FPSLREB Decisions

Reasons for Decision

Introduction

1 Jeffrey Brown, the complainant, participated in an internal advertised appointment process (this appointment process) to staff several Correctional Manager positions at the CX-04 group and level at Correctional Service of Canada (CSC). He filed three complaints in which he alleges that the respondent abused its authority in this appointment process. He alleges that there was a pattern of racial discrimination in the Ontario Region of CSC regarding employment matters, including acting and indeterminate appointments of visible minority candidates for these CX-04 positions, as well as individual discrimination against him in this appointment process. He also alleges that the Commissioner of CSC, the respondent, did not comply with Treasury Board and CSC policies regarding employment equity (EE) and with EE legislation, that it did not properly apply the merit criteria in this process, and that two of the assessment board members were biased against him because of his prior union involvement.

2 The respondent denies that it abused its authority in this appointment process. It maintains that there was no discrimination against the complainant or anyone at CSC and that it respected Treasury Board’s and CSC’s policies regarding EE and did not contravene EE legislation. The respondent notes that being a member of a designated EE group was identified as an organizational need in this appointment process. It also maintains that it applied the merit criteria properly. Finally, the respondent denies that the selection board members were biased against the complainant because of his prior union involvement.

3 The Public Service Commission (PSC) was present during the first two days of the seven-day hearing. Before the hearing resumed, it provided written arguments based on the evidence heard until then. The PSC did not take a position on whether there was any discrimination in this complaint. The PSC’s view is that if the evidence establishes that there was discrimination, then this would constitute an abuse of authority.

Background

4 On November 9, 2007, the respondent posted a Job Opportunity Advertisement (JOA) on Publiservice to staff on an indeterminate and acting basis several Correctional Manager positions at the CX-04 group and level in the Ontario Region (appointment process 07-PEN-IA-ONT-236).

5 More than 100 persons applied for the positions. Candidates were screened on education and experience. Candidates who were screened in completed a multiple choice examination that assessed knowledge, the PSC’s Middle Manager In-Basket Exercise 820 and an interview that assessed abilities. The complainant was screened in and passed the knowledge examination and the PSC’s Middle Manager In-Basket Exercise 820. The complainant, however, failed the interview because he did not obtain the pass mark for two essential qualifications: strategic thinking and values and ethics. Eleven persons were found fully qualified.

6 Three Notification of Appointment or Proposal of Appointment notices were issued: one on February 18, 2009 (file 2009-0123), another one on February 27, 2009 (file 2009-0145) and another one on March 4, 2009 (file 2009-0156).

7 On February 24 and March 11 2009, the complainant brought three complaints of abuse of authority to the Public Service Staffing Tribunal (the Tribunal) under s. 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22 ss. 12 and 13 (the PSEA), which provides that a person in the area of recourse may make a complaint to the Tribunal that he or she was not appointed or proposed for appointment because the PSC or the deputy head abused its authority in the appointment process. The three complaint files were consolidated for the purpose of these proceedings, in accordance with section 8 of the Public Service Staffing Tribunal Regulations, SOR/2006-6 (the PSST Regulations).

8 The complainant gave notice to the Canadian Human Rights Commission (CHRC) that he intended to raise an issue involving the interpretation or application of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA). The CHRC informed the Tribunal that it did not intend to make submissions in these complaints.

Issues

9 The Tribunal must decide the following issues:

1. Did the respondent discriminate against the complainant in this appointment process?
2. Did the respondent fail to comply with Treasury Board and CSC policies regarding EE and with EE legislation in this appointment process?
3. Did the respondent abuse its authority in the application of merit?
4. Were assessment board members biased against the complainant because of his prior union involvement?

Analysis

Issue I:  Did the respondent discriminate against the complainant in this appointment process?

10 Section 80 of the PSEA provides that in determining whether a complaint is substantiated under s. 77, the Tribunal may interpret and apply the CHRA.

11 Section 7 of the CHRA makes it is a discriminatory practice to directly or indirectly refuse to employ or continue to employ any individual; or, in the course of employment, differentiate adversely in relation to an employee, on a prohibited ground of discrimination. Section 3 of the CHRA lists the prohibited grounds of discrimination, which include race, colour and ethnic origin.

12 The complainant testified that he is African Canadian and of Aboriginal descent. He alleges that there is a pattern of racial discrimination in the Ontario Region of CSC regarding employment matters, including acting and indeterminate appointments to Correctional Manager CX-04 positions. The complainant sought to prove this allegation through the following evidence: his testimony and the testimony of current and former CSC employees, a 2006 staffing audit, statistical evidence regarding visible minority representation in CSC, a 2010 cross-country consultation tour by the Deputy Head to discuss concerns that visible minority employees have with respect to their careers, and language proficiency barriers. The complainant argues that this evidence taken collectively proves that there has been a pattern of discrimination against members of visible minorities in the CSC’s staffing practices in the Ontario Region, and that he has similarly been personally discriminated against in this appointment process based on a prohibited ground of discrimination set out in the CHRA, namely his race, colour, and national/ethnic origin.

Has the Complainant Established a Prima Facie Case of Discrimination?

13 The Tribunal’s jurisprudence has established that the complainant has the burden to prove, on a balance of probabilities, that there was abuse of authority in the appointment process (see, for example, Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008,at para. 49).

14 In the human rights context, the complainant has the evidentiary onus to prove a prima facie case of discrimination. In Ontario (Human Rights Commission) v. Simpson Sears, [1985] 2 S.C.R. 536 (known as the O’Malley decision), the Supreme Court of Canada set out the test for establishing a prima facie case of discrimination:

28 […] The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which cover the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer. […]

15 The complainant need only show that the alleged discrimination was one of the factors, not the sole or even the main factor, in the respondent’s decision to eliminate him from this appointment process for a prima facie case to be met. (See: Holden v. Canadian National Railway Company (1991), 14 C.H.R.R. D/12 (F.C.A.), at para. 7).

16 The Tribunal is required to determine whether the complainant’s allegation of discrimination, if believed, justifies a finding in his favour in the absence of an answer from the respondent. Thus, at this stage of the analysis, the Tribunal cannot take into consideration the respondent’s answer before determining whether a prima facie case of discrimination has been established. (See: Lincoln v. Bay Ferries Ltd., [2004] F.C.A. 204, F.C.J. No. 941 (QL), at para. 22 (F.C.A.)).

17 Discrimination can be proven by direct or circumstantial evidence or a combination of both. In these complaints, all the evidence relating to discrimination is circumstantial. The test to be applied, when considering circumstantial evidence, has been articulated by Beatrice Vizkelety, Proving Discrimination in Canada, (Toronto: Carswell, 1987), at p. 142 as follows:

The appropriate test in matters involving circumstantial evidence, which should be consistent with this standard [of preponderance of the evidence], may therefore be formulated in this manner: 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.

18 However, even if the Tribunal were to find that there was sufficient circumstantial evidence to establish that there was a pattern of discriminatory conduct regarding the promotion of visible minorities to CX-04 positions, the complainant must still demonstrate a link or nexus between this evidence and the evidence, both direct and circumstantial, of individual discrimination in his situation in order for a prima facie case of discrimination to be established. (See: Swan v. Canada (Armed Forces), (1994) 25 C.H.R.R. 312, at para. 30 (C.H.R.T.), Hill v. Air Canada, 2003 CHRT 9, at para. 133, Chopra v. Canada (Department of National Health and Welfare), 2001 CanLII 8492 (C.H.R.T.), at para. 211).

19 If the complainant establishes a prima facie case of discrimination, the evidentiary onus shifts to the respondent to provide a reasonable non-discriminatory explanation for not appointing the complainant to a CX-04 position in this appointment process.

Evidence Regarding the Complainant

20 The complainant obtained a Bachelor of Arts degree from the University of Windsor and a Certificate in Criminology and Criminal Justice from the same University. He received several awards, including a certificate of achievement for his participation in Ethics Issues.

21 The complainant has over 14 years experience as a Correctional Officer and a Parole Officer. He started working for CSC as a Correctional Officer CX-01 in 1994. In 2008, he was successful in an appointment process for a Parole Officer WP-04 position at the Windsor Parole Office. He accepted the position and in April 2010, he was deployed to a Parole Officer WP-04 position at the Portsmouth Centre in Kingston, a community correctional centre, where he currently works.

22 The complainant contested the propriety of several appointments (acting and indeterminate appointments) which are not the subject of these complaints. In 1997, the complainant applied in an advertised appointment process for a Case Management Officer position. The complainant passed the first part of the process, but failed the second part. He contends that if he had been given an acting opportunity, as he had asked for, during that interval, like other non-visible minorities had been given, he may have been successful in the second part of the examination.

23 The same scenario repeated itself in 1999. The complainant participated in an advertised appointment process for a Parole Officer WP-04 position. The complainant passed the first part of the process, but failed the second part. The complainant had asked to act during the period between the two parts of the process but was not given that opportunity.

24 The complainant was found qualified in an advertised appointment process in 2003 for a Parole Officer WP-04 position. His name was placed 11^th on the eligibility list which was valid for two years. Under the former PSEA, the names of the successful candidates were placed in order of merit on what was called an "eligibility list" and persons were appointed to positions in that order as vacancies arose. Only the first two persons on that list were appointed to positions.

25 The complainant testified that other non-visible minorities were given acting appointments, even during the period his name was on the eligibility list mentioned above.

26 The complainant argues that he should have been appointed in all of the above appointment processes. More specifically, he argues that he was not appointed to those positions because of his race, color or ethnic origin and that the Tribunal can make a finding of discrimination regarding those previous appointments. He also argues that this pattern of discrimination affected him in this appointment process since, had it not been for that pattern of discrimination, he would have received more acting and indeterminate appointments which would have better prepared him for this appointment process.

27 The respondent argues that the Tribunal does not have jurisdiction over appointments that are not subject to these complaints and for which the time limits have elapsed years ago. The respondent’s view is that hearing evidence and arguments regarding those previous appointment processes would amount to re-litigating those complaints about those processes.

28 The Tribunal finds that it can examine incidents and events that occurred in previous appointment processes. Such incidents may be part of the context of a complaint and can shed light on the current appointment process. The Tribunal can, for example, take into consideration a racial remark made in the context of a previous appointment process and determine whether that remark can be construed as a part of a pattern of discrimination. However, while the Tribunal can consider the evidence presented by the complainant as to his experience in past appointment processes, pursuant to ss. 77 and 81 of the PSEA, the Tribunal’s jurisdiction to determine whether a complaint of abuse of authority has been substantiated is limited to this appointment process, not appointments in previous processes.

29 Under s. 20 of the Public Service Employment Regulations 2000 (SOR/2000-80) made under the former Public Service Employment Act, R.S.C. 1985, c. P-33 (the former PSEA), the time limit for challenging appointments was 14 days; under s. 10 of the PSST Regulations made under the current PSEA, the time limit is 15 days. Allowing a person to challenge an appointment long after the time limits have elapsed would seriously undermine the stability of the recourse and appointment regimes. It would make time limits and other requirements for those recourses meaningless. It would also be grossly unfair to the persons appointed in those processes and the respondent to require them to defend themselves years after the fact (most appointments were made years ago, one more than 10 years ago) when most of the evidence has become stale, memories have become unreliable, and most of the documents and persons involved have become difficult to find.

30 If the complainant believed he should have been appointed in those appointment processes, he should have exercised his recourse rights, if he was in the area of selection, within the prescribed time limits. The Tribunal notes that the complainant did exercise recourse in the case of the appointment process for the Parole Officer WP-04 position in 2003, but he did so before the wrong forum. He grieved that matter and referred his grievance to the Public Service Labour Relations Board (PSLRB), and the PSLRB dismissed the grievance on the ground that it had no jurisdiction over appointment matters (Brown v. Treasury Board, 2009 PSLRB 127). The complainant filed an application for judicial review of that decision and that application is currently before the Federal Court. With respect to that same appointment process, the respondent pointed out that it did not solely appoint persons who are not members of visible minority groups while the complainant’s name was on the eligibility list. It gave Carl Jack, a member of a visible minority group, an acting appointment in the same process.

31 The complainant maintains that one officer acted in a position for ten years. According to the complainant, the respondent gave that person a series of acting appointments of less than four months to shield them from recourse. The complainant also argues that this was common practice. The complainant did not provide more details or documentary evidence to support that allegation. The complainant did not call the officer in question to testify. The Tribunal finds that there is insufficient evidence to support this allegation. The Tribunal notes that if the complainant believed the respondent was using such a scheme to shield those acting appointments from recourse, he should have brought an appeal under s. 21 of the former PSEA, or a complaint under s. 77 of the current PSEA against those acting appointments. He could then have argued that the respondent was artificially breaking up appointment periods to avoid recourse and circumvent the former and current PSEA. The Appeal Board or the Tribunal would have determined if that was the case and whether the appeal or the complaint should be substantiated.

32 The complainant also argues that, although he had repeatedly indicated in his Personal Development Plan his interest in acting in Correctional Officer CX positions and Parole Officer WP positions (CSC employees often go from one group to the other), he was only given two acting appointments in 15 years: one to a Correctional Officer CX-02 position in 1997-1998, and another one to a Parole Officer WP-04 position in 2004 which only lasted 12 days. According to him, this shows that there was a pattern of discrimination in appointment processes at CSC.

33 The Tribunal finds that there is insufficient evidence to support that allegation. The complainant was appointed twice on an acting basis. He was offered a third acting appointment at Gravenhurst, North of Kingston, but refused it because, according to him, he would have had to sell his house.

34 There is also evidence that members of other visible minority groups were given acting opportunities to positions in the CX and WP groups. Three of the witnesses called by the complainant, who are also members of visible minority groups, testified in cross-examination that they received acting opportunities:

• Mr. Jack was given an acting appointment to a CX-02 Correctional Officer position in 1994, another one to a Parole Officer WP-03 position in February, 1997, and another one to an unspecified position in March 2005.
• DeVoe Dyette had an acting opportunity to a CX position in 1997, to a Correctional Manager position for five months with some interruptions in 2008-2009, to a Correctional Manager CX-04 position for eight months with some interruptions in 2009-2010, to a Correctional Manager CX-04 position from January 2010 to April of same year.
• Donovan Blair was given an acting appointment to a position at the Hamilton Parole Office three times and acted in the Toronto Parole Office in 1995-96 and in the Peel Parole Office in 1999-2000. The respondent also asked him to act in a position two months ago, but he refused the offer because he is studying full-time.

35 The Tribunal has no evidence that would allow it to determine whether the number of acting appointments the complainant and his witnesses received was the norm or not. The complainant did not present any statistics that would indicate whether persons who are not visible minority group members received more acting appointments than those who were from visible minority groups in the Ontario Region. The only evidence he produced is anecdotal in nature and the Tribunal cannot draw any inferences from that evidence.

36 The complainant testified that Ron Fairley, the Deputy Warden, discriminated against him in 2002 when he refused to endorse the recommendation of the complainant’s unit manager and supervisor that he be chosen to participate in a succession plan aimed at fast-tracking candidates for management positions. The complainant testified that the emphasis of this fast-track program was on employees who were from visible minority groups. Carl Jack testified that this fast-track program never got started. Mr. Fairley was not called to testify, and the complainant presented no further evidence concerning this fast-track program. The Tribunal cannot draw any inference from that refusal which occurred long ago and bears no connection to this appointment process.

37 The complainant alluded to two harassment complaints that he brought against Mr. Fairley. One was investigated by the Regional Harassment Advisor of CSC, and the other by the CHRC. The complainant did not explain whether those complaints were related to a prohibited ground of discrimination under the CHRA. The Tribunal notes that both investigations concluded that Mr. Fairley had not harassed the complainant. The Tribunal finds that the complainant has failed to present sufficient evidence to support his allegation concerning Mr. Fairley.

38 Employees who wanted to act in Correctional Manager (CX-04) positions had to pass a competency test before being offered an acting appointment. The complainant wrote the test in 2006 and failed. The complainant testified that this was just a knowledge test so he was shocked and surprised that he did not pass the test. He thought the test was easy. While the complainant testified that the test was unfair, he did not make any link between the test and any discrimination practice in his testimony.

Evidence of Other Correctional Officers Regarding Appointment Processes

39 The complainant called five current or former colleagues who are members of visible minority groups to testify with respect to their experience working at CSC. The complainant called Mr. Jack, Mr. Devoe, Garth Bowen, Kenny Roberts, and Mr. Blair as witnesses. None of them participated in this appointment process.

40 Most of them alleged that prohibited discriminatory grounds were factors in previous appointments, including acting appointments, and that they were not given the opportunity to fill vacant positions that could have been filled through acting appointments.

41 The respondent objected to the admission of this similar fact evidence on the ground that it was not relevant to these complaints. The Tribunal ruled that the evidence was admissible. The Tribunal received evidence from these other correctional officers concerning various previous appointment processes, as well as disciplinary matters and other incidents as similar fact evidence. (See, for example, Swan). After hearing this evidence, and for the reasons set out below, the Tribunal finds that the complainant has failed to demonstrate a sufficient nexus between this similar fact evidence and the complaint before the Tribunal. Accordingly, the Tribunal places little weight on this circumstantial evidence.

42 Mr. Jack, who started working at CSC in 1994 as a Correctional Officer, challenged several appointment processes in which he participated in the last 15 years and was found unsuccessful. For example, in 2002, he applied for a Parole Officer position, but his application was refused because it was two months late. There is nothing to indicate that Mr. Jack’s status as a member of a visible minority group was a factor in the refusal to accept his candidacy. Mr. Jack brought a complaint of racial discrimination to the CHRC against that decision, and on June 27, 2005, the CHRC, following investigation, declined to refer his complaint for further inquiry to the Canadian Human Rights Tribunal (CHRT) on the ground that the complaint was based on facts that occurred more than one year before the filing of the complaint and that the respondent’s actions did not appear to constitute discrimination.

Evidence of Other Correctional Officers Regarding Disciplinary Matters and Other Incidents

43 The witnesses called by the complainant also alluded to a number of disciplinary matters that the complainant argues help to establish a pattern of discrimination. The Tribunal is not prepared to put any weight on the similar fact evidence concerning disciplinary matters, or other incidents. The similar fact evidence came from witnesses who either made general allegations or specific allegations involving individuals who the complainant has failed to show were in any way connected with the complaint before the Tribunal. The Tribunal is not prepared to place any weight on this circumstantial evidence.

44 Mr. Bowen was hired by CSC as a Correctional Officer in the spring of 1991. Mr. Bowen lost his employment more than 15 years ago because of an incident in which he inappropriately kissed a fellow female officer. The complainant argues that this shows that there was a pattern of discrimination against visible minorities since employees who were not members of visible minority groups did worse things and kept their employment. The Tribunal notes that Mr. Bowen grieved his termination of employment which was rejected at the departmental level. He referred his grievance to what was then the Public Service Staff Relations Board (PSSRB) but decided to settle the grievance.

45 Mr. Roberts started working as a Correctional Officer at CSC in 1987. His employment was terminated in 2006 because of an incident that occurred in September 2005 at the Kingston Penitentiary involving an inmate who had the reputation of being violent. His termination was based on the ground that he used improper force against the inmate. Mr. Roberts testified that his termination was motivated by racial discrimination and that his punishment was too harsh in relation to wrongdoings by other officers who were not members of visible minority groups. Mr. Roberts filed a grievance against his termination and referred his grievance to the PSLRB which dismissed the grievance. Mr. Roberts chose not to argue discrimination before the PSLRB.

46 Mr. Blair started working at CSC in 1991. The respondent imposed a disciplinary sanction on him in 1997 for having stayed one extra night at a hotel during a work conference. Mr. Blair testified that that disciplinary action was racially motivated. Mr. Blair grieved that disciplinary action at the departmental level, and he reached a settlement with the respondent.

47 Mr. Jack testified that the respondent gave hima verbal reprimand because of the manner in which he told a white officer to stop hiding the penitentiary keys from him. Mr. Jack did not say when this incident occurred.

48 The Tribunal finds that the complainant has not established a pattern of discrimination through this collective evidence regarding disciplinary matters for the following reasons. Most of the incidents occurred well before this appointment process, they have been dealt with through grievance procedures (in two cases, the grievance was resolved through a settlement), and none of these incidents are linked to this appointment process.

49 Mr. Bowen referred to an incident that occurred in the early 1990s. The Deputy Warden of what seems to be the Collins Bay Institution allegedly made "racially charged remarks" to inmates during a tour of that institution. Mr. Bowen did not specify what exactly was said. The Tribunal notes that it is double hearsay: Mr. Bowen was not present during that tour; he heard it from a fellow officer who also heard it from someone else, and the evidence as to location is not even clear.

50 Mr. Jack recalled an incident where a white officer called him a rat in 1994. As well, in 1994 Mr. Jack overheard a conversation between several officers whom he did not recognise in which a derogatory slur against black persons was used.

51 Mr. Jack alluded to another incident that occurred on May 20, 2004 at the Pittsburgh Institution. The National Parole Board held a seminar for inmates. Since several inmates were putting questions at the same time to the seminar leader, he decided to pick one inmate that would put questions to him. The presenter selected the question randomly by reciting a nursery rhyme that contained inappropriate racial slurs. The presenter, who excused himself the same day for his lack of judgment, did not work for the respondent, but rather for the National Parole Board, an entirely different organization. The incident therefore cannot be attributed to the respondent.

52 Mr. Dyette also testified that there was discrimination against visible minorities in the Ontario region of CSC. He was hired at CSC in 1991 as a Correctional Officer CX-01 and appointed to a CX-02 position in 1997. He stated that the then Director General of the Regional Treatment Centre told him in 2006 that he was endeavouring to terminate Mr. Dyette because of an email Mr. Dyette had sent to another employee. In that email, Mr. Dyette implied that the Unit Manager of the Regional Treatment Centre at the Kingston Penitentiary had improperly ended his acting appointment in 1996. In an email of December 14, 2006, to Mr. Dyette, the Director General denied having made such a threat. Mr. Dyette is still working at CSC. As well, as previously identified in these reasons, Mr. Dyette had an acting opportunity to a Correctional Manager position for five months with some interruptions in 2008-2009, and to a CX-04 position for eight months with some interruptions beginning in 2009.

53 Mr. Dyette testified that he was involved in a disciplinary matter in which the same manager carried out the investigation, presided over the investigation hearing and made the decision regarding discipline. Mr. Dyette did not give enough details of this incident to enable to Tribunal to draw any inferences from this evidence. Furthermore, he did not establish why it would be inappropriate for the same manager to conduct the investigation and make the disciplinary decision.

The 2006 Staffing Audit

54 The complainant referred to a staffing audit performed by CSC in 2006 that indicated that there were several staffing irregularities in the Ontario Region. Because of this, the Ontario Region lost its staffing delegation from the PSC which delegates that authority. The Tribunal notes that the audit mentions irregularities such as insufficient documentation for staffing actions, but it does not link any staffing irregularities to alleged discriminatory conduct. Accordingly, the Tribunal is unable to place any weight on this circumstantial evidence.

Statistics on visible minority representation

55 The complainant argues that the fact that visible minorities are underrepresented in the CX group, especially at the management level, constitutes evidence of systemic discrimination. The complainant referred to several reports that indicate that members of visible minority groups are underrepresented in the public service as a whole. He referred the Tribunal to the Sixteenth Annual Report to the Prime Minster on the Public Service of Canada issued by Kevin G. Lynch, the Clerk of the Privy Council and Secretary to the Cabinet on March 31, 2009, which states that the percentage of visible minorities in the public service in 2008 was 10.3%, while their Workforce Availability (WFA) was 12.6%. The complainant also referred the Tribunal to a document entitled Correctional Service of Canada Employment Equity Overview issued in August 2008. Table 5 on page 13 of that document indicates that, in the Ontario Region of CSC, there is one employee who is a member of a visible minority group in the EX minus one classification and five in the EX minus two classification for CSC as a whole. He also referred the Tribunal to a report prepared by the Human Resources Management Strategies Branch in April 2008 entitled An Analysis of the CX Occupational Category within CSC: 1999-2008, which indicates that 5.6% of employees in the CX group are members of visible minority groups. Unfortunately, the report does not indicate the WFA for that group.

56 The evidence would therefore appear to indicate that visible minorities are underrepresented in the public service as a whole and that there are few members of visible minority groups in the management level in CSC’s Ontario Region. The complainant, however, did not present evidence regarding visible minority representation at the time of the appointment process in the CX group or the CX-04 level in the Ontario Region. Such evidence would have been more helpful in these complaints. The Tribunal therefore cannot draw any meaningful conclusion regarding visible minority representation in that group and at that level. Accordingly, while some weight has been placed on the circumstantial statistical evidence presented, it is insufficient to lead the Tribunal to draw an inference that discriminatory barriers existed against members of visible minority groups who applied in this appointment process. (See Chopra v. Canada (Department of National Health and Welfare), [2001] C.H.R.D. No. 20, at para. 229 (QL)).

57 Even if there had been statistical proof of underrepresentation of visible minorities at the CX-04 level, that would not necessarily establish that that underrepresentation was the result of systemic discrimination, as then Member Hadjis explained in Chopra at paras. 236 and 237 (QL):

[…] However, without a more detailed review of existing policies and staffing actions, one cannot be certain that systemic discrimination is the cause of under-utilization. A more in-depth study, for example, could demonstrate that too few members of that group are applying for promotions. One could inquire as to why that is the case and a further examination may show that this is linked to some discriminatory activity. But I find that mere reliance on the utilization rate without further analysis does not assist meaningfully in the establishment of circumstantial evidence of discrimination.

For all the above reasons, I have concluded that the evidence of Dr. Weiner with respect to statistical evidence of discrimination is of little assistance in this case and certainly does not itself constitute circumstantial evidence of a prima facie case of individual discrimination as alleged in Dr. Chopra’s complaint.

The 2010 Consultations

58 On March 16, 2010, Don Head, the current Commissioner of CSC, announced in an email to employees who had self-identified as members of visible minority groups that he was conducting a cross-country tour to consult them to discuss their concerns and their views on what they feel have been obstacles to their careers. The complainant argues that this indicates that Mr. Head acknowledged that there has been systemic discrimination against visible minorities.

59 The Tribunal places little weight on this evidence. No evidence was presented as to the circumstances giving rise to the consultations. The consultations took place three years after this appointment process. There is no evidence linking these consultations to an allegation of the existence of discrimination at the time the respondent made the appointments in this appointment process. The Tribunal cannot draw the inference sought by the complainant from this evidence. The evidence does not render an inference of discrimination more probable than the other possible inferences or hypotheses. Another possible inference is that Mr. Head’s initiatives are an indication that the respondent is concerned with the well-being of visible minorities and wishes to consult them on problems they encounter.

French Language Proficiency

60 The complainant argues that the requirement to possess French language proficiency for appointments is a barrier for visible minorities, especially in light of the fact that no member of a visible minority group was ever given language training. According to him, a high proportion of members of visible minority groups do not have that proficiency since many do not come from French-speaking countries.

61 The Tribunal notes that the complainant did not submit evidence on this matter, so there is no indication as to whether French language proficiency is a barrier for visible minorities who apply for Correctional Officer positions. Even if there was evidence that this is a barrier for visible minorities, language cannot be seen as a barrier in this appointment process since the official language proficiency listed for this process on the JOA was various language requirements, namely, English Essential or Bilingual Imperative. As well, the Statement of Merit Criteria (SMC) listed the ability to speak languages other than French and English as an asset qualification. The Tribunal finds that there is no evidence that the complainant was eliminated from this appointment process because he did not possess French language proficiency.

62 In conclusion, the Tribunal finds that, taken together, all of the actions and events testified to by the complainant and the witnesses called by the complainant, if believed, do not establish a prima facie case of discrimination. The complainant alleges racial discrimination in the Ontario Region of CSC regarding acting assignments and indeterminate appointments of visible minority candidates for these CX-04 positions. The complainant has failed to prove that there was a pattern of discrimination regarding promotions at the time of this appointment process. Even if he had demonstrated such a pattern of discrimination, he still would have to establish the requisite link between the evidence of a pattern of discrimination and evidence of individual discrimination based on his race, and/or national or ethnic origin. Based on the evidence presented, the Tribunal finds that the complainant has failed to establish the necessary link. (See Chopra, at para. 211 (QL)). The Tribunal finds as a fact, from the complainant’s evidence, that the complainant had two acting appointments, and was offered a third acting opportunity that he refused prior to this appointment process. More importantly, in 2006, he wrote the competency test for the CX-04 acting opportunities, but failed the test.

63 The evidence outlined above is neither sufficient nor complete enough to establish that the complainant’s race, colour or national/ethnic origin was a factor in the failure to appoint the complainant to one of the CX-04 positions in this appointment process.

Reasonable Non-Discriminatory Explanation

64 While the above conclusion is sufficient to dispose of the allegation of discrimination, the Tribunal finds that the respondent has also provided a reasonable non-discriminatory explanation for not choosing the complainant in this appointment process: the complainant failed two essential qualifications and therefore could not be appointed to the position. Under Issue III of this decision in the Analysis section, the Tribunal provides a detailed analysis of the complainant’s assessment and addresses specific issues the complainant raised regarding the application of the merit criteria.

Issue II:  Did the respondent fail to comply with Treasury Board and CSC policies regarding EE and with EE legislation in this appointment process?

65 The complainant alleges that the respondent did not comply with Treasury Board and CSC policies regarding EE and with EE legislation. The complainant argues that those policies and that legislation required the respondent to appoint him to this position, positions for which he applied in the past and any other Correctional Manager or Correctional Officer position that was vacant, either on an indeterminate or acting basis.

66 The complainant, however, did not identify any provisions of those policies or point to any specific provision of the Employment Equity Act, S.C. 1995, c. 44 (EEA) that set out such a requirement.

67 The respondent contends that it respected all policies on EE and that it is not the Tribunal’s role to enforce EE policies or EE legislation.

68 It is useful at this point to examine the purpose of the EEA and how that Act operates to better understand the relation between that Act and this appointment process. The purpose of the EEA is to correct conditions of disadvantage in employment experienced by women, aboriginal peoples, persons with disabilities and members of visible minorities (the designated groups) (s. 2). The Act sets out several obligations on the employer in order to reach those goals. Among them is the obligation to identify and eliminate barriers to employment for employees in the designated group and institute policies and practices that will achieve a degree of representation in each occupational group in the employer’s workforce that reflects their representation in the workforce in the country (s. 5). The CHRC is responsible for enforcing the EEA (s. 22). It does so through compliance audits. When the employer does not comply with the EEA, the CHRC may issue a direction to the employer to remedy the non-compliance (s. 25(2)). The employer may ask for a review of the direction by an Employment Equity Review Tribunal established by the Chairperson of the CHRC (s. 28 (1)).

69 The EEA and the PSEA are coordinated to ensure that both EE and merit are respected in appointments. Section 30(2)(b)(iii) of the PSEA allows the deputy head to establish organizational needs as a merit criteria. It is uncontested that EE can be an organizational need and that "[m]ember of a designated Employment Equity group" was identified as an organizational need in this appointment process. The PSEA also contributes to EE goals by allowing the deputy head to limit the area of selection to designated groups, or to have a broader area of selection for those groups (s. 34). The EEA ensures thatmerit is respected in appointments since the employer is not required to hire a person who does not meet the merit criteria within the meaning of the PSEA where merit applies (s. 6(c)).

70 It is not the role of the Tribunal to enforce compliance with the EEA. As indicated above, Parliament has bestowed that role on the CHRC (s. 22 of the EEA). As the Federal Court of Appeal confirmed in Lincoln v. Bay Ferries, at para. 27:

It thus appears that the Employment Equity Act was intended to operate independently and to impose on the employers to which it applies duties and obligations that are specific to that legislation, that are to be enforced pursuant to that legislation, and that are unrelated to a complaint under section 7 of the Canadian Human Rights Act.

71 That is not to say, however, that EE matters are not relevant in complaints made under s. 77 of the PSEA. Section 77(1)(a) gives the Tribunal the authority to determine whether the deputy head abused its authority in the exercise of its authority under s. 30(2). As indicated above, s. 30(2)(b)(iii) allows a deputy head to establish organizational needs, which could include EE, as a merit criterion. If so, the Tribunal can consider evidence as to whether or not the deputy head had regard to the identified organizational need when it selected a particular candidate for the position. (See, for example, Gannon v. Deputy Minister of National Defence, 2009 PSST 0014, at para. 70).

72 As discussed under Issue I, the complainant argues that members of visible minority groups are underrepresented in the Ontario Region at CSC. Neither party called expert witnesses to testify about the statistical data presented. Bob Fisher was called as a witness by the respondent on this matter. He currently works as a Regional Analyst (PE-04) for the Ontario and Nunavut Region. He works on the EE portfolio and keeps track of visible minority representation in the Ontario region. He explained a statistical report issued by CSC and based on data provided by Statistics Canada which indicates that on March 31, 2007 (i.e., a few months before this appointment process began), visible minorities were overrepresented in the CX group as a whole in CSC’s Ontario Region since they represented 4.7% of employees, and their WFA was 1.6%. Another statistical report indicates that in 2007, visible minorities represented 5.7% of employees in the CX group, and their WFA was 1.7%. Visible minorities were, however, underrepresented in 2007 at the CX-04 level, which is the management level, since there were seven employees at that level in the CX group but none were members of visible minority groups.

73 The evidence would therefore appear to indicate that there was no underrepresentation of visible minorities in the CX group as a whole, the classification group which is the subject of these complaints, in 2007. As for the CX-04 level specifically, the Tribunal cannot draw any meaningful conclusion because that group is simply too small. Hiring just one visible minority, for example, would have resulted in an overrepresentation of visible minorities since the WFA was 1.6%. The same reasoning applies to the respondent’s evidence that the Senior Deputy Commissioner of CSC, the second highest position at CSC, is held by a member of a visible minority group. Since there is only one person at that level, the number is too small to draw any meaningful statistical conclusion. Accordingly, while some weight has been placed on the circumstantial statistical evidence presented, the Tribunal concludes that if the numbers are too small, the inference cannot be made that discriminatory barriers existed against members of visible minority groups who applied in this appointment process.

74 Furthermore, the Tribunal finds that the issue of representation is not determinative in these complaints because the complainant’s argument is that the respondent should have taken EE into consideration in this appointment process and the respondent did. It established EE as a merit criterion.

75 The complainant argues that the respondent was obligated under the EEA to appoint him in this appointment process because EE was identified as an organizational need, and he is a member of a visible minority group. But the EEA states specifically that the respondent is not required to appoint a person who does not meet the merit criteria (s. 6(c)). The complainant was not successful in this appointment process since he failed two essential qualifications. The respondent could not have appointed the complainant in this appointment process without violating merit.

76 The complainant also argues that he should have been appointed in the past, whether on an indeterminate or an acting basis, to any Correctional Manager or Correctional Officer position that was vacant. As s. 77 of the PSEA stipulates, the Tribunal can consider a complaint once an appointment or proposed appointment has been made in an internal appointment process; the Tribunal does not have jurisdiction to consider a complaint about how a deputy head deals or does not deal with a vacant position.

77 The complainant further submits that the respondent could have made better use of special EE measures in this and in previous processes, such as limiting the area of selection to visible minorities since s. 34 of the PSEA allows for that measure. The Tribunal does not have jurisdiction over the establishment of the area of selection in this process or any other appointment process.

78 In conclusion, the Tribunal finds that the complainant has not proven that the respondent failed to comply with Treasury Board and CSC policies regarding EE and with EE legislation in this appointment process.

Issue III:  Did the respondent abuse its authority in the application of merit?

79 The complainant contends that the merit criteria were not properly applied in this appointment process.

80 The complainant failed the interview part of the appointment process. The complainant was interviewed by Robert MacLean, who chaired the assessment board, and two other members: Gerry Henderson, the Deputy Warden of the Pittsburgh Institution at the time of this appointment process, and Margaret Rose, a Correctional Manager at the CX-04 group and level.

81 Candidates were required to have a minimum score of 60% for each essential qualification assessed during the interview to be found qualified. The complainant did not obtain the pass mark for two essential qualifications: strategic thinking, and values and ethics.

82 Question 2 assessed strategic thinking and question 7 assessed values and ethics. These two essential qualifications were not assessed by any other question. While questions 2 and 7 also assessed another qualification, the assessment board only marked the complainant’s response as they related to strategic thinking and values and ethics. Mr. MacLean explained in his testimony that there was no purpose in marking the respondent’s answers to those questions in relation to other qualifications since, having failed those essential qualifications, the complainant could not be appointed to the position.

83 In matters of assessment of candidates in an appointment process, the Tribunal has held in numerous decisions that its role is to determine whether there has been an abuse of authority, not to reassess candidates (see, for example, Broughton v. Deputy Minister of Public Works and Government Services, 2007 PSST 0020).

84 The complainant argues that the interview was overly subjective and not well structured. The respondent disagrees, adding that the interview’s framework was developed at National Headquarters, it being a national appointment process.

85 The complainant has failed to adduce any evidence that the interview was subjective and that it lacked sufficient structure. On the contrary, a review of the interview used by the assessment board demonstrates that each question indicated which qualification the question assessed, there were definitions for each qualification, there were indicators for the expected responses and there was a rating scale with definitions for each rating on the scale.

86 The complainant also argues that his answers to the interview questions were correct. He provided insufficient evidence on this point. He relies mainly on the fact that the assessment board members took extensive notes of his answers.

87 The Tribunal has reviewed the complainant’s answers and the explanations given by the respondent and finds that there was no abuse of authority in the manner the respondent assessed his answers.

88 The assessment board members recorded the complainant’s answers and their assessment of his answers at the time of the examination. Mr. MacLean provided testimony with respect to his notes and those of the other assessment board members.

89 Question 2, which assessed strategic thinking, had two sub-questions. The first one asked candidates to explain different methods and approaches that would help them engage their team to work collaboratively when faced with situations that do not always suit them. The second sub-question asked candidates to explain the strategies they would put in place to ensure that workforce activities are well planned and organised according to operational plans. The expected answer referred to, among other elements, coordinating information from multiple sources and considering "people components and issues". The complainant was awarded 2 marks out of 5 for his answer to that question.

90 Mr. MacLean indicated in his notes that the complainant’s response would not lend itself to a sustained strategic solution or plan. Mr. MacLean also wrote that the complainant’s response did not indicate any involvement with his peers or the management team. Mr. Henderson wrote in his notes that the complainant’s answer also did not indicate any involvement of peers or managers or Human Resources, and that the complainant failed to elaborate on his ideas. Ms. Rose’s notes stated that the complainant did not develop his ideas and that he did not include in his answer any consultation with partners.

91 Question 7, which assessed values and ethics, referred to an incident where two Correctional Officers were found guilty of assaulting two offenders. The question asked candidates to explain their strategy to complete an institutional plan to engage and educate the workforce on values and ethics to prevent such a situation from recurring. The expected responses referred to, among other elements, ethics and values and the need for collaboration and team work. The complainant was awarded 1 mark for his answer to that question.

92 Mr. MacLean explained why the complainant was only awarded one mark. Mr. MacLean wrote in his interview notes that the complainant failed to present a plan for consideration, that a number of strategies offered by the complainant were not linked to results, and that the complainant failed to mention collaboration or an institutional plan. Mr. Henderson wrote in his notes that the complainant did not mention any plan to address the issues and that the complainant’s ideas were not linked. Ms. Rose wrote that the complainant did not focus on planning and that there was no mention of values and ethics.

93 The complainant also argues that there is no assurance that the notes taken by the assessment board members reflect accurately his responses to the interview questions since there was no audio recording of the interview. The Tribunal does not agree with that proposition. Section 36 of the PSEA expressly sets out interviews as an appropriate assessment method to be used in making appointments. There is nothing in either this section, any other section of the PSEA, or applicable regulations that obligates an assessment board to have an audio recording of an interview. The assessment board prudently chose to have a written record of the interview. The fact that three persons took notes at the interview helps to ensure accuracy. Although interview notes are not usually verbatim recordings of what an interviewee says, it is highly improbable, without any evidence to the contrary, that all three assessment board members would have failed to record important elements of the complainant’s answers. The complainant did not identify any specific item that the assessment board may have left out.

94 The complainant also takes issue with the manner in which the assessment board members assigned marks for his answers to the interview questions. He argues that instead of reaching a consensus, the assessment board should have added the marks of each member and divided them by three. The Tribunal does not accept that argument. Reaching a consensus on a score is a logical manner of awarding marks and it is within the discretion given to assessment boards in evaluating candidates.

95 The Tribunal has reviewed the complainant’s answers and the explanations given by the respondent and finds that there was no abuse of authority in the manner the respondent assessed his answers. The respondent has provided a reasonable explanation for the marks it awarded to the complainant’s answer to questions 2 and 7.

96 The complainant also argues that the assessment board should have assessed his asset qualifications. The merit criteria included several asset qualifications and the complainant indicated that he possessed two of them. The respondent explained that it did not assess those assets since it would serve no purpose because the complainant failed two essential qualifications. The PSC, in its written submissions, also argues that there was nothing wrong in failing to assess the complainant’s asset qualifications. In its view, this is acceptable because the merit criteria can be applied in any order. Only those who meet all of the essential qualifications for the work to be performed can be considered for an appointment. The Tribunal agrees that assessing the complainant’s asset qualifications would have served no purpose since he could not have been appointed to the position.

97 The complainant argues that the assessment board failed to apply the EE criteria to him. The respondent explained that it did not take into consideration the EE criteria in its assessment of the complainant because he did not meet two essential qualifications. The PSC supports the respondent’s position. The Tribunal finds that the respondent was not required to take the EE criteria into consideration in the case of the complainant because it could not have appointed him to the position since he failed two essential qualifications.

98 For the reasons set out above, the Tribunal therefore finds that the merit criteria were properly applied in this appointment process.

Issue IV:  Were assessment board members biased against the complainant because of his prior union involvement?

99 The complainant claims Mr. MacLean and Mr. Henderson were biased against him because of his prior union involvement. The complainant was very active in union activities and at one time was the President of the local UCCO-SACC-CSN union for Correctional Officers at the Pittsburgh Institution.

100 The complainant testified that during a strike in 1999, Mr. MacLean came to sit with him at a cafeteria table and they had a heated exchange. The complainant did not explain what the heated exchange was about or what Mr. MacLean said during that conversation. The complainant did not testify that Mr. MacLean said anything improper at that time.

101 Mr. MacLean testified that he had been a Steward and a Chief Steward at the Joyceville Institution. He was also the local President of his union for two or three years. He even contemplated becoming an employee of his union. He stated that he kept good relations with the union when he became a manager and that statement was not disputed. Mr. MacLean did not recall sitting at the complainant’s table during the 1999 strike, but stated that it was possible since the cafeteria was used by both staff and managers. Mr. MacLean testified that he did not recall any incident with the complainant during that strike.

102 With regard to Mr. Henderson, the only evidence adduced by the complainant to support his allegation was that at times they had confrontational discussions when they met to discuss local labour/management matters. The complainant added that their relationship was respectful.

103 In Denny v. Deputy Minister of National Defence, 2009 PSST 0029, at para. 125, the Tribunal referred to Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118 (QL), which sets out the test for reasonable apprehension of bias as follows at 394 (S.C.R.):

[T]he apprehension of bias must be a reasonable one held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. …[T]hat test is "what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that Mr. Crowe, whether consciously or unconsciously, would not decide fairly.

104 In a more recent decision, Newfoundland Telephone Company v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; [1992] S.C.J. No. 21 (QL), at para. 22 (QL), the Supreme Court articulated the test as follows: "[…] whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator." The objective test articulated by the Supreme Court in Committee for Justice and Newfoundland Telephone also applies to assessment board members. (See, for example, Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 0010, at paras. 64-71).

105 The evidence is insufficient to establish a reasonable apprehension of bias on the part of any members of the assessment board. Confrontational discussions between union and management are not uncommon during strikes or in labour-relations matters in general since it is the role of each representative to vigorously defend the interest of the organization it represents. Moreover, the incident involving Mr. MacLean, even if it was heated, happened nearly eight years before this appointment process began. The Tribunal was not referred to any recent situations between Mr. MacLean and the complainant that would link the 1999 incident to this appointment process. The 1999 incident by itself is insufficient evidence for the Tribunal to find that there has been bias on the part of Mr. MacLean in this appointment process (See also Praught and Pellicore v. President of the Canada Border Services Agency, 2009 PSST 0001, at para. 66). As well, by his own admission, the relationship between Mr. Henderson and the complainant was respectful. The fact that they may have engaged in confrontational discussions involving labour-relations matters is by itself insufficient evidence for the Tribunal to find that there has been bias on the part of Mr. Henderson in this appointment process.

106 The Tribunal finds that a reasonably informed bystander looking at the whole process and, specifically at the role of the assessment board members, would find that the evidence supports their assessment of the complainant and would not reasonably apprehend bias on the part of the two assessment board members referred to above. The Tribunal therefore finds that the complainant has failed to prove, on a balance of probabilities, actual or reasonable apprehension of bias on the part of two of the assessment board members.

Decision

107 For all these reasons, the complaints are dismissed.

John Mooney
Vice Chairperson

Parties of Record

Tribunal File:

2009-0123, 0145 and 0156

Style of Cause:

Jeffrey Brown and the Commissioner of Correctional Service of Canada

Hearing:

April 13 and 14, 2010 and August 23 to 27, 2010
Kingston, Ontario

Date of Reasons:

May 16, 2011

APPEARANCES:

For the complainant:

Ken Boone

For the respondent:

Martin Desmeules

For the Public Service
Commission:

John Unrau