvantage. Abilities to intereact (sic) with a number of stakeholders, such as industry as well as internally with peers, subordinates and superiors are important. As well we do business in the North American Way - consensus reaching model which to some cultures is very foreign. Dr. Liston has apparently had a number of discussions with Ivy Williams on the issue. There is however a bit of a paradox in highlighting what we consider needs to be changed because we run the risk of having to defend ourselves against charges of assimilation. He suggests that we need to provide minority groups with training - we need to point them in a direction of a mirror and say: because of your cultural background, you need to communicate better or adopt a less authoritarian style. It is not a color but a culture problem nor is it a Branch or even a department but appears to be most common in departments such as ours which are technically/scienfically oriented. Specific relating to S. Chopra He is authoritative. He saw in (Shiv Chopra) a great textbook knowledge and thought he could build on the soft skills. (Shiv Chopra) had a confrontational style the effects of which became apparent only sometime after his arrival in the staff position reporting to Dr. Liston. People avoided him after a period rather that being being (sic) challenged by him. (Shiv Chopra) is not a negotiator - he doesn't make allies easily. He has not placed himself in a position for grooming to senior management level positions. [32] The record shows that the Cuddihy memo was not disclosed at the time to Dr. Chopra. Dr. Chopra was made aware of the existence of the memo and got a copy of it through a request under the Access to Information Act. The record shows that Mr. Hadjis dealt extensively with the comments made by Dr. Liston in 1992 and made findings of facts as well as reached certain conclusions as to the impact of the comments on Dr. Chopra's career. [33] With respect to the Cuddihy memo, the Hadjis Tribunal found that it could be reasonably inferred from the opinions expressed by the Assistant Deputy Minister in the memo that a link between the Respondent's actions in staffing the Director's position and a prohibited ground of discrimination had been established (Hadjis decision, par. 269). The Hadjis Tribunal also found that the Cuddihy Memo accurately reflected the substance of Ms. Cuddihy's conversation with Dr. Liston and that Dr. Liston's declarations revealed an underlying assumption that persons of differing cultures may not be well-suited for senior management, because their soft skills such as communicating, influencing, negotiating have not been emphasized in their cultural heritage, thereby placing them at a disadvantage (Hadjis decision, par. 269, 272). [34] The Tribunal concluded that the remarks made by Dr. Liston were obviously related to the visible minority groups working within Health Canada who are of diverse national or ethnic origins, including persons of South Asian origin like Dr. Chopra (Hadjis decision, par. 271) and that Dr. Liston's specific comments regarding Dr. Chopra reflected his perception of him as being one of those minority employees who lacked the soft skills needed for management (Hadjis decision, par. 275). [35] Hence, this Tribunal will not revisit the issues, findings and rulings pertaining to the Cuddihy memo and make additional findings of fact, such as whether or not Health Canada dealt properly with Dr. Liston, whether or not the conduct of Health Canada managers constitute boardroom racism. All the findings and non-findings made by Mr. Hadjis in his decision about the Cuddihy memo are res judicata and cannot be relitigated before this Tribunal. To rule otherwise would mean that parties who are not satisfied with the ruling of a Tribunal could, at their leisure, relitigate issues ad infinitum. This is contrary to the sound administration of justice. (iii) The Gunner incident [36] Even though this incident fell outside the scope of the complaint brought by Dr. Chopra in September 1992, the record shows that the Hadjis Tribunal dealt with this matter. [37] In his 2001 decision, Mr. Hadjis dealt with the Gunner incident in the following manner: Par. 143 Dr. Chopra contends that a defamatory remark was made against him by Dr. Gunner, in 1993, subsequent to the filing of this human rights complaint and he considers this event to constitute additional circumstantial evidence of boardroom racism being practiced against him. Apparently, some time after the Bureau of Veterinary Drugs was assigned to the Food Directorate, the Director-General, Dr. Gunner, met with the PIPSC steward, Mr. D.R. Carsorso, and inquired as to the existence of any union problems at the Bureau. During this conversation, Dr. Gunner questionned Mr. Carsorso about Dr. Chopra's case (What about Shiv Chopra?) In a subsequent group meeting of several members of the union, Mr. Casorso recounted the elements of this discussion, including the reference to the Complainant. Dr. Chopra was upset that personal matters about him were not raised directly with him and consequently, filed a grievance seeking a recognition of the inappropriateness of Dr. Gunner's conduct toward him. Following an apology by Mr. Casorso, and as a gesture of good faith, Dr. Chopra later withdrew his grievance. Par. 289 In addition, there is no evidence to support Dr. Chopra'a submission that discrimination was a factor in the 1993 incident involving a union steward nor that it was even in retaliation to the complaints which he had lodged against the Respondent. Clearly, by that time, the issues raised by Dr. Chopra and other public servants, through NCARR, had created some measure of conflict between those employees and their employers. In this context, it would not have been inappropriate for a newly appointed Director-General to inquire into these issues or to even refer to these disputes as a problem. With regard to this matter as well, the Soberman Tribunal did not make any findings. [38] The record shows that the Hadjis Tribunal dealt thoroughly with the Gunner incident and made findings that this Tribunal cannot ignore. This matter is for all intent and purposes res judicata and this Tribunal will not consider it any further except as part of the context to the current complaint. The Tribunal notes here that the Hadjis Tribunal found that the conduct of Dr. Gunner had not been discriminatory. (iv) The Scott appointment [39] Even though the appointment of Dr. Scott to the position of Director of the Bureau of Veterinary Drugs, fell outside the scope of the complaint brought by Dr. Chopra in September 1992, the record shows that this matter was considered by the Hadjis Tribunal. [40] The following paragraphs of the Hadjis decision need to be referred to in order to determine the findings and rulings made by Mr. Hadjis in relation to the Scott appointment: Para. 136 In the complaint, Dr. Chopra alleges that he was treated unfairly in the manner in which his performance appraisals were prepared during this 1990 to 1992 period, and that he believes that he received this treatment because of his colour, race and national or ethnic origin. In his final arguments, Counsel for the Commission also referred to another competition in 1993, as well as an incident involving a union steward and a grievance filed against the Complainant, subsequent to the filing of the human rights complaint, as evidence of ongoing discrimination. I note that aside from the performance appraisals issue, these matters were not referred to by the Soberman Tribunal in its decision, even though all of the evidence relating thereto was presented in the first set of hearing. Para. 141 In December 1993, Dr. Chopra applied for the competition to fill the position of Director of the Bureau of Veterinary Drugs, classified at the EX-02 level. He testified that he had viewed the poster advertising this competition prior to submitting his application. His candidacy was screened out by the screening board which determined that he did not meet two of the three experience factors listed on the statement of qualifications for the position: (i) experience in managing a scientific or medical or veterinary organization with multi-faceted programs, and (ii) experience as a departmental representative with outside organisations including media and international organizations. With respect to the first criterion, his experience was not considered recent, as required by the screening guide set up by the screening board, and regarding the second qualification, it was determined that there was no evidence of his having had any experience in dealing with the media on behalf of Health Canada. Dr. Timothy Scott was found to be the only fully qualified candidate and was appointed to the position. Para. 142 Dr. Chopra appealled the appointment alleging that his qualifications and those of Dr. T. Scott were not adequately assessed. On November 14, 1994, Ms. Helen Barkley of the Public Service Commission Appeal Board dismissed the appeal. In her ruling, Ms. Barkley found that Dr. Chopra's dealing with the media were as a private citizen and on social issues, not as a departmental representative, and that, in any event, he did not have the managerial experience required for the position. She further held that she found no evidence of bias on the part of either of the screening board members, Ms. Francine Krueger of the PSC and Dr. Saul Gunner, the Director General of the Food Directorate, under which was located the Bureau of Veterinary Drugs. Para. 288 I also do not find that Dr. Chopra was the victim of adverse differential treatment with respect to the December 1993 competition for the position of Director - Bureau of Veterinary Drugs. Although he was screened out for lack of recent management experience, he was also deemed to lack the second qualification of experience in dealing with outside organizations. No evidence was adduced to indicate the Dr. Chopra did in fact possess the latter qualification nor that his lacking this experience was related to discrimination by the Respondent. I am satisfied that Dr. Chopra was not qualified for the position, and that consequently, the Shakes test (the prima facie test) has not been met. [41] In Bassude v. Health Canada, 2005 CHRT 21, Member Groarke ruled with respect to the Scott appointment that the issue had already been litigated. [42] At the hearing, Counsel for the Complainant argued, however, that the Hadjis Tribunal did not consider what had happened after corrective measures were ordered following the successful appeal of Dr. Casorso and asked the Tribunal to address this matter. In response to this argument, the Respondent argued that the whole issue of Dr. Scott's appointment was res judicata, stating that the facts were basically the same in both instances (initial competition and subsequent competition). The Complainant disputed the fact that there was res judicata because the issues were not the same even though the facts may be the same. [43] The record shows that, on March 3, 2006, this Tribunal ruled on a formal objection made by the Respondent 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 (Basudde v. Health Canada), 2006 CHRT 10: Par. 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. Par. 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 or experience in dealing with outside organizations (Hadjis decision, par. 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. Par. 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, BVD, they still remain findings of fact made by Mr. Hadjis that I cannot ignore. Par. 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 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. Par. 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. Par. 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 cover the overall process pertaining to the staffing of the position of Director BVD. Par. 36 On this point, the Tribunal disagrees with Respondent's assertion that the corrective measures put in place after the Carsorso 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. [44] Given the Tribunal previous decision on the matter of the appointment of Dr. Scott, the Tribunal will consider as part of this complaint the events which occurred after corrective measures were ordered following Dr. Carsoso's successful appeal. C. The career of Dr. Chopra at Health Canada [45] Dr. Chopra is of East Indian descent. He started working at Health Canada in 1969. In 1987, he became a drug evaluator in the Human Safety Division of the Bureau of Veterinary Drugs at a VM-4 level. His employment at Health Canada was terminated in 2004. [46] The record shows that during the period of time he worked at Health Canada, Dr. Chopra had acting positions twice, in 1988 and in 1996. Firstly, the evidence shows that Dr. Chopra acted as Chief of the Human Safety Divison, in 1988 for a period of six weeks or so, before Dr. Yong was appointed Chief, and afterwards, off and on whenever he was asked to, up to about 1992. Secondly, the evidence shows that Dr. Chopra acted as Chief, C.N.S. Division, for a period of four months at the end of 1996 and in early 1997 (October 7, 1996 to February 7, 1997) and that as Chief of C.N.S. and Endocrine Drugs Division, on occasion he acted as Director of the Bureau of Veterinany Drugs, a few days here and there. [47] Asked if anyone within the Department expressed concerns about his performance when he acted in the position of Chief or Director, on certain occasions, Dr. Chopra testified that not at all, that no one in the Department or outside the Department complained about his acting as Director or Chief. [48] The record shows that as early as 1979, Dr. Chopra started showing interest in being provided opportunities to acquire experience in more senior management responsibilities. His annual appraisals before joining the Bureau of Veterinary Drugs, while with the Bureau of Drugs, state that management related training programs are recommended for this employee in order to enhance his career aspirations and that he had received extensive management training. [49] The following comments appear in his 1979 evaluation, signed by Dr. Ian Henderson: It is obvious that this employee's interests for the future lie in the area of policy-making and management. He has been acting de facto as a Section Head for the specialty of immunology, but this has not been formalized in his job description, nor in terms of his compensation. He is somewhat frustrated by his inability to rise within the management structure of the Health Protection Branch, and is presently looking for an opportunity to enter a management career path, while attempting to maintain his expertise in the scientific discipline of immunology. [50] In his 1980-1981 appraisal, it is stated that Dr. Chopra has received extensive management training, while his 1981-82 appraisal states that he has gained extensive management training. [51] In relation to his 1981-1982 appraisal, it is mentioned that this employee has received extensive training in Management skills including a Diploma in Senior Management Development from the Public Service Commission and that the full potential of this employee remains underutilized, that in spite of extensive formal training and experience in management systems and a rare insight into international regulatory control of health care products, no visible career advancement has been possible. Nevertheless, the employee has managed to contain his frustration and continues to maintain his initiative and drive in typical professional manner. These comments are repeated in his 1982-1983 appraisal. [52] In his 1986-87 appraisal, it is stated that when provided the opportunity, Dr. Chopra acts as a competent manager. In his 1987-1988 second to last annual appraisal before joining the Bureau of Veterinary Drugs, it is written that Dr. Chopra has wide experience in regulatory affairs and has demonstrated his ability to handle delicate situations requiring both scientific knowledge, tact and good writing skills, that he has the potential for advancement to a higher level in the service and that his aspirations should be met. In his l990 appraisal, signed by Drs. Yong and Messier, it is stated that Dr. Chopra has the potential to achieve his career aspirations (management). He is encouraged to pursue the DAP program initiative. His later appraisals are more sketchy. [53] The record shows that, in 1991, Dr. Chopra reiterated his interest in being provided opportunities to acquire experience in more senior management to Health Canada officials, Mr. Ballantyne and Dr. Liston. The evidence shows that Dr. Chopra expressed his concern regarding, what he believed, was the denial of these opportunities. He expressed the opinion in the course of his testimony that the Department was giving opportunities (i.e. line management experience) to everybody else but him. [54] Dr. Chopra stated time and time again in his testimony that he met all the qualifications required for a managerial position and that, in his opinion, given his past appraisals, he was better fitted that anybody else to occupy managerial positions, i.e. Chief or Director. The evidence shows that Dr. Chopra was told in that respect that he was lacking recent line management experience. [55] It is worth noting with respect to Dr. Chopra's career progression that Mr. Hadjis made the following findings in his 2001 decision: [261] Over this same 1969 to 1987 period, the Complainant claims that he was not provided with the appropriate advice and assistance from the employer, to acquire the management experience required for a senior management position. Dr. Chopra was advised as early as 1974 to register for career advancement opportunities such as the CAP and later, the DAP. The evidence shows that the Complainant did not follow up on these recommendations. [262] The Soberman Tribunal held that such responsibilities cannot properly be left entirely to the employee within such a large bureaucracy and that the Respondent's insensitivity increased Dr. Chopra's level of frustration and eventually led to his suspicions that racial discrimination played a role in his being passed over. Nonetheless, the first Tribunal found that these findings do not demonstrate prima facie discrimination. However, I would add that the new evidence led before me reinforced the point that ultimately the responsibility to seek out and obtain such training and other advancement opportunities is the employee's. I therefore find that no inference of discrimination on the part of the Respondent can be drawn from these circumstances. D. The unfair treatment of Dr. Chopra [56] In support of the allegations that the Complainant was discriminated against, Counsel for the Complainant relied on a number of situations where, he asserts, the Complainant was treated unfairly by Health Canada when compared to how Health Canada dealt with other employees. In his submissions, Counsel for the Complainant asserted that these situations should be considered as more than the unfair treatment of Dr. Chopra compared to the treatment of other individuals, but also as retaliation or harassment under the Canadian Human Rights Act. [57] Given that the Tribunal has already decided not to examine events or issues that have already been considered by previous Tribunals, the events that the Tribunal considers relevant to the present proceedings are 1. the Zohair complaint, 2. the Elanco complaint, 3. the suspension imposed on Dr. Chopra by Dr. Lachance in 1999 and 4. the exclusion of Dr. Chopra from certain projects. [58] Except for the Elanco complaint, the Zohair complaint, Dr. Chopra's suspension and his exclusion from certain projects are not identified in the complaint forms or the additional allegations as incidents of discrimination, the Zohair complaint and Dr. Chopra's suspension having occurred after the filing of the complaints forms and the additional allegations in June 1999. (i) The Zohair complaint [59] The record shows that, in July 1999, Ms. Shaida Zohair, the secretary to the Chief of the Human Safety Division where Dr. Chopra was an evaluator, made a harassment complaint against Dr. Chopra. Health Canada ordered that an independent investigation be carried out. The investigator concluded that Dr. Chopra may have been guilty of arrogance, insensitivity or condescending behavior, but neither the frequency - three incidents alone over a one-year period - nor the nature - neither momentous nor grave - of the actions sufficiently constitute a pattern of behaviour that would support a definition of harassment. The evidence shows that Dr. Chopra was imposed a reprimand by the Director General of the Food Directorate and that Dr. Chopra grieved that decision. The evidence further shows that Dr. Chopra's grievance was upheld by the Assistant Deputy Minister who ordered that the letter of reprimand be removed from Dr. Chopra's file. [60] Counsel for the Complainant stated in his oral submissions that he relied on the Zohair complaint for two specific reasons: firstly, to show how Dr. Chopra learned about the complaint - the complaint was made in July 1999 and Dr. Chopra was informed only in September 1999, - and secondly, how complaints against Dr. Chopra were dealt with compared to complaints made by Dr. Chopra. [61] On this aspect, the evidence shows that Dr. Chopra learned about the complaint through the investigator. Nobody, it appears, within the Department had informed Dr. Chopra about the complaint. No explanation was provided. The evidence shows also that Dr. Chopra was entitled to be advised about the complaint soon after it had been filed. [62] For the purpose of these proceedings, the Tribunal cannot derive from this event more than a finding that the Department had the complaint investigated, that a reprimand was imposed on Dr. Chopra, that the latter successfully grieved the reprimand. Given the submissions made by Counsel for the Complainant, the Tribunal will have to consider if the Zohair complaint constitutes retaliation or harassment on the part of Health Canada. [63] More troubling however is the assertion that Dr. Chopra made in the course of his testimony when he stated that Ms. Zohair's complaint was contrived by the Department, that Ms. Zohair was motivated by the Department to have a conflict with him. This assertion remained throughout the hearing an unproven allegation which, given its unproven nature, undermines the credibility of the Complainant in relation to some of the assertions he makes. (ii) The Elanco complaint [64] In the particulars to his amended complaint form, the Complainant alleges that, in early 1997, he was again slandered and defamed by Drs. G. Paterson and D. Landry, through false accusations of unacceptable behaviour towards Elanco, a pharmaceutical company, at a BVD meeting, which resulted in a counter complaint and a threat of legal action but that nothing has again be (sic) done about the perpetrators. [65] The Elanco incident has to do with a letter sent by a representative of a pharmaceutical company, Dr. Dicks, who complained about a meeting attended by Dr. Chopra and BVD evaluators while Dr. Chopra was acting Chief CNS in February 1997. Dr. Chopra testified that he considered the letter an attack on his reputation. He further testified that the Department, not only was not supportive of him, but that by sending copies of the letter to different individuals within Health Canada, the Department contributed to the sullying of his reputation. The evidence shows that Dr. Chopra was told that the letter would not be used to his detriment. In fact, Dr. Chopra was never disciplined with respect to this incident. [66] The evidence shows that, after receiving the complaint letter, the General Manager, Dr. Paterson, wrote to Elanco and stated that the matter should not be exacerbated. The decision made by Health Canada to try to defuse the situation did not sit well with Dr. Chopra who wanted the Department to sanction Dr. Dick and require from him an apology. Given the inaction of Health Canada, Dr. Chopra filed a grievance and asked for an investigation. The Department decided, after the grievance had been heard, to investigate the matter further. However, it put a stop to the investigation when Dr. Chopra indicated that he would not fully participate in the investigation. [67] The Tribunal fails to see how issues of defamation are covered by the Canadian Human Rights Act. This said, the Elanco incident was the object of much discussion and debate in these proceedings. At the hearing, Dr. Chopra made a link between the Department handling of the complaint and the issue of discrimination. The lack of a proper response on the part of Health Canada to Dr. Dick's complaint would be the discriminatory act. According to Complainant's Counsel, the Department's attitude in dealing with the Elanco complaint is part and parcel of the discrimination Dr. Chopra experienced over the years at Health Canada. When Dr. Chopra's career is affected by a negative comments, he asserts, nothing or little is done about it. [68] The Tribunal finds that the initial allegation of defamation brought against the Respondent with respect to the Elanco complaint does not fall under the purview of the Canadian Human Rights Act. Furthermore, the Tribunal notes that, at the time of the event, Dr. Chopra never complained of any discrimination on the part of anyone. Nevertheless, given the allegation made by the Complainant, the Tribunal will consider the Elanco complaint incident with respect to the issues of discrimination and retaliation. (iii) The suspension imposed on Dr. Chopra by Dr. Lachance [69] The record shows that, on March 26, 1999, Dr. Chopra attended Heritage Canada's Employment Equity Annual Meeting as a panelist. According to the summary of the proceedings put in evidence, Dr. Chopra made the comment that he had personally been involved in the fight against racism in the Public Service for the last ten years and that during that period, he had not seen any improvement despite what delegates may have heard from other presenters at this annual meeting. Dr. Chopra stated in his testimony that he was then expressing a concern from his personal experiences following the NCARR decision as well as his deep dissatisfaction with respect to how the Department applied the NCARR order. In his view, nothing was happening. [70] The record also shows that Dr. Chopra sent a five line abstract to the organizers of the conference in which Dr. Chopra states that the results collected since 1987 show that the effect that the Employment Equity Act and the other relevant Acts have produced is to perpetuate racism without check and that indications are that this same situation will continue well beyond Y2K. [71] A few months after the conference, the record shows that Dr. Lachance sent a letter to Dr. Chopra, letter dated July 21, 1999. In his letter, Dr. Lachance refers to a quote taken, it appears, from an audio tape recording of the proceedings where Dr. Chopra would have said: after three years in Health Canada, you heard from our Human Resources Director General yesterday, Bob Joubert. Every word, everything I can tell you now, I wasn't there, would be a lie because there is nothing happening in HC, and we at NCARR - it must be noted here that Dr. Chopra was at one point in time a member of NCARR - are considering filing a charge of contempt of court against all three departments, Treasury Board, Public Service Commission and Health Canada. [72] In his testimony, Dr. Chopra did not deny that he would have said that he had not seen any improvement. He however denied at first having said that Mr. Joubert was a liar, then stated that he could not deny or substantiate whether he had said this or not because he had no way of knowing. Dr. Chopra however stated that if someone from the Department stated that everything had been sorted out and that there were no further problems, this would be a lie. [73] The evidence shows that Dr. Lachance imposed on Dr. Chopra a five-day suspension without pay in relation to this incident, that Dr. Chopra filed a grievance with the Public Service Staff Relations Board arising from this incident. The evidence shows that Dr. Chopra's grievance proceeded to adjudication, that his grievance was at first denied by the Assistant Deputy Minister, but later upheld by the Public Service Staff Relations Board. The adjudicator ordered the employer to rescind the suspension, remit to Dr. Chopra the monies related to this suspension and to remove from Dr. Chopra's file all documents relating to this suspension. Dr. Chopra testified that the Department never apologized to him for having disciplined him for having made the comments he did. [74] In his submissions, Counsel for the Complainant stated that the issue here is how the Department deals with Dr. Chopra's concerns. Here is a situation where Dr. Chopra speaks about racism in the public service and where the Department, through Dr. Lachance, instead of sitting down with Dr. Chopra to discuss the issue, disciplines him. For Counsel for the Complainant, the message sent by the Department is that the Department will not tolerate public discussion or criticism of itself on questions of discrimination. [75] Counsel for the Complainant further indicated to the Tribunal that it was his position that, by imposing on Dr. Chopra a five-day suspension, the Department, more specifically Dr. Lachance, was retaliating against Dr. Chopra for making certain comments in a public forum. Counsel for the Complainant added that it was his position that the Department did not like what Dr. Chopra said about the Department and that this is why the Department slapped him with a suspension. For Complainant's Counsel, this is discrimination. [76] Given these allegations, the Tribunal will consider if the suspension imposed by Dr. Lachance on Dr. Chopra in 1999 was a discriminatory act and constitutes retaliation in relation to the filing of a complaint. (iv) The exclusion of Dr. Chopra from certain projects [77] The record shows that Dr. Chopra was excluded from certain scientific reviews conducted within the Human Safety Division of the Bureau of Veterinary Drugs in 1991 (Ractopamine) and 1993 (Flumequine). Dr. Chopra stated in his testimony that it was never explained to him why he was excluded. [78] In the course of his cross-examination with respect to these events, Dr. Chopra was asked whether or not he considered his exclusion as discrimination or retaliation on the part of Health Canada. The Tribunal finds that the answer provided by Dr. Chopra at the time was, to say the least, unclear, although Dr. Chopra did state at one point in his testimony that he did not see that as discrimination but retaliation, adding that he felt he was being targeted by Health Canada for having complained about racism. Counsel for the Complainant argued that the exclusion of Dr. Chopra from the Flumequine study is an example of some of the opportunities that were denied to Dr. Chopra for no apparent reasons. [79] The Soberman and Hadjis Tribunals don't seem to have dealt with this matter, i.e. the exclusion of Dr. Chopra from certain projects under the auspices of the Bureau of Veterinary Drugs. In any event, his exclusion from the Ractopamine project should have been dealt with by the Soberman Tribunal which dealt with the complaint filed by Dr. Chopra in September 1992. As for the Flumequine project, it falls within the scope of this complaint. Given the nature of the allegation made by Dr. Chopra with respect to the reason of his exclusion, the Tribunal will deal with this issue within the context of an allegation of retaliation. E. The credibility of Dr. Chopra [80] At the outset of his submissions, Counsel for the Respondent stated that credibility was the central issue in this case and asserted that Dr. Chopra was not a credible witness given his attitude on cross-examination, his general demeanor, the use of sweeping statements, the contradictory evidence he provided, the allegations of conspiracy he made. [81] To support these assertions, Counsel for the Respondent referred to the fact that Dr. Chopra refused to answer certain questions and was evasive in his answers, that he gave explanations which made no sense, that some of his evidence was untrue and that Dr. Chopra was not responsive and was argumentative in many instances. This was referred to by Counsel for the Complainant as a frontal attack on Dr. Chopra. [82] In response to Respondent Counsel's frontal attack on the credibility of Dr. Chopra, Counsel for the Complainant undertook to put the attitude, comments, outbursts, general testimony of Dr. Chopra in the proper context of the questions asked. [83] In the course of his submissions, Counsel for the Respondent referred the Tribunal to the Dhanjal case (Dhanjal v. Air Canada, [1996] C.H.R.D. No 4), the Martin case (Martin v. Saulteaux Band Government, T.D. 07/02), the Hill case (Hill v. Air Canada, [2003] C.H.R.D. No. 3) and the Singh case (Singh v. Canada (Statistics Canada), [1998] C.H.R.D. No.7 and suggested that many of the comments made in these cases about the Complainant applied directly to Dr. Chopra. Counsel for the Respondent more specifically referred to the following passages: Dhanjal The complainant's attitude on the cross-examination, which was relatively brief and properly conducted by the Respondent counsel, was revealing of this personality. He is aggressive, often tried to avoid answering questions (sic), often argued with counsel and even went so far as to refuse to answer certain questions. More than once, the Tribunal had to call him to order and instruct him to answer questions (sic) that were put to him and stop arguing with counsel. The complainant even showed a lack of respect for counsel, on one occasion at least, saying his question was idiotic instead of answering it. In short, through his attitude the complainant fully accredited the thesis of Respondent counsel that Mr. Dhanjal is an irascible individual, uncooperative and a manipulator, and that it was these personality traits that were the true cause of the problems in his working relationship with Guy Goodman (Dhanjal, par. 181). Martin I was similarly unimpressed by the evidence of Julia Night. There was a marked difference in Julia Night's demeanour between her testimony in chief and in cross-examination. In chief, Ms. Night appeared quite pleasant and friendly, whereas her responses in cross-examination were often defensive, and, at times, quite aggressive. Ms. Night demonstrated a surprising degree of hostility towards Commission counsel, considering that her involvement in the matters giving rise to Ms. Martin's complaint was peripheral, and that her conduct was not in issue in this proceeding (Martin, par. 102). Hill Mr. Hill was a partial witness, whose feelings often obscured his view of the facts. He had a tendency to reduce everything to a common denominator: that denominator was that he had not been treated fairly. I nevertheless found that Mr. Hill's behaviour in the hearing room was inherently aggressive. I understand his feelings of injustice, but he was clearly inaccurate or mistaken on a number of counts and was unwilling to recognize that there was a case on the other side. (Hill, par. 11-12) Singh The Tribunal has no doubt that Mr. Singh honestly believes that he has been the victim of age discrimination as well as discrimination relating to his national or ethnic origin throughout most of his employment with Statistics Canada; indeed, his outrage at his perceived treatment at the hands of the respondent was palpable throughout his testimony. In the course of his testimony, however, Mr. Singh would often make sweeping statements where it appeared that he thought that it would advance his case. While he would usually retreat from these statements when pressed, this tendency does raise concerns as to Mr. Singh's reliability as a witness (Singh, par. 169). [84] After hearing Dr. Chopra's testimony, there can be no doubt that Dr. Chopra is angry and bitter against Health Canada, that he feels that he has been treated unfairly, discriminated and retaliated against and harassed. He feels that there is some form of conspiracy that exists against him at Health Canada and that Health Canada orchestrated certain events in order to make him look bad. [85] The Tribunal considers that, in the course of his testimony, Dr. Chopra made sweeping statements that affect his credibility or, at least, his objectivity or sense of proportion. For example, Dr. Chopra stated, in relation to the Gunner comment (What about Shiv Chopra), that he believed - he did then and he does now -- that Canadians are now racist people. But there is racism in Health Canada and the Government of Canada. As noted earlier, the comment made by Dr. Gunner was found by the Hadjis Tribunal not to be discriminatory in any way even if Dr. Chopra took offence to Dr. Gunner making it. [86] In the course of his testimony, Dr. Chopra expressed the view that every appointment made at Health Canada since 1977 was, in his opinion, discriminatory. Dr. Chopra went as far as asserting in his testimony, as to whether or not there were interpersonal conflicts between him and his colleagues that, these, referring to the conflicts, were engineered complaints against him by management or on behalf of management. [87] Of course, Dr. Chopra is entitled to his own opinions, for example, as to whether or not the Department, or his division, was functional, as to whether or not complaints were made against him personally or against the Department, as to whether or not he got along with people or colleagues. All this can be open to debate. As Counsel for the Complainant stated, these are views that Dr. Chopra holds, that he might be right or he might be wrong. This said, the Tribunal cannot ignore the fact that the views expressed wholehearthedly by Dr. Chopra are rooted in strong beliefs that necessarily color the views he holds with respect to Health Canada, its management, his colleagues as well as discrimination. [88] The Tribunal also noticed that, during the course of his cross-examination, Dr. Chopra's answers more often than not went well beyond what was required to answer a question and that Dr. Chopra had a tendency to put his own spin on things. Of course, Dr. Chopra is entitled to give a full and complete answer to the questions put to him. Nevertheless, his responses were at times a long discourse about discrimination within the Department, the lack of change, etc. Time and time again, the Tribunal had to remind Dr. Chopra to answer the question put to him and that, if he wanted to provide additional relevant information, he should do it after having answered the question. [89] The Tribunal noticed, moreover that, at times, Dr. Chopra did not hesitate to make statements that were devoid of any evidenciary basis, for example about. Dr. Alexander's (his job was to harass people), in relation to the Zohair complaint (Ms. Zhohair being motivated by the Department to have conflict with him), the Elanco complaint (Health Canada triggered the complaint), the Carsorso incident (what about Shiv Chopra, which Dr. Chopra related to Dr Liston's comments). These types of statements undermine the overall credibility of a witness and, in the case of Dr. Chopra, the Tribunal needs to be very cautious with respect to the views expressed by the latter, more specifically his perceptions as to the reasons which lead Health Canada to act the way it did. [90] After reviewing the relevant excerpts of Dr. Chopra's testimony, the Tribunal finds that Dr. Chopra had a tendency, during his testimony, to surmise or speculate about certain events rather than say that he did not know, to boast about or exaggerate his knowledge of certain matters, such as the qualifications, background and experience of colleagues or managers. Often times, in his answers, Dr. Chopra would come up with editorial comments which were not responsive to the question asked. [91] The Tribunal views Dr. Chopra as an opiniated person, very assertive, very sure of himself, proud, very vocal, a person who stands up for his rights, who is very committed to employment equity issues, who will not accept any form of discrimination whether blunt or subtle, who will grieve whenever he is of the view that he has not been treated fairly and that individuals have made decisions that he feels to be unreasonable, who will rarely back off even in the face of hard evidence that contradicts what he has said. The evidence also shows that, given his past experience at Health Canada and previous decisions by Human Rights Tribunals, Dr. Chopra is of the view that Health Canada officials are racists, and so are Canadians as a whole. [92] But Dr. Chopra is also an individual who worked in a Department that was found by a Human Rights Tribunal to have acted in a discriminatory manner with respect to visible minorities (NCARR) and which was ordered to put in place corrective measures, temporary and permanent, that address discrimination issues. Furthermore, the record shows that he was personally discriminated against by Health Canada (Hadjis Tribunal) and that events occurred behind his back while he was working at Health Canada, that negative comments were made about him without him being made aware of them (the Drennan complaint, the Cuddihy memo and Dr. Liston). [93] The Tribunal is of the view that, given the way Dr. Chopra conducted himself during his cross-examination, his credibility is an important if not crucial issue in this case, as argued by Counsel for the Respondent. This said, the Tribunal is nonetheless of the view that, given the special context in which this complaint was made, i.e after the NCARR decision and the Hadjis decision, the Tribunal needs to probe further the allegations made by Dr. Chopra in relation to sections 7, 10, 14 and 14.1 of the Act and look at the whole of the evidence, testimonial, documentary and circumstantial, to ascertain and determine if these articles were breached. III. THE SUBSTANTIVE ISSUES [94] The complaint brought by Dr. Chopra against Health Canada contains a number of allegations which are related to discrimination, retaliation, harassment. Before analysing each and everyone of these allegations, it is important to set out the provisions of the Canadian Human Rights Act that are relevant to the analysis of these allegations as well as the relevant legal principles. A. The relevant provisions of the Canadian Human Rights Act [95] Dr. Chopra's complaint refers to sections 7 and 10 of the Canadian Human Rights Act and, in as much as Dr. Chopra alleges harassment and retaliation on the part of his employer, to section 14 and 14.1 of the Act. (i) Section 7 [96] In his complaint, Dr. Chopra alleges that he has been discriminated against on the basis of his ethic origin, East Indian. Section 7 of the Act states that [i]t 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. The prohibited grounds of discrimination are set out in section 2 of the Act and are 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. (ii) Section 10 [97] In his complaint, Dr. Chopra alleges systemic discrimination on the part of Health Canada and its breach of section 10 of the Act which reads: It is a discriminatory practice for an employer, employee organization or employer organization (a) to establish or pursue a policy or practice, or (b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination. (iii) Section 14 [98] Dr. Chopra alleges that some of the actions taken by Health Canada against him constitute harassement. Section 14(1)(c) of the Act provides that [i]t is a discriminatory practice in matters related to employment to harass an individual on a prohibited ground of discrimination. (iv) Section 14.1 [99] Dr. Chopra alleges that many of the actions taken by Health Canada were retaliatory. With respect to retaliation, section 14.1 of the Act provides that [i]t is a discriminatory practice for a person against whom a complaint has been filed under Part III of the Act, or any person acting on their behalf, to retaliate or threaten retaliation against the individual who filed the complaint or the alleged victim. (v) Section 65 [100] Section 65 of the Act is also worth mentioning in relation to the above mentioned sections of the Act. Section 65 (1) of the Act reads as follows: Subject to subsection (2), any act or omission committed by an officer, a director, an employee or an agent of any person, association or organization in the course of the employment of the officer, director, employee or agent shall, for the purposes of this Act, be deemed to be an act or omission committed by that person, association or organization. As for subsection (2) of the Act, it reads as follows: An act or omissions shall not, by virtue of subsection (1), be deemed to be an act or omission committed by a person, association or organization if it is established that the person, association or organization did not consent to the commission of the act or omission and exercised all due diligence to prevent the act or omission from being committed and, subsequently, to mitigate or avoid the effect thereof. B. The relevant legal principles [101] At the outset, it is important to set out the legal principles applicable to the adjudication of issues related to discrimination, retaliation and harassment made by the Complainant against the Respondent. (i) Discrimination [102] In human rights cases, as well as in civil cases, the complainant or the plaintiff bears the burden of proof and must prove the allegations he or she makes on a balance of probabilities. HE WHO ALLEGES MUST PROVE. (Ontario (Human Rights Commission) v. Simpsons Sears Ltd. (O'Malley), [1985] 2 S.C.R. 536. [103] This said, in proceedings before Human Rights Tribunals, the complainant must establish a prima facie case of discrimination in order to have the burden of proof shift to the respondent who then has to provide a reasonable explanation which is not a mere pretext that will convince the Tribunal that, for example, the reason for not appointing a person to a position was not motivated in any way by a prohibited ground of discrimination. As stated by Mr. Justice McIntyre in O'Malley, 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 or, in other words, one where the evidence, if believed, and not satisfactorily explained by the respondent, will suffice for the complainant to succeed. [104] In Morris v. Canada (Canadian Armed Forces), [2005], F.C.J. No. 731, the O'Malley test was found to be the legal test of a prima facie case of discrimination under the Canadian Human Rights Act. According to Morris, it is a question of mixed fact and law whether the evidence adduced in any given case is sufficient to prove adverse differentiation on a prohibited ground, if believed and not satisfactorily explained by the respondent (Morris, par. 27). [105] The Tribunal shares the view expressed in Singh v. Canada (Statistics Canada), [1998] C.H.R.D., No. 7, at par. 197 that to support a finding that a prima facie case of discrimination has been established, the complainant must do more than put forward sweeping assertions. Furthermore, as stated in Bobb, mere allegations that a conduct was racially motivated cannot be substituted for proof of facts (Bobb v. Alberta (Human Rights and Citizenship Commission), [2004] A.J. No. 117, par. 76. The Tribunal further shares the view that a tribunal should be reluctant to find discrimination on the basis of a prohibited ground where there is a reasonable alternative to the theory that the complainant incurred discrimination. [106] A belief, however strong, that someone is being discriminated against is not sufficient in law to give rise to an inference of discrimination or to establish a prima facie case of discrimination (Singh v. (Statistics Canada) [1998] C.H.R.D. No 7, par. 206). As stated in Filgueira v. Garfield Container Transport Inc., [2005] CHRT 32, par.40, there must be some evidence, i.e. material facts, that if believed, will make the existence of discrimination more likely than its non-existence given all the circumstances of the case. [107] Finally, for there to be a prima facie case of discrimination, the mere allegation by the complainant that he was qualified or more qualified, that he was a member of a group that has historically been the target of discrimination, and that he did not get the job is insufficient to raise an inference of discrimination (Potocnik v.Thunder Bay (City), 1996 O.H.R.B.I.D. No 29, par. 13). [108] Over the years, Human Rights Tribunals have recognized that direct evidence that discrimination was the motivating factor behind a decision or a behavior is rarely available to complainants, given that discrimination is not a practice which is usually displayed overtly. As stated in Basi v. Canadian National Railway Company, [1988] C.H.R.D. No 2, rarely can discrimination be proven by direct evidence. [109] Complainants alleging discrimination must thus more often than not rely on circumstantial evidence, notably the conduct of individuals or organizations whose conduct is at issue (Brooks v. Canada (Department of Fisheries and Oceans), 2006 F.C.J. No. 1569, par. 27). The criteria is whether the circumstantial evidence, if believed, tends to prove the allegation of discrimination. [110] In Brooks, this Tribunal stated, with respect to circumstantial evidence, that it is not enough if circumstantial evidence is consistent with an inference of discrimination. This merely establishes the possibility of discrimination, which is not enough to prove the case. The evidence must be inconsistent with other possibilities. (Brooks, par., 114). [111] This said, as stated in Wall v. Kitigan Zibi Education Council, (1997) C.H.R.D. 6, the standard of proof in discrimination cases remains the ordinary civil standard of the balance of probabilities and that in cases of circumstantial evidence, the test is the following: 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 (B.Vizkelety, Proving Discrimination in Canada, Carwell, 1987, p. 142). [112] Hence, in its determination as to whether or not an alleged conduct is discriminatory, the Tribunal must analyze and scrutinize carefully the conduct itself as well as the context in which it occurred, keeping in mind, as stated in Marinaki v. Canada (Human Resources Development), [2000] C.H.R.D No 2, that for a complaint to succeed, it is not necessary that discriminatory consideration be the sole reason for the actions in issue but that it is sufficient that the discrimination be a basis for a person's action (Marinaki, par. 191) and that the intent to discriminate is irrelevant to the determination of discrimination (Nova Scotia (Human Rights Commission) v. Play it Again Sports Ltd, [2004] N.S.J. No 403, par. 37). [113] As for the assessment of the likelihood of a person obtaining an acting position or a permanent position, Counsel for the Complainant referred the Tribunal to the decision of the Federal Court of Appeal in Canada (Attorney General) v. Morgan, [1992] 2 C.F. 401, more specifically to the opinion of Mr. Justice Marceau to argue that to establish that someone would have obtained a certain position, it is not required to prove that, without the discriminatory practice, the position would certainly have been obtained but that a mere possibility, provided it was a serious one, is sufficient to prove its reality (Morgan, p. 412). (ii) Retaliation [114] The Canadian Human Rights Act, as it stands, considers retaliation or threats of retaliation only in relation to a complaint having been filed and a conduct which was in response to the complaint being filed (Witwicky v. Canadian National Railway, [2007] C.H.R.D. No. 28). The source of the retaliation must thus be the filing of a complaint and not, for example, an event which occurred prior to the filing of the complaint. The law is clear. Section 14.1 of the Act only considers retaliation in relation to the filing of a complaint. Furthermore, as indicated by this Tribunal in Marinaki v. Canada (Human Resources Development, [2000] C.H.R.D. No 2, par. 224, section 14.1 of the Act came into force on June 30, 1998 with no retroactive effect being contemplated. To apply the new retaliation provision of the Act to acts occurring before the section came into force would be to attach new consequences to events that took place before the enactment. This would, according to the Tribunal, give the legislation retrospective effect, which is not generally permissible, and is not supported by the wording of the act. [115] The record indicates that Dr. Chopra's initial complaint is dated May, 13, 1998. To be considered thus as a retaliatory act under article 14.1 of the Act, the event contemplated by an allegation of retaliation must have occurred after June 30, 1998. It follows that the Tribunal cannot consider as retaliation actions or events that preceded June 30, 1998, namely Dr. Chopra's alleged exclusion from the Flumequine project in 1993, the Scott appointment in 1994, the Elanco incident in 1997, the appointment of Dr. Lachance in February of 1998. The only events to which section 14.1 of the Act can apply are the Zohair complaint in 1999, the appointment of Dr. Butler and Alexander in 1999 to acting positions and the suspension imposed on Dr. Chopra by Dr. Lachance in August 1999. (iii) Harassment [116] The Canadian Human Rights Act does not define what constitutes harassment but the case law does. In Hill v. Air Canada, 2003 CHRT 9, this Tribunal stated that the gravamen of harassment lies in the creation of a hostile work environment, which violates the personal dignity of the complainant. In Marinaki v. Canada (Human Resources Development), [2002] C.H.R.D. No 2, this Tribunal examined the elements that should be taken into consideration when determining if there has been harassment under section 14 of the Act. [117] In Marinaki, the Tribunal expressed the view that victims of harassment need not prove that they suffered pecuniary losses, that for a behaviour to amount to harassment, some element of repetition or persistence is usually required, although in some situations, a single, serious incident may be sufficient to constitute harassment (Marinaki, par. 188-191). As stated in Bobb v. Alberta (Human Rights and Citizenship Commission), [2004] A.J. No 117, in certain circumstances, a single incident may be enough to create a hostile work environment. In those circumstances, the nature of a conduct should be calculated according to the inversely proportional rule: the more serious the conduct and its consequences are, the less repetition is necessary; conversely, the less severe the conduct, the more persistence will have to be demonstrated. C. The relevant allegations [118] Given the Tribunal's ruling with respect to the Drennan complaint, the Liston comments and the Gunner incident, these matters do not form part of the issues to be adjucated by this Tribunal with respect to the present complaint. [119] The issues that need to be addressed in the context of the present complaint are three fold: firstly, the Tribunal will consider issues related to different appointment opportunities, namely the Scott appointment in relation to the corrective measures ordered to be put in place (1995), the appointment of Dr. Lanchance to the position of Director, BVD (1997), the self-appointment of Dr. Paterson to the position of Director, BVD (1998) and the appointments of Dr. Alexander and Butler as acting Chiefs (1999). Secondly, the Tribunal will consider events that were identified by the Complainant as potentially discriminatory or retaliatory, namely the comments made by Dr. Lachance at a BVD meeting (1998), the suspension imposed on Dr. Chopra by Dr. Lachance (1999), the Zohair complaint (1999) and the Elanco complaint (1997). Thirdly, the Tribunal will consider the allegation of systemic discrimination made by the Complainant. [120] As previously stated, the Complainant alleges in his complaint forms, as well as in the particulars attached to one of the complaint forms and his additional allegations, that he was discriminated and retaliated against by Health Canada, that he was harassed and defamed by Health Canada. The Tribunal will assess these allegations in relation to the following issues: discrimination, retaliation and harassment. [121] In his Statement of particulars, Counsel for the Complainant states that, although Dr. Chopra's complaint is based on evidence of discrimination in a number of particular incidents, all of these incidents must be viewed in context and as part of a pattern which is the result of systemic racial discrimination. Accordingly, it is imperative that the incidents described in the complaint be considered as a group and in relation to each other, so that proper connections can be drawn and conclusions made regarding the impact of systemic discrimination in the workplace. [122] In his final submissions, Counsel for the Respondent argued that for many of the allegations of discrimination made by Dr. Chopra, there is no evidenciary foundation for a finding of discrimination but only bare allegations of discrimination and racism and nothing more and nothing from which the Tribunal can draw an inference of discrimination. For Counsel for the Respondent, the allegations made by Dr. Chopra are not credible, none have been corroborated by anyone else. For Respondent's Counsel, credibility is the decisive factor in this case. Furthermore, in his view, allegations not made in a timely manner should be looked at suspiciously. [123] In his oral submissions, Counsel for the Complainant urged the Tribunal to review the background to this case and that part of the background are the prior Tribunal decisions in NCARR and Chopra (Hadjis decision) and that these decisions provide the context in which this complaint rests. For Complainant's Counsel, this Tribunal cannot ignore the findings made by these Tribunals and the context in which they were made given that they are contemporaneous to some of the events related to this complaint and would have affected Dr. Chopra's career opportunities. [124] In this respect, Counsel for the Complainant argued that it will be extremely helpful for the Tribunal to know that the Department was found to have engaged in discriminatory acts in a period immediately preceeding or contemporeaneous to the events that the Tribunal is concerned about. Counsel for the Complainant further argued that if discrimination happened in 1991, given the history of the Department, discrimination will also have happened after that year. [125] The record shows that in the Hadjis decision, the Tribunal found that the candidate who obtained the position of Director, Human Prescription Drugs in 1991 was not qualified, that Dr. Chopra had been discriminated against with respect to this position and that, had Dr. Chopra assumed the duties of Director, Human Prescription Drugs at that time, he would have acquired the recent management experience required to be screened into the competition (Hadjis decision, par. 266). [126] In the NCARR decision, the Tribunal made a series of findings, notably: There is a significant under-representation of visible minorities in senior management in HC. The failure of visible minorities to progress into management cannot be explained by a lack of interest or lack of technical professional skills on the part of these visible minorities. A common theme in the evidence is that visible minorities in HC lack the necessary managerial experience to move into senior management positions. The necessary managerial experience can be obtained through acting positions, and through exercising supervisory responsibilities and through management training programs. Acting positions constituted a very large part of the total staffing action in HC during the period 1991 to 1995. Acting appointments were often made without a competition and on an informal basis. As a result, potentially qualified persons are not considered for appointment or when an acting appointment is challenged, the subsequent selection process is affected by an unintended bias so that the person initially appointed is usually confirmed in the position. Visible minorities proportionately were given less acting positions than non-visible minorities. Visible minorities were at a disadvantage with respect to how they found out about acting positions. Non-visible minorities were more often asked by their managers to apply whereas visible minorities were required to be more proactive in finding out about opportunities for acting positions. Visible minorities received less management related training than non-visible minorities. Non-visible minorities were more often informed of management training opportunities by their managers whereas visible minorities had to be much more self-reliant in finding out about these opportunities. There is a minority disadvantage in terms of supervising other employees. Management training and having held an acting appointment increased the likelihood of supervisory responsibility for both non-visible minorities and visible minorities. But in the case of non-visible minorities with management training or non-visible minorities who held acting positions, there was a significant increase in the likelihood of being supervisors as compared to visible minorities. Visible minorities are viewed by senior management as culturally different within HC and are not considered suitable for managerial positions. [127] The Tribunal concluded in the NCARR case that Health Canada had engaged in certain staffing practices, contrary to section 10 of the Canadian Human Rights Act, ordered Health Canada to adopt and implement a special corrective measures program, some measures being of a permanent nature, others of a temporary nature. (i) Issues related to different appointment opportunities [128] In his complaint forms, dated May 13, 1998 and January 12, 1999, as well as in his additional allegations dated June 27, 1999, the Complainant alleges that throughout his career at Health Canada he had been denied career opportunities. He cites a series of examples in support of his general allegation that he was denied career opportunities, that none of his white co-workers have been treated in a similar manner and that the reasons he has been treated in an adverse differential manner is due to his race, colour and national or ethnic origin. [129] The Complainant further alleges that Health Canada consistently bypassed well-qualified visible minority candidates for management positions, that the general practice of the department is to recruit EX's from within Health Canada, unless there are qualified visible minority candidates interested in these positions, at which time the department recruits externally. [130] The Tribunal will hence analyse the different appointment opportunities that the Complainant might have been denied in the period extending from 1993 to 1999 in as much as these apppointment opportunities have not been ruled upon by other Tribunals. a) The Scott appointment (1995) [131] In the particulars to his amended complaint form, Dr. Chopra states that there are at least two recent examples where he was denied career opportunities. The Complainant goes on to say that the first occurred in 1997 (corrected to 1993), when he met Dr. Gunner, Director General of the Food Directorate at the time, who asked him what could be done to make the situation equitable for him. Dr. Chopra responded that he would like to be considered for the position of Director, Bureau Veterinary Drugs (BVD) which was vacant. Dr. Chopra then applied for the position but was screened out. When he appealed this staffing action, his appeal was dismissed and he was told that he was not successful because he lacked management and media experience as well as international experience. [132] The Complainant alleges in his particulars that none of this is true, that he had management experience prior to working for Health Canada and since joining the department most recently as the Acting Chief, Central Nervous System, Anti-Parasitic and Endocrine Division for a four month period in 1996. In terms of media experience, the Complainant asserts that he has extensive experience through his community work in dealing with racism and through his complaints. As to the international experience, the Complainant states that he is a fellow of the World Health Organization. [133] The Complainant goes on to state that the successful candidate for the position of Director, BVD, was Dr. Tim Scott, that Dr. Scott is Caucasian and is from Agriculture Canada. The Complainant alleges that soon after being appointed to the position, it became evident that he lacked both the skills and the expertise for the position. The Complainant further alleges that Dr. Scott went at one point on special assignment to the Director General of the Food Directorate, Dr. George Paterson, and that the latter made himself the Acting Director, while also remaining as the Director General and maintaining Dr. Scott on special assignment to him. The Complainant then expresses the belief that this was done to prevent him from applying for the position of Director of the Bureau of Veterinary Drugs. [134] Finally, in his complaint, the Complainant refers to the fact that the Chief position of the Central Nervous Systems, Anti-Parasitic and Endocrine Division, was eliminated in February of 1997 with an amalgamation and expresses the belief that the Chief position was abolished to prevent him and other visible minority members of the BVD from applying for it through an open competition. [135] As stated above, the Tribunal will only look at the events that occurred after the decision was made to order corrective measures following Dr. Casorso's successful appeal and will not revisit issues dealt with and decided upon by the Hadjis Tribunal. [136] The Complainant is of the view that the deficiencies that the Department was required to correct should have resulted in him being reconsidered for the position, in addition to Dr. Casorso, given that the decision of the Public Service Commission Appeal Board benefits every candidate and that the fact that the Complainant was not contacted by the Department should be considered retaliation. [137] According to Counsel for the Complainant, Dr. Chopra ought to have been given the opportunity to participate in the new competition, that had he been given the opportunity to have the benefit of the corrective measures, he would have been screened into the competition and should have been appointed to the position in issue after the corrective measures. [138] The evidence shows that Dr. Breton, as Dr. Chopra and Dr. Casorso, were screened out from the first competition because they did not have the management experience nor did they have experience as a departmental representative with the media, two essential conditions in order to be screened into the competition. The record also indicates that Dr. Chopra and Dr. Casorso appealled the decision and that Dr. Chopra's appeal was dismissed but Dr. Casorso's appeal was allowed. [139] The evidence also indicates that, after the successful appeal of Dr. Casorso, Dr. Scott was notified of the corrective measures to address the Appeal Board findings. The evidence shows that Dr. Chopra was not contacted after Dr. Casorso's successful appeal. In fact, the evidence indicates that, except for Dr. Carsorso, none of the canditates that had been screened out the first time were contacted. Dr. Breton, who is not a visible minority, testified that he himself was not contacted after Dr. Casorso's successful appeal. [140] In his oral submissions, Counsel for the Respondent argued that there were no reason to contact Dr. Breton or Dr. Chopra. Dr. Chopra was complaining before the Appeal Board of bias. The record shows that before the Appeal Board, Dr. Chopra stated he had extensive experience dealing with the media in the private sector. The Appeal Board noted that the experience required for the position was experience as a departmental representative with outside agencies. The Board rejected the contention that Dr. Chopra's experience with the media as a private citizen was the same as experience as a departmental representative with the media. In the case of Dr. Chopra, recent and significant experience in the past 5 and 10 years does not appear to have been a determining factor. [141] The record indicates that one of the corrective measures was that the temporal criteria which required that experience in managing a scientific or medical or veterinary organization with multi-faceted programs, be recent within the past ten years and significant at least five years were to be eliminated. [142] Asked if with the elimination of the criteria, the ten year and five year requirements, he thought he would have met that experience requirement, i.e. in managing a scientific or medical or veterinary organization with multi-faceted programs, Dr. Chopra stated that he should have been given an opportunity, like Dr. Casorso to meet with the Board and explain how he would meet the qualification for which he was screened out, that he had prior experience, management training, working experience of training managers to be better managers in scientific and medical organization. In his testimony, Dr. Chopra further highlighted the fact that recent experience was not necessary because he had done the job, because he had gotten training and had the knowledge requirement, that he met the media requirement and had a very sensitive way of dealing with situations. [143] It must be noted here that, in his 2001 ruling, Mr. Hadjis found that Dr. Chopra was not the victim of adverse differential treatment with respect to the Scott competition for the position of Director, Bureau of Veterinary Drugs. Mr. Hadjis found, in this respect, that although he was screened out for lack of recent management experience, Dr. Chopra was also deemed to lack the second qualification of experience in dealing with outside organizations and that no evidence was adduced to indicate that he did in fact possess the latter qualification nor that his lacking this experience was related to discrimination by the Respondent. Mr. Hadjis concluded that he was satisfied that Dr. Chopra was not qualified for the position (Hadjis decision, par. 288). In his testimony, Dr. Chopra stated that he did not agree personally with the findings of Mr. Hadjis with respect to his media experience. [144] The Tribunal finds that, even if Dr. Chopra had been contacted after Dr. Carsorso's successful appeal, he would have still been lacking one of the essential conditions required in relation to the position of Director of the Bureau of Veterinary Drugs, given Mr. Hadjis's finding. [145] The Tribunal thus finds that the Complainant has failed to establish a prima facie case of discrimination with respect to this aspect of the Scott's appointment. The mere fact that Dr. Chopra was not contacted is insufficient to establish a prima facie case of discrimination. The Tribunal finds that, even if the Complainant is right in saying that he should have been contacted after the corrective measures, there is no proven material facts that give credence to the allegation that the reason the Complainant was not contacted was because of his ethnic origin. The evidence shows that Dr. Breton, who is not a visible minority, was also not contacted after the corrective measures. [146] Furthermore, the Tribunal finds that the fact that Dr. Chopra was not contacted after the successful appeal of Dr. Casorso cannot be considered retaliation on the part of Health Canada. As stated earlier, section 14.1 of the Act only took effect on June 30, 1998 and had no retroactive effect. [147] Finally, the Tribunal finds that no evidence was lead with respect to the elimination of the Chief position CNS and its alleged purpose, i.e. to prevent the Complainant and other visible minority members of the Bureau of Veterinary Drugs from applying for the position through an open competition. Hence, the Tribunal will not consider this issue. b) The Self-appointment of Dr. Paterson to the position of Director, BVD (1997) [148] The evidence shows that, as of November 12, 1996, Dr. Scott was replaced by Dr. Landry, Chief of the Pharmaceutical Assessment Division, as Director of the Bureau of Veterinary Drugs on an acting basis. The record shows that Dr. Yong had acted for four months in that position before Dr. Landry. [149] Dr. Chopra, who had completed a four month acting assignment as Chief CNS, in February 1997, testified that he was not given the opportunity to act in this position afterwards, Dr. Paterson, the Director General, appointing himself, according to Dr. Chopra, acting director of the Bureau. According to Dr. Chopra, Dr. Paterson cumulated the two positions, that of Director General and Acting Director, BVD, until Dr. Lachance was appointed Director in February 1998. Dr. Chopra testified that there was no competition held in order to fill the position of Director. [150] Drs. Paterson and Lachance were not called as witnesses. This said, the issue is, in the context of the present complaint, whether or not the actions taken by the Department were discriminatory, more specifically, whether or not the decision not to fill the position of Director of the Bureau of Veterinary Drugs or to give acting appointments to other individuals, including evaluators from the Bureau, was discriminatory. [151] It must be noted here that both Drs. Yong and Landry had been screened out of the competition for the position of Director of the Bureau of Veterinary Drugs in 1993 in relation to the Scott competition as was Dr. Chopra but were nevertheless asked to act as Director of the Bureau of Veterinary Drugs for a limited period of time. One striking difference is that both Drs. Yong and Landry were chiefs which was not the case for Dr. Chopra and had more managerial experience than Dr. Chopra who had just completed a four month acting assignement. [152] Furthermore, given that if Dr. Chopra had become acting Director, he would have become the boss of his boss, Dr. Yong, a situation which from a purely managerial point of view, could have been problematic given that, once the acting assignment completed, Dr. Chopra would have gone back to his position of drug evaluator in the Human Safety Division. [153] The Tribunal is of the view that the normal course of action is to appoint the person immediately below, here Drs. Yong and Landry, who were Chiefs and had several years of experience as a chief. The evidence shows that none of Dr. Chopra's colleagues, i.e. other evaluators, were asked to fill the position of Director of the Bureau of Veterinary Drugs on an acting basis. The Tribunal agrees with Respondent Counsel's statement that there is nothing wrong or unusual per se in management deciding to eliminate a layer of management for a period of time. [154] This said, the Tribunal does not have to determine with respect to the legitimacy of Dr. Paterson cumulating two positions at the same time whether or not Health Canada was in compliance with the NCARR Order, as ruled previously by member Groarke. Furthermore, the evidence shows that at the time of the self-appointment of Dr. Paterson to the position of Director of the Bureau of Veterinary Drugs, Health Canada was being monitored for its compliance with the NCARR Order by the Commission. The evidence shows that the Commission found Health Canada to be in compliance. No evidence was tendered to suggest otherwise. [155] The Tribunal thus finds that, given the circumstances, the decision of the Department not to ask any of the evaluator in the Human Safety Divison and the Pharmaceutical Assessment Divison, the only two divisions that existed at the time in the Bureau of Veterinary Drugs, to act as Director of the Bureau appears to have been reasonable and cannot be considered discriminatory. [156] Hence, the Tribunal finds that the Complainant has not made with respect to the issue of the self-appointment of Dr. Paterson as Director of the Bureau of Veterinary Drugs for a period of time in 1997 a prima facie case of discrimination. c) The Lachance appointment (1998) [157] In the particulars attached to his amended complaint form, the Complainant states that a second example of him being denied career opportunities occurred on February 9, 1998 when Dr. Paterson announced that Dr. André Lachance would be deployed to fill the Director position as Dr. Scott had retired, that Dr. Lachance was also from Agriculture Canada and lacked the required training and experience in the relevant fields of veterinary science and drug regulatory work of the Bureau. The Complainant goes on to say that the National Capital Alliance on Race Relations (NCARR) had opposed his appointment as being in violation of the Tribunal ruling in the NCARR complaint. [158] With respect to Dr. Lachance's appointment, the Complainant filed additional allegations on June 27, 1999. In these additional allegations, the Complainant states that he maintains that Dr. Lachance, who is Caucasian, did not have the prerequisite education, such as a degree in veterinary science, to assume the position, that he raised an objection with the Director General, George Paterson, about this appointment. The Complainant goes on to state that, in response to his objection to the appointment, the Director General denied that this expertise was required. [159] In the the particulars to his amended complaint form, the Complainant refers to the fact that there was a petition circulating concerning Dr. Lachance's culturally insensitive remark that he likes visible minorities when he was formally presented to the employees of the Bureau of Veterinary Drugs on February 9, 1998. The Complainant asserts in his particulars that, once again, that he and other visible minority candidates have been prevented from applying for a position for which they were well qualified, in favour of less qualified white candidates who have obtained the position without going through a competitive process. [160] Drs. Paterson, Scott and Lachance were not called as witnesses. With respect to Dr. Lachance, there was a debate about him being called as a witness. The record shows that, at first, Counsel for the Respondent, wanted to file a medical report that would have established Dr. Lachance's inability to testify given his medical condition. The Tribunal never got to see the report. Counsel for the Complainant objected to the filing of the report and required that the physician having written the report be required to testify so as to be cross-examined by Complainant's Counsel. In the end, neither Dr. Lachance nor his physician were called as witness. In his final submissions, Counsel for the Complainant asked that the Tribunal make an adverse inference with respect to the fact that the Respondent did not call Dr. Lachance as a witness and declined to call his physician. [161] The evidence shows that, in relation to Dr. Lachance's appointment, a petition was sent to the Professional Institute of the Public Service of Canada. The evidence indicates that the petitioners considered the appointment of Dr. Lachance to be one of many appointments and promotions where the merit principle had been circumvented. The petitioners were complaining about the fact that Dr. Lachance was coming from Agriculture Canada to replace Dr. Scott without competition while Dr. Scott had been appointed through a competition. [162] In his testimony, the Complainant stated that, after the appointment of Dr. Lachance, he raised some concerns about his appointment. These dealt firstly with Dr. Lachance's qualifications and secondly with the comments he made at a meeting after his appointment. Dr. Chopra further stated that he complained to Dr. Paterson about the racially insensitive corporate culture which, despite the Canadian Human Rights Tribunal's decision in NCARR continued to prevail among the senior management of the Department. Dr. Chopra testified that Dr. Parterson did not talk to him about whether or not the appointment of Dr. Lachance was consistent or inconsistent with the NCARR Tribunal Order. Dr. Chopra expressed the view that Dr. Paterson was part of the problem at Health Canada. [163] In his testimony, the Complainant reiterated his belief that Dr. Lachance lacked the required training and experience in the relevant fields of veterinary science and drug regulatory work of the Bureau. The Complainant also expressed the belief that he and other visible minority candidates had been prevented from applying for a position for which they were well qualified in favour of less qualified white candidates who had obtained the position without going through a competitive process. [164] Dr. Chopra testified that he was never contacted to see if he was interested in the Director's position, on an acting basis, prior to the appointment being made and expressed the view that he should have been considered. [165] Dr. Chopra was asked, in relation to the Statement of Qualifications for the Director position, if he met the qualifications for the period 1996-1998. Dr. Chopra testified that he met the educational qualifications, as well as the experience qualifications. Having had recent management experience as the Acting Chief, for four months, of the CNS Division, from October 1996 to February 1997, he considered himself as fulfiling all qualifications with respect to experience. [166] Dr. Chopra further stated that he also met the knowledge qualifications as well as all the training qualifications. He stated that nobody had formal training of the kind he had, referring to the Senior Management Development Program, SMDP. With respect to knowledge of management techniques, Dr. Chopra referred to his experiences outside the Department and indicated that he had full knowledge of evaluating and monitoring drug residues, thorough knowledge of existing programs and activities in 1996 to 1998 as well as the Food and Drugs Act and Regulations. Dr. Chopra further stated that he had enormous experience and the ability to manage both human and financial resources, in every capacity, that he met all the other features related to the abilities required for the position as well as the personal qualities. [167] For Complainant's Counsel, this case would have been an ideal situation to promote visible minorities, to implement the principles of Employment Equity and to give a visible minority experience as a manager as opposed to swapping two other employees. For him, human rights supersede any other consideration. [168] On the issue of Dr. Lachance's appointment to the position of Director of the Bureau of Veterinary Drugs, the Tribunal heard the testimony of Ms. Gail Mclean. Ms. Mclean was at the time Director of Executive Services at Health Canada. [169] Ms. Mclean testified that Dr. Scott, an EX-2, wanted to retire but that he did not want to be financially penalized, given that he did not have the age or the years of service. Ms. Mclean testified that, at the time, there existed a program, the Alternate Exchange Program, where a person could switch job or position with someone who was about to lose his job and someone who wanted to retire. The evidence shows that, at Agriculture Canada, Dr. Lachance's position had been declared surplus. Ms. McLean testified that when the decision was made to swap Dr. Lachance and Dr. Scott, the Department did not look at the impact on visible minorities. Ms. Mclean further testified that Dr. Lachance was found to meet the requirements for the position of Director of the Bureau of Veterinary Drugs. [170] Ms. Mclean explained that in order to be eligible for a SWAP, both candidates had to be at the same managerial level. The evidence shows that Dr. Lachance was an EX-2 at Agriculture Canada. Ms. Mclean testified that the Department had to consider a SWAP prior to initiating any staffing activity of any other kind, whether it be a deployment or a competitive process. She testified that, at the time, there was no vacancy for the position of Director of the Bureau of Veterinary Drugs. Ms. Mclean further testified that the decision to have a SWAP had nothing to do with Dr. Chopra, that it was initiated by Dr. Scott. The Tribunal finds her evidence to be credible. Even if Dr. Paterson was not called as a witness, the evidence shows that Ms. Mclean was directly and immediately involved in the SWAP process between Drs. Landry and Scott. [171] The evidence shows that the SWAP became effective on March 31, 1998 after Dr. Scott had left Health Canada and Dr. Lachance had accepted the offer to become Director of the Bureau of Veterinary Drugs. [172] The Tribunal finds that, given the SWAP procedure that was used to appoint Dr. Lachance, given the testimony of Ms. Mclean as to the reasons for using this procedure, i.e. Dr. Scott desire to retire, given her testimony that the decision to have a SWAP was in no way related to Dr. Chopra, the Complainant has not made a prima facie case of discrimination. The context and circumstances surrounding Dr. Scott's departure from Health Canada and the arrival of Dr. Lachance do not reflect any discriminatory animus on the part of Health Canada. [173] The Tribunal hence finds that the fact that the Department did not offer Dr. Chopra the opportunity to compete for the position of Director of the Bureau of Veterinary Drugs was not discriminatory, that the decision was made to truly accommodate Dr. Scott. d) The Alexander appointment (1999) [174] In his additional allegations dated June 26, 1999, the Complainant states that a meeting on June 2, 1999 with Ms. Kerrie Strachan, Human Resources Officer for the Branch (and former Human Rights Coordinator), it was announced that the Department would proceed with a four month appointment which carried no rights to appeal. The Complainant adds that Ms. Strachan announced that at the end of the four months, the position would be open and a competitive process including an exam and a Board would be held and that when she was questioned about the Tribunal Order in NCARR and its contravention, Ms. Strachan refused to discuss the issue and the meeting terminated. [175] The Complainant goes on to state that he believes that this appointment, as well as the previous opportunities denied him in 1997 and 1998 are overtly discriminatory and in direct contravention of the Canadian Human Rights Tribunal Order in NCARR which required Health Canada to develop practices to remove systemic barriers to the advancement of visible minority employees and remedy past discrimination. For the Complainant, it is clear that he was not considered for the positions, that the Department would not rescind Dr. Alexander's appointment and that the Department had taken actions which constitute retaliation against him because of having filed his human rights complaint, in that he was qualified for these positions and had been bypassed because of the harassment complaint he had filed. [176] In his additional allegations, dated June 26, 1999, the Complainant reiterates that in May, 1999, Dr. Lachance appointed Dr. Ian Alexander as Acting Chief of the Human Safety Division, for a period of four months. The Complainant further expresses the belief that Dr. Alexander, who is Caucasian, did not have the experience and educational background required for this position. [177] The evidence shows that, on May 6, 1999, an announcement was made, at an all staff meeting, that Dr. Yong, the Chief of the Human Safety Division, would be on assignment for a year and that as of May, 5, 1999, Dr. Ian Alexander would be the Acting Chief of the Human Safety Division for a period of four months. The evidence shows that within the Bureau of Veterinary Drugs, Dr. Alexander was an evaluator in the Pharmaceutical Assessment Division, working under the authority of Dr. Landry whereas Dr. Chopra was an evaluator in the Human Safety Division, working under the authority of Dr. Yong. The evidence also shows that before being offered to Dr. Alexander, the acting position was offered to a visible minority i.e. Dr. Sharma, an evaluator in the Pharmaceutical Assessment Division but that the latter refused the acting assignment. [178] The evidence shows that, with respect to the position of Chief of the Human Safety Division, Health Canada initially considered the possibility of filling this position with an employee on a Career Assignement Program (CAP), that the only qualified and available applicant was not interested in this as a CAP assignment, that a decision was made to conduct an internal competitive process for an acting appointment of approximately one year, as well as to have someone act in the position for a short period while the competitive process was conducted and that in light of some proposed changes to the organization, it had been decided that prior to posting this acting assignment, a review of the classification of the position would be conducted. [179] In his testimony, Dr. Chopra asserted that there was no notice posted for the Acting position of Chief, that he was not made aware of the proposal to conduct a competititon for the acting appointment, that he was not invited to apply and was not considered. Dr. Chopra stated that he learned ex post facto of the appointment of Dr. Alexander. Dr. Chopra further testified that Dr. Alexander had not worked in the Human Safety Division, that he did not have the required qualifications for the positions and had no experience in it and that he was appointed without competition by a decision of Dr. Lachance. Dr. Chopra moreover stated in his testimony that he was the most qualified person for the job, that he had recently obtained line management experience having acted as Chief, for four months, in one of the Animal Safety Divisions. Dr. Chopra further added that the position was directly in his immediate area of work, that he was the expert in that area, that he had international experience, having a WHO fellowship. [180] Dr. Chopra stated in his testimony that he would have been interested in acting for the Chief of Human Safety position in 1999. He further stated that he found it odd that in a memo written by K. Strachan, from Human Resources, on April 30, 2003, many years after the appointment of Dr. Alexander as acting chief of the Human Safety Division, the latter would state, with respect to the question as to why people were chosen to act as Chief of the Human Safety Division in May 1999, that Dr. Lachance was trying at the time to ensure that staff who were asked to act in the position were not intending on competing for the position when it was to be staffed permanently, so the permanent staffing would be fair. According to Dr. Chopra, you give the acting appointments and then quite frequently, 93 percent of the time, people who are acting get the job. [181] The evidence shows that Dr. Chopra objected to the appointment of Dr. Alexander, found it to be discriminatory and in direct contravention of the NCARR Tribunal Order. A letter to this effect, dated May 31, 1999, signed by Dr. Chopra and two other evaluators, was sent to the Chief Commissioner of the Canadian Human Rights Commission. In the letter, Dr. Chopra and his colleagues ask that the appointment of Dr. Alexander be rescinded and that visible minority members of the Human Safety Division be offered the same appointment. [182] At the hearing, Counsel for the Respondent disputed the assertion made by Dr. Chopra that Health Canada was in contravention of the NCARR Tribunal Order and referred to the ruling previously made by member Groarke where the latter ruled that any question of compliance must be dealt with in the Federal Court. For his part, Counsel for the Complainant stated that it was not his intention to put in issue whether there was compliance or not with the NCARR Order. [183] The record shows that in a letter dated June 8, 1999, the Chief Commissioner's Office replied that the Tribunal Order in the NCARR decision required that Health Canada develop programs and practices to remove systemic barriers that have prevented the advancement of visible minority employees and implement initiatives to remedy past discrimination and that the overall goal of the Order was to ensure that visible minority representation at Health Canada reached appropriate levels. The letter goes on to say that the Tribunal Order does not preclude the promotion of non-visible minority candidates. The letter further states that the purpose of the Commission's monitoring function under the Tribunal Order is to assess whether Health Canada is making reasonable progress toward compliance with the Permanent and Temporary Measures outlined in the Tribunal Order and that to date, the Commission's analysis have indicated that overall, such progress is being achieve. [184] The Tribunal, given the letter sent by the Canadian Human Rights Commission to Dr. Chopra where it is clearly stated that Health Canada by appointing Dr. Alexander as acting Chief of the Human Safety Division was not contravening the Tribunal Order in NCARR, takes note of the fact that Health Canada did not contravene the NCARR Order when it appointed Dr. Alexander as Acting Chief of the Human Safety Division. [185] Furthermore, the Tribunal finds that the Complainant has failed to make a prima facie case of discrimination with respect to the appointment of Dr. Alexander as acting Chief of the Human Safety Division in May 1999. The record shows that Dr. Alexander had the experience and educational background required for this position. Dr. Chopra might have perceived that he had been discriminated against but mere perceptions are not sufficient to establish a prima facie case of discrimination [186] This said, the Tribunal finds worth nothing that Dr. Chopra stated in a document that Dr. Alexander was brought in to harass people in the division. This view clearly shows that, from the beginning, Dr. Chopra was ill-disposed towards Dr. Alexander. It reflects poorly on Dr. Chopra's credibility with respect to any allegation of discrimination in relation to the appointment of Dr. Alexander. [187] As for Dr. Chopra's claim that the appointment was retaliatory, the Tribunal finds that Dr. Chopra was not clear as to what constituted retaliation with respect to the Alexander appointment. The Tribunal finds that the Complainant has not established that the appointment of Dr. Alexander in May 1999 as acting Chief of the Human Safety Division constitutes retaliation on the part of Health Canada for the filing of a human rights complaint by Dr. Chopra. e) The Butler appointment (1999) [188] The evidence shows that, in July 1999, Dr. Kelly Butler, Chief of the National Biorepository Centre at Health Canada, was offered a deployment to the position of Chief of the newly created Policy and Program Division. According to the evidence, a deployment is the move of an employee from one position to another with the same occupational group. The evidence shows that Dr. Chopra and other of his colleagues grieved the deployment of Dr. Butler before the Public Service Commission of Canada and that their grievance was upheld, the deployment investigator concluding on November 9, 2000 that the deployment of Dr. Butler was made in contravention of the Public Service Employment Act. [189] The evidence also shows that, as of September 20, 1999 for a period of four months, up until January 17, 2000, while remaining Chief of the newly created Policy and Program Division, Dr. Butler became the Acting Chief of the Human Safety Division, an appointment made by Dr. Lachance. Dr. Butler replaced Dr. Alexander in the acting position. The evidence further shows that Dr. Butler was reappointed acting Chief of the Human Safety Division from January 17, 2000 to May 16, 2000, pending the classification of that position initiated in December 1999 and that she would be acting as Director of Bureau of Veterinary Drugs during the absence of Dr. Lachance, from January of 2000 to February of 2000. [190] Asked why it was necessary to fill the position held by Dr. Alexander again on September 20, 1999, Dr. Chopra stated that it was because the acting term for Dr. Alexander had expired so either his term would have to be extended or someone else would have to be appointed. Dr. Chopra further stated in his testimony that Dr. Butler was from outside the Bureau, that she had never worked in the Bureau, that she had no idea or knowledge of the Human Safety Division's work and that she was an unqualified person in his opinion. Asked if he had acted in the position of Chief of Human Safety at any time, Dr. Chopra testified that he had acted in 1988 for six weeks or so, before Dr. Yong was appointed, and afterwards, off an on whenever he was asked to, up to about 1992. [191] Asked what he thought about Dr. Butler's appointment, Dr. Chopra stated that he would disagree with her appointment because he was the most senior scientist in the Human Safety Division, but that he was never asked to act, that it was always someone from outside the division and white, first Dr. Alexander, then Dr. Butler, both, according to Dr. Chopra, unqualified to be in that division. [192] According to Dr. Chopra, Dr. Butler was not bilingual while the position required for the person to be bilingual. Asked if, in his view, he would have been qualified to act in the Chief of Human Safety Division position, Dr. Chopra answered that if he was qualified back in 1988 and off and on appointed, then he certainly would have been qualified, even from Health Canada's point of view. [193] Dr. Chopra testified that he was the most qualified candidate, had all the scientific qualifications, the interpersonal skills, the negotiating skills, according to his appraisals, that he was courteous and bilingual, had international experience, had been a fellow of the WHO, had management training, given by the Public Service Commission, had worked as a trainer of managers in Health Canada for three years. Dr. Chopra further noted that Dr. Lachance who had made racist remarks was appointing white people into the very job that was in his immediate neighbourhood and capacity. [194] In relation to both the Alexander and Kelly appointments made by Dr. Lachance, Counsel for the Complainant argued that both times Dr. Chopra was denied an opportunity to act in a management position. Counsel for the Complainant also argued that it was troubling that the department would deny Dr. Chopra an opportunity to act by giving that position to Dr. Butler, when she already had another job if not two other jobs and was new to the Bureau of Veterinary Drugs. For him, the question that begs an answer is: why would you not give the acting position to Dr. Chopra in those circumstances. For Complainant's Counsel, the conduct of Health Canada management raises issues and questions about the credibility of the Department and the discrimination isssue. [195] Counsel for the Complainant asserts that there was a position available to Dr. Chopra, that Dr. Chopra was qualified for it, that others were placed into the position repeatedly and that race was a motivating factor. Moreover, for Counsel for the Complainant, the Department did not come up with a valid explanation with respect to why Dr. Chopra was not provided with certain opportunities to act. Counsel for the Complainant furthermore asserts that all of this adds up to discrimination and underscores the fact that the findings made by the NCARR and the Hadjis Tribunals clearly established the fact that Health Canada was an organization where racial discrimination existed at the time of the events covered by this complaint. [196] Counsel for the Respondent, for his part, argued that even if the evidence is to the effect that Dr. Chopra was not invited to apply to the acting position and that a competition was not held, that does not mean that discrimination occurred. Just as Dr. Chopra was not invited to apply for the acting position, nor were any of his colleagues from the Human Safety Division invited to apply or, in fact, anyone else regardless of whether they were visible minorities or not. Everyone was thus treated the same. [197] Counsel for the Respondent further argued that Health Canada was not obliged to offer Dr. Chopra any acting position which came up and that the failure to offer him the position regardless of whether he was qualified or not does not mean that a prima facie case of discrimination has occurred. For whatever reason, he stated, Health Canada did not offer the position on an acting basis to any of the people in the Human Safety Division, and a prima facie case is not proven on this basis. [198] The issue here is not whether or not Dr. Chopra should or would have become Chief of the Human Safety Division within the Bureau of Veterinary Drugs but whether or not he was denied an acting position because of his race or ethnic origin. Hence, it does not matter whether or not the two individuals who acted as Chief of the Human Safety Division in 1998 obtained or not the position later on. The issue is: was Dr. Chopra who for years had shown interest in accessing managerial positions and who had acted in the past as Chief of the Human Safety Division (1988) as well as Chief of the Central Nervous System, Endocrine and Antiparasitic Drugs Division (1996-1997) not offered the acting position because of his ethnic origin. [199] The appointment of Dr. Butler as acting Chief of the Human Safety Division raises a number of questions. Dr. Butler was appointed Chief of a newly created division, the Policy and Program Division, in July 1999. Dr. Butler came from outside of the Bureau of Veterinary Drugs which is not in and of itself unusual, the record shows. This said, it would have taken her some time to adapt to her new tasks and run the division efficiently. [200] Now, the record indicates that as early as September 1999, Dr. Butler was asked to act as Chief of the Human Safety Division for a period of four months while being Chief of the Policy and Program Division. Furthermore, the record shows that in January 2000, she was asked again to act as Chief of the Human Safety Division while remaining Chief of the Policy and Program Division and, in addition, was to act at the same time as the Director of the Bureau of Veterinary Drugs in the absence of Dr. Lachance. [201] The Tribunal finds it odd that a person new to the Bureau would be entrusted with so many tasks at the same time. Dr. Butler was not call as a witness, nor was Dr. Lachance to provide the Tribunal with an explanation as to why she was considered to be the only person who could fill the temporary vacancies in the position of Chief of the Human Safety Division. Given that Dr. Lachance was the person making these appointments and given that Dr. Lachance was not called as a witness, the Tribunal is left without an explanation as to the logic and the basis of these different acting appointments given to one person, new to the Bureau, except for the reason provided four years after the fact by Mr. Strachan in a memo dated April 30, 2003. As mentioned earlier, in her memo, Ms. Strachan who was not called as a witness, states with respect to the question as to why people were chosen to act as Chief of the Human Safety Division in May 1999, that Dr. Lachance was trying at the time to ensure that staff who were asked to act in the position were not intending on competing for the position when it was to be staffed permanently, so the permanent staffing would be fair. The Tribunal finds it odd that such an explanation would come up four years after the fact and frankly finds the explanation hard to believe. [202] This said, the Tribunal cannot ignore the fact that Dr. Lachance was the person making the acting appointments and that he was at odds with Dr. Chopra over many issues. In addition, the Tribunal cannot ignore the fact that Dr. Chopra had shown in a recent past that he wanted to acquire managerial experience, that he had acted as Chief of the Human Safety Division in 1988 for a period of six weeks, that he had acted as Chief of the CNS Division for a period of four months at the end of 1996 and in early 1997 and thus had recent managerial experience. Moreover, the Tribunal cannot ignore the fact that Dr. Lachance had made comments with racist overtones at a meeting of the Bureau of Veterinary Drugs in February 1998. Finally, the Tribunal cannot also ignore the fact that Health Canada had been found to have, in the past, discriminated against Dr. Chopra and that it had also been the object of a Tribunal Order in NCARR, the Tribunal having found that visible minorities were being discriminated against in relation to their access to managerial positions. These are all circumstances that the Tribunal cannot ignore in determining if the Complainant has made a prima facie case of discrimination. [203] As stated earlier, 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. Simpsons Sears Ltd. (O'Malley), [1985] 2 S.C.R. 536 or, in other words, one where the evidence, if believed, and not satisfactorily explained by the respondent, will suffice for the complainant to succeed. [204] As stated in Basi v. Canadian National Railways Company, [1988] C.H.R.D. No 2, the inference of discrimination that must be drawn from the circumstantial evidence in order to support the complainant's case must be consistent with the allegation of discrimination and inconsistent with any other rational explanation. In cases such this one, as stated in Basi, much depends on the ability of a Tribunal to draw inferences, (which are reasonable if not in fact compelling) from the conduct of the employer. Once these inferences are raised, the employer has an onus of explaining what his motives were, other than what they appeared to be. [205] The Tribunal is mindful of the fact that Dr. Chopra's credibility with respect to the allegations of discrimination he has made are an issue in the present case. This said, the Tribunal must nevertheless assess if these allegations are well founded in light of the whole of the evidence, including the circumstancial evidence. [206] The Tribunal finds that Dr. Chopra has made a prima facie case of discrimination with respect to the appointment of Dr. Butler as Chief of the Human Safety Division in September 1999. The Tribunal is mindful of the fact that Dr. Butler was reappointed Chief of the Human Safety Division in January 2000. The Tribunal will however make no findings with respect to this reappointment given that it falls outside the scope of this complaint. [207] The probative elements and circumstancial evidence establishing a prima case of discrimination relate to the fact that Dr. Chopra had indicated that he wanted to have managerial experience, that he had twice in the past acted as Chief, that he had recent managerial experience, that he had been in the past the victim of discrimination at Health Canada because of his ethnic origin, that at the time of the event, Health Canada had recently been found by the NCARR Tribunal to have discriminated against visible minorities, that Dr. Lachance had in the past made comments of a racist nature or at least which had a racial overtone, as found by this Tribunal, that Dr. Chopra and Dr. Lachance were at odds with respect to issues of discrimination and finally, the fact that the reason provided in Ms. Strachan's memo to justify the conduct of Dr. Lachance is hard to believe. The Tribunal is of the view that these elements considered together are sufficient to establish a prima facie case of discrimination. The Tribunal finds that there is here a subtle scent of discrimination. [208] Given these findings, the Respondent had the burden of providing a reasonable explanation which would not be a mere pretext that would lead a Tribunal to believe that discrimination had no part to play in the decision to appoint Dr. Butler in September 1999 as acting Chief of the Human Safety Division. The Tribunal finds that the Respondent has failed to provide such an explanation. [209] Dr. Lachance was not called as a witness, nor was Dr. Butler. It is insufficient for Counsel for the Respondent to state that Health Canada can appoint whomsoever it wants to a position. It may well be that the decision not to appoint Dr. Chopra had nothing to do with discrimination and Dr. Chopra's ethnic background, such as the fact that Dr. Chopra did not get along with his colleagues or that he was not available. Counsel for the Respondent states that no other person from the Human Safety Division was offered the position. This in and of itself is not conclusive evidence that no discrimination was involved in the selection process. It could be that some individuals were invited to apply and turned down the invitation. Who knows? Who can say? The Respondent did not provide the Tribunal with any concrete evidence but limited itself to invoking different possibilities. [210] Hence, the Tribunal finds that Dr. Chopra was discriminated against contrary to section 7 of the Canadian Human Rights Act when he was not invited to act as Chief of the Human Safety Division in September 1999. [211] This finding does not however resolve the following issue: had Dr. Chopra been appointed acting Chief of the Human Safety Division in September 1999 would he have become later on Chief of that division. [212] In his final submissions, Counsel for the Complainant relied on the Morgan decision as well as the decision of the Federal Court of Appeal in Chopra v. (Canada) A.G., [2007] FCA 268 to support his argument that the proper test to apply when considering whether or not Dr. Chopra would have been appointed in the future to a Chief or Director position, is the following: there must be a connection or causal link between the position which was not obtained and the discrimination (Morgan, p. 432). [213] With respect to this issue, the Tribunal cannot ignore the fact that in 2000, Dr. Chopra failed the 810 In-Basket test run with respect to the position of Chief of the Human Safety Division. The record shows that Dr. Chopra challenged the test as being discrimatory but was not successful. Thus, Dr. Chopra was not able to compete for the permanent position of Chief of the Human Safety Division. [214] Hence, the Tribunal cannot establish a causal link between the fact that Dr. Chopra was discriminated against with respect to the position of Acting Chief of the Human Safety Division and the fact that he did not obtain the permanent position of Chief of the Human Safety Division in 2000. (ii) Issues related to incidents potentially discriminatory [215] In his complaint, the Complainant raises a number of events which he alleges were discriminatory. These are the Lachance comments made at a Bureau of Veterinary Drugs staff meeting, the five-day suspension he received from Dr. Lachance in relation to the Heritage Canada Conference, the Zohair complaint, the Elanco complaint and the Flumequine project. The Tribunal will deal with each of these events in turn so as to determine if they constitute discrimination, retaliation or harassment against Dr. Chopra. a) The Lachance comments [216] In the particulars to his complaint, the Complainant mentions that there is a petition circulating concerning Dr. Lachance's culturally insensitive remark that he likes visible minorities when he was formally presented to the employees of the Bureau of Veterinary Drugs on February 9, 1998. In his additional allegations dated June 27, 1999, the Complainant adds that he raised the issue of Dr. Lachance's comments with Dr. Paterson, the Director General, and that the latter downplayed the seriousness of the comments which he claims offended him and some colleagues from the Bureau. [217] The evidence shows that on February 9, 1998, Dr. Lachance who had just been appointed Director of the Bureau of Veterinary Drugs, was introduced to the staff of the Bureau by the Director General, Dr. Paterson, as the future Director of the Bureau of Veterinary Drugs in replacement of Dr. Scott. [218] According to Dr. Chopra's testimony, in the course of introducing himself, Dr. Lachance would have stated, looking at his audience, that he liked visible minorities. Dr. Chopra stated in his testimony that he found the remark upsetting, given the previous Tribunal's decision in NCARR. Dr. Chopra expressed the view that this was a racist remark. [219] The record shows that, on February 10, 1998, Dr. Chopra sent a memorandum to Dr. Paterson in which he indicates that the statement made by Dr. Lachance was a deeply insensitive racial remark towards visible minority employees of the Bureau. Dr. Chopra further states in his memorandum that here lies a typical example of the racially insensitive corporate culture, which despite the Canadian Human Rights Tribunal decision in NCARR continues to prevail among the senior management of this department. Dr. Chopra ends his letter by requesting that the appointment of Dr. Lachance be reconsidered. [220] Furthermore, the record shows that, in his response to Dr. Chopra's memorandum, Dr. Paterson expressed some doubt about the accuracy of the statement allegedly made by Dr. Lachance and tried to put it in the proper context, i.e. Dr. Lachance wanted to establish a good relation with his new staff. Dr. Paterson furthermore underscored the fact that Dr. Chopra's concerns regarding Dr. Lachance's comments were not shared by all of the staff of the Bureau. Indeed, the evidence shows that two persons attending the meeting dissociated themselves from the views expressed by Dr. Chopra. [221] Dr. Chopra testified that he did not find Dr. Paterson's response a proper one. Furthermore, Dr. Chopra indicated that he felt that Dr. Paterson was taking side with Dr. Lachance and felt very frustrated about the handling of the whole matter, that this showed that there was still a culture of racism in Health Canada. [222] In a memorandum sent to Dr. Paterson by Dr. Lachance, the latter explained, after having reviewed the memorandum sent by Dr. Chopra to Dr. Lachance, that his purpose in attending the meeting was to strike immediately a good relationship with a majority of the Bureau of Veterinary Drugs staff, that in his previous job, he had a large mix of visible minorities among the staff and that the context of the February 9, 1998 meeting led him to tell them that the audience looked like his former group of employees which had a good mix of visible minorities and that he personally enjoyed this. Finally, Dr. Lachance writes that, contrary to Dr. Chopra's insensitive statement made on February 10, 1998 about his motivation that afternoon, his remarks demonstrated a high degree of cultural sensitivity to the visible minorities in the Bureau. [223] In the course of the hearing, the Tribunal heard evidence from Ms. Tang, a human resource advisor in the Executive Services Unit at Health Canada, about the training Dr. Lachance received in relation to diversity in the workplace after the February 9, 1998 meeting. Ms. Tang testified that Dr. Lachance first attended a workshop on December 8, 1998 on Bias-Free Competency Selection as well as another training course on December 9, 1998 entitled Building Diverse Workteams. The evidence shows that Mr. Tang had no knowledge of the content or substance of these courses and was unable to confirm whether Dr. Lachance had in fact attended either of the courses for which he was enrolled. [224] The records shows that the Lachance matter ended up before the Standing Senate Committee on Privileges, Standing Rules and Orders where Mr. David Dodge, then Deputy Minister at Health Canada, appeared as a witness and was questioned about the Lachance comments. The record shows that Mr. David Dodge, who was not called as a witness in these proceedings, stated before the Senate Committee, on February 29, 2000, in relation to the statement made by Dr. Lachance that he liked visible minorities or a visible minority person mentality permeates all these things, that Dr. Lachance had been informed that, whatever his motives, those were inappropriate statements. The Tribunal has no reason to doubt that the transcripts of the Senate Committee meeting in relation to the testimony of Mr. Dodge are not accurate. [225] Given that Mr. Dodge and Dr. Paterson were not called as witnesses, the Tribunal is left with its own interpretation of the views they expressed with respect to the comments made by Dr. Lachance at the February 9, 1999 meeting. Given that Dr. Lachance was not called as a witness, the Tribunal is of the view that the Respondent could have called Dr. Paterson to explain how the Department had dealt with the statement made by Dr. Lachance over and above the documents tendered in evidence. The same can be said about Mr. Dodge. [226] In his oral submisions, Counsel for the Complainant argued that the comments made by Dr. Lachance at the February 9, 1998 meeting were more than unwise or inappropriate; they were blatantly racist and offensive and that it does not matter if some people did not take offence. For Complainant's Counsel, they are not only discriminatory; they constitue harassment. [227] For his part, Counsel for the Respondent argued that the Tribunal cannot infer from Dr. Lachance's comments that he was a racist and hence, that all of his future actions in relation to his position of Director of the Bureau of Veterinary Drugs should be seen as discriminatory or motivated by racism. For Respondent's Counsel, the comments were taken out of context by Dr. Chopra. As to whether or not Dr. Lachance's comments constitute harassment, Counsel for the Respondent argued that what was said does not meet the criteria of what constitute harassment under the law. A single remark does not meet the threshold of harassment. [228] The Tribunal finds that the comments made by Dr. Lachance at the February 6, 1998 meeting to have been offensive to Dr. Chopra and, by any standard, racist, even if some people in attendance did not find it to be so. Even though the comments might have been made to break the ice so to speak with his new colleagues, or seen as an attempt to be friendly with the group, it nevertheless shows a lack of sensitivity on the part of Dr. Lachance for people whose skin is not white who are seen to be different from white individuals. Dr. Lachance might not have had the intention to discriminate against visible minorities. Nevertheless, the case law is clear: the intent of a person is irrelevant to the issue of determining whether or not someone has discriminated against someone else (Nova Scotia (Human Rights Commission) v. Play it Again Sports Ltd, [2004] N.S.J. No. 403, par. 36). [229] The Tribunal thus finds that Dr. Chopra not only has made a prima facie case of discrimination in relation to Dr. Lachance's comment made at the Ferbruary 9, 1998 meeting but has adduced conclusive evidence that Dr. Lachance discriminated against him on the basis of his race or ethnic origin contrary to section 7 of the Act. As stated above, the intent to discriminate or not is irrelevant to the proof of discrimination. The test is, over and above the racial nature of the comment itself, whether or not the person alleging discrimination was offended by the comment (Nova Scotia (Human Rights Commission) v. Play it Again Sports Ltd, [2004] N.S.J. No. 403). [230] The elements that the Tribunal finds to be conclusive in relation to the prima facie test are the past history of discrimination at Health Canada, the inherent racist nature of the comment - white v. non-white, the fact that Dr. Chopra was offended by the comment and made it known to the Director General, the lack of sensitivity expressed by both Dr. Lachance and Dr. Paterson to Dr. Chopra's concerns and the fact that Dr. Lachance received, after the February 1998 meeting, training in relation diversity in the workplace. The Respondent had thus the onus of proving that Dr. Lachance's comments were in no way discriminatory. The Tribunal finds that the Respondent has failed to do so. [231] The Tribunal finds in this respect that the exchange of correspondence between Dr. Paterson and Dr. Lachance as well as between Dr. Paterson and Dr. Chopra shows more an attempt to justify what was said rather than acknowledge that the comments might have been offensive and discriminatory. Dr. Lachance and Dr. Paterson were not called as witnesses and were thus not able to provide the Tribunal with more insight in the comments that were made at the February 9, 1998 meeting. The Tribunal finds that the Respondent has failed to provide a credibible explanation of the true nature of the comments made by Dr. Lachance and does not find their written explanations conclusive in the absence of their testimony. [232] Here again, the Tribunal is mindful of the fact that the credibility of Dr. Chopra is at issue. This said, the evidence clearly shows that the day after the comments were made, Dr. Chopra made it known to the Director General that he had been offended by the comments. The Tribunal finds no reason to think that Dr. Chopra's concerns with respect to the comments made by Dr. Lachance were not genuine and that they were motivated by the desire to retaliate against Dr. Lachance. [233] The Tribunal finds however that, given the context in which Dr. Lachance's comments were made, the comments although inappropriate and racist do not constitute harassment in that they do not meet the Marinaki and Bobbs criteria. The Tribunal is of the view that the comments made at the February 9, 1998 meeting constitute an isolated incident. There is here no persistence or repetition and we are not looking at a pattern of behavior. The Tribunal notes that no evidence was tendered showing that Dr. Lachance repeated these comments in another forum. [234] This said, the Tribunal is of the opinion that, given the past history of discrimination and racial insensitivity at Health Canada, the NCARR decision notably and its findings, the Department should have acted more robustly and should have made it publicly known that it did not approve of Dr. Lachance's conduct, that it would not stand for comments of this nature in the Department. [235] The Tribunal finds that Dr. Paterson was fairly dismissive with respect to Dr. Chopra's complaint. His first response was to shed doubt about Dr. Chopra's recollection of the event rather than take it seriously and ask that it be investigated further. Dr. Paterson should have seen in Dr. Chopra's memorandum cause for concern given the NCARR decision. The Tribunal is of the view that the Lachance matter should not have escalated the way it did and that if it had been managed properly, it would have led to an apology on the part of Dr. Lachance or at least a statement to the effect that if he had offended anyone by his remarks, he regretted it and apologized. It appears that no apology was made. b) The five-day suspension [236] Counsel for the Complainant argued that the five-day suspension imposed on Dr. Chopra by Dr. Lachance was in retaliation of Dr. Chopra speaking out about the existence of racist practices in the public service, especially at Health Canada, as well as discriminatory. [237] For his part, Counsel for the Respondent argued that at the time the five-day suspension was imposed on him, Dr. Chopra did not characterize it as discriminatory but as retaliatory. In his view, there is no element of discrimination or retaliation in the decision to suspend Dr. Chopra. Counsel for the Respondent conceded however that Health Canada was wrong in its characterization of Dr. Chopra's action as a breach of his duty of loyalty to his employer in light of the decision rendered by the Public Service Staff Relations Board on March 12, 2001. [238] The Tribunal cannot ignore the fact that the individual who suspended Dr. Chopra was Dr. Lachance, that the suspension came after Dr. Chopra had signed a petition which challenged Dr. Lachance's appointment as Director of the Bureau of Veterinary Drugs in February 1998 and after Dr. Chopra had complained to the Director General in writing about the comments made by Dr. Lachance at his first meeting with the staff of the Bureau of Veterinary Drugs on February 9, 1998 as well as after Dr. Chopra had filed on June 27, 1999 additional allegations to his original complaint which specifically refer to Dr. Lachance discriminatory conduct. [239] The Tribunal cannot also ignore the fact that, following the comments that Dr. Landry made at the February 9, 1998 meeting, the latter, in a memorandum sent to Dr. Paterson, responded tit for tat to the allegation made by Dr. Chopra in his February 10, 1998 memorandum to Dr. Paterson. In his memorandum to Dr. Paterson, Dr. Chopra refers to the fact that Dr. Lachance had made an insensitive remark in relation to visible minorities. The evidence shows that in his own memorandum to Dr. Paterson, Dr. Lachance refers to Dr. Chopra's insensitive statement made on February 10, 1998 about his motivation that afternoon. The Tribunal sees Dr. Lachance's response as a clear indication that he was ready to confront Dr. Chopra and that the stage was set for future confrontations. [240] The Tribunal finds that these different elements in addition to the fact that Dr. Lachance could have dealt with the situation differently, as mentioned by Counsel for the Complainant, and appeared to be convinced that there was no discrimination going on at Health Canada, are sufficient to establish a prima facie case of retaliation but insufficient to establish a prima facie case of discrimination. Furthermore, the Tribunal considers that Dr. Lachance must have been aware of the existence of Dr. Chopra's complaint and additional allegations made against him in June 1999. [241] The Tribunal is mindful though of the fact that, in his letter dated August 11, 1999, Dr. Lachance writes in relation to the Heritage Canada conference that he considers Dr. Chopra as being in breach of his duty of loyalty to the Department and his conduct as willful misconduct totally unacceptable to the Department and hence has decided to suspend Dr. Chopra for a period of 5 working days. [242] The record shows that the Respondent elected not to call Dr. Lachance as a witness. As seen previously, beyond the discussions that took place between the parties and the information they provided to the Tribunal, the Tribunal was never formally apprised of the reasons for which Dr. Lachance was not called. Should the Tribunal hence rely conclusively on the letter addressed by Dr. Lachance to Dr. Chopra on August 11, 1999 to infer that the sole reason which lead Dr. Lachance to impose on Dr. Chopra a five-day suspension was Dr. Chopra's willfull misconduct and conclude, given the context in which the decision was made, that retaliation had nothing to do with his decision without hearing Dr. Lachance or someone from Health Canada? [243] As one knows, discrimination as well as retaliation will often times not be overt. It is often times through the direct examination of a witness that the truth comes to light. In this respect, it is worth citing Sopinka et al., The Law of Evidence in Canada, 1999, at par. 6.321 where the authors write: In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away. Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party's case, or at least would not support it. [244] The Tribunal finds that the Respondent has failed, by not calling the proper witness or witnesses, to prove that retaliation was not an element that motivated Dr. Lachance in imposing on Dr. Chopra a five-day suspension, given the circumstances surrounding the imposition of the suspension. Hence, the Tribunal finds that, given the context, retaliation was, on a balance of probabilities, a factor that lead Dr. Lachance to impose on Dr. Chopra a the five-day suspension on August 11, 1999 in contravention of section 14.1 of the Act. c) The Zohair complaint [245] [1] In his submissions to the Tribunal, Counsel for the Complainant asserted that the way Health Canada dealt with the Zohair complaint as well as the Heritage Canada conference incident are examples of harassment on the part of Health Canada in relation to Dr. Chopra. Counsel for the Complainant underscored the fact that while Health Canada was prepared to take swift actions against the Complainant, it acted less swiftly with other Health Canda employees whose conduct, in the eyes of Dr. Chopra, was reprehensible. [246] The Tribunal fails to see in the way Health Canada handled the Zohair complaint evidence of harassment on the part of Health Canada. The Tribunal finds that the Complainant has failed to prove that this event meets the legal criteria required to establish harassment under section 10 of the Act. Furthermore, the Tribunal fails to see how Health Canada's handling of the Zohair complaint can constitute retaliation on the part of Health Canada for Dr. Chopra having filed a human rights complaint. The evidence on this point is squarely non existent. d) The Elanco complaint [247] The Tribunal finds that there is no material fact that was tendered in evidence by Dr. Chopra establishing that the Department's conduct in relation to the Elanco complaint was discriminatory and was motivated by Dr. Chopra's ethnic origin. The Tribunal finds thus that the Complainant has failed here to establish a prima facie case of discrimination in relation to the Elanco complaint. Mere allegations of discrimination without any evidentiary foundation do not give rise to a prima facie case of discrimination. [248] This said, given that the Elanco incident occurred in 1997, before the coming into force of section 14.1 of the Canadian Human Rights Act, the actions or inaction of Health Canada in relation to the Elanco incident cannot be considered as retaliation under the Act. e) The exclusion from the Flumequine project [249] The Complainant testified that his exclusion from the Flumequine project in 1993 was not direct discrimination but retaliation for having raised human rights issues within the Bureau. [250] Given that the Flumequine project took place in 1993 well before the coming into force of section 14.1 of the Act, the Tribunal finds that the Complainant has not met the legal requirement for the Tribunal to make a finding of retaliation for a complaint filed by the Complainant. (iii) The issue of systemic discrimination [251] In his complaint form dated January 12, 1999, the Complainant alleges that none of his white co-workers have been treated in a similar manner as he has and that the reason he has been treated in an adverse differential manner is due to his race, colour and national or ethic origin. The Complainant further alleges that Health Canada consistently bypasses well-qualified visible minority candidates for management positions and that the general practice of the Department is to recruit EX's from within Health Canada, unless there are qualified visible minority candidates interested in these positions, at which time the Department recruits externally. [252] In his Statement of particulars, the Complainant further alleges that his persistent lack of promotion at Health Canada is due, in part, to systemic racial discrimination against visible minority personnel by the senior management of Health Canada and goes on to mention the senior managers who, he believes, practice systemic racial discrimination. [253] The Complainant further alleges in his Statement of particulars that the Department has failed to provide him with necessary training or other opportunities to upgrade his abilities and qualifications. In his way, he alleges, Health Canada consistently bypasses visible minority candidates for management positions. Finally, the Complainant states that these practices constitute and are demonstrative of systemic discrimination at Health Canada, contrary to section 10 of the Canadian Human Rights Act. [254] The allegations made by the Complainant with respect to the existence of systemic discrimination at Health Canada during the period of 1993 to 1999 are wide and far reaching. As stated earlier, he who alleges must prove and it is not sufficient to make broad allegations of discrimination without proving them or hold strong beliefs that discrimination is rampant at Health Canada. [255] Systemic discrimination in an employment context was defined in Action Travail des Femmes v. CNR, [1987] 1 S.C.R. 1114, at pages 1139 and 1143 as discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. Systemic discrimination is often unintentional. It results from the application of established practices and policies that, in effect, have a negative impact upon hiring and advancement prospects of a particular group. It is compounded by the attitudes of managers and co-workes who accept stereotyped 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. The Court furthermore stated that to combat systemic discrimination, it is essential to create a climate in which both negative practice and negative attitudes can be challenged and discouraged. [256] The Tribunal is cognizant of the fact that, in the past, Health Canada has been found to be decifient in the appointment of visible minorities to management positions. The findings of the Tribunal in NCARR and its decision clearly establish that Health Canada did not meet the requirements of the Canadian Human Rights Act with respect to employment opportunities for visible minorities. [257] Furthermore, the Tribunal cannot ignore the fact that, in the past, Dr. Chopra has had many bad experiences with the Department: a complaint made against him without him being informed of its existence (Drennan), a memo being written about him without him being informed of its content (Cuddihy), his exclusions from projects in which colleagues were asked to participate without him being provided with any explanation (Flumequine project), the five-day suspension imposed on him by Dr. Lachance (Heritage Canada Conference), the reprimand he received from Dr. Le Magueur (Zohair complaint). In addition, the record shows that Dr. Chopra has witnessed many acting opportunities and positions escaping him: the Scott appointment (1993-95), the Lachance appointment (1998), the Alexander appointment (1999), the Butler appointment (1999), all tainted according to him by discrimination. All of these events have had their toll on Dr. Chopra who has come to see discrimination being rampant at Health Canada. Are all of these events affecting one person sufficient for the Tribunal to conclude that there was at Health Canada in the period of time covered by the complaint (1993-1999) a form of systemic discrimination that affected the whole organisation. [258] The record shows that, in September 2002, the five-year period for the Canadian Human Rights Tribunal Order in NCARR was completed and that in a letter dated May 13, 2003, the Canadian Human Rights Commission found Health Canada to be in full compliance with all measures outlined in the Canadian Human Rights Tribunal Order. More specifically, the Commission states, in its letter to the Deputy Minister, Health Canada, that the analysis made by the Commission shows that during the five-year period the representation of members of visible minorities at Health Canada has increased substantially in categories and levels relevant to the Tribunal Order. The letter goes on to state that such significant progress could not have been achieved without the commitment of Health Canada's senior management. The letter further states that data on recruitment into EX Senior Management level and into feeder groups into this level show that members of visible minorities received equitable shares of these appointments and that the data show that members of visible minorities received shares of acting position in the levels set out in the Tribunal Order that were in line with expectations. In her letter, the Chief Commissioner acknowledges that Health Canada is now in full compliance with all measures included in the Tribunal Order. [259] This Tribunal cannot ignore these facts and findings. It must be noted here that the period covered by the Tribunal Order in NCARR extends from 1997 to 2002 and covers some of the allegations of discrimination made by the Complainant. [260] In his testimony, the Complainant disputed the fact that Health Canada was in full compliance with all the measures included in the Tribunal Order related to the NCARR decision. As stated earlier, the Complainant is entitled to his opinions. This said, allegations as strong as they may be that would contradict established and undisputed facts and findings need to be proven. [261] The Tribunal finds that the Complainant has not, on a balance of probabilities, proven that systemic discrimination was not properly addressed by Health Canada after the Tribunal Order in NCARR and still prevailed at Health Canada during the period of time extending from 1997 to 2002. [262] Given the lack of evidence adduced by the Complainant to contradict the Commission's findings, there is no reason for the Tribunal to conclude that systemic discrimination still exists at Health Canada and to order it to take additional measures to address general or systemic issues of discrimination. [263] This said, it does not follow that discrimination did not exist or could not have existed in a recent past within Health Canada and that individuals within the Department, at times, as this file shows, could not have acted in a discriminatory way. Past occurrences of discrimination may justifiably raise concerns about the continued existence of discrimination in the workplace. However, they do not in themselves prove that systemic discrimination exists. A finding or a few findings of discrimination are not sufficient per se to establish systemic discrimination in an organisation such as Health Canada. [264] Furthermore, the Tribunal cannot ignore the fact that the Complainant's allegations that every manager at Health Canada practices systemic racial discrimination against visible minority personnel and that every appointment within the Department over the past 20 years has been discriminatory remains unsubstantiated assertions until material facts are brought to the attention of the Tribunal. Sweeping assertions such as those made by the Complainant without a proper evidenciary basis, in the end, undermine his credibility as to whether or not Health Canada has complied with the NCARR Tribunal Order and have an negative impact on the promotion of human rights. [265] The Tribunal thus finds that the Complainant has not established, on a balance of probabilities, that Health Canada contravened section 10 of the Act. IV. REMEDIES [266] The Tribunal finds that the complaint filed by Dr. Chopra is substantiated in three aspects: the comments made by Dr. Lachance on February 9, 1998 were discriminatory against Dr. Chopra as well as individuals working at the time in the Bureau of Veterinary Drugs who were non-white and were in contravention of section 7(b) of the Act; the five-day suspension imposed on August 11, 1999 to Dr. Chopra by Dr. Lachance was the result of some form of retaliation against Dr. Chopra for having file a human rights complaint and was in contravention of section 14.1 of the Act; Dr. Chopra was discriminated against when he was not offered an acting position in September 1999 with respect to the position of Chief of the Human Safety Division in contravention of section 7(b) of the Act. [267] The Complainant asked in this oral submission that Dr. Chopra be compensated for hurt feelings related to the discrimination and retaliation he might have been the victim of. Given the conclusions reached by the Tribunal with respect to the events which the Tribunal found to be discriminatory and retaliatory, the Tribunal is of the view that an amount of 4 000$ for hurt feelings is reasonable. The Tribunal is mindful of the fact that two of the three events which the Tribunal found to be discriminatory or retaliatory occurred after June 30, 1998 when the ceiling for pain and suffering was increased to $20 000. [268] In his final submissions, Counsel for the Complainant asked that the Complainant be compensated for any lost wages related to a discriminatory act. Given that the Tribunal has found that Dr. Chopra was discriminated against with respect to the acting position of Chief of the Human Safety Division in 1999, Dr. Chopra is entitled to be compensated for the difference between what he would have earned as acting Chief compared to what he would have earned at the time as an evaluator. [269] The parties indicated to the Tribunal that they would determine amongst themselves any amount related to lost wages. The Tribunal will however retain jurisdiction on the damage amount for lost wages in case the parties cannot agree. V. ORDER [270] For the foregoing reasons, the Tribunal declares that the Complainant's rights under the Canadian Human Rights Act, more specifically sections 7 and 14.1 of the Act, have been contravened by the Respondent and orders that: the Complainant be paid the sum of $4,000 for hurt feelings; the Complainant be awarded for lost wages an amount equivalent to the difference between what he would have been paid had he acted as Chief of the Human Safety Division for a four month period in September 1999 and what he would have earned as an evaluator; that the interest on the above amount be paid in accordance with Rule 9(12) of the Canadian Human Rights Tribunal Rules of Procedure. Signed by Pierre Deschamps OTTAWA, Ontario September 12, 2008 PARTIES OF RECORD TRIBUNAL FILE: T901/2104 STYLE OF CAUSE: Shiv Chopra v. Health Canada DATE AND PLACE OF HEARING: January 19, 20, 2006 February 14, 15, 2006 March 1, 3, 8, 9, 10, 28, 29, 30, 2006 May 9, 10, 24, 2006 June 6, 20, 2006 September 15, 25, 26, 27, 2006 December 18, 21, 2006 January 30, 31, 2007 March 20, 21, 2007 April 3, 5, 27, 2007 June 1, 2007 September 10, 11, 12, 2007 October 2, 3, 4, 2007 Ottawa, Ontario DECISION OF THE TRIBUNAL DATED: September 19, 2008 APPEARANCES: David Yazbeck For the Complainant (No one appearing) For the Canadian Human Rights Commission David Migicovsky For the Respondent

2008 CHRT 4

CHRT

Buffett v. Canadian Forces

en

2008-02-13

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6833/index.do

2023-12-01

Buffett v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2008-02-13 Neutral citation 2008 CHRT 4 File number(s) T979/9604 Decision-maker(s) Hadjis, Athanasios Decision type Decision Decision Content TERRY BUFFETT Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN FORCES Respondent DECISION MEMBER: Athanasios D. Hadjis 2008 CHRT 4 2008/02/13 [1] In a judgment dated October 16, 2007, the Federal Court set aside my decision in the present case and referred it back to the Tribunal for redetermination (Attorney General of Canada v. Buffett, 2007 FC 1061). The Court's Order stated that there is no need for the Tribunal to conduct an additional hearing and that Mr. Buffett's complaint is to be redetermined in accordance with the reasons of the Court, in particular, paragraphs 55 and 56 and following. [2] It was pointed out in the judgment that if the matter had consisted of an appeal of the Tribunal's decision rather than a judicial review, the Court would have ordered the Canadian Forces (CF) to fund the intra-cytoplasmic sperm injection (ICSI) portion of Mr. Buffett's treatment to a maximum of three cycles. The Court noted, however, that during the judicial review hearing, Mr. Buffett stated that given his and his spouse's current ages, it is no longer recommended that they seek in vitro fertilization (IVF) and ICSI treatments. Consequently, the Court concluded that the issuance of such an order has now been rendered moot. Accordingly, the present decision does not contain such an order. [3] In addition, the parties have confirmed to the Tribunal that that the CF has paid in full the pain and suffering award resulting from my decision of September 15, 2006, which award was undisturbed by the Court in its judgment of October 16, 2007. I do not think it necessary, therefore, for me to re-issue this order. [4] Thus, for the reasons given by the Court, I hereby make the following order: Pursuant to s. 53(2)(a) of the Canadian Human Rights Act, I order the Canadian Forces to take measures, in consultation with the Commission on the general purposes of the measures, to amend its policy such that as long as the Canadian Forces continues to fund in vitro fertilization (IVF) treatments for its female members, male members shall receive funding for the intra-cytoplasmic sperm injection (ICSI) portion of their infertility treatments. Signed by Athanasios D. Hadjis OTTAWA, Ontario February 13, 2008 PARTIES OF RECORD TRIBUNAL FILE: T979/9604 STYLE OF CAUSE: Terry Buffett v. Canadian Forces DECISION OF THE TRIBUNAL DATED: February 13, 2008 APPEARANCES: Terry Buffett For himself Giacomo Vigna For the Canadian Human Rights Commission Elizabeth Richards For the Respondent

2008 CHRT 40

CHRT

Warman v. Guille

en

2008-09-30

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6669/index.do

2023-12-01

Warman v. Guille Collection Canadian Human Rights Tribunal Date 2008-09-30 Neutral citation 2008 CHRT 40 File number(s) T1134/1606 Decision-maker(s) Deschamps, Pierre Decision type Decision Decision Content RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADIAN HERITAGE ALLIANCE - and - MELISSA GUILLE Respondent REASONS FOR DECISION 2008 CHRT 40 2008/09/30 MEMBER: Pierre Deschamps I. INTRODUCTION II. THE RELEVANT PROVISIONS OF THE CANADIAN HUMAN RIGHTS ACT III. PRELIMINARY CONSIDERATIONS A. The additional examples B. The credibility of Mr. Warman C. The status of the Canadian Heritage Alliance D. The involvement of Ms. Guille in the Canadian Heritage Alliance E. The constitutional challenge F. The security measures put in place at the hearing IV. SUBSTANTIAL ISSUES A. Legal Issues B. Legal Analysis (i) Is the material referred to in the complaints likely to expose a person or a group of persons to hatred and/or contempt on the basis of a prohibited ground of discrimination? (ii) Was the impugned material communicated repeatedly in whole or in part on the Canadian Heritage Alliance website? (iii) Did the Respondents, Melissa Guille and Canadian Heritage Alliance, communicate or cause to be communicated the impugned messages by means of the Internet? (iv) Is the Respondent, Canadian Heritage Alliance, a group of persons for the purposes of section 13(1) of the Act? V. REMEDIES A. Cease and Desist Order B. Order to pay a penalty VI. ORDERS I. INTRODUCTION [1] On August 11, 2004, Mr. Richard Warman, the Complainant, filed a complaint against Ms. Melissa Guille in which he alleges that, on July 21, 2002 and onward, the latter discriminated against persons or groups of persons on the basis of sexual orientation, religion, race, colour and national or ethnic origin, by repeatedly communicating messages through an Internet website that would likely expose gays and lesbians, Jews, and Muslims, First Nations, Blacks, Arabs, other non-whites, and Roma (aka Gypsies) to hatred and or contempt contrary to section 13(1) of the Canadian Human Rights Act. [2] The Complaint provides, according to the Complainant, eight representative samples of discriminatory material posted on the Canadian Heritage Alliance (CHA) website. The Complainant concludes that, based on the foregoing examples, he believes that Melissa Guille has discriminated against persons or groups of persons on the basis of sexual orientation, religion, race, colour, and national or ethnic origin, by repeatedly communicating messages through an Internet website that would likely expose gays and lesbians, Jews, and Muslims, First Nations, Blacks, Arabs, other non-whites, and Roma (aka Gypsies) to hatred and or contempt contrary to section 13(1) of the Canadian Human Rights Act. [3] On August 11, 2004, Mr. Richard Warman filed a separate complaint against the Canadian Heritage Alliance alleging that, on July 21, 2002 and onward, the Canadian Heritage Alliance discriminated against persons or groups of persons on the basis of sexual orientation, religion, race, colour and national or ethnic origin, by repeatedly communicating messages through an Internet website that would likely expose gays and lesbians, Jews, and Muslims, First Nations, Blacks, Arabs, other non-whites, and Roma (aka Gypsies) to hatred and or contempt contrary to section 13(1) of the Canadian Human Rights Act. [4] Given the similarities of the two complaints, the Tribunal will deal with them together. [5] The Commission fully participated at the hearing into the complaint and was represented by legal counsel. The Complainant, who is a lawyer, represented himself. As for the Respondents, they were represented by two agents, duly recognized as such by the Tribunal. The Tribunal heard two witnesses: Mr. Warman and Ms. Guille. II. THE RELEVANT PROVISIONS OF THE CANADIAN HUMAN RIGHTS ACT [6] Section 13 of the Canadian Human Rights Act which deals with hate messages provides that 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. 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. For the purposes of this section, 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. [7] Section 3 of the Act defines the prohibited grounds for discrimination. It reads as follows: 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. Where the ground of discrimination is pregnancy or child-birth, the discrimination shall be deemed to be on the ground of sex. III. PRELIMINARY CONSIDERATIONS [8] Before analysing the substantive issues that the present complaints raise, there are a number of preliminary issues that the Tribunal must consider. These are A. the additional examples of possible violations of section 13 of the Act tendered in evidence by the Complainant and the Commission, B. the credibiliy of Mr. Warman, C. the status of the Canadian Heritage Alliance, D. the involvement of Ms. Guille with respect to the Canadian Heritage Alliance website, E. the constitutional challenge, F. the security measures that had to be put in place at the hearing. A. The additional examples [9] In the course of his testimony, Mr. Warman referred to 37 postings which he downloaded from the Canadian Heritage Alliance website and which he alleges contrevene section 13 of the Canadian Human Rights Act. These postings can be put into two categories: 1. articles written by different individuals which address different topics, 2. threads in which individuals expressed their views in relation to the views expressed by other individuals able to post on the CHA website. [10] At the hearing, the issue arose as to whether or not the Tribunal was limited to the eight representative examples listed in the two complaint forms or could also consider the 37 or so postings and articles found in Exhibit HR-1, Tab. C of the Commission's Book of documents. The Respondents objected to the documents found in Exhibit HR-1, Tab. C being considered by the Tribunal given that they were not mentioned in the complaint forms. The Tribunal ruled that the postings found in Exhibit HR-1, Tab. C were admissible, but took the Respondent's objection under advisement. [11] The record shows that, at the time of the filing of his complaints against Ms. Guille and the Canadian Heritage Alliance, Mr. Warman in his complaint forms specifically refered to 8 postings on the Canadian Heritage Alliance website which, according to him, showed a breach of section 13 of the Canadian Human Rigts Act. [12] The evidence shows that additional examples were adduced in evidence by the Complainant and the Commission later in the process. The record shows that the two complaint forms that were referred to the Tribunal were never amended so as to incorporated additional examples of possible breach of section 13 of the Canadian Humans Rights Act in them. [13] The Respondents argued that this is a breach of the principle of natural justice, that a respondent, whoever he may be and however serious the allegations that are made, should know off-hand, from the beginning, what is the case that he or she has to meet so as to be in a position to defend himself or herself adequately. The Tribunal agrees. [14] In Warman v. Kyburz, 2003 CHRT 18, the Tribunal had to decided if material filed with the Tribunal shortly before the hearing was to begin were admissible. The Commission asked to file the material, notwithstanding that the documents had not been disclosed to the Respondent in advance of the hearing. The Tribunal allowed the material to be filed at the hearing, reserving its decision as to what weight, if any, should be attributed to the documents. The Tribunal, after having stated that the complaint did allege that the discriminatory practice was ongoing, ruled that it did not need to resolve this issue and indicated that the additional documents added little to the complaint, in that they simply consisted of further examples of the type of messages already described. [15] In Warman v. Winnicki, 2006 CHRT 20, the Commission asked that the complaints that had been referred to the Tribunal be amended to include additional grounds of discrimination. The Tribunal granted the request and the complaint was amended to include the additonnal grounds and the new material, referred to as the post-referral evidence, was appended to the revised complaint. The Tribunal stated in its decision that, as a result of the Tribunal's ruling, excerpts of the post-referral evidence were incorporated into the particulars of the amended complaint. The Tribunal further indicated that the amended complaint specifically contemplated the possibility that additional evidence of the violation of section 13(1) would occur by including the words `and ongoing' in the date of the alleged discriminatory conduct. It must be noted here that the respondent did not object when the Commission introduced the post-referral evidence, which is not the case in the present proceedings. [16] In Warman v. Kouba, 2006 CHRT 50, however, material that post-dated the filing of the complaint was submitted as evidence of the on-going violation of section 13 of the Act as alleged in the complaint form without any motion to have the complaint amended being brought. The Tribunal found it appropriate for it to consider the evidence that post-dated the filing of the complaint. The Tribunal based its decision on the fact that the respondent did not object to the production of the post-complaint material, that the evidence related 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. [17] In an earlier decision, Leblanc v. Canada Post Corporation, (1992) 18 C.H.R.R.D/57, the Commission lead evidence of incidents of alleged discrimination which were not set out in the complaint form. The Tribunal heard the evidence. In its decision, the Tribunal stated that it would have been preferable if the Commission had provided the respondent with particulars of every incident of discrimination being relied upon in the complaint form. However, it went on to say that in an administrative hearing such as this one, the Commission and the complainant are not necessarily restricted to the four corners of the complaint form. The Tribunal further stated that the new evidence should be considered in light of the fairness of admitting it and concluded that, in that case, the respondent knew the case it had to meet. [18] Complaints brought pursuant to section 13 of the Act are not ordinary discrimination complaints in that the Act provides, since 1998, that a respondent can be ordered to pay a penalty of up to ten thousand dollars. The addition of a penal element to the Canadian Human Rights Act is not, as one can see, without consequence for a respondent. [19] The Tribunal is of view that, in any human rights complaint, a respondent is entitled to be provided with all the material elements upon which the Complainant and the Commission intend to rely on to prove a breach of the Act. The material elements should not only be part to the disclosure but of the complaint itself so that the respondent will know precisely the case he or she has to meet and be in a position to fully defend himself or herself. [20] The fact that the complaint forms indicate with respect to the date of the alledged conduct `ongoing' does not imply that the Commission or the Complainant can, at their leisure, add additional events or documents to the complaint without respecting the rules of natural justice and of procedural fairness. [21] The Tribunal is of the view that, if additional material is considered by the Commission or the complainant to potentially be in breach of section 13 of the Act, they can, as the case law shows, ask that the complaint be amended so as to introduce additional elements of potential discriminatory acts. To say that the respondent was not taken by surprise by the filing of additional documents does not meet the procedural fairness principle of a hearing and the right of a respondent to present a full defence to any allegation of improper conduct made against him under section 13 of the Act. [22] Furthermore, it is important to note that if a respondent is made aware that specific postings or articles are problematic and possibly in breach of section 13 of the Act, he or she will have the possibility of removing them, thus reducing the exposure of targeted groups to hatred and contempt. [23] In the present case, the record shows that the Complainant expressed the belief in his complaint forms that, based on the foregoing examples, which amounted to eight, Ms. Guille was in breach of Section 13(1) of the Canadian Human Rights Act. If this is the case, then the addition of new material would only provide further examples of potential discriminatory acts. Basically, the eight examples provided in the complaint forms would still be in themselves sufficient to make the Commission's and the Complainant's case against the Respondents. [24] The Tribunal is cognizant of the fact that Section 48.9 of the Canadian Human Rights Act states that proceedings before the Tribunal shall be conducted as informally and expediously as the requirements of natural justice and the rules of procedures allow. However, the Tribunal is of the view that the principles of nature justice and of procedural fairness trump expediency of the process and require that respondents be fully apprised, from the start and throughout the proceedings, what will be the case they will have to meet. [25] The evidence shows, as will be seen, that Ms. Guille, upon learning that some postings or articles were problematic, decided to remove them from the Canadian Heritage Alliance website as soon as she learned of their existence. One can surmise that had she known earlier, i.e. at the time of the filing of the complaint, she would probably have removed them earlier from the website, thus diminishing the exposure of the general public to material that is contrary to section 13 of the Canadian Human Rights Act. [26] The Tribunal thus finds that Respondents' objection with respect to the filing of additional material by the Commission without having amended the complaint forms to be well founded. Hence, the Tribunal will not make findings with respect to the additional material listed in Annex 1. B. The credibility of Mr. Warman [27] In the present proceedings, the Respondents attacked Mr. Warman's credibility on many fronts. [28] Firstly, the Respondents argued that Mr. Warman is a human rights activist who specializes in making complaints based on article 13 of the Canadian Human Rights Act and who formerly worked for the Commission. Secondly, the Respondents argued that Mr. Warman was not truthful about his identity using the pseudonym David Mclean in his dealings with Ms. Guille and the Canadian Heritage Alliance. Thirdly, the Respondents stated that Mr. Warman was himself in breach of section 13 of the Act, for having created accounts on racist websites using the name Lucie Aubrack and the90sareover and posted material, using pseudonyms such as axetogrind, that could be considered hateful. Fourthly, the Respondents argued that Mr. Warman was evasive in his answers. [29] The record shows that Mr. Warman has, over the years, litigated many complaints referred to the Tribunal by the Canadian Human Rights Commission. The Tribunal cannot ignore the fact that Mr. Warman is a human rights activist and that this may colour at times his testimony. This said, the Tribunal when making its determination as to whether or not there was a breach of section 13 of the Act and as to whether or not the material tendered in evidence constitutes hate messages will have to take into consideration not only the testimonial evidence of Mr. Warman but also the documentary evidence tendered. [30] Furthermore, the Tribunal is of the view that the fact that Mr. Warman used a pseudonym, i.e. David Mclean, in his communications with Ms. Guille and the Canadian Heritage Alliance should not come as a surprise. This is common practice when going on the web. Generally speaking, people will not reveal their true identity. [31] With respect to the fact that Mr. Warman might have posted on the Canadian Heritage Alliance website or on other websites material that could be contrary to section 13 of the Canadian Human Rights Act, the Tribunal finds that no conclusive evidence was tendered showing that this was the case. This said, if the Respondents feel that Mr. Warman has contravened section 13 of the Act, they can themselves file a complaint with the Canadian Human Rights Commission. [32] As for Mr. Warman evasiveness in his testimony, the Tribunal finds that Mr. Warman's answers were not always straightforward and notes that a certain form of animosity existed between himself and Respondents' agents which led Mr. Warman to object to questions put to him because he felt they were not relevant. As stated earlier, the Tribunal will consider the whole of the evidence, testimonial, documentary and circumstantial to make its determination as to whether or not section 13 of the Act was breached by the Respondents. C. The status of the Canadian Heritage Alliance [33] In her testimony, Ms. Guille stated that the Canadian Heritage Alliance website was a means for people to express their views on free speech and government policies, that people could come to the website and post their articles and opinions, that they could start a thread in the forum section and exchange views, that debate was really promoted. [34] Ms. Guille testified that at first, individuals posting on the forum section had to join up but later did not have to. She added, however, that because of some nasty things being written in the forum section, individuals had eventually to sign up or register in order to be able to post in the forum section. This allowed her to have knowledge of their email and IP address. Ms. Guille stated that this did not entail joining a group but joining a website. [35] Ms. Guille stated in her testimony that if an individual wanted to post an article on the website, he would visit a specific link on the website, that this would give him a page with a user name field and a password field. The individual would then click submit and that would bring him to a form where he would post his material. When submitted, articles were posted immediately. [36] Ms. Guille testified that individuals joining the website needed to agree to the terms of service which stated that people were responsible for what they posted on the forum section and that they could not post things that were overtly hateful or crude. According to Ms. Guille, the number of people who joined the forum amounted at first to 100 then went down to around 20 to 30, that the number varied from year to year. [37] Ms. Guille expressed the view that the Canadian Heritage Alliance website was just a website. Asked about the membership, she stated that it was more a membership to the website, that there was, in fact, no membership list. Asked why a membership was created, she stated that it was to provide those interested in the website an information package explaining what the website was used for. [38] The documentation tendered in evidence by the Complainant, and the Commission which was obtained from the Canadian Heritage Alliance website, as well as the material produced by the Canadian Heritage Alliance, such as the Membership Guide, show that the Canadian Heritage Alliance describes itself as a collection of dissident writers and concerned Canadians who seek to revive the civil liberties of the Canadian citizen that have been smothered by the voice of special interest groups. The documentation indicates that the Canadian Heritage Alliance is centered in Southern Ontario, but has members all across Canada and in the USA. The information found on the Canadian Heritage Alliance website also refers to the fact that the CHA is a Canadian political lobby group, formed in August 2000 to give political expression to Canadian citizens. [39] The evidence further indicates that Canadian Heritage Alliance publishes a newsletter (Canadian Heritage News) and has staff journalists, that Ms. Guille is the Publications Director and Managing Editor of the Canadian Heritage News, that membership cards are issued as well as an information package. [40] Whether or not Canadian Heritage Alliance has a membership in the traditional sense of the word, i.e. individuals who become part of an organisation, are issued a membership card, have the right to elect members to a Board of directors, pay dues, receive a newsletter, is somewhat irrelevant, or at least not conclusive in this case to the determination as to whether or not the Canadian Heritage Alliance constitutes a group of persons acting in concert. The Canadian Heritage Alliance describes itself as a collection of dissident writers and concerned Canadians as well as a political lobby group. The Tribunal finds that this, in itself, is sufficient to establish that the Canadian Heritage Alliance constitues a group of persons acting in concert pursuant to section 13(1) of the Canadian Human Rights Act. [41] Hence, the Tribunal finds that Canadian Heritage Alliance is more than a website, as argued by the Respondents, but that it is in fact a group of persons acting in concert for the purposes of section 13(1) of the Act. The Tribunal thus finds that the Canadian Heritage Alliance is a proper respondent in this case and that it is within the authority of the Tribunal to make an order as against it. D. The involvement of Ms. Guille in the Canadian Heritage Alliance [42] Beyond a shadow of a doubt, the record establishes that Ms. Guille is the site administrator or webmaster of the Canadian Heritage Alliance website. A WHO-IS search conducted by the Complainant reveals that Ms. Guille was, at the time of the complaint, the registrant contact, as well as the administrative, technical and billing contact of the Canadian Heritage Alliance website. A posting on the Canadian Heritage Alliance forum made by Ms. Guille indicates that she is the site administrator. [43] In an email exchange with David Mclean, a.k.a. Richard Warman, Ms. Guille states that she was one of the three individuals involved in the creation of the Canadian Heritage Alliance. She furthermore testified that she registered the url for the website and set up the website, i.e. created a visual page with information links, the title page and categories. [44] In her testimony, Ms. Guille acknowledged that she was the person who had the power to remove what had been put on the website, that she was the person who edited postings and articles and who designated the moderators for the website. She however added that she did not know their identity and had no authority over the moderators. [45] Asked what steps she took before deciding who would become a moderator, Ms. Guille answered that she looked at their postings on previous boards and made the decision to whether or not select them as moderators. She chose, she said, individuals who had a long history of posting on the forum and with whom she never had any problems. She testified that moderators could remove and edit material. Asked if it would not have been appropriate to have a more substantive record of who these people were, Ms. Guille stated that she did not feel that it was necessary. [46] Ms. Guille further testified that she did not know the identity of the individuals posting on the Canadian Heritage Alliance website. She stated that usually people will not provide their true identity, that the Canadian Heritage Alliance website is dedicated to free speech and that this meant discussing controversial issues that may not be part of every day conversations. Ms. Guille stated that controversial issues were for her immigration, free speech, race, culture, ethnic origin, religion, sexual orientation. [47] Asked who was in charge of the Canadian Heritage Alliance website forum, she stated that nobody was specifically in charge but that, as the administrator, she took care of the back-end content and that if she came across something that needed to be removed or edited, she would remove it. [48] Ms. Guille testified that were a few complaints about some of the postings, that if someone took strong exception to an article, she enjoyed it because it opened up the discussion and that if someone brought something to her attention as being problematic, the decision to remove the material would depend on the nature of the problem. Asked what she used to guide herself, she stated that she used her best judgment, that she could not hire a lawyer, that when she received the complaint, she realized that she had to take into account more that section 319 of the Criminal Code. [49] Given Ms. Guille's testimony, the Tribunal finds that Ms. Guille had full control over the Canadian Heritage Alliance website. [50] On another note, the evidence shows that Ms. Guille has close ties with neo-nazi and white supremacists sympathizers which, in this day and age, is quite disconcerting. Throughout her testimony, she refered to her friends, who are shown to be neo-nazi sympathisers on pictures tendered in evidence by the Commission, as associates. She stated candidly when asked if she had any difficulty sitting in a room with a nazi flag hanging on the wall that she did not see this as problematic. [51] Asked in the course of her testimony if she was a white supremacist or a neo-nazi, she stated that she was not, that she treated everybody equally, that in her university days, she had to deal with people of various racial backgrounds or sexual orientationss, and that today, in the relationship with her community and in her workplace, she did not have difficulty in getting along with people of different backgrounds. [52] There is not doubt in the Tribunal's mind that, over and above the fact that the Canadian Heritage Alliance website is a forum for discussion of very sensitive and controversial subjects, the people who are associates of Ms. Guille, the case law shows, have been found to be close to the neo-nazi and the white supremacist movements and found to have been in breach of section 13 of the Act. The Tribunal is however mindful that this, in itself, does not prove that Ms. Guille and the Canadian Heritage Alliance have violated section 13 of the Act. [53] Ms. Guille, the evidence shows, has strong views about her European heritage and is prepared to fight for its preservation. Ms. Guille testified that when she refers to the notion of culture, she refers to the European culture and when referring to the European culture, she is referring to her family heritage. For her, those who fall under the umbrella of European heritage are people from different parts of Europe and include people who have grown up in Europe or whose ancestors are from Europe. [54] Ms. Guille indicated in her testimony that for her, the European culture is different from the muslim faith, that, for her, Europe is a geographic region built up of different races such as Italians. Asked if in her definition of the European culture, she included people from Africa, Ms. Guille stated that it did not include Carribean immigrants to England and added that the latter did not consider themselves as Europeans because they wanted to hold on to their own cultural heritage. [55] In her testimony, Ms. Guille described herself as a nationalist who expressed her concerns about how Canada was evolving, about immigration and freedom of speech. She stated that she saw Canadians being oppressed whereas minorities had the right to free speech, that they benefited of more leniency, that Canadians were not allowed to speak out against anything that was going on. She also stated that she was proud of her country; she expressed the belief that every culture has its own rights, including the right to be free and equal within their own culture. Ms. Guille further stated that she had concerns abouth the high costs related to the integration of immigrants, that the money was not being used for education and the health care system. [56] Ms. Guille stated in her testimony that she opposes gay marriage and that she should be allowed to be for or against gay marriages. She testified that when she went to a gay marriage protest, there were people from other religious groups present. She expressed the belief that everyone has a right to free speech, that she believed that there should be unequivocal free speech aside from death threats and criminal acts. [57] Ms. Guille further testified that she was not aware of the existence of section 13 of the Canadian Human Rights Act and that the articles and postings on the Canadian Heritage Alliance website violated section 13 of the Act even though she followed closely, the evidence shows, the Zündel trial. Ms. Guille acknowledged that she was aware of the complaints made by Mr. Warman against Mr. Kulbashian and Mr. Richardson as well as Mr. Winnicki. [58] Ms. Guille further stated in her testimony that even after this hearing, she still did not know what violates the Canadian Human Rights Act, that the hearing has not given her insight as to what violates the Act, that the Act is vague and not clear at all as to what constitutes hate given that no clear guidelines exist. Hopefully, after reading this decision, Ms. Guille will. E. The constitutional challenge [59] In August 2007, the Respondent, Melissa Guille, filed a notice of constitutional challenge in relation to the present proceedings. In her notice, the Respondent indicates that it intends to question the constitutional applicability, validity and effect of section 13 of the Canadian Human Rights Act. The Tribunal ruled, at the time, that it would first hear the merits of the case, issue a decision and suspend the execution of its decision so as to allow the Respondent to duly present its notice of constitutional challenge before the Tribunal. [60] The record shows that in November 2007, Ms. Guille's agent made another request in which he asked the Tribunal to consider the notice of constitutional challenge before the resumption of the hearing on December 10, 2007. In a letter sent to the parties on November 20, 2007, the Tribunal issued the following directives which still hold: As indicated by the Tribunal's instruction of August 27, 2007, the Charter issue raised by the Respondent will be heard by the Tribunal at a later time, after the merits of the complaint. F. The security measures put in place at the hearing [61] The record shows that extraordinary measures were taken during the hearing to ensure the safety of everyone, the tribunal, the parties, their counsels or agents. The hearing was held in different venues. For the most part of the hearing, two Toronto policemen were present, one inside, the other outside of the hearing room. Two security agents were hired by the Tribunal to check personal belongings. Except for the Tribunal member and the Registry Officer, people were wanded with a metal detector. Furthermore, it appears that bodyguards were hired to ensure the protection of the Commission's lawyers and the Complainant. The measures put in place by the Tribunal were necessary to ensure the protection of everyone attending the hearing. They however, at times, created a tense atmosphere in the hearing room between the parties. IV. SUBSTANTIAL ISSUES [62] As stated by this Tribunal in Warman v. Warman, 2005 CHRT 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 member of minorities from the psychological harm caused by the dissemination of racial views which result inevitably in prejudice, discrimination and the potential of physical violence' (Warman, par. 36). A. Legal Issues [63] The burden of proving a breach of section 13 of the Act lies on the Complainant and the Commission. HE WHO ALLEGES MUST PROVE. In order to prove a breach of section 13 of the Act, the following questions must be answered in the affirmative: Is the material referred to in the complaints likely to expose a person or a group of persons to hatred and/or contempt on the basis of a prohibited ground of discrimination? Was the impugned material communicated repeatedly in whole or in part on the Canadian Heritage website? Did the Respondents, Melissa Guille and Canadian Heritage Alliance, communicate or cause to be communicated the impugned messages by means of the Internet? Is the Respondent, Canadian Heritage Alliance, a group of persons for the purpose of section 13(1) of the Act? The Tribunal will analyse these different questions in turn. B. Legal Analysis (i) Is the material referred to in the complaints likely to expose a person or a group of persons to hatred and/or contempt on the basis of a prohibited ground of discrimination? [64] The Tribunal must first determine if the material found on the CHA website is likely to expose members of the targeted groups to hatred or contempt. [65] The words likely, expose, hatred or contempt have taken on a special meaning in the context of article 13 of the Act as the case law evolved. One of the leading cases is Nealy v. Johnston, (1989) 10 C.H.R.R., D6450 where the Tribunal analysed the wording of section 13 of the Act. Since then, the Tribunal has retained the interpretation given in Nealy to the words likely, expose, hatred or contempt. [66] In Nealy v. Johnston, the Tribunal stated that the wording likely to expose a person or persons to hatred or contempt meant that is is not necessary that evidence be adducedd that any particular individual or group took the messages seriously and in fact directed hatred or contempt against another or others, that it was enough to prove that the matter in the messages was more likely than not to spark a positive reaction amongst some of the listeners to it which will likely in turn manifest itself in hatred and contempt towards the targets of the messages. [67] With respect to hatred, the Tribunal stated that the focus was a set of emotions and feelings which involve extreme ill will towards another person or groups of persons. To say that one hates another means in effect that one finds no redeeming qualities in the latter. The Tribunal went on to say that contempt is by contrast to hatred a term which suggests a mental process of looking down upon or treating as inferior the object of one's feelings. [68] As for the term expose, the Tribunal stated that an active or intent on the part of the communicator or a violent reaction on the part of the recipient are not envisaged, that to expose to hatred indicates a more subtle and indirect type of communication than vulgar abuse or overtly offensive language. For the Tribunal, expose meant to leave a person unprotected, to leave without shelter or defence, to lay open (to danger, ridicule, censure, etc.). [69] No expert evidence was called in the present case. The Respondents argued that the Tribunal could not determine the true nature of the material posted on the Canadian Heritage Alliance website without the benefit of such evidence. The fact of the matter is that it belongs to the Tribunal, given the criteria set out in the case law, to make the final determination as to whether or not a posting or an article is in breach of section 13 of the Act. [70] In Warman v. Kouba, 2006 CHRT 50, the Tribunal set out a non-exhaustive list of eleven hallmarks of hate messages, accompanied by an elaboration of on each of the hallmarks. These hallmarks are the following: The Powerful Menace Hallmark: the targeted group is portrayed as a powerful menace that is taking control of the major institutions in society and depriving other of their livelihoods, safety, freedom of speech and general well-being; The True Story Hallmark: the messages use true stories, news reports, pictures and reference from purportedly reputable sources to make negative generalizations about targeted group; The Predator Hallmark: the targeted group is portrayed as preying upon children, the aged, the vulnerable, etc.; The Cause of Society's Problems Hallmark; the targeted group is blamed for the current problems in society and the world; The Dangerous or Violent by Nature Hallmark: the targeted group is portrayed as dangerous or violent by nature; The No Redeeming Qualities Hallmark: the messages convey the idea that members of the targeted group are devoid of any redeeming qualities and are innately evil; The Banishment Hallmark: 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; The Sub-human Hallmark: the targeted group is de-humanized through comparisons to and associations with animals, vermin, excrement, and other noxious substances; The Inflammatory Language Hallmark: highly inflammatory and derogatory language is used in the messages to create a tone of extreme hatred and contempt; The Trivializing or Celebration of Past Tragedy Hallmark: the messages trivialize or celebrate past persecution or tragedy involving members of the targeted group; The Call to Violent Action Hallmark: calls to take violent action against the targeted group. [71] The evidence of the Complainant and of the Commission consisted mainly of Mr. Warman reading into the record passages of email strings found on the Canadian Heritage Alliance website as well as passages or the full text of articles found on the website. [72] As ruled above, the Tribunal will only be analysing the 8 examples referred to in the original complaint forms. The Tribunal has however reproduced the relevant excerpts of the other examples provided to the Tribunal by the Commission and the Complainant in an Annex to this decision. [73] Mr. Warman testified that he became aware of the Canadian Heritage Alliance website in the early 2000. He stated that he concluded that it was a neo-nazi and white supremacist website not only from the content of the site but also his knowledge of the individuals involved and their non website activities. [74] In his complaint forms, Mr. Warman refers to eight examples taken from the Canadian Heritage Alliance website that he believes constitute material that falls under section 13 of the Canadian Human Rights Act. Mr. Warman testified that the threads and articles were downloaded from the forum section of CHA's website. 1. http://www.canadianheritagealliance.com/forum/viewtopic.php?t=492 [75] In his complaint forms, the Complainant writes that these constitute forum postings in which it is argued that the Holocaust did not occur, that the gas chambers in concentration camps did not exist, that the media is controlled by Jews, and that Jewish-owned businesses should be boycotted and that Ms. Guille participated in this forum thread. The record shows that the title of the thread is: Auschwitz: Myths and Facts. This document was marked as Exhibit HR-1, C-1. [76] In his testimony, Mr. Warman read into the record the following posts made by different individuals using a pseudonym. Mr. Warman noted that one of the individuals, Fearless Beaver, presented himself as a moderator. Mr. Warman stated that he was limiting himself here to what he found to be reprehensible. Asked how he had accessed these posts, Mr. Warman stated that he went to the forum section of the Canadian Heritage Alliance website and accessed them directly. Membership was not required to access the site, he stated. Panzer-dragoon Nearly everyone has heard of Auschwitz, the German wartime concentration camp where many prisoners -- most of them Jewish - were reportedly exterminated, especially in gas chambers. Auschwitz is widelily regarded as the most terrible Nazi extermination center. The camp's horrific reputation cannot, however, be reconciled with the facts. Bizarre Tales At one time it was seriously claimed that Jews were systematically electrocuted at Auschwitz, American newspapers, citing a Soviet eyewitness report from liberated Auschwitz, told reader in February 1945 that the methodological Germans had killed Jews using an electric conveyor belt on which hundreds of persons could be electrocuted simultaneously [and] then moved on into furnaces. They were burned almost instantly, producing fertilizer for nearby cabbage fields. At at the Nuremberg Tribunal, chief U.S. prosecutor Robert Jackson charged that the Germans used a newly invented device to instantaneously vaporize 20 000 Jews near Auschwitz in such a way that there was no trace left of them. No reputable historian now accepts either of these fanciful tales. He (Fred A. Leuchter) concluded by emphatically declaring that the alleged gassing facilities could not possibly have been used to kill people. Among other things, he pointed out that the so-called gas chambers were not properly sealed or vented to kill human beings without also killing German camp personnel. Dr. William B. Lindsey, a research chemist employed for 33 years by the Dupont Corporation, likewise testified in a 1985 court case that the Auschwitz gassing is technically impossible. Based on a careful on-site examination of the gas chambers at Auschwitz, Birkenau and Majdanek, and on his years of experience, he declared: I have come to the conclusion that no one was willfully or purposefully killed with Zyklon B (hydrocyanic acid gas) in this manner. I consider it absolutely impossible. I've been personally looking into this story going 6 years. I've read, heard and seen practically everything I could get my hands on from both sides of the fence. My basic conclusion. This story in large is a fraud, probably the biggest swindle in human history to date. Think of it as the Weapons of Mass Destruction of the 1940's. Fearless Beaver The holohoax is big business and the most important trump card for international zionism. Whether it is true or not doesn't matter. All that matters is that it is important. Angry taxpayer It is all jewish zionist bullshit. The media is controlled and not free. The world is under the power of the jewish zionists. They have all the money and power and influence and it is going to take some man/woman or group to be able to expose and destroy it. A tough battle indeed. [77] Finally, Mr. Warman pointed out that Ms. Guille had made a post in relation to this string of posts. Ms. Guille's post, which is in response to the following post made by Panzer-Dragoon - I am one caucasian who is proud of is (sic) race, are you: reads as follows: As much as the left would like us to feel shame in our culture, ancestry, and history, it's important we remember that we have NOTHING to feel guilty for. And being proud of one's identity is NOT shameful. [78] With respect to this first post, asked what she did when she saw the item referenced in the complaint form, Ms.Guille stated that by the time she received the complaint, these forum postings were already gone, that they had been on an old forum. [79] Asked with respect to this thread if she thought that the holocaust should be discussable (sic), she replied that for her, anything historical should be discussed and open to debate, because everybody has a different perspective on what happened. Asked with respect to that thread to comment on what she had written, she stated that she might not have read the first post because it was too long. She further stated that the content of threads could veer-off in a different direction than the first posting. 2. http://www.canadianheritagealliance.com/forum/viewtopic.php?t=303 [80] In his complaint forms, Mr. Warman writes that these Forum posting suggest that non-white women who have relationships with black men feel sorry for these nogs, that most whites who have relationships with black men have AIDS and/or many sexually transmitted diseases as a result, that white women who have sexual relationships with black men deserve to die as a result, and that their children will have AIDS too. Mr. Warman goes on to state that this is the clean version after Ms. Guille herself edited one of the postings citing concern over Canadian hate laws. The record shows that the title of the thread is: Which brings me to the race mixing. This document was marked as Exhibit HR-1, Tab. C-5. [81] It must be noted here that in this thread, Kwazimodo is referred to as a moderator and that, in response to one of the post made by cyanid_assassin, Ms. Guille refers to the Forum rules. Furthermore, it must be noted that Ms. Guille presents herself as the Site Adm(nistrator). [82] In his testimony, Mr. Warman read into the record the following posts: Sonofthesun A lot of people would say this isnt a big deal but I think it is. Here are some examples: do you mix 2 different kinds of cereal together for breakfast? Would you buy a car made up of half ford and half chevy. Do you mix grape juice with orange juice. So why create parts and hybrids of human flesh. - are we dogs. Cyanide_assassin Hey I agree with you all the way all I see in my city is wiggers and half breeds its just wrong, my kids, when I have them will be going to school with these things and at this pace there should be many more in 5 years were going to be infested with them someone needs to open the eyes of these stupid chicks were in trouble. Gladius You can thank the media and all the brainwashing that comes with it. Oh, and politics, well, political correctness. I think white girls feel sorry for these nogs or they think its fashionable or they are showing the world (society) how UNracist they are. What ever happened to instinctive traits like staying with your own kind? Cyanide_assassin no matter what we do were in for a long slow battle that may never be won if its cool to be white again then we lose anyway, do you want to befriend or fuck a converted wigger? I don't. if all of a sudden north america stoped liking rap and blacks, all the white girls and guys will want white again and then the white race will be fucked because most wiggers have aids and many std's from the black man, im sure you all see the way the hiphop influenced people, behave they all fuck each other usually with no protection. I say let them all die off, fuck the wiggers, they've made there choice, all the little mud children will have aids too. one more thing why do you think the so called sisters don't take their black men back from these stupid wiggers, im sure they need dick but nobody wants to fuck a black girl except a black man but their too busy fuckn the white chicks, so if there are any black girls on here (better not be). You're not a threat. You're a fucking disease. [83] At the end of the post, it is mentioned that it was edited by admin. Follows the following post by Melissa: Melissa, Site Admin Cyanid Assassin, I understand your frustration, but please keep in mind the forum rules. Any commentary advocating violence are not tolerated on the forum and will be edited and could lead to banning. Our anger and frustration can be revealed by educating ourselves and others about the current situation and actively fighting it in a non-violent way. Specifically 1. Any messages, data, or images that might be considered to be obscene or which advocates violence will not be tolerated. Re the C.H.A statement: Canadian Heritage Alliance does not condone the use of violence to achieve political and social change. Any reference to revolution within these pages is a reference to a dramatic change of one's belief system - a revolution of the mind. 5. Please refrain from using fowl (sic) language. As of right now the censors are relaxed, though we reserve the right to change this at any time without notice. If at any point posts become too vugar (sic), a private warning will be served. If vulgar language persists, we reserve the right to ban the offending invidiviual's (sic) Cyanide_assassin sorry about that I got so into it didn't even notice. Melissa, Site admin It's angering and frustrating that we must walk on egg shells when we only need to vent - but the hate laws in Canada (right now) allows anyone but Europeans to vent. But we can follow their racist, oppressive, outrageous laws because we have fact, truth, and reason on our side. Though it's not much when the leaders and lawmakers in Canada are not rational people themselves - but the public listens. And it's the people we need to educate to help us fight the laws our politicians are using as weapons to keep us from revealing the truth. Kwazimodo, moderator When a superior race breeeds with an inferior race, then the outcome may be superior to the inferior race but must be inferior the the superior race. Once you go black, you can never go back. Kwazimodo. Shockwave Many revolting things are happening, to be sure, but we have to forget about those things for now and fight battles we can win. Kwazimodo ACHTUNG Micksen mitte der Racen, verboten is. Kwazimodo (Mr. Warman's rough translation was: Attention, Race mixing is forbidden). [84] Mr Warman mentioned, in his testimony, that Ms. Guille had a post that followed without reading it into the record. The post reads as follows: I really don't watch much TV, and less since the programs and commercials all seem to include a political viewpoint. BUT only one viewpoint. Our viewpoint is censured (what happened to Free Speech?) All I can say is I'm thankful for the ability to block channels on TV. [85] Ms. Guille testified, in relation to this thread, that the person who starts a thread creates the title. Ms. Guille added that every culture or most cultures feel the same about losing their own identity, that she did not see why European people should be prevented from discussing this topic. She acknowledged that this was a hot topic. She acknowledged having read of few postings on the topic of interracial relationship. [86] With respect to the post by cyanide_assassin, Ms. Guille testified that she remembered having edited this post so that the person could get his point across but taking out a lot of the grotesque description it contained. She stated that she believed that this post was part of the old forum and that it was gone by the time she received the complaint. Ms. Guille testified that given the frustration expressed by cyanide_ assassin, she felt that she needed to remind him of the forum rules, notably that any comment advocating violence would not be tolerated on the forum and would be edited and could lead to banning. [87] Asked to explain the meaning of the word wiggers, she stated that they are white people who have taken on the Black culture, listen to rap music, identify themselves with the black culture, and the social attributes that go with it. Asked about her own post, what she meant by egg-shells, she stated that she was referring to the fact that the political correctness laws in Canada are very limiting and prevent people from discussing issues which some feel important, that they generate a sense of anger. [88] For Ms. Guille, people need to talk about things so as to get it out of their system. Ms. Guille further acknowledged that there were things that she could not allow people to say but that she did not get offended easily. She stated that she would edit what she thought might be offensive. Asked if she edited comments about violence because she found them offensive or wrong, she answered because she found them wrong and that there were no reasons to talk about hurting people. [89] Asked in cross-examination if he found that the postings made by Ms. Guille here were contrary to section 13 of the Act, Mr. Warman answered that this question cannot be answered in isolation but stated that Ms. Guille was discriminating against non-white when one considers the messages in their entirety and totality. 3. http://www.canadianheritagealliance.com/news_opinion/articles/pierce/hell.html [90] In his complaint forms, Mr. Warman states that this article is the clean version posted by Ms. Guille in order to attempt to protect herself against Canadian anti-hate legislation. According to Mr. Warman, this article claims slavery is legal in Israel, that one of Israel's embassies ran a child prostitution ring, that the Jews control the media, that 3 Jews controlled a huge child pornography ring from Moscow that showed children being raped, tortured and killed, that those who control the media should be exterminated root and branch as a class, that Russians have a valid reason for hating the Jews, that Jews are responsible for organized crime in Russia, that Jews murdered tens of millions of Russians, that Jews have forced thousands of young Russian women into prostitution, and now they kidnap Russian children to rape and sexually torture to death for child-porn films. That those Jews not involved in child-pornography cover for those who do. Mr. Warman notes that the full version of this article had already been found by the Canadian Human Rights Tribunal to constitute hate messaging in the Warman v. Kyburz case, 2003 CHRT 18. [91] The record shows that the title of the article is: There will be hell to pay, by Dr. William Pierce. This document was marked as Exhibit HR-1, Tab. C-11. Mr. Warman noted again at the hearing that this article was found in Warman v. Kyburz to be in violation of section 13 of the Act. Mr. Warman noted that the Canadian Heritage Alliance indicates that the article needed to be edited so that it would conform to Canadian legislation and that the full article could be found here, with a link to the full text. At the hearing, Mr. Warman read into the record long excerpts of this article. Here are some of the more salient excerpts: White-slave business flourishes in Israel because in that country slavery is not illegal (...) The Jews have a tighter grip on the news media in the United States than almost anywhere else in the world and are quite successful at keeping most Americans from hearing about their shenanigans. The freaks, I an sorry to say, are not all Jews, although Jews are ( ) represented among them. The majority, in fact, are Gentiles. I don't know what makes people become so perverse that they enjoy watching a film of a five-year old girl being raped and sexually tortured. My view is that such people should simply be killed on the spot whenever and wherever they are found. More than that, the people who promote and encourage this extreme individualist mind-set through their control of the media should be exterminated root and branch as a class. Does that sound extreme? Twenty thousand dollars for a film of a little blond, blue-eyed Russian girl being raped to death; 1,700 customers for such films. Well, I guess there must be some pretty rich ( ) filmmakers in Moscow. And you haven't heard a word about any of it before my broadcast today, have you? Can you imagine what it would have been like if real Russians instead of ( ) gangsters had been kidnapping and murdering little Jewish children in Moscow so they could film the murders and sell copies of the film to rich Gentile pervents? It would have been on television firmly warning the Russian government that it must do more to catch the Gentiles responsible and to protect the Jews from them. The Jews would be moaning about the Holocaust again and holding out their hands for reparations from the Russian government. And it's why I recently have begun reexamining the whole subject of Jewish ritual murder - because, you know, it worked in the past the same way it works today. Some little group of ( ) perverts or ( ) religious fanatics carrying out some hate-filled injunction in the Talmud gets caught for murdering a Gentile child, and the other ( ) try to buy off the authorities. Well, as I said, one of these days there will be hell to pay, and that day can't come too soon. [92] Ms. Guille testified that Dr. Pierce advised her that it should be edited to conform to Canadian laws. Ms. Guille also stated in her testimony that the edits she made are reflected by the three little dots that appear between the square brackets. Ms. Guille further stated that this article, before it was removed, was in the article database on the website and that anyone could post an article, that people could read the article but could not post comments. [93] Asked what she did when she received the complaint, Ms. Guille stated that she removed the edited version of the article. Asked how she felt about having to edit the article, she stated that for her, it was just an opinion, that she was upset that people could not enjoy the full article in Canada. Asked what guide she had when editing the article, Ms. Guille testified that she read it as somebody who would be offended by comments in the article, that she tried to find what might be offensive to people, that she thought that she had edited it enough and added that it appears that she had not. 4. http://www.canadianheritagealliance.com news_opinion/ articles/millard/death.html [94] In his complaint forms, Mr. Warman writes that this article states that non-white immigration and miscegenation is genocide against whites that is worse than the Black Plague that struck Europe in the Middle Age, that miscegenation is like AIDS, that non-white immigration promises to wipe out all Europeans. [95] The record shows that the title of the article is The Black Plague and was written by H. Millard and submitted by Joe. This document was marked as Exhibit HR-1, Tab. C-13. At the hearing, Mr. Warman read long excerpts of this article into the record. Here are some of the most salient excerpts: There are a variety of names for various aspects of this new Black Death: non white immigration, cross-breeding, miscegenation, blending, assimilation, genocide, low birth rates. Call it what you will. It is a reality. Whites are dying as a people, and we who are now alive are watching it happen right before our eyes. Our people are being erased from the Earth. Unfortunately, many white people either don't even know about the new Black Death, or if they do they are often unconcerned about it. White minds have become so infected that whites are often alienated and completely unconnected to who and what they are, so when they hear of whites becoming extinct, it doesn't phase them. So what, they may say. There are plenty of people on the planet. The new Black Death is far more insidious and infects the genes of a person and is passed on to every child who is born. It wipes out entire family lines that have been in existence for hundreds of thousands of years and robs people of their natural right to exist as white people. This new Black Death turns white people into non-white people, and in a single generation it can destroy a family line, and turn all its members into carriers of the Black Death. Once the genes of a family are infected, there is no cure. You can actually watch as entire white families turn ever darker. The Black Death transforms white people into non-white people. The white skin turns dark. The hair gets dark. The facial features change. The eyes turn dark. The voice changes. The brain changes. They are no longer white people. There are those who argue that this isn't a bad thing and that it is just natural, but one cannot argue that it is the death of white people when this happens. You can be certain that no one will try to save white people from extinction if white people won't do it themselves. The Black Death lurks in the genes, and like AIDS it is spread through sexual contact. Every mating of a white person with a non-white person helps spread the Black Death and kills off with genes. Protect your family from the Black Death. Teach your children the truth about genes, race, history, and about the virulent white haters who are pushing the Black Death disguised as anti-racism, tolerance, and diversity. Teach your children how to survive, and how to avoid genocide, extinction, and non-being. [96] Ms. Guille acknowledged in her testimony that the article was on the website, but that she was not the author of the article and that she was not the person who posted it. She testified that she first found out that this article was problematic when she received the complaint and stated that she removed it within a week of receiving the complaint. [97] Asked if she found anything offensive in the article, she stated that she did not read it until she removed it, that she did not personally find it offensive, that every culture has a feeling of self preservation and that it was an opinion. Ms. Guille further testified that she found the article to be interesting and did not find anything that might have been contrary to section 13 of the Act or the criminal law. [98] Ms. Guille expressed the view that the subject matter of the article was opened for discussion. Asked if she agreed that whites are dying as a people, she answered that she agreed with this and went on to say that she believed these statements to be true, i.e. that our people (white people) are being erased from the earth. 5. http://www.canadianheritagealliance.com/news_opinion/articles/gullet/christian-identity.html [99] In his complaint forms, Mr. Warman writes that this article states that Jews murdered Jesus and are the anti-Christ, that Jews are the literal children of Satan, that Jews promote non-white immigration and miscegenation in order to serve Satan and destroy Western man, that it is our duty to drive out the Jews, that Jews are wicked and that we must begin the eternal destruction of the wicked. The title of the article is: Our Christian Idenity (sic) and was written by Pastor Morris L. Gullet. The document was filed as Exhibit HR-1, Tab. C-14. The article contains long citations from the Bible interspersed by personal comments. At the hearing, Mr. Warman read into the record long excerpts of this article. Here are the more salient ones. The Torah to the Jew is the first five books of the Bible. That is all that they say is valid. But you see, they give their own Talmud and oral law more credence than the Torah even. See the comment on shrewd pragmatism. That means whatever works for the Jew. And they can change their law to suit their purposes whenever they please. Shrew pragmatism hhh. This is simply another way of being decepetive. A play on words is what it is. But what do you expect from a people who Jesus said were of the Devil the father of lies. ( ) Now that we have identified who Israel is and who Israel is not. We have identified the enemies of the Living God to be the anti-Christ Jew, the descendants of Satan. The people against whom YHVH hath indignation forever. It is indeed a blessing now to know and understand the word of God and to know that we are among His called and chosen few. We have much work to do. So it is time to be busy about our fathers work. The awakening of our kindred Israel, the eternal destruction of the wicked and the bringing in of the kingdom of our Father and God, YHVH ... [100] Ms. Guille acknowledged that this article was posted on the Canadian Heritage Alliance website but that she was not the person who posted it. She further stated that when she received the complaint, she removed the posting. [101] With respect to this article, Ms. Guille testified that she was aware that this article had been posted and added that there were other articles dealing with religion on the website that reflected different views. 6. http://www.canadianheritagealliance.com/ news_opinion/articles/francis/shocked.html [102] In his complaint forms, Mr. Warman writes that this article states that African immigrants to France are annihilating Parisian and French civilization, that millions of African and Muslim immigrants are torching Paris, and their cousins in London, England eat rat feces as a delicacy. ...if you allow millions of savages to invade your country, the country will become a land of savages. [103] The record shows that the title of this article is Shocked, Shocked to Find Racial Polarization Going On! The article is written by Samuel Francis and it is mentioned that it was submitted by Graeme Voyer. This document was marked as Exhibit HR-1, Tab. C-22. [104] At the hearing, Mr. Warman read into the record long excerpts of the article that he found objectionable. Here are a few salient excerpts: While the millions of African and Muslim immigrants are torching Paris, their cousins in London are feasting. In that city, projected to have a non-white majority by 2010, police investigating a mysterious human torso recently found floating in the Thames suspect that human flesh is being sold in local markets, according to Last week's Observer. (Human flesh on sale in London, Antony Barnett, Paul Harris and Tony Thompson, Observer, Sunday November 3, 2002). There's no doubt that such rare delicacies as crocodiles' heads, chimpanzee meat, and (my own personal favorite) West African bushrat are being - well - gobbled up at fancy prices in London by African immigrants whose descendants will inherit the city of Johnson and Dickens, The torso itself is believed to be that of a five-year old African boy who was the victim of a ritualistic killing linked to a West African form of voodoo-like religion. The crocodiles heads are medicinal, since they're believed to increase male sexual potency. As in Paris, of course, there is a geographical answer or something like it to explain why the future population of Great Britain is suddenly adopting cannibalism, witchcraft and human sacrifice. That's the answer most newspapers, commentators, academics, and even police will give you. And then there's the real answer - that if you allow millions of savages to invade your country, the country will become a land of savagery. [105] Ms. Guille acknowledged that this article appeared on the Canadian Heritage Alliance website. She stated in her testimony that she became aware that this article was problematic when she received the complaint and removed it from the website. She stated that she read the article after receiving the complaint but not in full. [106] Asked if she saw in the article anything that she considered to be hateful, she answered in the negative, that this was something that was happening in France and could be discussed. Asked to comment on the paragraph starting by There's no doubt, Ms. Guille stated that she found nothing hateful about the paragraph, that it was an opinion based on news articles from newspapers such as The Observer. She further expressed the view that if news can be reported, why should discussing it be hateful. 7. http:/www.canadianheritagealliance.com news_opinion/articles/kwazimodo/911.html [107] In his complaint forms, Mr. Warman refers to the fact that the article states that no Jews died in the attacks in New York City on 11 September 2001 and that this was because they were warned in advance to stay away, that Osama bin Laden is Jewish and that the attacks were in fact part of a Jewish plot. The title of the article is: 9/11 Wrapped Up, and is written by Kwazimodo. The document was marked as Exhibit HR-1, Tab. C-34B. At the hearing, Mr. Warman read into the records the following passages of the article: At the last count on file here, the death toll was something like Gentiles: 2800, Jews:0. This leads one to suspect that there was foreknowledge of 9/11 plans in certain quarters so that one section of the population normally present in the Twin Towers could receive a warning to stay away, while the rest of the population could be blissfully unaware. The problem, as seen here, is how could such an intricate operation as 9/11 be in the planning process and execution, highly secretive, and yet be known to jewish interest? Your humble servant has had a revelation. It was disclosed in a publication from an Australian source of high credibility that Osama bin Laden's mother is jewish. Another source in England supplied the information that the has a sister living in a part of London, England, that is a heavily jewish neghbourhood. Now jewish law states that if a mother is jewish, then the child is jewish. This gives rise to the following Syllogism: Jewish law states that if a mother is jewish , then the child is jewish Osama bin Laden's mother is jewish Therefore Ossam bin Laden is jewish Now we ask you, when you connect the dots, do you see any connection betweeen Osama bin Laden (paragraph 2) and jewish interests (paragraph 1) which could explain the casualty count in 9/11? Sorry it took so long to piece together, but your obscure writer does not have the resources of Mr. Asper's newspaper empire [108] Ms. Guille acknowleged that this article was on the Canadian Heritage Alliance website at the time of the complaint, that she did not write it and that when she received the complaint, she removed the article as well as another similar article. Ms. Guille testified that prior to the complaint, she had not read this article. [109] Asked if she saw any problem with the article, Ms. Guille stated not overtly, that it was an opinion piece, but stated that she would not agree with the article. She further stated that there had been a lot of points of view posted on the Canadian Heritage Alliance website about 9/11. Ms. Guille added that she did not know who Kwazimodo was even if she had appointed him as a moderator. 8. www.canadianheritagealliance.com/news_opinion/articles/unknown/crimes.html [110] In his complaint forms, Mr. Warman states that this collection repeats historical anti-semitic hate propaganda that purports to show Jewish crimes throughout the past several hundred years, that Judaism is Demonic and a Darkness unto the nations, that Jews seek to invade, dominate, enslave wherever they are with the goal of Jewish world domination (p.1 of 14) , that Judaism is .... like some pernicious infection that destroys the body that it has invaded. (p.3). Mr. Warman goes on to reproduce excerpts of the article: Our anti-Semitism, therefore, is not to be confused with call for violence, for disorder, or for pointless recriminations: on the contrary, it must be a doctrine of clairvoyance, of systematic protection; our anti-Semitism will be embodied in binding regulations and adamantine laws that must and shall be - like it or not! - enforced by the full power of the State! ..... Spare a Tear for the Dead of Auschwitz. The only living being that the Germans exterminated at Auschwitz was - the louse. Either/Or. We must now solve the most urgent of all problems, and that is, of course, the Jewish Problem; there are only two alternatives: we must expel them, or we must massacre them. [111] The title of this article is Museum of Jewish Crimes and is written by unknow authors. This document was marked as Exhibit HR-1, Tab. C-36. At the hearing, Mr. Warman read into the record long excerpts of this 14 page long article. The Tribunal has reproduced herein some of the most salient excerpts: George Batault Invade, Dominate, Enslave. In their deepest essence unadapted, and in a very real sense unadaptable, to the particular nation to which they allegedly belong, the Jews fatally and instinctively strive to reform and transform the host nation's institutions in such a way that laws and customs become solely and exclusively adaptable to the ends that the Jews themselves pursue; these ends may seem at first to be practical, but ultimately, and above all, the goals turn out to be messianic in their scope and intent. The ultimate imperial destiny toward which the Jews are striving, notwithstanding temporary trials and failures along the way, will always remain the unconditional victory of Israel, which will usher in the ultimate reign over the prostate world that Israel has at last conquered and enslaved, according to the explicit prophecy of Isaiah. Judaism insinuating, tenacious, and mysterious, an entity that grew and spread across the ancien world like some perinicious infection that destroys the body that it has invaded. As the initial success, and ultimately the toal victory, of Judaic conceptions have marked the decline and then the downfall of the ancient world, we are completely justified in maintaining that the Jews brought absolutely nothing to ancient civilization except the most powerful ferment of dissolution. Jakob Friedrich Fries Therefore, the Jewish sect must be torn out root and branch from German soil, since it quite obvious that of all the secret political societies the most dangerous is Jewry, just as of all the states within the state the most dangerous is Jewry. (How Jewry Imperils Germany, 1816) Charles Hagel Our anti-Semitism, therefore, is not to be confused with call for violence, for disorder, or for pointless recriminations: on the contrary it must be a doctrine of clairvoyance, of systematic protection; our anti-Semitism will be embodied in binding regulations and adamantine laws that must and shall be - like it or not! - enforced by the full power of the State! Joris-Karl Huysmans One must wonder what on earth is happening here in the Frankfurt ghetto, which bears so little resemblance to the Foelistrat in Amsterdam, a lazar-house that features the more familiar Jewish types, where both men and women sport abundant manes of kinky hair, oozing eyes, noses shaped like the snouts of tapirs, gaping mouths, and shiny brows perpetually dusted by the flour of dandruff. Darquier de Pellepoix Spare a Tear for the Dead of Auschwitz. The only living being that the Germans exterminated at Auschwitz was - the louse. Either/Or. We must now solve the most urgent of all problems, and that is, of course, the Jewish Problem; there are only two alternatives: we must expel them, or me must massacre them. F. Trocase You Know Who Is to Blame! Anti-Semitism would not possess such mighty roots if there were not such mighty reasons that both explain and justify its existence: Who buys the house and its furniture after having ruined its former owners? The Jew! Who evicts the poor peasant from this ancestral hearth? The Jew! Who encourages the spread of moral filth and degradation among young people? The Jew! Who concocts fraudulent bankruptcies? The Jew! Who steals from the worker the fruits of his labors? The Jew! Who exploits political passions to satisfy his lust and to fill hir coffers? The Jew! Who is the real cause of economic depressions? The Jew! [112] In her testimony, Ms. Guille stated that she was not the person who posted the article which appeared in the Canadian Heritage Alliance article database. She further testified that after receiving the complaint, she removed the article. For her, the article appears to be a legitimate historical collection of a timeline and that she did not see anything wrong with it. [113] The evidence indicates that Ms. Guille, upon receiving the complaint form which cites 8 examples and the additional disclosure which refers to 37 or so posting and articles, removed the material from the CHA website. There is no reason for the Tribunal to doubt that Ms. Guille did in fact removed the articles and postings referred to above. Mr. Warman and the Commission did not adduced evidence to the contrary. [114] Ms. Guille testified that at one time, there was close to 1 000 articles on the website and that now the number was around 300 to 350 and that the eight postings or articles referred to in the complaint forms were not amongst the remaining articles. In her testimony, Ms. Guille acknowledged that the articles posted on the Canadian Heritage Alliance website are controversial. [115] Asked why she removed all these postings, Ms. Guille stated that if obviously it was a problem, her idea of what is acceptable is not necessarily what other would find acceptable, that at any time someone could have contacted her and let her know that there was a problem with one of the posts or one of the articles and she would definitely have removed it but that, unfortunately, it came in the form of a complaint and that the only way she could offset any hurt feelings and offence that someone took to the post was to remove it. Ms. Guille acknowledged that there had been occasionally in the past complaints and that she would removed an article if someone took offence to it. Ms. Guille stated that there were only a handful of complaints. [116] To determine if a respondent has violated section 13 of the Act, the Tribunal has to determine if the material posted is likely to expose a person or persons to contempt and hatred by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination. The determining factor is not the numbers of postings or articles that are put on a website but the content of the material and the context in which they are made public. [117] Applying to the posts and articles referred to above, and more specifically to the passages that the Complainant and the Commission alleged to be in contravention of section 13 of the Act the criteria set out by the Tribunal in Warman v. Kouba, the Tribunal finds that the following passages are of such a nature to likely expose Jews and Blacks to hatred or contempt: My view is that such people should simply be killed on the spot whenever and wherever they are found. More than that, the people who promote and encourage this extreme individualist mind-set through their control of the media should be exterminated root and branch as a class. Does that sound extreme? (Exhibit HR-1, Tab. C-11) Those who control the media (the Jews)should be exterminated root and branch as a class. (Exhibit HR-1, Tab. C-11) Well, as I said, one of these days there will be hell to pay, and that day can't come too soon (reference to the Jews). (Exhibit HR-1, Tab. C-11) Now that we have identified who Israel is and who Israel is not. We have identified the enemies of the Living God to be the anti-Christ Jew, the descendants of Satan. The people against whom YHVH hath indignation forever. It is indeed a blessing to know and understand the word of God and to know that we are among His called and chosen few. The elect of the Lord. We have much work to do. So it is time to be busy about our fathers work. The awakening of our kindred Israel, the eternal destruction of the wicked and the bringing in the kingdom of ou Father and God, YHVH. (HR-1, Tab. C-14) And then there's the real answer - that if you allow millions of savages (i.e. Blacks) to invade your country, the country will become a land of savagery. (Exhibit HR-1, Tab. C-22) Therefore, the Jewish sect must be torn out root and branch from German soil, since it quite obvious that of all the secret political societies the most dangerous is Jewry, just as of all the states within the state the most dangerous is Jewry. (Exhibit HR-1, Tab. C-36) Either/Or. We must now solve the most urgent of all problems, and that is, of course, the Jewish Problem; there are only two alternatives: we must expel them, or we must massacre them. (Exhibit HR-1, Tab. C-36) [118] These are not the only passages taken from the above referred to threads and articles that can be considered as likely to generate hostility and violence creating the right conditions for hatred or contempt. They are the more blatant ones. They undoubtedly put at risk the well-being and safety of Jewish individuals as well as Blacks. They constitute a clear call for the elimination of certain groups of individuals or their expulsion from the place where they live. [119] Other postings and articles depict certain groups in such a way as to stir up a sentiment of repulsion towards them compromising their safety, well-being and dignity: Hey I agree with you all the way all I see in my city is wiggers and half breeds its just wrong, my kids, when I have them will be going to school with these things. (Exhibit HR-1, Tab. C-5) You're not a threat. You're a fucking disease. (about black girls) (Exhibit HR-1, Tab. C-5) Do you want to befriend or fuck a converted wigger? I don't. If all of a sudden north america stoped liking rap and blacks, all the white girls and guys will want white again and then the white race will be fucked because most wiggers have aids and many std's from the black man. Im sure you all see the way the hiphop influenced people, behave they all fuck each other usually with no protection. I say let them all die off, fuck the wiggers, they've made there choice, all the little mud children will have aids too. (Exhibit HR-1, Tab. C-5) The New Black Death, unlike the earlier one, isn't sneaking in on the back of rats, but is sneaking in by airplaine, by car, and on foot. There are a variety of names for various aspects of this new Black Death: non white immigration, cross-breeding, miscegenation, blending, assimilation, genocide, low birth rates. (Exhibit HR-1, Tab. C-13) Spare a Tear for the Dead of Auschwitz. The only living being that the Germans exterminated at Auschwitz was - the louse. (Exhibit HR-1, Tab. C-36) The more familiar Jewish types, where both men and women sport abundant manes of kinky hair, oozing eyes, noses shaped like the snouts of tapirs, gaping mouths, and shiny brows perpetually dusted by the flour of dandruff. (Exhibit HR-1, Tab. C-36) [120] The material referred to above in itself, the language used by the authors, the tone of the material posted, the general context of the postings, all put together, disclose an undeniable scent of overt resentment, hatred, contempt for certain groups of individuals based on a prohibited ground of discrimination. [121] Freedom of expression is a cherished value in Canada. Freedom of expression has been enshrined of the Canadian Charter of Rights and Freedoms. However, as any other freedom, it is not absolute. Promoting traditional European values in not a crime. Promoting the extermination of non-whites, of non European people, however, constitutes a threat to their existence and their security. Promoting the expulsion from a country of certain ethnic groups likewise constitutes a threat to their safety and their well-being. [122] If Ms. Guille is true to herself, i.e. promoting what she calls European values, there is no need for her to vilify or let others vilify people from other geographic regions, or from other ethnic backgrounds than the European background. Unless the promotion of European values entails the extermination of all other ethnic groups who are not from the Old Europe as well as the expulsion from Canada of every person who is not of European descent. [123] The Tribunal is of the view that it is not an excuse for Ms. Guille to say that she did not write an article or did not post an article on the Canadian Heritage website which might be in breach of section 13 of the Act. As the site administrator or webmaster, she is responsible for what is put on the website she administers and over which she exercises, as the evidence indicates, full control. It is her responsibility to put in place the proper controls so that if hate messages, threads or articles, are posted, they will not breach section 13 of the Canadian Human Rights Act and violate the fundamental freedoms that each Canadian enjoy, no matter his or her ethnic origin, i.e. the right to the dignity of his or her person, the right to life, the right to the security of his or her person. [124] As part of the Respondents' defense, Mr. Kulbashian, Ms. Guille's agent, put in evidence a number of articles which dealt with the Palestinian and Israeli conflict, as well as articles pertaining to racial segregation. He also tendered in evidence lyrics from Eminem which Mr. Kulbashian had downloaded from the web and which were, in his opinion, violent, racist and anti-homosexuals. [125] The Tribunal agrees with Counsel for the Commission that the use of reprehensible and violent language, even by a famous rap group, does not legitimize the use of the same type of language in another context or forum. It cannot serve as a benchmark for the determination as to whether or not material put on a website contravenes section 13 of the Act. [126] The Tribunal thus finds that the material referred to above is likely to expose to hatred or contempt a person or persons by reason of the fact that that that person or those persons are identifiable on the basis of a prohibited ground of discrimination and thus contravenes section 13 of the Act. (ii) Was the impugned material communicated repeatedly in whole or in part on the Canadian Heritage Alliance website? [127] In Schnell v. Michiavelli and Associates Emprize Inc, 2002 CHRT 11/02, the Tribunal stated that the word repeatedly in s.13(1) of the Act 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 certains ideas or opinions, designed to gain converts from the public. [128] The evidence shows that the Canadian Heritage Alliance website hosted a forum section where individuals were allowed to start threads and post articles. This forum was not of a private nature and everyone accessing the website could read the material posted on the website. The public nature of the Canadian Heritage Alliance website clearly comes out of Mr. Guille's testimony as indicated earlier. Ms. Guille stated in her testimony that the Canadian Heritage Alliance website was a means for people to express their views on free speech and government policies, that people could come to the website and post their articles and opinions, that they could start a thread in the forum section and exchange views, that debate was really promoted. [129] The Tribunal thus finds that there is nothing private about the Canadian Heritage Alliance website and that, given its nature as well as the means of accessing it, the Respondents communicated and caused to be communicated repeatedly the postings and articles found by Mr. Warman on the Canadian Heritage Alliance website which forms part of his complaint. (iii) Did the Respondents, Melissa Guille and Canadian Heritage Alliance, communicate or cause to be communicated the impugned messages by means of the Internet? [130] There can be no doubt, given the evidence adduced by the Complainant and the Commission that the Canadian Heritage Alliance website was accessible via the Internet as well as the impugned material. Ms. Guille's testimony as well as that of Mr. Warman are conclusive on this point. (iv) Is the Respondent, Canadian Heritage Alliance, a group of persons for the purposes of section 13(1) of the Act? [131] The evidence clearly establishes that the Canadian Heritage Alliance is a group of persons for the purposes of section 13(1) of the Act. As found herein, the Canadian Heritage Alliance decribes itself as as a collection of dissident writers and concerned Canadians who seek to revive the civil liberties of the Canadian citizen that have been smothered by the voice of special interest groups as well as a Canadian political lobby group, formed in August 2000 to give political expression to Canadian citizens. The Canadian Heritage Alliance falls thus under the authority of the Tribunal and the Tribunal is entitled to make an order against it. [132] Hence, the Tribunal finds that Ms. Guille and the Canadian Heritage Alliance have breached section 13(1) of the Canadian Human Rights Act in that as a person and as a group of persons acting in concert they have communicated via the Internet or caused to be so communicated repeatedly, in whole or in part, matters that are 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. V. REMEDIES [133] The Complainant and the Commission seek the following remedies: An order that the Respondents and anyone acting in concert with them cease the discriminatory practice, pursuant to section 54(1)(a) of the Canadian Human Rights Act; An order that the Respondent, Melissa Guille, pay a penalty pursuant to section 54(1)(c). A. Cease and Desist Order [134] The Complainant and the Commission seek a permanent cease and desist order in accordance with paragraph 54(1)(a) of the Act in order to have Ms. Guille and the Canadian Heritage Alliance cease the discriminatory practice of communicating hate messages through the Internet or other federal telecommunications undertaking. [135] Section 54(1)(a) of the Act reads as follows: If a member or panel finds that a complaint related to a discriminatory practice describred in section 13 is substantiated, the member or panel may make only one or more of the following orders: (a) an order containing terms referred to in paragraph 53(2)(a). As for paragraph 53(2)(a), it reads: 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 appropritate: (a) that the person 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 the future. [136] More specifically, the Commission and the Complainant request an order using the same wording as that used by Member Doucet at paragraph 169(1) of the Tremaine decision with Ms. Guille and the Canadian Heritage Alliance substituted for that of Mr. Tremaine. The Commision and the Complainant further ask that the term and anyone acting in concert with Ms. Guille and the CHA be included. [137] Paragraph 169(1) of the Tremaine decision reads as follows: Terry Tremaine, and any other individuals who act in concert with Mr. Tremaine, 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 or contempt by reason of the fact that that 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. [138] The Respondents submit in their written pleadings that should there be a negative finding in this case, a limited cease and desist order of one year be imposed. According to the Respondents, an open cease and desist order is a life sentence. The Respondents argued that a lifetime cease and desist order would make it highly risky for Miss Guille to ever again discuss controversial matters that are the subject of this complaint on the Internet and express the view that the call for such a cease and desist order strongly suggests that the real purpose of the complaint is the silencing of a political opponent and not the remediation of discrimination. [139] Given the remedial nature of the Act and the powers given to the Tribunal by section 54 of the Act, the Tribunal will issue a cease and desist order and will require that Ms. Guille, in consultation with the Commission, take measures to redress the practice or prevent the same or a similar practice from occurring in the future. B. Order to pay a penalty [140] The Complainant and the Commission seek that Ms. Guille be ordered to pay a penalty pursuant to section 54(1)(c) of the Act. In their joint closing submissions, the Commission and the Complainant submit that a penalty of $7,500, similar to that in the Kyburz case would be appropriate. [141] Under section 54(1)(c) of the Act, the Tribunal may make an order that a respondent found to have violated s.13 of the Act pay a penalty of not more than $10,000. [142] Section 54(1.1) of the Act provides the elements that the Tribunal should take into consideration in ordering the payment of a penalty. The Tribunal must consider: 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. [143] A review of the case law shows that the Tribunal has imposed the following penalties to respondents found to have been in breach of section 13 of the Act. 1. Warman v. Tremaine, 2007 CHRT 2: $4,000 [144] The Tribunal found in Tremaine that the respondent had himself posted numerous hate messages that were highly contemptuous and injurious. They portrayed members of the targeted groups as evil and criminal. They refered to Jews as parasites and vermin. They claimed that Blacks were inferior to Whites. They called for the expulsion of Jews, Blacks and non-whites from Canada. These messages are malicious, vicious and extreme in the violent nature of their overtone. [145] On the positive side for the respondent, the Tribunal noted that there was no information that he had engaged in any prior discriminatory practices before he started posting on the Stormfront website in 2004. Also, the Tribunal found the fact that for a period of about ten months, after he was served with the complaint, the respondent refrained from posting any messages and that at one point, even disavowed and repudiated all of his messages, should be taken into consideration when determining the amount of the penalty to be imposed. [146] In terms of the extent of the hate messages, the Tribunal found that the respondent had posted almost 1,900 messages on the Stormfront site, as of July 28, 2006. Since the Tribunal had not seen nor read all of these messages, the Tribunal could not, in all fairness to the respondent, conclude that they all contained hate messages of the nature of those put into evidence in this case. Consequently, the Tribunal could not come to the conclusion that the number of messages posted favoured a penalty at the highest end of the spectrum. [147] The Tribunal noted that the respondent's wilfulness and intent in engaging in the discriminatory practice, was self-evident from the vicious tone of the messages themselves. His reaffirmation at the hearing that he stood by all his postings, his refusal to utter any remorse and the fact that he has not shown any indication that he had any intent of stopping. [148] In Tremaine, the respondent gave evidence regarding his financial situation. He testified that he did not own a car or a house, that he had lost his job at the University of Saskatchewan. He testified that he was working 20 hours a week at a minimum wage job, clearing about $600 a month. This evidence went unchallenged and the respondent was not cross-examined on this matter neither by the Commission, nor by the Complainant. Taking into account the nature, circumstances, gravity and intentional nature of the communication, and taking all the other factors into consideration, the Tribunal found that a penalty of $4,000 would be reasonable in the circumstances. 2. Warman v. Winniki, 2006 CHRT 20: $6,000 [149] The Tribunal found that the messages posted by Mr. Winnicki were vicious and dehumanizing. The Tribunal expressed the view that there was 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. [150] The Tribunal noted that 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. [151] The Tribunal was of the view that 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. The Tribunal found that there was no evidence that the respondent had engaged in any prior discriminatory practices. [152] In Winnicki, the respondent chose not to testify in the present case. Therefore, the Tribunal had no indication of his ability to pay other than a posting in which he stated that he is reasonably well off, with a steady paying job, not much expenditures, all bills paid on time without much hassle. The Tribunal noted that it may well be that the respondent is no longer reasonably well off. However, in the absence of any evidence from the respondent, the Tribunal found that there was no reason to reduce the penalty on the basis of an inability to pay it. Taking all of these factors into account, the Tribunal ordered the respondent to pay a penalty in the amount of $6,000. 3. Warman v. Kulbashian, 2006 CHRT 11: $1,000 [153] In Kulbashian, 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. The Tribunal 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. [154] 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 many of the Hate Messages, the Tribunal was persuaded that he caused all the Hate Messages to be communicated, and that he did so wilfully. [155] 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. [156] The Tribunal noted that, in general, Mr. Kulbashian took 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 contended that he was too busy to keep track of the material being posted on the Internet through his web server. He claimed 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. [157] The Tribunal expressed the view that this argument, however, assumed a false naiveté on Mr. Kulbashian's part. For the Tribunal, Mr. Kulbashian 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 and 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, the Tribunal found that being a regular member of the Tri-City Skins, he likely was familiar with the organization's website and that 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. [158] The Tribunal was of the view that it lacked credulity, therefore, for Mr. Kulbashian to come 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 Tribunal found that the above demonstrated that Mr. Kulbashian was aware of the content of the material, and consciously and deliberately enabled its dissemination. For the Tribunal, this constituted wilful conduct within the meaning of the Act. [159] 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, the Tribunal found that it had insufficient information from which to draw any conclusions. [160] The Tribunal indicated that the Commission did not lead any evidence regarding Mr. Kulbashian's ability to pay the penalty. The Tribunal noted that, in Warman v. Kyburz, the proposition that the burden may rest on a respondent to demonstrate his ability to pay the penalty seemed to have been accepted. In that case, however, the Tribunal took into account evidence that was unsworn and untested by cross-examination. The Tribunal noted that, 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 was raising a young child on his own. [161] While the available information is not conclusive, the Tribunal expressed the belief that Mr. Kulbashian's financial means were fairly limited, and that his ability to pay was accordingly restricted. Taking all of these factors into account, the Tribunal ordered Mr. Kulbashian to pay a penalty in the amount of $1,000. 4. Warman v. Richardson, 2006 CHRT 11: $1,000 [162] The Tribunal found that there was no evidence of any involvement by Mr. Richardson with respect to the tri-cityskins.com website. The Tribunal, 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 the Tribunal of any prior discriminatory practices by him. [163] The Tribunal noted that 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, the Tribunal stated that it was persuaded that he was a person of very modest financial means. He indicated that he was 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, the Tribunal ordered Mr. Richardson to pay a penalty of $1,000. 5. Warman v. Harrison. 2006 CHRT 28: $1,000 [164] Insofar as the nature, circumstances, extent and gravity of his conduct, the Tribunal found that Mr. Harrison repeatedly communicated messages regarding persons who were 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 Tribunal found that the messages were demeaning and disdainful. They served to dehumanize people belonging to the targeted groups. The use of racial slurs and degrading stereotypes were derogatory, insulting and offensive. The repeated call for violence against members of these groups denoted feelings of extreme ill will. Statements exhorting violence and death suggested that the victims lack any redeeming qualities, thereby dehumanizing them. These comments unquestionably exposed the members of these groups to hatred, contempt and real physical danger by suggesting that they were legitimate targets of indiscriminate violence. These messages served to develop and encourage envy, mistrust or resentment towards these individuals and groups, which in turn, breeds hatred against them. [165] The Tribunal also found that the messages clearly demonstrated that its author was being led by his ill-conceived views of society and his incapacity to accept others. The evidence clearly established 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. The Tribunal also took notice of the fact that the respondent had previously been found guilty of an assault on an individual which was racially motivated. [166] On the mitigating side, the Tribunal found 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. The Tribunal also noted that the respondent was not responsible for the Websites; that he was but a participant to these various Websites. No evidence was introduced to show that there was a possibility of any recurrence of such postings by the respondent. [167] As for the respondent's ability to pay a penalty, the Tribunal stated that, 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, the Tribunal found that there was no evidence before the Tribunal suggesting that Mr. Harrison may have had limited resources. [168] Taking all of these factors into account, the Tribunal ordered the respondent to pay a penalty in the amount of $1,000. The order that the respondent pay this penalty was imposed essentially by reason of the violent nature of the postings. 6. Warman v. Kouba, 2006 CHRT 50: $7,500 [169] The Tribunal found 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. [170] For the Tribunal, this active promotion of hatred and contempt towards members of the targeted groups was 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. [171] The Tribunal noted that there was, however, no information that the respondent had engaged in any prior discriminatory practices. Nevertheless, taking into account the nature, circumstances, gravity and intentional nature of the communication in the present case, the Tribunal found that the suggested penalty of $7,500 seemed appropriate and noted that 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, the Tribunal saw no reason to reduce the penalty and ordered the respondent to pay a penalty in the amount of $7,500. 7. Warman v. Kyburz, 2003 CHRT 18: $7,500 [172] Insofar as the nature, circumstances, extent and gravity of the discriminatory practice are concerned, the Tribunal found that Mr. Kyburz repeatedly communicated messages regarding Jewish people that were nasty, vicious and extreme. Not only did these messages attribute numerous and varied criminal acts to people of the Jewish faith, described therein as innately corrupt and devious, but some messages went so far as to openly advocate the extermination of Jews root and branch as a class. The Tribunal noted that his weighed heavily in favour of the assessment of a significant penalty. [173] The Tribunal further found that Mr. Kyburz was responsible for the communications on the Patriots on Guard website. For the Tribunal, it was clear from the messages themselves that he communicated this information willfully, knowing that it was upsetting to many people. There was, however, no evidence before the Tribunal to suggest that Mr. Kyburz had been involved in any prior discriminatory practices, which serves as a mitigating factor. [174] The final consideration for the Tribunal was Mr. Kyburz' ability to pay a penalty. In this regard, the Tribunal noted that the only information that it had in relation to this issue was the unsworn assertion contained in one of Mr. Kyburz' web postings that he was impecunious. In this case, the Tribunal was of the view that there was some evidence before it, albeit evidence that is unsworn and untested by cross-examination, to suggest that Mr. Kyburz may have limited resources. Because of the way the evidence was adduced, the Tribunal did not feel that it could attribute it much weight, although it considered it. The Tribunal also stated having taken into account the fact that this was evidently a first offence for Mr. Kyburz. While the seriousness of the section 13 breach would otherwise call for a fine at or near the maximum permissible under the legislation, these factors have persuaded the Tribunal that a somewhat reduced penalty was appropriate. Having regard to all of the circumstances enunciated in subsection 54(1.1), the Tribunal ordered that Mr. Kyburz pay a penalty in the amount of $7,500. 8. Warman v. Barr, 2006 CHRT 52: $5,000 [175] Insofar as the nature, circumstances, extent and gravity of the discriminatory practices are concerned, the Tribunal 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. The Tribunal was of the view that this weighed heavily in favour of the assessment of a significant penalty. [176] No evidence was led to suggest that the respondent had engaged in any prior discriminatory practices. The Tribunal took note of the fact that 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. The Tribunal further found that the fact that the website was shut down by Mr. Bahr almost immediately after Sergeant Camp executed a search warrant at his apartment was a mitigating factor. [177] The Tribunal heard no direct evidence of the details of Mr. Bahr's financial circumstances. The Tribunal noted however, that s. 50(3) of the CHRA authorized 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. Mr. Bahr, through his representative, made it clear that the costs of the hearing were onerous on this respondent. The Tribunal found that Mr. Bahr was an individual of modest means and that his ability to pay was restricted. [178] 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, these factors persuaded the Tribunal that a somewhat reduced penalty was appropriate. The Tribunal ordered Mr. Bahr to pay a penalty in the amount of $5,000. 9. Warman v. Beaumont, 2007 CHRT 49: $1,500 [179] In Beaumont, the Tribunal found that most of the impugned messages were likely to expose a number of targeted groups to hatred or contempt. The Tribunal noted that Ms. Beaumont did not care what effect her messages would have on members of these groups or the community at large. [180] Compared to other hate messages that have come before the Tribunal in the past, the Tribunal found that Ms. Beaumont's did not have the same gravity. Thus, although her postings contained negative epithets with respect to a number of targeted groups, these terms were not used with the same frequency as in other cases. Ms. Beaumont did not engage in any vivid descriptions of violence against the targeted groups. Her messages were in the form of relatively short postings on the forum, for the most part. She did not create an entire website replete with or dedicated to the communication of hate messages, as has been seen in other cases. [181] The Tribunal noted that the Commission had pointed out that Ms. Beaumont had posted at least 1,000 or more messages on the Stormfront.org forum, beyond those that are in evidence in this case. Without viewing the other postings, however, the Tribunal stated that it could not assume that they would offend section 13 of the Act, that indeed, not every single one of the impugned messages filed in evidence was found to constitute hate messages within the meaning of the Act. [182] The Tribunal indicated that Ms. Beaumont testified that she had not been on Stormfront.org since July 2006, and that her EveryonesSpace.com and MySpace accounts had been deleted. However, the Complainant pointed out that after the human rights complaint was filed against her, she posted a number of the hate messages that were in evidence in this case. [183] The Tribunal further noted that Ms. Beaumont testified that whatever the Tribunal's decision in this matter, she would not change her views and ideas. However, she testified that she would stop going to the Internet if the Tribunal ordered her to do so. [184] The Tribunal found that, at the time of the hearing, Ms. Beaumont was no longer residing in British Columbia and had moved back to Calgary, that she was 21 years old and was living with her parents, that she claimed to be paying rent to her parents although this evidence was not documented, that she was employed as a salesperson in a retail store earning $10.50/hour. The Tribunal further found that there was no evidence of her having engaged in any prior discriminatory practices. Taking all of these factors into account, the Tribunal ordered Ms. Beaumont to pay a penalty of $1,500. [185] Using the discretion conferred upon it by the Canadian Human Rights Act under section 54(1), after having carefully considered the case law and the different aggravating and mitigating factors that the Tribunal has to take into consideration with respect to the imposition of a penalty, the Tribunal will not order Ms. Guille to pay a penalty. This should not be seen in any way as the Tribunal condoning Ms. Guille's conduct as administrator of the Canadian Heritage Alliance website. Ms. Guille as well as the Canadian Heritage Alliance have without a doubt contravened section 13 of the Act. This said, it is worth mentioning here that the Canadian Human Rights Act is first and foremost remedial in nature and not punitive even if the Tribunal has under the Act the authority to impose a penalty. [186] Here, the evidence shows that only a few of Ms. Guille postings and not all of them were identified by the Complainant and the Commission as being potentially in breach of section 13 of the Act. The Tribunal notes that none of her postings called for the extermination, expulsion or killing of groups of people or ridiculed certain persons or events such as the Holocaust. [187] Now, the Tribunal is mindful of the fact that Ms. Guille was the webmaster who allowed material to be posted on the Canadian Heritage Alliance website and had the authority to remove the material. The evidence, however, indicates that Ms. Guille, as soon as she was informed that a posting or an article could be problematic, removed it from the Canadian Heritage Alliance website. The evidence also shows that Ms. Guille edited some of the articles and threads that the Complainant and the Commission alleged to be in contravention of section 13 of the Act. The evidence further indicates that there were forum rules and that, at least once, Ms. Guille reminded an individual of the rules and advised him that he could be banned if he did not comply with them. Furthermore, Ms. Guille testified that she did not condone violence and that she did not approve of death threats or any criminal conduct. All these elements put together lead the Tribunal to rule, as stated above, that, notwithstanding the fact that Ms. Guille, as site administrator of the Canadian Heritage Alliance website, has been found to be in breach of section 13 of the Act, the circumstances do not warrant the imposition, in this case, of a penalty. [188] This said, the Tribunal finds furthermore that Ms. Guille has limited financial resources and that imposing on her a penalty would, at this juncture in her life, put on her some undue hardship. Ms. Guille testified that she was an administrative secretary, that she worked 40 hours a week at an hourly rate of $14.00, that she received child support, in the amount of $325 a month, that she was not married, that her rent was $750 a month plus utilities and that she was raising a teenager all by herself. [189] In addition, there is no evidence before the Tribunal establishing that Ms. Guille has engaged in any prior discriminatory practices. The evidence furthers shows that when served with the complaint, Ms. Guille immediately removed from the Canadian Heritage Alliance website the material that was possibly in breach of section 13 of the Act. [190] The Tribunal is of the view that the interest of the public will be better served if the Tribunal issues a cease and desist order accompanied by an order requiring that Ms. Guille work with the Commission to redress the discriminatory practice identified by the Tribunal as provided by section 53(2)(a) of the Act. This should provide Ms. Guille with the guidance she stated she did not have with respect to what type of material potentially breaches section 13 of the Act. VI. ORDERS [191] With respect to the merits of the case, for the foregoing reasons, the Tribunal finds the complaints referred to the Tribunal to be substantiated and the Respondents to have contravened section 13 of the Act and hence orders that Melissa Guille, and anyone acting in concert with Ms. Guille and the Canadian Heritage Alliance, cease the discriminatory practice of communicating telephonically or causing to be communicated telephonically by means of the 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 that 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; Melissa Guille as webmaster and administrator of the Canadian Heritage Alliance website take measures, in consultation with the Commission on the general purposes of the measures for a period of one year as of October 14, 2008, to redress the practice or to prevent the same or a similar practice from occurring in the future. [192] Given the notice of constitutional challenge presented by the Respondent, Melissa Guille, and the previous directives issued by the Tribunal, on November 20, 2007, as to the proper time to present such challenge, the Tribunal orders that the execution of the present decision be suspended for a period of 30 days in order to allow the Respondent, Melissa Guille, if she so wishes, to present a motion that sets out the basis of her constitutional challenge to which the Commission and the Complaint will be entitled to respond or to object. Signed by Pierre Deschamps OTTAWA, Ontario September 12, 2008 ANNEX I POSTS AND ARTICLES NOT REFERRED TO IN THE COMPLAINTS FORMS HR-1, Tab. C-2 This document is entitled Al-Jazerra as competition. At the hearing, Mr. Warman read into the record the three following posts: Kwazimodo Once again, I don't want to rain on the parade, BUT: The fact that Aljazeera (spelling?) has been placed on the acceptable list does NOT mean that it will be on the available list. Shaw Cable is reported (in the controlled jewish press) to have announced that they won't carry it, (a) because it would require 24/7 monitoring, and (b) the cable company has already received numerous messags from clients (guess who?) who threaten to cancel their subscriptions if the Arabs, get a fair shake (Good heavens, I just made a funny: the correct pronunciation of the word sheik is also shake. Angry taxpayer I am afraid that if the jews have their way, it won't be coming to Canada, period. So much for free speech here in totaltarian (sic) socialist Canada. Melissa Since the schools no longer emphasize academics and use the bright children (typically the White English speaking students) as tutors for the children who have lower IQs or are new immigrants, the students are being cheated of their education and we witness the dumbing down of our society. HR-1, Tab. C-3 This document is entitled Al-Jazerra as competition. At the hearing, Mr. Warman read into the record the following passages: MinorityReport It's not just Osama it's the whole Muslim movement we need to fear. You need look no further that the severe brutality of the koran to see what a danger they pose to everyone. All of these bleeding heart Liberals need to wake up and realize they want to ahniallate (sic) western civilization. They consider all of us the great Satan, and rightly so. Muslim society looks to us and sees a land of thieves, murderers, sexual deviants a culture obsessed with the material world. Shadowmite Raghnall: I do not agree with your belief that AlQaeda poses no danger to our people. 9/11 and the recent subway bombings in Spain were not an act in my imagination or yours. I take very seriously any threat from terror groups and so should you. MinorityReport was right when he stated, it's the whole Muslim movement we need to fear. We need to protect ourselves by not allowing nationalities from terrorist sponsored countries into Canada and by enacting racial profiling to protect our citizens. MinorityReport Quote: The US need to stop involving itself in the Middle East and let Israel support itself. Although, it may too late (sic) for that, since Israel and the US are one and the same in the eyes of most of the World. I agree with that, but not only should America stay out of middle eastern affairs, but Canada and America should work toghether to rid our Coutries (sic) of middle eastern immigration alltogether (sic) I don't want to sound like a facist but but (sic) risk outweighs the benifts (sic) of immigration. When it comes down to our sovereignty, as a nation must be upheld at all costs. HR-1, Tab. C-4 This documents is entitled Britons rate what makes them British. At the hearing, Mr. Warman read to the record the following passages: Shadowmite Canadian Liberal values make me want to vomit on every porch monken, sand flea and diaper head I see in our beloved nation. This filthy presence has created rampant disease, deviant sexual practices and increased crime in the name of liberalism. HR-1, Tab. C-6 The title of this document is Which brings me to the race mixing tread. At the hearing, Mr. Warman read into the record the following passages: Lord Janus Funny you mention dogs. Purebreed dogs (breed for show or not) are often sickly and prone to health issues where mutts are healthier. Humans on the other hand are better being true to the breed and bloodlines and ... well, nothing irks me more than walking down the street seeing mixed couples. Funny thing is, other races feel the same about inter-racial marriages but only whitey is racist. Eponanightmare Kwazimodo wrote: once you go black, you can never go back. Kwazimodo. I must prefer once you go black we don't want you back .... Panzer-dragoon Kwazimodo wrote: once you go black, you can never go back. Kwazimodo. ... because you either have AIDS, herpes, syphilis, etc. Shockwave Eponanigthmare is the quintessential eloquent speaker. HR-1, Tab. C-7 The title of this document is Wiggerton. A the hearing, Mr. Warman read into the record the following passages: Cyanide_assassin What would your parents say if you came home with a fubu or fat farm shirt dada shoes and listening to bang bang da beech izz ded, we da niggas? I know my father would smack the taste out of my mouth and he's not racist he just knows its wrong. I see all these European parents letting their kids listen to 50 cent and garbage like it, and that's not all I saw a italian family on Sunday going to church, mother, father, daughter and what the f ck is that I see walking with them and holding the daughters hand it's a blacky not even dressed up he had a jersey on. Now I know that the parents of this chick grew up in italy because they were speaking the language. Italians never stood for this shit before no European would. All im saying is that I think its way beyond the mtv thing its complete brainwashing it must be, five years ago the blacky would have had to cross the street so he wouldn't recieve (sic) an elbow from the father for just walking by this daughter. Melissa It's the new fad -just like bell bottoms had their horrible day, but the problem is with is this fad comes an attitude, a complet spit on normal European values. I can understand a parent's inability to influence how their child decides to dress as a teen -especially since the more a parent protests, the more a teen will rebel. I'm only hoping the parents of these kids are still working on educating their teens on European ways and the teens will outgrow their fad and hide their pictures in complete shame. HR-1, Tab. C-8 The title of this forum thread is What do you guys think of the dr marten company moving. At the hearing, Mr. Warman read into the record the following post made by Sonoftesun: Sonoftesun They stopped production in england and now these great shoes and boots are being made in china, and other asian countries, thi really bothers me, I know most of everything is made there but couldn't we keep these --------- and if I wear my new boots will I feel wrong because the were made by some slanty eyed cockroach? HR-1, Tab. C-9 This document is entitled Homosexualiy and Traditional Marriage. At the hearing, Mr. Warman read into the record the whole posting, by Melissa Guille, which reads as follows: Melissa Sadly, for the first time in our nation's history Massachusetts is honoring homosexuality by issuing marriage licenses to same-sex partners. The sanctitity of solemn marriage between a man and a woman has now been trampled upon by the far left liberal, glack-robe justices of the Masschusetts State Supreme Court. The court's decision in this matter is a clear case of abusing society through judicial activism - judges legislating from the bench and overstepping their boundaries by interpreting the law in a manner to impose their own personal values upon society. The court's decision to grant marriage licenses to same sex couples is nothing more than open mockery against the laws of God and the American people as a whole. These legal marriages licenses are a counterfeit attempt to grant recognition to same-sex marriages on par with traditional marriages, and this violates the cornerstone of our society. Homosexual behavior is a perverse and unacceptable way of life that has been spurned down through the ages -the authority for that statement comes from God and not from man. Homosexuality is clearly and irrefutably condemned in the Bible, despite the attempts of maverick ministers and apostate church groups to grant it acceptance and respectability. The rejection of homosexuality in Christian doctrine centers upon the behavior itself as a destructive force to the individual and a life style contrary to the well being of society. It does not call for punishment against the individual practicing it, but rather offers love and counseling (sic) to the offender with the objective of change. On the other hand, secularists have no hesitation in accepting the homosexual life style. To them, God and His laws are irrelevant and non-existent: moral equivalency is their tool of reasoning which eventually leads to condoning all behavior both good and evil under one mantle. You can bet that our enemies within the nation of Islam are rejoicing over this latest step downwards by America into the pit of immoral conduct; they are always ready to use any example of immorality against us in their evil hate-filled minds. They refer to our culture as jaded and defiled, and there is possibly some truth to those claims. HR-1, Tab. C-10 The title of this document is Controversial T-shirt intrigues and offends. At the hearing, Mr. Warman read into the record the following passages: Melissa I'll make a shirt I am sick of white guys that are sick of whites. Mobila 300 I'm Just Tired Of The Fact that it seems like EVERY White Guy and White Girl In The Country is Sleeping With Flith (sic), Whether It be Asian, A Jew or Something as Black As the Ace of Spades. It's DISGUSTING, And Sickens Me Greatly. We Should All Hope For The Day That A Virus Comes Out That Targets Traitors And Filth Only (Wishful Thinking eh?) HR-1, Tab. C-12 This article by Dr. William Pierce is entitled The Lessons of Africa. At the hearing, Mr. Warman read into the record long excerpts of the article. Here are the most salient ones: White farmers are convinced that the attacks on them are more than a simple matter of crime. If the Blacks attacking their farms merely had robbery in mind, it would not be necessary to torture and kill their White victims. The Whites believe that the aim of the Black gangs is terrorism, and the note left at the scene of the Delafield murders supports their belief. The White farmers also note that the farmers who have been murdered were in many cases those who had been well known for their generosity to their Black workers. They suspect that the aim of the murderers is to drive the White farmers out of South Africa, and so the terrorists are striking preferentially at the Whites who have good relations with Blacks. But many Blacks are more concerned with grabbing White wealth now than they are with the prosperity of the country later. In addition, the idea of forcing the Whites out appeals to many Blacks at an emotional level. Being dependent on the productivity of White farmers is galling to Blacks, and they are more inclined to kill the goose now that to continue collecting the golden eggs. And of course, the Blacks went about killing the Whites in a typically Black fashion, with lots of gang-raping and mutilation. White women had their breasts hacked off with machetes. Little White girls were literally raped to death by long lines of grinning Blacks while their parents were forced at gunpoint to watch. Little White boys had their bellies slit open and their entrails pulled out. The South Africans betrayed the Rhodesians in 1976 in part because the Jews of South Africa always have had a strong influence on the South African government through their media control and their money. Harry Oppenheimer, with his vast holding in diamonds, gold and other minerals had more money with which to corrupt politicians than anyone else in South Africa. And the Jews, of course, were as implacably hostile to the Whites of Rhodesia as they have been to other Whites everywhere and at all times. The second thing we should learn from the South African experience is that we cannot permit our mass media to remain in the hands of the Jews or in the hands of those under the influence of Jews. The foolish South Africans were manipulated, and it was the mass media more than anything else which manipulated them. And the third thing we must learn from the experience of Whites in Africa is that the only way for our people to survive and flourish is to live among our own kind. Multiracial societies do not work and cannot work. If we permit Whites to become a minority in America in the next century as the Clintonistas are planning, then we will suffer a fate similar to that of Whites everywhere else that they have let themselves become a minority. What we must do to avoid becoming a minority may be extraordinary hard, but we must do it to survive. The extinction of our people is the alternative. HR-1, Tab C-15 The article is entitled The Jewish Final Solution for Whites. At the hearing, Mr. Warman read into the record the following passages: However, this same group of people is seeking to destroy the racial feeling of its host population once and for all, through the means of encouraging racial mixing along with promoting the invasion of White homelands by swarms of fater-reproducing non-Whites. Racial mixing and numerical engulfment would result in the ethnic eradication of Whites, and their subsequent replacement with a mongrelize mixed-race mass. Thus the problem of White racial pride, which historically has always been the bane of Jews, will succesfully be neutralized. This is the Jews' final solution for the historical problem of White racial feeling: dissolution of Whites by miscegenation and outnumbering by non-Whites. In other words, the problem of White pride is being solved once and for all by the genocide of Whites themselves. By flooding White former homelands with non-Whites and effecting White miscegenation, the problem of White racial feeling will be effectively solved for all time by dissolution. Afterwards, presumably Jews can carry on their traditional position of dominance and contol of the society, but for the first time there will be no opposition, as the mongrelize population cannot assert racial pride, because by definition it can have none. Without a deep sense of racial pride, the mulatto population will not be able to oppose or overthrow Jewish rule. The Jews have used their media and money power to label the natural and healthy racial instinct with all people as racism and has declared that specifically White racism is the root of nearly all evil in the world. This has resulted in White people feeling guilty for a natural urge within them, much like certain Christian sects made their adherrent feel guilty for the urge of sex. The most dramatic success the Jews have achieved in the effort to make Whites feel guilty is the Holocaust tale. Jews traditionally have always been looked upon as suspect in White societies and esthetically undesirable. Also, although many Jews today have obtained White genes such as blue eyes, there still exists the prominent Jewish prototype of dark hair, swarthy features, koalo eyes, and a large hooked nose. This made the Jew stand out among his host societies, especially in the Nordic countries of Northern Europe. Today, thousands of Jews each year pay to camouflage their own features to look like Aryans by surgically modifying their noses to the European standard of beauty. In short, Jews have historically been distrusted, shunned, and marginalized in European civilization from the very beginning. It is likely that there exists an element of resentment and envy, if not revenge, in the Jewish effort to dissolve the White race. Whites who care about their race can reverse this trend. The first step is consciousness of its existence and the development of the will to survive against it - primarily through an organization strategy. ... Of paramount importance to success of this strategy is the availability of mass media in both its alternative and eventually its mainstream forms for the purposes of racializing, mobilizing, and unifying White people, and recruiting members into the organization and special units thereof. HR-1, Tab C-16 The title of the article is To the White Racist. At the hearing, Mr. Warman read into the record the following passages: We are compelled to the long-term survival of our white race, even if most of the race itself seems disinterested. The population of the white race (NOT the population of so-called white nations, in which nearly all of the increase is due to brown-black and brown-yellow immugrunts) is currently DECREASING at about 1% per year. This means that in the year 2050, the world's population will be some 12 billion, but only 500 million will be mostly white in their genetic background, with even fewer pure white. Having an abortion ( ) is, mostly better than having an unwanted child. Never getting pregnant no matter how much a sow's slut you may make of yourself is then ALWAYS better than being burdened in your young adulthood. As a result, there have been some 30 million abortions of WHITE infants in the U.S. since the procedure became legal and, oh-so-coincidentally, exactly 30 million non-whites have immigrated to the U.S. to take the places of these unborn ... by the colored undead. It was the pressure of ( ) humanitarians worldwide who foisted such an obscenity on the white nations, and then convinced them to praise one another for such utter self-destruction. HR-1, Tab C-17 The title of this article is The invisible Backpack. At the hearing, Mr. Warman read into the record the following passages: When the White people who created America provided for their descendants to have privilege in this land, it was an honorable attempt to provide a heritage to be passed on from one White generation to the next. Every one of the Founding Fathers, who spoke to the subject, declared that he wanted a one race society. None of them believed the races to be equal and non of them wanted a multiracial society where the different races were living side by side as equals. When America began, White privilege was absolute. It is high time that we realize that unless we protect our privilege by all means necessary, it will evaporate. If we do not protect our borders from non-White invasion, and our birthright of honest and honorable privilege - ours by right of being the rightful heirs to this great nation our forefathers built for US and no others - we will find that we will no longer have either the privilege or even a place to live safely into the future. Our inheritance will be forfeited to other by default, because we chose to give it away withoug thought, or protest. The Indians did not create this nation. They live on this same land for thousands of years and never crawled out of the stone age. The Black race did not create this nation. They were brought here as property, and serve the same role as machinery does today, performing tasks given them by those who planned and determined the direction taken by this country. HR-1, Tab C-18 The title of this article is Facing Racial Realities and was written by Kevin Alfred Strom. At the hearing, Mr. Warman read into the record the following passages of this article: The message I am about to give you is a warning to American. It was written by a non-White who actively supports and encourages the dispossession of White people; a man who, when asked about miscegenation, says he is all for it. Nevertheless, he is a rare man in America these days: he is man who states frankly what others are afraid to speak of or even think about. As such, we are lucky to hear from him. His truths are a warning to all White Americans. Heed his warning to the West: By 2030 immigrants, their White spouses, and other minorities make up 70% of the U.S. population. By popular demand Federal law enforcement agencies go after any and all White people who resist us an d putthem away in concentration camps. By 2050, Whites have become 15% of the U.S. population. The U.N. replaces the Federal government of America. Other Western nations are forced under U.N. monitoring to accept millions of African, Asian, and Middle Eastern citizens. The planet then becomes a game between Africans and Asians only. Guess who will win that game. White Americans have an average of 1.8 children per couple, and that number is declining. The number of couples is also declining as homosexuality and childlessness become ever more fashionable among Whites. At the same time, I predict 10% of Caucasians will marry non-Whites, while non-White immigrants continue to both come in increasing numbers and have more children per couple. It's only a matter of time before U.S.A. stands for the United States of Asia. We may never be able to defeat the West militarily, but we sure as hell can genetically. American school children are already learning about the aboriginal First Nations - the Mongolians - who rightfully own this continent. They are now learning about the crimes of the European invaders and usurpers, and soon all American school children will learn of the ultimate destiny and purpose behind it all; the new United States of Asia. The word racism has been turned into a synonym for evil. But racism only means having racial feelings - a feeling of kinship with your racial brothers and sisters, a feeling of understanding and belonging, a feeling of being part of a culture, a part of something bigger than ourselves. Racial feelings are inborn in us. They are good and natural. And it is one of this century's most horrible deceptions to paint them as somehow wrong. If you want to call our normal racial feelings racism, then so be it. We'll call those feelings racism. As long as there are races there will be racism. It is inborn, has an evolutionary purpose and survival value, and is even present in non-human species. Racial feelings are about as likely to disappear as are sexual feelings. Actually, racism is good and necessary for the continued branching off of new types of human beings from the existing stocks. Evolution, so far as we know, operates primarily by such branching, and racial feelings are an important part of what keeps the branches apart. At some point, homosapiens sapiens refused to breed with the sub-men around him. Liberals are very suggestible, and are really the victims, of, not the originators of, the race does not exist, but some races must be favored swindle. It is convenient to demonize and dehumanize people that you are going to commit genocide upon. And it is easier to commit genocide when you convince your henchmen that the victims really don't exist. That is what the White race does not exist con is really all about. It is a warrant for genocide. A far more important concept in the crossing of human races is regression to the mean. This means that even if you mate a Negro genius whit a White person the offspring are, on average, likely to exhibit Negroid characteristics more typical of the average Negro, and not necessarily of that particular Black genius, and this is even more true of succeeding generations. Regression to the mean in the case of interbreeding with Africans means regression to the African mean, with Asians to the Asian mean. Neither holds out promise of raising the level of the upper half or our bell curve - rather the opposite. The other races have mixed with Europeans, and everywhere the results are, to say the least, unimpressive. They have nothing to offer us. The European race has all the diversity it needs for health and further evolutionary development. It is a moral and environmental crime of the highest order to destroy it by breaking down all its defenses against interbreeding. Whites should be allowed to re-erect their traditonal barriers against mating and social contact with non-Whites in order to preserve our kind. Anything else is genocide. And our race is threatened. Nowhere is our birthrate above replacement level. Everywhere our borders have been opened and the new elite teaches our children that intermarriage is good and desirable. Everywhere the new elite teaches our children that to defend our genetic heritage is the very definition of evil. The end result, if trends continue, will be genocide. The end result will be death for the uniquely beautiful, intelligent, and creative people called by the name of the goddess Europa. HR-1, Tab C-19 The title of this article is Indians Being Given Special Status and the author is one Michele Gagnon. At the hearing, Mr. Warman read into the record the following passages of the article. Indians Being Given Special Status. Who will make the racism stop?! Canada is entirely filled with peoples from all around the world, who've come here overtime to work hard and build a strong nation. Millions suffered great tragedy and loss and hard times, yet they've ALL managed to work in harmony, creating wealth and paying the taxman to uphold our nation's communities. ALL accept (sic, read except) the Canadian Aboriginal First Nations Indians. While we have contributed staggering sums of money and support to their race's communities and individuals, they have not done so for the rest of the peoples of Canada. A few Aboriginal first Nations Indians have used their free university educations (the ones the rest of us don't quality for) to get degrees in Law and argue, again on our tax dollars, that we still owe them billions, our children still owe them billions, and now they want ALL the land and resources. Apparently only this one race can own Canada, and only this one race doesn't have to work or pay taxes for other races, and only this race can claim ownership of the land's resources and water-ways, and the funds they generate. Apparently only this race was troubled by change, and only this one race should be hightly compensate for it, by every other race out there. Apparently only this race is not to blame for any wrongs that came their way. It's the biggest con game ever. We are paying them to blame us for things we personally did not do to them, and if we don't accept that blame and responsibility, WE are the racists. Their history reads better than most who's land was settle by new-comers, yet they've bilked us like we personally massacred them and are continuing to. What's more disturbing than this, is that we fell for that con job and allowed our fear of racism to generate theirs. But what did my Austrian grandmother do to their great-great grandfather that I would owe them so much money and so much of my own dignity? And how come only the white guys turned out to be bad in all the stories? We cannot send babies back from where they came. This is the reality for Cnada in the here and now and it's time for the Canadian Aboriginal First Nations Indians to grow up spiritually and accept their fellow man with love instead of hate, greed, revenge, racism, blame, and a total lack of personal accountability. It's time to notice that innocent victims of this racism, live here, and work hard to pay taxes, only to be ridiculed by Matthew Coon Come and his propaganda. It's time for them to lay off us, and strart treating Canadian citizens with the respect and good will and reciprocation they deserve. Maybe it's even time for them to get jobs and pay taxes, but for sure it's time for them to get their hands out of my pockets, my children's pockets and my great-grandchildren's pockets. HR-1, Tab. C-20 This article is entitled Misplace Hate and was written by Erik the Norseman. At the hearing, Mr. Warman read into the record the whole article which reads: There is an old saying Hate your enemy long enough and you will become your enemy. That, perhaps, should be amended to read, Hate your enemy as your are taught to perceive him and, in time, you will become that eneny, as you falsely believe he was, not necessarily as he truly is. The Jews, by their actions, have proved this axiom. They have not only equaled the excesses, by their own propaganda, attributed to the SS and the Gestapo but by their treatment of the Palestinians and their Arab neighbours, have surpassed these excesses. For millennia, the Jews have formed an exclsuvie, world wide, elitist society. In evey nation in which they reside, they remained, often for many generations, separate and apart, foreigners amongst those by whose side they lived. Naturally this resulted in resentment and animosity. Their loyalties were always to Israel, never to those amongst whom they dwelt or to the nation that gave them a home. Between themselves they gained virtual monopolies of many professions, power and wealth far out of proportion to their numbers. THEIR community (the Nation of Israel) transcended national boundaries and made national goverments tremble. It should be noted that the Nation of Israel encompasses the totality of all Jews worldwide and not just the state of Israel located in the Middle East. The result was inevitable. Peoples and governments, throughout history, have taken steps to protect themselves from those whose loyalties they could not depend upon and whose power and wealth threatened them. The Jews labeled this understandable reaction opppression, discrimination and anti-Semitism. They portrayed themselves as the downtrodden whilst simultaneously bleeding dry the financial resources of their benefactors. On the pretext of a two thousands year land claim, by acts or terrorism and guerilla warfare, they forcibly created the state of Israel. Now, today, the Jews, self-proclaimed chosen of God, have finally found some innocents to do unto as they falsely claim was done unto them. Read the News. Vengeance by proxy might be acceptable Zionist policy but not Christian HR-1, Tab. C-21 This article is entitled End of Times and its author is Carol on the Web. At the hearing, Mr. Warman read into the record the following passages: When whites complain of minority treatment, we are demonized, relegated to the margins of society as dangerous haters, accused of anti social bigotry and risks a certain professional and financial death sentence, should we persist. We are unable to communicate effectively with each other to plan our defense because most avenues of communication are shut off to us, controlled by interest disinclined to freedom of expression for any but approve orthodoxies. There is no such thing as polite discussion of the time table for the annihilation of the white race. Yet is WE who are the true minority on the planet. I have connected the dots between Jewish immigration to the U.S. and the cultural jihad they've launched against yet another host culture. This time it's Euro Americans whose Christian mores, norms and financial markets are being redefined by a Jewish stranglehold on the Federal Reserve, the U.S. Cabinet, Judiciary, and media monopoly. The hitherto stealth operation is combined with a viciously amoral academic partnership between socialists and homosexuals, eager to diminish resistance to their agenda by teaching our children homo-eroticism as sexual equivalence. Christmas is no longer tolerated in schools, government, on calendars, or WWI monuments. Our children are asked to wrap and donate holiday presents for poor children by our local schools, yet we are cautioned not to use Christmas paper which is offensive. Offensive to whom? All those Buddhists and Muslims in our suburbs? Our latino neighbors? Blacks? HR-1, Tab. C-23 This is an article written by Christian Keptler which is entiled The New Order Crowd's Chosen Black. Mr. Warman read into the record the following passages of the article: By the mid-60's the New World Order clan that works out of appointed positions in and arount the U.S. Government had already discovered Colin Powell, now both a Council on Foreign Relations (CFR) and a Trilateral Commission (TC) member. He was articulate. He loved the establishment. He followed orders well. He made no waves. He was not from any of the academies; he was Black, in appearance at least. He had not done anything well before the Army, never having quite fit in anywhere else. His grades were merely average or below. Born in the South Bronx, Powel had no particular political view (except on race where he is as anti-Adamic as the typical Black in politics) - having no stable, steadfast views is something seen as a quality in prospective front men by the Insiders. He was thus trainable - and usable. And so, Colin Powell's swift rise to the head of the Joint Chiefs of U.S. military Staff began, after never having been a combat field general, after not having the rigorous historical military training received at West Point or any of the military academies. Other much more qualified Generals (White and Christian of course) were passed over like molded snacks on a party plate. This is the type of person (aka President George Bush I) whom the Insider New World Order crew loves. Say yes and bow them and you can have the world. I, as the rest of you am used to Black pets getting promoted simply because they are able to get in front of a crowd without vomiting on them. But what I don't like about him is that he proudly displays a menorah behind his desk, because he says, It's a constant reminder to me of the suffering and persecution we've both been through. But there's a little more to this racial background, which has also helped him scoot up the insider ladder; besides being Black, he has a snake in his background, on his mother's side from Jamaica. Thus, the menorah means something more than just the idea of his and their race being persecuted; it's definitely racial and possibly religious because Powell has rejected Christianity. So yes, Powell's brainwashed. Yes he's a yes-man and lackey for the one-worlders. Yes he's a poof of an empty shirt who'll follow along to get along. All those aspects of Powelll are typical of America's appointed class; but the menorah and hidden heritage turn him into just another sneaky snake. HR-1, Tab. C-24 This article is entitled Rosolute Peasanty - a Venerable Choice and was written by Carol on the Web. At the hearing, Mr. Warman read into the record the following passages: I am a card-carrying member of that post-depression-suburban-caste known as the upwardly mobile, but culturally degraded boomers. We were born to more choices than common sense. And our mobility hasn't necessarily been upward or inward - just outward. Too many of us are lost in a sea of value choices - a malice prepense of Jewish media. But not before I share a recent example of #5 - Do write letters to newspapers and magazines. Charles Krauthammer of the Washington Post explore the new anti-Semitism saying - This time, however, jew hatred is more sophisticated. It is not a blanket hatred of Jews. Jews can be tolerated, even accepted, but they must know their place. Jews are fine so long as they are powerless, passive and picturesque. What is intolerable is Jewish assertiveness, the Jewish refusal to accept victimhood. And nothing so embodies that as the Jewish State. This assertion is brazenly disingenuous. It's also a mockery of the good-hearthed people who have welcomed Jews into top positions of power in our cultures, businesses, and governments. Jews are certainly powerfull and aggressive - if not picturesque. It is WE the non-Jews, who must tolerate the Jew-as-victim, in all its profitable manifestations. Krauthammer continues ... What so offends Europeans is the armed Jews, the Jew who refuses to sustain seven suicide bombings in the seven days of Passover and strikes back. That Jew has been demonized in the European press as never before since, well .... Since the `30s. The liberal Italian daily La Stampa ran a cartoon of the baby Jesus, besieged by Israeli tanks, saying, Don't tell me they want to kill me again. The Italian cartoons are no worse than anti-Arab barbs in the Jewish/American press. The truth is that Jewish tanks level whole villages in pursuit of soldiers of the Resistance. Jews uproot ancient olive groves to rid themselves of Palestinian crops. Jewish soldiers defecate on emergency room floors after destroying medical equipment in non-Jewish hospitals. And it is a wholly owned Jewish press obsessing over Catholic pedophiles, even as they ignore mounting numbers of sex crimes by Rabbis (names not reproduced) to name just a few - Interested readers should read the entire link. It's long but EXTREMELY instructive on sexual predation by Rabbis. Krauthammer continues ... Again. And this time the Christ-killers come in tanks. Just when Europe had reconciled itself to tolerance for the passive Jew - the Holocaust survivor who could be pitied, lionize, perhaps awarded the occasioanl literary prize - along comes the Jewish state, crude and vital and above all unwilling to apologize for its own existence. Reconcilled itself to tolerance for the passive Jew? - There are passive Jews? And the occasional literary award? Charles is embarrassing himself at this point but seems oblivious to the titters heard round the world. EARTH TO CHARLES - Jews awarf Jews who award Jews for exemplary everything. But he did get something right. The Jewish state is CRUDE, and not vital to any, but others Jews. In closing, Charles tosses one more stink bomb at the Euros - this time, the dreaded froggies ... For those of us who believe that Jews have far too much control over everything in our lives... I ask WHO ELSE qualifies? Jews are totally out of control in American politics, publishing, academia, media, law, and medicine ... need I go on? Enough already - anti-Jewish sentiments are a product of Jewish domination, combined with the frustration of being labeled a bigot and a hater should we complain. Traditional anti-Semitism is about what Jews DO to obtain and defend disproportionate power over the populations they exploit. This is about power, its use and misuse - NOT religion - unless power IS their religion. HR-1, Tab. C-25 This article is entitled General Rules for Living Among Other People. At the hearing, Mr. Warman read into the record the following passages: Good examples of enemies that white nationalists encounter ofter are anti-racists - whether communist, liberal or Christian (or all three), members of Jewish groups, members of law enforcement, members of the media, officers of the court, and the like. These people all mean white nationalists harm; if you treat them like your friend, they will use you until they think there is advantage in discarding you. Friends of white nationalists include almost everyone else, and some of the above when they are not acting in an official capacity. 2) You have moral obligations towards your friends; you have no moral obligations towards your ennemies. The Jews actively subvert white nationalist organzations through the use of informer, false arrests, the spreading of lies about the nature and intentions of organization, the publication of false news, constant propagandizing, criminal acts of harassment, criminal acts of violence, and generally any measnns at their disposal. They feel no moral obligations towards those they consider to be their enemies. (They also feel no moral obligations towards those they see as their friends, except insofar as is practically necessary, but that is just a manifestation of their immoral nature. HR-1, Tab. C-26 This article is entitled Paging Doctor Sinister ... Please Report to theMaternity Ward! At the hearing, Mr. Warman read into the record the following passages: Since the Renaissance the societies in all Western countries have become increasingly Jewish thanks to the relentless behind-the-scencs manipulations of the Masonic Hermetic Rosicrucian elite who incidentally, have always made up the establishment and aristocracy of Western nations, and who became willing flunkies to the Jews and their lunatic Talmudic Kabbalistic perfecting of the world dogma. Orthodox Medicine of today is nothing more than a twisted, bizarre, anti-human construction firmly rooted (in a dogmatic sense) in Jewish Kabbalism. HR-1, Tab. C-27 This article is entitled A Warning for Americans - A Message from a South African. At the hearing, Mr. Warman read into the record the following passages: Today, however, South Africa may be the grim model of the future Western world, for events in America reveals trends chillingly similar to those that destroyed our country. HR-1, Tab. C-28 This article is entitled The GI's Dream and the author is unknown. At the hearing, Mr. Warman read into the record the following passages: My dad, born in 1913 (deceased 1981) fought agains Hitler in WWII. Now, years after his death, I have finally returned to embrace my heritage without shame or apology, and have come to understand the monstrous deceit inflicted upon my father, our family and our once beautiful white, gentile nation. This it the way America was when my dad, along with 15 million mostly all-white American servicemen, went to fight against the Nazis, incurring the loss of 405, 399 dead and 671, 278 injured: whites-only immigration policy whites-only naturalization policy whites and American-born blacks only were legally permitted to vote, while literacy requirements and discrimination effectively prevented most blacks from voting (Africans in Africa also could not vote) native-born American Chinese, Hispanics, or other non-whites were not allowed to vote (Chinese in China and Hispanics living in many Latin American nations couldn't vote either; neither could Mexican women in Mexico until 1953) segregated schools intermarriage forbidden by law whites-only residential zoning, segregated military, transportation, hotels, restaurants, bathrooms, water fountains,etc. Non-whites were not allowed to be policemen Prayer was required in schoool We publicity (sic) professed to be a Christian nation Anti-Semitism was forthright and socially acceptable President Gen. Eisenhower, our famous Nazi-fighter, was the same man who later authorized the army to implement Operation Wetback in 1954 which rounded up Mexicans and drove them back into Mexico. Today anyone who would dare suggest a return to these draconian policies would be called a Nazi. The question arises: if the America which practiced those policies was no different from the Nazis they were fighting against, then why the hell did we fight against them? Why were we trying to destroy people who were essentially like ourselves? In retrospect, it seems like we made a fatal mistake in destroying our own kind in order to save a wholly alien people who, in gratitude to their foolish Gentile saviors, are now doing to us what they did to the Germans. When you look at the Nazi goals, very few Amercians would have been put off by the vast majority of them. In fact, for the most part the average American would have agreed with what the Nazis believed. The methods the Nazis used were necessarily drastic, and that is where most disagreement would have been found. If it is wrong to want a White America, then America is itself wrong for even existing. And you can bet those who are promoting the idea that diversity is wonderful, know full well that diversity is as un-American as it gets. ( ) HR-1, Tab. C-29 The article is entitled Apology To The Black Race From White People and is written by Arthur Kemp. At the hearing, Mr. Warman read into the record the whole article: We apologize for giving you doctors and free medical care, as a result of which you have been able to survive plagues and catastrophes an grow in numbers; We apologize for teaching you to read and write, and for building you thousands of schools which we have repaired after you vandalized them and burned them down. After all, if you could not read how could you have learned the words of Karl Marx, Mao Tse-tung, and others how taught you how evil we are and how oppressed you are? We apologize for developing factories and highways and buildings that gave you employment; We apologize for developing farms that to this day feed the bulk of Africa; We apologize for providing you with warm clothing made of fabric instead of leaving you wearing the animal skins that you wore before our arrival; We apologize for those among us who have established welfare organizations and have devoted their entire life towards making life richer and better for your people; We apologize that we have built roads and railroad tracks between towns and cities which you now use every day without thinking; We apologize for paying the lion's share of taxation while spending less on ourselves than on you; We apologize for giving you law and order and a strong central government that prevented your own warrior nations like the Zulu and the Matabele from slaughtering black people by the hundreds of thousands as they did year in and year out before we came; We apologize for teaching you the English language which has opened to you the netire world of European thought, culture,and commerce; For all these sins we humbly beg forgiveness, and if you will only accept our apology we will be happy to take back all of the above evil and horrible things we have done to you and return to our European homeland. HR-1, Tab. C-30 This article is entitled How Christianity Harms the Race and was written by Michael W. Masters. At the hearing, Mr. Warman read into the record the following passages of this article: Christianity, which many believe to be the noblest moral system ever conceived, must now share blame for the dissolution of the West. A faith that once served as an anchor for Western civilization has become a source for the same self-flagellating guilt that typifies liberalism. Today, Christianity's public expression differs only cosmetically from Marxism in its attitudes toward economic redistribution, equality and racial integration. How has Chirsitinaity sunk so low - and our people with it? The anwser is that it has subverted inbred trait of altruism that help family and tribe survive, and has transmuted those traits into agents of passivity and surrender. Christianity has universalized altruism, thus stripping us of our defense against multiracialism. Today's Christianity drives us to betray our own interests to whoever asks. At the consequences of their actions today. Christianity's divorce from racial consiousness was both sudden and recent. Only in the 20th century did secular humanism infiltrate virtually every mainline Christian organization. By the 1960s, organize Christianity was working hand in hand with organized Judaism to dismantle the South's self-protective wall of racial hierarchy. The universalist campaign continues to this day, with ordination of women and soon, one fears, homosexuals. One finds national and presumably racial separatism in the New Testament as well... Acts 17:26 reads: He hath made of one blood all nations of men for to dwell on all the face of the earth, and hath determined the times before appointed and the bounds of their habitation. Like their atheist counterparts, Christian trend-setters preach what amounts to the dissolution of the white race. Christian Coalition founder, Pat Robertson, supports more immigration from south of the border because the newcomers are nominally Christian, support family values and are our king of voters. With ministers preaching racial suicide, Christianity may now be more of a threat to our survival than liberalism. Christianity's flaws did not threaten us until technology and ideology made their consequences felt on a world-wide scale. Now, our moral code must renounce universalism and emphasize our own survival. Unless we adopt moral beliefs in keeping with the realities of today's demographics, we will not survive the mounting wave of Third World immigration, procreation and miscegenation. It is in this sense that, as Jean Raspail says, Christian charity will prove itself powerless, Christian charity can hardly stop a demographic displacement that it helped set in motion. HR-1, Tab. C-31 The article is entitled Does a Satanic Cult Rule the World? And is written by Henry Makow. At the hearing, Mr. Warman read into the record the following passages: Who is the Illuminati? We are still living off the twilight rays of Western Civilization, which was based on Christianity. Civilization is always based on a religion, an ideal. Christ taught that God is immanent and His Plan is to manifest Himself through His Creation. We must do His will rather than pursue our own selfish desires. Kings derived their authority from God and were answerable to Him. The Jewish Pharisees rejected Christ. They practiced a naturalistic religion that turn Christ's message on its head. Freemasonry is taught to your child. For example, a survey of schools in my city shows that 75% no longer use the word Christmas to describe their holiday season festivities. Instead Christmas has been replaced with such jargon as winter concerts and international celebration of holidays. The Christmas tree at the Legislature was renamed multicultural tree until a storm of protect force the politicians to relent. We have to abandon our culture in order to respect everyone else's? It's kind of silly, one parent complained. But this is exactly the agenda: To destroy Christianity, just as they have destroyed empires, nations, heterosexual identities and nuclear families. The agenda is to strip people power and identity leaving us defenceless in the face of one-world tyranny. HR-1, Tab. C-32 This article is entitled Spoiled Blacks:What we don't Dare to Discuss and is written by Robert Rocher. At the hearing, Mr. Warman read into the record the following passages; Given continuation of present trends, there will be another ice age before anyone of any race has brains or guts enough to stand up and say rampant irresponsible psychopathic deviance is a prominent characteristic of the black subculture that is chiefly responsible for the problems of the black race. And that anyone I'm speaking of includes what passes for religious leaders. Parenthetically, if any group needs a women's liberation movement, it is black women. Calloused black dude psychopaths use them without conscience, get them pregnant, desert the women and the children, then laugh it off. Some of them, the street-cool dudes, even come back later to sell drugs to children they sire. Black women should rise up and just plain slaughter half of the black men in the country without mercy until there is a trace of Gangsta Rap music remaining in the world. Until they do, there will be little future for the black race. The reason they don't do it is because they aren't any more responsible than the men. HR-1, Tab. C-33 This article is entitled Note from a Suicide Bomber in Israel. At the hearing, Mr. Warman read into the record the following passages: To the people of Israel, who stand by the graves of the Jews I will kill: You assassinate my freedom fighters while explaining to the world that you are merely defending your own squatters. Your shoot to kill little children who in defiance and courage wield small stones in the name of liberty against you, the fiercely armed enemy. You occupy my land, and on my bloodstained hills station your tanks and armored jeeps in order to slaughter and mutilate little children playing in the streets. You shoot out my water tanks and you kill off Palestinian policemen, even though at the time of your brutal massacres, these young men were patrolling their land or simply eating their last supper. You cut off my electricity so you can assassinate me more easily in the dank shadows of your dark treachery. You want peace. Jews? You may have it if you wish. The price is simple. Get out. Get out of my land. Leave my people alone. This land is not yours. You stole it from us, and we are going to take it back if we have to kill every one of you who dares to remain and contaminate Palestine with your presence. You may butcher us and tyrannize us an murder us now, with your high-tech American weapons and your American money, but in the long term you have two choicies, and only two. Get out of Palestine, Jews. Or die here. HR-1, Tab. C-34A This article is entitled Iraq: Proof Islam is a Nest of Vipers and is written by Erik the Norseman. At the hearing, Mr. Warman read into the record the following passages: Muslims proclaim themselves obedient slaves of Allah and therefore morally and ethically superior. Honesty, charity and compassion are the LAW. We have recently seen with our own eyes their obedience to their God and his law. In the early stages of the war, emergency relief supplies were sent into southern Iraq. The supplies wer mobbed. The strong took it all. Nothing was left for the weak - women, children and the elderly. A wonderful example to us all of the charity and compassion of Muslims. In city after city, the move ruled. In Bagdad, as elsewhere, looting, arson, assault and even murder became commonplace. If the above is a typical example of the Muslim's respect for their Prophet and their love of God, may God protect the rest of us from the devout Muslim. HR-1, Tab. C-35 The article is entitled Wonderland Revisited and the author is Kwazimodo. At the hearing, Mr. Warman read into the record the following excerpt: Now yesterday, and again today, we are reading that extensive mourning preparations for 4000 (give or take) jews employed at the Towers were cancelled. SUDDENLY, when it came known that they had all FAILED TO SHOW UP FOR WORK in the first place, and at the time of this composition no explanation of this remarkable situation has been forthcoming. HR-1, Tab. C-37 The title of this article is The Multicriminal Society. At the hearing, Mr. Warman read into the record the following passages: It should not come as a surprise that when the dark races increase their numbers in Sweden, crime rises accordingly. This piece is written in order to provide an insight into how their behavior is universal. As I read through these statistics I am struck by a thought: whether a Negro is living in the Americas, where his ancestors were brought as slaves, or in Europe, where he is a privileged immigrant, or in Africa, where he has always been the majority, his behavior remains the same. The Jewish media would have us believe that oppression and racism force him to theft, murder and rape. Curious, then, that his behavior only becomes more destructive the more dominating his position is in society. Few dare tell the truth about the problems the dark races cause us, and those who do are treated in a way that can rightfully be described as persecution in several cases. In spite of this, however, the effects of the darkening of our society have not gone unnoticed. A majority of Swedes know what is happening, and are enraged by it. HR-1, Tab. C-38 The title of this article is Multiculturalism. The Bakshish Merchants. At the hearing, Mr. Warman read into the record the following passages: Actually what Paul Martin needs to look at is Canada'a hugely unpopular immigration policy. That a race hustling twerp like Dhaliwal, MP for Vancouver South-Bollywood, thinks he can use his ethnicity to publicly extort a job for himself should demonstrate to all Canadians why our immigration and multicultural policies are right up there with wiccan sorcery and voodoo. As previous political pundits have noted, Canada is becoming a divided country where competing tribes of people from the third-world haggle over the public purse to promote their own ethnic factions. Tally ho and down the drain Canada goes. HR-1, Tab. C-39 This article is entitled Yo, White Bitch, You Dissed Me. At the hearing, Mr. Warman read into the record the following excerpt: Ivona was one more victim of our genocidal immigration system which seeks to replace the European founder/settler people of this country and to supplant their culture. In her beating, she was subjected to a dose of violence being imported by our toleration of cultures, than revel in lawlessness, disrespect for others and defiance of authority. PARTIES OF RECORD TRIBUNAL FILE: T1089/7005 and T1090/7105 STYLE OF CAUSE: Richard Warman v. Canadian Heritage Alliance and Melissa Guille DATE AND PLACE OF HEARING: November 20 to 24, 2006 September 4 to 7, 2007 December 10, 12 to 14, 2007 Toronto, Ontario DECISION OF THE TRIBUNAL DATED: September 30, 2008 APPEARANCES: Richard Warman For himself K.E. Ceilidh Snider For the Canadian Human Rights Commission Paul Fromm For the Canadian Heritage Alliance Alexan Kulbashian For Melissa Guille

2008 CHRT 41

CHRT

Dawson v. Canada Post Corporation

en

2008-10-03

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6665/index.do

2023-12-01

Dawson v. Canada Post Corporation Collection Canadian Human Rights Tribunal Date 2008-10-03 Neutral citation 2008 CHRT 41 Decision-maker(s) Deschamps, Pierre Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MICHELLE DAWSON Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CANADA POST CORPORATION Respondent REASONS FOR DECISION 2008 CHRT 41 2008/10/03 MEMBER: Pierre Deschamps I. INTRODUCTION II. PRELIMINARY CONSIDERATIONS A. Past events (i) The Cantin Report (ii) The 2001 settlement B. Ms. Dawson's career at Canada Post C. Ms. Dawson's medical condition III. LEGAL CONSIDERATIONS A. The relevant legal principles (i) Discrimination (ii) Retaliation (iii) Harassment B. The relevant allegations (i) Autistic individuals and the CHRA a) The testimony of Ms. Dawson 1. Ms. Dawson's testimony on autism 2. Ms. Dawson's testimony on autistic people 3. Ms. Dawson's testimony about herself b) The testimony of Dr. M 1. Dr. M.'s testimony about autism 2. Dr. M.'s testimony about autistic people 3. Dr. M.'s testimony about Ms. Dawson (ii) Allegations related to specific individuals (iii) Allegations related to specific incidents a) Ms. Dawson's medical file b) The Ottawa meeting c) The work related injury (iv) The tape-recording of conversations IV. REMEDIES V. ORDER I. INTRODUCTION [1] Ms. Dawson is an autistic person. On August 9, 2002, she filed a human rights complaint with the Canadian Human Rights Commission against the Respondent. This complaint was the second complaint filed by Ms. Dawson against the Respondent. The record shows that, with respect to her first complaint, a settlement between the Respondent and the Complainant was reached on August 16, 2001. The record also shows that the implementation of the settlement gave rise to a lot of aggravation on the part of Ms. Dawson who felt that the settlement was not being respected by the Respondent, that in fact it was being violated. [2] In her complaint, dated August 9, 2002, Ms. Dawson alleges that the Respondent discriminated against her on the basis of disability, in breach of section 7 of the Canadian Human Rights Act in that it failed to accommodate her disability (autism). Ms. Dawson further alleges that the Respondent subjected her to harassment on the basis of disability, contrary to section 14 of the Canadian Human Rights Act. Finally, Ms. Dawson alleges that the Respondent retaliated against her for having filed a previous human rights complaint, contrary to section 14.1 of the Canadian Human Rights Act. [3] Section 7(b) of the Canadian Human Rights Act states that it is a discriminatory practice, directly or indirectly in the course of employment, to differentiate adversely in relation to an employee on a prohibited ground of discrimination. Section 14(c) of the Act states that it is a discriminatory practice in matters related to employment to harass an individual on a prohibited ground of discrimination. As for section 14.1 of the Act, it states that 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. As for the prohibited grounds of discrimination, they are described in section 3 of the Act and 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. [4] At the hearing, Ms. Dawson represented herself without the help of legal counsel. The Commission was represented by legal counsel, and so was the Respondent. [5] At the outset, it must be noted that the Complainant, in her final submissions as well as throughout the hearing, was very critical about how the Tribunal dealt with her requests for accommodation during the hearing. The Complainant was of the view that the Tribunal was more inclined to accommodate non-autistic people's needs than her own needs. [6] For example, Ms. Dawson stated repeatedly at the beginning of the hearing that the hearing was not accessible to autistic people like her. She furthermore stated that she was not provided with the information she needed, nor was she provided with the answers she needed. She further asserted that the kind of schedule imposed on her, i.e. long lunch hours, long hours, did not meet her needs, that what she needed was a very fast concentrated day with short breaks, no lunch. In that respect, Ms. Dawson acknowledged that she had fairly big logistical problems. Ms. Dawson also stated that the Commission was largely adversarial in this case, that in fact, she did not have the co-operation of the Commission. [7] The Tribunal will refrain from judicially justifying the decisions that were made with respect to the conduct of the hearing and will let the record speak for itself. This said, in her final submissions, the Complainant asks that the identity of her treating physicians be kept confidential so as to protect her own privacy. The Tribunal sees no prejudice to any of the other parties in not mentioning the name of Ms. Dawson's treating physicians or the name of the psychologist who diagnosed her condition. II. PRELIMINARY CONSIDERATIONS [8] Before analysing the substantive issues that this complaint raises, there are a number of preliminary matters that need to be addressed. These are A. pasts events, B. Ms. Dawson's career at Canada Post and C. Ms. Dawson's medical condition. A. Past events [9] The Tribunal is of the view that it is important in order to understand the issues relevant to the present complaint to consider events that preceded the filing of this complaint. The Tribunal is mindful of the fact that these events were covered by the first complaint filed by Ms. Dawson, which was the object of a settlement between the parties. These events, although not part of this complaint, were referred to and commented upon in the course of the hearing. They provide the background to the present complaint. However, they cannot in any way be determinative with respect to the findings made in relation to the events covered by the present complaint, events that occurred between September 2001 and June 2002. The Tribunal will consider firstly, the Cantin Report and secondly, the 2001 settlement. [10] Both Ms. Dawson and Ms. Daoust, a witness called by the Respondent, testified about these events. Ms. Daoust was, between November 1998 and November 2002, Health and Safety Manager at Canada Post and was in charge of managing work related accidents as well as the prevention of accidents. (i) The Cantin Report [11] At the hearing, Ms. Daoust explained to the Tribunal when and how she got involved with Ms. Dawson's case. In that respect, she testified that, in July 1999, she got a call from one of Ms. Dawson's supervisors, Mr. Schetagne, who informed her that some Pierrefonds postal workers (not management) had gone to management and had expressed concerns about seeing an employee coming to work with self-inflicted wounds and feared that one day they could be injured by that person. According to Ms. Daoust, these employees were wondering if this person represented a threat to their safety. Mr. Schetagne asked Ms. Daoust to send someone to the Pierrefonds postal station to speak to the employees and address their concerns. Ms. Dawson testified that this came as a surprise and a shock to her to know that colleagues would have thought that she could become violent and pose a threat to their safety. [12] Ms. Daoust testified that she then sent Ms. Johanne Cantin, who was director of the Employees' Assistance Program (EAP), to meet with the employees at the Pierrefonds postal station. Ms. Daoust stated that when she asked Ms. Cantin to go to the postal station, it was to reassure employees and not to conduct an investigation on Ms. Dawson. According to Ms. Daoust, Ms. Cantin met with the employees, wrote a report and handed her report to her in July 1999. [13] There is no need here to refer to the exact content of the report if not to say that it contained Ms. Cantin's observations and recommendations, that it was sent to a number of Canada Post people and that Ms. Dawson only became aware of the report at the end of 2000. Ms. Dawson's indicated in her testimony that the fact that so many people at Canada Post got a copy of the report negatively affected their views about her. [14] Ms. Daoust further testified that when she sent Ms. Cantin to the Pierrefonds postal station to investigate, she did not know who Ms. Dawson was and that Ms. Cantin had a professional relationship with Ms. Dawson. The evidence shows that Canada Post contracts with an outside organization to provide an EAP and that it is that organization which decides who is going to be the person who will respond to any request made by Canada Post. Ms. Daoust testified that Canada Post found out about Ms. Dawson's disability after the Cantin inquiry. [15] The evidence shows that the Cantin report was sent to Medisys, a firm which handles medical matter for the Respondent and also found its way into Ms. Dawson's administrative file at the Pierrefonds postal station. Given the content of Ms. Cantin's report, Ms. Daoust testified that she felt that the matter needed a follow-up. The decision was thus made to send a nurse, Madeleine Dufour, from Medisys to Ms. Dawson's workplace in order to provide reassurance to the postal station employees. Ms. Dawson testified that she was never made aware of this measure. Ms. Daoust testified that the Union was made aware as well as her chef d'unité. [16] The additional steps taken by Canada Post revealed that Ms. Dawson did not represent any threat to her colleagues, that she had never injured herself in front of co-workers. Ms. Daoust testified that all those who received a copy of the Cantin report were told to disregard the report. [17] In her testimony, Ms. Dawson stated time and time again that she saw the initiative to send Ms. Cantin to the Pierrefonds postal station as an investigation on her after serious allegations had been made by colleagues in relation to her violent behavior. [18] Ms. Daoust testified that, when Ms. Dawson learned about the existence of the Cantin report, in November 2000, she was very angry that such an inquiry had been conducted without her knowledge, that she did not understand why such an inquiry had taken place as well as why the information contained in the report had circulated within Canada Post. [19] In the course of her cross-examination, Ms. Daoust testified that right after December 2000, Ms. Dawson would have called her between three to five times, maybe four. She was however not able to provide dates. According to Ms. Daoust, the calls were about the Cantin Report. Ms. Daoust testified that, in the first phone call, Ms. Dawson complained about the content of the report. Ms. Daoust stated that Ms. Dawson never mentioned to her that Ms. Cantin was her psychologist. Ms. Daoust recalled that Ms. Dawson asked her at the time to remove the letter from her file and to tell her co-workers that the content of the report was false. Ms. Daoust further testified that in one of the telephone conversations in relation to the Cantin report, a discussion took place about what Ms. Daoust would do if she was told that a person had a gun in the postal unit. [20] The record shows that, after Ms. Dawson discovered the existence of the Cantin report, Ms. Daoust drafted two apology letters. [21] The first letter, dated January 18, 2001, is in reference to the report produced by Ms. Cantin, Canada Post EAP Coordinator in July 1999. The record shows that this draft letter did not meet Ms. Dawson's expectations. In the letter, Ms. Daoust acknowledges that the report had found its way in Ms. Dawson's personal file, where it should never have been placed, that it was not of a disciplinary nature but a sum-up of Ms. Cantin's observations and a summary of facts that were reported to her by some of the employees of the Pierrefonds postal station. Ms. Daoust further writes in the draft letter that the report was written for management to better understand the situation and help inform colleagues adequately whenever necessary and assured Ms. Dawson that it would be destroyed immediately. Finally, Ms. Daoust states that, at the time of the report, Ms. Cantin made a more complete verbal report and informed Canada Post management that no one in her working area should ever feel concerned regarding their security at work. [22] The second draft letter, which is dated June 4, 2001 and was also rejected by Ms. Dawson, refers to a meeting held on February 7, 2001 with Ms. Dawson. The letter states that there were never any complaints regarding her work that were made and that her work was exemplary, that she had not engaged in a certain type of conduct, that she was not dangerous for other people and would not physically attack anyone. (ii) The 2001 settlement [23] The record shows that the first complaint filed by the Complainant against the Respondent was settled on August 16, 2001. The first complaint had to do with the Cantin Report. Under the terms of the settlement, the Respondent agreed to pay a certain amount of money to a charity and to apologize to Ms. Dawson. [24] In the course of her testimony, Ms. Dawson alluded many times to the problems she encountered with respect to the settlement of the first complaint and the way it was handled by Ms. Huguette Demers, Canada Post Director of Human Resources for the province of Québec. The delay in paying the settlement money became very annoying to Ms. Dawson. What appears to have been especially annoying to Ms. Dawson was the fact that Ms. Demers told her that the settlement payment had been made when in fact it had not. [25] The evidence shows that Ms. Dawson was able to explain the settlement to her co-workers at a five-minute floor meeting on September 6, 2001. Ms. Dawson noted that the meeting came after the airing in February 2001 on Radio-Canada of a documentary featuring her. According to her testimony, 100 people attended this meeting. At the meeting, Ms. Dawson stated that she was autistic, informed those present of her human rights complaint which had just been settled and talked a bit about the human rights training done by Canada Post. More specifically, Ms. Dawson pointed out that discrimination against autistic people is not caused by autistic people, that the problem is not autism and that there is not one set of rights for people judged to be crazy and one for everybody else. [26] For her part, Ms. Daoust testified that, in 2001, after the settlement of the first complaint, meetings were held with Ms. Dawson. Ms. Daoust was present at two of these meeting which were held at the Pierrefonds postal station. [27] The record shows that a meeting was held on September 21, 2001. Richard Paradis, Danielle Daoust, Jacques Théroux, Christian Potvin and Michel Couture were present at the meeting. Ms. Daoust stated that, at one point in the course of the meeting, Ms. Dawson told Richard Paradis to shut up and that he did not have the right to talk. Ms. Daoust, however, admitted that she did not recall the exact words that were used. Ms. Daoust further stated that she did not recall what was the purpose of the meeting and who had called the meeting. [28] Ms. Daoust nonetheless stated that at the meeting, the content of the apology letters, referred to above, was discussed. Ms. Daoust testified that it was Ms Dawson who had requested that a statement to the effect that she was not violent be put in the letter. Ms. Dawson stated, in her testimony, that she needed this to be written down in order to ensure her safety. It appears that Ms. Daoust, according to Ms. Dawson, did not want to acknowledge that the second letter was badly worded, especially the part where it is stated that in concluding, the management and your colleagues now know that although you suffer from an autism disorder, your condition represents no threat to the safety of others. Ms. Dawson further testified that, in the course of the meeting, she was told that if she had concerns about anything, she should speak to Richard Paradis. [29] It is worth noting here that Ms. Boucher, Manager of Human Rights at Canada Post, one of the Respondent's two witnesses, stated in her testimony that it was in the context of the application of the settlement of the first complaint that a person was assigned to answer Ms. Dawson's inquiries and that the decision was made to minimize the number of persons who had to deal with Ms. Dawson. According to the testimony of Ms. Boucher, that person was at first Richard Paradis and later Huguette Demers. This was done in order to better understand Ms. Dawson and resolve her concerns, it appears. [30] Ms. Daoust testified that, after the settlement of the first complaint, she received calls from Ms. Dawson who was still preoccupied by the settlement. According to Ms. Daoust, all the phone conversations lasted between 30 to 45 minutes. She explained that the reason why Ms. Dawson was phoning her was because she had made phone calls to her bosses and that they had not returned her calls. Ms. Daoust stated that during the phone calls, Ms. Dawson sometimes raised her voice, especially when she did not get the answer she wanted but that she never was insulting. [31] The record shows that it took an additional few months to completely resolve the settlement issue. In fact, it was not resolved until December 2001. [32] It is worth nothing here that in the course of her testimony, Ms. Daoust stated that, after July 1999, she had many phone call conversations initiated by Ms. Dawson. She admitted that she never took notes of these phone conversations. According to Ms. Daoust, these telephone conversations, which took place at the end of the day, lasted for very long periods of time, between half an hour and one hour. Ms. Daoust however acknowledged that some of them were shorter but most of them were probably around 30 minutes or more. [33] According to Ms. Daoust, Ms. Dawson talked endlessly and, at times, became very upset. Ms. Daoust testified that she was not the only one receiving phone calls from Ms. Dawson. Individuals such as Carman Lapointe-Young, Raymond Poirier, Huguette Demers, Richard Paradis and Louise Lefebvre all experienced this kind of situation that was not always easy to deal with. According to Ms. Daoust, the individuals Ms. Dawson called were forced to ultimately hang up on Ms. Dawson in order to cut short the conversation. [34] In relation to the phone calls, Ms. Daoust stated that she could not recall when Ms. Dawson started speaking to Ms. Traversy, Corporate Manager, Industrial Relations, and how many time she spoke with her. She, however, was able to recall that Ms. Traversy had called her and had told her that Ms. Dawson had called and that her enquiries should be dealt with locally and not at a national level. The record shows that Ms. Traversy became involved in Ms. Dawson's file in the course of the settlement of the first complaint which took place in the August 2001. [35] Ms. Dawson, according to Ms. Daoust, called her because she was concerned about losing her job because she had come to work injured, about being seen as a bad employee. According to Ms. Daoust, these telephone conversations would have taken place at the time when the restructuring of the Pierrefonds postal station took place which was, according to Ms. Dawson, in April 1999 and according to Ms. Daoust, in July 1999, notably in relation to her sorting case. Ms. Daoust was however unable to recollect precisely if these telephone conversations had taken place at the time of the restructuring or in December 2000 when Ms. Dawson got a copy of the Cantin Report. [36] In her testimony, Ms. Dawson strongly disputed the fact that she had started phoning Ms. Daoust in 1999. For her, this was pure fabrication. Ms. Dawson stated that she had been working at Canada Post since 1988 and found it incredible that she would have started calling Ms. Daoust after July 1999 for whatever reason. [37] Ms. Dawson testified that she only became aware of the existence of Ms. Daoust when she became aware of the Cantin report in November 2000. The record shows that Ms. Daoust wrote to Ms. Dawson on January 18, 2001 in reference to the Cantin report. Ms. Dawson further testified that she met Ms. Daoust for the first time on September 21, 2001 in the context of the settlement of her first complaint. [38] Asked by Ms. Dawson if it was possible that she might have started telephoning her after August 7, 2001, after the signing of the minutes of settlement, Ms. Daoust answered that everything was possible, that she did not have the dates. Asked by the Chair if it was to be understood that between 1999 and September 2001, she had many telephone calls from Ms. Dawson where the latter talked about problems she had at work, Ms. Daoust gave the following answer: Well, I'm under the impression that we did talk not too long after the investigation. Obviously, after the report was found (late 2000), there were increasing calls, increasing issues, but at such dates, like I said, Mrs. Dawson is very good at dates because she writes everything, she knows when, and this and that, I didn't take any notes. [39] The evidence shows that Ms. Daoust was not able to recall precisely when she started talking on the telephone with Ms. Dawson. Furthermore, given the time line of events, the testimony of Ms. Dawson as well as the testimony of Dr. M., infra, that autistic individuals are extraordinarily precise of the things they complain about, the Tribunal finds that in all probability Ms. Dawson started telephoning Ms. Daoust after she discovered the Cantin report, i.e. in November 2000. [40] The above events, i.e. the Cantin Report as well as the 2001 settlement, provide the background to Ms. Dawson's second complaint and provide valuable information for the understanding of the events that form part of Ms. Dawson's second complaint. B. Ms. Dawson's career at Canada Post [41] Ms. Dawson started her employment at Canada Post in December 1988 as a full-time letter carrier. Ms. Dawson stated in her testimony that she worked at Canada Post for 15 years, until she went on sick leave. Now, she says, she feels that she has sort of lost her work at Canada Post and that she is not inclined to go back. Ms. Dawson testified that she liked her job a lot and that it was very important to her. [42] Ms. Dawson stated in her testimony that she was a very good employee. She testified that she had a perfect work record at Canada Post: she did not take sick days, she did not do overtime on her route, she did not declare work accidents and she did not complain when her rights were violated, she never had disciplinary measures taken against her, even in a minor way, that she was doing everything that Canada Post considered that an employee should do. Nothing in the evidence shows otherwise. None of the witnesses called by Canada Post questioned her perfect work record at Canada Post, on the contrary. [43] For example, in the second draft letter written by Ms. Daoust, in relation to the first complaint and which was rejected by Ms. Dawson, it is clearly acknowledged by Canada Post that her work as a letter carrier was at the time exemplary and that no complaints had been received from customers. In the letter of apology that was posted on August 7, 2001 on the Pierrefonds' Postal Station Bulletin Board, Ms. Traversy, Corporate Manager, Industrial Relations at Canada Post, clearly acknowledges Canada Post's confidence in Ms. Dawson's capabilities and her commitment to high standards in her work. In the letter of apology, Canada Post also acknowledges that Ms. Dawson had never done anything wrong to merit any complaint either from management, colleagues or clients. [44] Ms. Dawson testified that a lot of people on her work floor did really nice things for her and that she would help them out. However, she stated in her testimony that she had problems with her supervisors, mainly Mr. Schetagne and Mr. Potvin. She referred to specific incidents in her testimony, one of them being the day where Mr. Potvin came up to her and said that she would not be getting the things she had asked for by way of accommodation and that he had thrown her rack out. Ms. Dawson also mentioned an incident with Mr. Schetagne where the latter grabbed her and pushed her or shoved her into his office. [45] Ms. Daoust testified that Canada Post tried to accommodate Ms. Dawson in many ways, that Canada Post, according to Ms. Daoust, bent or ignored the rules in order to accommodate Ms. Dawson. This was strongly contested by Ms. Dawson. [46] For example, in relation to the restructuring of the Pierrefonds postal station which, according to Ms. Dawson occurred in the spring of 1999, Ms. Daoust testified that Canada Post tried to change as little as possible Ms. Dawson's delivery route, given that Ms. Dawson was autistic, that any change to Ms. Dawson's delivery route entailed a lot for Ms. Dawson, that in the course of the restructuring of delivery routes at the Pierrefonds postal station, Ms. Dawson's route was not part of the bidding process so as to allow her to keep the bulk of her route and keep the changes at a minimum level. [47] According to Ms. Daoust, Ms. Dawson, by way of accommodation, was allowed to start her work before her colleagues, that she was allowed to pick up her mail before her other colleagues. Ms. Daoust also stated that Canada Post made some changes to the lighting system so as to accommodate Ms. Dawson's need or request to have less luminosity. [48] Ms. Daoust testified that she was told that Canada Post also allowed Ms. Dawson to keep the design of her sorting rack the way it was, even though it did not meet the national standards, that she was allowed to sort differently from everybody else. For Ms. Daoust, this was another accommodation provided by Canada Post. [49] Ms. Daoust further stated that she was told that the reason why Ms. Dawson's rack was changed was because she could not work well with existing norms. On the other hand, Ms. Daoust testified that letter carriers could make minor adjustments to the design of their rack. However, they were bound to respect the national standards. If a letter carrier was not pleased with the national standards, she testified, he/she could appeal but otherwise, except for minor changes, he/she would have to adapt himself/herself to the rack design according to national norms. Grievances were settled through the collective agreement. [50] In her cross-examination of Ms. Daoust, Ms. Dawson put to Ms. Daoust the proposition that the reason why she was allowed to change her rack was because it was full of errors. Ms. Daoust's response was that it was the national norms that Ms. Dawson did not like and stated that she assumed that the reason why Ms. Dawson was allowed to have a special rack was because of her condition, otherwise she would not have been allowed to set up a rack the way she wanted. She would have had to follow the national norms. [51] Ms. Dawson strongly disputed the fact that the rack she was given was a good rack that met the national standards. Ms. Dawson stated in her testimony that Canada Post dismissed the concerns she had with the design of her rack offhand, did not consider them as legitimate concerns and considered the changes that were allowed done to accommodate her because of her condition. Ms. Dawson expressed the opinion that the changes that were brought to her rack might have had nothing to do with her condition but because the design of the rack was faulty or problematic. [52] Ms. Dawson further asserted in her testimony that accommodation became an issue when her diagnosis became known to Canada Post in 1999 and that before that time, from 1988, when she started working at Canada Post, to 1999, it had never been an issue. Ms. Dawson testified that she asked to be accommodated twice on the basis of her disability. These requests, she stated, had to do with flexibility in scheduling and taping conversations in a hostile environment. As for the other measures mentioned herein, they were, according to Ms. Dawson, not related to her condition. Other letter carriers, according to her, had asked for similar accommodations. C. Ms. Dawson's medical condition [53] Ms. Dawson testified that she was diagnosed, as being autistic, for the first time in the early 90's, both by M. T., who had a Ph.D. in psychology and was a researcher at Université du Québec in Montréal, and by Dr. K. [54] In a letter, dated April 9, 1999, addressed to Mr. Christian Potvin, Dr. T. states the following: `Autism is characterised by qualitative deficits in social interactions, qualitative difficulties in communication, an intense need for structure as well as certain behaviors that may be perceived as peculiar'. And he adds: `Due to this disorder, Ms. Dawson needs a highly structured and consistent environment to function well and will thus experience difficulties adjusting to changes in her work routines. Ms. Dawson is an intelligent woman who seems to have been able to cope and adapt to her environment to meet the special needs that her disability creates'. At the end of his letter, Dr. T. makes himself available to clarify any questions Canada Post may have regarding Autistic Disorder and that with Ms. Dawson's permission, he would also be happy to make himself available to discuss specifics about her case. [55] In a note written on April 7, 1999, addressed to whom it may concern, Dr. K. states that Michelle Dawson has been a patient of hers for many years, that Ms. Dawson is autistic and that to be able to continue to perform her duties to satisfaction, she requires flexibility in scheduling and work job areas. [56] The evidence shows that Mr. T.'s letter as well as Dr. K.'s note were received by the Health Services of Medisys, the outside firm that took care of medical matters involving Canada Post employees, on April 14, 1999. It must be noted here that Ms. Dawson testified that she believed that Canada Post became aware of her condition in April 1999. [57] The Tribunal finds that Canada Post was clearly made aware of Ms. Dawson's condition in April of 1999. For her part, Ms. Daoust testified that she became aware of Ms. Dawson's condition in July 1999 after receiving the Cantin report. [58] Ms. Dawson testified that after she disclosed her diagnosis to Canada Post, everything went wrong. Before that time, even though Ms. Dawson came to work with self-inflicted injuries, this did not seem to create any qualms or concerns with respect to Canada Post. Things started to change, she stated in her testimony, after some Pierrefonds employees felt threatened by Ms. Dawson and sent a letter to that effect to Ms. Daoust in July 1999. [59] The record shows however, that on September 6, 2001, Ms. Dawson was able to address close to 100 of her co-workers in the context of the settlement of her first human rights complaint as seen above. In her testimony, Ms. Dawson stated that after that day, she did not have problems with her co-workers. Even those few who still regarded her with some suspicion did not mock her. New people coming into the Post Office got accurate information about her and her colleagues made sure that the newcomers knew how to behave with respect to her. Colleagues of Ms. Dawson, it appears, went out of their way to apprise the new employees of Ms. Dawson's condition and that sometimes she might need to be treated differently than other employees. According to Ms. Dawson, the floor meeting had a dramatic effect on her colleagues. This 5 minute meeting was for Ms. Dawson a turning point in the way her co-workers saw her. The key to this turn around was, according to Ms. Dawson, the fact that her co-workers got accurate information about her and some notion of the consequences of their actions. III. LEGAL CONSIDERATIONS [60] The Complaint filed by Ms. Dawson raises a number of legal issues as well as a specific human rights issue. [61] In her testimony, Ms. Dawson stated that, through this complaint, she was attempting to get a decision that establishes that autistic people are human beings covered by the Canadian Human Rights Act and to find out whether the Canadian Human Rights Act considers autistic people to be human and therefore protects them. [62] As for the Commission, in its closing arguments, it submits that the issues that must be addressed by this Tribunal in relation to this complaint are: Whether the respondent failed to provide the complainant with a harassment free workplace by virtue of failing to respond in an appropriate fashion to her concerns and needs or by treating her in an intolerant and paternalistic manner and by not exercising all due diligence to ensure that the workplace was harassment free; Whether the respondent treated the complainant in an adverse differential manner by reason of her disability by failing to respond in an appropriate fashion to her concerns and needs or by treating her in an intolerant and paternalistic manner and by not exercising all due diligence to ensure that the workplace was harassment free; Whether the respondent treated the complainant in an adverse differential manner by reason of her disability by failing, in the face of a medically supported request, to accommodate the complainant's need to record interactions with management; Whether the employer retaliated against the complainant for having filed one or both of her two complaints with the Canadian Human Rights Commission. [63] The Tribunal will deal in turn with each of these issues, i.e. whether autistic people are human beings and are protected by the Canadian Human Rights Act, whether Ms. Dawson was discriminated against in the course of her employment, whether Canada Post retaliated against her for having filed a human rights complaint, as well as to whether or not she was harassed in her workplace. A. The relevant legal principles [64] A the outset, it important to set out the legal principles applicable to the adjudication of issues related to discrimination, retaliation and harassment made by the Complainant against the Respondent. (i) Discrimination [65] In human rights cases, as well as in civil cases, the complainant or the plaintiff bears the burden of proof and must prove the allegations he or she makes on a balance of probabilities. HE WHO ALLEGES MUST PROVE. (Ontario (Human Rights Commission) v. Simpsons Sears Ltd. (O'Malley), [1985] 2 S.C.R. 536. [66] This said, in proceedings before Human Rights Tribunals, the complainant must establish a prima facie case of discrimination in order to have the burden of proof shift to the respondent who then has to provide a reasonable explanation which is not a mere pretext that will convince the Tribunal that, for example, the reason for treating a person the way it did was not motivated in any way by a prohibited ground of discrimination. As stated by Mr. Justice McIntyre in O'Malley, 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 favor in the absence of an answer from the respondent or, in other words, one where the evidence, if believed, and not satisfactorily explained by the respondent, will suffice for the complainant to succeed. [67] In Morris v. Canada (Canadian Armed Forces), [2005], F.C.J. No. 731, the O'Malley test was found to be the legal test of a prima facie case of discrimination under the Canadian Human Rights Act. According to Morris, it is a question of mixed fact and law whether the evidence adduced in any given case is sufficient to prove adverse differentiation on a prohibited ground, if believed and not satisfactorily explained by the respondent (Morris, par. 27). [68] The Tribunal shares the view expressed in Singh v. Canada (Statistics Canada), [1998] C.H.R.D., No. 7, at par. 197 that to support a finding that a prima facie case of discrimination has been established the complainant must do more than put forward sweeping assertions. Furthermore, as stated in Bobb, mere allegations that a conduct was discriminatory cannot be substituted for proof of facts (Bobb v. Alberta (Human Rights and Citizenship Commission), [2004] A.J. No. 117, par. 76. The Tribunal further shares the view that a tribunal should be reluctant to find discrimination on the basis of a prohibited ground where there is a reasonable alternative to the theory that the complainant incurred discrimination. [69] A belief, however strong, that someone is being discriminated against is not sufficient in law to give rise to an inference of discrimination or to establish a prima facie case of discrimination (Singh v. (Statistics Canada), [1998] C.H.R.D. No 7, par. 206). As stated in Filgueira v. Garfield Container Transport Inc., [2005] CHRT 32, par. 40, there must be some evidence, i.e. material facts, that if believed, will make the existence of discrimination more likely than its non-existence given all the circumstances of the case. [70] Over the years, Human Rights Tribunals have recognized that direct evidence that discrimination was the motivating factor behind a decision or a behavior is rarely available to complainants, given that discrimination is not a practice which is usually displayed overtly. As stated in Basi v. Canadian National Railway Company, [1988] C.H.R.D. No 2, rarely can discrimination be proven by direct evidence. [71] Complainants alleging discrimination must thus more often than not rely on circumstantial evidence, notably the conduct of individuals or organizations whose conduct is at issue (Brooks v. Canada (Department of Fisheries and Oceans), 2006 F.C.J. No. 1569, par. 27). The criterion is whether the circumstantial evidence, if believed, tends to prove the allegation of discrimination. [72] In Brooks, this Tribunal stated, with respect to circumstantial evidence, that it is not enough if circumstantial evidence is consistent with an inference of discrimination. This merely establishes the possibility of discrimination, which is not enough to prove the case. The evidence must be inconsistent with other possibilities. (Brooks, par. 114). [73] This said, as stated in Wall v. Kitigan Zibi Education Council, (1997) C.H.R.D. 6, the standard of proof in discrimination cases remains the ordinary civil standard of the balance of probabilities and that in cases of circumstantial evidence, the test is the following: 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 (B.Vizkelety, Proving Discrimination in Canada, Carswell, 1987, p. 142). [74] Hence, in its determination as to whether or not an alleged conduct is discriminatory, the Tribunal must analyze and scrutinize carefully the conduct itself as well as the context in which it occurred, keeping in mind, as stated in Marinaki v. Canada (Human Resources Development), [2000] C.H.R.D No 2, that for a complaint to succeed, it is not necessary that discriminatory consideration be the sole reason for the actions in issue but that it is sufficient that the discrimination be a basis for a person's action (Marinaki, par. 191) and that the intent to discriminate is irrelevant to the determination of discrimination (Nova Scotia (Human Rights Commission) v. Play it Again Sports Ltd, [2004] N.S.J. No 403, par. 37). (ii) Retaliation [75] The Canadian Human Rights Act, as it stands, considers retaliation or threats of retaliation only in relation to a complaint having been filed and a conduct which was in response to the complaint being filed (Witwicky v. Canadian National Railway, [2007] C.H.R.D. No. 28). The source of the retaliation must thus be the filing of a complaint and not, for example, an event which occurred prior to the filing of the complaint. [76] The law is clear. Section 14.1 of the Act only considers retaliation in relation to the filing of a complaint. Furthermore, as indicated by this Tribunal in Marinaki v. Canada (Human Resources Development, [2000] C.H.R.D. No 2, par. 224, section 14.1 of the Act came into force on June 30, 1998 with no retroactive effect being contemplated. To apply the new retaliation provision of the Act to acts occurring before the section came into force would be to attach new consequences to events that took place before the enactment. This would, according to the Tribunal, give the legislation retrospective effect, which is not generally permissible, and is not supported by the wording of the act. (iii) Harassment [77] The Canadian Human Rights Act does not define what constitutes harassment but the case law does. In Hill v. Air Canada, 2003 CHRT 9, this Tribunal stated that the gravamen of harassment lies in the creation of a hostile work environment, which violates the personal dignity of the complainant. In Marinaki v. Canada (Human Resources Development), [2002] C.H.R.D. No 2, this Tribunal examined the elements that should be taken into consideration when determining if there has been harassment under section 14 of the Act. [78] In Marinaki, the Tribunal expressed the view that victims of harassment need not prove that they suffered pecuniary losses, that for a behavior to amount to harassment, some element of repetition or persistence is usually required (Marinaki, par. 188-191). However, as stated in Bobb v. Alberta (Human Rights and Citizenship Commission), [2004] A.J. No 117, in certain circumstances, a single incident may be enough to create a hostile work environment. In those circumstances, the nature of a conduct should be calculated according to the inversely proportional rule: the more serious the conduct and its consequences are, the less repetition is necessary; conversely, the less severe the conduct, the more persistence will have to be demonstrated. B. The relevant allegations [79] Ms. Dawson feels very strongly that Canada Post has discriminated and retaliated against her as well as harassed her. Her hurt feelings go beyond specific events that took place at her workplace. They also encompass the manner in which Canada Post dealt with her concerns. [80] In her complaint form, Ms. Dawson underscores the fact that throughout the period of the complaint, whenever she had met or spoken with a member of the Respondent made a point of not only defending its employees, but of praising, commending and congratulating those who, according to her, had insulted, threatened and hurt her and had violated her human rights. She asserts that she has tried very hard to find out from the Respondent what she was doing wrong. The Respondent, she alleges, continues to refuse to tell her. [81] Ms. Dawson feels that Canada Post acted throughout on the belief that autistic people are unable to speak for themselves or make their own decisions, that only non-autistic experts, and not autistic people, know anything about autism, that autistic people are bizarre and difficult to manage. Ms. Dawson alleges in her complaint form that, in her workplace, she was treated as a non-person although her work record continued to be excellent. She states that she never approached a member of the management of the Pierrefonds post office directly for any reason, that she used intermediaries to prevent outbreaks of intolerance, threats and accusations by the Respondent, that her very determined effort to resolve this widespread and deeply rooted human rights problem which, she said, has been very exhausting for her, have collapsed because of bad faith on the part of management. She furthermore expresses the view that the worsening of her situation since she filed her original complaint has led her to believe that she is facing retaliation because of the earlier complaint. [82] Over and above these general allegations, Ms. Dawson as well as the Commission identified specific employees of the Respondent who, they alleged, discriminated and retaliated against Ms. Dawson and harassed her, as well as events where the Respondent, through the acts of certain employees, discriminated and retaliated against Ms. Dawson and harassed her. [83] The Tribunal will analyse in turn the allegations related to specific employees and certain events. However, before conducting such an analysis, the Tribunal will consider the question as to whether or not autistic people are persons and are protected by the Canadian Human Rights Act. The determination of this question should provide valuable information as to the condition of autistic people, notably Ms. Dawson. (i) Autistic individuals and the CHRA [84] On this issue, the Tribunal heard evidence from Dr. M. who was the only physician called as a witness as well as from Ms. Dawson. The Respondent did not call any expert. a) The testimony of Ms. Dawson [85] At the hearing, there was an objection made by Counsel for the Respondent with respect to the ability of Ms. Dawson to speak to the issue of autism in general. The Tribunal ruled that, even though Ms. Dawson had not been qualified as an expert in autism, the fact that she was an autistic person made her particularly cognizant of all the issues surrounding autism and allowed her to speak to issues that were not limited to her own condition. 1. Ms. Dawson's testimony on autism [86] Ms. Dawson testified that autism is a neurological disability and that people generally do not have a good understanding of this reality. Ms. Dawson stated repeatedly that autism was not a mental illness. For her, a mental illness has an onset, various treatments, and there is a return to the previous state to a greater or lesser degree. Both Ms. Dawson and Dr. M., as will be seen, pointed out that the notion of curing autism was nonsensical. Still many people want to cure autism. [87] Ms. Dawson pointed out in her testimony that autistic people are prevented from discussing autism whereas parents of autistic children are considered experts automatically in autism itself, not in being the parent of an autistic child, but on autism itself. According to Ms. Dawson, parents are inevitably and invariably consulted in policy-making decisions and rarely autistic people. As to the representation of autistic people in Canada, according to Ms. Dawson, autism associations do not represent autistic people. These associations or societies represent families of autistic individuals. [88] Ms. Dawson further testified that parents also run major private funding bodies, including Cure Autism Now, thus showing that their goals may be at odds with what science dictates, their goal being to have a world free of autistic people, thus a cure for autism even if this is scientifically impossible and, according to her, ethically very troubling. [89] In the course of her testimony, Ms. Dawson asked the question whether it was wrong to be autistic, whether autism was a disease that should be eradicated from the face of the world, whether or not autistic people should be treated so as to be cured of their disability. Why is autism, she asked, responded to the way it is? Why, she asked, with all the range of human behaviors that we accept, why is it that autism seems to fall outside of that? 2. Ms. Dawson's testimony on autistic people [90] Ms. Dawson testified that autistic persons compared to non autistic people process information very differently, at a very basic profound level, really low level. According to her, cognitive processes in autism are very different, so is the way the cognitive processes work together. Ms. Dawson testified that the brain of autistic people works differently. Autistic people require different kinds of information. Ms. Dawson underscored the fact that there are kinds of information with which autistic people cannot work at all but, on the other hand, there are kinds of information that ordinary people cannot work with but autistic people can. [91] Ms. Dawson also mentioned that there are ways of communicating that make it possible for an autistic person to function and others that make it impossible. Autistic people will, according to Ms. Dawson, do what they are told to do. For her, there are not that many people easier to accommodate than autistic people, that it is very simple to accommodate autistic people. [92] Ms. Dawson stated, in her testimony, that autistic people, like herself, need to know what rules apply and, if they are not going to apply, they need to be told and not have the rules change day after day. She also mentioned that autistic people are often times assumed to badly behave and to be deliberately difficult. [93] According to Ms. Dawson, one of the worst things one can do to an autistic person is to claim that one has not said what he has said. According to her, this throws the autistic person into massive confusion because speaking is a gigantic effort to them. [94] In the course of her testimony, Ms. Dawson referred to the case of Charles-Antoine Blais, an autistic six year old child who was murdered in 1996 in Montréal. She testified that this murder had a huge effect on her, especially the fact of finding out that everybody thought it was understandable to kill an autistic child. [95] In her testimony, Ms. Dawson also referred to people with Down Syndrome. She testified that Down Syndrome is in the same classification as autism. They are both developmental disorders or neuro-developmental disabilities. People with Down Syndrome have been included in society with all the assistance and accommodation they need, which does not seem to have been the case with autistic people. Ms. Dawson expressed the view that the rights of autistic people will never be established or defended. [96] According to Ms. Dawson, there are a lot of autistic people. She testified that the conservative prevalent figure is 60 per 10,000, which is 1 in 166. This would mean that there are 197, 000 autistic people in Canada. No documentary evidence was provided to support these figures, although Ms. Dawson mentioned the Census estimates for 2006 in support of her assertion. According to Ms. Dawson, of the 197, 000 autistic individuals, 150,000 would be adults and 47,000 would be children. 3. Ms. Dawson's testimony about herself [97] In her testimony, Ms. Dawson spoke about her self-inflicted injuries. Ms. Dawson testified that, at the very worst, there was probably a week or two weeks where two weeks in a row, she would have something, that she would injure herself. She added, however, that this would be rare. According to her, she would self-injure about once a month and never more. She testified that for cuts, it would not be more than one small area affected and not more than one or two cuts, but they would be in the same place. [98] Ms. Dawson testified that, well before Canada Post knew she was autistic, she would show up at work with self-inflicted wounds, that she did not suddenly start showing up with obvious signs of self-injury in 1999. According to her, any time after 1990, she would have had at times signs of self-injury, sometimes more than at other times, sometimes with long gaps. b) The testimony of Dr. M [99] At the beginning of his testimony, Dr. M., who is a psychiatrist, was qualified by the Tribunal as an expert in autism. Dr. M. filed a report as well as three letters pertaining to Ms. Dawson's condition. [100] Dr. M. testified on the nature of autism, autistic individuals as well as on Ms. Dawson's condition. The credibility of Dr. M. as well as the accuracy of his statements and opinions was not challenged by the Respondent. The Tribunal finds Dr. M.'s testimony highly credible even if the evidence shows that in recent years, Ms. Dawson has worked with him and has co-authored scientific articles with Dr. M. 1. Dr. M.'s testimony about autism [101] In his testimony, Dr. M. explained that autism is not a psychiatric disorder, that it is in fact a neuro-biological difference as opposed to a mental disability. Autism is an innate condition. It is not a condition that someone acquires. [102] Autism is characterized by the presence of a certain number of symptoms above a certain threshold. According to Dr. M., what is very special in autism is that, you may have extremely different levels of adaptation and of apparent intelligence, that the level of impairment that appears may be completely discrepant with the actual level of intelligence for autistic people. Dr. M. stated in his testimony that autism has a lot of unique features in the sense that it is a condition which clearly gives some cognitive advantages to those who have it. [103] For Dr. M., the idea of curing autism is meaningless. Violence is absolutely not a problem that is attached to autism. According to Dr. M., what characterizes autism is that the specific part of the brain which is in charge of social activities is broken in an autistic brain. According to Dr. M., self-injury is linked to autism. 2. Dr. M.'s testimony about autistic people [104] Dr. M. testified that more than 90% of autistic individuals are of normal intelligence. According to Dr. M., autism without mental illness or deficiency is now acknowledged as representative of autistic people. For Dr. M., autistic people are vulnerable to the malice of their peers and that they are stigmatized in society. Autistic people are not violent by definition. However, Dr. M. stated that he was sure that most people are intimately convinced that most autistic individuals are violent, even if it is not true. In general, for him, non autistic people have a poor understanding of autistic people [105] In his testimony, Dr. M. stated that he spends a lot of clinical time verifying complaints made by autistic people and that he is always struck by the extraordinary preciseness of the things they complain about. He testified that lying is exceptional in autistic people, and also that exaggeration and the exploitation of one's handicap to gain certain benefits are foreign to autistic people. [106] According to Dr. M., complete arbitrariness or appearance of complete arbitrariness is something autistic people cannot cope with. Within predetermined set of rules, autistic people can be very good. [107] Dr. M. agreed with Ms. Dawson's statement that if an autistic person learns how to regulate reactions that he or she has by having, for example, a safe place to go to, that he or she is able to get away from a stressful situation, it is possible for an autistic person to deal with quite difficult events, even though they may provoke strong reactions. Dr. M. also agreed with the statement that if an autistic person knows that he or she can use their coping mechanisms in a stressful situation, it makes it much less likely and even takes away the possibility that they will get into difficulty. Autistic individuals will express their emotions differently than ordinary people, as well as their anxiety, according to Dr. M. [108] According to Dr. M., autistic individuals process information in a more precise way than non autistic individuals. Furthermore, according to Dr. M., autistic people do not archive information in the same way as non autistic people. Autistic people are at their best in working with information. They are extremely good, for the most educated, in science and law. In fact, according to Dr. M., the information processing of people with autism is superior to that of non autistic individuals in some conditions. However, individuals with autism are, in many respects of every day life, at a certain disadvantage. Dr. M. thus stated that autistic people live in fact in a world that is not made for them. [109] Dr. M. testified that autistic individuals have no problem with hierarchy as long as hierarchy is consistent and fair. Autistic individuals start to have problems with hierarchy when it is self-contradictory. Autistic people are not as rigid as one can think. They can adapt to a new situation as long as the rules are clear, as long as there is a consistent framework. In an environment where there are little or no rules, they will not perform well. According to Dr. M., autistic individuals will function better in a regulated environment. Dr. M. agreed with the proposition that so long as there is a consistent framework in place, even though there will be unexpected events, autistic people will be able to cope with these unexpected situations and do well. [110] Dr. M. testified that, while the ordinary person will become aggressive when anxious, autistic individuals will sometimes self-injure. This is especially the case, according to Dr. M., when an autistic person cannot understand a situation or cannot get an answer to a question. According to Dr. M., self-injury is the most extreme response to a psychological impasse that has no solution. It is a response to a disorganization of the world. It is the way for an autistic person to respond to negative situations whereas non autistic persons will show anger. Dr. M. stated in his testimony that he was aware of Ms. Dawson self-injury behavior. He had seen one of the wounds she had inflicted upon herself. For Dr. M., a self-inflicted injury is a sign of a deep psychological suffering. [111] According to Dr. M., autistic people will also have a self-injurious behavior when experiencing internal pain of physical or psychological displeasure. So, if an autistic person finds himself or herself in a situation where he or she cannot escape, or experiences a feeling of disorder, he or she may self-injure, such as biting one's arm or hand. Dr. M. added that it is very difficult for a non autistic person to understand this type of behavior. [112] Dr. M. furthermore expressed the view that autistic people very rarely become aggressive. Self-injury, according to Dr. M., is a phenomenon not well understood at a scientific level. It appears that self-injury may solve a certain situation at the psychological level. [113] According to Dr. M., autistic individuals are at their worse when they have to guess very quickly the good behavior in a certain situation. And they are at their best in processing sophisticated information and in doing logical work or action. Autistic people are very precise. Routine is important to them. [114] Dr. M. testified that, if one accepts a certain number of conventions, autistic individuals will be able to perform. Autistic people are different from non autistic people in that senses are different, colors are different, brain allocation is different, involvement of a certain function or of a certain brain region in a certain task is different. [115] Autistic people, according to Dr. M., have a misunderstanding of what other people want of them, they have the impression of not being correct, not being adequate, because they do things because they just need and want to do them. They realize that, when they do their spontaneous behavior, it creates drama around them. Dr. M. testified that, for autistic people, verbal abuse has a detrimental effect on them. Autistic people will prefer if they can withdraw themselves. [116] Dr. M. stated in his testimony that it is absolutely untrue or wrong to say that autistic people do not accept changing things or change and stated that all the autistic people he knows that succeed to be employed, the commentary that is made is that they are the best employees. According to Dr. M., if autistic people are employed according to their level of excellence, their impairment becomes a means of excellence. According to Dr. M., in the workplace, the informal nature of certain activities, such as coming into the premises, dressing up, breaks, jokes can present difficulties to the autistic person. [117] Dr. M. acknowledged that for autistic people, accommodation takes usually the form of behavioral changes and of one's interaction with autistic individuals. This said, according to Dr. M., society is not very tolerant to accommodate autistic people. [118] According to Dr. M., autistic individuals should be told in advance of what is expected from them and an agreement be reached in this regard. Dr. M. acknowledged that coming to this form of working relationship is sometimes difficult in a workplace. Dr. M. feels that there needs to be a form of initial contractual agreement or arrangement where all the expectations are clearly spelled out and agreed upon. [119] In cross-examination, Dr. M. stated, even though there are unexpected situations in the workplace, what needs to be done is not to limit these situations but to make them more foreseeable. Dr M. gave as an example a route change: what is important is that proper explanations be provided. According to Dr. M., the unknown raises more problems than the unexpected. Thus, with respect to an autistic person, one way of accommodating that person is to tell the person in advance the changes that one wants to implement and explain them so that the person will be able to prepare herself. Changes must be explicit and understandable. [120] In his testimony, Dr. M. stated that when somebody who is not aware of autism is confronted with an autistic person, that person will perceive the autistic person as rude or as manipulative. Dr. M. agreed that if autistic people behave differently in social situations, it may not have to do with the socialness (sic) of the situation but with the kind and amount of information involved. [121] In his testimony, Dr. M. acknowledged that if autistic people are simply assumed to not be behaving well, that accounts for a lot of the social difficulty that autistic people might experience. According to Dr. M., a lot of their apparent strangeness results from this kind of absence of reciprocity. For Dr. M., one can perfectly live in a very peaceful way close to an autistic person with a very small number of accommodations. Dr. M. testified furthermore that autistic persons sometimes need to withdraw for a certain amount of time and that they should be accommodated for that. Dr. M. acknowledged that a number of accommodations requested by autistic people are impossible to satisfy. [122] According to Dr. M., autistic people most of the time know what they have to do to take care. They also know what they have to avoid. According to Dr. M., autistic people have a social naïveté. 3. Dr. M.'s testimony about Ms. Dawson [123] Dr. M. testified that he first came into contact with Ms. Dawson after seeing her on the television program Enjeux in 2001. At the hearing, Ms. Dawson stated that before the airing of Enjeux, she had tried to get into Dr. M.'s clinic but was unable to get past the reception. It appears from the evidence that Ms. Dawson went to see Dr. M. in April 2001. At that time, he diagnosed Ms. Dawson as being autistic. According to Dr. M., Ms. Dawson is considered as a very high functioning person. [124] Dr. M. testified that he wrote his first letter for her in 2002. The evidence shows that Ms. Dawson has been working with Dr. M. for a few years and that they had co-authored articles. Through his working relationship with Ms Dawson, Dr. M. stated in his testimony that Ms. Dawson said things as she thought they were, that she has good judgment and takes good decision. Dr. M. testified that he thought that the decisions that Ms. Dawson took at her work were good, the reason being that he had never seen Ms. Dawson take a decision that he really disapproved on a judgment basis. Dr. M. stated that this does not mean that Ms. Dawson can never be wrong. [125] According to Dr. M., Ms. Dawson has the ability to accept errors from another point of view than hers. He further testified that the two main difficulties related to Ms. Dawson are related with the feeling of emergency and the feeling of exhaustiveness. So, according to Dr. M., when Ms. Dawson wants something, usually it's here and now. Whereas non autistic individuals who are 98% convinced of something will do the thing, autistic people need 100%. This may create the feeling or impression that she is never satisfied, that she is never happy. [126] Dr. M. testified that as to questions about Ms. Dawson's accommodation and her functioning within the workplace, it was important for Ms. Dawson to be consulted. Asked why this was important, Dr. M. testified that it was because Ms. Dawson knows more than people who are not professionals in autism. [127] In his testimony, Dr. M. testified that he did not understand very well what was happening at Ms. Dawson's workplace and that he was not interested in Ms. Dawson's employment issue. In fact, given the bad ambiance that existed at Ms. Dawson workplace, Dr. M. was cautious in his assessment of Ms. Dawson, suspecting that Ms. Dawson might be looking for some form of possible gains. His main interest was in determining if Ms. Dawson was autistic or not. [128] Dr. M. testified that he was not precisely aware of the measures taken by Canada Post to accommodate Ms. Dawson. This said, the record shows that Dr. M. wrote two letters in which it is stated that Ms. Dawson is autistic and which provide information about her condition. By signing these letters, Dr. M. did not have a clear idea of what purpose it would serve or how it would be used by Ms. Dawson. According to Dr. M., these letters were of a general nature and in his mind, Ms. Dawson would in fact decide of what use she would make of them. [129] The record shows that the second letter refers to Ms. Dawson self-inflicted wounds. In his letter, Dr. M. restates that Ms. Dawson is autistic and refers to the fact that Ms. Dawson's psychological equilibrium is maintained through acts of self-injury performed at home, that it is a way for her to cope psychologically with intense emotional reactions and should not be seen as an expression of anger. [130] Dr. M. testified that Ms. Dawson had told him that the injury that she self-inflicted helped her psychologically. For Dr. M., Ms. Dawson had the habit of self-injuring. Dr. M. interpreted these acts of self-injury as a sign of major psychological suffering, a way for autistic individuals to cope with anxiety. He stated in his testimony that he personally saw one of the wounds that Ms. Dawson had inflicted upon herself and stated that the wound was impressive, and would have been impressive for her coworkers. [131] In his second letter, Dr. M. states that like all autistic people with high intelligence, Ms. Dawson is particularly vulnerable to malevolence of her peers and can show intense emotional reactions. For Ms. Dawson, certain unforeseen events may cause a form of psychological disorganisation, even chaos and confusion and generate an intense reaction which can take the form of self-inflicted wounds. [132] The Tribunal finds that the views expressed by both Ms. Dawson and Dr. M. about autism and autistic people provide the proper background for the analysis of the allegations of discrimination, harassment and retaliation made by Ms. Dawson in her complaint. [133] This said, there is no doubt for the Tribunal that autistic people are persons, that unfortunately they are not well accepted in society, that they are looked at often times as special creatures who are not part of society as a whole and that society would be better off without them. The Tribunal is further of the view that autistic people need to be better respected and protected in society. They need above all to be better understood and accepted. The testimony of both Ms. Dawson and Dr. M. should provide a better understanding of autism and autistic individuals. [134] Hence, the Tribunal is of the view that the Canadian Human Rights Act provides to autistic people the same protection as to non autistic people and that both are equal before and under the law. (ii) Allegations related to specific individuals [135] In her complaint form, Ms. Dawson refers to certain individuals who she alleges discriminated and retaliated against her as well as harassed her. [136] Ms. Dawson thus alleges in her complaint form that, as stated above, she had tried very hard to find out from the Respondent what she had been doing wrong and that, on May 27, 2002, she was reprimanded by Christian Potvin, Superintendent of the Pierrefonds post office, for even asking this question. Ms. Dawson further alleges that on May 24, 2002, Ms. Louise Lefebvre, of the Respondent's Operation sector in Montréal, told her that the problem was not that she was doing anything wrong; the problem was that she was different. It must be noted here that neither Mr. Christian Potvin, nor Ms. Louise Lefebvre were called to testify. [137] Ms. Dawson further states in her complaint form that, on October 22, 2001, the Respondent's Ethics Officer, Carman Lapointe-Young told her that she was violent, that the problems in her workplace were entirely the result of her disability and that in the absence of her autism, there would be no problem. Ms. Dawson further states that, on October 24, 2002, Ms. Huguette Demers, Respondent's Director of Human Resources for Québec, also stated her assumption that Ms. Dawson was violent, at a time when she had little information about her except that she was a person with a disability. Neither Ms. Huguette Demers nor Ms. Lapointe-Young was called to testify. [138] In her evidence, Ms. Dawson specifically referred to a phone conversation she had with Ms. Carman Lapointe-Young. According to Ms. Dawson, in the course of the telephone conversation, Ms. Lapointe-Young asserted that Ms. Dawson had committed violent acts involving bloodshed on her work floor and in front of co-workers, that she had mutilated herself in front of her co-workers. According to Ms. Dawson's testimony, Ms. Lapointe-Young stated that she assumed this to be true. Moreover, according to Ms. Dawson, Ms. Lapointe-Young said in the course of the phone conversation that the big problem was autism. [139] Furthermore, in her complaint form, Ms. Dawson refers to Mr. Raymond Poirier, Operation Manager for Québec who, Ms. Dawson alleges, would have told her that she was denied the tape-recording accommodation measure because Canada Post did not like it as well as to Mr. Christian Potvin, Superintendent of the Pierrefonds Post Office who, Ms. Dawson alleges, reprimanded her, on May 27, 2002, for having asked what was she doing wrong, as well as Ms. Lefebvre, from the Respondent's Operation sector in Montréal who, Ms. Dawson alleges, told her on May 24, 2002, that the problem with Ms. Dawson was not that she was doing anything wrong, but that she was different. [140] None of the persons identified in Ms. Dawson's complaint form were called to testify by the Respondent. The Tribunal is thus left with Ms. Dawson's testimony. [141] In its final submissions, for its part, the Commission referred to the conduct of a certain number of Canada Post employees which, the Commission alleges, constitutes discriminatory behavior on the part of the Respondent, i.e. Mr. Christian Potvin, one of Ms. Dawson's supervisor, Mr. Richard Paradis, a manager in charge of Labour Relations at Canada Post, Ms. Huguette Demers, Director, Human Resources for Québec, as well Ms. Carman Lapointe-Young, Canada Post's Corporate Ethics Officer. [142] Given the evidence and the nature of the allegations made by Ms. Dawson, the Tribunal will only deal with the allegation pertaining to Ms. Lapointe-Young. As for the allegation pertaining to Ms. Demers, the allegation refers to an event which occurred in October 2002. This event falls outside the scope of the complaint - September 2001 to June 2002 - and the Tribunal will not consider it. [143] The Tribunal finds Ms. Dawson to be a credible witness. The Tribunal notes here that in his testimony, Dr. M. stated that lying is exceptional in autistic people and that exaggeration and the exploitation of one's handicap to gain certain benefits are foreign to autistic people. [144] This said, the record shows that no evidence was called by the Respondent to contradict Ms. Dawson with respect to the remarks that Ms. Lapointe-Young would have made in the course of a telephone conversation with Ms. Dawson on October 22, 2001, an event which was clearly identified in the complaint form as potentially discriminatory. [145] The Tribunal finds that the remarks to be discriminatory in that they brand Ms. Dawson as a violent person in relation to her disability, a perception which is totally, given the evidence, gratuitous. The Tribunal thus finds that the Complainant has established a prima facie case of discrimination with respect to the comments that Ms. Dawson alleges were made in relation to her condition by Ms. Lapointe-Young and further finds that these allegations meet the O'Malley test, i.e. allegations made which, if believed, are complete and sufficient to justify a verdict in the complainant's favor in the absence of an answer from the respondent. No such reasonable explanation was provided by the Respondent. [146] Hence, the Tribunal rules that Ms. Dawson has established on a balance of probabilities that she was discriminated against because of her disability, in contravention of section 7 of the Act. There is nothing in the evidence that establishes, however, that Ms. Lapointe-Young's conduct constitutes harassment or retaliation. (iii) Allegations related to specific incidents [147] In her complaint form, Ms. Dawson makes reference to specific and clearly defined incidents in relation to which, according to Ms. Dawson, a breach of sections 7, 14 and 14.1 of the Act occurred. These are: 1. Ms. Dawson's medical file, 2. the Ottawa meeting, 3. Ms. Dawson's work related injury, 4. the Respondent's refusal to have her tape-record conversations. The Tribunal will analyse these incidents in turn. a) Ms. Dawson's medical file [148] Ms. Dawson asserts in her complaint form that the Respondent's medical file on her case which, she alleges, she gained access to in October 2001, after repeated denials of its existence by the Respondent, is grossly biased, is an inaccurate account of extreme interventions and constitutes harassment against her. Ms. Dawson furthermore asserts that the Respondent's behavior towards her, as documented by its own file, is discriminatory and demonstrably based on the Respondent's equating her disability with being a dirty, crazy, dangerous menace. [149] At the hearing, Ms. Dawson, for reasons related to the protection of her privacy, decided not to put her medical file in evidence. Indeed, the record shows that Ms. Dawson, throughout her testimony, was reluctant to make available to the other parties and the Tribunal documents of a private nature, especially her medical record, given the bad experience, she alleges, she had had in the past at Canada Post where she felt betrayed by the actions of third parties. [150] The Tribunal is thus not in a position to assess the content of Ms. Dawson' medical file and make a determination as to whether or not the content is discriminatory. The Tribunal finds that the Complainant has not made a prima facie case of discrimination with respect to her medical file. b) The Ottawa meeting [151] In her complaint form, the Complainant alleges that the Respondent paid her former psychologist, Ms. Nathalie Poirier, to make a presentation to its national level officials (including legal counsel, Ethics Officer and Human Resources Manager), as well as executives of the Canadian Union of Postal Workers (CUPW) on January 14, 2002 on autism. Ms Dawson asserts that no autistic people were consulted or invited to attend or even spoken about this. Ms. Dawson further asserts in her complaint form that Dr. Poirier stated that she did not know her (though she was her treating psychologist for some time) and gave such a relentlessly negative picture of autistic people at this presentation that when one participant asked if there was anything good about autistic people, she said no. [152] With respect to the hiring of Ms. Poirier, the Tribunal heard testimony from Ms. Shirley Boucher, Manager of Human Rights at Canada Post, Mr. Lafleur, a union official, Ms. Daoust, as well as Ms. Dawson. Ms. Boucher and Ms. Daoust provided evidence as to the circumstances that led to the hiring of Ms. Poirier. Mr. Lafleur gave evidence about the meeting itself. Ms. Dawson testified as to the impact that the meeting had on her. [153] Ms. Boucher testified that she was, up to September 2001, Manager of Employment Equity at Canada Post and that shortly thereafter was appointed Manager of Human Rights. Ms. Boucher worked out of Ottawa. At the time, Ms. Huguette Demers was Director of Human Resources, for the region of Montréal. Ms. Boucher testified that, after her appointment, she received a phone call from Ms. Dawson about her original complaint, more specifically about the settlement of the complaint. [154] Ms. Boucher testified that she spoke to Ms. Dawson on the phone about the settlement of the complaint, specifically the problem related to the issuance of the cheque to the non-profit organisation she had identified, several times, four, five or maybe more, she stated. These conversations took place between September 2001 and December 2001. Ms. Boucher testified that these conversations were long conversations. [155] Ms. Boucher testified that Ms. Dawson also called other people within Canada Post, identifying the President's Office, Ms. Carman Lapointe-Young, the Director General responsible for ethics, and Mary Traversy, Corporate Manager, Industrial Relations. [156] Ms. Boucher further stated in her testimony that people would call her after they had received a call from Ms. Dawson who were quite stressed because they felt, she testified, that Ms. Dawson was upset and they wanted to ensure that they had not upset her. She added that the conversation was long and that people were having difficulty communicating and closing the conversation. Ms. Boucher further testified that she herself felt that she needed to go and get help from an expert to speak to the management who was having difficulty with Ms. Dawson and to provide them with information and guidance about autism and how to better communicate. [157] Ms. Boucher testified that the decision was made, at the time, to have all of Ms. Dawson's calls handled by one person, Mr. Richard Paradis, who was replacing Ms. Demers, Director of Human Resources, at the time. The record shows and the Tribunal finds that all of these phone calls were related to the first complaint and its settlement. Later in her testimony, Ms. Boucher stated that after the January 14, 2002 meeting in Ottawa, Canada Post management did not get many phone calls, to her knowledge, directly from Ms. Dawson. [158] In her testimony, Ms. Boucher stated that she was the one who initiated the search for an expert on autism who could give sessions, dealing basically with communication issues and general information with respect to autism. [159] Ms. Boucher testified that, at one point, she received a call from Ms. Dawson who was quite upset because she had learned that Canada Post wanted to hire this individual who had a child who was autistic to provide information on autism to management and not a specialist. [160] Ms. Dawson's concerns about the hiring of an expert are clearly expressed in a letter she wrote to Ms. Mary Traversy, on November 12, 2001. In her letter, Ms. Dawson refers to the fact that Ms. Boucher also hired a consultant to find an autism expert who she knew and was a meteorologist. She goes on to say that what she wrote in her June 18, 2001 letter to André Ouellet: Educating management in autism - something she didn't ask for - had frightening consequences, including the EAP Director's letter. She expresses the view that having an expert come in seemed to confirm that autism was the problem, absolving management of their failure to apply, to her as to everyone else, existing standards and procedures, or even a modicum of decency and competence. [161] The record shows that, after Ms. Dawson's phone call, Mrs. Boucher contacted l'Intégrale in Montréal in order to get a bilingual person able to speak about autism and that, in early December 2001, she was given the name of Ms. Nathalie Poirier. It was intended that Ms. Poirier provide help to the people in Ottawa as well Montréal. The meeting was scheduled to take place on January 14, 2002. [162] The record shows, however, that an initial meeting took place in Montréal with Ms. Poirier before the January 14, 2002. Ms. Daoust testified that the meeting was organised by Ms. Demers, Director of Human Resources. Ms. Daoust, who attended the Montréal meeting, testified that were in attendance at the Montréal meeting all the managers in Human Resources but that there were no union member present. It appears from Ms. Boucher's testimony that the purpose of the meeting was to determine if Ms. Poirier was the right specialist. Ms. Boucher stated in her testimony that Ms. Demers called her back to inform her that Ms. Poirier was a suitable specialist. [163] According to Ms. Daoust what was said at the meeting was that Canada Post had to deal with an autistic person, that they were not well equipped to do that, that they did not understand how to deal with the person. People were able to ask questions, according to Ms. Daoust, and Ms. Poirier explained to them how an autistic person functions and provided advice as to how to deal with Ms. Dawson, like hanging the phone if Ms. Dawson kept talking too much. According to Ms. Daoust, when Ms. Poirier came for the first time at Canada Post, she was not aware that the person in question was Ms. Dawson. However, according to Ms. Daoust, in the course of the meeting, Ms. Dawson's name came up and Ms. Poirier stated that she had already came across her file and that she knew Ms. Dawson very well. [164] Ms. Boucher testified, with respect to the meeting that was to be held in Ottawa, that those who would be invited to attend the meeting would be people who currently were getting the most communication, who were having difficulty communicating with Ms. Dawson. Ms. Boucher testified that initially only management was supposed to be invited and that, after a impromptu meeting with a union representative, the decision was made to invite union representatives. Ms. Boucher further stated in her testimony that Mr. Lafleur called her a few days before the meeting that was scheduled to be held in Ottawa, asking for a copy of Ms. Poirier's c.v. which she sent him. Mr. Lafleur testified that it was not unusual for Canada Post to organise meetings where human rights issues were discussed. [165] The record shows that on January 14, 2002, a meeting was held in Ottawa with Canadian Union Postal Workers representatives (national, regional and local levels), Canada Post officials and Ms. Nathalie Poirier. The record shows that amongst the attendees at the January 14, 2002 meeting were Mr. Lafleur, a union official, seven or eight people from Canada Post Employee Assistance Program, Huguette Demers, from Canada Post, as well as seven or eight other Canada Post people. According to Mr. Lafleur, the purpose of the meeting was for Canada Post to get more education on autism, get a better understanding of what autism was and what the implications were as well as to move Ms. Dawson's file forward. [166] In her testimony, Ms. Boucher stated that the organisers of the meeting were mindful of the need not to discuss an individual case and to have a general session. Mr. Lafleur testified that, during the meeting per se, there were no discussions about Ms. Dawson and Ms. Dawson' situation at Canada Post. Ms. Boucher acknowledged however, under cross-examination, that the meeting was about how to better communicate with Ms. Dawson. Ms. Boucher further acknowledged that the meeting was not successful in achieving that goal. [167] It appears from Mr. Lafleur's testimony that the union had tried on many occasions to have Ms. Dawson present at the meeting, but to no avail. Finally, the union and Canada Post agreed to have a meeting in Ottawa without Ms. Dawson present. Ms. Dawson was thus not invited at the January 14, 2002 meeting in Ottawa. Mr. Lafleur stated that he felt that it would be preferable if the interested parties were invited to these information sessions but that this was not usually the case. [168] The record shows that Ms. Poirier gave handouts of her presentations to the attendees. Mr. Lafleur testified that he was taken aback by what was said by Ms. Poirier on autism. According to Mr. Lafleur, Ms. Poirier's comments were to the effect that autistic people were selfish and did not have any feelings. Mr. Lafleur was never contradicted on this. For her part, Ms. Boucher testified that there was, according to her, good information in the presentation, that it gave the attendees a little bit more information on autism. When one looks at the handout provided to the participants by Ms. Poirier, the content puts a lot more emphasis on the negative traits of autism than on the positive ones. [169] The record shows that on January 15, 2002, Mr. Lafleur wrote a letter to Ms. Mary Traversy, Manager, Industrial Relations, after it was discovered that Ms. Poirier knew Ms. Dawson personally. In his letter, Mr. Lafleur states that at the beginning of the meeting, he had asked Ms. Poirier about her knowledge of Ms. Dawson's file and that she had replied that she had no knowledge of the file and that she was attending the meeting to attempt to explain her understanding of autism. [170] Mr. Lafleur testified that when Ms. Dawson learned that the union had gone to the Ottawa meeting, she was upset, especially when she realised that the person making the presentation on autism was Ms. Poirier who had been her psychologist in the past. In a second letter written to Ms. Traversy, dated January 16, 2002, Mr. Lafleur stated that he could not believe that Canada Post would have set the union up in this way knowing full well what the impact would be on Ms. Dawson. [171] Asked if she was aware at any time prior to the meeting that Ms. Poirier could have been Ms. Dawson treating psychologist, Ms. Boucher testified that she was not and had she been made aware, she would have looked for someone else. There is no reason for the Tribunal not to believe Ms. Boucher. The record shows that Ms. Poirier was later on disciplined by her professional order. [172] The evidence tends to show furthermore that Ms. Dawson was the only known autistic person working at Canada Post at the time. This is confirmed by Mr. Lafleur who stated that he thought that there was no other autistic person working at Canada Post at the time apart from Ms. Dawson. [173] The Tribunal finds, given the evidence, that prior to the January 14, 2002 meeting, Canada Post management was not aware or was not made aware that Ms. Poirier was Ms. Dawson's treating psychologist. The Tribunal also finds that the meeting held in Ottawa on January 14, 2002 had a double purpose: provide information on autism so as to better communicate with Ms. Dawson. The Tribunal further finds that the information provided by Ms. Poirier at the meeting most probably did not convey the proper information on autism and did not contribute to improve the relations between Ms. Dawson and Canada Post management. [174] Hence, the Tribunal finds that, with respect to the January 14, 2002 meeting, the Complainant and the Commission have failed to make a prima facie case of discrimination or retaliation or harassment. Neither the Commission nor Ms. Dawson provided the Tribunal with any material element which indicated that Canada Post's motivation in hiring Ms. Poirier was to discriminate against Ms. Dawson on the basis of her disability, to retaliate against her for having filed a human rights complaint or to harass her. The evidence shows that, at the time, Canada Post management was seeking outside expertise so as to better understand how it could cope with Ms. Dawson and was not aware of the past professional relations that had existed between Ms. Dawson and Ms. Poirier. c) The work related injury [175] In her complaint form, Ms. Dawson states that, after the January 14, 2002 meeting and her declaration of a consequent validated work-related injury, the harassment she was experiencing escalated, that members of the Respondent attacked her verbally, threatening her aggressively. She further asserts that, when the Respondent's actions threatened her health, safety and life, CUPW, as well as her doctors intervened in writing. She also adds that the Respondent maintained the threat of forcing her to undergo a psychological assessment, an ordeal which would be devastating to her as an autistic person, and which was designed to be so. Ms. Dawson furthermore mentions that Richard Paradis, the Respondent's Labour Relations agent for Québec remarked in a telephone call to CUPW, on March 4, 2002, that she would only mutilate herself a few more times, personally insulting her and mocking her disability. [176] With respect to the work related injury that Ms. Dawson declared in January 2002, the Tribunal heard evidence from both Ms. Dawson and Ms. Daoust. Dr. Piette, a physician at Medisys, who was scheduled to testify according to the Respondent's witness list, was not called to testify. [177] The record shows that, following the January 14, 2002 meeting in Ottawa, Ms. Dawson declared a harassment-based work accident on January 30, 2002 to the CSST, indicating as the date of the accident January 14, 2002. The record shows that the medical report attesting this injury was signed by Dr. K., Ms. Dawson's physician. Dr. K. writes in her report: victim of workplace harassment. Stress related adjustment reaction. Dx. Unable to return to work. [178] The record shows that Ms. Dawson went back to work on February 6, 2002. Ms. Dawson testified that she decided to go back to work because she was scared, not because she was healthy and that upon returning to work, she was not in great shape but that she was doing her work. [179] In a report signed by Dr. K. and dated February 5, 2002, the latter states: patient is emotionally fragile. (unreadable) she feels the ( ) to return to work because of continuous harassement (sic). The record further shows that that same day, Dr. K. wrote on a prescription script: To facilitate communication, it would be useful for Ms. Dawson to tape all the conversation with management. [180] In her testimony, Ms. Daoust stated that she received, after Ms. Dawson reported her work accident, the worker's claim completed by Dr. K. (Form 1940) and Dr. M.'s letter dated January 24, 2002 both in the same envelop. Ms. Daoust stated, with respect to Dr. K.'s report, that what caught her attention was the mention patient is emotionally fragile. What Ms. Daoust understood from this remark was that Ms. Dawson was not ready to come back to work. Ms. Daoust's feared at the time that Ms. Dawson would be coming back to work while still injured and that her condition would worsen. [181] The record shows that, in his letter, Dr. M. states that the letter reflects the content of a meeting held on April 4, 2001. He further states that he has diagnosed Ms. Dawson as being autistic, with superior intelligence associated with chronic depression related to adaptation problems due to her handicap. Dr. M. goes on to say that Ms. Dawson is capable of good judgment, has a good sense of her condition, that she is lucid and capable to make decision by herself, able to speak about her condition and that no decision concerning her condition should be made without her consent. It is to be noted here that the letter was written after the Ottawa conference, which took place, on January 14, 2002, but before Ms. Dawson reported her work accident, on January 30, 2002. [182] Ms. Daoust testified that after receiving the documents related to Ms. Dawson's claim, she got a call from Ms. Dawson. Ms. Daoust testified that Ms. Dawson was preoccupied by the mention chronic depression written in the medical certificate. [183] In the course of her cross-examination of Ms. Daoust, Ms. Dawson asked Ms. Daoust to explain what Dr. M. had to do with the accident (injury on duty absence), given that the letter written by Dr. M. does not contain any mention of a work accident and that it came out of an appointment that Ms. Dawson had had with Dr. M. approximately 9 months before the letter was written and the occurrence of her work related injury. Ms. Daoust testified that for her, the letter was not related to the accident but provided information on the state of health of Ms. Dawson. [184] In her testimony, Ms. Dawson explained that the January 25, 2002 letter from Dr. M. addressed to her was necessary as a certificate of diagnosis because the CSST claim was harassment based on disability and that Ms. Dawson felt compelled to establish her diagnosis through a note coming from Dr. M. Ms. Dawson stated that and the evidence shows that before giving permission to Canada Post to contact Dr. M., she wanted to ascertain why this was necessary and relevant given the nature of her claim. Ms. Dawson was of the view that Dr. M. knew nothing about the work accident and would have been puzzled to be approached. [185] The record indicates that after having filed her claim with the CSST, Canada Post undertook to investigate internally the allegation of harassment. At the end of its investigation, after having spoken to supervisors at the Pierrefonds postal station, Canada Post concluded that there was no harassment at the Pierrefonds postal station but that the allegation had to do with the Ottawa meeting. [186] The record shows that Canada Post requested that Ms. Dawson submit herself to a medical evaluation by a physician designated by Canada Post. Ms. Daoust testified that even if Ms. Dawson had gone back to work, on February 6, 2002, Canada Post still wanted an expertise or medical evaluation of her state of health for two reasons according to Ms. Daoust, 1. Canada Post did not believe that Ms. Dawson had been harassed, 2. in every case where there is an allegation of harassment, the employer asks for an evaluation - expertise. Ms. Daoust stated that given the content of the report written by Dr. K. that Ms. Dawson was fragile but felt that she had to come back to work, Canada Post felt that a second opinion was warranted to determine if she was fit to return to work or not even if Ms. Dawson had returned to work on February 6, 2002. Ms. Daoust gave as an explanation for this, that Ms. Dawson's injury was not physical, that Canada Post wanted to know if she was mentally fit to come back to work, since the injury was described as harassment in the workplace. [187] On this topic, Ms. Dawson testified that, after declaring her accident, many reasons were put forward by Canada Post as to why she had to submit to an expertise, including her past depression and a hernia she had sustained earlier in her career. Ms. Dawson noted in her testimony that the form filled out by Dr. K. did not mention depression or hernia which are two conditions which have nothing to do with her work accident. Ms. Dawson testified that her work accident was not in any way related to depression. Ms. Dawson furthermore stated that she did not know what the expertise was for and why Canada Post wanted that expertise and that in fact, she was told that she was going to see a specialist about her hernia and her depression, which were not the basis of her current work accident. [188] Ms. Daoust testified that Ms. Dawson's supervisor asked her to report to a clinic so as to be evaluated. Ms. Daoust testified that Respondent's request to have Ms. Dawson submit to a medical evaluation by a physician designated by the Respondent had a dramatic impact on Ms. Dawson. According to Ms. Daoust, Ms. Dawson told her that she could not go and see a physician that she did not know, that Canada Post had no right to ask that of her. [189] Ms. Dawson testified that she had two concerns with respect to the request that she submit herself to a medical examination; 1. having to go and see a physician who did not exist and 2. wanting information about how to fill out a medical certificate. Ms. Dawson did not understand why she was getting so much flack because of this and was wondering what she had done terribly wrong. She stated that Mr. Schetagne, because she wanted that information, i.e. how to fill out a medical certificate, accused her of harassing Ms. Leroux, one of her supervisors. [190] Ms. Dawson stated in her testimony that it was not her intention to see a Canada Post doctor after all the privacy violations she was the object of according to her (Canada Post had contacted her doctors without her permission, Canada Post had hired her psychologist). She also stated that she was not prepared to see a Canada Post doctor who had probably no experience in autism. Her fear was that doctors who do not know anything about autism will make whatever assumptions they think. Ms. Dawson repeatedly stated that she was terrified of management. [191] Ms. Dawson testified that, on March 1st, 2002, Donald Lafleur, a union official, informed her that she would be given a letter on March 5, 2002 forcing her to see a Canada Post paid doctor without providing her with a reason. In her testimony, Ms. Dawson stated that she could not believe that Canada Post was going to force her to see a doctor. The record shows that Ms. Dawson was provided with the letter on March 7, 2002. [192] The record shows that, on March 4, 2002, Dr. K. wrote a letter to whom it may concern about Ms. Dawson. The letter states that Ms. Dawson is a patient that she has been following for several years for general medical care, that she has been informed that she is to undergo an expertise examination by a medical specialist, that Ms. Dawson feels that this is being forced upon her and constitutes harassment by her employer. Dr. K. goes on to state that at the present time, Ms. Dawson is in a very fragile state of mind and that, as a physician, she is very concerned that this could provoke a serious emotional reaction from Ms. Dawson. [193] The record shows that, on March 4, 2002, Dr. M. also wrote a letter. In his letter, Dr. M. states that Ms. Dawson is perfectly able to work and to make decisions about herself. He recommends that Ms. Dawson be consulted about any decision about herself and that she not be subjected to changes that are brusque and go unexplained with respect to her work. Dr. M. states that this type of accommodation is as vital as adapting sidewalks to meet the needs of people in wheelchairs or to enlarge fonts for people who are visually impaired. [194] The record indicates that, on March 4, 2002, Mr. Pierre Contant, the union's national director for the region of Montréal, wrote a letter to Ms. Huguette Demers, Director of Human Resources. Ms. Dawson was cc'd. In this letter, Mr. Contant expresses his consternation about the interview to be held on March 5, 2002 with Mr. Potvin so that Ms. Dawson be subjected to a medical exam. Mr. Contant expresses his disapproval about this procedure. [195] The records shows that on March 6, 2002, Mr. Christian Potvin, Unit superintendent at the Pierrefonds postal station, wrote to Ms. Dawson informing her that further to her injury-on-duty absence from January 31, 2002 to February 5, 2002 and to the medical certificates she had submitted to Canada Post to justify this absence and her return without consolidation and pursuant to section 212 of the Act respecting Industrial Accidents and Occupational Diseases, Canada Post would have the right to require her to submit to an independent medical assessment. Mr. Potvin goes on to say that Canada Post would be ready, however, to take another approach by adding a step to the regulatory procedure where Ms. Dawson would grant Dr. Piette, the Canada Post consulting physician, permission to contact Drs. K. and M. to obtain the required medical information. [196] According to Ms. Daoust's testimony, this alternate solution was considered because it appeared that it would have been difficult for Ms. Dawson to have been referred to a physician that she did not know in an unfamiliar setting. Ms. Daoust testified that she was involved in the decision to sidestep the ordinary rule. She indicated in her testimony that this was done because of the concerns expressed by Ms. Dawson. [197] According to Ms. Daoust, Ms. Dawson refused to have Dr. Piette contact her physicians. Ms. Daoust testified that what would have happened is, if after contacting Ms. Dawson's physicians, the Canada Post physician had been of the view that he had the information he was seeking, then there would have been no need to go ahead with the medical evaluation. [198] The evidence shows that the reason why Ms. Dawson did not give her permission to Canada Post to contact Dr. M. was because Ms. Dawson did not see a link between the harassment she had complained about and Dr. M. However, the Canada Post physician felt that it was pertinent to contact Dr. M., given that Dr. M.'s note was sent to Ms. Daoust at the same time as the work accident claim. Ms. Daoust stated in her testimony that this was interpreted as a document which supported certain elements of the work accident. [199] Ms. Daoust stated in her testimony that Ms. Dawson had up to March 11, 2002 to make her views known about Dr. Piette contacting her physicians. The record shows that Canada Post, given Ms. Dawson refusal to have Dr. Piette contact her physicians (Dr. M. and Dr. K.), decided on March 11, 2002 to send Ms. Dawson for an independent evaluation, the medical evaluation being scheduled for March 15, 2002. [200] According to Ms. Daoust, this - i.e. referring an employee for an independent medical evaluation when Canada Post has doubts about the employee's medical condition - was standard procedure. In fact, Ms. Daoust testified that Canada Post made an exception to the rule in the case of Ms. Dawson by first trying to get the information it was seeking from her treating physicians. [201] Ms. Dawson asked Ms Daoust if it was common practice to contact a physician who had nothing to do with the work accident. Ms. Daoust testified that this was a procedure which was not the normal procedure, that in fact Canada Post was proposing an alternate measure so that Ms. Dawson would not have to go through the normal process provided by the Act, i.e. submit herself to an evaluation by a physician that she did not know in an unfamiliar setting. [202] The record shows that on March 11, 2002, Ms. Louise Leroux, a supervisor at the Pierrefonds postal unit, wrote to Ms. Dawson advising her that she had an appointment with Dr. Jocelyn Audet, MD for a medical evaluation in accordance with article 211 of the Act respecting Industrial Accidents and Occupational Diseases. The evaluation was scheduled to take place on March 12, 2002 at the Groupe Santé Medisys, at 8 A.M. The letter states that the purpose of the independent medical evaluation was to determine the 5 matters indicated in section 212 of the Act. [203] With respect to the March 11, 2002 request, Ms. Daoust testified that Ms. Dawson expressed a concern about this request. Ms. Daoust acknowledged that there was an error in relation to the physician's name. The name of the physician should have read Aubut instead of Audet. Ms. Daoust testified that Ms. Dawson did not attend the March 11, 2002 appointment given the confusion about the physician's name. Ms. Daoust testified that another appointment was scheduled but that Ms. Dawson refused to attend. [204] Ms. Dawson testified that she was handed Ms. Leroux's letter on March 12, 2002. Ms. Dawson stated in her testimony that Ms. Leroux forcefully threatened her and told Ms. Dawson that she would undergo disciplinary measures if she refused to see the doctor. Ms. Leroux was not called to testify. [205] Ms. Dawson testified that, on March 13, 2002, Ms. Louise Leroux told her that Dr. Audet was a psychiatrist. According to Ms. Dawson, Ms. Leroux, even if she stated that Dr. Audet was a psychiatrist, stated that the appointment was for her hernia (which she had had a year before) and her depression, two conditions which had nothing to do with the work accident she declared, i.e. workplace harassment. [206] Ms. Dawson testified that she called Medisys to enquire about Dr. Audet. She was told that there was no Dr. Audet but a Dr. Aubut. Ms. Dawson stated that she found it confusing to be threatened by disciplinary measures if she did not agree to see a physician who did not exist. [207] Ms. Dawson stated, in her testimony, that the Internet research she made on Dr. Jocelyn Aubut indicated that the latter was a psychiatrist who was associated with Pinel Institute in Montréal, which is a psychiatric hospital where individuals with criminal behavior are committed or remanded. She testified that he is not a specialist in autism. [208] In this respect, Ms. Dawson put in evidence documents that she obtained on the web and which show that Dr. Aubut's expertise is related to dangerous individuals, citing in support of this allegation an abstract where Dr. Aubut is cited as one of the authors of an article entitled An inventory for the evaluation of dangerousness in mental patients. Counsel for the Respondent objected to the filing of these documents, stating that they did not prove anything about who Dr. Aubut was. [209] The Tribunal is of the view that the evidence supports Ms. Dawson' s assertion that Dr. Aubut is not a specialist in autism, that he is associated with Pinel Institute in Montréal and that his field of expertise is related mainly to criminal behavior, violence. Apart from objecting to the documentary evidence adduced by Ms. Dawson, the Respondent tendered no evidence disproving Ms. Dawson's assertion about Dr. Aubut which the Tribunal finds to be credible as well as Ms. Dawson's testimony and knowledge of the medical community familiar with autism. [210] The record shows that on March 13, 2002, Mr. Donald Lafleur, a union official who had attended the January 14, 2002, wrote to Mary Traversy, Manager, Industrial Relations at Canada Post. In his letter, he reiterates the union's objection to Canada Post sending Ms. Dawson for a medical assessment. The record further indicates that Ms. Dawson was told on March 25th that the previously cancelled expertise was scheduled for March 28, 2002. [211] The record finally shows that on June 14, 2002, the CSST ruled on Ms. Dawson's claim of harassment. The letter which informs Ms. Dawson of the ruling refers to the events of October 1999 which gave rise to a complaint to the Human Rights Commission and to the subsequent settlement. The letter states that, given the January 14, 2002 meeting, the events referred to in two letters from the union, that for the second time, a psychologist who knew Ms. Dawson was consulted by the union and the employer, the cognitive handicap described in Dr. M.'s letter, dated February 12, 2002, the fact that Ms. Dawson had been a letter carrier for 13 years, without any problems, the CSST concluded that Ms. Dawson was victim of a work related accident on January 14, 2002 which resulted in an adaptation deficit. [212] After the CSST decision, it appears that Canada Post decided not to have Ms. Dawson go through a medical evaluation or expertise by Dr. Aubut. Canada Post decided that for a four day absence, it was not worth it to pursue the expertise, energy and money wise. A business decision, stated Ms. Daoust. [213] In the course of her testimony, Ms. Dawson often came back in her comments to the fact that Canada Post maintained its threat of having her submit to an expertise or medical evaluation up to the month of June 2002, that the union had also sent a letter to Ms. Traversy. [214] On this issue, Ms. Dawson asked Ms. Daoust specifically the question if it was reasonable for Canada Post to maintain the threat of an expertise given the letter sent by Dr. K. on March 4, 2002 stating that this would be detrimental to her. Ms. Daoust answered: I cannot say and referred to the fact that one reason was that Canada Post was trying to contact her physician. [215] The Tribunal finds that, in the particular circumstances of this case, the Respondent, through its employees, did not provide the Complainant with a workplace free of harassment. The Tribunal finds that even in the face of major concerns expressed both by Ms. Dawson's treating physician and her union representatives, the Respondent continued to press for a medical evaluation by a Canada Post designated physician. [216] Indeed, the evidence shows that the Respondent remained deaf to the pleas of Ms. Dawson who did not want to see a physician whom she did not know and who knew nothing about autism, of her union representatives who expressed concern and consternation about Ms. Dawson having to submit to a medical examination by a Canada Post designated physician but more importantly, of her treating physician who stated that she was very concerned that this could provoke a serious emotional reaction from Ms. Dawson. [217] Still, still, still, Canada Post pressed to have Ms. Dawson submit herself to a physical examination by an unknown doctor, with full knowledge that Ms. Dawson was autistic and very poor knowledge of autism. It is worth noting here that Ms. Daoust acknowledged in her testimony that the request to have Ms. Dawson submit herself to a medical evaluation had a dramatic impact on Ms. Dawson. [218] And to add insult to injury, Canada Post requested that Ms. Dawson meet with a physician who, the evidence shows, was not an expert in autism, but, on a balance of probabilities, a psychiatrist, specialised in violent behavior. The record shows that Ms. Dawson had to live with the threat of having to submit to a medical evaluation for a period of three months, i.e. from March to June 2002. [219] However well-intended Canada Post management was in seeking a medical evaluation, the Tribunal finds that, in the present circumstances, the general behavior of those Canada Post employees who were involved in the medical evaluation process constitutes harassment. The behavior meets the criteria established in the case law with respect to what constitutes harassment, notably in Hill where the Tribunal stated that the gravamen of harassment lies in the creation of a hostile work environment, which violates the personal dignity of the complainant and in Marinaki where the Tribunal expressed the view that victims of harassment need not prove that they suffered pecuniary losses, that for a behavior to amount to harassment, some element of repetition or persistence is usually required. This said, section 65 of the Act establishes that the Respondent is responsible for the discriminatory acts of its employees, officers and directors. [220] The Tribunal thus finds that Ms. Dawson's disability was an important factor in the way she was treated by the Respondent in relation to the above mentioned events and that the Respondent's conduct amounts to harassment and contravenes section 14 of the Act. However, the Tribunal finds that there exists no conclusive evidence that the Respondent's conduct and that of its employees constitute retaliation. [221] Can Ms. Dawson be blamed for having refused to have the Medisys physician contact her physicians? The chain of events shows clearly a total lack of knowledge and understanding by Canada Post management of autism and of how autistic individuals process information. It clearly stems from the evidence that Ms. Poirier's presentation in January 2002 did not bring much to Canada Post management as to how to interact in the workplace with individuals who are autistic. There were in fact from the Ottawa meeting no lessons learned. (iv) The tape-recording of conversations [222] In her complaint form, Ms. Dawson states that, after the January 14, 2002 meeting, she requested a simple accommodation which would have been free of trouble or cost to the Respondent, that is, the right to tape-record her conversations with management. This measure is necessary because, Ms. Dawson asserts, she does not process information from conversations in the same way as non-autistic people. [223] Ms. Dawson further asserts that, from September 2001 to May 9, 2002, she was denied this accommodation and that in a telephone call on May 9, 2002, Mr. Raymond Poirier, Operation Manager for Québec, told her that she was denied this accommodation measure because Canada Post did not like it. Ms. Dawson goes on to say that this comment shows intolerance for her based on her disability, that she felt unwelcomed and felt that she was held in contempt because she is disabled. Finally, Ms. Dawson states that, when the accommodation was granted in June 2002, unwarranted and demeaning conditions were attached in keeping with the Respondent's view of autism. [224] Ms. Dawson testified that the first time she started taping conversations at Canada Post was in May 1999, shortly after she disclosed her diagnosis. She did this with management's knowledge and permission. Ms. Dawson testified that, at the time, she just informed management that this is what she would be doing and made it obvious that she was taping. At the time, nobody asked her to stop or to provide medical papers. Ms. Dawson further testified that it is just when there is a hostile environment that it becomes necessary for her to have a precise record of her own words and actions. [225] Ms. Dawson stated in her testimony that she stopped taping at the end of 1999 or early 2000 but that in the fall of 2001, she asked for the permission to start taping again because she found it unwise not to ask for permission. The evidence shows that on September 30, 2001, in a letter sent to Ms. Mary Traversy, Manager Industrial Relations at Canada Post, Ms. Dawson asked for the permission to, if she finds it necessary, to tape her interactions with management, stating that as she has done before, she would let everyone know what she was doing. [226] The record shows that, in December 2001, Ms. Mary Traversy, in response to a letter previously sent to her by Ms. Dawson, sent a letter to the latter in which she indicates that Canada Post is still not in agreement with her request to tape conversations with management. Ms. Traversy however states that to accommodate her, Canada Post will provide her with written explanations, as appropriate. [227] The record indicates that, on February 5, 2002, Dr. K. wrote on a prescription script that to facilitate communication it would be useful for Ms. Dawson to tape all the conversations with management. The evidence indicates that this document was received by Canada Post. [228] The record further indicates that in a letter dated February 12, 2002, Dr. M., in response to a request made by Ms. Dawson, underscores the need for Ms. Dawson to tape-record the conversations that take place between herself and Canada Post people. Dr. M. states that Ms. Dawson is vulnerable to the malevolence of her peers and that she displays intense emotional reactions when people do not respect their word or make statements that do not correspond to the true nature of things. Furthermore, Dr. M. expresses the opinion that this request, if satisfied, will allow Ms. Dawson to refer to the verbatim of what is said and not to approximations. Finally, Dr. M. states that he considers that this request is related to Ms. Dawson's cognitive handicap and must be addressed with the same respect as are requests made by people who have a medical handicap. [229] In her testimony, Ms. Dawson confirmed Dr. M.'s statements. Ms. Dawson testified that she works with the verbatim of things and that it is hard for her to keep track of the verbatim of things in a conversation. Ms. Dawson further testified that she uses information differently compared to a non-autistic person. For her, all information is important and is weighed equally. [230] Ms. Dawson stated in her testimony that she handed both these letters to Christian Potvin on February 18, 2002. It appears that Mary Traversy in Ottawa as well as Mr. Lafleur, union official, obtained copies of the letters. [231] Ms. Daoust testified that she was personally involved in the decision to authorize the accommodation requested by Ms Dawson. In the course of her testimony, Ms. Daoust explained how requests for accommodation were processed at Canada Post. When a request for an accommodation is received, it is checked by a physician at Medisys to assess whether or not it is reasonable. Ms. Daoust testified that with respect to Ms. Dawson's request, managers at the Pierrefonds postal station were a bit reluctant to be recorded. They did not object to the accommodation but to the method suggested. This explains, according to Ms. Daoust, why it took so long to provide Ms. Dawson with the accommodation she was seeking. [232] According to Ms. Daoust, Canada Post, given the objections expressed by local management, wanted to speak to Ms. Dawson's physicians in order to find another type of accommodation, such as putting in writing what had been said in the course of a conversation. According to Ms. Daoust, Ms. Dawson's position was that she had two medical certificates and did not understand what the problem was notwithstanding the explanations provided by Ms. Daoust about the supervisors' concerns. According to Ms. Daoust, Ms. Dawson was of the view that it was only by recording a conversation that one could have the tone of the conversation, and that a written document would not provide this. [233] The record shows that, on May 23, 2002, Ms. Dawson gave her authorization to Canada Post to contact one of her physicians, Dr. M. The consent form for the release of medical information states that Ms. Dawson authorizes Dr. M. to discuss with the Medisys physician the use of a recording machine for conversation with the Canada Post management. It appears from the evidence that the delay in arriving at this was caused by the difficulty in getting hold of Ms. Dawson's physician and Ms. Dawson's request to speak about this issue with Canada Post's General Manager as well as negotiations with local management. [234] Ms. Dawson stated in her testimony that finally, she was informed by Mr. Potvin that she would have the accommodation she had requested. It appears that the authorization came in June 2002. [235] In view of the evidence, the Tribunal finds that the Complainant and the Commission have not established a prima facie case of discrimination or retaliation. The evidence shows clearly that the delay in providing Ms. Dawson with the permission to tape-record conversations with management stems from the reluctance of certain employees to be tape-recorded. In the present circumstances, the Tribunal finds that the Respondent had to balance the needs of the Complainant with the concerns expressed by certain of its employees. This said, the tense relations between Ms. Dawson and management at Canada Post cannot be totally excluded as a factor having contributed to the delays. IV. REMEDIES [236] In its final submissions, Ms. Dawson states, with respect to the issue of remedies, the following: Because I was deemed unreasonable and non-credible early in the hearings, and because I could not function adequately or sometimes even at all in the hearings, and because I did not therefore understand the hearings, and for other similar reasons unrelated to the facts of this case, I believe that this argument is futile. I suggest that autistics be warned away from CPC unless they can successfully conceal their differences and are certain that their diagnosis will never be obtained by CPC by any means. There was an impressive quantity of evidence showing that CPC is determined to make it harmful for me to interact with CPC in any way. This lends credibility to my demand that CPC leave me alone. However, I am in no position to ask for remedies. It seems pointless to have proceedings in which one of the parties is refused any accommodation and therefore can only function poorly or not at all (and is seen as dependent on the pity, charity, etc., of those who are considered typical or reasonable, and are therefore accommodated as of right). There seems to be no remedy for that. [237] As for the Commission, it states the following: Perhaps the most effective remedy this Tribunal could grant would be to order that Ms. Dawson be reinstated into the workplace in such a manner as would ensure her successful return to productive work and to a job that she clearly loved to perform and that suited her capabilities. The most effective way to effect change and tolerance in a workplace is to have the agent of change present in the workplace on a daily basis with the appropriate accommodations and safeguards in place. That being said, Ms. Dawson has not requested that specific remedy and the Tribunal is not in a position to impose such a remedy upon her. However, Ms. Dawson did state in evidence that she is incapable of casting her mind into the future or speculating about where she would be today but for the alleged discrimination. She has asked at various times that she be left alone and, more specifically, kept on the books as an employee of Canada Post and that no steps be taken to terminate her employment. This would, in effect, leave the door open for her return to active employment if she feels capable of doing so in the future. [238] The Tribunal agrees with the Commission. Given that Ms. Dawson has not requested to be reinstated into her workplace, nor any other form of compensation by the way, the Tribunal is without jurisdiction to make such an order. This is an issue that will have to be dealt with between Ms. Dawson and the Respondent. [239] Furthermore, the Commission, in its final submissions, asks that an order that Canada Post work with the Commission to ensure that the discriminatory practices and behavior do not continue by ensuring: that it provide a copy of its existing or amended harassment, discrimination and accommodations policies within 30 days of the Tribunal's decision; that Canada Post work with the Commission to modify their existing policies to conform with the Canadian Human Rights Act and human rights law of Canada should the Commission determine that amendments are necessary; that the employer, in consultation with the Commission, retain appropriate persons to conduct workplace equity, accommodation and sensitivity training for managers and staff, and that the employer take such further and other steps as the Commission deems appropriate in the circumstances. The Tribunal agrees. [240] At the end of her testimony, Ms. Daoust acknowledged that it was the first time that Canada Post had to deal with an employee who was autistic, that in all probability, Canada Post mismanaged the case but that in the end, Canada Post learned from this experience. [241] According to Ms. Daoust, Canada Post took different measures to increase its understanding of autistic people and be better managers, such as organizing a meeting with Dr. Poirier. Canada Post had to adapt itself to Ms. Dawson's thought process. According to her, Canada Post tried to accommodate Ms. Dawson but that there are rules at Canada Post that must be followed and to try to accommodate Ms. Dawson given these rules was not always easy. Canada Post did its best, according to her, with the knowledge it had of autism. [242] Be this as it may, the Tribunal finds it disturbing for the future of autistic people that they be seen because of their condition to pose a threat to the safety of others and some form of nuisance in the workplace. An employer has a duty to ensure not only that all employees work in a safe environment but also that ill perceptions about an employee's condition due to poor or inadequate information about his disability lead other employees to have negative and ill-founded perceptions about him. [243] An autistic person should expect that his workplace be free of any misperception or misconception about his condition. It goes to the right of autistic individuals to be treated equally, with dignity and respect, free of any discrimination or harassment related to their condition. In this respect, in a society where human rights are paramount, an employer has the duty to dispel such misconception or misperception about such individuals. [244] This duty stems from the Canadian Human Rights Act and the need to get rid of any discriminatory behavior in the workplace as well as in society in general. It is worth reminding employers as well as society as a whole that the purpose of the Canadian Human Rights Act, as stated in section 2 of the Act, is to give effect 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. [245] Autistic people, if they want to be able to accomplish themselves in a workplace or in society, need to be reassured that everything possible short of undue hardship will be done in order to ensure that misperceptions and misconceptions about their condition are properly handled by their employer, so that co-workers have a proper understanding of their condition and are not inclined to discriminate against them or harass them. [246] To discriminate on the basis of somebody's physical appearance or social behavior might be one of the cruelest forms of discrimination. Here, Ms. Dawson was seen or perceived, at one point in her career at Canada Post, to be a threat to her co-workers because she had self-injured in the past, not because she had assaulted colleagues. She was later on perceived as a form of nuisance because she insisted on obtaining rational responses to her queries and never backed down. The fact of the matter is that Ms. Dawson was, until her diagnosis became officially known to Canada Post in 1999, seen as an excellent employee. [247] The Tribunal is of the opinion, in view of the evidence, that the Respondent needs to review its policies in relation to discrimination and harassment and put in place educational programs that will sensitize its employees as well as management to the needs of disabled individuals in the workplace, notably autistic individuals, so that individuals such as Ms. Dawson will not have to suffer from a lack of knowledge and understanding of their condition. In this respect, given the Canadian Human Rights Commission's expertise in these matters, the latter can surely provide assistance, which should be welcomed, to the Respondent. V. ORDER [248] For the foregoing reasons, the Tribunal finds that the complaint filed by Ms. Dawson against Canada Post is substantiated and that the Respondent has contravened sections 7 and 14 of the Act. Given that Ms. Dawson did not request any remedial measures, the Tribunal will not award any. However, the Tribunal orders the Respondent: to provide a copy of its existing or amended harassment, discrimination and accommodations policies within 30 days of the Tribunal's decision; to work for a period of one year with the Commission to modify its existing policies to conform with the Canadian Human Rights Act and human rights law of Canada should the Commission determine that amendments are necessary; to retain, in consultation with the Commission, appropriate persons to conduct workplace equity, accommodation and sensitivity training for managers and staff, notably in relation to autism and autistic individuals; and to take such further and other steps as the Commission deems appropriate in the circumstances. Signed by Pierre Deschamps OTTAWA, Ontario September 12, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1053/3405 STYLE OF CAUSE: Michelle Dawson v. Canada Post Corporation DATE AND PLACE OF HEARING: April 19 to 21, 2006 April 24 and 25, 2006 April 27 and 28, 2006 March 5, 2007 March 7 to 9, 2007 March 12, 2007 March 14 to 16, 2007 March 21 and 22, 2007 Montréal, Québec DECISION OF THE TRIBUNAL DATED: October 3, 2008 APPEARANCES: Michelle Dawson For herself R. Daniel Pagowski Patrick O'Rourke For the Canadian Human Rights Commission Marc Santerre Richard Pageau For the Respondent

2008 CHRT 42

CHRT

Kelly v. Mohaw Council of Kahnawake

en

2008-09-30

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6666/index.do

2023-12-01

Kelly v. Mohaw Council of Kahnawake Collection Canadian Human Rights Tribunal Date 2008-09-30 Neutral citation 2008 CHRT 42 File number(s) T1268/8007, T1269/8107, T1270/8207 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MARGARET KELLY (STACEY) Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - MOHAW COUNCIL OF KAHNAWAKE - and - COUNCIL OF ELDERS - and - DEPARTMENT OF INDIAN AND NORTHERN AFFAIRS CANADA Respondents RULING 2008 CHRT 42 2008/09/30 MEMBER: Karen A. Jensen [1] The Respondent, Department of Indian and Northern Affairs Canada (the Department), has requested that the Tribunal dismiss a complaint by Margaret Kelly (Stacey) against the Department on the basis that the matters raised in the complaint were the subject of an unconditional settlement agreement reached by the parties in 2003. [2] This is the second time that the Respondent has made this request. On May 27, 2008, the Tribunal dismissed the motion ruling that the request was premature as a more complete record was needed to make a determination. The Tribunal did not rule on the merits of the motion and indicated that the Respondent was free to bring a similar motion at a later date. [3] Since that ruling the parties have disclosed all the documents in their possession and their Statements of Particulars. In addition, the Respondent has filed two Affidavits in support of the present motion, one from Louis-Alexandre Guay, counsel for the Department of Justice Canada, and the other from Allan Tallman, of the Indian Registrar Office of the Department of Indian Affairs and Northern Development Canada. Attached as exhibits to those Affidavits are numerous documents including the complaints, the Settlement Agreement, the Membership Law, and a Certificate of Independent Legal Advice. In my view, there is now sufficient material on the record to make a determination on the present motion. Background [4] In 1999, the Complainant filed human rights complaints against the Mohawk Council of Kahnawake (MCK) and the Department (then known as the Department of Indian and Northern Development). She alleged that the MCK refused to accept her as a Band member based on her family status, and that this refusal resulted in her being denied services from the MCK. She claimed that the denial of services constituted a discriminatory practice within the meaning of s. 5 of the Canadian Human Rights Act (the CHRA or the Act). In her complaint against the Department, Ms. Kelly (Stacey) alleged that the Department was also discriminating against her by not intervening in the Band's conduct and by continuing to fund the MCK for the provision of services that were allegedly being denied to her. [5] In 2003, the Complainant settled her complaints with the MCK and the Department. At the time that the settlement was being concluded, MCK was revising its Membership Law. It was thought that the revision might resolve the issues that were raised in the complaints. The settlement agreement reflected the uncertainty regarding the resolution of the complaint by stating that although Ms. Kelly (Stacey) released MCK from all actions that she ever had or may have, if Ms. Kelly (Stacey) and MCK did not reach a satisfactory resolution of the Membership Claim by December 31, 2004, then the release only insofar as it relates to the Membership Claim against MCK, is null and void. [6] In contrast, the provision in the settlement agreement regarding the Department was unconditional. It stipulated that Ms. Kelly (Stacey) released the Department and the Crown from all actions that she had or may have arising in any way out of the matters alleged in the complaint against the Department including without limitation the Monetary Claim and the Membership Claim against the Department. [7] Ms. Kelly (Stacey) received independent legal advice before signing the agreement. The Certificate of Independent Legal Advice indicates that she was fully aware of the terms of the Settlement Agreement and their legal impact before signing the agreement. [8] After the agreement was signed, the Canadian Human Rights Commission approved the settlement agreement and a Notice of Discontinuance was filed before the Tribunal in both files on December 23, 2003. The settlement agreement was made enforceable as an order of the Federal Court pursuant to subsection 48(3) of the Canadian Human Rights Act. [9] In 2005, the Complainant filed new complaints against the MCK, the Department and the Council of Elders, alleging that her membership issue had not been resolved under the new Kahnawake Membership Law and that she continued to be denied access to programs and services. The complaints were referred to the Tribunal for further inquiry. Analysis [10] The Respondent, the Department, argues that the Tribunal should dismiss the complaint against the Department because the matters raised in the complaint have been settled. [11] The Respondent, MCK, does not oppose the motion. It submits that the present dispute does not involve the Department but is an internal membership dispute between the Complainant and the Respondent MCK. [12] The Commission does not oppose the motion to dismiss the complaint against the Department. [13] The Complainant, Ms. Kelly (Stacey), provided a submission stating that as a First Nations person she does not fall within Canadian jurisdiction. Rather, she attorns only to the jurisdiction of a traditional body consisting of the People, in accordance with the Great Law of Peace and the Two Row Wampum. In her view, any negotiations made with the Government of Canada do not apply to her. Those negotiations would seem to include the negotiations leading to the settlement agreement. [14] In my view, the Tribunal's authority to make a determination on the issue raised in this motion resides in the power granted to it under s. 50(2) of the CHRA to decide all questions of law or fact necessary to determining a matter in the course of an inquiry. In Canada (Canadian Human Rights Commission) v. Canada Post Corp. 2004 FC 81, the Federal Court indicated that the determination of a preliminary issue was part of the inquiry process. As master of its own house, the Tribunal was entitled to clear the procedural underbrush prior to holding a hearing on the merits of the case. [15] Ms. Kelly (Stacey) received monetary compensation in exchange for an agreement not to bring any further action regarding the matters raised in the complaint against the Department. The matters raised in the 1999 complaint against the Department are identical to the issues raised in the 2005 complaint against the Department: the failure of the Department to prevent the MCK from excluding Ms. Kelly (Stacey) from Band membership and from denying her membership benefits. Although the settlement agreement left open the possibility of filing a complaint against the MCK if Ms. Kelly (Stacey) was not happy with the outcome of the Membership Renewal process, it explicitly closed that possibility with respect to the Department. The settlement agreement left no option to raise the issue again with the Department. Ms. Kelly (Stacey) received legal assistance to help her to understand this point. [16] The material on the file in the present case indicates that Ms. Kelly (Stacey) did not sign the agreement until she had received independent legal advice. The lawyer with whom she consulted certified that he was satisfied that Ms. Kelly (Stacey) fully understood and accepted the terms of the agreement and the legal consequences of signing the agreement. He further satisfied himself that she was not compelled or under duress to enter into the settlement agreement and that she did so on a voluntary basis. [17] Ms. Kelly (Stacey) has not challenged the validity of the release on the basis of duress, capacity, non est factum or any other such basis. Her claim that she does not recognize the jurisdiction of the federal government does not affect the validity of the release. [18] In the Tribunal's previous ruling on this issue, Vice-Chairperson Hadjis noted that new facts appeared to have emerged after the signing of the release that might affect the applicability of the release. Those facts included the development of a new Membership Law by MCK, and the delegation of the power to determine Band membership to the Council of Elders. [19] The settlement agreement, however, clearly contemplated that a new Membership Law was being developed and that depending upon how that Law was applied to the Complainant, she might wish to file a fresh complaint against the MCK. That right was not reserved with respect to the Department. Therefore, the new Membership Law has no bearing on the applicability of the release to the present complaint against the Department. [20] The issue of the Department's power to intervene in matters regarding the Complainant's membership in the Band was settled in 2003. Therefore, the delegation of the power to decide Band membership to the Council of Elders is not relevant to the applicability of the release to the complaint against the Department. [21] In my view, therefore, the record now discloses that neither of these two fresh facts has any bearing on the application of the release to the complaint against the Department. [22] This is not a case where Ms. Kelly (Stacey) has contracted out of her right to the protection of the CHRA. Ms. Kelly (Stacey) signed an agreement not to raise this particular issue with the Department again; the matter was resolved. That is not the same as signing an employment contract or a lease that denies recourse to the CHRA for any potential future claims of violations of the Act. As in the case of Gee v. Canada (Minister of National Revenue) 2002 FCA 4, I find it difficult to characterize the agreement in this case as an agreement to opt out of the protection of the Act. [23] As the British Columbia Human Rights Tribunal stated in Thompson v. Providence Health Care 2003 BCHRT 58, there is a strong public policy interest in encouraging parties to resolve their disputes on a voluntary, consensual basis. This public policy would be severely undermined if parties who had entered into a final settlement of their human rights dispute were, absent public policy considerations to the contrary, permitted to come forward and pursue a complaint before the Tribunal. Ms. Kelly (Stacey) settled her complaint against the Department in 2003; she should not be permitted to pursue the same complaint before the Tribunal now. [24] Ms. Kelly (Stacey)'s complaint against the Department is therefore dismissed. Signed by Karen A. Jensen OTTAWA, Ontario September 30, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1268/8007, T1269/8107, T1270/8207 STYLE OF CAUSE: Margaret Kelly (Stacey) v. Mohawk Council of Kahnawake, Council of Elders, Department of Indian and Northern Affairs Canada RULING OF THE TRIBUNAL DATED: September 30, 2008 APPEARANCES: No one appearing For the Complainant Daniel Poulin For the Canadian Human Rights Commission Mary Lee Armstrong For the Respondent (Mohawk Council of Khanawake) No one appearing For the Respondent (Council of Elders) Virginie Cantave For the Respondent (Department of Indian and Northern Affairs (Canada)

2008 CHRT 43

CHRT

Powell v. United Parcel Service Canada Ltd.

en

2008-10-09

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6667/index.do

2023-12-01

Powell v. United Parcel Service Canada Ltd. Collection Canadian Human Rights Tribunal Date 2008-10-09 Neutral citation 2008 CHRT 43 File number(s) T981/10104 Decision-maker(s) Hadjis, Athanasios 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 2008 CHRT 43 2008/10/09 MEMBER: Athanasios D. Hadjis [1] The Respondent, United Parcel Service Canada Ltd. (UPS), claims that the Complainant, Esper Powell, settled her human rights complaint against UPS in 2007. As a result, UPS has filed a motion seeking an order from the Tribunal confirming the alleged settlement and bringing the present case before the Tribunal to a close. [2] In January 2002, Ms. Powell filed her complaint, in which she alleged that she had been discriminated against by her employer, UPS, on the basis of her sex (female) and her race and colour (black). In August 2004, the Canadian Human Rights Commission (Commission) referred the complaint to the Tribunal for inquiry. The hearing into the complaint was scheduled to begin on June 11, 2007. In advance of that date, Ms. Powell and UPS began settlement discussions through their respective counsel, which ultimately resulted in UPS accepting a counter-offer from Ms. Powell. On June 8, 2007, UPS's counsel sent an email message to Mr. Powell's counsel confirming this acceptance. UPS's counsel ended his correspondence by stating, This matter has therefore settled. Ms. Powell's counsel sent an email message in reply on the same day saying that he confirms that this matter is resolved accordingly. [3] UPS's counsel immediately advised the Tribunal that the case had been settled. The Tribunal therefore wrote to the parties on the same day (June 8, 2007), informing them that the matter was adjourned sine die pending a notice from the Commission that the minutes of settlement had been approved pursuant to s. 48(1) of the Canadian Human Rights Act. The Tribunal added that upon receipt of such notice from the Commission, the Tribunal would issue a Notice of Discontinuance, closing the matter. [4] According to UPS, Ms. Powell has refused to follow up with the steps needed to finalize the settlement. She did not sign the proposed minutes of settlement nor the Full and Final Release prepared by UPS's counsel. On November 20, 2007, UPS's counsel informed the Tribunal that the minutes of settlement had yet to be signed, and on November 27, 2007, Ms. Powell advised the Tribunal that she had changed legal counsel. The Tribunal replied to the parties that in the absence of a signed settlement resolving the complaint, the case would proceed to hearing. [5] UPS takes the position that the matter before the Tribunal was fully settled through the exchange of correspondence that took place between counsel in June 2007, irrespective of whether or not minutes of settlement were ultimately signed. It has therefore brought the present motion seeking an order confirming the settlement of the complaint. [6] According to s. 48 of the Act, settlements of any complaints that are reached before the commencement of a hearing must be referred to the Commission for approval or rejection: 48. (1) When, at any stage after the filing of a complaint and before the commencement of a hearing before a Human Rights Tribunal in respect thereof, a settlement is agreed on by the parties, the terms of the settlement shall be referred to the Commission for approval or rejection. (2) If the Commission approves or rejects the terms of a settlement referred to in subsection (1), it shall so certify and notify the parties. (3) A settlement approved under this section may, for the purpose of enforcement, be made an order of the Federal Court on application to that Court by the Commission or a party to the settlement. 48. (1) Les parties qui conviennent d'un règlement à toute étape postérieure au dépôt de la plainte, mais avant le début de l'audience d'un tribunal des droits de la personne, en présentent les conditions à l'approbation de la Commission. (2) Dans le cas prévu au paragraphe (1), la Commission certifie sa décision et la communique aux parties. (3) Le règlement approuvé par la Commission peut, par requête d'une partie ou de la Commission à la Cour fédérale, être assimilé à une ordonnance de cette juridiction et être exécuté comme telle. In its written submissions on UPS's motion, the Commission points out that there is no evidence that a settlement has been approved by the Commission. Consequently, the Commission adds, there is no settlement binding upon the parties that could be made an order of the Federal Court, pursuant to s. 48(3). [7] UPS contends that the Commission's role under s. 48 is simply to approve or reject settlements that have been entered into, and not to determine whether a settlement has been reached. UPS submits that this is a matter to be decided by the Tribunal. In the circumstances of the present case, UPS argues that a binding settlement was in fact arrived at, notwithstanding the absence of any Commission approval. [8] In my view, this argument is based on an erroneous interpretation of s. 48. The terms of the provision are clear. Prior to the commencement of the hearing, no complaint can be settled without Commission approval. The Federal Court pointed out in Loyer v. Air Canada, 2006 FC 1172 at para. 87, that: There has been little judicial consideration of section 48 of the Canadian Human Rights Act. However, when the section is read in context, consistent with the aims of the Act as a whole, and in light of the public interest mandate of the Canadian Human Rights Commission, it is clear that the section is there to ensure that the Commissioners themselves have input into settlements, so as to ensure that the remedial goals of the Act are adequately addressed in the resolution of individual complaints. [emphasis added] [9] Under s. 48, there is no option made available to the parties to choose whether or not to submit the settlement to the Commission. In the English rendering of the section, it is stated that the settlement shall be referred to the Commission. In the French rendering, the parties present the terms of the settlement for approval by the Commission. This requirement is consistent with the finding in Loyer that the section exists to ensure that the Commissioners have an input into settlements to make certain that the remedial goals of the Act are adequately addressed in the resolution of the individual complaints. Without such input, there can be no settlement. [10] There is no indication that the Commission has either explicitly or tacitly approved the alleged settlement between Ms. Powell and UPS. Absent such approval, it cannot be said that there exists a settlement bringing about an end to the Tribunal's inquiry into the complaint. [11] Of course, according to s. 48, this approval would only have been required if the settlement was agreed on prior to the commencement of the hearing. UPS submits, as an additional argument, that the settlement in this case was not in fact reached before the commencement of the hearing, within the meaning of s. 48. It claims that the Tribunal has undertaken steps, including case conferences and the issuance of various procedural orders, which demonstrate that it has embarked on the hearing process. As such, the commencement of a hearing has taken place and the Commission's approval of the settlement is no longer required. [12] I do not agree with UPS's submission. While the Act refers to a hearing and an inquiry, there is no mention made anywhere of a hearing process. The Federal Court considered these two terms (hearing and inquiry) in Canada (Canadian Human Rights Commission) v. Canada Post Corp., 2004 FC 81 at para. 17. The Court pointed out that s. 50 of the Act makes reference to each of these expressions separately, and treats them as distinct notions. The Court was sitting in review of a ruling by the Tribunal on a preliminary motion that the respondent had filed seeking the dismissal of the complaint prior to the start of the hearing into the merits of the complaint. The Commission had argued that the Tribunal was required to conduct the hearing before dismissing the complaint and that the motion was therefore premature. The Court disagreed. It concluded that although, according to s. 50, a Tribunal must conduct an inquiry into every complaint referred to it, there is no requirement that there be a hearing in every case. The motion to dismiss was thus not premature. [13] I take it, therefore, from the Court's finding, that the meaning to be assigned to the term hearing is the conduct of the actual hearing into the merits of the complaint itself. It does not encompass any preceding activity, including preliminary motions that the Tribunal may entertain in order to clear the procedural underbrush (Canada Post at para. 14), such as the motion to dismiss that had been brought in that case. [14] In the present instance, UPS contends that merely because the Tribunal held a number of case conferences by telephone, issued some directions on matters such as scheduling and disclosure, and ruled on a preliminary motion (which was on the basis of written submissions only), the hearing within the meaning of the Act has commenced. This contention clearly does not accord with the Court's findings in Canada Post. In my view, the hearing with respect to Ms. Powell's human rights complaint has not yet commenced. Section 48 is therefore applicable and, in the absence of Commission approval, the complaint cannot be said to have been settled. [15] For all the above reasons, UPS's motion is dismissed. Signed by Athanasios D. Hadjis OTTAWA, Ontario October 9, 2008 PARTIES OF RECORD TRIBUNAL FILE: T981/10104 STYLE OF CAUSE: Esper Powell v. United Parcel Service Canada Ltd. RULING OF THE TRIBUNAL DATED: October 9, 2008 APPEARANCES: Ernest J. Guiste and Thelson Desamour For the Complainant K.E. Ceilidh Snider For the Canadian Human Rights Commission Douglas F. Best For the Respondent

2008 CHRT 44

CHRT

Montreuil v. Canadian Forces

en

2008-10-16

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6668/index.do

2023-12-01

Montreuil v. Canadian Forces Collection Canadian Human Rights Tribunal Date 2008-10-16 Neutral citation 2008 CHRT 44 File number(s) T1047/2805 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 Respondent RULING 2008 CHRT 44 2008/10/16 MEMBER: Athanasios D. Hadjis [1] The Respondent has made a motion to adjourn the re-hearing into the complaint, pending the outcome of its application before the Federal Court. The application seeks a judicial review of the Tribunal Chairperson's decision not to give his approval to Me Pierre Deschamps, to conclude the inquiry into the present case. The Commission and the Complainant oppose the motion. [2] The Respondent indicates that the Federal Court has set down December 11, 2008, as the hearing date of the judicial review application. The Respondent also notes that the Commission has consented to the order being sought by the Respondent from the Federal Court. The Complainant, for her part, has requested that the Tribunal Chairperson reconsider his decision. Thus, the Respondent submits that there will be little, if any, contestation to its judicial review application. If the Federal Court grants the order being sought, the re-hearing of the complaint will no longer be necessary. The Respondent is therefore seeking an adjournment pending the conclusion of the Federal Court proceedings. [3] However, as the Commission has pointed out, the Tribunal Chairperson has recently made a motion to intervene into the hearing of the judicial review application. This motion for intervention will be heard by the Court on October 22, 2008. [4] It is not clear at this time what bearing the outcome of this motion may have on the ultimate determination of the judicial review. The Federal Court may still dismiss the judicial review application, notwithstanding the respective positions of the principal parties, in which case any adjournment would result in an unnecessary delay in the process. As Justice Harrington indicated in his ruling on the Respondent's previous motion for a stay of proceedings in this case, Une suspension d'instance causerait une perte de temps précieux si la demande de contrôle judiciaire est rejetée, que ce soit en première instance ou en appel. (Procureur général du Canada (les Forces canadiennes) c. Montreuil, 2008 CF 530 at para. 37). [5] The Commission points out that this human rights complaint alleges discriminatory practices dating back to 1999. The complaint was filed in 2002 and was referred to the Tribunal in 2005. Proceedings before the Tribunal are to be run as informally and expeditiously as the requirements of natural justice and procedure allow (s. 48.9 (1) of the Canadian Human Rights Act). The Tribunal may adjourn its proceedings at its discretion having regard to principles of natural justice (see Brooks v. Canada (Fisheries and Oceans), 2007 CHRT 4 at para. 6). Some examples of natural justice concerns to which the Tribunal could respond would include the unavailability of evidence, the need to adjourn to obtain counsel, or late disclosure by an opposite party. [6] In the present case, just as in the Brooks case, one cannot predict the final outcome of the judicial review proceedings. For the Respondent to obtain an adjournment, it must demonstrate that allowing the Tribunal proceedings to follow their course will result in a denial of natural justice. The Respondent has not, in my view, established that any such prejudice would come to it. [7] The Respondent brought up in its motion that the parties may not be available for the re-hearing until January 2009, based on statements that they made back in August 2008. Aside from the fact that these alleged declarations of availability may no longer be accurate, I fail to see their relevance to this discussion. Counsel and parties will always have busy schedules. This should not preclude the Tribunal from advancing the hearing process in an expeditious fashion, as mandated by the Act. [8] For these reasons, the Respondent's motion for an adjournment is dismissed. Athanasios D. Hadjis OTTAWA, Ontario October 16, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1047/2805 STYLE OF CAUSE: Micheline Montreuil v. Canadian Forces RULING OF THE TRIBUNAL DATED: October 16, 2008 APPEARANCES: Micheline Montreuil For herself Ikram Warsame For the Canadian Human Rights Commission Guy Blouin / Claude Morissette For the Respondent

2008 CHRT 45

CHRT

Pochay v. Correctional Service of Canada

en

2008-10-20

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6671/index.do

2023-12-01

Pochay v. Correctional Service of Canada Collection Canadian Human Rights Tribunal Date 2008-10-20 Neutral citation 2008 CHRT 45 File number(s) T1295/2508 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERONNE MICHAEL POCHAY Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - CORRECTIONAL SERVICE OF CANADA Respondent RULING 2008 CHRT 45 2008/10/20 MEMBER: Karen A. Jensen [1] The Respondent, Correctional Service of Canada, has filed a motion requesting that the complaint of Michael Pochay be dismissed as abandoned. [2] Mr. Pochay complained on October 22, 2003 that the Cross Gender Staffing Policies and Guidelines of Correctional Services of Canada were applied in a discriminatory way to male inmates as compared to female inmates in federal institutions. [3] During the investigation of the complaint by the Canadian Human Rights Commission, the Complainant made contact with the Commission only once on August 17, 2006. Thereafter, he ceased to have any contact with the Commission. Numerous attempts were made to reach the Complainant. However, it appeared that he had moved and changed his phone numbers. The Commission's efforts to locate the Complainant were unsuccessful. [4] On May 26, 2008 the Tribunal wrote to the parties to advise that the complaint had been referred to it for further inquiry. On June 16, 2008 the letter to the Complainant was returned by Priority Courier, unclaimed and marked Name not listed 08/05/28. The Tribunal made numerous attempts to contact the Complainant by mail and by telephone. These efforts were unsuccessful. The Tribunal was unable to make contact with the Complainant and the Complainant has made no effort to contact the Tribunal. [5] On June 26, 2008 a case management teleconference was held to commence preparation for the hearing. The Complainant did not attend the teleconference. [6] In its motion the Respondent argues that the Complainant has demonstrated an unwillingness to proceed with his complaint. Therefore, the complaint should be dismissed. [7] For its part, the Commission argues that dismissing a complaint at this stage is an extraordinary remedy and may result in a denial of natural justice. The Commission submits that while the Tribunal has the authority to dismiss a complaint without a hearing (Canada (Human Rights Commission) v. Canada Post Corporation 2004 FC 81, at para. 19), it is premature to do so at the present stage. Rather, the Commission suggests that the Tribunal order the Complainant to comply with Rule 6(1) of the Tribunal's Rules of Procedure by submitting his Statement of Particulars within three weeks, failing which his complaint may be dismissed. [8] I agree with the Commission's suggestion. The Complainant is therefore directed to serve and file within three weeks of the date of this ruling his Statement of Particulars setting out the items listed in Rule 6(1) of the Tribunal's Rules of Procedure. Should he fail to do so, his complaint may be dismissed. [9] The present motion is dismissed without prejudice to the Respondent's right to renew its request should the Complainant fail to conform to the requirement to provide his Statement of Particulars within three weeks. Signed by Karen A. Jensen OTTAWA, Ontario October 20, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1295/2508 STYLE OF CAUSE: Michael Pochay v. Correctional Service of Canada RULING OF THE TRIBUNAL DATED: October 20, 2008 APPEARANCES: No submissions made For the Complainant Daniel Poulin For the Canadian Human Rights Commission Jeff R. Anderson For the Respondent

2008 CHRT 46

CHRT

Keeper-Anderson v. Southern Chiefs Organization Inc.

en

2008-10-31

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6672/index.do

2023-12-01

Keeper-Anderson v. Southern Chiefs Organization Inc. Collection Canadian Human Rights Tribunal Date 2008-10-31 Neutral citation 2008 CHRT 46 File number(s) T1167/4906 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE LORETTA KEEPER-ANDERSON Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - SOUTHERN CHIEFS ORGANIZATION INC. Respondent DECISION 2008 CHRT 46 2008/10/31 MEMBER: J. Grant Sinclair [1] By decision of this Tribunal dated June 20, 2008 (2008 CHRT 26), the complaint made by Ms. Keeper-Anderson to the Canadian Human Rights Commission on October 13, 2004 against the respondent Southern Chiefs Organization Inc. (SCO) was found to be substantiated. At the hearing, Ms. Keeper-Anderson requested the Tribunal award: lost income for the period May 2005 to May 2007 being $90,000 at $45,000/annum, the salary she claims she was receiving at the time her employment was terminated; lost benefits of $5,000; $5,000 for pain and suffering; $15,000 as damages for the willful and reckless conduct of SCO; costs incurred in selling her house; legal costs; and interest on the above amounts. [2] As per the Tribunal's decision dated June 20, 2008 (2008 CHRT 26) and to assist in deciding the amount of remedy, the complainant was instructed to provide the Tribunal, by July 15, 2008, with information regarding her total income received from all sources from May 2005 to May 2007 and whether she was required to reimburse for employment insurance benefits or to any other government agency for any income assistance benefits she received during that period. [3] Ms. Keeper-Anderson requested and was granted an extension to July 28, 2008 to provide this information with respect to remedy. She submitted her material to the Tribunal on July 25, 2008. [4] On July 31, 2008, the Tribunal directed that SCO would have until August 6, 2008 to respond to the complainant's submissions regarding remedy. This was extended to August 11 and then to September 5, 2008. However, SCO has not provided any submissions in response to those received from Ms. Keeper-Anderson. [5] The material provided by Ms. Keeper-Anderson includes her income tax returns for the years 2005-2007; a discharge statement from her legal representative with respect to the discharge of the mortgage for her residence and also a reference to legal costs and disbursements estimated to November 8, 2005 Re: litigation matters of $1,100; pay history details for the period from February 2004 through April 2005, a student loan account statement, and correspondence relating to orthodontic work and vision care. [6] Ms. Keeper-Anderson claims lost wages for the period from May, 2005 to May, 2007. As such, both the salary that she would have received and her total income as per her income tax returns for this time period must be prorated to reflect this. I have prorated Ms. Keeper-Anderson's salary for May 2005-2007 and subtracted her prorated income as reported in her 2005-2007 income tax returns. On that basis, I estimate that her lost income to be $40,000. [7] As to her claim of $5,000 for lost benefits, the information that she submitted does not support her claim. I therefore refuse to allow this amount. [8] As to Ms. Keeper-Anderson's request for reimbursement for the costs incurred for the sale of her house, Ms Keeper-Anderson provided information showing two items, estimated property management costs to November 8, 2005 of $720 and legal costs and disbursements estimated to November 8, 2005 of $5,627. She did not provide any explanation as to what these costs are for. Accordingly, her request is not allowed. [9] Ms. Keeper-Anderson claims legal costs and disbursements estimated to November 8, 2005 of $1,100, Re: litigation matters. Ms. Keeper-Anderson retained a lawyer to challenge her termination and seek reinstatement. The evidence at the hearing indicated that there was some correspondence between Ms. Keeper-Anderson's lawyer and the SCO's lawyer, but nothing more. The documentation that she submitted makes no reference to this. In these circumstances, I award $200 for legal expenses. [10] Similarly, Ms. Keeper-Anderson has failed to provide any evidence or convincing argument demonstrating willful or reckless behaviour on the part of the respondent. Her claim in the amount of $15,000 is therefore refused. [11] It is nevertheless clear from the evidence that Ms Keeper-Anderson has suffered from the loss of her job and I award $2,000 for her pain and suffering resulting from the discriminatory actions of the SCO. [12] Interest under section 53(4) of the Canadian Human Rights Act on the total award of $42,200 will accrue in accordance with the Canadian Human Rights Tribunal Rules of Procedure 9(12). Signed by J. Grant Sinclair OTTAWA, Ontario October 31, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1167/4906 STYLE OF CAUSE: Loretta Keeper-Anderson v. Southern Chiefs Organization Inc. DECISION OF THE TRIBUNAL DATED: October 31, 2008 APPEARANCES: Loretta Keeper-Anderson For herself No one appearing For the Canadian Human Rights Commission No one appearing For the Respondent Reference: 2008 CHRT 26 (June 20, 2008)

2008 CHRT 47

CHRT

Kelly v. Mohaw Council of Kahnawake

en

2008-10-31

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6673/index.do

2023-12-01

Kelly v. Mohaw Council of Kahnawake Collection Canadian Human Rights Tribunal Date 2008-10-31 Neutral citation 2008 CHRT 47 File number(s) T1268/8007, T1269/8107 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MARGARET KELLY (STACEY) Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - MOHAWK COUNCIL OF KAHNAWAKE - and - COUNCIL OF ELDERS Respondent DECISION 2008 CHRT 47 2008/10/31 MEMBER: J. Grant Sinclair [1] The hearing in these complaints was convened at 9:30 am on Thursday, October 16, 2008 at Montréal, Quebec. Before the commencement of the hearing, the Tribunal Registry Officer called for appearances and asked the parties to complete their records of appearance. Mr. Daniel Poulin, counsel for the Canadian Human Rights Commission and Mr. François Dandonneau, co-counsel for the respondent Mohawk Council of Kahnawake were in attendance. Mr. Dandonneau advised the Tribunal that his co-counsel, Ms. Mary Lee Armstrong, would be arriving shortly, and she did. [2] The complainant, Margaret Kelly (Stacey), did not appear and was not in attendance at the open of the hearing nor did anyone appear on her behalf. No one appeared on behalf of the Council of Elders. [3] The Tribunal adjourned the hearing until 2:00 o'clock of that same day. Upon resumption, the Registry Officer read the case for hearing and again called for appearances. Counsel for the Commission and respondent were again in attendance but neither Ms. Kelly nor anyone on her behalf were present. [4] Documents were filed as Tribunal exhibit T-1 confirming notification of this hearing to the complainant, including: Letter dated October 1, 2008 from the Tribunal summarizing the September 30, 2008 case management conference call; Tribunal's Revised Notice of Hearing dated October 1, 2008 confirming the October 16-17, 2008 and October 27-31, 2008 hearing dates; Tribunal Ruling 2008 CHRT 42 dated September 30, 2008 dismissing the complaint in Tribunal file T1270/8207, Margaret Kelly (Stacey) v. Department of Indian and Northern Affairs Canada; Copy of the electronic confirmation of the Tribunal's directions dated October 1, 2008, the Tribunal's Revised Notice of Hearing dated October 1, 2008 and the Tribunal's Ruling 2008 CHRT 42 dated September 30, 2008; Canada Post acknowledgement of receipt of package TM102570317CA indicating that the package, containing the Tribunal's directions letter dated October 1, 2008, the Tribunal's Revised Notice of Hearing dated October 1, 2008 and the Tribunal's Ruling (2008 CHRT 42) dated September 30, 2008, was successfully delivered to Ms. Kelly at her last known address. [5] No evidence was called or otherwise provided in support of Margaret Kelly (Stacey)'s complaints. Accordingly, I find that the complaints against the Mohawk Council of Kahnawake and the Council of Elders have not been substantiated and are hereby dismissed under section 53(1) of the Canadian Human Rights Act. I hereby certify that the foregoing is a true and accurate respresentation of my oral decision given from the bench on October 16, 2008. Signed by J. Grant Sinclair OTTAWA, Ontario October 31, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1268/8007 and T1269/8107 STYLE OF CAUSE: Margaret Kelly (Stacey) v. Mohawk Council of Kahnawake and Council of Elders DATE AND PLACE OF HEARING: October 16, 2008 Montréal, Quebec DECISION OF THE TRIBUNAL DATED: October 31, 2008 (Oral decision rendered from the bench on October 16, 2008) APPEARANCES: No one appearing For the Complainant Daniel Poulin For the Canadian Human Rights Commission Mary Lee Armstrong François Dandonneau For the Respondent (Mohawk Council of Kahwanake) No one appearing For the Respondent (Council of Elders)

2008 CHRT 48

CHRT

Deschambeault v. Cumberland House Cree Nation

en

2008-11-04

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6674/index.do

2023-12-01

Deschambeault v. Cumberland House Cree Nation Collection Canadian Human Rights Tribunal Date 2008-11-04 Neutral citation 2008 CHRT 48 File number(s) T1253/6507 Decision-maker(s) Hadjis, Athanasios Decision type Decision Decision status Final Grounds National or Ethnic Origin Decision Content Between: Valerie Deschambeault Complainant - and - Canadian Human Rights Commission Commission - and - Cumberland House Cree Nation Respondent Decision Member: Athanasios D. Hadjis Date: November 4, 2008 Citation: 2008 CHRT 48 Table of Contents I. Facts A. The 2004 Competition B. The 2005 Competition II. What are the legal principles applicable in this case? A. Has Ms. Deschambeault established a prima facie case of discrimination? B. Has the Band provided a reasonable explanation? (i) The 2004 Competition (ii) The 2005 Competition C. Is the Band’s decision immune from the operation of the CHRA due to s. 67? III. What remedies are Ms. Deschambeault and the Commission seeking? A. Lost wages (s. 53(2)(c)) B. Expenses Incurred (s. 53(2)(c)) (i) Expenses related to training (ii) Other expenses C. Pain and Suffering (s. 53(2)(e)) D. Special compensation (s. 53(3)) E. Interest F. An order for measures to redress the discrimination and prevent its recurrence (s. 53(2)(a)) [1] The Complainant, Valerie Deschambeault, is a Métis woman. In 2004 and 2005, she applied twice for a job with the Respondent, the Cumberland House Cree Nation. On both occasions, she was not selected. She alleges in her human rights complaint that she was denied the position because she is Métis and not of treaty origin, i.e. she is not a First Nation member of the Cumberland House Cree Nation (the Band). She did not specify in her complaint form which provision of the Canadian Human Rights Act (CHRA) she alleges to have been violated. However, in the Summary of Complaint form that the Commission attached to her complaint, s. 7 is cited as the applicable section of the CHRA and national or ethnic origin is given as the relevant prohibited ground for the alleged discrimination. [2] For the reasons set out below, I have found that her complaint is substantiated. I have also determined that the Band cannot, in the present case, benefit from the immunity provided in s. 7 of the CHRA. I. Facts [3] For most of her life, Ms. Deschambeault has lived in the Northern Village of Cumberland House (the Village), which is situated on an island (Pine Island) on the Saskatchewan River in a remote area of north-eastern Saskatchewan, some 350 km from Prince Albert. The Village shares the island with the Cumberland House Cree Nation Reserve. They are located just a couple of kilometres apart from each other. They share some services, such as the island’s one arena, and their respective residents attend each other’s schools (one on each side). There is one post office on the island, situated on the Village side. [4] Not all of the registered members of the Band reside on the reserve. According to figures published by Indian and Northern Affairs Canada, only 592 of the 1062 registered Band members live on the reserve (February 2007 figures). Most of the members living off the reserve reside in the Village. The Village’s population is composed almost entirely of Band members and Métis. Some Métis live on the reserve as well. Thus, the lives of the First Nation Band members and the Métis are very much intertwined. They have grown up together and in many cases are related to one another. However, as Ms. Deschambeault testified, some people still make a point of distinguishing between those who are First Nation Band members (treaty) and those who are Métis. A. The 2004 Competition [5] In 2004, Ms. Deschambeault was working as an addiction counsellor at the Pine Island Health Centre, an outpatient treatment centre located in the Village. She saw a notice that had been posted by the Band in the Village’s post office advising that a competition had been opened for the position of Residential School Healing Facilitator. [6] This position was created as a result of an agreement that the Band had reached with the Aboriginal Healing Foundation, an organization that was established in 1998 following the issuance of a report by the Royal Commission on Aboriginal People. The Foundation’s purpose was to assist with the support and rehabilitation of individuals who suffered abuse under the residential schools system. Its funding came from the Government of Canada. [7] The Band had signed the agreement with the Foundation in June 2004 for the funding of a healing project. Its goals included striving to eliminate all forms of family and community violence arising from the legacy of physical and sexual abuse in residential schools and supporting individual, family and community healing. The project called for the establishment of a two-year term position of a healing facilitator to coordinate and facilitate the support. [8] Ms. Deschambeault had previously held a position with the Métis Addictions Council of Saskatchewan regarding a project that had been funded by the Foundation. The job included visiting Métis communities and working with residential school victims in need of healing. She therefore applied to compete for the facilitator’s position. The job posting for the position did not mention any preferential hiring policy for Band members. [9] The selection process was administered by Lisa Cook, who was the Band’s Health Director at the time. Six persons applied and the Band invited them to be interviewed. Four of the applicants agreed to attend the interview, including Ms. Deschambeault. She was the only one of the four who was Métis. The other three candidates were all First Nation as well as members of the Band. [10] Lisa Cook testified that she had prepared a series of interview questions for the candidates, in conjunction with the human resources department of the Prince Albert Grand Council, an umbrella organization made up of twelve Saskatchewan First Nations, including the Band. The questions themselves were then approved by the Band Council. The interviews were conducted by a panel composed of the Chief and all four other members of the Band Council, as well as two representatives from the Grand Council’s human resources department, one Band elder, and Lisa Cook. [11] The interview panellists were to take turns asking one or two of the questions to each of the candidates. The panellists were provided with question sheets containing spaces to jot down notes. Lisa Cook testified that after the interviews were completed, the panel members discussed their respective scores for each candidate. She wrote down the points given by each panel member on a board. She then averaged out the results for each candidate. [12] Ms. Deschambeault placed first. Ms. Cook testified that she took the results and presented them at a meeting of the Band Council. She was asked to stay outside the room while the Band Council deliberated, a request that Ms. Cook testified she found very surprising. One Council member told her that Band members would deal with Band membership issues. Ms. Cook is First Nation but not a member of the Band. [13] The Band Council decided to hire Kathleen Settee-Cramer (Ms. Cramer), who is First Nation and a member of the Band. Ms. Cramer had placed second in the interview panel’s scoring. [14] Patricia Laliberte acted as secretary to the Band Council for a two-week period in 2004. She testified that she was present at a meeting of the Band Council where the matter of the appointment for the facilitator’s position was discussed. She recalls members of Council indicating that it should be a Band member who is hired. [15] Lisa Cook testified that the following day, the then Chief of the Band, and one of the Band’s councillors both told her that Ms. Cramer obtained the position because Council had decided to select a Band member. [16] Ms. Cramer gave evidence that after being informed that she had been selected for the position, she overheard the same councillor who had spoken to Ms. Cook say that she had obtained the job because she was a Band member. She then spoke to her father, who is a former Band chief, about what she had heard. After verifying, he confirmed to her that she had been selected because she was a Band member. She testified that she was saddened by this news. She had been friends with Ms. Deschambeault since childhood and knew that Ms. Deschambeault was more qualified than she was. She nonetheless opted to accept the position as she felt she could still make a difference within her community with respect to the program that she would administer. [17] Shortly thereafter, Ms. Cramer told Ms. Deschambeault about what she had learned regarding the competition. Although Ms. Deschambeault was very hurt and disappointed at not having been given the job despite placing first in the interview panel’s assessment, she did not want to cause any harm to Ms. Cramer. Ms. Deschambeault decided to let matters go and did not file any complaint with the Band following the competition. B. The 2005 Competition [18] Although the facilitator position was for a two-year term ending in 2006, Ms. Cramer resigned from the job on March 16, 2005. She testified that she found the workplace unhealthy and that she felt harassed. Immediately after resigning, Ms. Cramer became a candidate in that month’s Band Council election. Band regulations apparently stipulate that candidates must resign from their Band employment positions during election periods. The Band therefore contends that the real reason for her resignation was so as to run for Council. Ms. Cramer did not end up winning a council seat. [19] Whatever her true motivations for resigning may have been, the end result was that the facilitator position fell vacant before the end of its term. Lisa Cook had been away on personal leave when Ms. Cramer resigned. Upon her return in April 2005, Angus Mackenzie, a newly elected Band councillor who had been given charge of the health portfolio, instructed Ms. Cook to prepare the selection process to fill the position. The advertisement for the job had already been posted by the Band while Lisa Cook was on leave. [20] The Band Council had recently assembled a new Health Committee comprised of four Band members, which was to advise the Council on issues relating to the health care portfolio. Lisa Cook was informed that the seven-member committee assessing the applications for the facilitator position would be comprised of the four Health Committee members along with one former Band councillor (Raymond Chaboyer), Mr. Mackenzie, and one Elder. Ms. Cook testified that the Grand Council opted not to participate in the process this time. [21] The selection process that Lisa Cook organized was similar to the 2004 competition’s, with some minor changes. Scoring was to be made on a scale of 1 to 5 rather than 1 to 4, for instance, and a more elaborate essay portion was added to ensure that the candidates had the requisite report writing skills. This latter component was, however, not factored into the panel’s final scoring of the candidates. [22] Three persons applied for the position, Clara Cook, Ms. Deschambeault, and Ms. Cramer (who was in effect re-applying for the position). Ms. Deschambeault was the only non-First Nation and non-Band member to apply. She testified that she had seen advertisements for the competition at the post office and the gas station, and she had heard an announcement on the local radio station. She saw that the required qualifications and tasks were unchanged from the 2004 competition. She also testified that she ran into the Band’s newly elected Chief, Walter Sewap, at the gas station and asked him if the competition was going to be restricted to Band members. He replied that the competition was open to anyone, not just Band members, and that the newly created Health Committee would be overseeing the process and making a recommendation for selection to Council. She felt reassured and decided to apply. [23] The interviews were held in May 2005. Three of the interview panellists had to recuse themselves from the evaluation of Clara Cook because they were related to her. All seven participated in the questioning of Ms. Cramer and Ms. Deschambeault. Lisa Cook testified that she felt Clara Cook should not have been screened into the competition. The position had been advertised as being restricted to persons who had completed their Grade 12 high school diploma or equivalency. Clara Cook had not indicated in her resume having completed a Grade 12 education. Lisa Cook was, however, instructed to screen in all of the applicants, including Clara Cook. [24] After the candidates were interviewed, the interview panel met and tabulated its results. A handwritten summary or tally sheet documenting each interviewer’s scores was filed in evidence. It shows that each assessor gave a score that ranked Ms. Deschambeault either first or tied for first with Ms. Cramer. All four of the panellists who assessed Clara Cook ranked her last or tied for second with Ms. Cramer. The overall average scores placed Ms. Deschambeault clearly first, with a score of 55 out of 70, Clara Cook second with 46 and Ms. Cramer with 42. [25] There were a number of apparent anomalies in the scoring. One interviewer, Ernest Chaboyer, gave Ms. Deschambeault a score of 74, even though the maximum possible score was 70. A review of Ernest Chaboyer’s scoring sheets for each candidate that he interviewed shows that he entered a score for one of the interview questions at two spots on the scoring sheets, resulting in double entries. I note that he assigned Ms. Deschambeault full marks for all but one of the interview questions, where he gave 4/5. This could suggest that his intended score for Ms. Deschambeault was 69/70, much higher than his score for Ms. Cramer (25/70). He did not rate Ms. Cook because she is his sister. Nevertheless, even if one were to remove all of Ernest Chaboyer’s scores from the overall tabulations, the revised averages would still result in Ms. Deschambeault ranking first. [26] Another problem, highlighted by Raymond Chaboyer in his testimony, was that although the tally sheet contained scores from the elder who sat on the interview panel, he did not recall the elder actually asking any questions or entering any scores on his sheet. However, even if the elder’s scores were also set aside, along with Ernest Chaboyer’s, Ms. Deschambeault would still have ranked first. [27] Lisa Cook testified that the interview panel decided to recommend Ms. Deschambeault to the Band Council for the position. Ms. Deschambeault stated in her evidence that she received a telephone call that evening from Ernest Chaboyer informing her that she had scored highest and that the panel would be recommending her to Council. He even asked her when she would be available to begin working. [28] Ernest Chaboyer delivered a report of the panel’s findings recommending Ms. Deschambeault, to a meeting of the Band Council the following day, May 16, 2005. After considering the matter, the Band Council passed a motion that Clara Cook be hired for the position, effective that date. [29] Ms. Deschambeault testified that she was very hurt and angered at being turned down a second time, especially after having been told the previous evening by Ernest Chaboyer that she had placed first in the panel’s assessment and had been recommended for hiring. She felt it was not right for her to be turned down a second time after again having scored highest amongst all the candidates. In July 2005, she filed a human rights complaint with the Commission. She was advised by the Commission that the complaint required additional detail. Her modified complaint, which the Commission ultimately referred to the Tribunal and gave rise to the present case, was submitted to the Commission on February 14, 2006. The discriminatory conduct alleged in the complaint spans the period from July 22, 2004, to May 16, 2005, i.e., covering both the 2004 and the 2005 competitions. II. What are the legal principles applicable in this case? [30] It is a discriminatory practice under the CHRA to refuse to employ a person on the basis of national or ethnic origin (ss. 3 and 7). [31] A complainant must first establish a prima facie case of discrimination (Ont. Human Rights Comm. v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 at para. 28 (O’Malley)). A prima facie case, in this context, is one that covers the allegations made and that, 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. Once the prima facie case is established, the onus then shifts to the respondent to provide a reasonable and non-pretextual explanation for the otherwise discriminatory behaviour. [32] It is not necessary that discriminatory considerations 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.); Canada (Attorney General) v. Uzoaba [1995] 2 F.C. 569 (T.D.)). [33] In Basi v. Canadian National Railway Company (1988), 9 C.H.R.R. D/5029 at para. 38481 (CHRT), the Tribunal stated that discrimination is not a practice that one would expect to see displayed overtly. Rarely are there cases where one can show by direct evidence that discrimination is purposely practiced. A tribunal should therefore consider all circumstances to determine if there exists a subtle scent of discrimination. [34] In the employment context, the findings in a number of decisions have served to illustrate what type of evidence is needed to establish a prima facie case of discrimination. In Shakes v. Rex Pak Ltd., (1981), 3 C.H.R.R. D/1001 at para. 8918, the Ontario Board of Inquiry held that a prima facie case could be established by demonstrating: that the complainant was qualified for the particular employment; that the complainant was not hired; and that someone no better qualified but lacking the distinguishing feature, which is the gravamen of the human rights complaint, subsequently obtained the position. [35] In Israeli v. Canadian Human Rights Commission, (1983), 4 C.H.R.R. D/1616 at 1618 (C.H.R.T.), aff'd (1984), 5 C.H.R.R. D/2147 (C.H.R.T.- Rev. Trib.), the Tribunal modified this analysis to address situations where no appointment is made after the complainant who qualified for the position has been rejected and the employer continues to seek applicants. [36] While the Shakes and Israeli approaches serve as useful guides, neither one should be automatically applied in a rigid or arbitrary fashion in every hiring case (Canadian Human Rights Commission v. Canada (A.G.), 2005 FCA 154 (Morris) at paras. 23-30; Singh v. Canada (Statistics Canada) (1998), 34 C.H.R.R. D/203 at para. 161 (C.H.R.T.); Premakumar v. Air Canada, 2002 CanLII 23561 at para. 77 (C.H.R.T.)). 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. A. Has Ms. Deschambeault established a prima facie case of discrimination? [37] In my view, Ms. Deschambeault has established a prima facie case of discrimination with regard to both the 2004 and 2005 competitions. The evidence she and the Commission have led demonstrates that she was qualified for the facilitator position under both competitions, having been ranked first amongst all of the candidates being considered in each instance. She was not hired for the job both times. Finally, the evidence shows that someone no better qualified than she was (and in fact, less qualified according to the panels assessing the candidates on both occasions) was hired. These other persons who were hired lacked the distinguishing feature that is the gravamen of Ms. Deschambeault’s complaint (i.e., they were not Métis, but were First Nation members of the Cumberland Lake First Nation). The three components of the Shakes analysis have therefore been established. [38] The Band argues that Ms. Deschambeault’s status as a non-Band member is not like the descriptors of race or ethnicity for the purposes of this analysis. The Band points out that unlike race, it is possible to gain or lose band membership status throughout one’s lifetime. For instance, women who were not band members have acquired band membership by marrying a male band member. Others acquired their Indian status in 1985, through the enactment of Bill C-31 (An Act to Amend the Indian Act), which reinstated many individuals who had earlier lost their status. [39] I disagree. To begin with, the present complaint alleges discrimination on the basis of national or ethnic origin, not race. The CHRA provides that adverse differential treatment of individuals based on their national or ethnic origin constitutes a discriminatory practice. There is no distinction made in the CHRA between those persons who are discriminated against for being members of a particular national or ethnic group and those who are discriminated against for not being members of a particular group. [40] Ms. Deschambeault has established prima facie that she was denied an employment opportunity because she lacked a certain national or ethnic origin. She was not First Nation, and in particular, not a Cumberland House Cree Nation member. It should not make any difference that Ms. Deschambeault could have later acquired Indian status by marrying a Band member, for instance, any more so than to say, by analogy, that a victim of a discriminatory practice based on her religion could potentially convert to another religion at a later time. The fact that they were adversely differentiated at a given point on the basis of their then current status (be it actual or perceived national/ethnic origin, religion, family status, sexual orientation, etc.) is sufficient to make a finding of discrimination. [41] The Band also appears to suggest that all of the candidates in both competitions were of the same national or ethnic origin, as both Indians and Métis fall within the meaning of aboriginal peoples of Canada under s. 35(2) of the Constitution Act, 1982 (i.e., the Indian, Inuit and Métis peoples of Canada). I gather that the Band would like the Tribunal to conclude from the language of this constitutional provision that there could therefore not have been any discrimination in the present case, although its submissions on this point were not very explicit. [42] To the extent that the Band is actually advancing this argument, I do not agree with it. That would constitute a far too restrictive definition of national or ethnic origin under the CHRA. First of all, as the Supreme Court noted in R. v Powley, 2003 SCC 43 at para. 10, the term Métis in s. 35, while not encompassing all individuals with mixed Indian and European heritage, refers to distinctive peoples who, have a recognizable group identity separate from their Indian or Inuit and European forebears. Moreover, in a broader sense, the Band’s argument appears to ignore the fact that the aboriginal peoples of Canada as referenced in the Constitution Act, 1982, are comprised of many nations or ethnic groups, possessing unique cultures, languages, traditions and history. It appears to suggest that adversely differentiating on the basis of these national or ethnic origins should be treated differently than differentiation between, for instance, European national origins as they have been historically defined. This is patently absurd. [43] In any event, the provisions of the CHRA do not require that a complainant and a respondent be of different national or ethnic origins in order for a complaint to be a substantiated. Section 4 of the CHRA states that anyone found to be engaging or to have engaged in a discriminatory practice may be subject to a Tribunal order. It is thus entirely possible for a Tribunal to find that an individual was a victim of discrimination at the hands of someone who is of the same origin, if it is established the victim’s origin was a factor in the adverse differential treatment. [44] I therefore find that a prima facie case of discrimination has been established. B. Has the Band provided a reasonable explanation? (i) The 2004 Competition [45] The Band did not lead any evidence that could provide any explanation, let alone a reasonable one, to justify the prima facie case of discrimination that the Commission and Ms. Deschambeault established. [46] The Band called three witnesses at the hearing, Chief Walter Sewap, Angus Mackenzie, and Raymond Chaboyer. Chief Sewap was elected to his post in April 2005, just prior to the 2005 competition. He testified that he could not give any information regarding the 2004 competition because he was not on the Band Council at the time. Mr. Mackenzie was first elected to Council in April 2005. He did not provide any evidence regarding the 2004 competition. [47] Raymond Chaboyer was a member of the Band Council at the time of the 2004 competition. He did not sit on the interview panel that assessed the candidates for the facilitator position that year. This witness often confused the 2005 competition with the 2004 competition when giving his evidence. When ultimately pressed in cross examination to state who had placed first in the competition of 2004, he could not recall. When asked why the Band Council did not hire Ms. Deschambeault in 2004 despite her having been recommended by the interview panel, he could not remember, claiming it was too long ago. In the end, Raymond Chaboyer’s evidence provided no explanation whatsoever for the decision not to hire Ms. Deschambeault in 2004, a decision that I have found was prima facie discriminatory. [48] In its final written submissions, filed after the hearing had ended, the Band made several arguments based on the documentary evidence regarding the 2004 competition. It pointed to a number of discrepancies in the scoring documents (questionnaires) regarding the 2004 competition that were filed in evidence. Some interviewers apparently wrote down scores for several of the questions while others did not. This allegedly resulted in certain applicants obtaining higher scores than others for no apparent reason. It was also alleged that one or more interviewers abandoned scoring on a scale of 1 to 4, and gave overall percentile rankings. Lisa Cook and another panellist allegedly gave more points to Ms. Deschambeault for not having a criminal record than to the other candidates. In addition, not all of the questionnaires were signed by the panel members. [49] These explanations are in my view simply pretextual, if not just mere afterthoughts on the part of the Band, produced in a belated effort to come up with an explanation. Most of these inconsistencies were never even raised with any of the witnesses. Lisa Cook was not asked any questions about why she allegedly scored the candidates’ absence of any criminal backgrounds differently. The other inconsistencies were barely explored in the Band’s cross examination of the Commission’s witnesses. These points were certainly not broached with the Band’s witnesses. [50] More importantly, no evidence was led in any way demonstrating that these alleged inconsistencies were even put before or considered by the Band Council in 2004 when it decided to reject the committee’s recommendation and hire Ms. Cramer instead of Ms. Deschambeault. [51] The Band argued that Ms. Laliberte was mistaken in her evidence regarding a councillor who stated that a Band member should be preferred for hiring. The discussion, it is alleged, related to the appointment of a health director, not the facilitator. The Band also raised the possibility that other discussions were held at that council meeting to which Ms. Laliberte was not privy. I have no evidence, however, to support either assertion. There is no indication what those alleged other discussions were. The Band was not even able to produce the minutes that Ms. Laliberte recorded of that Council meeting. Thus, there is basically no evidence before me to contradict Ms. Laliberte’s testimony. [52] In fact, I am left with no evidence whatsoever to explain why the Band made the decision not to hire Ms. Deschambeault, despite the interview panel’s recommendation. I have already determined that a prima facie case of discrimination has been established. In the absence of any explanation, I find that Ms. Deschambeault’s human rights complaint with regard to the 2004 competition has been substantiated. (ii) The 2005 Competition [53] Given my finding that Ms. Deschambeault’s complaint with respect to the 2004 competition has been substantiated, discussion about the 2005 competition is in a sense moot. The facilitator’s position for which she competed in 2004 was to have been for a two-year term. There is no evidence before me to suggest that Ms. Deschambeault would not have completed her term, had she been hired. Ms. Cramer resigned from the position for personal reasons about eight months after being hired. She claims that she felt compelled to leave because of an unhealthy work environment and harassment from one or more councillors. She felt that Council did not cooperate with her, partially because she was considered an activist and trouble-maker within the community. The Band argued that she simply quit in order to run for Council, as demonstrated by her decision to reapply for the same position in 2005 after she failed to win a seat. Whichever view best reflects reality, there is no reason to believe that Ms. Deschambeault would have resigned her post before the end of the term. Therefore, there would not have been any need for a competition in 2005. [54] Besides, I find that the Band’s explanation for not hiring Ms. Deschambeault in 2005, in spite of the recommendation of the interview panel, is not reasonable on the evidence or is otherwise just a pretext to justify the discriminatory practice. [55] The Band argued that the role of the interview panel in 2005 was merely to provide the Band’s council with a recommendation, which was not binding on the Band. Council was to reserve the right to come to its own decision regarding the successful candidate. Chief Sewap testified that Council had overruled other such hiring recommendations in the past, a point that was also confirmed by Lisa Cook. [56] However, in the context of the present human rights complaint, this argument is irrelevant. While it may be within the Band Council’s discretion to appoint whomever it wishes, and even reject an interview panel’s recommendation, it cannot do so on the basis of discriminatory grounds. If a prohibited ground constitutes even one of several factors in its decision, then the Band will have run afoul of the CHRA (see Holden, supra). Thus, it is unsatisfactory for a respondent to simply argue, in answer to a prima facie case of discrimination, that the ultimate decision rested with the Band Council and that it had every right in its discretion to hire whomever it wished. In the face of the evidence led in this case tending to show that the Complainant was the most qualified, it was incumbent on the Band to at least lead some evidence suggesting that Clara Cook was more qualified or otherwise explaining why she was selected over Ms. Deschambeault. [57] The Band alluded to the discrepancies in the 2005 scoring process referred to earlier (the total score of 74 on 70 given by Ernest Chaboyer and the elder’s participation in the scoring). Raymond Chaboyer claimed he had difficulty accepting the scoring results. Chief Sewap said he had concerns as well. They both claimed that these concerns were factors in the Band Council’s hiring decision. Yet, no further elaboration was given about the Council’s deliberations. What factors were actually considered by Council? How were the candidates assessed if the interview panel’s recommendations were discounted or discarded? When the discrepancies were identified, why did Council not send the matter back to the interview panel for reassessment? As I mentioned earlier, if the Band had concerns about the discrepancies, eliminating the scores affected by them would have still yielded the same result: Ms. Deschambeault would emerge as the clear leader, ahead of both Ms. Cramer and Clara Cook. So why was Clara Cook selected? Moreover, if the discrepancies gave rise to general doubts about the overall reliability of the process, on what basis did the Band actually make its decision to select Clara Cook over the others? No answer was provided to any of these questions in the evidence. [58] Raymond Chaboyer’s evidence was particularly weak in this regard. He frequently confused the 2004 process (in which he would have not had any involvement other than as a councillor) with the 2005 process (in which he participated as an interview panellist and later as a member of Council). He professed to have no faith in the process, claiming that Lisa Cook had made up the questionnaires, which were just handed to him and the panellists. Lisa Cook and Chief Sewap testified, however, that the questions had been approved by the Band Council in advance. Raymond Chaboyer also testified that due to his lack of any faith in the process, he did not bother scoring anyone at all. However, the tally sheet with the panel’s scores that was brought back to Council shows that Raymond Chaboyer did participate in the scoring. He acknowledged in cross examination that he did not remember if he scored people. [59] It should be noted, in passing, that Clara Cook is Raymond Chaboyer’s sister. The tally sheet shows that he did not participate in the interview panel’s scoring regarding her candidacy. There is no evidence of whether he recused himself from discussions at Council about her candidacy, but the minutes show that one unnamed councillor abstained. [60] The Band argued that while the memory of Raymond Chaboyer may have been less than perfect, there is nothing to suggest his credibility or honesty was compromised. The witness’ honesty is not what is in issue here, however, but rather whether his testimony contributes any evidence to support the Band’s answer to the prima facie case of discrimination. In this regard, his less then perfect memory seriously weakens his evidence such that very little weight can be assigned to it. [61] I am not persuaded by the Band’s explanation regarding the impact of these scoring discrepancies. There is hardly any evidence before me to support the contention that they were even considered by Council in its decision. As I just explained, Raymond Chaboyer’s testimony carries almost no weight. Chief Sewap’s evidence in this regard is called into question by his failure to elaborate on how the alleged scoring discrepancies were dealt with by Council and what factors were in fact considered in deciding to hire Clara Cook. In my view, the Band’s explanation has not been established. [62] Moreover, even if it were demonstrated that the Band Council did turn its mind to these scoring discrepancies, the questions about why Clara Cook was selected over Ms. Deschambeault remain unanswered, as I mentioned earlier. Thus, I find that the evidence about the scoring problems do not constitute a reasonable answer to the prima facie case of discrimination, which leads me to conclude that the Band has raised them simply as a pretext to justify the Band’s discriminatory practice. [63] Ms. Deschambeault’s complaint with regard to the 2005 competition has therefore also been substantiated. C. Is the Band’s decision immune from the operation of the CHRA due to s. 67? [64] The Band contends that irrespective of my findings regarding the facts alleged in Ms. Deschambeault’s complaint, its decision regarding the facilitator’s position is immune from the operation of the CHRA, pursuant to s. 67, and that in turn, the matter at issue in this case falls beyond the jurisdiction of the Canadian Human Rights Tribunal. I am not persuaded by the Band’s submissions in this regard. [65] Section 67 provides as follows: Nothing in this Act affects any provision of the Indian Act or any provision made under or pursuant to that Act. La présente loi est sans effet sur la Loi sur les Indiens et sur les dispositions prises en vertu de cette loi. [66] It is common ground that the Cumberland House Cree Nation is a band within the meaning of the Indian Act, R.S.C. 1985, c. I-5. In order to invoke s. 67, a band must demonstrate that the sections of the CHRA that are engaged by the Tribunal’s inquiry into the complaint, will affect a provision of the Indian Act or a provision made under or pursuant to the Indian Act. The term provision made under or pursuant to the [Indian] Act in s. 67 encompasses any decision made under or pursuant to the Act (see Re: Desjarlais (1989), 12 C.H.R.R. D/466 at para. 10 (F.C.A.)). In my view, the Band has failed to establish this link. [67] The Band argues that the facilitator’s position was created for and directed at the health of the Band’s members who have suffered from the legacy of the residential schools system. Such health concerns, it is contended, land squarely under the responsibility of the Band’s Council, which has the authority to deal with such issues via the Indian Act. In particular, the Band refers to the authorities listed in s. 81(1) of the Indian Act, including the authority to provide for the health of residents on reserve (s. 81(1)(a)), and with respect to any matter arising out of or ancillary to the exercise of powers under s. 81(1) (s. 81(1)(q)). [68] This argument is, however, misleading. Section 81(1) does not set out the authorities of a band per se but rather the purposes for which a band may make by-laws. The list of purposes is set out in ss. 81 and following is quite extensive and wide ranging. It includes the above noted provision of health care to residents on reserve, but also the regulation of traffic, the observance of law and order, the construction and maintenance of roads, bridges and other local works, the survey and allotment of reserve lands, taxation and licensing of businesses, appropriation and expenditure of money, and many other areas. In the present case, there is no evidence that the Band adopted any by-law with respect to any of the decisions relating to the agreement with the Aboriginal Health Foundation and the decisions regarding the staffing of the facilitator position. [69] I do not agree with the Band’s contention that its mere capacity to adopt by-laws with respect to these matters gives rise by implication to the s. 67 exception. The Federal Court of Appeal decision in Re: Desjarlais, supra at para. 12, suggests that at the very least, a by-law must have been adopted pursuant to ss. 81 and following of the Indian Act, to be relied upon by a band raising a s. 67 CHRA defence. There is an obvious rationale to this finding. Were each of the wide-ranging purposes listed in ss. 81 and following to constitute a provision within the meaning of s. 67 even where no by-law had been adopted, the effect would be to shield practically all band council decisions from the operation of the CHRA. Such an interpretation would not be consistent with the principle articulated in Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321 at 339, that exceptions to human rights legislation must be narrowly construed. [70] As the Federal Court stated in Shubenacadie Band Council v. Canada (Human Rights Commission) (1997), 31 C.H.R.R. D/347 at para. 29, aff’d 2000 CanLII 15308 (F.C.A.), if it was Parliament's intention to immunize all decisions of Indian band councils from the overview of the CHRA, Parliament would have expressly so provided rather than enacting s. 67. Section 67 immunizes decisions authorized by the Indian Act and its regulations, but not all decisions made by Indian band councils. [71] The Band claimed that the Shubenacadie case can be distinguished from the present one because the government funded social assistance payments that had been denied to the complainants in that case were deemed to be customarily available to the complainants within the meaning of s. 5 of the CHRA and thus guaranteed to them. In the present case, it is argued, the Band had the authority under its agreement with the Foundation to fill the facilitator’s position at its discretion. Ms. Deschambeault had no guaranteed right to the job. I fail to see the relevance of this distinction to the question of whether the Band can rely on s. 67. [72] In support of its submissions on s. 67, the Band relied on the findings of the Federal Court of Appeal in Canada (Human Rights Commission) v. Gordon Band (Council), [2001] 1 F.C. 124 (Laslo). In my view, the Band’s reliance is misplaced. In that case, the complainant was a status Indian who lived on the Gordon First Nation Band Reserve with her non-Indian spouse. Her request for housing from the band was denied and she filed a complaint alleging discrimination based on sex and family status. The respondent raised s. 67 of the CHRA in its defence. Just as in the present case, the Gordon Band had not adopted any by-law regarding the matter at issue there (i.e., allocation of housing), namely, a by-law pursuant to s. 81(1)(i), which authorizes the making of by-laws for the survey and allotment of reserve lands among band members. [73] The Federal Court of Appeal agreed with the Tribunal’s finding that it lacked jurisdiction to hear the case. The Court held, at para. 26, that s. 67 applies to decisions that, by virtue of their subject matter, are within the authority expressly granted by a provision of the Indian Act. The band’s decision in that case was found to be expressly authorized under s. 20 of the Indian Act. Section 20 provides that no Indian is lawfully in possession of land in a reserve unless, with the approval of the Minister, possession of land has been allotted to him by the council of the band. [74] The Court found that by necessary implication from the words of this provision, the band council had the authority under the Indian Act to decide at its discretion whether to allot land to a given band member. The recognition of this authority under s. 20 therefore necessarily implied that such decisions would be made under or pursuant to the Indian Act. That was the basis for the Court’s decision in favour of the band in Laslo. I note, however, that the Court did not state that a band’s mere capacity to pass by-laws under ss. 81 and following constitutes an expressly granted decision making authority under the Indian Act. [75] In contrast to Laslo, the Band in the present case has not identified to the Tribunal any similar provision in the Indian Act granting the Band express decision making authority relating to the staffing of the facilitator position in this case. The Band, in its final submissions, referred to its internal Regulations respecting the Personnel Management of Cumberland House Cree Nation Programs / Institutions /Corporations, which the Band allegedly adopted pursuant to the inherent and legally recognized right of First Nations to function as employers. The Band argues that these regulations are evidence of a similar authority as considered in the Gordon matter. However, these regulations were never tendered in evidence before the Tribunal. More importantly, other than the Band’s blanket contention of a similar authority as in the Gordon case, no link to any specific provision of the Indian Act has been identified as the source of this similar expressly granted decision making authority. [76] In sum, therefore, I am not persuaded that the Band Council’s decision regarding the staffing of the facilitator position, under its agreement with the Aboriginal Health Foundation, was made pursuant to an authority expressly granted by a provision of the Indian Act. Consequently, the Band’s claim for immunity under s. 67 of the CHRA has not been substantiated. III. What remedies are Ms. Deschambeault and the Commission seeking?A. Lost wages (s. 53(2)(c)) [77] Section 53(2)(c) of the CHRA provides that a victim may be compensated for any and all wages that she was deprived of as a result of the discriminatory practice. Ms. Deschambeault testified that the annual salary for the facilitator’s position was $40,000. The Band did not lead any evidence to the contrary. Had Ms. Deschambeault been hired in 2004, she would have worked six months in that year. Instead, she remained employed in her existing job at the Pine Island Health Centre, where she continued to earn a lower income. Her lost wages resulting from the Band’s failure to hire her in 2004, therefore, are as follows: 2004: - $20,000 (Facilitator salary for remainder of 2004). $11,250 (Income actually earned for remainder of the year) $ 8,750 2005: - $40,000 (Facilitator’s annual salary) $21,828 (Income actually earned) $18,172 2006: - $20,000 (Facilitator salary until the end of the term) $14,063 (Income actually earned to the same date) $ 5,937 Total lost wages: $32,859 The Band is therefore ordered to pay Ms. Deschambeault the sum of $32,859 as compensation for lost wages. B. Expenses Incurred (s. 53(2)(c)) (i) Expenses related to training [78] A victim may be compensated for any expenses incurred as a result of a discriminatory practice (s. 53(2)(c)). According to the Band’s agreement with the Aboriginal Health Foundation, the facilitator was to receive some training, described as 24 1-week train the trainer healing modules. Ms. Deschambeault claims that these modules would have provided her with sufficient education and training experience to maintain employment in any human services related field. Having been denied the opportunity to gain this training, she made the choice to leave her employment at the Pine Island Health Centre and move, in 2005, to Saskatoon where she enrolled in the Criminal Justice Program at Regency College. There was, however, also some indication in the evidence that her employment with the health centre would have ended in any event if she did not take steps to improve her academic qualifications. There had been a changeover in management and new employment policies had been adopted. [79] Ms. Deschambeault finished the program in 2006 and decided to follow up by completing the Addiction Counselling Diploma Program being given by the Saskatchewan Institute of Applied Sciences and Technology. This required that she move again, to Prince Albert this time. [80] Ms. Deschambeault is therefore claiming from the Band the expenses that she incurred relating to this training, including tuition, housing, and vehicle expenses. I am not persuaded, however, that the modules she would have followed as a facilitator are equivalent to the education that she has actually received since 2005, one that has enabled her to gain new employment, in 2008, at a health facility in Montreal Lake, Saskatchewan. Ms. Deschambeault very responsibly chose to turn the misfortune brought upon her by the Band into an opportunity to improve her academic qualifications and experience. For this, she must be commended. However, the expenses related to her decision are not as a result of the Band’s discriminatory practices, within the meaning of s. 53(2)(a) of the CHRA. Consequently, she is not entitled to be compensated by the Band for these expenses. (ii) Other expenses [81] Ms. Deschambeault has incurred some expenses as a result of the discriminatory practices that led to the filing of her complaint. These include: Photocopy costs $150.00 Administration costs, binders (i.e. stationery) $ 48.98 Travel costs from the Northern Village of Cumberland House to Prince Albert and back to attend a mediation session (for herself and Ms. Cramer who accompanied her at the mediation) $547.60 Accommodation and meals at the mediation $ 84.00 Total: $830.58 [82] Ms. Deschambeault is entitled to be compensated by the Band for these expenses that she incurred as a result of the discriminatory practices leading to the filing of the present human rights complaint. [83] However, I am not persuaded, on the evidence, that the she incurred the costs that she is claiming regarding the rental of a laptop computer. This expense claim is denied. [84] In addition, there are no exceptional circumstances in this case to justify awarding Ms Deschambeault compensation for the time that she has spent preparing her case (see Canada (Attorney General) v. Lambie (1996), 29 C.H.R.R. D/483 at para. 41 (F.C.T.D.). C. Pain and Suffering (s. 53(2)(e)) [85] A victim of a discriminatory practice may be compensated up to $20,000 for any pain and suffering that she experienced as a result. Ms. Deschambeault testified about the sadness and disappointment she felt at being turned down for a job that she longed to do and for which she felt herself more than competent to perform. It was particularly painful to learn that she was denied this opportunity because she was not a member of the Cumberland House Cree Nation. She also expressed disappointment that she was unable to contribute, as she felt she could, to the healing process within the community, which essentially includes both the Village and the reserve. Their residents not only share institutions like schools and arenas, they live side by side with each other, Métis and First Nation alike, particularly within the Village. She testified that she no longer feels at home within the community in which she grew up. [86] In all of the circumstances, Ms. Deschambeault is entitled to be compensated for her pain and suffering in the amount of $8,000. D. Special compensation (s. 53(3)) [87] Section 53(3) provides that the Tribunal may order a respondent to pay up to $20,000 in compensation to the victim if the respondent is found to have engaged in the discriminatory practice wilfully or recklessly. In my view, there is evidence that the Band acted recklessly in committing the discriminatory practices in this case. It opted to deny Ms. Deschambeault the employment opportunity for which she otherwise was qualified and should have received – as the first ranking candidate – because she was not a Band member. No other reason was given in the evidence. The Band has maintained an attitude that it can do as it pleases, claiming that it has every right to appoint whomever it so chooses, as if it can function above the human rights of others. [88] In the circumstances, I order the Band to pay Ms. Deschambeault $5,000 in special compensation pursuant to s. 53(3). E. Interest [89] Interest is payable in respect of all the awards made in this decision (s. 53(4) of the CHRA). 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. The interest shall run from the date of the complaint with respect to the compensation for lost wages, pain and suffering and special compensation. The interest regarding the compensation for expenses, which were apparently incurred after the complaint was filed, will run from the date of this decision. F. An order for measures to redress the discrimination and prevent its recurrence (s. 53(2)(a)) [90] The Commission has requested an order pursuant to s. 53(2)(a) of the CHRA requiring the Band to work with the Commission to ensure that future hiring practices conform with the CHRA. Given my findings in this case, the order is warranted. The Commission’s request is granted. [91] The Band is ordered to take measures, in consultation with the Commission on the general purposes thereof, to prevent the same or similar discriminatory practices from occurring in the future. Signed by Athanasios D. Hadjis Tribunal Member Ottawa, Ontario November 4, 2008 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1253/6507 Style of Cause: Valerie Deschambeault v. Cumberland House Cree Nation Decision of the Tribunal Dated: November 4, 2008 Date and Place of Hearing: June 2 to 4, 2008 Prince Albert, Saskatchewan Appearances: Valerie Deschambeault, for herself Daniel Poulin, for the Canadian Human Rights Commission Christopher K. Hambleton and Thomas J. Waller, for the Respondent

2008 CHRT 49

CHRT

London v. New Brunswick Aboriginal Peoples Council

en

2008-12-30

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6670/index.do

2023-12-01

London v. New Brunswick Aboriginal Peoples Council Collection Canadian Human Rights Tribunal Date 2008-12-30 Neutral citation 2008 CHRT 49 File number(s) T1203/1507, T1204/1607 Decision-maker(s) Doucet, Michel Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DORITS DE LA PERSONNE EVELYN LONDON Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - NEW BRUNSWICK ABORIGINAL PEOPLES COUNCIL - and - BARRY LABILLOIS Respondents DECISION 2008 CHRT 49 2008/12/30 MEMBER: Michel Doucet I. INTRODUCTION II. THE FACTS A. The lobster distribution incident B. Incidents at the workplace C. The office cleanup D. Personality test E. The moving of furniture F. The last confrontation III. THE LAW IV. ANALYSIS OF THE FACTS A. Was the Impugned Conduct Related to the Complainant's race, or national or ethnic Origin? (i) The lobster distribution incident (ii) Incidents at the workplace (iii) The office cleanup (iv) Personality test (v) The moving of furniture (vi) The last confrontation (vii) Conclusion B. Was the Impugned Conduct Unwelcome? C. Was the Impugned Conduct Serious or Repetitive Enough? V. CONCLUSION VI. ORDER I. INTRODUCTION [1] On May 30, 2005, Evelyn London (the complainant) filed two complaints before the Canadian Humans Rights Commission. One complaint alleges that the New Brunswick Aboriginal Peoples Council (NBAPC) discriminated against her in violation of Sections 7 and 14 of the Canadian Human Rights Act (the Act). The other complaint, filed against Barry LaBillois, the complainant's supervisor at NBAPC, alleges that he discriminated against her in violation of section 14 of the Act. Both complaints allege that the respondents engaged in a discriminatory practice on the ground of race, national or ethnic origin. [2] The respondents deny the complainant's allegations. [3] The parties were represented by legal counsel at the hearing. The Canadian Human Rights Commission did not attend the hearing. II. THE FACTS [4] The complainant is of both Maliseet and Micmac ancestry. Maliseet and Micmac are the two largest aboriginal communities in the province of New Brunswick. [5] The respondent, NBACP, was created in 1972. It represents off reserve or non status aboriginals and Métis people of New Brunswick. The organization includes aboriginals of Micmac, Maliseet, Ojibway, Passamaquoddy and Cree ancestries. To become a member of NBAPC a person must self identify as an aboriginal person and provide documentation to establish his aboriginal origins. Non status aboriginals would have to provide a birth certificate establishing that one of their parents is of aboriginal ancestry. [6] NBAPC consists of locals comprising various communities of aboriginals living off reserve. According to its charter, a local of NBAPC can be established when five aboriginal members reside in a given geographical area. These individuals must not live more than ten kilometers apart. Various locals make up zones. There are seven zones in New Brunswick. Each zone elects a representative to the council of NBAPC. The president of the council is also known as the Chief. Betty Ann Lavallee has been president and Chief of NBAPC since 2000. The complainant was a member of NBAPC from late 1970 until 2002 when she gave up her membership. [7] Barry LaBillois is of Micmac ancestry and was, at all times relevant time to this matter, an employee of NBACP. More specifically, he occupied the position of Aboriginal Fisheries Coordinator. [8] The complainant was hired as a secretary/bookkeeper with NBAPC for its Aboriginal Fisheries Program on June 19, 2000. Her job was to assist the Supervisor of the Aboriginal Fisheries Program. Between June 19, 2000 and August 2001, Phillip Fraser was her Supervisor. [9] In August 2001, after Phillip Fraser left NBAPC for other employment, the respondent, Barry LaBillois, took over the position of Supervisor. On January 24, 2002, the complainant was offered a position as Aboriginal Fisheries Monitor. Chief Lavallee testified that she had explained to the complainant that she would also hold the position of secretary/bookkeeper until somebody could be found to fill that position. The complainant did not, at that time, raise any concerns about being supervised by Barry LaBillois. [10] The complainant stated that her working relationship with Barry LaBillois was not a good one. She added that he had told her that he was the boss and that she should do as she was told with no question asked. She also testified that before he became her supervisor, she had heard him make disparaging remarks against Maliseet but she was unable to say when these remarks had been made, except for one incident to which I will refer to later. A. The lobster distribution incident [11] The first incident the complainant specifically referred to as being harassment occurred in September 2001 during the preparation of lobsters for distribution to members of NBAPC. This incident happened outside of the workplace at the home of Carol LaBillois-Slocum, the sister of Barry LaBillois. Carol LaBillois-Slocum was then the communication officer of NBAPC. She now holds the position of vice-chief. [12] The complainant said that, as part of her job, Barry LaBillois had requested her to be present. Another coworker, Jason Harquail was also present. As were Carol LaBillois-Slocum, her husband and Barry LaBillois. [13] The complainant's task on that day was to cook the lobster and to put them in a walk-in cooling unit so that they would cool down. [14] According to the complainant, everybody present was drinking alcohol except her. She said that at one point, Carol LaBillois-Slocum pressured her into having a drink and even slapped her in the face telling her to get with it. Carol LaBillois-Slocum was present at the hearing when the complainant gave her evidence. She was also listed on the respondents' witness list but was never called as a witness. [15] At one point during the evening, while she was putting lobster in the walk-in cooling unit, Barry Labillois closed the door of the unit, locking her inside. The complainant said that she panicked and started beating on the door, yelling for someone to let her out. When asked if somebody else was inside the unit with her, she answered that she did not remember. According to her recollection, this incident, lasted for a couple of minutes. Eventually, Barry LaBillois opened the door and let her out. She added that he was laughing. The complainant did not say anything to him and headed inside the house. [16] During her cross-examination, the complainant testified that Mr. LaBillois had done this because she was a Maliseet and that this was leading up to what occurred later on in the evening. Barry LaBillois said that this was all done as a joke and that the complainant was not alone in the walk-in cooling unit but that Jason Harquail had also been locked in with her. He said that when the door was unlocked both the complainant and Jason Harquail were laughing it off. When asked about this, Jason Harquail said that he did not remember anything particular about that evening and he never referred to the cooling unit incident. [17] The complainant further testified that at one point during the evening, Barry LaBillois said that Maliseet were an inferior race and that they were slow and slow speaking. She said that she told him that he should not be saying things like that and that his response was it was true. But during her cross-examination, she agreed that this was the first time that she had mentioned that Barry LaBillois had replied to her comment and that since LaBillois alleged response that it was true had not been written in her complaint then the chances were that it had not been said. [18] Asked if he had made these comments, Barry LaBillois answered: I say it never happened. I never made any comments about Maliseet that evening. [19] The complainant never complained about these incidents to anyone at NBAPC. She explained that she was afraid to lose her job considering Barry LaBillois' position at NBAPC. B. Incidents at the workplace [20] The complainant also testified to various incidents which occurred at the workplace. She said that, on numerous occasions, Barry LaBillois would come out of his office and tell her that it was evident that Maliseet were inferior since he had read it on the Internet. Questioned further about these incidents, she specified that it had only happened once, during the year 2002 (she couldn't be more specific), after she had obtained the position of Aboriginal Fisheries Monitor. [21] The complainant also referred to an incident which occurred when Phillip Fraser was the supervisor. She said that Barry LaBillois had then made a remark about Maliseet in the presence of Mr. Fraser. She did not indicate what this remark was. On cross-examination, the complainant admitted that this matter had been resolved and dealt with. [22] Also on cross-examination, she mentioned remarks that Barry LaBillois made where he described Maliseet as slow speakers, stupid and incapable of following instructions. She added that these comments made her feel uncomfortable and that whenever she told him how she felt, this would only make matter worse. She testified that he would slam doors and make her work through her lunch hours. The complainant was not able to indicate when these incidents occurred and her testimony was the only evidence to support her allegations. She agreed that these incidents were never brought to the attention of her employer before July or August 2002. [23] The complainant also stated that Chief Lavallee had once referred to her as a Mal-i-Mic which she felt constituted discrimination. Chief Lavallee explained that she used this expression to refer to the fact that the complainant had both Maliseet and Micmac ancestry. Chief Lavallee also indicated that NBAPC's newsletter is named The Mal-i-Mic. [24] The complainant recalled other incidents where Barry LaBillois would throw things - erasers, pens, coffee cups - at her from his office in order to get her attention. She also said that he would refer to her as Eleanor or Magoo and not by her real name. She added that she had told him that she wanted to be called by her name, but that did not seem to make any difference. The complainant testified that she did not appreciate him calling her by those names. She further added that she had never heard him refer to other employees by any name other than their own. The complainant admitted that the fact that Barry LaBillois called her Eleanor did not constitute discrimination but that it was nonetheless humiliating. I note that Monique Myrshrall, a co-worker of the complainant, testified that Mr. LaBillois would call everybody by different names and that Ms Myrshrall would also refer to him as Bartholomew. [25] Monique Myshrall recalled another incident that occurred in a hotel room in Bathurst, New Brunswick. No dates were given for this incident. Monique Myshrall said that she had heard Barry LaBillois and Carol Labillois-Slocum say that the complainant was slow to learn and stupid. Barry LaBillois denied making these comments, which he attributed to his sister. Although these comments are humiliating and certainly highly inappropriate coming from a supervisor, nothing in Ms Myshrall's evidence indicates that they referred to the racial, national or ethnic origin of the complainant. [26] Barry LaBillois admitted that on occasion he had referred to Maliseet as muskrat eaters. He said that it was common knowledge along the Saint John River that Maliseet ate muskrat. He added that he thought this was funny and that he was just joking when he made the comments. Pushed a little further by the complainant's lawyer, he never directly denied making other comments which he was not asked to specify neither in direct nor in cross-examination. He added that they were all made in good humor. He also added that the complainant never told him that she did not like him making those comments. C. The office cleanup [27] Around May 31, 2002, everybody at NBAPC was asked to participate in a cleanup of the office. The complainant said that while she was outside tying up pieces of wood in the back of a truck, Barry LaBillois told her don't you know anything about tying down brushes. You Maliseet do not seem to know how to do much. She added that these comments made her feel worthless. Asked if somebody else had heard these comments, she said that Monique Myrshrall was just walking into the building when they were made, but she doubts that she was close enough to have heard them. Barry LaBillois testified that he didn't recall making any comments about Maliseet on that day. D. Personality test [28] Around mid-April 2002, Barry LaBillois went to Banff, Alberta, for a couple of days, to take a management course. While there, he picked up a questionnaire, which he claimed was as a personality test. [29] In May 2002, he required that all the employees under his supervision complete the questionnaire. After they had completed the questionnaire, he proceeded to review and rank them based on their answers. Some time later, according to the complainant, Jason Harquail, Monique Myrshrall and herself were met with Barry LaBillois to discuss the tests results. The complainant said that, in front of all her coworkers, Barry LaBillois told her that her results showed that she was the odd one and that she had no backbone. She added that these comments made her feel uncomfortable, but she did not say anything at that time. According to her, no other employees received negative reviews in this exercise. Neither the test results, nor the questionnaire were entered into evidence. [30] Monique Myrshrall, although she recalled having been administered the questionnaire, did not remember any comments made by Barry LaBillois regarding the complainant's test results. E. The moving of furniture [31] NBAPC bought a workstation for the complainant. The complainant was told by Barry LaBillois to assemble it, which she did. Afterwards, he told her that she might have forgotten that she was left-handed and that the desk had been put together on the wrong side. She was told to make the necessary adjustments. [32] Barry LaBillois also told the complainant to put the desk facing the back wall, which meant that the complainant would have her back to the front door. The complainant said that she did not feel safe with this arrangement because sometimes clients would come in a little upset and she would prefer facing them rather than having her back to them. Without the prior consent of Mr. LaBillois, the complainant and Monique Myrshrall decided to rearrange the orientation of the workstation. They swung the workstation around so that it would face the door and not the back wall. They felt that this arrangement was more workable and professional. [33] When Barry LaBillois returned to the office, he took a look at the new arrangement and yelled at the complainant to come into his office. According to the complainant, he then told her: What the hell do you think you are doing? I want the workstation to be put back as I had told you to. She said that she tried to explain to him why the changes had been made, but he did not want to hear any of this. Mr. LaBillois testified that he had never agreed to these changes. [34] Chief Lavallee also testified about this incident. She said that she knew that the office furniture had been moved around in spite of the fact that the employees had been told not to do it. She also had been advised by the chief of operation that one of the desks had been damaged. Chief Lavallee called Barry LaBillois in her office and asked him what he was going to do about it. She informed him that he was the supervisor and that if he gave orders to his employees and they were not obeying them, then he needed to take control of the situation. F. The last confrontation [35] Funding having ran out for the Fish Monitoring Program, all of the employees were laid-off on July 3, 2002. [36] The complainant was recalled to work on July 15, 2002 when new funding became available. She said that Barry LaBillois came to her house to inform her that she would be recalled. She added that he had also apologized for what his sister had done to her. According to the complainant, he was referring to an incident which had occurred in the conference room at some point in June 2002. The complainant was there having lunch with four or five individuals when Carol LaBillois-Slocum came in. When she saw the complainant, she said please let me know when Evelyn is not here eating any longer because I lost my appetite. Barry LaBillois was not present when these comments were made. [37] Barry LaBillois confirmed that he had made arrangements to go to the complainant's home. He said that the complainant and her husband had a car for sale and that he wanted to check it out. During that visit, he informed the complainant that funding for the program had been reestablished and that she would be recalled to work. At the hearing, Mr. LaBillois was not asked and never testified about the alleged incident between the complainant and his sister. [38] The complainant testified that she was disappointed when she learned that she was going to be recalled. She added that she did not want to go back to work at NBAPC because of the way she had been treated. But, nonetheless, she did return. [39] The last confrontation between the complainant and her supervisor occurred on July 17, 2002. On that day, the complainant was instructed by Barry LaBillois to contact NBAPC's fishers to inform them of a Department of Fisheries and Oceans variance order. She said that she went down the list of fishers but was unable to contact any of them. She then went to Barry LaBillois' office and told him that she was unable to reach the fishers. According to her, Barry LaBillois blew up, started swearing at her and told her to go back to work and do as she had been told. He then told her to get out of his fucking office. [40] In a letter of complaint she wrote to Chief Lavallee on August 23, 2002, the complainant was more explicit about the exchange she had with her supervisor on that day. She wrote: I went into Barry's office after lunch to inform him of the results of the phone calls [...] He cut me off short and stated to me on what he wanted done. I tried again to make him aware of the outcome of what he wanted done and he cut me off again. He again continued to state on what he wanted done. I said I know what you wanted done, I only want to let you know how it is going with it. So I finally got the nerve and asked him if he has a problem with me. Barry said sit down, if I didn't want to hear what he had to say to get the fuck out of his office. I again said it seems to me that clearly there is a problem with me and I want to know what it is (as I was closing the door for privacy). He said there were a lot of things. He then said I had been always defying his authority by moving the office desk around. I said it wasn't my idea. He said I told you how I wanted to have the desk. I said that was all ready taken care of a long time ago. He said What about talking to Betty Ann. I said I hardly talk to her, do you want me to sit in the smoke room and say nothing in the mornings while there is only her and I there. We then got back to what the outburst was about. He started by saying If I wanted to ask questions, everyone has the opportunity to ask questions at the end of staff meetings, I said how will I know about what you want me to do if I can't ask questions on it? He started to calm down and explained to me that he has been upset. He then talked to me in a more relaxed manner. The screaming match was over. I found out what I needed to know and went back into my office. [41] Chief Lavallee, in her evidence, confirms that on the morning of July 17, 2002, she had instructed Barry Labillois to get in touch with the NBAPC's fishers and to get them off the water. On that same morning, while she was smoking a cigarette, she said she overheard the complainant and Monique Myrshrall talking in the smoke room. According to her evidence, they were making derogatory remarks about Barry LaBillois. They felt that he did not know what he was doing and that they should not have to call the individual fishers. Chief Lavallee called Barry LaBillois to her office and told him he had to get a grip on his employees. She told him that she was not impressed with the conduct of his employees and that he was not behaving as a supervisor should behave. [42] According to Barry LaBillois, after his meeting with Chief Lavallee, he returned to his office. He added that he then called the complainant into his office and told her that she had to contact the individual fishers. The complainant told him that she had tried but could not reach some of them. Mr. LaBillois said that he told her to keep trying because it was important that they be told about the situation on that day. They argued back and forth, until the point where Barry LaBillois blew up: I had enough of it and basically lost it and told her to get the fuck out of the office. He added that he did not have any other interaction with the plaintiff after she left his office. [43] At the hearing, the complainant testified that when she left Mr. LaBillois' office she did not return to her workstation but went upstairs to speak to Chief Lavallee. She added that this was the first time that she had decided to talk to Chief Lavallee about the incidents with her supervisor. When she got there, Chief Lavallee was busy on the phone and she was asked to return after lunch. At the hearing, she testified that this had happened in the morning and that her first attempt to speak with Chief Lavallee occurred also in the late morning. But I note that in her letter of August 23 she states: Being employed only for my second day Barry [LaBillois] and we had our last confrontation after lunch. I had a scheduled appointment with the Chief after lunch, she was to let me know when she was free as she was on direct inquiries (phone) that noon hour but before the meeting my supervisor and I had it out. This last outburst led me to take the matter to Chief Betty Ann [Lavallee]. (The emphasis is mine.). [44] The recollection she has of the event in her letter is a little different than what she testified to at the hearing. First of all, she indicates in her letter that the confrontation with her supervisor occurred after lunch, while she testified at the hearing that it had happened before lunch. On cross-examination, she admitted she should have written before lunch. Nothing much really depends on this, but other discrepancies appear more significant. For example, in the letter, she refers to a scheduled appointment with Chief Lavallee. In her letter she also wrote: I had verbally reported the conduct to Chief Betty Ann Lavallee of Barry's actions although that wasn't my intention for setting up the meeting with her. (The emphasis is mine.) [45] At the hearing, the complainant did not refer to a scheduled appointment, leaving the impression that her meeting with the Chief was spontaneous and due to the incident with her supervisor. Since the letter was written about a month after the events, I find it more convincing and credible than what was said at the hearing. [46] The complainant did eventually meet with Chief Lavallee after lunch. During her direct examination, she said that she related to Chief Lavallee Barry LaBillois' attitude towards her. More specifically, she said that she told Chief Lavallee that Barry LaBillois had referred to Maliseet as being inferior. She added that she tried to explain the other incidents but just broke down. Seeing that she was upset, Chief Lavallee told her to go home for the rest of the week and get some rest. The complainant testified that Chief Lavallee told her that she would contact Barry LaBillois to see what was going on, although, according to the complainant, Chief Lavallee never suggested that there should be a meeting between her, the Chief and Barry LaBillois. The complainant added that if such a meeting had been proposed, she would have accepted immediately. [47] Regarding her exchange with Chief Lavallee she wrote in her letter: By the time I got to her office I was upset by the outburst with Barry [...]. Betty Ann asked me what was wrong. I started by asking if the offer was still there to be let go. I broke down at that point sobbing unable to say anything. I had said to Betty Ann that I feel that Barry is not very professional and I never had to work for someone like that before. He was not like that in the beginning. He has been making derogatory remarks about me as a Maliseet. At the time we were cooking for the lobster distribution around the province. I said to Barry that I was insulted by his remarks and that he was not only insulting me but my whole family. I had thought that would have been it but it didn't stop there. ... I asked if the offer to be let go from work was still available. That was the reason I wanted the meeting with her. (The emphasis is mine.) [48] According to Chief Lavallee, the complainant did not seem distressed at the start of their meeting. She recalled that the complainant sat down and asked her if she could take the offer of an early lay-off. When asked why, Chief Lavallee said that she started to say something about Barry. Chief Lavallee then told her that she had told Mr. LaBillois to call the fishers and get them out off the water. At that point the complainant started to cry. Chief Lavallee said that she then asked the complainant if she could bring Barry LaBillois up and the complainant refused. She added that every time she suggested that they sit down with Barry LaBillois to discuss the matter, the complainant would say no. This contradicts the evidence given by the complainant who testified that if it had been suggested that they all meet together, she would have accepted. [49] Seeing that the complainant was distraught, Chief Lavallee told her that it might be a good idea for her to go home and take the rest of the week off. The Chief told her that she would be talking to Barry LaBillois and that in the coming weeks they would all sit down and work things out. [50] Later on in the afternoon of July 17, Chief Lavallee informed Barry LaBillois of what had happened. [51] On July 22, 2002, the complainant said that she called Chief Lavallee to see what follow up had been made. She was told that Chief Lavallee had not yet spoken to Barry LaBillois. She added that she then told Chief Lavallee that she did not feel comfortable returning to work until the issues with her supervisor had been addressed. According to the complainant's evidence, Chief Lavallee told her that she would prepare her record of employment on which she would indicate that she was being laid off because of a lack of funding. [52] Chief Lavallee has a slightly different recollection of what happened on that Monday, July 22. She agreed that the complainant was supposed to call her but testified that she never did. Chief Lavallee first testified that she called the complainant on Wednesday, July 24, 2002, but a little later she conceded and said that it was the complainant who called her on that day. During that conversation, Chief Lavallee said that the complainant again told her that she did not want to talk to Barry Labillois. The complainant again requested that she be given her lay-off. Chief Lavallee had the complainant's Record of Employment prepared. The reason given for her lay-off was: Agreement with DFP re aboriginal fishery has not been signed therefore no money for this program. [53] On August 23, 2002, the complainant wrote a letter to Chief Lavallee. In this letter she mentions that she left her work because of a hostile workplace in which she had been the subject of discrimination and derogatory remarks made by her supervisor. She referred specifically to incidents where she alleges Mr. LaBillois said the following: that's a Maliseet for you, Maliseet are inferior, only a Maliseet would do that. She also referred to the throwing of objects and to the fact that her supervisor would call her by the nickname Eleanor. The complainant also mentioned the incident concerning the rearrangement of the office and the events leading up to the last confrontation. [54] Chief Lavallee said that the complainant's letter of August 23, 2002, was her first contact with her since July 2002. After she received the letter, she called Barry LaBillois to her office to inform him that she had received a complaint. She had a conversation with Barry LaBillois about the content of the letter. She told him that she was not impressed with the situation and that if he had done is job right, this situation would not have degenerated. She also told him that this was why supervisors needed to be firm with employees and make sure that they followed rules and procedures. [55] On August 26, 2002, Barry LaBillois wrote a letter to Chief Lavallee responding to the complainant's letter. In this letter, he claims to answer all the allegations made by the complainant. In regards to the comments he is alleged to have made at the lobster distribution event, he does not deny making them. What he says in the letter is: Ms London did not indicate at any time that she had a problem with this. If Ms London had a problem this was the first time that I had heard anything about it. Within aboriginal groups across this country this is a common occurrence as we back and forth joke to one another to who is superior. When the topic was first mentioned Ms London should have [taken] the opportunity to say something at that time, [but] she did not do it till a year later. I can only apologize on this over site [sic] on my part. It was not in my [intention] to insult her or her family. [56] On September 10th, 2002, Chief Lavallee sent a disciplinary letter to Barry LaBillois. In that letter she writes: As discussed, September 10th, 2002, at approximately 11:00 a.m. in a meeting between me and you, I told you I would be giving you a written reprimand for using foul language at or around Ms London. Also, we discussed that you are not to call any employees by any other name, except their given name, objects are not to be thrown around office or at each other whether or not it is in fun, and lastly, you will not joke with employees about their tribal affiliations. She explained at the hearing that she was handing him a reprimand for using foul language because he had admitted to cursing and yelling. She also added that he had admitted to making jokes about the complainant's Maliseet ancestry, about throwing things in the office and about calling her Eleanor. In her letter, she further stated: You have admitted and have taken responsibility for your actions and have assured me that this type of behavior will not occur again [...] Mr. LaBillois, both myself and the Deputy Vice-Chief, Barbara Cameron are very upset and disappointed with your conduct. Be forewarned if this sort of conduct or offensive behavior is to occur in the future with any employee of the New Brunswick Aboriginal Peoples Council, we the Executive of NBAPC will have no choice except to take more drastic steps. The complainant said that she never saw this letter before the present procedures. Chief Lavallee added that she did not feel it proper to inform the complainant about this reprimand as she felt it would have been a breach of confidentiality. [57] Chief Lavallee further testified that she was not convinced that Barry LaBillois' actions were done to hurt the complainant, but she wanted by this reprimand to set the bar high for the future. [58] On December 18, 2002, the complainant filed a complaint with the New Brunswick Human Rights Commission, believing that it had jurisdiction over this matter. The complaint was ultimately transferred to the Canadian Human Rights Commission on May 30, 2005. [59] On February 27, 2003, the complainant received a letter from Chief Lavallee informing her that funding was now in place for the Aboriginal Fisheries Program, and that she could return to her position as an Aboriginal Fisheries Monitor as of March 10, 2003. The letter also indicated that the funding commitment was only available until the end of March 2003. On March 6, 2003, the complainant wrote to Chief Lavallee indicating that she would not accept this offer because her issues with Barry LaBillois had still not been addressed. [60] On March 7, 2003, Chief Lavallee wrote back to the complainant indicating that NBAPC had taken steps to investigate her complaint and that it had enacted the necessary disciplinary measures as a result. She added that NBAPC had also reiterated [its] policy that there is to be no joking, conversation or remarks of a personal nature in the office. I am confident that if you return to work with NBAPC that you will not be subject to any human rights issues or violations. Chief Lavallee also wrote that part of the difficulty the complainant had described as a hostile work environment was in fact a problem of interpersonal communication in the office. She added: I can only reiterate my request to all staff that we treat each other with respect at all times. She concluded her letter by again extending her offer of employment but she added if my assurances are not enough to satisfy you, and you choose not to return, then I have no choice but to consider you to have fully and finally resigned from employment at NBAPC. If this is the case, I will prepare a Record of Employment reflecting your decision to leave. [61] The complainant alleges that this offer of employment was made in retaliation to the filing of her complaints. Chief Lavallee answers that it had nothing to do with the human rights complaints but with the fact that an agreement had been concluded with the Department of Fisheries and Oceans concerning funding and that all the employee were recalled back to work. I note that the complainant never raised any issue concerning retaliation in her complaint. [62] The complainant never returned to work at NBAPC. III. THE LAW [63] The complainant alleges that the respondents discriminated against her in within the meaning of sections 7 and 14 of the Act. Section 7 provides 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 discrimination. Paragraph 14(1)(c) of the Act provides that it is a discriminatory practice to harass an individual on a prohibited ground of discrimination in matters related to employment. The prohibited grounds of discrimination include race, national or ethnic origin. In the present case, the complainant alleges that the respondents discriminated against her on the basis of her Maliseet ancestry. Whether or not the issue of the complainant's Maliseet ancestry qualifies as national or ethnic origin for the purposes of s. 3 of the Act was never challenged by the respondents. [64] Given that the allegations that NBAPC discriminated against the complainant in the course of her employment arise solely from her complaints under section 14, I will deal with the issue of section 14 first and, if necessary, address afterwards the allegations under section 7. [65] Harassment that is proscribed under the Act can take many forms. In this case, the complainant alleges that she was harassed because of her race, national or ethnic origin. The case law has established that for a complaint to be substantiated, it is not necessary for harassment to be the sole reason for the actions complained of for a complaint to be substantiated and the harassment need not even be intentional on the part of the perpetrator.(See Swan c. Canada (Armed Forces) (1994), 25 C.H.R.R.D./ 312 at para. 73 (C.H.R.T.), rev'd on other grounds (1995), 25 C.H.R.R.D./333 (F.C.T.D.); Dhanjal v. Air Canada, (1996), C.H.R.R. D/27 at para. 206 (C.H.R.T.), aff'd [1997] F.C.J. No. 1599 (F.C.T.D.) (Q.L.); Marinaki v. Canada (Human Resources Development), [2000] C.H.R.D. No. 2 at para. 187 (C.H.R.T.) (Q.L.); Rampersadsingh v. Wignall, [2002] C.H.R.D. n° 27, at para. 40). [66] In the case of Canada (HRC) v. Canada (Armed Forces) and Franke, [1999] 3 F.C. 653 at paras. 29-50 (F.C.T.D.) (Franke) (also applied in cases of racial harassment, see Rampersadsing, supra; Morin v. Canada (Attorney General), 2005 CHRT 41, at para. 246), the Federal Court stated that in order for a complaint of harassment to be substantiated, the following must be demonstrated: The acts that are the subject of the complaint were unwelcome. This can be determined by assessing the complainant's reaction at the time of the alleged incidents of harassment and whether the complainant expressly, or by his/her behavior, demonstrated that the conduct was unwelcome. The appropriate standard against which to assess a complainant's conduct will be that of a reasonable person in the circumstances. Where the complainant alleges that there has been harassment practiced on the basis of her national or ethnic origin, the respondent's conduct must somehow be shown to be related to that ground. Harassment can be verbal in nature, encompassing conduct such as insults or remarks regarding a person's national or ethnic origin. The Tribunal's determination of whether the unwelcome conduct was related to a complainant's origins should again be carried out in accordance with the standard of a reasonable person in the circumstances of the case, keeping in mind the prevailing social norms. (Rampersadsingh, supra, at. para 41.) 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. The Court in Franke noted, for example, that a physical assault may be serious enough to constitute in itself sexual harassment. On the other hand, a crude joke, although in poor taste, will not generally be enough to constitute sexual harassment and would rarely create a negative work environment. The objective reasonable person standard is used to assess this factor as well. The final factor arises where a complaint is filed against an employer regarding the conduct of one of its employees. Fairness requires that in such cases, the victim of the harassment, whenever possible, notify the employer of the alleged offensive conduct IV. ANALYSIS OF THE FACTS [67] Human rights decisions hold that the initial burden lies with the complainant, who must establish a prima facie case of discrimination. Once a prima facie case is established, it is usually said that the respondent has the burden of explaining. (Hill c. Air Canada, [2003] C.H.R.D. N°3.) [68] I find that even if I was to accept that the facts of the case are in accordance with the evidence led in support of the complaint, the respondents' conduct does not constitute harassment on the grounds of race, national or ethnic origin, within the meaning of the Act. I have no doubt that the complainant was bothered and annoyed by Barry LaBillois' behavior, but his conduct does not meet the standard established in law for the proscribed form of harassment. [69] In order to explain this conclusion, I will now apply the criteria set out in Franke to the present case. A. Was the Impugned Conduct Related to the Complainant's race, or national or ethnic Origin? [70] I will address each of the situations where the complainant alleges that Barry LaBillois or NBAPC harassed her on the basis of the fact that she was a Maliseet. (i) The lobster distribution incident [71] During that September evening of 2001, the complainant alleges that the respondent, Barry LaBillois, discriminated against her because of her Maliseet origin. She referred to two incidents in particular: when he locked her in the walk-in cooling unit, and when he told her that Maliseet were an inferior race and slow and slow speaking. [72] As to the cooler incident, although it might suggest a lack of maturity on the part of Mr. LaBillois, I fail to see how this incident can be related to the complainant's race or national or ethnic origin and will exclude it from further consideration for the purpose of this decision. [73] In regards to the other incident where Mr. LaBillois is alleged to have said that Maliseet were an inferior race and that they were slow and slow speaking. Mr. LaBillois testified that these comments were never made. [74] Both the complainant and Barry LaBillois admitted that the respondent's sister, Carol LaBillois-Slocum, was present when these comments were made. Ms LaBillois-Slocum was on the respondents' witness list up to the last moment. Very late in the proceeding, counsel for the respondents informed the Tribunal that she would not be calling her as a witness. I will draw the inference from this that this potential witness would have confirmed that these comments had been made. Also, I note that in his letter of August 26, 2002, Barry LaBillois does not deny making these comments. He only indicates that the complainant had not at the time indicated that she had a problem with this. I therefore accept the complainant's evidence that Barry LaBillois made the comments attributed to him on that evening. (ii) Incidents at the workplace [75] During her evidence, the complainant referred in a general manner to incidents at the workplace during which she alleges the respondent, Barry LaBillois, made comments about Maliseet. She could not indicate when these remarks were made and what was said. She did, though, refer to an incident that happened in front of her former supervisor, Phillip Fraser, but also admitted that this matter had been dealt with and resolved. [76] She also testified to the fact that Barry LaBillois had described Maliseet as slow speakers, stupid and of being incapable of following instructions. She could not recall the specific times when these remarks were made, nor in what context they were made. Considering the vagueness of these allegations, I can understand that it is rather difficult for the respondent, to produce a reply. [77] Monique Myrshrall testified to an incident in a hotel room in Bathurst where Barry LaBillois and his sister are alleged to have said that the complainant was slow to learn and stupid. The complainant never referred to this incident in her complaint or in her evidence at the hearing. Barry LaBillois denied making these comments, which he attributed to his sister. Be that as it may, as humiliating and inappropriate as these comments can be, I see nothing in them that would refer to the complainant's race, national or ethnic origin. [78] Barry LaBillois would only admit to referring to Maliseet as muskrat eaters. The complainant never referred to this in her complaint. This being the case, I cannot see these comments as being part of the complainant's complaint. [79] Finally, I cannot draw any inference of discrimination from the incidents described as the throwing of objects in the office or the calling of names. These incidents might be characterized as childish and immature, on the part of the supervisor, but no evidence was submitted to establish that they were done with the intention to discriminate on the basis of race, national or ethnic origin. [80] On another issue concerning a comment made by Chief Lavallee, the complainant alleges that she was discriminated against when Chief Lavallee referred to her as a Mal-i-Mic. Chief Lavallee explained in the evidence that she was just referring to the complainant's dual origin. I note also that NBAPC's newsletter is called the Mal-i-Mic. I cannot see any discrimination in Chief Lavallee's use of this expression. (iii) The office cleanup [81] The complainant alleges that Barry LaBillois made disparaging remarks against Maliseet on that day. She testified that, seeing that she could not tie down some pieces of wood, he said You Maliseet do not seem to know how to do much. Barry LaBillois denies having made these comments. Nobody else heard this exchange. For the sake of argument, I will accept that these comments were made. (iv) Personality test [82] The complainant alleges that her supervisor discriminated against her when, after administering a personality questionnaire to her he stated that she was the odd one and that she had no back bone and that these comments could be attributed to discrimination on his part. She added also that these remarks had been made in front of her colleagues. Neither Monique Myshrall, a witness for the complainant, nor Jason Harquail, a witness for the respondents, could recall any comments made by Barry LaBillois to the complainant regarding her test results. [83] Again, nothing in these remarks refers to the complainant's race, national or ethnic origin. They are a clear indication of the interpersonal difficulties that existed between the complainant and her supervisor, but they cannot be interpreted as being discriminatory. (v) The moving of furniture [84] The evidence as not convinced me how this can be seen as being discriminatory on the basis of race, national or ethnic origin. (vi) The last confrontation [85] Going over the whole of the evidence of what happened on that last day, nowhere did I find comments uttered by the respondents regarding the complainant's race, national or ethnic origin. There were a lot of I said/She said exchanges, some foul language was used, but the evidence does not convince me that it was partly based on the issue of race, national or ethnic origin. The stress level at the workplace seemed to be very high on that day and the interpersonal problems between the complainant and her supervisor reached their highest peak. What we have is a supervisor (LaBillois) who had been told by his superior (Lavallee) to execute a certain task in a certain manner and an employee (the complainant) who thought that this was not the proper course to follow. She wanted to argue the issue with her supervisor who at one point just blew up and used inappropriate, but not discriminatory, language. [86] I cannot conclude that what happened on that last day was in any way related to the complainant's race, or her national or ethnic origin discrimination under the Act. (vii) Conclusion [87] In summary, I conclude that the only incidents which could be linked to the complainant's racial, national or ethnic origin are the comments made at the lobster cook-out, where Barry Labillois stated that Maliseet were inferior and slow and slow speakers and the comment made during the cleanup where he said You Maliseet do not seem to know how to do much. B. Was the Impugned Conduct Unwelcome? [88] It is difficult to answer this question considering the fact that, according to the evidence, only two or three incidents could clearly refer to conduct that would be discriminatory on the basis of the complainant's race, national or ethnic origin. But nonetheless, I intend to deal with this issue. I explained earlier that in order to determine whether the respondents' conduct was unwelcome, I needed to assess the complainant's reaction at the time of the alleged incidents and whether the complainant expressly, or by her behavior, demonstrated that the conduct was unwelcome. [89] The complainant's evidence established that, at the lobster cook-out when Barry LaBillois made the comments, she did reply that he should not be saying this and that he was not only insulting her but also her whole family. Certainly her reaction at that time was indicative that the comments were not welcome. Regarding the cleanup incident, there is no evidence that she replied to the comments at that time. [90] Be that as it may, I will accept that the comments made by the respondent, Barry LaBillois, on both occasions, were unwelcome. C. Was the Impugned Conduct Serious or Repetitive Enough? [91] I find that the respondent's conduct was not repetitive enough, nor of a sufficient severity to constitute the type of harassment proscribed by the Act. In effect, according to the evidence submitted at the hearing, the respondent conduct that I have found to be related to the complainant's race, national or ethnic origin is limited to two events spread out over two years. The other events or comments referred to at the hearing cannot be viewed as harassment. They do establish a real problem of interpersonal relationship and maybe a lack of maturity and discipline in the workplace, but they cannot be considered under s. 14 since they are unrelated to the prohibited grounds invoked in this case. [92] As the Supreme Court of Canada stated in Janzen v. Platy Enterprises Inc [1989] 1 S.C.R. 1252 at page 1282, in order to come to a finding of harassment, it must be demonstrated that the conduct of a respondent was such as to have detrimentally affected the work environment. A certain level of seriousness or repetition in the conduct is required for such a hostile or poisoned environment to develop. The Canadian Human Rights Tribunal pointed out, in Pitawanakwat v. Department of Secretary of State (1992), 19 C.H.R.R. D/110 at paras. 40-42 (C.H.R.T.), rev'd on other grounds [1994] 3 F.C. 298, (1994) 21 C.H.R.R. D/355 (F.C.T.D.). as well as in Dhanjal, supra and Rampersadsingh, supra, that when the impugned conduct takes the form of racial slurs, jokes in bad taste and stereotyping, it must be persistent and frequent or severe in order to constitute harassment. An isolated racial slur, even one that is very harsh, will seldom by itself constitute harassment within the meaning of the Act. [93] It was further noted in Dhanjal, at para. 215 that: In short, the more serious the conduct the less need there is for it to be repeated, and, conversely, the less serious it is, the greater the need to demonstrate its persistence in order to create a hostile work environment and constitute racial harassment. [94] The same issue was dealt with by the Court of Appeal of Quebec in the case of Habachi v. Commission des droits de la personne du Québec, [1999] R.J.Q. 2522, R.E.J.B. 1999-14361, [1999] J.Q. No. 4269 (Q.L.) (C.A.Q.). The Court recognized that a single act, provided it is serious enough and has an ongoing effect, may constitute harassment. But the Court also pointed out that if one were to conclude that acts lacking the requisite severity nevertheless constitute harassment, the effect would be to trivialize a provision of the Act that was intended to deal with a very specific form of discrimination. [95] As ill-advised as Barry LaBillois' conduct may have been, it was of limited duration and severity. It was limited to two incidents, maybe three if we add the one that occurred when Phillip Fraser was supervisor, but which the complainant identified as having been resolved. There is no question that the complainant and the respondent, Barry LaBillois, had interpersonal problems which could have had a negative effect on the working environment, but I am not convinced that, with the exception of two to three isolated incidents, these problems had any connection with the complainant's race, or national or ethnic origin. [96] The evidence establishes that the incidents where comments were made about the complainant's race, national or ethnic origin occurred on not more than on two or three occasions. The other incidents - the throwing of objects, referring to the complainant as Eleanor, the yelling matches, the use of foul language, the questionnaire - probably demonstrate a lack of professionalism on Barry LaBillois' part, but they are far from being related to her race, national or ethnic origin. I find that a reasonable person would not perceive these acts as having contributed to the severity, persistence or the duration of the two or three incidents that I have found to be connected to proscribed grounds. [97] The fact that the complainant felt compelled to cease working at NBAPC is not an indication that a poisoned work environment had developed within the meaning of s. 14. There is no doubt, as I have already repeatedly pointed out, that the complainant and Barry LaBillois had an antagonistic relationship, and that this was a factor in her decision to stop working there. However, it is also noteworthy that the complainant never once, during the time that she worked at NBAPC, other than after the incident of July 17, 2002, mentioned to Chief Lavallee-- or to any other persons -- the difficulties she was having working with her supervisor. The complainant even accepted to return to work with NBAPC in July 2002. Ultimately, the focus of the analysis must return to the respondents' specific conduct. I am satisfied that a reasonable person would not conclude that a poisoned or hostile work environment developed as a result of incidents related to utterances about the complainant's racial, national or ethnic origin. [98] As to NBAPC's conduct in this situation, it is impossible to criticize their reactions, since they were never officially made aware that there was a problem. For most of the relevant period, the complainant never notified a person in authority of her supervisor's conduct, but when she finally did in August 2002, Chief Lavallee reacted appropriately and asked Barry LaBillois to give an explanation of what had occurred. After having reviewed the matter, the council decided, in September 2002, to give him a written reprimand for the use of foul language, and it firmly indicated that it would not accept anymore bantering in the workplace. It also indicated clearly that employees of NBAPC should refrain from making jokes or comments about each other's national or ethnic ancestry. I am satisfied that NBAPC acted reasonably once it was made aware of the incidents. [99] I agree that when the complainant's allegations of discrimination and harassment were brought to the attention of NBAPC, it raised a duty to investigate and correct any problems in the workplace. I do not agree, however, with the complainant's arguments that NBAPC failed in its duty of due diligence. I accept that its attempts to deal with the issues raised by the complainant once NBAPC was made aware were real and substantive. V. CONCLUSION [100] In conclusion, I find that Barry LaBillois’ conduct was at times offensive, rude and inappropriate, and that there is no question that the complainant was annoyed by his conduct. But as the Tribunal stated in Rampersadsingh, supra, at para. 60, Discouraging and preventing persons from ever directing pejorative or insulting comments to each other, particularly when such expressions are related to one of the proscribed grounds of discrimination under the Act, is a laudable goal. However, the provisions in the Act regarding harassment are not intended to sanction brief or sporadic conduct of this nature. VI. ORDER For these reasons, the complaints against both respondents are dismissed. Signed by Michel Doucet OTTAWA, Ontario December 30, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1203/1507 and T1204/1607 STYLE OF CAUSE: Evelyn London v. New Brunswick Aboriginal Peoples Council and Barry Labillois DATE AND PLACE OF HEARING: January 16 to 18, 2008 April 15 to 18, 2008 April 24, 2008 Fredericton, New Brunswick DECISION OF THE TRIBUNAL DATED: December 30, 2008 APPEARANCES: Debora M. Lamont For the Complainant (No one appearing) For the Canadian Human Rights Commission Ann E. Smith For the Respondents

2008 CHRT 5

CHRT

Forward and Forward v. Citizenship and Immigration Canada

en

2008-02-05

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6828/index.do

2023-12-01

Forward and Forward v. Citizenship and Immigration Canada Collection Canadian Human Rights Tribunal Date 2008-02-05 Neutral citation 2008 CHRT 5 File number(s) T1152/3406 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Decision Decision status Final Grounds Family Status Decision Content Between: Graham Forward and Evan Forward Complainants - and - Canadian Human Rights Commission Commission - and - Citizenship and Immigration Canada Respondent Decision Member: J. Grant Sinclair Date: February 15, 2008 Citation: 2008 CHRT 5 Table of Contents I. The Complainants A. The 1947 Citizenship Act B. The 1977 Citizenship Act C. Patricia Brushett’s Grant of Canadian Citizenship D. Graham Forward and Evan Forward - Application for Canadian Citizenship E. Graham Forward and Evan Forward - Complaints to the Canadian Human Rights Commission F. Prima Facie Case of Discrimination G. Citizenship as a Service – Singh, Druken, McKenna H. The Ambit of Services – S. 5 of the CHRA I. Discrimination by Association – Who are the Victims? – Retroactive/Retrospective Application of the CHRA (i) The Benner decision J. Discrimination by Association - Who is the Victim of the Discrimination? K. Retroactive/Respective Application of the CHRA II. Conclusion I. The Complainants [1] Graham Forward and Evan Forward are the complainants in this case. They are brothers. Both were born outside Canada in the United States and are American citizens. [2] Graham Forward was born in 1982 and has always lived in the United States except between 2000 and 2004 when he attended Mount Allison University in New Brunswick. [3] Evan Forward was born in 1984. He was a student at McGill University in Montreal from September 2002 to December 2003. Otherwise, he has always lived in the United States. [4] In late 2001 or early 2002, Graham and Evan applied for a certificate of citizenship. They claimed citizenship through their mother, Patricia Brushett. [5] Patricia Brushett was born in the United States on May 10, 1955. She has always resided in the United States. Her parents are Ethel and Donald Brushett. They are Graham and Evan’s grandparents. [6] When Patricia was born, Ethel was then and still is a Canadian citizen. Her father, Donald, once a Canadian citizen, became a naturalized American citizen on February 23, 1955, about three months before Patricia was born. At that point in time, he was no longer a Canadian citizen. [7] Jeff Forward is Graham’s and Evan’s father. He is an American citizen. A. The 1947 Citizenship Act [8] In 1955, when Patricia was born, the 1947 Canadian Citizenship Act (1947 Act) determined citizenship. Under s. 5(1)(b) of this Act, a person born outside Canada is a Canadian citizen if, at the time of his birth, his father is a Canadian citizen (or if born out of wedlock, his mother is a Canadian citizen). Canadian fathers could pass their citizenship to their children born abroad, but Canadian mothers (unless unwed) could not. B. The 1977 Citizenship Act [9] The 1947 Act was repealed and replaced by the 1977 Citizenship Act, R.S.C. c. C-29 (1977 Act). It created three categories of Canadian citizenship based on parental lineage for those born outside Canada: persons born outside Canada after February 14, 1977 are citizens at birth, if either of their parents, other than an adoptive parent, is Canadian at the time of their birth. (s. 3(1)(b)); persons born outside Canada before February 15, 1977 of a Canadian father or out of wedlock of a Canadian mother are citizens at birth if their birth is registered within a specified time. (s. 3(1)(e), incorporating s. 5(1)(b) of the 1947 Act); persons born outside Canada before February 15, 1977 of a Canadian mother must apply for citizenship and pass a security check, a criminal clearance check and swear an oath of citizenship. Citizenship is effective not from birth but from the date granted. (ss. 5(2)(b), 3(1)(c), 12 and 22). C. Patricia Brushett’s Grant of Canadian Citizenship [10] At the time of her birth in 1955, Patricia was not eligible for Canadian citizenship which could only be passed through paternal lineage under the 1947 Act. However, she became eligible under s. 5(2)(b) of the 1977 Act. In February 2001, she applied for Canadian citizenship and she received her grant of citizenship effective December 2001. D. Graham Forward and Evan Forward - Application for Canadian Citizenship [11] Graham and Evan applied for Canadian citizenship in late December 2001 or early January 2002 under s. 3(1)(b) of the 1977 Act. They claimed citizenship through their mother, Patricia. [12] Their application was denied in a letter dated June 5, 2002, from Citizenship and Immigration Canada (CIC). The reason for the denial was that at the time of their birth, neither of their parents were Canadian citizens. They did not qualify for citizenship under any of the parental lineage provisions of the 1977 Act. E. Graham Forward and Evan Forward - Complaints to the Canadian Human Rights Commission [13] Graham filed a complaint with the CHRC dated January 3, 2004. Evan’s complaint is dated January 16, 2004. In their complaints, they allege that the CIC has discriminated against them contrary to s. 5(b) of the Canadian Human Rights Act (CHRA), on the grounds of family status and sex. F. Prima Facie Case of Discrimination [14] In complaints under the CHRA, it is well established that the complainants have the initial onus of establishing a prima facie case of discrimination. The allegation in this case, under s. 5(b) of the CHRA is that the respondent differentiated adversely in relation to the complainants on a prohibited ground (family status and sex) in the provision of a service customarily available to the general public. [15] The determination of a prima facie case in respect of this allegation gives rise to the following questions: does the grant of a Canadian citizenship pursuant to the Citizenship Act constitute the provision of a service? were the complainants, in their attempt to obtain Canadian citizenship, subjected to adverse differentiation? if so, was this adverse differentiation based on a prohibited ground of discrimination? G. Citizenship as a Service – Singh, Druken, McKenna [16] Dealing first with the question of whether the granting of citizenship is a service, central to the complainants’ position are three decisions, Re Singh, [1989] 1 F.C. 430 (F.C.A.); Canada (A.G.) v. Druken, [1989] 2 F.C. 24 (F.C.A.); and McKenna & CHRC v. Secretary of State, (1993) 22 C.H.R.R. 486 (CHRT); Canada (A.G.) v. McKenna, [1994] F.C.J. No. 1880 (FCTD); Canada (A.G.) v. McKenna, [1999] 1 F.C. 401 (CA). [17] Singh involved ten references by the CHRC to the Federal Court of Appeal. The references arose out of ten complaints made to the CHRC against the Department of External Affairs and the Canadian Employment and Immigration Commission. The complaints alleged discrimination under the CHRA, because the respondents denied visitors visas for family members of the complainants and denied the complainants the right to sponsor a close relative to immigrate to Canada. [18] The CHRC attempted to investigate these complaints but the government took the position that the complaints were beyond its jurisdiction and refused to allow the CHRC to pursue its investigation. [19] One of the grounds for the refusal was that the government departments responsible for these matters were not engaged in the provision of services customarily available to the general public. [20] For the Court of Appeal, the question to be answered on the references was whether the complaints cannot possibly relate to discriminatory practices in the provision of services customarily available to the general public. [21] As to this question, the Court concluded that: It is indeed arguable that the qualifying words of s. 5, provision of services customarily available to the general public, can only serve a limiting role in the context of services rendered by private persons or bodies; that, by definition, services rendered by public servants at public expense are services to the public; and therefore fall within the ambit of s. 5. It is not however, necessary to make any final determination on this point at this stage and it is enough to state that it is not by any means clear that the services rendered, both in Canada and abroad, by the officers charged with the administration of the Immigration Act are not services customarily available to the general public (at p. 440). [22] In Druken, the complainants were employees of businesses owned by their spouses and were denied unemployment insurance benefits. Under the Unemployment Insurance Act, 1971, persons employed by their spouses or by companies controlled by their spouses were not eligible for unemployment insurance benefits. [23] The complainants filed complaints with the CHRC alleging discrimination under s. 5 of the CHRA on the grounds of marital status and/or family status. On referral to the Human Rights Tribunal, the Tribunal had to determine whether the provision of unemployment insurance benefits is a service customarily available to the general public. The Tribunal concluded that it was a service and went on to find that the impugned provisions of the Unemployment Insurance Act, 1971 were discriminatory. [24] On application of the Attorney General to the Federal Court of Appeal to set aside the Tribunal decision, the question of services was not argued before the Court. The Court only commented that the Attorney General appeared to find persuasive the dictum in Singh. [25] McKenna involved three decisions, that of the Tribunal, the Federal Court Trial Division by way of judicial review and the Federal Court of Appeal on appeal from the Trial Division. [26] Shirley McKenna was the complainant before the Tribunal. She was a Canadian citizen who resided with her family in Ireland. She had two sons, both born in Canada and two adopted daughters both born outside Canada. Both of her adopted daughters were born before February 15, 1997. [27] She applied for Canadian passports for her two daughters but was advised by officials at the Canadian Embassy in Ireland that they could not claim citizenship under the 1977 Act through parental lineage. [28] Ms. McKenna filed a complaint with the CHRC alleging discrimination contrary to s. 5 of the CHRA on the ground of family status. Her complaint was referred to the Human Rights Tribunal for hearing. [29] On the question of whether the granting of citizenship is a service within s. 5 of the CHRA, the Tribunal reasoned that the 1977 Act is general in scope and when government officials apply the provisions of this Act, they provide a service to the public. [30] On judicial review of the Tribunal decision, the Federal Court set aside the Tribunal decision, one of the reasons being a failure of natural justice in the Tribunal proceedings. The Trial Court did not address the question of s. 5 of the CHRA. [31] Ms. McKenna appealed to the Federal Court of Appeal. This Court agreed with the Trial Court that there had been a denial of natural justice, and affirmed the decision of the Trial Division Court setting aside the Tribunal decision. But the Court of Appeal referred the matter back to the Tribunal to reconsider its decision in light of the Court’s findings of a breach of natural justice. There is no evidence that the matter was reconsidered by the Tribunal. [32] The scope of s.5 of the CHRA as applied to citizenship was not argued before the Court of Appeal. However, the two majority judges did express their views on the scope of s. 5 of the CHRA. Robertson J.A. had this to say: While on focusing on this particular issue, I do not wish to leave the impression that I agree with the Tribunal’s conclusion that the granting of citizenship constitutes a service customarily available to the general public within the meaning of the Canadian Human Rights Act and, therefore, that the Tribunal has the jurisdiction to negotiate with the responsible Minister the manner in which the provisions of the Citizenship Act are to be applied in future. As this particular issue was not pursued before either the Motions Judge or this Court, I do not propose to deal with it other than to lay to rest the mistaken view that this Court’s decision in Canada (Attorney General) v. Druken, [1989] 2 F.C. 24 (C.A.) somehow supports the proposition that the denial of citizenship constitutes the denial of a service. In my opinion, Druken does not stand for the proposition that denial of unemployment insurance benefits constitutes denial of service within the meaning of the Canadian Human Rights Act, but only that the Attorney General conceded as much. [33] Strayer J.A. shared the doubts of Robertson J.A. as to whether the grant of citizenship to a person born outside Canada can be considered a service customarily available to the general public. [34] Although it remains to be authoritatively decided, clearly the weight of judicial opinion is that the denial of citizenship in not a denial of a service under the CHRA. H. The Ambit of Services – S. 5 of the CHRA [35] The complainants/Commission take the position that the rejection of Graham’s and Evan’s citizenship applications amounts to adverse differentiation in the provision of services. [36] In their argument, they specified that what is at issue in this case is not citizenship per se, but rather the right of someone claiming citizenship to have his or her application reviewed and administered in a non-discriminatory manner. The service at issue was the reviewing of applications for citizenship. [37] I do not accept this characterization of the complaint. The evidence and argument in the case was not directed at the conduct of ministerial officials, the exercise of discretion, or at the implementation of departmental policies and practices. [38] The sole source of the alleged discrimination in this case is the legislative language of the 1977 Act. In reviewing the application for citizenship, the officials did nothing more than apply categorical statutory criteria to undisputed facts. Any issue taken with the application review process is really an issue taken with the Act. [39] The respondent takes the position that citizenship cannot properly be considered a service. It relies on authorities holding that citizenship is a privilege – and not a right – that granting states can bestow or withhold on conditions they see fit. [40] The jurisprudence also indicates that citizenship confers a special, political status on a person that not only incorporates rights and duties but serves a highly symbolic function. The distinction between citizens and non-citizens is recognized in the Canadian Charter of Rights and Freedoms. See Law Society of British Columbia v. Andrews [1989] 1 S.C.R. 143; Canada v. Chiarelli, [1992] 1 S.C.R. 711. [41] In my opinion, the granting of citizenship does not constitute a service under the CHRA. Unlike other statutes such as the Unemployment Insurance Act, the Citizenship Act has a definitive and transformative impact on those individuals whom it recognizes as Canadians. As is indicated in the authorities, citizenship is a distinct status granted by the state, a status with constitutional dimensions. To characterize it as a mere service is to ignore its fundamental role in defining the relationship between individuals and the state. [42] Although not necessary for my finding above, I would add that Parliament might reasonably have intended the ambit of the word services in s. 5 to be informed by its placement alongside the words goods, facilities and accommodation (noscitur a sociis, the associated words rule). Viewed in this way, it is very difficult to conclude that the grant of citizenship is a service having a similar character to goods, facilities or accommodation. [43] For these reasons, I have concluded that the complainants/Commission have not established a prima facie case of discrimination. I do not need to deal with the remaining questions relating to prima facie case. I. Discrimination by Association – Who are the Victims? – Retroactive/Retrospective Application of the CHRA [44] The complainants/Commission argued that the discrimination in this case originated with the victimization of the complainant’s grandmother, Ethel. Ethel experienced discriminatory differential treatment under the 1947 Act, based on her sex. Moreover, the discrimination experienced by Ethel was visited upon her daughter Patricia (born in 1955), who was unable to claim an entitlement to Canadian citizenship. [45] According to the complainants/Commission, the 1977 Act continued to treat Patricia unequally. They argue that the differential treatment affecting Patricia – based on her mother’s gender – in turn victimized her sons, the complainants Graham and Evan. [46] Portrayed in this light, key aspects of the case for the complainants clearly implicate events and legal situations that occurred or existed prior to the coming into force of the CHRA in 1978. (i) The Benner decision [47] The Supreme Court of Canada’s decision in Benner v. Canada (Secretary of State) [1997] 1 S.C.R. 358 is fundamental to the resolution of the issues raised in the complaints. [48] Mr. Benner was born in 1962 in the United States, of a Canadian mother and an American father. He applied for Canadian citizenship on October 27, 1988 under the 1977 Act. As a person born outside Canada before February 15, 1977, of a Canadian mother, Mr. Benner was eligible for citizenship under s. 5(2)(b) of the 1977 Act. As such, he had to pass a security check and a criminal clearance check. [49] Mr. Benner’s criminal clearance check revealed that he had been charged with several criminal offenses. The Registrar of Citizenship advised him that he was prohibited from acquiring citizenship and his application was denied on October 17, 1989. [50] He challenged this decision claiming that the 1977 Act imposed more onerous requirements on those claiming Canadian citizenship based on maternal lineage than on those claiming such citizenship based on paternal lineage. He argued that this differential treatment of persons born outside Canada to Canadian mothers before February 15, 1977, offended s. 15(1) of the Canadian Charter of Rights and Freedoms. [51] The case proceeded to the Supreme Court of Canada. The threshold question for the Supreme Court was whether applying s. 15(1) of the Charter involved an illegitimate retroactive or retrospective application of the Charter to this fact situation. [52] In considering whether Mr. Benner’s claim required a retrospective application of the Charter, the Court said that it is necessary first of all to characterize whether the facts in question establish a discrete event or constitute a continuing or ongoing status. In Mr. Benner’s case, his status at the time of his birth was that of a person born outside of Canada before February 15, 1977, of a Canadian mother and an American father. This was a status that continued after the Charter came into effect and at the time the decision was made to deny his application for citizenship. [53] For the Supreme Court in applying s. 15 of the Charter, the critical time was not when Mr. Benner acquired the status in question, but when that status was held against him and disentitled him to a benefit. The Court found that moment occurred when the Registrar of Citizenship considered and rejected his application, namely, on October 17, 1989. That was the date when the alleged discrimination occurred. [54] The Court concluded that the Charter is not given retrospective effect if it is applied to persons who have acquired a particular status before the enactment of the Charter and that status continued after the Charter came into effect. Thus Mr. Benner’s claim of discrimination was subject to Charter scrutiny. [55] The Court also dealt with the argument that Mr. Benner was attempting to raise the infringement of a third party’s rights for his own benefit. That is the alleged discrimination under the 1977 Act was imposed upon his mother, not upon him. [56] The Court rejected this argument reasoning that Mr. Benner was the primary target of the sex based discrimination mandated by the 1977 Act. Section 5(2)(b), which Mr. Benner challenged, did not determine his mother’s right to citizenship. His mother was only implicated because his rights were dependent on his maternal lineage. J. Discrimination by Association - Who is the Victim of the Discrimination? [57] Benner is of assistance in the current case by chronologically situating the alleged discrimination to which the complainants were subjected. The relevant time at which to conduct the analysis is the moment at which Graham and Evan’s status was held against them or disentitled them to a benefit. They have the status of being foreign born grandchildren of a Canadian grandmother since birth. But until their application for citizenship, they had not engaged the legislation governing their entitlement to citizenship. [58] Following Benner, the alleged discrimination did not take place until 2002, when their application for citizenship was denied on the basis of criteria which they allege violate s. 5 of the CHRA. [59] Having situated the alleged discrimination in time (well after the enactment of the CHRA), it remains to be decided whether the complainants were subjected to adverse differentiation on a prohibited ground, namely sex and family status. [60] Again, Benner is of assistance. Insofar as it establishes that the 1977 Act carries on the discrimination of the 1947 Act, it may itself be reviewed under s. 15 of the Charter. Similarly, in the current matter, it is no defence to the complainants’ claim to say that any differential treatment has its true source in the now repealed 1947 Act. They were denied citizenship under the 1977 legislation. It is the operation of that statute that forms the basis of their complaint. [61] This brings us to a consideration of precisely which provisions of the 1977 Act the complainants seek to impugn. Both were born after 1977. As such, the provisions which affect them directly are paras. 3(1)(a) and 3(1)(b), which exclude them from citizenship since neither of their parents were citizens at that time of their birth, and they were not born in Canada. However, they do not argue that 3(1)(a) and 3(1)(b) discriminate on the grounds of sex and family status. [62] Although not specified, it appears (from their final argument) that they argue that 3(1)(e), which preserves the status of foreign born children of Canadian men (and unmarried women) under the 1947 Act, differentiates adversely against the foreign born children of Canadian married women. Moreover – and by extension – they argue that 3(1)(e) differentiates adversely against the foreign born children of foreign born children of Canadian married women. [63] This argument raises a problem of standing. The complainants do not stand in the shoes of Mr. Benner. Rather, they stand in the shoes of Mr. Benner’s children – children born outside Canada. The complainants/Commission say that this is a distinction without a difference. Benner applies with equal force to grandchildren. The respondent pleads the contrary. [64] It seems incontrovertible that Benner would be more analogous if Patricia had been the complainant in this case. Patricia, like Mr. Benner, would be able to withstand the argument that any discrimination imposed by 3(1)(e) is really imposed on the claimant’s mother. For Patricia, like Mr. Benner, would be viewed as the primary target of the sex based discrimination mandated by the legislation. As the first generation victim of the exclusionary regime continued in s. 3(1)(e), Patricia would possess the necessary standing to raise the issue. She, like Mr. Benner, could be portrayed as the real target of the provision, and the one with the most direct interest in having them subjected to scrutiny under anti-discrimination law. [65] But Patricia is not asserted to be a victim in the current complaint; no order is sought for her benefit. [66] The complainants cannot be said to be the primary targets of s. 3(1)(e), nor the ones having the most direct interest in having them subjected to scrutiny under the CHRA. That claim belongs to Patricia. Unlike their mother, the complainants cannot be directly affected by s. 3(1)(e) because they were not born before 1977 and, as such, they were never entitled, immediately before 1977, to become a citizen under the 1947 Act. Since they were not directly affected by the impugned legislation, and since they do not claim a remedy for the benefit of an individual who is, the complainants do not possess the requisite standing to obtain relief under the CHRA. [67] The complainants/Commission still insist that the brothers can be victims under the CHRA without running afoul of the statement in Benner that a party cannot rely upon the violation of a third party’s Charter rights. First of all, the CHRA regime is more generous with standing; complainants can pursue remedies on behalf of other, victimized individuals (ss. 40(2), 50(1), 53(2)). More importantly, in Benner itself, the Court implicitly endorses a form of derivative standing, whereby the victim’s treatment is dictated by the discriminatory differentiation visited upon his parents. [68] The Supreme Court pointed out that there was a connection between Mr. Benner’s rights and the differentiation made by the legislation between men and women. The impugned provisions made Mr. Benner’s citizenship rights dependent upon whether his Canadian parent was male or female. To deprive Mr. Benner of standing would allow a legislature to circumvent anti-discrimination rules by providing for indirect discrimination rather than mention its targets directly. [69] Further, the Court pointed out that the link between child and parent is of a particularly unique and intimate nature; a child has no control over who his or her parents are. Where access to benefits such as citizenship is restricted on the basis of something so intimately connected to and so completely beyond the control of an applicant as the gender of his or her Canadian parent, that applicant has standing to invoke s. 15 of the Charter. [70] On the other hand, these comments of the Court were obiter, prefaced as they were by the following statement: I hasten to add that I do not intend by these reasons to create a general doctrine of discrimination by association. I expressly leave this question to another day, since it is not necessary to address it in order to deal with the appeal. (Iaccobucci J. at para. 82) [71] The fact remains that the Court was not dealing with a situation where a grandchild was invoking the identity of his grandparent. K. Retroactive/Respective Application of the CHRA [72] There is another key distinction; in Benner the Court was faced with the task of granting citizenship to the son of a woman who was Canadian at the time of his birth. In the current view, the Tribunal is asked to recognize Canadian citizenship for Graham and Evan whose mother was not a Canadian at the time of their birth. [73] Thus, even if there were no other remedial obstacles in this case – which there are – in order for the Tribunal to grant the complainants citizenship, it would be necessary to alter the citizenship of their mother Patricia so that she would be deemed to have been Canadian at the time of their birth. Only then would they be in a situation analogous to Mr. Benner’s. [74] But as mentioned earlier, Patricia does not seek relief before this Tribunal and the complainants have not done so for her. In addition, viewing the complainants as having been born to a woman who was notionally Canadian at birth (i.e. had she been born to a Canadian father instead of a Canadian mother) involves applying the CHRA so as to change Patricia’s status at the time of her birth (1955). This would require the retroactive application of legislation; that is to say, the CHRA which came into force in 1978 would be invoked to alter the legal status, at birth, of Patricia born in 1955. [75] It has been held (Latif v. Canada, [1980] 1 F.C. 687 (CA)) and the common law presumes that the legislature does not intend new legislation to be applied so as to change the past legal effect of a past situation. There is no indication that Parliament intended the CHRA to be applied otherwise. The presumption against retroactivity remains in effect. [76] Barring a change to Patricia’s status, Graham and Evan are children born to two non-Canadians. As such they are not readily comparable to Mr. Benner, or anyone else who was denied automatic citizenship based on the gender of his or her parent. II. Conclusion [77] For the above reasons, I have concluded that the complaints of Graham Forward and Evan Forward should be dismissed. Signed by J. Grant Sinclair Tribunal Member Ottawa, Ontario December 5, 2008 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1152/3406 Style of Cause: Graham Forward and Evan Forward v. Citizenship and Immigration Canada Decision of the Tribunal Dated: December 5, 2008 Date and Place of Hearing: April 10 to 12, 2007 Montréal, Quebec Appearances: Graham Forward and Evan Forward, for themselves Daniel Pagowski and Ruben East, for the Canadian Human Rights Commission Derek Rasmussen, for the Respondent

2008 CHRT 50

CHRT

Shepel v. Paterson GlobalFoods Incorporated

en

2008-12-16

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6609/index.do

2023-12-01

Shepel v. Paterson GlobalFoods Incorporated Collection Canadian Human Rights Tribunal Date 2008-12-16 Neutral citation 2008 CHRT 50 File number(s) T1305/3508 Decision-maker(s) Sinclair, Grant, Q.C. Decision type Decision Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE MARY SHEPEL Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - PATERSON GLOBALFOODS INCORPORATED Respondent DECISION 2008 CHRT 50 2008/12/16 MEMBER: J. Grant Sinclair [1] The hearing in this complaint was convened at 9:30 a.m. on Monday, November 24, 2008 at Winnipeg, Manitoba. At the commencement of the hearing, the Tribunal Registry Officer read the case for hearing and called for appearances. Ms. Suzanne Dandenault, counsel for the Respondent Paterson GlobalFoods Incorporated was in attendance. [2] The Complainant, Mary C. Shepel, did not appear and was not in attendance at the opening of the hearing, nor did anyone appear on her behalf. [3] No one appeared at the hearing on behalf of the Canadian Human Rights Commission. [4] The Tribunal adjourned the hearing until 9:50 a.m. that same day. Upon resumption, the Registry Officer once again called for appearances. Counsel for the Respondent was again in attendance but neither Ms. Shepel nor anyone on her behalf was present. [5] On August 19, 2008, the Complainant requested the hearing of her complaint be held during the last week of October or mid to end of November 2008. In response to a further request from the Complainant for the hearing to be fixed, Ms. Shepel was advised by the Tribunal on September 11, 2008 that the hearing would proceed at Winnipeg from November 24 to 28, 2008. [6] In accordance with the Tribunal's instructions of September 26, 2008, the time for the Complainant to provide full disclosure pursuant to Tribunal Rule 6 was extended to October 3, 2008. The Complainant later advised the Tribunal on October 9, 2008 that her disclosure would be filed on October 14, 2008. [7] The Complainant failed to meet her disclosure deadline as per Rule 6(1) of the Tribunal's Rules and Procedures. Nor has the Complainant requested a further extension or a conference call with the Tribunal to discuss the outstanding issue of disclosure. [8] A Notice confirming the November hearing dates was sent to Ms. Shepel on October 10, 2008. On November 6, 2008, Ms. Shepel wrote to the Tribunal that she no longer had the resources or time to go forward with the preparation needed for the Tribunal process. [9] On November 13, 2008, the Tribunal notified Ms. Shepel again of the location, dates and time for the hearing of her complaint. Ms. Shepel responded on November 20, 2008 that she would not be participating in the hearing at this time. She did not request that the hearing be rescheduled. [10] No evidence was called or otherwise provided in support of Mary Shepel's complaint at the hearing on November 24, 2008. Accordingly, I find that the complaint against Paterson GlobalFoods Incorporated has not been substantiated and is hereby dismissed under section 53(1) of the Canadian Human Rights Act. Signed by J. Grant Sinclair OTTAWA, Ontario December 16, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1305/3508 STYLE OF CAUSE: Mary Shepel v. Paterson GlobalFoods Incorporated DATE AND PLACE OF HEARING: November 24, 2008 Winnipeg, Manitoba DECISION OF THE TRIBUNAL DATED: December 16, 2008 APPEARANCES: No one appearing For the Complainant No one appearing For the Canadian Human Rights Commission Suzanne Dandenault For the Respondent

2008 CHRT 6

CHRT

Warman v. Northern Alliance

en

2008-03-19

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6830/index.do

2023-12-01

Warman v. Northern Alliance Collection Canadian Human Rights Tribunal Date 2008-03-19 Neutral citation 2008 CHRT 6 File number(s) T1216/2807, T1217/2907 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - NORTHERN ALLIANCE AND JASON OUWENDYK Respondents RULING 2008 CHRT 6 2008/03/19 MEMBER: Athanasios D. Hadjis [1] The Commission has moved to obtain an order from the Tribunal that the Respondent Jason Ouwendyk and his agent refrain from using, in written documents filed in this case, language meant to demean the Complainant, the Tribunal, the Commission or any officer of the Court. The Commission also objects to Mr. Ouwendyk's agent in this case, Alexan Kulbashian, using the letters HR instead of the words Human Rights when referring to the Canadian Human Rights Commission, the Canadian Human Rights Act and the Canadian Human Rights Tribunal in his written pleadings. The Commission seeks an order that the Respondent cease this practice. The Commission also requests that the Respondent's Statement of Particulars and Charter Challenge Witness List, which contain the above references, be rejected and declared expunged from the Tribunal's Record. [2] Section 50(1) of the Act states that the Tribunal must provide parties with the full and ample opportunity, in person or through counsel (avocat or lawyer in the French rendering), to appear at the inquiry, present evidence and make representations. It has been the Tribunal's practice, nevertheless, to permit non-lawyer agents of parties to appear as well (see Brown v. Royal Canadian Mounted Police, 2004 CHRT 30 at paras. 86-7; Filgueira v. Garfield Container Transport Inc., 2005 CHRT 27 at para. 16). However, the Tribunal may, at its discretion, limit participation to those agents whom the Tribunal believes will facilitate, rather than hinder, its adjudicative process (Filgueira at para. 15). Accordingly, where an agent of a party behaves in a manner that is offensive or disrespectful towards the other parties or to the Tribunal itself, in my view, the Tribunal is entitled to exercise its discretion to deny the agent permission to represent the party in the proceeding. [3] In the present case, I note that Mr. Kulbashian has called the Complainant a liar. He appears to refer to the Commission and/or the Tribunal as a thug dressed like a lawyer and to a Tribunal member as a fanatic. Although a party is entitled to question another party's credibility and challenge the legality of the Tribunal's process, this sort of demeaning language is inappropriate and unacceptable in any adjudicative proceeding. The Tribunal hereby advises and directs Mr. Kulbashian not to repeat remarks of this nature in his future dealings with this case, failing which he will no longer be permitted to appear in this proceeding as Mr. Ouwendyk's representative. [4] As for the Commission's request regarding Mr. Ouwendyk's use of the letters HR, the Tribunal does not find that this matter warrants its intervention. The impugned documents will not be expunged. Signed by Athanasios D. Hadjis OTTAWA, Ontario March 19, 2008 PARTIES OF RECORD TRIBUNAL FILES: T1216/2807 and T1217/2907 STYLE OF CAUSE: Richard Warman v. Northern Alliance and Jason Ouwendyk RULING OF THE TRIBUNAL DATED: March 19, 2008 APPEARANCES: Richard Warman For himself Daniel Poulin For the Canadian Human Rights Commission No one appearing For the Respondent Northern Alliance Alexan Kulbashian For the Respondent Jason Ouwendyk

2008 CHRT 7

CHRT

Warman v. Lemire

en

2008-03-20

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6842/index.do

2023-12-01

Warman v. Lemire Collection Canadian Human Rights Tribunal Date 2008-03-20 Neutral citation 2008 CHRT 7 File number(s) T1073/5405 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content RICHARD WARMAN Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - MARC LEMIRE Respondent RULING 2008 CHRT 8 2008/03/20 MEMBER: Athanasios D. Hadjis [1] On May 9th and 10th, 2007, two Commission employees, Hannya Rizk and Dean Steacy, testified in this case. I ruled at that time that persons other than the parties and their representatives be excluded from the hearing room while both witnesses testified, pursuant to s. 52 of the Canadian Human Rights Act. Their evidence was transcribed by court reporters. The transcripts were not subject to the exclusionary order and were provided to the parties. [2] Both witnesses are now scheduled to continue their evidence on March 25, 2008. Mr. Lemire and the Canadian Association for the Freedom of Expression have requested that the Tribunal revisit its ruling. Rogers Publishing Limited, a division of Rogers Media Inc., has made a similar request on behalf of Maclean's Magazine, specifically asking that representatives of the magazine be permitted to attend, observe and report on the evidence to be tendered at this hearing. The Attorney General of Canada states, for its part, that this hearing should be conducted in accordance with the usual procedure of holding open hearings in Tribunal cases, unless the Tribunal is satisfied that closing the hearing room is necessary to ensure the safety of the participants. [3] The Commission proposes in its submissions that the order be maintained but that other measures be put in place to better accommodate members of the public who wish to attend the hearing, including a video link to another room where the public could observe the hearing without being able to observe the witnesses. [4] I have come to the conclusion that my previous ruling should be rescinded. [5] In addressing this matter, it is important to understand the context in which my initial ruling was made. At Mr. Lemire's request, the Tribunal had issued subpoenas summoning Ms. Rizk and Mr. Steacy to attend the hearing and give evidence. In the afternoon of May 8, 2007, the Commission sent a letter by fax to the Tribunal stating that pursuant to s. 37 of the Canada Evidence Act, it formally objected to the disclosure of the visual appearance of its employees during the Tribunal proceedings and certified that this information was not to be disclosed on the basis of the public interest in ensuring the security of these individuals during and after the testimony. The Commission added that as a result of its s. 37 objection, it had instructed Ms. Rizk and Mr. Steacy not to attend the Tribunal hearing but to remain available until the matter of this objection was resolved. [6] When Commission counsel appeared at the hearing on May 9, 2007, his position was unambiguous: ...we have invoked section 37. If there are no measures put in place, we are invoking it. If the measures that I am asking for today are put in place, then we will not invoke, we will withdraw our objection on the basis of section 37, for the purpose of their attending and the disclosure of their visual appearance. [7] I issued my ruling regarding the exclusion of non-parties from the hearing room orally that morning. The ruling was premised in large part by this looming likelihood that the Commission would invoke s. 37 unless the measures that it was demanding were put in place. The hearing proceeded but the Commission nonetheless invoked s. 37 numerous times to object to questions posed by Mr. Lemire's counsel to Ms. Rizk and Mr. Steacy. The Commission alleged public security concerns in making its objections. [8] Mr. Lemire later challenged those objections before the Federal Court, which has the exclusive authority to rule when such matters arise before the Tribunal. Interestingly, however, it appears that a few weeks before the January 15, 2008, Federal Court hearing into these objections, the Commission disclosed to Mr. Lemire the information that was the subject of the s. 37 application. The Court therefore determined that since the information had been disclosed, it could no longer properly consider the s. 37 application, which the disclosure had effectively rendered moot. In effect, the Commission disclosed the very information that it had previously claimed could not be disclosed pursuant to s. 37. I note that the Commission also withdrew, before the Federal Court, its s. 37 objection to the issuance of a subpoena of Bell Canada (see the Federal Court's ruling, January 15, 2008, Docket no. T-860-07). [9] The outcome of the s. 37 matter gives me pause to question the soundness of the Commission's invocation of public security concerns with respect to the testimony of these witnesses. [10] More significantly, however, having now had the benefit of considering the question in circumstances different than those in which I was placed on the morning of May 9, 2007, I am not persuaded that the witnesses are exposed to a real and substantial risk that undue hardship will be caused to the persons involved, as contemplated in s. 52(1)(c) of the Act, nor that there is a serious possibility that the life, liberty or security of a person will be endangered, as contemplated by s. 52(1)(d) of the Act. The excerpts from the Internet cited by the Commission in its submissions do not, in my view, satisfy these criteria. They are indicative of no greater risk than that which has been suggested in the past by comments addressed to other participants in this and other s. 13 cases, including counsel, Tribunal members and staff, and the parties themselves. [11] I am therefore rescinding the order. The hearing will be conducted in public, as mandated by s. 52(1) of the Act. I would note for the record that the Commission is mistaken in its submissions that the order came about pursuant to my ruling of May 7, 2007, which had merely excluded cameras from the Tribunal premises. That ruling preceded the exclusion order. No request has been made for me to revisit the May 7th ruling and as a result, cameras will remain excluded from the Tribunal's premises. Signed by Athanasios D. Hadjis OTTAWA, Ontario March 20, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1073/5405 STYLE OF CAUSE: Richard Warman v. Marc Lemire RULING OF THE TRIBUNAL DATED: March 20, 2008 APPEARANCES: Richard Warman For himself Margot Blight/Philippe Dufresne For the Canadian Human Rights Commission Barbara Kulaszka For the Respondent Simon Fothergill/Alysia Davies 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/Ryder Gilliland 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 Julian Porter For Rogers Publishing Limited, A Division of Rogers Media Inc.

2008 CHRT 8

CHRT

beachesboy@aol.com v. Fleming

en

2008-03-20

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6843/index.do

2023-12-01

beachesboy@aol.com v. Fleming Collection Canadian Human Rights Tribunal Date 2008-03-20 Neutral citation 2008 CHRT 8 File number(s) T1170/5206 Decision-maker(s) Jensen, Karen A. Decision type Decision Decision Content BEACHESBOY@AOL.COM Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - HEATHER FLEMING AND RONALD FLEMING Respondents DECISION 2008 CHRT 7 2008/03/20 MEMBER: Karen A. Jensen [1] These are the reasons which I delivered orally during this hearing. [2] This hearing was convened on Monday, March 3, 2008 in Ottawa with a videoconference link to the Federal Court in Edmonton to allow the Respondents, Ronald and Heather Fleming, to be present without having to travel to Ottawa. At the commencement of the hearing, the Tribunal Registry Officer read the Case for Hearing and called for appearances. Ms. Ikram Warsame was present and appeared on behalf of the Canadian Human Rights Commission. [3] The Complainant, beachesboy@aol.com, was not present at the hearing, nor was anyone present who appeared on his behalf. [4] The Respondents, Mr. and Mrs. Ronald and Heather Fleming, were not present at the hearing, nor was anyone present who appeared on their behalf. [5] The Tribunal requested that the Manager of the Federal Court building ascertain whether there was anyone in the lobby of the Court by the name of Fleming. The Manager reported that there was no one in the lobby. [6] The Notice of Hearing in this matter, dated February 1, 2008, was filed by the Registry Officer. The Registry Officer stated that the Notice of Hearing had been sent to the Respondents by courier and to the Complainant by email. The Tribunal notes that in previous correspondence, the Respondents indicated that they would not accept personal service of documents on their premises. Therefore, all correspondence was sent to them by regular mail or courier. [7] The Registry Officer also filed copies of correspondence from the Complainant indicating that he would be unable to attend the hearing for three months due to work commitments, and that he was also unable to participate in a teleconference due to work commitments. The Registry Officer filed a copy of the electronic mail that was sent to the Complainant on February 25, 2008, from the Tribunal indicating that the Tribunal is required to conduct inquiries into complaints of discrimination on an expeditious manner. Given that the Complainant was not available to discuss the issue of an adjournment prior to the commencement of the hearing, the Tribunal ordered that this matter be dealt with at the outset of the hearing on Monday, March 3, 2008. [8] The Tribunal also indicated to the Complainant in the electronic correspondence of February 25, 2008 that it was open to the Complainant to point to the Tribunal's Notice of Hearing to substantiate to his employer that he had a valid reason for his absence. It was also open to the Commission to request a subpoena requiring his testimony. [9] The Complainant participated in establishing the dates for the hearing and had been aware of them for some time. In addition, the Complainant was part of the decision to set the hearing venue in Ottawa with a videoconference link to Edmonton. [10] Ms. Warsame, for the Commission, indicated at the hearing on Monday morning that the Complainant had not responded to inquiries regarding travel arrangements for the hearing on March 3, 2008. Furthermore, the Complainant had not responded to the Commission's request to provide assistance in the preparation of the Book of Documents for the hearing. Ms. Warsame indicated that the Complainant was her only witness and therefore, if he did not attend the hearing she was not in a position to call evidence on this matter. [11] The Tribunal ordered that the hearing be adjourned for two days to provide the Complainant and the Respondents time to communicate to the Tribunal as to whether they intended to proceed with the complaint, or if they were requesting a further adjournment or a dismissal of the complaint. [12] The Tribunal than issued a letter on the same day, March 3, 2008 confirming that the matter had been adjourned until March 5, 2008. In the same letter, the Tribunal noted that the matter had been pending before the Tribunal since October of 2006. The Tribunal has an obligation to proceed expeditiously with inquiries. Therefore, the request for an adjournment of three months was unreasonable. The Tribunal directed that the Complainants and/or the Respondents attend the hearing on March 5, 2008. The Tribunal indicated that if these directions were not complied with, it may dismiss the complaint (In fact, the letter sent by the Tribunal Registry invited the Complainant to attend or provide submissions). [13] The Tribunal has reconvened today, Wednesday, March 5, 2008. Ms. Warsame is present on behalf of the Commission. Neither the Complainant nor the Respondents are present today, nor is anyone present who appeared on their behalf. The Registry Officer was informed by personnel at the Federal Court Building in Edmonton that no one had presented themselves for the hearing into this matter today. [14] The Complainant and the Respondent have not communicated with the Tribunal regarding their non-attendance, nor have they provided a suggestion for a more reasonable time frame for an adjournment. [15] Ms. Warsame provided an outline of the attempts that the Commission has made to contact the Complainant to ascertain his intentions with respect to the complaint. The Complainant has not responded to these requests for information. On that basis, the Commission decided not to issue a subpoena for his attendance and testimony at the hearing today. Ms. Warsame indicated that the Complainant is her only witness. Given that he is not present today, she is unable to call any evidence in support of the complaint. [16] Accordingly, I find that the complaint has not been substantiated and the complaint is hereby dismissed under s. 53(1) of the Canadian Human Rights Act. Signed by Karen A. Jensen OTTAWA, Ontario March 20, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1170/5206 STYLE OF CAUSE: beachesboy@aol.com v. Heather Fleming and Ronald Fleming DATE AND PLACE OF HEARING: March 3rd and 5th, 2008 Ottawa, Ontario Edmonton, Alberta (via videoconference) DECISION OF THE TRIBUNAL DATED: March 20, 2008 (Oral decision given to the parties on March 5th, 2008) APPEARANCES: No one appearing For the Complainant Ikram Warsame For the Canadian Human Rights Commission No one appearing For the Respondents

2008 CHRT 9

CHRT

Wade v. Canada (Attorney General)

en

2008-04-11

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6841/index.do

2023-12-01

Wade v. Canada (Attorney General) Collection Canadian Human Rights Tribunal Date 2008-04-11 Neutral citation 2008 CHRT 9 File number(s) T1241/5307 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content SALLY WADE Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ATTORNEY GENERAL OF CANADA (REPRESENTING THE DEPARTMENT OF FOREIGN AFFAIRS AND INTERNATIONAL TRADE AND TREASURY BOARD) Respondent - and - PUBLIC SERVICE ALLIANCE OF CANADA Respondent RULING 2008 CHRT 9 2008/04/11 MEMBER: Karen A. Jensen [1] This is a ruling on a motion presented by the Department of Foreign Affairs and International Trade (DFAIT). It involves a complaint by Sally Wade that her employer, DFAIT discriminated against her on the basis of her marital status and family status by denying her a three bedroom staff quarter pursuant to the Foreign Service Directive. The Directive is part of the collective agreement between Treasury Board and Ms. Wade's bargaining agent, the Public Service of Canada (PSAC). [2] The Respondent, the Department of Foreign Affairs and International Trade (DFAIT), requests an Order: adding Treasury Board as a party to the complaint (as represented by the Attorney General of Canada); adding the Public Service Alliance of Canada (PSAC) as a respondent to the complaint; and, amending the style of cause by substituting the Attorney General of Canada for the the Department of Foreign Affairs and International Trade. [3] The Complainant does not object to the requests, but states that if PSAC is added as a respondent, the complaint should be amended to include sections 9 and 10 of the Canadian Human Rights Act. Section 10 is already part of the original complaint. [4] Section 9 of the Act provides that it is a discriminatory practice for an employee organization to limit, segregate, classify or otherwise act in a way that would limit or deprive individuals of employment opportunities. [5] PSAC does not oppose the motion to add it as a Respondent, nor does it oppose the addition of Treasury Board and the amendment of the style of cause. Finally, PSAC does not object to the addition of s. 9 to the complaint. [6] The Respondent DFAIT does not object to the amendment of the complaint to include s. 9. [7] The Canadian Human Rights Commission did not participate in the motion. The Addition of Treasury Board and the PSAC as Respondents [8] Section 48.9(2)(b) of the CHRA provides the Tribunal with the authority to add parties to its proceedings. 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. The Tribunal must also consider the prejudice that may result to the parties by adding them at this stage in the process (Syndicat des employés d'exécution de Québec-Téléphone v. TELUS Communications (Québec) Inc., [2003] C.H.R.D. No. 29; Brown v. National Capital Commission, [2003] C.H.R.D. No. 36; Smith v. Canadian National Railway 2005 CHRT 23). [9] Treasury Board and PSAC negotiate the terms of the Foreign Service Directives; it is Treasury Board and PSAC that have knowledge about the Directives. DFAIT has no power to affect the wording of the Directives. If the complaint is substantiated and a remedy ordered, Treasury Board and PSAC are the organizations that will implement the remedy with respect to the Directives. Therefore, these two organizations are important to the resolution of the complaint. Furthermore, there is a tenable basis for the allegations that PSAC and Treasury Board may share liability in the event that the complaint is substantiated. [10] The proposed Respondents have not objected to their addition as parties and have not argued that any prejudice will arise from adding them at this stage of the process. [11] Therefore, I order that Treasury Board and PSAC will be added as parties to the complaint. The amendment of the Complaint to include s. 9 of the CHRA [12] The Complainant has requested that the complaint be amended to include s. 9 of the CHRA which prohibits an employee organization from limiting an employee's employment opportunities on the basis of prohibited grounds of discrimination. [13] The Tribunal has the authority to amend complaints where the amendment respects the scope of the original complaint, and where the parties have been given sufficient notice of the amendment (Canadian Museum of Civilization v. PSAC 2006 FC 704 at paras. 50-52). [14] In the present case, PSAC does not object to the proposed amendment to the complaint. It states that citing the proper sections of the Act is critical to ensuring that the issues are fully aired before the Tribunal. [15] I agree with the PSAC on this point. I order the complaint to be amended to include s. 9 of the CHRA. The Amendment of the Style of Cause [16] Counsel for the Respondent states that the Attorney General of Canada, as the representative of the federal Crown should be substituted for DFAIT as the Respondent. [17] The Respondent argues that DFAIT does not have a distinct and legal personality. It is simply a department of the Government of Canada. Therefore, DFAIT does not have the capacity to be party to a complaint. The proper party to the complaint is the Attorney General of Canada as the representative of the federal Crown (Munro v. Canada (1992), 11 O.R. (3d) 1 (Gen. Div.) at pp. 10-13). [18] Although s. 7.2 of the Financial Administration Act vests Treasury Board with the capacity to be named as a respondent, both DFAIT and Treasury Board fall under the umbrella of the Attorney General of Canada. Therefore, the Respondent argued that it was unnecessary to refer to either DFAIT or Treasury Board in the style of cause. However, the Respondent stated that it would not object to amending the style of cause to read the Attorney General of Canada (representing the Department of Foreign Affairs and International Trade and Treasury Board). [19] The Complainant and PSAC voiced no objection to the amendment of the style of cause provided it read as suggested above. [20] A review of the jurisprudence cited by the Respondent, as well as the relevant legislation, discloses that the Respondent is correct, and that the Complainant's case should properly be brought against the Attorney General of Canada. The Tribunal has in fact issued comparable orders in other cases involving the federal Crown (Plante v. Royal Canadian Mounted Police, 2003 CHRT 28; Wiseman v. Attorney General of Canada, 2007 CHRT 13; Guay v. Royal Canadian Mounted Police [2004] C.H.R.D. No. 32). [21] Therefore, I order that the style of cause be amended to read: Sally Wade v. Attorney General of Canada (representing the Department of Foreign Affairs and International Trade and Treasury Board) and Public Service Alliance of Canada. Signed by Karen A. Jensen OTTAWA, Ontario April 11, 2008 PARTIES OF RECORD TRIBUNAL FILE: T1241/5307 STYLE OF CAUSE: Sally Wade v. Attorney General of Canada et al. RULING OF THE TRIBUNAL DATED: April 11, 2008 APPEARANCES: Karrin Galldin For the Complainant No one appearing For the Canadian Human Rights Commission Catherine Lawrence For the Respondent Attorney General of Canada Lisa Addario For the Respondent Public Service Allicance of Canada

2009 CHRT 1

CHRT

Grover v. National Research Council of Canada

en

2009-01-06

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6809/index.do

2023-12-01

Grover v. National Research Council of Canada Collection Canadian Human Rights Tribunal Date 2009-01-06 Neutral citation 2009 CHRT 1 File number(s) T1242/5407 Decision-maker(s) Hadjis, Athanasios Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE CHANDER PRAKASH GROVER Complainant - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - NATIONAL RESEARCH COUNCIL OF CANADA Respondent RULING 2009 CHRT 1 2009/01/06 MEMBER: Athanasios D. Hadjis I. Background A. Complaint #1 - Remedial issues arising from the Tribunal decision B. Complaints #2 and #3 C. Complaint #4 D. The investigation of Complaints #2 and #3 after the 2001 Federal Court decision E. Circumstances since Complaints #2, #3 and #4 were referred to the Tribunal II. Analysis A. Prejudice to the fairness of the hearing caused by the delay B. How has the NRC been prejudiced by delay in the present case? C. Has the NRC's ability to provide an answer to the allegations been impaired? D. Must the delay be unacceptable or undue to justify the dismissal of the complaint? E. Is the prejudice of sufficient magnitude to impact on the hearing's fairness? F. Would dismissing the complaints at this time be premature? G. Would dismissing the complaints send an inappropriate message to other parties before the Tribunal? III. Conclusion [1] The National Research Council (NRC) has made a motion to dismiss the human rights complaints of Dr. Chander Prakash Grover. The NRC argues that the delay in the hearing of these complaints has significantly prejudiced the NRC in its ability to effectively respond to the allegations, and that the hearing of the complaints would bring the human rights system into disrepute and constitute an abuse of process. [2] The NRC filed affidavits from nine persons in support of its motion. Dr. Grover and the Commission opted to cross-examine seven of the affiants on their affidavits over the course of a four-day hearing before me. In addition, Dr. Grover testified regarding some of the issues raised in this motion. I. BACKGROUND [3] Dr. Grover is a person of East Indian origin who is a research scientist in the field of modern optics. He was employed by the NRC from 1981 to 2007. Between 1987 and 1998, he filed four human rights complaints against the NRC, alleging discrimination on the basis of race, colour, and national or ethnic origin. The Canadian Human Rights Tribunal ruled on the first complaint (Complaint #1), on July 29, 1992. The Tribunal found that the complaint had been substantiated. [4] Dr. Grover had in the meantime filed a second complaint, on December 23, 1991 (Complaint #2), and a third complaint on July 14, 1992 (Complaint #3). Complaint #2 dealt with incidents that allegedly occurred between 1987 and September 1991. Complaint #3 referred to events occurring between June 1991 and June 1992. [5] On July 27, 1998, Dr. Grover filed his fourth complaint (Complaint #4), in which he refers to discriminatory practices that allegedly occurred from July 1992 until March 1994. [6] On August 1, 2007, the Canadian Human Rights Commission (Commission) informed the Tribunal that it was referring select allegations from Complaints #2, #3 and #4 to the Tribunal for inquiry. It is these three complaints that the NRC is seeking to dismiss with its present motion. [7] In order to better comprehend the circumstances giving rise to the motion, I have summarized in some detail the course that all four complaints have followed over the years. Since there was some overlap in the progress of each complaint, the following recap is occasionally presented out of chronological order. A. Complaint #1 - Remedial issues arising from the Tribunal decision [8] Dr. Grover had alleged in Complaint #1 that from September 1986 onwards, his directors had ignored him and denied him managerial and promotional opportunities. He also alleged that they had systematically removed his managerial and research responsibilities from him. He claimed that his race, colour and national origin were factors in this treatment. [9] The Tribunal found that his complaint was substantiated. In its decision, the Tribunal ordered the NRC to place Dr. Grover in a Group Leader or Section Head position within the organization. Accordingly, a few weeks after the release of the Tribunal decision, the NRC appointed Dr. Grover to the position of Group Leader, Optical Components Research Group, within the NRC's Herzberg Institute of Astrophysics (HIA). Dr. Grover objected to this appointment believing that it did not accord with the Tribunal's order. He brought the matter back before the Tribunal, which in turn rendered an initial decision in his favour on February 17, 1994. [10] Other issues regarding the implementation of the Tribunal's remedial order developed thereafter, so Mr. Grover petitioned the Tribunal for another hearing. The Tribunal reconvened in May 1996. By then, the NRC had a new president, Dr. Arthur J. Carty. Outside the hearing room, he and Dr. Grover took the opportunity to try settling the dispute. They successfully negotiated an agreement on all issues relating to Complaint #1 and the implementation of the Tribunal order. The terms of their agreement were read into the Tribunal's hearing record on May 21, 1996. B. Complaints #2 and #3 [11] Dr. Grover filed Complaint #2 on December 23, 1991. In January 1992, the Commission wrote to the NRC seeking its position regarding the allegations in the complaint. The NRC initially sought some clarification from the Commission about the scope of the complaint but ultimately gave its reply on April 1, 1992. I have no evidence of any further activity in the Commission's investigation of this complaint until March 1994. [12] Dr. Grover filed Complaint #3 on July 14, 1992. In August 1992, the Commission requested that the NRC respond. It appears that some of the issues raised in Complaint #3 were also the subject of a grievance that was pending before the Public Service Staff Relations Board (PSSRB) at the time. The NRC sought and obtained from the Commission an extension to file its response after the grievance was heard. In the end, the PSSRB decided, on January 7, 1994, to adjourn its hearing sine die pending the outcome of the Commission's investigation into Complaint #3. As a result, on February 21, 1994, the NRC provided its response to Complaint #3. Thereafter, the Commission began investigating the two complaints jointly. [13] In March 1994, Dr. Grover and his lawyer met with a Commission investigator to provide their comments regarding the NRC's responses to both complaints. However, within a matter of weeks, Dr. Grover and the NRC had opened discussions with a view to settling these two complaints. Consequently, the Commission investigator cancelled a follow-up meeting that had been scheduled with Dr. Grover and his counsel. [14] There is no evidence before me of any Commission activity regarding these complaints over the following 12 months. On April 7, 1995, however, the Commission contacted the NRC and informed it that a new investigator had been assigned to the complaints. [15] The evidence shows no further activity regarding the two complaints for the following 15 months, although as I mentioned earlier the parties were still involved in their protracted dispute with respect to Complaint #1. Apparently, after Complaint #1 was settled (May 1996), Dr. Grover asked the Commission to pursue Complaints #2 and #3 anew. At the same time, he also requested the involvement of Commission counsel in discussions to settle these complaints. In a letter dated July 11, 1996, the Commission informed Dr. Grover that Commission counsel would not be involved in any settlement discussions. The Commission wrote that the best course of action, given the age of the complaints would be to complete the investigations. The Commission added that it was therefore seeking Dr. Grover's cooperation in bringing the investigation of the complaints to a timely conclusion. [16] About seven months later, on January 23, 1997, Dr. Grover provided the Commission with his rebuttal to the NRC's position in respect of Complaints #2 and #3. From January to March 1997, the Commission investigator requested a number of documents from the NRC, which the NRC promptly provided. On April 28, 1997, the investigator issued her investigation report recommending the dismissal of the complaints. The Commission invited the parties to provide their submissions on the report. [17] The NRC filed its reply on April 30, 1997, concurring with the investigator's recommendations. The NRC noted that the allegations had been outstanding for several years and many NRC employees and former employees have waited patiently to have the accusations made against them resolved. [18] On July 14, 1997, Dr. Grover filed extensive submissions in respect of the investigation report's findings. He challenged the investigator's findings and argued that they contradicted the Tribunal's previous findings regarding Complaint #1. He urged the Commission to reject the investigator's recommendations and, given the age of the complaints, to limit the conciliation process to two months, after which the case would be referred to the Tribunal. [19] Following up on Dr. Grover's submissions, the Commission informed the parties, on July 23, 1997, that there were areas where further investigation was required. On August 28, 1997, the NRC filed a rebuttal to Dr. Grover's submissions, urging the Commission to reject them and bring closure to the matter. [20] Nevertheless, on September 16, 1997, the Commission investigator wrote to the NRC seeking responses to a number of questions. The investigator noted that her letter was further to the Commission's decision to stand down the complaints for further investigation. [21] By November 1997, the Commission investigator had completed her follow-up investigation and submitted it to the parties for comment. The NRC replied within days, while Dr. Grover sought and obtained permission to file his reply by January 5, 1998. On February 27, 1998, the Commission issued its decision dismissing Complaints #2 and #3. [22] On April 1, 1998, Dr. Grover commenced an application for judicial review of the Commission's decision. The Federal Court heard the application in March 2000 and rendered its decision on June 21, 2001. The Court allowed the application, concluding that the Commission had failed in its obligation to conduct a thorough investigation by not interviewing Dr. Jacques Vanier, an NRC manager who was vitally connected to the alleged discriminatory action. The matter was remitted back to the Commission to complete its investigation. C. Complaint #4 [23] At the motion hearing, Dr. Grover testified that he contacted the Commission on March 17, 1994, in order to file a fourth complaint, regarding what were then fresh incidents of discriminatory conduct. He claims that the Commission told him that a formal complaint would not be accepted from him regarding these events until his other complaints (#1, #2 and #3) had been resolved. [24] More than two years later, on July 5, 1996, Dr. Grover spoke to a Commission employee about formally filing Complaint #4. However, the Commission replied that it would not entertain a new complaint until the investigations into Complaints #2 and #3 were completed. [25] The following year, on August 27, 1997, Dr. Grover informed the Commission that he was still engaged in negotiations with the NRC (namely, with Dr. Carty) to settle any outstanding issues. Consequently, on September 10, 1997, the Commission wrote a letter to Dr. Grover advising him that his file concerning a potential complaint of discrimination against the NRC (i.e. Complaint #4) had been closed pending the outcome of the discussions. Dr. Grover was also invited to contact the Commission in the event that the outstanding issues were not resolved to his satisfaction. [26] The parties did not end up settling Complaints #2 and #3. On June 25, 1998, Dr. Grover met with the Commission to discuss filing Complaint #4. Following the meeting, the Commission prepared the formal complaint, which Dr. Grover signed on July 27, 1998. It was forwarded to the NRC, which provided its written response on November 3, 1998. [27] There are no documents in the record before me to explain what transpired in the months thereafter. However, in an affidavit signed by Lorna Jacobs, a Human Resource Generalist with the Human Resources Branch of the NRC, dated November 10, 2008, she states her belief that all submissions in respect of Complaint #4 had been filed with the Commission by January 1999. Ms. Jacobs was not cross-examined on her affidavit. D. The investigation of Complaints #2 and #3 after the 2001 Federal Court decision [28] As mentioned earlier, on June 21, 2001, the Federal Court found that the Commission failed in its obligation to conduct a thorough investigation by neglecting to interview Dr. Vanier, who was, between 1990 and 1993, the Director-General at the Institute of National Measurement Standards (INMS) of the NRC, where Dr. Grover was working in 1991 when he filed Complaint #2. The Court returned the matter to the Commission to be dealt with in a manner not inconsistent with the reasons set out in the judgment. [29] By mid-July 2001, a Commission investigator began trying to locate Dr. Vanier in order to interview him. The NRC was initially unable to be of any assistance in finding him. Dr. Vanier had retired and left the NRC in 1994. The NRC was able to provide his last known address by late August 2001. On September 18, 2001, a credit agency hired by the Commission found Dr. Vanier's new address. The Commission investigator contacted him shortly thereafter. Dr. Vanier retained a lawyer to represent him during the investigation. There were some discussions between the Commission and Dr. Vanier's counsel regarding how the interview would be conducted, including whether NRC documents regarding Dr. Grover's employment could be released to Dr. Vanier so that he could refresh his memory. The Commission investigator finally conducted her interview of Dr. Vanier on March 18, 2002. [30] The investigator prepared a summary of the interview, which she submitted to Dr. Vanier for comments and signature. He returned it to her on April 22, 2002. The document was then forwarded to Dr. Grover on May 9, 2002. By November 2002, Dr. Grover had apparently failed to provide his comments on the interview, prompting the investigator to call Dr. Grover's counsel and request the response as soon as possible so that she could move ahead. Dr. Grover apparently replied with a request that the Commission place all of the complaints (#2, #3 and #4) in abeyance pending the outcome of litigation that he had recently initiated against the NRC before the Ontario Superior Court. [31] On December 11, 2002, the investigator sought the NRC's position on Dr. Grover's request. The NRC had, by March 20, 2003, still failed to reply. In any event, it seems that the Commission decided not to keep the files in abeyance, and on May 26, 2003, the investigator issued her report, in which she recommended that the Commission refer all three complaints to the Tribunal. This, of course, included Complaint #4 regarding which the Commission had not formally completed its investigation or prepared a report. [32] By July 11, 2003, both the NRC and Dr. Grover had made their submissions to the Commission regarding the investigator's recommendations. On September 16, 2003, the Commission decided to refer all three complaints (#2, #3 and #4) to the Tribunal. On October 17, 2003, the NRC applied to the Federal Court for judicial review of the Commission's decision. The Court issued its judgment on May 14, 2004. It found that the Commission had given insufficient reasons to support its decision regarding Complaints #2 and #3, and that the referral of Complaint #4 was premature given the Commission's failure to complete its investigation into that complaint. The Court set aside the Commission's decision and ordered that the Commission complete a thorough, neutral evaluation before reaching a decision regarding Complaint #4. The Commission was also ordered to provide a more reasoned decision with respect to Complaints #2 and #3. [33] I have no evidence before me of whether the Commission, in the immediately ensuing months, proceeded to complete Complaint #4's investigation or prepare a reasoned decision regarding the other complaints. Instead, on October 15, 2004, (i.e. five months after the Federal Court decision), Commission counsel met with NRC counsel to discuss a number of issues including the possibility of initiating an early resolution process that could result in the settlement of the complaints. By March 16, 2005, the Commission had held a similar discussion with Dr. Grover. [34] It is unclear what the outcome of these initiatives was, but by November 22, 2005, the record shows that the Commission had retained the services of a lawyer in private practice to conduct a supplementary investigation into Complaints #2 and #3, and to complete the investigation into Complaint #4. It took some time apparently for the lawyer's contract with the Commission to be finalized, prompting the Commission to advise the parties on May 2, 2006, that the investigations were being placed on hold for a very short period of time until that process was completed. [35] The record then shows that on January 3, 2007 (i.e. eight months later), the investigator contacted NRC counsel for assistance in locating a number of former NRC employees mentioned in Dr. Grover's complaints, who the investigator wanted to interview. Their whereabouts were confirmed and the investigator began interviewing them by March 12, 2007. [36] The investigator issued the supplementary report of Complaints #2 and #3 on February 28, 2007, and her investigation report regarding Complaint #4, on March 22, 2007. On July 31, 2007, the Commission released its decision regarding all three complaints. The Commission concluded that several of the allegations should be dismissed, but it also decided to refer to the Tribunal the remaining allegations, arising from all three complaints. The Commission sent its letter of referral to the Tribunal the following day, August 1, 2007. E. Circumstances since Complaints #2, #3 and #4 were referred to the Tribunal [37] As part of the Tribunal's case management process, Dr. Grover was to provide his disclosure documents by February 29, 2008. He actually only did so on April 15, 2008. The NRC responded by filing a motion on June 5, 2008, to strike a number of the allegations in Dr. Grover's statement of particulars. In a ruling dated August 21, 2008, the Tribunal agreed that several paragraphs must be struck, principally because many of these issues had already been addressed in the Tribunal's decisions regarding Complaint #1. [38] The NRC then brought the present motion on September 15, 2008. II. ANALYSIS [39] The NRC contends that there has been an unacceptable delay in the hearing of the three complaints, the first of which was filed 17 years ago. It argues that it is therefore significantly prejudiced in its ability to respond to the complaints, and in the alternative, that the hearing of these complaints would bring the human rights system into disrepute and constitute an abuse of process. A. Prejudice to the fairness of the hearing caused by the delay [40] The principles of natural justice and the duty of fairness are part of every administrative proceeding (Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at para. 102). As the Supreme Court noted in Blencoe, these principles include the right to a fair hearing, which, for respondents, encompasses the ability to make a full answer and defence to the allegations made against them. This entitlement finds its expression in s. 50(1) of the Canadian Human Rights Act, which directs Tribunal members to give all parties ... a full and ample opportunity, in person or through counsel, to appear at the inquiry, present evidence and make representations. [41] As Blencoe, ibid, further states, 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 administrative proceedings and provide a remedy. [42] Section 41(1)(e) of the Act provides that the Commission has the discretion not to deal with a complaint that is based on acts or omissions that occurred more than one year before receipt of the complaint (or such longer period of time as the Commission considers appropriate in the circumstances). In the present case, at least one of the complaints (#4) was formally filed with the Commission over four years after the last of the incidents alleged therein. The Commission decided to deal with this complaint. The Canadian Human Rights Tribunal does not have the jurisdiction to review this Commission decision, a power that rests exclusively with the Federal Court (I.L.W.U. (Marine Section) Local 400 v. Oster, [2002] 2 F.C. 430 (T.D.) at paras. 25-31). However, if the entire pre-hearing delay, from the earliest 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 (Gagné v. Canada Post Corp., 2007 CHRT 18 at para.8; Desormeaux v. Ottawa Carleton Regional Transit Commission (2002 July 19) T701/0602 (C.H.R.T.) at para. 13). [43] The Supreme Court pointed out in Blencoe at para. 101, that delay, without more, will not warrant a stay of proceedings. The delay must be such that it would necessarily result in a hearing that lacks the essential elements of fairness. Evidence must be brought to bear demonstrating prejudice of sufficient magnitude to impact on the fairness of the hearing (Blencoe at para. 104; Ford Motor Co. of Canada v. Ontario (Human Rights Comm.), 1995 CanLII 7431 (Ont. S.C.) at para. 16). B. How has the NRC been prejudiced by delay in the present case? [44] Complaint #2 contains a list of ways in which the NRC allegedly discriminated against Dr. Grover. Aside from the first clause simply claiming that he was denied salary increments since 1987, the remainder of the allegations refer to a period commencing in August 1990 and ending on September 18, 1991. Complaint #3 contains a similar list of discriminatory practices (16 in total), which are alleged to have occurred from June 1991 to the date of the complaint, July 14, 1992. Complaint #4's list is 51 paragraphs long but some of the alleged discriminatory practices (from July 1992 to March 1994) are described over several paragraphs. [45] In any event, as a result of the Commission's decision to refer to the Tribunal only several of the complaints' allegations, and the Tribunal's ruling in August 2008 striking out a few of those allegations as well, the number of alleged discriminatory practices at issue were significantly pared down. They are now best identified through Dr. Grover's Amended Statement of Particulars, which he filed on September 15, 2008. I describe each of the alleged discriminatory practices below and summarize the evidence of prejudice to which the NRC claims it is subject because of delay in this case. [46] Alleged discriminatory practice #1 Dr. Grover claims that in January 1991, the NRC's Information Services Office selected him to prepare a holography display that would be included in the NRC's 75th Anniversary Exhibit. He claims that his Director General, Dr. Vanier, interfered in the process and as a result, Dr. Grover was told that his display was no longer being considered. Dr. Grover claims that Dr. Vanier took this action to damage his career and self-esteem, and that Dr. Vanier was motivated by discriminatory considerations. [47] Dr. Vanier signed an affidavit on which he was cross-examined at the motion hearing. He states in the affidavit that he was Director General of INMS until March 5, 1993, and that he remained at the NRC thereafter as an employee fulfilling international engagements until January 4, 1994, at which time he retired. He is 73 years old today. He claims to have no independent recollection of the event nor can he elaborate on two memos prepared in February 1991, one by him and another by a colleague, Dr. Ronald Bedford, which apparently relate to the event. The cross-examination of Dr. Vanier did not yield any variation in his evidence. He does not recall the NRC ever having asked him prior to 2008 for his version of the alleged events. [48] Dr. Bedford also signed an affidavit and was cross-examined. He was a director within INMS in 1991. He was employed by the NRC between 1955 and 1995, when he retired. He is 78 years old. He states in his affidavit that he has no recollection of the alleged incident involving the holography display nor can he elaborate on discussions that he may have had with Dr. Vanier beyond what is referenced in the two February 1991 memos. In cross-examination, he was unable to recall any additional information. He testified that no one from NRC had ever spoken to him about these allegations before his retirement in 1995 or thereafter. When the NRC contacted him in 2008 prior to the preparation of his affidavit, he viewed the matter as coming at him out of the blue. [49] The Commission's first investigation report regarding Complaints #2 and #3, dated April 28, 1997, dealt with the matter of the 75th Anniversary Exhibit issue. The investigator had apparently spoken at the time to Charles Reynolds, who was the NRC's Chief, Creative Services, when the exhibit was being prepared. The investigator apparently also interviewed an unnamed video coordinator as well as the Trade show / special events coordinator (Suzanne Auger). [50] Mr. Reynolds signed an affidavit on which he was cross-examined at the motion hearing. He was employed by the NRC from 1988 until November 1997. According to a memo written by Dr. Grover on January 17, 1991, Mr. Reynolds and Ms. Auger had apparently met with Dr. Grover and asked him to prepare a holography display for the exhibit. Mr. Reynolds testified that he remembered visiting Dr. Grover in his lab but that he does not recall what he and Ms. Auger may have told Dr. Grover about their interest in his holography display for the purposes of the exhibit. Mr. Reynolds states that he has no specific recollection of any interference by Dr. Vanier, as alleged by Dr. Grover. With the passage of time, Mr. Reynolds says that has no recollection of a conversation with Ms. Auger in which (according to 1997 findings of the Commission investigation) he purportedly instructed her not to approach Dr. Grover. He has a vague recollection of telling her not to contact any of the NRC research scientists directly for protocol reasons. He testified that he had no independent recollection of having ever met Dr. Vanier. He accepted that a memo from February 1991 suggested that he had spoken to Dr. Vanier, but he maintained that he had no independent recollection thereof. He pointed out that he was involved in a lot of activities at the time and that basically, the events alleged regarding this exhibit were long ago and were not a big deal in his life. The NRC never contacted him about this incident over the years, and he testified that he either destroyed his records regarding the exhibit (as was his usual practice) or left them with the NRC. [51] Dr. Vanier, Dr. Bedford and Mr. Reynolds were shown, in cross-examination, the memo that Dr. Grover had addressed to Dr. Bedford in January 1991 regarding the holography display issue. It did not trigger in them any memories of the event. No evidence was received from Ms. Auger or the unnamed video coordinator. [52] Alleged discriminatory practice #2 In February 1991, the International Society for Optical Engineering (known as SPIE) informed Dr. Grover that he would be receiving a prestigious fellowship award at the organization's symposium, which was to be held the following July in San Diego. He submitted a request to his direct supervisor at the time, Dr. Bedford, for funding to travel to the symposium. Dr. Bedford forwarded the request to Dr. Vanier, who allegedly denied the request for funding in June 1991. Dr. Grover claims that his travel funding was eventually approved after his union intervened. He is of the view that the initial refusal was calculated to diminish his career and reputation, and to cause him embarrassment and humiliation. [53] Dr. Bedford states in his affidavit that he has no recollection of any discussions he may have had with Dr. Vanier about the issue, apart from the March 8, 1991, memo (attached to the affidavit), which he wrote to Dr. Grover confirming that the travel funding request had been forwarded to Dr. Vanier for approval. In his testimony, he elaborated that he recalled Dr. Grover's request, but he could not recall any of the matters referred to in a number of documents put before him at the hearing, including another memo that he wrote to Dr. Grover on June 14, 1991. Dr. Bedford recalls that Dr. Grover ultimately did attend the symposium. [54] Dr. Vanier stated in his affidavit that he has no recollection of the conference or any conversations he may have had with Dr. Bedford regarding Dr. Grover's attendance. In his testimony, he pointed out that he was refusing many requests for travel funding from research officers at the time due to limited budgets and quotas. However, he had occasion to approve some travel requests upon reconsideration, and he has a vague recollection of Dr. Grover's request being one of them. But he also maintained in his testimony that he did not recall any conversations he would have had with Dr. Bedford or any union representatives regarding Dr. Grover's request. For that matter, he has no recollection of the union ever being involved. Dr. Vanier's memory was not triggered by any of the documents shown to him, none of which he recognized or recalled seeing before. [55] Alleged discriminatory practice #3 Dr. Grover was away from work over the summer of 1991. When he returned in September, Dr. Bedford delivered a memo to him, advising him to produce a work plan, weekly time sheets, and a trip report regarding the San Diego SPIE symposium. The memo asserted that these items had been previously requested of Dr. Grover. He claims that given that he had just returned to work, the memo was unreasonable, unfair, and delivered with purpose of harassing and causing him distress. [56] Dr. Bedford wrote in his affidavit that aside from a vague recollection of having asked Dr. Grover for a work plan, he has no specific recollection at all of the events giving rise to, nor any discussions that he may have had, concerning Dr. Grover's production of weekly time sheets and a trip report. Dr. Bedford was not questioned about this matter during his cross-examination on the affidavit. [57] Alleged discriminatory practice #4 On June 2, 1992, Dr. Vanier wrote a memo to Dr. Grover regarding the development of the latter's project work plan. Dr. Vanier claims in the memo that attempts over the previous year to develop the plan had failed because the NRC had been unable to obtain Dr. Grover's input and agreement. Dr. Vanier therefore imposed a work plan and required that Dr. Grover report to an individual (Dr. J. Zwinkels) every two months on the progress accomplished. Dr. Grover claims that this requirement was discriminatory as white scientists were not obliged to provide such progress reports. He also alleges that Dr. Vanier instructed Dr. Zwinkels and Dr. Vanier's secretary (Angie Loucks) to deliver the memo together to Dr. Grover and read it aloud to him. These actions, according to Dr. Grover, were designed to harass him and cause him distress. [58] Dr. Vanier states in his affidavit that he does not recall any discussions that he may have had with, or documents received from, Dr. Zwinkels, Dr. Bedford, or from NRC Human Resources regarding this issue. He defers to the content of the memo as well as the CHRC investigator's summary of her interview with him from March 2002 (which I referenced earlier in this ruling). Dr. Vanier had reviewed and commented upon the summary before signing it on April 22, 2002. According to the summary, he had asked for the bi-monthly reports because contact with Dr. Grover had been broken, although he acknowledged that he did not impose a similar reporting requirement on other senior scientists. The summary also stated that he asked for the memo to be hand delivered because, on a previous occasion, Dr. Grover had said that he had not received a document. Dr. Vanier wanted to be certain of delivery this time. The summary reported that Dr. Vanier remembers that Dr. Grover's prior activity reports were inadequate and that he was not being cooperative in preparing a work plan. [59] During his testimony before the Tribunal in November 2008, Dr. Vanier said that while he remembered that the event in 1992 had happened, he did not remember the details of the exact operation that took place. He no longer has any independent recollection thereof, though he assumes that when he spoke to the Commission investigator in 2002, he still had some independent recollection as reflected in her summary. [60] Dr. Bedford, for his part, wrote in his affidavit that he did not recall any discussions with Dr. Zwinkels or Dr. Vanier about the circumstances surrounding the June 2, 1992, memo. Dr. Bedford was not questioned on this matter during his cross-examination on his affidavit. [61] Ms. Loucks had apparently signed an affidavit on February 4, 2008, for the purposes of some other proceedings before the Federal Court. In this affidavit, she stated that she has no recollection of this event or of any discussions with Dr. Zwinkels, Dr. Vanier, or anyone else concerning the matter. Ms. Loucks' employment with the NRC ended in December 1997. Lorna Jacobs, the NRC human resources generalist referred to earlier in this ruling, spoke to Ms. Loucks on October 23, 2008. Ms. Jacobs signed an affidavit on October 30, 2008, regarding this conversation. Ms. Jacobs explained that Ms. Loucks told her she would no longer cooperate regarding these complaints as she had no recollection of these alleged 1992 events. Ms. Loucks referred to her February 4th affidavit, adding that she did not feel she could add anything further to the process and that with her retirement, she had moved on with her life. [62] Mr. Grover did not ask to cross-examine Ms. Jacobs on her affidavit. [63] Alleged discriminatory practice #5 Dr. Grover states that although the NRC did not seek judicial review of the Tribunal's decision on the merits of Complaint #1, it never truly accepted the Tribunal's finding of discrimination. He cites, as an example, a September 1992 letter sent to a Member of Parliament (MP) by Dr. Pierre Perron, who served as NRC President between July 1989 and July 1994. Dr. Perron purportedly stated in the letter that the Tribunal decision came as a great shock to the NRC since the Tribunal was able to make this finding in the absence of any evidence to this effect. Dr. Grover describes this propaganda as hurtful and claims it exacerbated the mental suffering he experienced relating to Complaint #1 and the NRC's treatment of him throughout the proceedings. [64] Dr. Perron signed an affidavit, which the NRC filed in support of its motion. There is no mention of this allegation in the affidavit. However, when Dr. Perron was cross-examined on the affidavit, he recalled receiving a letter from an MP regarding Dr. Grover's case because he also remembered being presented with a letter to sign in reply. He does not recall any details about the letter that he signed. He testified that it was the general practice for the NRC's correspondence directorate to write this type of correspondence and for him to perhaps make some editorial changes before signing it as the agency's head. [65] Dr. Perron also testified that since leaving the NRC in November 1994 no one had spoken to him about the matter until the end of 2007 when an NRC employee called and asked him to get in touch with NRC's legal counsel in the present case. He claims that the whole matter was news to him, having been away from the NRC since 1994. Dr. Perron is 69 years old. [66] Alleged discriminatory practice #6 Pursuant to the Tribunal's order in the 1992 decision regarding Complaint #1, the NRC appointed Dr. Grover to a Group Leader position at the HIA. According to Dr. Grover, in order to facilitate this appointment, one of his co-workers (Dr. Ian Powell) was displaced from the same position, which Dr. Powell and his colleagues regarded as a demotion. This caused resentment towards Mr. Grover among the entire group (including Dr. Powell), and fostered negative views of him. It created a poisoned work environment for him. Dr. Grover believes that the NRC knew this would be the likely result of demoting Dr. Powell to appoint him, and did so due to discriminatory considerations. [67] The letter advising Dr. Grover of his new post was addressed to him by Dr. Perron on September 10, 1992. Dr. Perron wrote in his affidavit that he has no recollection of any discussions held with, or directions given, to any senior management personnel that Dr. Powell was to be demoted or otherwise displaced by Dr. Grover. Dr. Perron added that he does not recollect ever knowing or having met Dr. Powell. [68] In his cross-examination, Dr. Perron reiterated that he does not recall knowing or meeting Dr. Powell. He added that he does not recall being involved in deciding where Dr. Grover would be appointed, in furtherance of the Tribunal decision, nor does he recall what options may have been considered for the appointment. He does not have any recollection of the letter sent to Dr. Grover, but from the tone of it, Dr. Powell believes that it was not he who drafted it. As was typical of the NRC's bureaucratic process, someone else would have prepared it and presented it to him for signature. He does not recall if any friction developed between Dr. Grover and others, but if there was any, he does not remember. Dr. Perron pointed out that he has been away from the NRC for 14 years and no one had raised with him the issues regarding Dr. Grover prior to 2007. [69] Dr. Grover's direct supervisor at his new position was Dr. Bryan Andrew. Dr. Andrew was employed by the NRC between 1965 and 1996, when he retired. The NRC filed in evidence an affidavit that he signed in October 2008, on which he was cross-examined at the motion hearing. Dr. Andrew was shown a summary of an interview that a Commission investigator had conducted with him in February 2000. Dr. Andrew had, at the time, reviewed the summary and in fact, retyped it to more accurately reflect his responses. The summary incorporates some fairly detailed answers regarding some of the issues raised in Complaint #4 (which covered the 1992 to 1994 period). In the document, Dr. Andrew states that he recalls Dr. Powell's sense of grievance at having to make room for Dr. Grover's arrival. Dr. Andrew sets out a number of specific observations in this regard. Dr. Andrew testified that he can remember writing the summary, and that in reading it today, he finds most of it meaningful, although he is no longer able to remember the original circumstances related therein. He only recalls that there was friction between Dr. Grover and Dr. Powell, and the general tenor of conversations that he had with them regarding their tension. Dr. Andrew testified that he would hesitate today to say what the source of their friction was, based on his memory. [70] Dr. Andrew was shown copies of a journal that he kept when he was an NRC employee in which he jotted notes of his telephone conversations, including some with Dr. Powell. He testified that reading these notes today is not of much assistance in helping to jog his memory as the handwriting is mostly illegible, pointing out as well that the notes would have made more sense to him at the time when he would have known their context, rather than today. Dr. Andrew does not recall being consulted by anyone at the NRC prior to its contacting him in the last year to prepare his affidavit. Since his interview with the Commission in 2000, he had heard nothing more about Dr. Grover's case. [71] Alleged discriminatory practice #7 Dr. Grover claims that in addition to Dr. Powell, another colleague, Dr. Amanda Bewsher, was also negatively disposed towards him and the Tribunal ruling. Dr. Grover alleges that in the fall of 1993, these NRC employees began the practice of refusing to meet with him for any reason, unless they both could be present, adding that this practice was expressly approved by Dr. Perron. This seriously undermined Dr. Grover's authority, position and reputation, and implicitly cast doubt on the Tribunal ruling. [72] Ms. Jacobs described in her affidavit the attempts she made to contact Dr. Bewsher, who resigned from the NRC in 1997. Ms. Jacobs notes that in Dr. Bewsher's NRC file there was a forwarding address in Wales where she had relocated. Ms. Jacobs tried to call the telephone number on file but it had been disconnected. She then conducted an Internet search but attempts to call the one telephone number that appeared relevant were fruitless (the number was no longer in service). The directory assistance service of Wales could not provide any further information either. [73] Apparently, Dr. Bewsher filed a harassment complaint with the NRC against Dr. Grover in 1992. The NRC's investigation report into her complaint stated that Dr. Perron advised Dr. Bewsher to always be accompanied by Dr. Powell when she met with Dr. Grover. In his affidavit, Dr. Perron states that he has absolutely no recollection of his ever advising anyone to visit Dr. Grover in the manner alleged. Dr. Perron's recent reading of the NRC report did not aid in his recollection. [74] Dr. Vanier testified that he does not at the present time remember anyone by the name Amanda Bewsher. It was suggested to him that she may have had a different family name in 1992, and he seemed to only vaguely recollect that name. [75] Alleged discriminatory practice #8 Dr. Grover claims that as of March 3, 1994, the name plate outside Dr. Powell's office and in the Directory at the entrance of the HIA building, continued to identify Dr. Powell as the group leader of the Optical Components Research Group, even though Dr. Grover held the position since September 1992. In addition, the name plate outside Dr. Grover's office did not describe him as group leader. Dr. Grover contends that the NRC's failure to rectify these errors served as a reminder to everyone in the group of the contentious circumstances under which he was promoted and Dr. Powell was demoted. It also served to undermine Dr. Grover's authority and status within the organization and among his co-workers. [76] Michael Storr was employed by the NRC from 1970 until his retirement in 2005. Between 1992 and 1995, he was Manager of Operations for the HIA. His responsibilities would have included matters such as the maintenance of nameplates and the building directory. Mr. Storr stated in his affidavit that he vaguely recollected Dr. Grover having brought to his attention the concern regarding his nameplate. Mr. Storr had no recollection of Dr. Grover raising the building directory issue with him. Mr. Storr also has only a vague recollection of having rectified the nameplate outside Dr. Grover's door but he does not recall how soon it was after Dr. Grover had brought the matter to his attention. Mr. Storr reiterated these statements in his cross-examination. He pointed out that he only became aware of Dr. Grover's complaint six months ago. The matter had never been raised with him in the interim (14 years). [77] Dr. Donald C. Morton was Dr. Grover's indirect supervisor at his new position within the HIA. Dr. Morton was employed by the NRC from 1986 to 2001 when he retired. He is 75 years old. In his affidavit, he pointed out that Dr. Grover was working in a different building from him, and it was a facility that Dr. Morton visited infrequently. He does not recall what, if any, complaint was made to him by Dr. Grover regarding nameplates and the building directory, nor how the matter may have been resolved. This issue was not raised with Dr. Morton in his cross-examination. [78] Alleged discriminatory practice #9 Dr. Grover claims that in March 1994, he requested funds to hire a summer student. Dr. Morton advised him that the HIA's Management Committee had rejected his request. Dr. Grover alleges, however, that similar requests by white scientists were approved. He contends that his summer student project was as meritorious or more meritorious than the approved projects. He alleges that the rejection was part of a pattern of systemic discrimination. [79] Dr. Andrew addressed this issue in his affidavit. He stated that he has no recollection of this event at all, including whether the Management Committee ever held a meeting regarding summer students or whether the question had been delegated to a committee. He has no recollection of how many students were available for hire, which scientists made applications or the nature of their proposals. No questions were put to Dr. Andrew regarding this matter in his cross-examination. Dr. Morton similarly stated in his affidavit that he had no recollection of the event. His testimony did not elaborate any further on his recollection about this issue. [80] Dr. James Hesser was Dr. Grover's direct supervisor at HIA. He is still employed by the NRC, within the HIA. He stated in his affidavit that he sat on the Management Committee with Dr. Andrew and Dr. Morton, and that the Committee's responsibilities included addressing the issue of summer student hirings. He added, however, that he has no recollection of the particular event raised by Dr. Grover in his complaint, including how many applications were made and on what basis decisions to accept or reject proposals were made. [81] Alleged discriminatory practice #10 Dr. Grover alleges that his treatment was part of a pattern of systemic discrimination against Asian scientists, particularly East Asians and Chinese, who were regarded as less important or capable scientists. As an example, Dr. Grover cites the case of two guest workers who joined his group in 1994, one of whom was a Chinese Canadian. This latter guest worker's name was not added to the staff list until two months after the first guest worker. As another example, Dr. Grover recounts a statement made by Dr. Hesser at a management meeting held in Victoria, B.C., in September 1994. Twelve people were in attendance, including Dr. Andrew, Dr. Morton, and Dr. Grover. Dr. Hesser allegedly said that care should be taken before hiring East Indian or Chinese scientists because they faked their qualifications and could not be trusted. No one in the room objected to the comments, but later that day, Dr. Hesser allegedly sent a memo to the group apologizing for the remarks, which he acknowledged sounded terrible and were racist. Dr. Grover complains that Dr. Andrew and Dr. Morton never asked him how he felt about the incident or whether he was hurt by the comments. In addition, he claims that no action was taken by the NRC to counsel Dr. Hesser or investigate whether his views were part of a larger problem within the institution. Dr. Grover adds that at the time, none of the approximately 40 key management positions at the NRC were occupied by scientists of Asian origin. [82] Mr. Storr discussed the matter of staff lists in his affidavit. He was ultimately responsible for maintaining such lists, but he relied on Group Leaders to provide him with notification if there were errors on the lists. He has no recollection of whether Dr. Grover, as a Group Leader, approached him regarding the list referred to in the complaint, and if so, when the list was rectified. In his cross-examination, Mr. Storr elaborated further on the process of managing staff lists, but his evidence regarding his recollections about the specific incident alleged was not challenged. [83] Dr. Andrew wrote in his affidavit that he had no recollection of the specific Victoria meeting mentioned in the complaint, or of who may have been present at this meeting. He also had no recollection of any comments that Dr. Hesser may have made there, or of having received any apology. He does not recall any of the other matters raised by Dr. Grover pertaining to this allegation. His recollection of the incident (or lack thereof) was not raised in his cross-examination. [84] Dr. Morton similarly wrote in his affidavit that he had no recollection of the meeting or of the parties present. He does not recall any comments by Dr. Hesser or any subsequent apology. He also has no recollection of any discussions he may have had with anyone present at the meeting or subsequently with Dr. Grover, concerning this event. His evidence as to his recollection was not challenged in cross-examination. He confirmed that after he moved to Victoria, these meetings normally were held either in that city or by teleconference. C. Has the NRC's ability to provide an answer to the allegations been impaired? [85] The delay from the occurrence of the last alleged discriminatory practice (September 1994) to the date when the Commission referred the complaints to the Tribunal (August 1, 2007) is almost thirteen years. The first alleged incident of discrimination (January 1991) occurred 16.5 years prior to the referral. Since the referral, over 17 months have elapsed and by the time the scheduled hearing dates come around in March 2009, another three months will have gone by. [86] All the affiants implicated in the complaints declared in their affidavits that they have little or no independent recollection of the 1991 to 1994 events alleged in the complaints. Those who were called to be cross-examined at the hearing maintained that that they could not recall the incidents. Most of these people retired from or ceased their relationship with the NRC between 1994 and 1997. Several of them, particularly those who served as Dr. Grover's supervisors in the period at issue, are now approaching or all well into their 70's. Some of these people are being asked to recall events and conversations that occurred as many as 18 years ago. Their failure to remember these incidents is understandable. [87] Moreover, any recollection that they may claim to have after so many years is likely to be highly unreliable, a point that was also noted by the Ontario Court (General Division) in Ontario (Ministry of Health) v. Ontario Human Rights Commission, [1993]O.J. No. 1528 (Ont. Ct. (Gen. Div.)) (QL). That case dealt with incidents that had occurred seven to nine years earlier. The Court stated, at para. 23, that: It is doubtful whether any tribunal can safely rely on the memories of witnesses as to events that happened so long ago, particularly where the significance of some of the events may depend upon nuances in speech, attitudes, or behaviour. [88] Many of the alleged discriminatory practices in the present case relate to attitudes or behaviour that Dr. Grover described as an expression of a negative disposition or resentfulness towards him. He referred to some behaviour as harassing. Some of the alleged discriminatory practices are based on conversations, such as the one with Mr. Reynolds and Ms. Auger during which Dr. Grover claims that he was told his holography display had been selected for NRC's 75th Anniversary Exhibit. The evidence regarding these alleged discriminatory practices would thus be dependent on the very nuances referred to by the Court in the above excerpt. [89] One of the reasons given by several of the affiants for their failure to recall the alleged events is the innocuous or minor nature of the incidents relative to the individuals' respective life experiences overall. Mr. Reynolds said that he was doing a lot of things in 1991 and Dr. Grover's holography exhibit was not a big deal in relation to all of his activities over the years. Dr. Vanier testified that he had refused many requests for travel funding from multiple NRC scientists. He therefore has difficulty singling out any details about Dr. Grover's particular request. Dr. Perron explained that as NRC president from 1989 to 1994, he signed hundreds, if not thousands, of letters that had been prepared for him by the NRC's correspondence directorate. He was unable therefore to recall practically any details about the 1992 letters regarding Dr. Grover, referred to in the complaints. The relative trivialness of the alleged incidents, as viewed from these individuals' perspective, provides a reasonable explanation for some of their memory loss over the course of the ensuing years. [90] Dr. Grover contends that blame for some of this memory loss should be ascribed to the NRC itself for having failed to make any efforts to preserve these witnesses' recollections. Most of them testified that the NRC had not spoken to them over the years about Dr. Grover's allegations. I am not convinced, however, that there would have been any difference in the witnesses' ability to independently recall individual events from so long ago even if the NRC had spoken to all of these witnesses at an earlier time. A Commission investigator interviewed Mr. Reynolds back in 1997, about six years after the holography exhibit incident alleged in Dr. Grover's complaint. Judging by the investigator's report, it appears that Mr. Reynolds had a better recollection of the matter at that time. Yet, the fact that he was interviewed back then did not assist him in independently remembering any details today. [91] Similarly, Dr. Bedford and Dr. Vanier were unable to recall the incidents alleged in the complaints with the detail that they were able to provide when the Commission interviewed them in 2000 and 2002 respectively. Dr. Grover questions how it could be that their memory could have so weakened since then. But these interviews did not just occur yesterday; they took place six to eight years ago. It is not at all unreasonable for these two witnesses, who it bears repeating are in their 70's and well into their retirement, to have a significantly reduced recollection of those old events, even when compared to their recollection from six and eight years ago. Courts have ordered the dismissal of human rights complaints on the basis of delay where the gap between the incidents alleged in the complaint and the tribunal referral was similar to, or even shorter than, the time that has passed in the present case since the dates when the Commission merely interviewed Dr. Bedford and Dr. Vanier (see e.g. Nulla Bona Holdings Ltd. v. British Columbia (Human Rights Commission), 2000 BCSC 502; Ontario (Ministry of Health), supra). [92] I am therefore satisfied that due to the witnesses' inability to recall the events alleged in the complaints, the NRC's ability to make a full answer to the allegations made against it has been impaired by the delay in this case. D. Must the delay be unacceptable or undue to justify the dismissal of the complaint? [93] Even if the witnesses' memory loss so prejudices the NRC that it is no longer able to fully answer the allegations made against it, will that constitute sufficient basis to dismiss the complaints? Must the delay be of a certain gravity or duration to warrant dismissal? Dr. Grover argued that a complaint should only be dismissed in cases where the delay is found to be unacceptable. With respect to his own case, he contends that given all of the activity that was going on in all three of his complaints over the years, the delay was not unacceptable. [94] In considering Dr. Grover's submission, it is important to keep in mind that the matter at issue here is one of natural justice and fairness. If circumstances have evolved to the point that a fair hearing can no longer be assured, the Tribunal will effectively be without jurisdiction to proceed. Thus, when one speaks about delay impairing a party's ability to make a full answer to a complaint, the emphasis is on the prejudice caused by the delay and not the nature of the delay itself. Everything will depend on the circumstances of each case. In some instances, a Tribunal may find that a delay of many years does not hinder the party's ability to respond to a complaint, while in others, a relatively shorter period of time will be found to have had the opposite effect and denied the party access to a fair hearing. For instance, in Chan v. Ontario Power Generation Inc., [2000] O.H.R.B.I.D. No. 7 (Ont. Bd. Inq.) (Q.L.), 52 months had elapsed from the filing of the complaint to the referral to the Board of Inquiry. The Tribunal was not convinced that the respondent had suffered prejudice of sufficient magnitude to warrant dismissal of the complaint. In Nulla Bona Holdings Ltd., supra, on the other hand, the BC Supreme Court found that a delay of 42 months caused both inferred and actual prejudice to the respondent's ability to present its case. [95] The focus is placed on the actual prejudice caused by the delay. In my view, the delay need not necessarily be qualified as unacceptable or undue for a respondent to avail itself of a remedy. To be sure, both of these terms are peppered throughout most of the jurisprudence dealing with questions of delay. After all, it is hard to imagine any circumstances where an ordinary or reasonable delay would impair a party's ability to answer a complaint. These issues by nature will arise in cases of inordinate delay. But faced with a situation where a respondent is prevented from giving full answer and defence to a complaint made against it due to the passage of time, the Tribunal shall have no choice but to end the process that has now been rendered unfair, no matter how short or long the delay or the reasons for it. [96] However, even if my understanding of the test is incorrect and that only prejudice caused by unacceptable or undue delay can be remedied, I find, in the facts of the present case, that the delay is indeed unacceptable and undue. A span of such duration, between the occurrence of the alleged events and the referral of the complaints to Tribunal, is highly inordinate. It defies all logic to propose that this delay is anything but unacceptable. [97] Dr. Grover suggests that one should look carefully at the sources of the delay before drawing any conclusions. A part of the delay can be attributed to the judicial review process (a total of about four years - three relating to Dr. Grover's judicial review application and one arising from the NRC's). That still leaves a period of between nine and 12.5 years, depending on the complaint. Dr. Grover argues that even during this time, the situation was not one where nothing was going on. At times the parties were so focussed on Complaint #1 that the Commission slowed down or suspended its investigation into the other complaints. The Commission's first decision with regard to Complaints #2 and #3 was issued in 1998, about six years after they were filed, which is a long time but not necessarily inordinate when compared to some other complaints that come before the Tribunal (see Cremasco, supra, at 107; Gagné, supra at para 12.). Some of the delay was attributable to additional Commission investigations, which came about as a result of Federal Court orders. However, as the NRC rightly points out, these extensions occurred because the Commission did not execute its investigations properly in the first place. [98] Furthermore, the record shows that there are some gaps in the case's history that are not explained or justified. For instance, there is almost a three year span between the Federal Court's decision of May 14, 2004, ordering the Commission to complete its investigation of Complaint #4, and the date when the external Commission investigator contacted the parties seeking the contact information for several witnesses (January 3, 2007). There is no indication of her investigation actually commencing before then. There may have been some preliminary discussions between the parties in the fall of 2004 (though the evidence does not go so far as to indicate that they were actual settlement negotiations). But even if such talks were ongoing, the fact remains that the clock was still ticking away regarding the developing prejudice to the NRC's ability to defend itself. [99] The causes cited for the delay do not, in my view, lessen its unacceptability. E. Is the prejudice of sufficient magnitude to impact on the hearing's fairness? [100] Has this unacceptable and undue delay so impaired the NRC's ability to make a full answer to the complaint that there has been an impact on the fairness of the hearing (Blencoe, supra at paras. 102, 104)? In my view, the answer is yes. The NRC is no longer able to fully respond to the allegations made against it due to the fact that so many of its witnesses, through the passage of time, are unable to independently recollect the incidents alleged in the complaints. This case is not like others, where evidence of prejudice to the fairness of the hearing was lacking. In Blencoe, at para. 103, the Supreme Court adopted the trial judge's finding regarding the respondent's claims that his witnesses' memories had been impaired with the passage of time. The lower court had found that those were vague assertions falling short of establishing an inability to prove facts necessary to respond to the complaints. Similarly, in Gagné, supra at paras. 12-14, there was no evidence that the memories of witnesses had necessarily faded. In the present case, however, eight potential witnesses actually gave evidence of their faded memories. These are individuals who the NRC would reasonably be expected to call to give evidence in answer to Dr. Grover's allegations. The prejudice claimed by the NRC (namely, its witnesses' loss of memory) is thus not just comprised of vague assertions. [101] It is significant that the Tribunal has heard the testimonies of most of these people, including those whose role was particularly highlighted in the complaints (e.g. Dr. Vanier, Dr. Bedford, and Dr. Perron). In Chan, supra, the Ontario Board of Inquiry found that only by hearing evidence from the respondent's witnesses, would it have been able to gauge the respondent's assertions about its witnesses' lack of recall about the events. In contrast, I have actually had the benefit to have heard from many of the potential witnesses for the NRC and their memory loss has indeed been established. [102] Dr. Grover challenges the genuineness of the witnesses' declared lapses in memory, particularly with respect to Dr. Vanier and Dr. Perron, both of whom figured fairly prominently in the Tribunal's 1992 decision regarding Complaint #1. That Tribunal had said that the evidence of Dr. Vanier, along with other NRC witnesses, was in many instances, vague, contradictory and lacking in detail. The Tribunal went on to find the evidence of those NRC witnesses lacking in credibility. The Tribunal also characterized an ultimatum letter sent by Dr. Perron to Dr. Grover as an example of NRC's humiliating and demeaning treatment towards him. Dr. Grover therefore suggests that these two witnesses in particular have compelling reasons not to want to testify again in a case involving him, for fear of being again publicly criticized in such a forum. It is pointed out that when the Commission asked to interview Dr. Vanier in 2002, he opted to retain the services of his own legal counsel, indicating at the very least that he is extremely cautious in his dealings regarding Dr. Grover. These witnesses would have an incentive, it is argued, to exaggerate their memory loss so as to avoid the potential embarrassment that could arise from a hearing into Complaints #2, #3, and #4. A similar argument could apply to the other NRC witnesses who, having seen how Dr. Vanier's and Dr. Perron's actions were addressed in the first Tribunal decision, may also be reluctant to risk similar exposure in this case. [103] It would be an error for me, however, to make any assessment of a witness's credibility based on the 1992 Tribunal's findings. The same issue, regarding the very same witness (Dr. Vanier), was addressed by the Federal Court in the 2004 judgment that ordered the Commission to give additional reasons (Complaints #2 and #3) and complete its investigation (Complaint #4) (Canada (Attorney General) v. Grover, 2004 FC 204 at para. 44). The Court held that it would have been clearly wrong in law for the Commission to have thought it could not, and should not, assess Dr. Vanier's credibility because it had already been found wanting by the 1992 Tribunal. The Court relied on the Saskatchewan Court of Queen's Bench decision in Huziak v. Andrychuk (1977), 1 C.R. (3d) 132 (Sask. Q.B.), which stated: The fact that a judge disbelieves a witness in one case does not necessarily mean that he will disbelieve the same witness if he appears in another case.... Each case stands alone. [104] I found Dr. Vanier's testimony at the motion hearing credible. He did not give blanket denials of recollection to every question asked of him. Where he was able to recall facts, events or some other detail, he was forthcoming in his answers. He gave his responses freely, without hesitation. I have drawn similar conclusions with respect to the credibility of Dr. Perron and all of the other witnesses as well. I did not identify evasiveness, inconsistencies, or other signs of insincerity in the evidence of any of them. [105] Dr. Vanier explained in cross-examination that he had retained the services of a lawyer in 2002, not so much because the first decision was unfavourable to him, but rather because he felt he needed support from somebody. He testified that he still felt he had done nothing wrong, with regard to Complaint #1, so he was not appreciative of the criticism levelled at him by the Tribunal. It would not be the first time that a witness or a party was unconvinced by, and disagreed with, a Tribunal finding. He pointed out that he did not have his own legal counsel in 1992 when he testified at the hearing into Complaint #1. Friends and acquaintances unconnected to the NRC had therefore advised him to get legal counsel this time. From his perspective, seeking the support of a lawyer made sense in the circumstances. [106] In my view, nothing can be read into the fact that he hired a lawyer. He was within his rights to seek a lawyer's advice and his concern, given the 1992 Tribunal's findings, was understandable. Besides, I find it somewhat out of place to suggest that a negative inference should effectively be drawn against someone merely for exercising his right to consult a lawyer. [107] Dr. Vanier was asked directly whether he was simply saying that his memory was lacking just because he would prefer not to come before the hearing. His unequivocal reply that there is no connection between his desire not to be involved in this unpleasant matter again, and the truthfulness of his testimony was, in my view, frank and persuasive. I see no basis before me to doubt him. [108] In sum, therefore, I am persuaded by all of the affiants' evidence regarding their memory loss and their lack of independent recollection of the events alleged in the Amended Statement of Particulars. [109] Does it matter that evidence from several other potential NRC witnesses was not adduced? Dr. Grover pointed out that although the NRC brought forward the evidence of a number of witnesses, it did not file affidavits from Dr. Clive Willis, Ms. Auger, Dr. Zwinkels and Dr. Powell. Dr. Willis was apparently a Vice-President of the NRC in the early 1990's. His name is mentioned in the 1992 Tribunal decision regarding Complaint #1. Dr. Grover also referenced him in several of the allegations in Complaint #4. However, these allegations no longer form part of the pared down version of the complaint that is before the Tribunal now. The NRC explained that this is why an affidavit was not sought from Dr. Willis. The explanation is reasonable and I accept it. [110] Ms. Auger, as I remarked earlier, was mentioned in the April 28, 1997, Commission investigation report. She was the trade show / special events coordinator, who was working for Mr. Reynolds on the preparations for the NRC's 75th Anniversary Exhibit. Her name does not appear in Dr. Grover's complaints or in his Amended Statement of Particulars. Indeed, neither does Mr. Reynolds'. However, as is indicated in a memo dated February 8, 1991, from Dr. Bedford to Dr. Grover, which was filed in evidence, Mr. Reynolds was in charge of the group organizing the exhibit. Mr. Reynolds would likely therefore be best placed to answer to this allegation. In any event, I note again neither Mr. Reynolds nor Ms. Auger was mentioned in Dr. Grover's Statement of Particulars. It was reasonable for the NRC not to have filed an affidavit from Ms. Auger. [111] Dr. Zwinkels is named in the Amended Statement of Particulars. However, Dr. Grover does not appear to aim his criticism at Dr. Zwinkels directly with respect to the allegation that Dr. Vanier had instructed Dr. Zwinkels to personally deliver a memo and read it out to Dr. Grover. Rather, the complaint seems to be directed at Dr. Vanier, for having allegedly given these instructions to Dr. Zwinkels, who then in turn simply executed them. Dr. Zwinkels' role is thus more minor than that of the others who did file affidavits. [112] Dr. Powell, on the other hand, plays a far more prominent role in the allegations set out in Dr. Grover's Amended Statement of Particulars. As the person purportedly displaced as a result of Dr. Grover's appointment, he may have been able to shed some light on the discriminatory practices that allegedly occurred after Dr. Grover's arrival. No explanation was given for the absence of an affidavit from Dr. Powell. Finally, I note that Dr. Hesser, in his affidavit, makes no mention of the anti-Asian and anti-Chinese remarks that he allegedly made in Victoria, in September 1994. We thus have no way of knowing if he has any recollection of that meeting and of what he may have said there. [113] With respect to Dr. Bewsher, whose current whereabouts are unknown, I agree with Dr. Grover's submission that her evidence is likely not as critical as the other NRC witnesses, given her relatively minor involvement, which only related to one allegation of discrimination. Moreover, the NRC did not demonstrate that it has as yet made its best efforts to locate her. For instance, there is no evidence of its having called upon the services of a credit agency such as the one used to locate Dr. Vanier. Dr. Bewsher may yet be located at some point. [114] It is therefore possible that the NRC has not established that each and every potential witness is either unavailable or is no longer able to have a clear recollection of the events alleged in the complaints. However, in order for a complaint to be dismissed, a respondent need not demonstrate that it is impossible for it to answer every aspect of the complaint. In Ford, supra, at para. 16 (a decision that the Supreme Court of Canada cited with approval in Blencoe, at para. 102), the impossibility test was expressly rejected. The proper test, according to the Ontario Court (General Division) is whether or not, on the record, there is evidence of prejudice that is of sufficient magnitude to impact on the fairness of the hearing. In my view, this test has been met in the present case. The memories of almost all of the NRC's witnesses have demonstrably faded and in the case of at least one witness (Dr. Bewsher), it may well turn out that she is no longer available. There is thus more than sufficient evidence that the NRC is no longer able to respond to the allegations made against it, which has in turn impacted on the fairness of the hearing. [115] Even if it were to be shown that the other witnesses from whom we have not heard any evidence had excellent recall of the events at issue in this case, there are far too many other NRC witnesses who lack any independent recollection of the events. The Tribunal's ability to now conduct a fair hearing has been compromised. F. Would dismissing the complaints at this time be premature? [116] According to Dr. Grover and the Commission, even if it is demonstrated that the witnesses lack any independent recall of the complaints' allegations, the Tribunal should refrain from dismissing the complaints at this stage. The Respondent has yet to serve and file its disclosure documents, pursuant to the case management schedule directed by the Tribunal in this case. It is therefore argued that the Tribunal will only be able to determine if the fairness of its process has been impaired once all the available documentary evidence is disclosed. [117] I do not agree. To begin with, it is apparent that the parties have been dealing with the issues of this case in an adversarial manner for more than a decade and a half. Several other legal proceedings have developed with respect to the disputes between the parties including at least one labour arbitration, a civil law suit, and several judicial review applications. The Commission has conducted investigations into the complaints in several phases for the reasons described earlier. There is evidence before me that the Commission sought and obtained documentation from the NRC pursuant to these investigations. It strikes me as very probable, therefore, that in the course of these exchanges between the parties over the years, most, if not all, documents of any relevance to this dispute will have been shared. During the cross-examinations of the NRC witnesses, Dr. Grover put before them several internal NRC documents already in his possession, in an attempt to trigger their memories. Thus, it is evident that this is not a situation where a respondent has been withholding or remains in sole possession of all relevant documentation. [118] Moreover, even if some documents were to suddenly reveal themselves through disclosure, the fact remains that the witnesses still have no independent recollection of the alleged incidents and thus, the NRC will continue to be unable to address this hypothetical documentary evidence through its witnesses. This inability to defend itself will again come as a result of the unacceptable and undue delay in this case. The existence of any such documents will therefore not allay or diminish the impairment to the fairness of this hearing process. G. Would dismissing the complaints send an inappropriate message to other parties before the Tribunal? [119] Dr. Grover argues that if his complaints are dismissed due to delay, an inappropriate message will be sent to future litigants before the Tribunal. Respondents will understand that it is in their interest to slow the advance of the Commission's pre-referral process as much as possible, thereby creating an opportunity to subsequently request that the complaint be dismissed because of the prejudice caused by the resulting delay. Complainants, in turn, will be hesitant to participate in any efforts to settle the case through mediation or conciliation, for fear of adding so much time to the pre-referral period that their complaints may well be dismissed for undue delay. Such complainants may also end up questioning their respondents' true motivation for participating in settlement talks, particularly if they become prolonged. [120] In my view, these considerations do not justify conducting a hearing that is basically unfair and in breach of natural justice. Besides, the implication in Dr. Grover's argument regarding the potential impact on settlement efforts is that there have been ongoing negotiations in the present case throughout the 13 to 16.5 years that it took for these complaints to reach the Tribunal. I have no such evidence before me. It appears that there were some discussions along the way, but nothing that would explain or justify such an inordinate period of time. A more likely source of the delay would appear to lie in a decision to just keep Complaints #2, #3, and #4 in abeyance while the dispute regarding Complaint #1 wound its way through the Tribunal and judicial process. [121] The principles of natural justice and fairness demand that all complaints be treated with proper dispatch. As was noted in Cremasco, supra, at para. 84, like any litigants, a complainant and the Commission have an obligation to prosecute an action with due diligence. Moreover, the sorts of delay that settlement talks or even a respondent's dilatory tactics would create are not likely to ever reach the scope found in the present instance. This is a highly inordinate delay. There is no reason for other parties before the Tribunal to fear that the normal delay, engendered where parties work consistently and reasonably together towards an expeditious resolution of the complaint, will ever extend to the point that it impairs a respondent's ability to answer the allegations made against it. III. CONCLUSION [122] For all the above reasons, I find that the NRC has established that the delay in the hearing of these complaints has so significantly impaired its ability to provide a full answer and defence to the allegations against it, that Complaints #2, #3, and #4 should be dismissed. The NRC's motion is granted. [123] Given these findings, I need not address the NRC's alternate submission that the hearing of these complaints would bring the human rights system into disrepute and constitute an abuse of process. Signed by Athanasios D. Hadjis OTTAWA, Ontario January 6, 2009 PARTIES OF RECORD TRIBUNAL FILE: T1242/5407 STYLE OF CAUSE: Chander Prakash Grover v. National Research Council of Canada DATE AND PLACE OF PRELIMINARY HEARING: November 7, 12, 13, 14, 2008 Ottawa, Ontario RULING OF THE TRIBUNAL DATED: January 6, 2009 APPEARANCES: Paul Champ For the Complainant K.E. Ceilidh Snider For the Canadian Human Rights Commission Ronald M. Snyder / Sanderson Graham For the Respondent

2009 CHRT 10

CHRT

Warman v. Northern Alliance

en

2009-03-13

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6948/index.do

2023-12-01

Warman v. Northern Alliance Collection Canadian Human Rights Tribunal Date 2009-03-13 Neutral citation 2009 CHRT 10 File number(s) T1216/2807, T1217/2907 Decision-maker(s) Lustig, Edward P. 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 - NORTHERN ALLIANCE AND JASON OUWENDYK Respondents REASONS FOR DECISION 2009 CHRT 10 2009/03/13 MEMBER: Edward Peter Lustig I. THE COMPLAINTS II. PRELIMINARY ISSUES A. Withdrawal by the Commission B. Ruling by the Tribunal on Charter Challenge of Jason Ouwendyk III. DECISION IV. SECTION 13 OF THE ACT V. WHAT ARE THE IMPUGNED MESSAGES IN THIS CASE? (i) Roma (aka Gypsies), Eastern Europeans - Ground: National or Ethnic Origin (ii) Gays and Lesbians - Ground: Sexual Orientation (iii) Mentally and Physically Disabled -Ground: Disability (iv) Hispanics - Ground: National or Ethnic Origin/Race (v) Chinese, East Asians - Ground: National or Ethnic Origin/Race (vi) Blacks, Asians, Native Aboriginal persons and other Non-Whites- Ground: Race/Colour/National or Ethnic Origin (vii) Jews, Muslims and Arabs - Ground: Religion/Race/National or Ethnic Origin VI. ANALYSIS A. Is the material likely to expose a person or persons to hatred or contempt by reason of the fact they are identifiable on the basis of a prohibited ground of discrimination within the meaning of s. 13 (1)? B. Were the communications made repeatedly, in whole or in part, by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, within the meaning of s. 13 (1) of the Act? (i) Did Jason Ouwendyk and the Northern Alliance, acting in concert, communicate or cause to be communicated the impugned messages by means of the Northern Alliance Website within the meaning of s. 13 (1) of the Act? VII. REMEDIES I. THE COMPLAINTS [1] This is a decision regarding two complaints filed by Richard Warman against the Northern Alliance and Jason Ouwendyk on January 21, 2006 alleging that the Respondents discriminated against persons or groups of persons on the basis of religion, sexual orientation, race, colour, national or ethnic origin and disability by repeatedly communicating messages through an Internet website that would likely expose Muslims, Hindus, Jews, gays and lesbians, East Asians, Hispanics, blacks, Arabs, and other non-whites, Somalians, Eastern Europeans, Roma (aka Gypsies), and the mentally and physically disabled to hatred and/or contempt contrary to s. 13 (1) of the Canadian Human Rights Act (the Act). [2] The complaints allege that the impugned conduct occurred between September 29, 2002 and the Fall of 2005. None of the examples of impugned messages included with the complaints appear to have been posted on the Internet website after January 2004. Reference, however, was also made in the complaints to photographs that were designed to expose persons or groups of persons to hatred or contempt on the basis of discriminatory grounds that according to archival information allegedly were available on the Internet until March 5, 2005. [3] The inquiry by this Tribunal into the complaints was requested by the Canadian Human Rights Commission (the Commission) as being warranted pursuant to s. 44 (3) (a) of the Act by letter dated April 5, 2007. On receipt of such a request, pursuant to s. 49 (2) of the Act, the Chair of the Tribunal is required to institute an inquiry. On November 30, 2007 the Tribunal directed that both complaints would be consolidated and heard together in one hearing. Notice of the hearing was given to the parties on May 30, 2008. II. PRELIMINARY ISSUES A. Withdrawal by the Commission [4] Following its request that the Tribunal institute an inquiry, the Commission vigorously participated in the pre-hearing phase of this matter through its counsel until August 11, 2008 - one week before the hearing was scheduled to begin. On August 11, 2008, Mr. Daniel Poulin, Counsel for the Commission, advised the Tribunal and the parties in a three line letter that ... in light of the change of circumstances ... the Commission will no longer participate in the present hearing. [5] On August 12, 2008, following a request by the Tribunal for more information regarding the Commission's decision to no longer participate, Mr. Poulin wrote a letter to the Tribunal and the parties advising that ... in all of the circumstances, there is no longer a public interest justifying the Commission's participation in this matter. The circumstances cited by Mr. Poulin were that: the material that formed the basis of the impugned conduct was no longer on the Internet; and as a result of the acceptance by the creditors of a Consumer Proposal of Mr. Ouwendyk in December of 2004 under the Bankruptcy and Insolvency Act, (the Consumer Proposal), the financial claims (both the claim for pain and suffering and the penalty) of Mr. Warman against Mr. Ouwendyk in this matter were stayed. In the material attached to Mr. Poulin's letter there was a letter from the Administrator of the Consumer Proposal wherein he indicated that Mr. Warman was a creditor of Mr. Ouwendyk and was receiving dividends from the Consumer Proposal. [6] At the request of the Tribunal, Mr. Poulin appeared on behalf of the Commission at the outset of the hearing. In elaborating on the reasons for the Commission's decision to no longer participate in the hearing, Mr. Poulin advised that: The impugned material that was the subject of the complaints was no longer available on the Internet and had not been available for some time; and The Internet website and the domain name www.northernalliance.ca which was the website referred to in the complaints had been sold some time earlier to a third party that was not related to the Northern Alliance or any person, including Mr. Ouwendyk, related to the Northern Alliance; and As a result of the Consumer Proposal the Tribunal could not issue Orders in respect of financial claims against either Respondent (Mr. Ouwendyk being the agent or the only member served and possibly representing the Northern Alliance) as such claims would be stayed. On the basis of the above noted considerations, as well as others that Mr. Poulin was not able to share, it was the Commission's position that neither Orders to cease and desist or for financial remedies would be effective in respect of the Respondents and, as such, there was no public interest for the Commission to continue to participate in the hearing. [7] As a result of the Commission's withdrawal, the record was amended to remove the Commission as a party. Mr. Fromm, on behalf of Mr. Ouwendyk, requested that the complaint be dismissed as a result of the Commission's decision not to participate. As Mr. Warman was present and prepared to proceed, I ruled that the matters would proceed with Mr. Warman acting on his own behalf against Mr. Ouwendyk who was present and represented by Mr. Fromm and against the Northern Alliance who did not appear and were not represented but who had received proper notice of the hearing. Mr. Fromm also requested that the complaint be dismissed on the basis that the impugned conduct occurred more than one year before the complaint was filed. [8] Section 51 of the Act has been interpreted to allow the Commission to not continue to participate in a hearing if, in its opinion, it is not in the public interest to do so. This does not affect a prior decision by the Commission under s. 44 (3) (a) and s. 49 (1) of the Act to request the Tribunal to institute an inquiry on the basis that it feels that it is warranted to do so. The Tribunal is obliged by virtue of s. 49 (2) of the Act to institute an inquiry following the request by the Commission to do so and to hold a hearing in respect thereof. The Tribunal has no authority or jurisdiction to not hold a hearing as a result of a decision by the Commission to withdraw from participating in the hearing after the inquiry has been requested. The Consumer Proposal of Mr. Ouwendyk under the Bankruptcy Act may be a stay of proceedings in respect of financial claims related to the complaints. However, it does not preclude the Tribunal from holding an inquiry as requested by the Commission into the complaints. It is to be noted that following the withdrawal from the proceedings by the Commission, the Complainant amended his Statement of Particulars to remove the financial claims against Mr. Ouwendyk. Finally, a decision by the Commission to request an inquiry by the Tribunal where the alleged conduct occurred more than a year before the complaint was filed is contemplated by ss. 41 (1) (e) and 44 (3) of the Act. Again, in these circumstances, the Tribunal is required to hold a hearing. [9] In spite of the foregoing, it is troubling that the Commission decided not to participate in the hearing less than one week before its commencement. The Commission was aware as early as February of 2008 when Mr. Ouwendyk filed his Statement of Particulars that he maintained that the impugned material had been taken off the Internet sometime earlier and was no longer available, and that he had made a Consumer Proposal that Mr. Warman was participating in as a creditor. These facts were referred to in paragraphs 2 and 5 of Mr. Ouwendyk's Statement of Particulars of February 5, 2008 which was delivered to the Commission over six months prior to a decision by the Commission to not participate in the hearing. B. Ruling by the Tribunal on Charter Challenge of Jason Ouwendyk [10] On May 8, 2008 the Chair of the Tribunal, Mr. J. Grant Sinclair made a ruling with respect to a Notice of Intention filed by Mr. Ouwendyk to question the constitutional applicability, validity and effect of ss. 13, 54 (1) and 54 (1.1) of the Act, wherein he alleged that these provisions violated ss. 2 (a), 2 (b), 2 (d) and 7 of the Canadian Charter of Rights and Freedoms and that they were not saved by s. 1 thereof. In his ruling, Chair Sinclair noted that in Warman v. Lemire, Tribunal File T1073/5405, another s. 13 case already underway, the respondent had raised a virtually identical Charter challenge to the same provisions of the Act. Accordingly, Chair Sinclair ruled as follows: The Tribunal therefore directs that the hearing into this complaint should proceed at this time, but solely on the evidence regarding the complaint's allegations. The hearing on the question of the constitutional validity of the impugned sections of the Act will be deferred pending the outcome in Lemire. If the complaint is substantiated, the Tribunal will not issue any order until the final determination by the Courts of the constitutional question. [11] Accordingly, this hearing was held solely on the evidence regarding the allegations contained in the complaints. III. DECISION [12] For the reasons set out below, I have determined that the complaints against the Respondents Jason Ouwendyk and the Northern Alliance have been substantiated. IV. SECTION 13 OF THE ACT [13] In order for a complaint under s. 13 (1) to be substantiated, it must be established that 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; was communicated telephonically or caused 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; by a person or group of persons acting in concert. [14] Prohibited grounds of discrimination include religion, sexual orientation, race, colour, national or ethnic origin and disability (s. 3). V. WHAT ARE THE IMPUGNED MESSAGES IN THIS CASE? [15] Mr. Warman testified on his own behalf. He was the only witness to give evidence in this case. He is an experienced lawyer who has spent a good deal of time and effort researching and pursuing persons or groups of persons whom he believes are responsible for hate messaging. [16] Mr. Warman's evidence involved going through a binder of proposed exhibits that had been prepared for this case by the Commission while it was still involved in the case. Mr. Warman submitted several other documents in evidence that did not appear in the Commission's binder, including several documents that he had previously given to the Commission but had not been included with the binder in spite of having been referred to in the original complaints. The binder included almost entirely pages from the Northern Alliance Website www.northernalliance.ca (and related or linked Websites) including photographs that were downloaded by Mr. Warman during 2003. Aside from the photographs which were in a Photo Gallery of the Northern Alliance Website, many of the pages downloaded and entered as exhibits were from the Northern Alliance Forum, a chat room where members could develop threads on subjects that could then be discussed by postings from members. According to Mr. Warman, the Northern Alliance Website was managed by Mr. Ouwendyk as the administrator. To participate in the chat and post, one had to be a member, however, membership was not difficult to obtain and anyone could view the postings by simply clicking onto www.northernalliance.ca and then clicking on Forum. According to Counsel for the Commission this Website has been sold to an unrelated third party and has not been in existence for a number of years - probably as far back as the beginning of 2006. The site would have ceased operation before when Mr. Warman filed his complaints with the Commission. [17] Mr. Warman testified in regard to each of the downloaded pages and photographs, and he explained how, in his view, they contained hate messages that the Respondents were responsible for communicating. He also identified a number of members of the Northern Alliance as authors of the material including Mr. Ouwendyk, who participated in the Website by pseudonym and was the webmaster or administrator of the Website, according to Mr. Warman. [18] Mr. Warman highlighted passages and images from the Northern Alliance Website, including the Forum and a Photo Gallery which targeted the following persons or groups of persons on the basis of the following prohibited grounds of discrimination: (i) Roma (aka Gypsies), Eastern Europeans - Ground: National or Ethnic Origin [19] In a thread titled Canadian skinheads and Gypsies downloaded in September of 2003 from the Northern Alliance Website, the following verbatim posts appear to have bee made during September of 2003. ...good stuff. Damn gypsy's, I hope they got deported back to the czech republic where they belong! ... we hope all eastern euro mutts are deported because they don't belong in my country! [...] I think someone needs to learn the difference between Eastern Europeans and Roma's. Eastern Europeans are of Scandinavian descent while Roma are of a mongrel mix of european/asia minor ancestry. Roma populations are higher in Romania, Hungary, and Bulgaria and then thin out as they go west and north into countries like the Czech Rep. and Slovakia and nowadays in Western countries thanks to the fall of the Iron Curtain. At least with the Iron Curtain, it helped keep these disgusting people on their side of the imaginary wall. (ii) Gays and Lesbians - Ground: Sexual Orientation [20] In a thread titled We Have To Stop The Menace!! downloaded in November of 2003 from the Northern Alliance Website, the following verbatim posts appear to have been made during November of 2003. In today normal world it is okay to discriminate WHITE NON-HOMOSEXUAL MALE! But it is wrong to tell what u think about non-whites, queers and females (I have no problem with last one! I even support normal WHITE feminists) The situation with homosexuals is same as situation with nigroes! A few years ago they afraid to sit near with white person, now they bullshiting us with their rights. Today liberals allow same-sex marriage, tomorow those dickheads will give freedom to freaks like pedophilies! Yeah, the dream of each parent is their kid wathcing `Gay/Pedophilie Pride Parade instead of cartoons! [...] We have to fight! Otherwise the world we know will disapear and our race wil be slaughtered! In addition a picture posted on the Northern Alliance Website on July 14, 2003 showed a person at an anti-gay pride parade holding a sign that read: There is a cure for Homosexuality - It's Aids. (iii) Mentally and Physically Disabled -Ground: Disability [21] In a thread titled Don't argue on the net because: downloaded in July of 2003 from the Northern Alliance website, the following image and verbatim posts appear to have been made during May, June and July of 2003. [22] There is a photograph of a young person with Down's Syndrome running a race to the finish line with his arms open. The captions read Arguing on the internet is like running in the Special Olympics Even if you win, you're still retarded A very special message from JRR's Shut The Fuck Up Foundation. The captions are followed by these verbatim posts: [...] A mongoloid. Or should I say, intellectually disadvantaged. [...] A genetic defect like that Mongoloid may be White, but that does not automatically make him worthy. He is flawed and were he to reproduce, he would have genetically damaged offspring. Perhaps we should discuss the benefits of Eugenics. [...] Best way to practice Eugenics without backlash is to have doctors mistreat patients than inform parents ands concerned persons the patient did of complications. If the Jews can get away with killing millions of white babies via abortion doctors, I am sure others could implement similar but more usefull programs. [...] I support euthanasia for mongoloids and other incurable illnesses. They are of no benefit to anyone and are only a burden to all. My God ... what a horrible creature! Perhaps we could use it as fuel. Good idea! There's enough of them here to turn the tables on OPEC! [23] Also in a thread titled A Website demoting Miscegenation downloaded in November 2003 from the Northern Alliance Website, the following verbatim post appears to have been made during November of 2003: I am glad to see Jews are sticking to their own kind ... now if we could only setup a site like this for Niggeroids and Mongoloids we'd be all set. (iv) Hispanics - Ground: National or Ethnic Origin/Race [24] In a thread titled Jessica Lynch downloaded in November of 2003 from the Northern Alliance Website, the following verbatim posts appear to have been made during November of 2003. I know many of you already know that Private Lynch is a race traitor engaged to be married to a wetback, but in case you haven't seen them together, here is a photo. May be we can do Saving Private Lynch Part II by going down there and getting back from the spics. Who knows it may make a great movie. Anyone know where we can get our hands on a couple of Blackhawks, nightvision goggles and M16s? (v) Chinese, East Asians - Ground: National or Ethnic Origin/Race [25] In a thread titled Chinese Culture (pictures) downloaded in October of 2003 from the Northern Alliance Website, the following verbatim posts appear to have been made during October of 2003. There are over one million Chinese in Canada already [...] Beware of the silent invasion What defence could our 80,000 man army mount against the one million gooks living in Canada? Sars was just a test! [26] Also, in a thread titled Food for thought downloaded in September, 2003 from the Northern Alliance Website, the following verbatim posts appear to have been made during September of 2003: [...] YOU BITCHES NEED TO WAKE UP AND FIGHT BACK! THERES NO BACK BONE IN ANY OF YOU!! BEAT DOWN A HALF BREED IN G TOWN IN 96 AND DID 2 YEARS IM A REAL CANADIAN HERO! I remember reading about that in the newspaper. I seem to recall it being a Paki store clerk in Georgetown that was assaulted. (vi) Blacks, Asians, Native Aboriginal persons and other Non-Whites- Ground: Race/Colour/National or Ethnic Origin There were many postings that referred to Blacks. Among them were the following: [27] In a thread titled certain white women downloaded in October of 2003 from the Northern Alliance Website, the following verbatim posts appear to have been made during October of 2003. how come every time I see a white chick with a darky I just want to kill them both! is this a natural feeling to have? [...] It bothers me as well but I do not get mad at the guy for being with a white woman - I get more mad at the white woman. In a thread titled Immigrant Criminal Steals White Woman downloaded in November of 2003 from the Northern Alliance Website, the following posts appear to have been made during November of 2003. What else could you expect when from the multiracialists........ [...] There have been many recent examples of race mixing sluts getting killed, raped, or abducted by their mud lovers right here in London. You'd think this would sound off some alarm bells with the mud loving sheep! If not, they get what they deserve. The results of sleeping with non-Whites is apparent in London, ON this month: The White Woman from London is this story was raped by a Nigger: As well, other non-whites, Asians and Aboriginal persons were also targeted as follows: [28] In a thread titled Actors' daughter dies in shootout outside club downloaded from the Northern Alliance Website in January of 2004, the following verbatim post appears to have been made during January of 2004. Non-White gangs are roaming Canada's streets engaging in gun battles with each other and taking the lives of White Canadians in their wake. The citizens of B.C. should form a lynch mob and oust these Indo-Canadians responsible for murdering a White woman. This story also shows what can happen to those who chose to betray their race and associate and protect Asian gang members. [29] In a thread titled The Governator downloaded in October of 2003 from the Northern Alliance Website, the following verbatim posts appear to have been made during October of 2003. [...] Arnold is the in thing in Californicate .... Will he clean it up or fuck it up? And don't just drop your opinion like some dog's calling card on the lawn and then split; explain it. Let's see how many of us really have two brain cells to rub togeather and what the friction produces... [...] It would certainly take a big man to clean up the mud-infested state that is California. Let's hope Arnie is that man. [30] In a thread titled Manitoba university offers oboriginal arts degree downloaded in January of 2004 from the Northern Alliance Website, the following verbatim post appears to have been made during January of 2004. Commentary: It's good to know that there will be people with degrees in teepee building. Our country has a glut of skilled labour of that sort. With this degree, I guess a person could get a major in scalping and a minor in smoking the peace pipe. ... (vii) Jews, Muslims and Arabs - Ground: Religion/Race/National or Ethnic Origin Jews, Muslims and Arabs were targeted in many of the postings. Among them were the following: [31] In a thread titled Israel's Neonazis downloaded in November of 2003 from the Northern Alliance Website, the following verbatim post appears to have been made during November of 2003. [...] Screw the Jew! [32] In a thread titled Whom do U Support In Iraq?? downloaded in November of 2003 from the Northern Alliance Website, the following verbatim posts appear to have been made during November of 2003. [...] ...U right that those muslim-shit will run to my, your home and to rest of Europe! But those impudent shit even worst than niggers! [...] I noticed that many people here are okay with muslim-scum. But guys muslim are the worst of our enemy! All drugs are coming from them (niggers just sell it on streets! They're just a pawns), half of Europe are under muslims. In France there are already a lot of WHITE PEOPLE have taken muslim religion, not so far ago there was a case to separete males and females in a swimpool, in England was case about letting muslim's females to cover their faces for photo on ID, driving license etc. (same case was in US and in Canada I believe), in Russia those scums just cut and kill Russians. Those scums multiply like rabits, and soon ZOG will look like poor fluffy thing comparing to muslims. [...] Don't misunderstand: by no means do I want Arabs immigrating to Europe at the rate they are now, it is obscene, but you have to understand that this itself is a result of Europe's own ZOG's, and can be solved with any number of quick fixes once we have control..., namely through telling them to fuck off and go home... [...] I forgot to notice that most of muslim scum whom I talked to (quite a big number since I'm ESL guy), don't like their womens! They like White Canadian, French, Russian, German...girls. To cooperate with muslim extrimist is a really great risk, and the first thing we have to do - is to get rid of all muslims in our homes! [...] Muslim attack whites because they see enemy in us! That is all! By the way - jews and arabs are both semites!! Even though they hate each other. Semites MUST DIE! [...] The muslim is not your friend. The only thing that he wants from you is your neck under his boot in the name of sharia. [...] You, my friend, dearly need to determine who is the greater threat. Who are breeding like rodents? If you had a muslim, a jew and only one bullet: who would you shoot?? [...] Chu, do not be fooled. The ZIONIST is the greatest threat to our race. It is why, time after time, they have been persecuted against throughout history. Like a parasite, they have no permanent home. They cling onto a host until they kill it, and then move on in search of a new host. I give the muslims kudos, they are fierce fighters up against a multi-faced enemy. [...] Pakistan has nukes ... they sure do, but somehow I think they might be a bit less inclined to use them, if every word out of our diplomats' mouths were not tainted by the Star of David painted on our foreheads. We should not pay any less attention to these countries than we do now, aside from invading them cause Israel says so. Let's get rid of every Arab who tries to bring nuclear weapons to his country ... let's forcibly show them never to challenge the West again...But how about we do it AFTER we're free and able to make our own decisions, with our own economy, and for our own benefit? [33] In a thread titled Holohoax Rally! downloaded in July of 2003 from the Northern Alliance Website, the following verbatim posts appear to have been made during July of 2003. [...] Good post connovar. Jews were persecuted for the same reasons they are today. They control a large amount of wealth and political influence and redistribute these things only to benefit themselves. By playing the anti-semetism card they forever enslave us because we are afraid to be publicly persecuted by the zionists (i.e. Zundel, Hale, Lane). Most people agree that the jews control the majority of wealth in North America ... and it is a dangerous thing when a small interest group controls the minds and pockets of the majority. [...] Hitler stood up against the Jews. I know a lot of media uses Hitler to make things difficult for modern white nationalists, but we musn't blame him. It's the Jews who are using Hitlers actions to keep the white race down, this is no fault of Hitler. If it hadn't been for Hitler they Jewish media would be using someone else to keep us down. [...] Next, I do not believe that millions of jews were exterminated as media would have you to believe. I also don't believe that there were over 600 thousand. I believe that 60,000 would be a more appropriate number. But the question I have is ..... who cares? ... at least the 60,000 was a damn good start!!!!! [...] [34] A Photo Gallery was also posted on the Northern Alliance Website and downloaded in November of 2003 with a title page collage of photos that stated the following: They claim that race is only a matter of skin colour and we are all equal - We tend to disagree. There then appeared a number of images or pictures which were entered into evidence as exhibits including the following prefaced by the title page: Women wearing what appears to be traditional middle Eastern clothing engaging in the mutilation of their children East Indian and other non-white males engaging in a variety of mouth or other body piercings Apparently African Blacks in particular washing themselves in what appears to be animal urine and drinking what appears to be animal urine Black children appearing to be emaciated and covered in flies Images of non-white males accompanied by a caption describing them as shitskins. Apparently South Asian children shown with rats Men appearing to be Muslims self-mutilating themselves People who appear to be Chinese or East Asian slaughtering and eating cats Apparently Africans or East-Africans engaging in brutal bludgeoning murders and/or immolation of individuals Non-whites engaging in cannibalism and using their bodies to breast- feed pigs and monkeys. VI. ANALYSIS A. Is the material likely to expose a person or persons to hatred or contempt by reason of the fact they are identifiable on the basis of a prohibited ground of discrimination within the meaning of s. 13 (1)? [35] The words hatred, contempt, likely and expose have been interpreted by the Tribunal and by the Courts. [36] In Canada (Human Rights Commission) v. Taylor [1990] 3 S.C.R. 892, the Supreme Court of Canada adopted the Tribunal's definition of the words hatred and contempt as established in Nealy v. Johnston (1989), 10 C.H.R.R. D/6450; and Taylor and the Western Guard Party v. Canadian Human Rights Commission and Attorney General of Canada (1979), T.D. 1/79. Hatred involves feelings of active dislike, detestation, enmity, extreme ill-will and malevolence. It means, in effect, that one finds no redeeming qualities in the object of one's detestation. It does not necessarily involve the mental process of looking down on another or others. It is possible to hate someone who one feels is superior to one in intelligence, wealth, or power. Contempt on the other hand does involve the process of looking down on or treating as inferior another or others. [37] The Tribunal in Nealy v. Johnston stated that the use of the word likely in s. 13 (1) means that it is not necessary 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. [38] The word expose has been held by the Tribunal in Taylor and Nealy to be a more passive word than incite. To expose, in this context, means to leave one unprotected or to lay open to danger, ridicule or censure. In other words, the Tribunal has stated 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, in a situation where hatred or contempt are inevitable, one then falls within the compass of s. 13 (1) of the Act. [39] Words and photographic images are among the most powerful forms of communication. They can be used productively either to create, advance, advocate and support positive things or to oppose, criticize, dissent and protest negative things. They are a manifestation of thought. In a democratic society, such as ours, free thought and expression represents the lifeblood needed to maintain our liberty and freedom. Often, they inform, educate, entertain, motivate and even inspire us. In many cases, they either have no particular value or are even of negative value. For every Shakespearean sonnet in existence, there are many more exploitive and violent messages communicated to us by various means. In virtually all cases the communication of words and photographic images are and should be protected uncensored as free speech and expression notwithstanding that in some cases they are of no value or even of negative value. There are, however, communications that are not only valueless or of negative value but beyond that are likely to expose persons or groups of persons to hatred and/or contempt on the basis of discriminatory grounds such as religion, sexual orientation, race, colour, national or ethnic origin and disability. Parliament has enacted s. 13 of the Act to prohibit these types of communications. The Tribunal and the Courts have, in the past, held that these types of messages are not protected because they are the antithesis of free speech and expression, inimical to the objectives of a free and democratic society and harmful to the individual rights and freedoms of persons against whom they are directed. Such hate messages have been held to be contradictory to the purposes of the Act which seeks to protect and uphold the principle expressed in s. 2 thereof, which states that: 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. [40] In Taylor, the Supreme Court of Canada considered both the general purpose of the Act, and, more specifically, the harm addressed by s. 13 (1). Writing for the majority, Dickson C.J. begins by reference to the general purpose of the Act set out in s. 2, and succinctly summarizes the legislative intent as the promotion of equal opportunity unhindered by discriminatory practices. He then goes on to find that in enacting s. 13, Parliament has expressed the view that the repeated telephonic communication of hate messages is contrary to the furtherance of equality. [41] A review of the report of the Special Committee on Hate Propaganda in Canada, also known as the Cohen Committee, led Dickson C.J. to comment as follows: The Cohen Committee noted that individuals subjected to racial or religious hatred may suffer substantial psychological distress, the damaging consequences including a loss of self-esteem, feelings of anger and outrage and strong pressure to renounce the cultural differences that mark them as distinct. This intensely painful reaction undoubtedly detracts from an individual's ability to, in the words of s. 2 of the Act, make for himself or herself the life that he or she is able and wishes to have. As well, the Committee observed that hate propaganda can operate to convince listeners, even if subtly, that members of certain racial or religious groups are inferior. The result may be an increase in acts of discrimination ... and even incidents of violence. [42] Dickson C.J. continued by noting that since the release of the Cohen Report, several other studies had similarly found that hate propaganda poses a serious threat to society, and he concluded that: ...messages of hate propaganda undermine the dignity and self-worth of target groups members and, more generally, contribute to disharmonious relations among various racial, cultural and religious groups, as a result eroding tolerance and open-mindedness that must flourish in a multicultural society which is committed to the idea of equality. [43] The messages quoted and referred to above from the Northern Alliance Website are not simply nasty, crude, and vicious. They express the idea that people should be hated or held in contempt because of who they are rather than what they have done. It is unknowable whether the people who communicate these messages do so out of fear or ignorance of someone different or because of a basic malevolence that exists in some of us. These messages associate stereotypical negative themes passed down through the ages about various people or groups of people who are not white Christian Western European heterosexuals and who are perceived to be disabled. The effect of these messages is to expose such people or groups of people to hatred or contempt on the basis of their religion, sexual orientation, race, colour, national or ethnic origin or disability. In these communications, Jews are held out to be dishonest, money hungry and striving to control the world to their benefit and to everyone else's detriment. It is said that they have exaggerated the Holocaust for self serving purposes. Muslims are portrayed as dirty, violent and dangerous. Gays and Lesbians are depicted as deviant criminals who prey on children. Blacks, Arabs and other non-whites are shown as ignorant and inferior. The mentally and physically disabled are described as horrible creatures who ought not to be allowed to live. It is suggested that many of these targeted groups should be eliminated. It is likely that the people posting these messages have never spent any meaningful time with or come to know individuals in the group or groups of people that they stereotypically seek to describe in negative, contemptuous and hateful terms. Education would probably help to eliminate this type of behaviour. In the meantime, Parliament has through s. 13 (1) of the Act sought to prohibit this kind of communication for the reasons referred to above. [44] The impugned messages quoted and referred to above, fall within the meaning of the definitions of hatred and contempt in the cases earlier referenced. The communication of the impugned messages is likely to expose the targeted persons to hatred or contempt on the basis of a prohibited ground of discrimination as those terms are defined by the cases earlier referenced. [45] In reading the text of and observing the images produced in evidence in this case and reproduced earlier, it seems clear that these messages also fall within the following hallmarks of material that is more likely than not to expose members of the targeted group to hatred or contempt as developed in the analysis of the s. 13 (1) jurisprudence that was conducted by Member Jensen in Warman v. Kouba, 2006 CHRT 50: The Powerful Menace Hallmark: 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. The True Story Hallmark: the messages use true stories, news reports, pictures and references from purportedly reputable sources to make negative generalizations about the targeted group. The Predator Hallmark: the targeted group is portrayed as preying upon children, the aged, the vulnerable, etc. The Cause of Society's Problems Hallmark: the targeted group is blamed for the current problems in society and the world. The Dangerous or Violent by Nature Hallmark: the targeted group is portrayed as dangerous or violent by nature. The No Redeeming Qualities Hallmark: the messages convey the idea that members of the targeted group are devoid of any redeeming qualities and are innately evil. The Banishment Hallmark: 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. The Sub-human Hallmark: the targeted group is de-humanized through comparisons to and associations with animals, vermin, excrement, and other noxious substances. The Inflammatory Language Hallmark: highly inflammatory and derogatory language is used in the messages to create a tone of extreme hatred and contempt. The Trivializing or Celebration of Past Tragedy Hallmark: the messages trivialize or celebrate past persecution or tragedy involving members of the targeted group. The Call to Violent Action Hallmark: calls to take violent action against the targeted group. [46] As such, I find that these messages are likely to expose persons identifiable on the basis of a prohibited ground of discrimination to hatred or contempt, within the meaning of s. 13 (1) of the Act. B. Were the communications made repeatedly, in whole or in part, by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, within the meaning of s. 13 (1) of the Act? [47] The Tribunal has held in the past that material communicated via the Internet is by that medium's innate characteristics alone, a repeated communication, particularly where no obstacles are put in place that would prevent anyone connected to the Internet from surfing his or her way to a Website and viewing the material (see Warman v. Beaumont, 2007 CHRT 49 at paras. 51-7; Warman v. Harrison 2006 CHRT 30 at para. 44; Warman v. Kulbashian, 2006 CHRT 11 at para. 62; Warman v. Tremaine, 2007 CHRT 2 at paras. 116-9). Mr. Warman testified that he was able to view the material simply by clicking on to the Internet address of the Northern Alliance Website which led him to the links found on the Website to the impugned material. He gave evidence that he was easily able to download the impugned material from the Northern Alliance Website, as the evidence adduced was that access thereto was public and unrestricted. [48] Section 13 (2) of the Act, confirms that s. 13 (1) applies to matters communicated by means of the Internet. [49] I therefore find that the communications were made repeatedly, in whole or in part by means of a telecommunication undertaking within the legislative authority of Parliament, contrary to s. 13 (1) of the Act. (i) Did Jason Ouwendyk and the Northern Alliance, acting in concert, communicate or cause to be communicated the impugned messages by means of the Northern Alliance Website within the meaning of s. 13 (1) of the Act? [50] Mr. Warman presented clear uncontradicted documentary evidence that Jason Ouwendyk, by his own admission, not only was one of the members of the Northern Alliance but was also elected unanimously to be its spokesperson and the webmaster and administrator of the Northern Alliance Website. Further, there was also clear evidence that Mr. Ouwendyk himself, under the pseudonym Jay posted some of the impugned material quoted and referred to earlier. [51] Mr. Ouwendyk appeared at the Hearing and chose not to give evidence to rebut Mr. Warman's evidence. As such, I find that Mr. Ouwendyk is responsible for both communicating and causing to be communicated the impugned messages on the Northern Alliance Website. [52] The Northern Alliance does not appear to be active lately and the Northern Alliance Website appears no longer to be in existence and seems to have been sold to an unrelated third party according to the Commission. The Northern Alliance as a group and its Website clearly were in existence when the impugned messages were communicated according to the uncontested evidence of Mr. Warman. [53] The evidence, again uncontradicted, presented at the Hearing included: Pictures showing as a group, the members of the Northern Alliance under their banner identified by Mr. Warman - some of whom attended the Hearing including Mr. Ouwendyk and Mr. Rudd who were identified at the hearing and can easily be seen to be the same people as in the pictures produced by Mr. Warman in his evidence; The Northern Alliance symbol and letterhead on correspondence, pictures and threads including the Website url www.northernalliance.ca and its Forum from where the posts were downloaded; Various documentation showing posts with an official postal box and e-mail address for the Northern Alliance, a newsletter, a financial account for payment and donations and the name of at least one official officer of the group - Jason Ouwendyk. [54] In spite of the fact that the Northern Alliance is not incorporated, all of the above is indicative of the Northern Alliance constituting a group of persons acting in concert, in accordance with jurisprudence on this subject including: Smith et. al v. Western Guard Party [1979] CHRD 1/79; Taylor; Khaki v. Canadian Liberty Net; Nealy; Chilliwack Anti-Racism Project Society v. Scott; Warman v. Western Canada For Us 2006 CHRT 52. [55] As such, I find that Jason Ouwendyk and the Northern Alliance, acting in concert, as well as Mr. Ouwendyk acting individually, communicated or caused to be communicated the impugned messages by means of the Northern Alliance Website within the meaning of s. 13 (1) of the Act. VII. REMEDIES [56] Mr. Warman requested that I make the following Orders: Pursuant to s. 54 (1) (a) of the Act that both the Respondents Jason Ouwendyk and the Northern Alliance and/or any others acting in concert with them be ordered to cease the discriminatory practice of communicating telephonically or causing to be communicated telephonically by means of the 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 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; and Pursuant to s. 54 (1) (c) of the Act that the Respondent the Northern Alliance (but not the Respondent Jason Ouwendyk) pay a penalty of $7,500.00; and Pursuant to s. 54 (1) (b) of the Act that the Respondent the Northern Alliance (but not the Respondent Jason Ouwendyk) pay compensation of $6,000.00. [57] The purpose of a Cease and Desist Order under s. 54 (1) (a) of the Act is to both remediate conduct found to be contrary to s. 13 (1) of the Act and to send a message to others that such conduct is not acceptable. In the present case, the Northern Alliance Website is no longer in existence as it was apparently sold to an unrelated party several years ago. Contrary to Mr. Warman's Statement of Particulars, there is no evidence that the impugned conduct by the Respondents has continued to the present time. Instead it appears to have been discontinued well before the complaints were instituted. To a certain extent, there would not appear to be anything to remediate. However, one has no way of knowing whether the cessation of activity by the Respondents was related to a genuine understanding by the Respondents that their prior conduct was discriminatory and a firm resolve that it would not be repeated at any time in the future. To be on the safe side, therefore, I will make an Order along the lines requested by Mr. Warman under s. 54 (1) (a) of the Act. If the Respondents do not engage in the impugned conduct again in the future, they will have nothing to fear from such an Order. In view of the ruling by the Chairperson of the Tribunal, Mr. J. Grant Sinclair, referred to earlier in this Decision, this Order will not be issued until a final determination by the Courts of the constitutional question in the Lemire case. [58] In regard to the other remedies sought by Mr. Warman, I have decided not to grant any relief under these provisions for the following reasons. [59] During his cross-examination, Mr. Warman admitted (after initially denying) that he had participated in communicating messages on Internet Websites similar to the Northern Alliance Website utilizing pseudonyms such as Pogue Mahone and Axetogrind. [60] In one of several such communications that was entered into evidence during his cross-examination that Mr. Warman admitted having made, Mr. Warman using the name as Pogue Mahone Forum Member posted the following on the stormfront.org/forum Website on July 18, 2004: (The bolded words are Mr. Warman's. The italicized words are a quote that he has included from a previous post made by a S88) Re: Irwin Cotier (Jewish) as Minister of Justice in Canada Quote: Originally Posted by S88 Did you know our minster of justice is jewish? He has previously expressed a clear interest in the promotion of the interest in the promotion of the interests of Israel and the Jewish people, who represent a very small fraction of our nation's population. A recent announcement by your Federal government regarding a planned initiative to combat racism in response to recent anti-Semitic crimes is evidence of a misguided agenda. Such a plan will not only be a monumental waste of tax payer's money, but will also lead Canada down the path towards Stalinist-style oppression. Let's look at the recent anti-Semitic crimes that have been used as an example for implementing this plan: spray paint on Jewish houses and cars in Vaughan (backwards swastikas) - no arrests yet spray paint in Toronto equating a star of David with a swastika - Iranian immigrant arrested. Tomb stones overturned in a Jewish cemetery in Toronto - Jewish teenagers arrested and only charged with mischief Fire in a Jewish school in Montreal - note left on scene blaming Jews for the murder of Palestinian Hamas spiritual leader These incidents hardly seem like the rebirth of Kristallnacht, as Jewish leaders would have us believe. Jews themselves committed some of the vandalism and the rest was committed by Muslims, who are expressing the anger about events in the Middle East. Spending much needed tax dollars on a scheme to further impose the will of Israel-firsters on Canadians is not what voters want. With increasing immigration from third-world countries, old-world prejudices will continue to be expressed in Canada. If we really need to stop hate in Canada, then we need to look at ending immigration from third-world countries. These information was taken from A Letter to Prime Minister of Canada by Jason Ouwendyk.. Heil Victory 16 Did you know we had an election and the new cabinet hasn't been named yet? We still have scum in government but we have to wait and see which scum goes where. [61] In another posting entered into evidence during his cross-examination and the authorship of which was admitted to by Mr. Warman, Mr. Warman as Axetogrind Junior Member posted the following on the VNN (Vanguard News Network) Forum on January 5, 2005. Quote: Originally Posted by Thexder 3D Is everything written there true? I'm surprised those ADL Jews print quotes such as: Schoep, waving a noose, yelled to the crowd that he came to Kansas to speak the truth for my race, my people, my nation. Certainly that's something that might spark curiosity in (not yet racist) whites. I agree. Keep up the good work Commander Schoep! 88 [62] Mr. Warman stated that the communications quoted in the previous two paragraphs did not cross the line into hate messaging nor did they provoke hate messages by others. He stated that the inclusion in his postings of possible hate messages from others were inadvertent slips by him in sending messages over the Internet. He further stated that his postings were intended to assist him in his quest for information about persons using the Internet to communicate discriminatory hate messages. [63] I do not see any acceptable reason for Mr. Warman to have participated on the Stormfront or Vanguard sites, since there appears to be ample easily obtained messages on these sites available without his involvement. Moreover, it is possible that his activity in this regard, could have precipitated further hate messages in response. His explanation for including other hate messages in his postings by mistake seems very weak to me. [64] Mr. Warman has, with the assistance of the Commission, instituted most of the s. 13 (1) complaints under the Act that have come before the Tribunal. He has been very successful in these cases and has garnered accolades for his work in this regard. The evidence in this case of his participation on Internet sites similar to the Northern Alliance site is both disappointing and disturbing. It diminishes his credibility. For this reason and because the activities of the Respondents have ceased for a lengthy period of time, I will not make any further Orders in this matter. Signed by Edward Peter Lustig OTTAWA, Ontario March 13, 2009 PARTIES OF RECORD TRIBUNAL FILE: T1216/2807 and T1217/2907 STYLE OF CAUSE: Richard Warman v. Northern Alliance and Jason Ouwendyk DATE AND PLACE OF HEARING: August 18 to 20, 2008 Hamilton, Ontario DECISION OF THE TRIBUNAL DATED: March 13, 2009 APPEARANCES: Richard Warman For himself (No one appearing) For the Canadian Human Rights Commission Paul Fromm (No one appearing) For the Respondent Jason Ouwendyk For the Respondent Northern Alliance

2009 CHRT 11

CHRT

Zhou v. National Research Council and Chander P. Grover

en

2009-03-31

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6952/index.do

2023-12-01

Zhou v. National Research Council and Chander P. Grover Collection Canadian Human Rights Tribunal Date 2009-03-31 Neutral citation 2009 CHRT 11 File number(s) T1291/2108, T1292/2208 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision status Interim Grounds National or Ethnic Origin Race Decision Content Between: Ming Zhou Complainant - and - Canadian Human Rights Commission Commission - and - National Research Council - and - Chander P. Grover Respondents Ruling Member: Karen A. Jensen Date: March 31, 2009 Citation: 2009 CHRT 11 [1] On March 23, 2009, counsel for the Complainant requested that the present case be adjourned for three months. Counsel for the Complainant stated that he had just been retained and needed time to prepare for the four week hearing that is scheduled to commence on April 20, 2009. [2] During the conference call to discuss this issue, counsel for Dr. Zhou indicated that even with a two week adjournment, it would be difficult for him to proceed with the case on May 4, 2009. [3] The Tribunal has reviewed the submissions of counsel for all parties in the present case. For the following reasons, the Tribunal has decided to grant a two week adjournment to allow counsel for the Complainant to prepare for the hearing which will now commence on May 4, 2009. [4] 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.)). [5] A two week adjournment in the present case will give counsel 5 weeks to prepare. There is, therefore, enough time to prepare so that the Complainant’s right to a fair hearing is not compromised. [6] Moreover, it must be noted that on October 3, 2008, all of the parties agreed to set down four weeks for a hearing in April and May of the following year. Dr. Zhou had ample time to seek counsel or the assistance of his bargaining agent. However, it was not until March 18, 2009, a month before the commencement of the hearing, that the Tribunal was informed that counsel had been retained to represent Dr. Zhou. [7] Translation services for the hearing have been booked and confirmed. The hearing rooms have been reserved. Staffing resources have been allocated. Other cases that could have been set for hearing during this time period were not set down for that time. [8] The Tribunal must run an efficient hearing system in order to achieve its legislative mandate to hear and resolve complaints expeditiously (s. 48.9(1) of the CHRA; Canada Post Corporation v. PSAC and the CHRC, 2008 FC 223 at para. 274; Nova Scotia Construction Safety Association, Collins and Kelly v. Nova Scotia Human Rights Commission and Davison 2006 NSCA 63 at para. 76). A hearing requires the dedication of considerable financial and human resources. Those resources cannot be reallocated without significant disruption to the whole system, especially at this stage in the process. Such disruptions have an impact on the timeliness not only of the present case, but also of other cases in the system. For those reasons, an adjournment is granted only in cases where proceeding will clearly have an impact on the fairness of the hearing. [9] Taking all of this into consideration, a two week adjournment is appropriate in the present case. The hearing into this matter will now commence on May 4, 2009. Signed by Karen A. Jensen Tribunal Member Ottawa, Ontario March 31, 2009 Canadian Human Rights Tribunal Parties of Record Tribunal File: T1291/2108 and T1292/2208 Style of Cause: Ming Zhou v. National Research Council and Chander P. Grover Ruling of the Tribunal Dated: March 31, 2009 Appearances: David Spears, for the Complainant François Lumbu, for the Canadian Human Rights Commission Laura Stewart, for the Respondent, National Research Council Paul Champ, for the Respondent, Chander P. Grover

2009 CHRT 12

CHRT

Abrams v. Topham

en

2009-04-09

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6950/index.do

2023-12-01

Abrams v. Topham Collection Canadian Human Rights Tribunal Date 2009-04-09 Neutral citation 2009 CHRT 12 Decision-maker(s) Jensen, Karen A. Decision type Ruling Decision Content CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE HARRY ABRAMS - and - THE LEAGUE FOR HUMAN RIGHTS OF B'NAI BRITH CANADA Complainants - and - CANADIAN HUMAN RIGHTS COMMISSION Commission - and - ARTHUR TOPHAm - and - RADICALPRESS.COM Respondents RULING 2009 CHRT 12 2009/04/09 MEMBER: Karen Jensen [1] The Canadian Free Speech League (CFSL) brought a motion on March 19, 2009, for interested party status in the complaint of Harry Abrams and the League for Human Rights of B'nai Brith Canada v. Arthur Topham (and RadicalPress.com). Douglas Christie, General Counsel for CFSL, states that the organization seeks to intervene to challenge the constitutional validity of s. 13(1) of the Canadian Human Rights Act (CHRA). [2] On March 21, 2009, the Respondent, Mr. Topham, served notice that he intends to challenge the constitutionality of ss. 13, 54(1), and 54(1.1) of the CHRA. [3] Section 50 of the Canadian Human Rights Act gives the Tribunal discretion to grant interested party status. The onus is on the applicant to demonstrate how its expertise will be of assistance in the determination of the issues. 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); Nkwazi v. Canada (Correctional Service), [2002] C.H.R.D. No. 15 at para. 22 (C.H.R.T.)(QL); Warman v. Lemire 2006 CHRT 8. [4] In his motion, Mr. Christie does not indicate whether he wishes to lead evidence, what evidence that would be, and how much time would be taken up with that evidence. I do not know if Mr. Christie intends to examine or cross-examine witnesses called by other parties. [5] As a result, I am unable to determine whether the CFSL will add significantly to the legal position of the Respondent in this matter. Moreover, I am unable to assess the extent to which the hearing would be prolonged by reason of the participation of the CFSL, and to weigh the potential prolongation of the hearing against the benefit to be derived from the participation of CFSL. In these circumstances, I have no alternative at this juncture but to dismiss the motion. [6] Having dismissed the motion as a result of the inadequacy of the information provided in the request for Interested Party status, I have not made any determination as to whether the CFSL could make a valuable contribution to the hearing, or whether any such benefit is outweighed by the additional time and expense that will be incurred by reason of its participation. Signed by Karen Jensen OTTAWA, Ontario April 9, 2009

2009 CHRT 13

CHRT

Warman v. Canadian Heritage Alliance

en

2009-04-21

https://decisions.chrt-tcdp.gc.ca/chrt-tcdp/decisions/en/item/6961/index.do

2023-12-01

Warman v. Canadian Heritage Alliance Collection Canadian Human Rights Tribunal Date 2009-04-21 Neutral citation 2009 CHRT 13 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 2009 CHRT 13 2009/04/21 MEMBER: Karen Jensen [1] One of the Respondents in the present case, Melissa Guille, wishes to proceed with her constitutional challenge to sections 13 and 54 of the Canadian Human Rights Act. The Commission and the Complainant oppose the request stating that Ms. Guille failed to properly advise the parties of her intention to challenge the legislation in advance of the commencement of the hearing. In the alternative they state that the constitutional challenge should be adjourned sine die pending the outcome in Warman v. Lemire. In that case, the decision regarding the merits of the complaint and a similar constitutional challenge to ss. 13 and 54 is presently under reserve. [2] Mr. Warman filed his complaint against Ms. Guille and the Canadian Heritage Alliance on August 11, 2004. The complaint was referred to the Tribunal on September 28, 2005. In her Statement of Particulars, Ms. Guille indicated that she intended to challenge the constitutionality of sections 13 and 54 of the CHRA under ss. 2 and 7 of the Canadian Charter of Rights and Freedoms. The Tribunal ordered Ms. Guille to provide further particulars of the constitutional challenge by July 11, 2006. This was not done. [3] On August 27, 2007, during the hearing into the complaint, Member Deschamps directed that the hearing on the constitutional question be deferred to a later date after the merits of the complaint had been determined. At the time that the direction was issued, another member of the Tribunal was hearing the complaint of Warman v. Lemire, also involving s. 13(1) of the CHRA. The respondent in that case, Mr. Lemire had also challenged the constitutionality of ss. 13 and 54. [4] The Warman v. Lemire hearing lasted 30 days, involving the full participation of both the Canadian Human Rights Commission and the Attorney General of Canada in the constitutional questions. Five additional parties were granted interested party status for the constitutional issues. The decision in Warman v. Lemire is under reserve. [5] In a decision dated May 8, 2008, in Warman v. Northern Alliance and Jason Ouwendyk 2008 CHRT 14, the Tribunal deferred the hearing on the constitutional validity of ss. 13 and 54 of the CHRA pending the outcome in Warman v. Lemire. The Tribunal stated: The hearing on the question of the constitutional validity of the impugned sections of the Act will be deferred pending the outcome in Lemire. If the complaint is substantiated, the Tribunal will not issue any order until the final determination by the Courts of the constitutional question. [6] On September 12, 2008, former Tribunal Member Pierre Deschamps issued a decision on the merits of the complaint in the present case. Member Deschamps found that the Respondent had breached s. 13(1) of the Canadian Human Rights Act and ordered that the Respondents cease communicating material of the type that was found to violate s. 13(1) or any other messages of a substantially similar content that are likely to expose people to hatred or contempt on the basis of a prohibited ground of discrimination. [7] With regard to the constitutional question, Member Deschamps stated the following in his September 12, 2008 decision: Given the notice of constitutional challenge presented by the Respondent, Melissa Guille, and the previous directives issued by the Tribunal, on November 20, 2007, as to the proper time to present such challenge, the Tribunal orders that the execution of the present decision be suspended for a period of 30 days in order to allow the Respondent, Melissa Guille, if she so wishes, to present a motion that sets out the basis of her constitutional challenge to which the Commission and the Complaint will be entitled to respond or to object. [8] Thus, in contrast to the ruling in Warman v. Northern Alliance and Jason Ouwendyk, the ruling in the present case simply suspended the Tribunal's cease and desist order for 30 days pending the motion on the constitutional challenge. After the 30 day period has elapsed (which is presently the case), the cease and desist order comes into effect. [9] Ms. Guille and the Canadian Heritage Alliance are therefore subject to an order of this Tribunal to cease communicating the material that was found to be contrary to s. 13 of the Act and any material that is similar in content. [10] Although Ms. Guille may not have provided particulars of the constitutional question at the appropriate time in the process, the Tribunal nonetheless, did not rule that she was prevented from presenting the constitutional challenge. Indeed, in its decision of September 12, 2008, the Tribunal indicated that the possibility of presenting the challenge was still very much alive. [11] I disagree with the Commission that there would be no prejudice to Ms. Guille in adjourning the matter sine die. Ms. Guille is currently subject to a Tribunal order which she contends was made on the basis of legislation that is unconstitutional. An indefinite suspension of her right to challenge that legislation, and thereby the validity of the order, would constitute a significant prejudice in my view. [12] The hearing on the constitutional challenge will proceed. A registry officer will contact the parties to schedule a case management conference on this matter shortly. Signed by Karen Jensen OTTAWA, Ontario April 21, 2009