FPSLREB Decisions

Reasons for Decision

Introduction

1 Radhouane Ben Achour, Lahcen Ben Jab and Hassane Bhar, the complainants, allege that the Commissioner of the Correctional Service of Canada (CSC), the respondent, abused its authority in the application of merit in this appointment process. More specifically, they submit that the respondent made several mistakes in marking the written exam, that a member of the assessment board was biased against certain candidates because of conflicts of interest, that the respondent showed favouritism to the appointees, and that the respondent incorrectly assessed the experience of one of the appointees. The complainants also allege that the respondent discriminated against them because of their religion, their race and their ethnic origin. The respondent denies all these allegations.

2 The Public Service Commission (PSC) did not attend the hearing, but did provide the Public Service Staffing Tribunal (the Tribunal) with written submissions in which it explained its appointment policies and guides, in particular its general policy and those on candidate assessment and informal discussion. The PSC did not take a position on the merits of the complaints.

3 For the reasons set out below, the Tribunal finds that the complainants failed to establish that the respondent abused its authority in the application of merit in this appointment process.

Background

4 On June 16, 2009, the respondent posted a Job Opportunity Advertisement on the federal government's Publiservice website to staff CX-04 Correctional Manager positions on an acting or indeterminate basis at three institutions: Leclerc, Cowansville and Archambault. The same Statement of Merit Criteria (SMC) and the same assessment tools were used for the three institutions: a written exam, an interview and reference checks. The areas of selection, however, were different for each institution. Only employees occupying a position at one of the three institutions could apply for a position at that same institution. The complainants were working at Leclerc Institution and wanted to be appointed to a position at that institution.

5 The assessment board for the three institutions was made up of Rénald Dubois, then Acting Assistant Warden of Operations at Leclerc Institution (now retired); Sylvie Plante, Manager of Operations at Archambault Institution; and Karine Dutil, Manager of Interventions at Cowansville Institution. 

6 The complainants failed the written exam, which assessed two essential knowledge qualifications for the position. They were therefore eliminated from the appointment process at that stage. Nine candidates working at Leclerc Institution qualified, and the respondent appointed eight of them to indeterminate positions at that institution.

7 On February 23, 2010, each of the complainants filed a complaint of abuse of authority with the Tribunal in relation to the eight appointments at Leclerc Institution, pursuant to section 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12 and 13 (the PSEA).

8 The three complaints were consolidated for the purposes of these proceedings pursuant to section 8 of the Public Service Staffing Tribunal Regulations, SOR/2006‑6, as amended by SOR/2011‑116.

9 The complainants notified the Canadian Human Rights Commission (CHRC) that they intended to raise an issue involving the interpretation or application of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (the CHRA). The CHRC informed the Tribunal that it did not plan to attend the hearing or make submissions.

Issues

10 To determine whether the respondent abused its authority in the application of merit in this appointment process, the Tribunal must decide the following issues:

1. Did the respondent make mistakes in marking the written exam?
2. Was one of the assessment board members biased against certain candidates because of conflicts of interest?
3. Did the respondent show favouritism toward the appointees?
4. Did the respondent discriminate against the complainants because of their religion, their race or their ethnic origin?
5. Did the respondent correctly assess the experience of one of the appointees?

Analysis

11 Section 77(1) of the PSEA states that a person in the area of recourse may make a complaint alleging 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. Abuse of authority is not defined in the PSEA, but section 2(4) states that “[f]or greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism”.

12 As has been established in the Tribunal's case law, the use of such inclusive language indicates that abuse of authority is not limited to bad faith and personal favouritism. In Kane v. Attorney General of Canada, 2011 F.C.A. 19 (the Supreme Court of Canada agreed to hear an appeal of that decision), the Federal Court of Appeal found that an error can also constitute an abuse of authority (para. 64). However, as is clear from the preamble and the scheme of the PSEA, abuse of authority is more than mere errors or omissions. Whether or not an error constitutes an abuse of authority will depend on the nature and seriousness of the error.

13 Abuse of authority can also include an omission or improper conduct. The scope of the omission or the degree to which the conduct is improper will determine whether or not they constitute an abuse of authority. See, for example, Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008.

Issue I: Did the respondent make mistakes in marking the written exam?

14 The complainants allege that the respondent made several mistakes in marking the written exam.

Complainants' answers

15 The complainants allege that the assessment board incorrectly marked several of their answers on the written exam. Mr. Ben Achour and Mr. Bhar were eliminated from the appointment process because they failed the questions assessing two elements of essential knowledge, namely, "[k]nowledge of Corrections and Conditional Release Act and other legislation related to the position” (Knowledge 1), and "[k]nowledge of security policies and practices" (Knowledge 2). Mr. Ben Jab failed Knowledge 1. Each knowledge element was assessed by several questions, and there was a pass mark for each knowledge element.

16 The Tribunal has held in numerous decisions that its role is to determine whether there has been an abuse of authority, not to reassess the candidates. See, for example, Broughton v. Deputy Minister of Public Works and Government Services, 2007 PSST 0020. Thus, after examining the marking of all the questions that the complainants brought to its attention, the Tribunal finds that there was no abuse of authority in that marking. The answers were all drawn from the Correctional Service of Canada (CSC) Security Manual and from the CSC Commissioner’s Directives, which can be found on the respondent's intranet site, and each exam question indicated clearly which document contained the answer to the question. The Tribunal checked the answers in those documents, and they did not match the answers provided by the complainants. Some examples are given below.

17 Question 1 of Knowledge 2 asked candidates to indicate the number of officers needed for a security escort for two inmates, one a maximum security offender and the other a medium security offender. Mr. Ben Achour answered five. According to the assessment board, that answer was incorrect. The Tribunal finds that the complainant's answer was in fact incorrect because paragraph 9 on page 5 of Commissioner's Directive 566-6 on Security Escorts indicates that it takes three officers to perform this task.

18 Question 15 of Knowledge 2 gave two definitions and asked candidates what those definitions referred to. One of the definitions was "leather belts, straps, restraint jackets and other soft restraint equipment listed in the Security Equipment Manual". Mr. Ben Achour answered "heavy restraints [translation]”. The Tribunal agrees that the answer is incorrect. Mr. Dubois explained that paragraph 6.a on page 2 of Commissioner's Directive 844 on Use of Restraint Equipment for Health Purposes indicates that it is the definition of "soft restraints".

19 The second definition given in this question reads as follows:

…a soft restraint system that restrains at least four limbs and allows for the restraint of other body parts (i.e. head, shoulders, etc.) depending on the particular situation. A higher level of authorization is required for the use of four-point restraints (i.e. physician and/or psychiatrist approval must be obtained prior to the use of four-point restraints). When restraining less than four limbs, the nurse and/or psychologist may authorize the use of soft restraint equipment without prior physician/psychiatrist approval.

20 Mr. Ben Achour had written that it was the definition of "restraints" [translation], but paragraph 6.b on page 2 of Commissioner's Directive 844 on Use of Restraint Equipment for Health Purposes indicates that it is the definition of "four‑point and above (i.e. seven‑point) restraints".

Marie-Pierre Tétreault's qualifications for reviewing the exam

21 The complainants allege that the person who marked the written exam did not possess the necessary qualifications for carrying out the task. According to the complainants, Ms. Tétreault, an AS-01 administrative officer, did not have knowledge of the legislation and directives governing the corrections and conditional release system.

22 The Tribunal finds that allegation to be unsubstantiated. Mr. Dubois stated that it was he, and not Ms. Tétreault, who marked the exams. Ms. Tétreault was not a member of the assessment board. It was an objective exam made up of three types of questions: true or false questions, multiple choice questions, and fill in the blanks where candidates had to complete the sentences with the proper word or expression. Mr. Dubois had an answer key with the correct answers. Ms. Tétreault’s role in the marking was to use the answer key to verify whether Mr. Dubois had properly marked the answers and properly calculated the marks awarded. Those tasks required no specialized knowledge.

Possibility that exam questions were disclosed to other candidates

23 The complainants allege that it was possible that some candidates in the appointment process disclosed exam questions to other candidates because the same exam was held on three separate occasions: in the morning and in the afternoon of September 10, 2009, and on the following day.

24 Mr. Dubois explained that the exam had to be held twice on September 10, 2009, because of logistics. He also had to administer the exam on the following day for one candidate who had been on vacation on the scheduled exam day.

25 Mr. Dubois stated that he took the necessary precautions to prevent the exam questions from being disclosed. He and Ms. Tétreault monitored the candidates during the exam. The candidates were prohibited from entering or leaving the exam room with any documents. After the exam, Mr. Dubois put the documents in his assistant’s locked filing cabinet.

26 Mr. Dubois added that it was not in the candidates’ interest to disclose the exam questions to other candidates because they were competing for the same position. Furthermore, the candidates knew that cheating would result in serious disciplinary action, up to and including termination.

27 The Tribunal finds the complainants’ allegation to be unsubstantiated. The complainants, who bear the burden of proof, failed to establish that candidates had disclosed the exam content to other candidates. A suspicion that questions could have been disclosed does not constitute convincing evidence. The Tribunal finds that the respondent took sufficient precautions to keep the exam documents out of the reach of any future candidates.

Informal discussion

28 Mr. Dubois held an informal discussion with each complainant to explain the marking of their exam. Informal discussion is a stage of the process that is provided for in section 47 of the PSEA. The purpose of informal discussion is to give the individuals involved in the assessment process the opportunity to explain to unsuccessful candidates why they were eliminated from consideration.

29 Mr. Ben Achour stated that, during the informal discussion, Mr. Dubois told him that he would pass his comments on to the other assessment board members, which he did not do because he never broached the issue again.

30 The Tribunal does not find this to be an irregularity. As Mr. Dubois explained, he discussed the comments of certain candidates with the other assessment board members, but only met again with those candidates whose marks had changed as a result, which was not the case for the complainants.

Issue II: Was one of the assessment board members biased against certain candidates because of conflicts of interest?

31 The complainants submit that Mr. Dubois should not have been a member of the assessment board because he was biased against certain candidates as a result of three conflicts of interest. Mr. Dubois was the manager of certain candidates, and Mr. Bhar had complained to the institution’s management about the way in which Mr. Dubois had handled a situation of harassment by a colleague. Mr. Bhar also complained to management about the revocation of his acting appointment as a correctional officer at the CX‑02 group and level.

32 At paragraph 125 of Denny v. Deputy Minister of National Defence, 2009 PSST 0029, the Tribunal quotes 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 at page 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?”

33 In a more recent decision, that of Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623; [1992] S.C.J. No 21 (QL), the Supreme Court explained the test as follows, at paragraph 22 (QL): “The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator”. The objective tests set out by the Supreme Court in Committee for Justice and Newfoundland Telephone Co. also apply to assessment board members in the context of an appointment made under the PSEA. See, for example, Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 0010, at paragraphs 64‑71.

Mr. Dubois’ functions as both a manager and an assessment board member

34 The complainants submit that these dual duties placed Mr. Dubois in a conflict of interest. The Tribunal sees no conflict of interest in the fact that Mr. Dubois was both the manager of the positions to be staffed at Leclerc Institution and the manager of the complainants and other candidates in the appointment process. On the contrary, it is standard, and even in certain cases desirable, for the manager of the positions being staffed to take part in the appointment process because the manager is very familiar with the nature and duties of those positions. In no way is it a conflict of interest.

35 The evidence submitted is therefore insufficient to establish that there was reasonable apprehension of bias on the part of Mr. Dubois. A reasonably informed bystander would not conclude that Mr. Dubois had incorrectly assessed the complainants and the other candidates he supervised, merely because he was their manager. It must also be noted that Mr. Dubois had little flexibility in marking the written exam because, as mentioned earlier, it was an objective exam made up of true or false and multiple choice questions. One cannot conclude that it is more likely than not that the assessment of the complainants’ qualifications was biased.

Mr. Dubois’ handling of an anonymous report

36 According to Mr. Bhar, Mr. Dubois was in a conflict of interest because Mr. Bhar had complained to Robert Poirier, the warden of Leclerc Institution, of Mr. Dubois’ handling of an anonymous report involving Mr. Bhar. The report accused Mr. Bhar of leaving a supervision post without having a replacement.

37 On March 4, 2009, Mr. Bhar was working in Unit 1 at Leclerc Institution. Someone sent Mr. Dubois an anonymous report accusing Mr. Bhar of abandoning his position to go pray. That same person criticized the fact that the institution’s regulations were not applied fairly to all races and ethnic groups.

38 Mr. Bhar stated that he never abandoned his post, explaining that he took his break and found someone to replace him before he left. He had asked Mr. Dubois for a copy of the anonymous report, but Mr. Dubois refused. Mr. Dubois explained to the Tribunal that he preferred to investigate the matter rather than give the anonymous report to Mr. Bhar.

39 Mr. Dubois stated that when he received the anonymous report, he asked Steve Stockless, Correctional Manager and Mr. Bhar’s immediate supervisor, to investigate the situation. Mr. Dubois and Mr. Stockless learned that the allegation in the report was unfounded. Mr. Bhar had taken his break as he was entitled to do, and had someone replace him before leaving his post. They also learned the identity of the person who made the anonymous report. Mr. Dubois met with the correctional officer who made the report and warned him to check his facts before making unfounded accusations. Mr. Dubois also told him that the institution’s rules were applied fairly to everyone, that he was not happy with the situation, that his behaviour was unacceptable, and that he would have problems if he continued to act that way.

40 On April 21, 2009, Mr. Dubois told Mr. Bhar that he had investigated the situation and was satisfied that Mr. Bhar had taken a break as he was entitled to do. Mr. Dubois added that he considered the matter closed.

41 On May 21, 2009, Mr. Bhar and Mr. Ben Achour met with Mr. Dubois to inform him of the problems they were having with the person who made the anonymous report and to request mediation. Mr. Dubois forwarded their request to Pierre Gautier, Acting Assistant Warden of Management Services.

42 On June 28, 2009, Mr. Bhar submitted a harassment complaint to Mr. Poirier against the person who made the anonymous report. According to Mr. Bhar, that person had been harassing him for about ten years because of his religion and ethnic origin. In his complaint, Mr. Bhar criticized Mr. Dubois’ handling of the anonymous report situation, described above, and his refusal to provide him with a copy of the report.

43 Mr. Gautier held a mediation session on July 2, 2009, with Mr. Ben Achour, Mr. Bhar and the author of the anonymous report. In his mediation report, Mr. Gautier stated that the author of the anonymous report had apologized for making the report and that Mr. Bhar had accepted his apology. Mr. Bhar received a copy of the anonymous report after the mediation session.

44 The Tribunal is unable to conclude that the correctional officer’s behaviour put Mr. Dubois in a conflict of interest. The conflict described by Mr. Bhar is between the author of the anonymous report and Mr. Bhar, and not between Mr. Bhar and Mr. Dubois. Mr. Bhar is not accusing Mr. Dubois of harassing him, but rather, of having improperly handled the situation involving the anonymous report. The Tribunal notes that Mr. Dubois was not insensitive to the problems between Mr. Bhar and his alleged harasser. He asked that person to cease his behaviour or face the consequences.

45 The evidence submitted is therefore insufficient to establish that there was a reasonable apprehension of bias on the part of Mr. Dubois. A reasonably informed bystander would not conclude that Mr. Dubois had incorrectly assessed Mr. Bhar because Mr. Bhar had complained about Mr. Dubois’ handling of a conflict between Mr. Bhar and another correctional officer under his responsibility. The Tribunal notes that the complainants failed an objective exam that gave the person marking it little flexibility. One cannot conclude that it is more likely than not that the assessment of Mr. Bhar’s qualifications was biased as a result of that complaint.

Revocation of Mr. Bhar’s acting appointment

46 On August 7, 2009, Mr. Bhar submitted a complaint to Mr. Poirier, the warden of Leclerc Institution, indicating that Mr. Dubois had revoked his acting appointment as a CX-02 correctional officer in retaliation for Mr. Bhar’s complaint about Mr. Dubois’ handling of the situation involving the anonymous report, described above.

47 The Tribunal finds no evidence to prove that Mr. Dubois was retaliating against anything by revoking the acting appointment. Mr. Dubois explained in his testimony that one of the conditions of Mr. Bhar’s acting appointment to a position in Unit 1 was that he not change shifts with employees from other units in the institution. Mr. Bhar had agreed to that condition. Shift changes are allowed in other units because the correctional officers in those units do similar work. The work in Unit 1, however, is very different. The unit houses inmates who have been sent back to the institution for supervised release violations. It is a difficult unit, where the inmates are nervous and anxious. There is a great deal of antagonism among the inmates. It is important for correctional officers in that unit to stay there to provide some stability. The officers in the unit become familiar with the inmates and with how the unit operates, and are thus better able to meet the needs of the inmates.

48 Mr. Dubois had received complaints from several correctional managers indicating that Mr. Bhar had changed shifts with correctional officers from other units on a number of occasions. Mr. Dubois asked for his acting appointment to be terminated for that reason.

49 The Tribunal finds that Mr. Dubois provided a reasonable explanation for terminating Mr. Bhar’s acting appointment. Without making a formal judgment about the revocation, there is nothing to indicate retaliation. Mr. Dubois stated that, at the time of the appointment process, he was unaware of Mr. Bhar’s complaint to Mr. Poirier, and the complainants failed to establish that Mr. Dubois’ statement was false. If Mr. Dubois was unaware of the complaint, it could not have influenced his assessment of Mr. Bhar’s qualifications. Even if he was aware of the complaint, there is still nothing to indicate that Mr. Dubois was in a conflict of interest or that he was biased against Mr. Bhar. Again, the Tribunal notes that the exam that Mr. Bhar failed was an objective exam that gave the person marking it little flexibility. A reasonably informed bystander would therefore not conclude that Mr. Dubois incorrectly assessed Mr. Bhar because of the latter’s complaint regarding the revocation of his acting appointment. One cannot conclude that it is more likely than not that the assessment of Mr. Bhar’s qualifications was biased for that reason.

Issue III: Did the respondent show favouritism toward the appointees?

50 The complainants submit that the people who held the position at issue on an acting basis and the people who received crisis management training were shown favouritism in the appointment process because the acting appointments and the training gave them an advantage over the other candidates. The complainants also submit that in another acting appointment process, the respondent showed favouritism toward Hugo Bazinet, one of the candidates appointed in the process at issue in these complaints.

Acting appointments

51 According to the complainants, the people who had held the position at issue on an acting basis had an advantage over the other candidates in this appointment process. A number of them had been acting in the position for several years.

52 For example, Claude Bérard, according to his curriculum vitae, held the position of acting correctional manager from September to December 2006 and from October 2007 until the date of the process at issue.

53 Mr. Bérard confirmed that he had been an acting correctional manager, but pointed out that he had also acquired extensive experience in other positions that could have been useful to him in this process. He has 11 years of experience as a correctional officer at the CX-02 group and level. Since 1988, he has held many other acting positions that enabled him to gain important knowledge in the correctional field. He did state, however, that having acted in the position at issue did not guarantee success in a process to staff the position on an indeterminate basis because he had to take part in nine appointment processes for a CX-04 manager position before receiving an indeterminate appointment to that position.

54 The Tribunal finds that the complainants failed to establish that the appointment process favoured the people who had acted in the position. For example, they did not demonstrate that the exam questions favoured those individuals.

55 The complainants also failed to establish that having acted in the position guaranteed a candidate’s success in the appointment process. Twenty‑nine candidates wrote the written exam. Even though nine of the 11 candidates who were acting correctional managers passed the written exam, five candidates who had never held the position on an acting basis also passed. It is also revealing that Mr. Bérard had to try nine times to obtain a position as a correctional manager even though he had previously held the position on an acting basis.

56 The evidence also shows that having acted in the position had no impact on the results of the written exam because candidates could prepare for the knowledge exam. All the answers came from the CSC’s Security Manual and Commissioner’s Directives.

Crisis management training

57 The complainants also submit that the candidates who had received crisis management training had an advantage in the appointment process.

58 Mr. Dubois explained that the training was mandatory for anyone appointed to a correctional manager position on an acting or indeterminate basis. Only those employees who had partially or fully qualified as part of an advertised appointment process for that position could receive the training. The respondent did not offer the training to the complainants because they had never qualified in such a process.

59 According to Mr. Dubois, the training was irrelevant to the written exam that the complainants failed because the exam included no crisis management elements.

60 The Tribunal finds that the complainants failed to establish that the respondent gave an advantage to the individuals who had received that training. The complainants did not establish that the training gave those candidates an advantage on the written exam.

Mr. Bazinet’s acting appointment

61 The complainants allege that the respondent showed favouritism to Mr. Bazinet by awarding him an acting appointment as a correctional manager in February 2009. Mr. Bazinet is also one of the candidates appointed in the process at issue.

62 The complainants had indicated that they were interested in the acting appointment, but it was offered to Mr. Bazinet. They base their allegation on the fact that the deadline for applying to the position was Friday, February 27, 2009, and that Mr. Bazinet started in the position the following Monday, March 2, 2009. According to the complainants, the respondent had chosen Mr. Bazinet even before the application closing date, leading them to conclude that the respondent had shown favouritism toward Mr. Bazinet.

63 Mr. Dubois explained that it was an acting appointment of less than four months, as indicated on the notice of interest. There was an urgent need to staff the position quickly. The employee who had been in the position had just been assigned to another position in the institution. On Friday, February 27, 2009, the application deadline, Mr. Dubois reviewed all the applications submitted. He decided at the end of that day that Mr. Bazinet best met the position’s criteria. On March 2, 2009, Mr. Bazinet began two weeks of training for the position and started work on March 13, 2009. Mr. Dubois specified that he knew Mr. Bazinet only in a professional context.

64 Mr. Bazinet confirmed in his testimony that he began his training on March 2, 2009, and started work as a correctional manager two weeks later. He also confirmed that his relationship with Mr. Dubois was purely professional.

65 The Tribunal would like to begin by clarifying that it cannot rule on the legality of that acting appointment because it does not have jurisdiction over that type of staffing action. Indeed, it was an acting appointment of less than four months, and section 14(1) of the PSER specifies that such appointments are excluded from the application of section 77(1) of the PSEA, under which employees have the right to make a complaint to the Tribunal in relation to an appointment process.

66 The Tribunal can, however, examine the acting appointment process to determine whether there is a link between that process and the one that resulted in the appointments at issue. The Tribunal finds that there is no link between these two appointment processes. The complainants failed to establish that the respondent showed personal favouritism toward Mr. Bazinet in the context of the acting appointment and that the favouritism extended to the appointments in dispute. Mr. Dubois’ explanation regarding Mr. Bazinet’s acting appointment is completely reasonable. He testified that he chose Mr. Bazinet because he best met the position’s criteria, and that he made that choice only after having reviewed all the applications for the position. The fact that Mr. Dubois appointed Mr. Bazinet on the working day following the application closing date is insufficient to establish that the respondent had chosen Mr. Bazinet even before the closing date or that the respondent showed him any sort of favouritism.

Issue IV: Did the respondent discriminate against the complainants because of their religion, their race or their ethnic origin?

67 The complainants allege that the respondent discriminated against them because of their race, religion and ethnic origin. The fact that the complainants are Muslims who were born in Maghreb countries is not in dispute.

68 Pursuant to section 80 of the PSEA, in considering whether a complaint under section 77 is substantiated, the Tribunal may interpret and apply the CHRA.

69 Section 7 of the CHRA stipulates that it is a discriminatory practice to directly or indirectly 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. Section 3 of the CHRA lists the prohibited grounds of discrimination, which include race, religion and ethnic origin.

Analytical framework for an allegation of discrimination

70 The Tribunal's case law has established that the complainant bears the burden of proving, on a balance of probabilities, that the respondent abused its authority in an appointment process. See, for example, Tibbs, at para. 49.

71 In a human rights context, the complainant bears the burden of establishing a prima facie case of discrimination. In Ontario Human Rights Commission v. Simpsons‑Sears, [1985] 2 S.C.R. 536 (also 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 covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer…

72 The Tribunal must therefore determine whether, if the complainant's evidence is believed, that evidence is sufficiently complete to justify a finding of discrimination in the absence of an explanation from the respondent. If the complainant establishes a prima facie case, the respondent must then provide a reasonable explanation to demonstrate that the alleged discrimination did not occur as alleged or was not a discriminatory practice. See Grant v. Manitoba Telecom Services Inc., 2012 CHRT 10, para. 49.

73 In Canada (Human Rights Commission) v. Canada (Department of National Health and Welfare), 1998 CanLII 7740, at para. 17 (Chopra F.C.), the Federal Court stated that, where no direct evidence is available, discrimination may be established by way of inference, through the use of circumstantial evidence. This type of evidence depends on a series of facts that, when combined, may prove discrimination.

74 In the case at hand, the complainants’ evidence in support of their allegations is circumstantial. The test for examining circumstantial evidence was established by Beatrice Vizkelety in Proving Discrimination in Canada (Toronto: Carswell, 1987), at page 142. The following is an excerpt, which was cited with approval by the Federal Court in Chopra F.C.

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.

75 Even if the Tribunal finds that there is sufficient circumstantial evidence to establish the existence of discrimination, the complainants must still demonstrate a link between that circumstantial evidence and the evidence of individual discrimination against them in order for a prima facie case of discrimination to be established. See the following decisions: Swan v. Canadian Armed Forces, (1994) 25 C.H.R.R. 312, para. 30 (C.H.R.T.); Hill v. Air Canada, 2003 C.H.R.T. 9, para. 133; Chopra v. Canada (Department of National Health and Welfare), 2001 CanLII 8492 (C.H.R.T.), para. 211 (Chopra C.H.R.T.). Thus, the issue the Tribunal must decide is whether the discrimination on prohibited grounds was a factor in the appointment process. Ultimately, the complainants must establish a link between the evidence of a discriminatory act and the complainants’ particular experience. See Ogunyankin v. Queen’s University, 2011 HRTO 1910 (CanLII), para. 221.

Did the complainants establish a prima facie case of discrimination?

76 The complainants submit that, because of their race, their religion or their ethnic origin, the respondent offered them few acting appointments and training opportunities, and refused to provide Mr. Bhar with firearms training. Furthermore, a correctional officer had been harassing Mr. Bhar for those same reasons.

i) Acting appointments and training opportunities

77 According to the complainants, who are all members of visible minority groups, employees who are members of visible minority groups receive fewer acting appointments than employees who are not. Mr. Ben Jab has worked at Leclerc Institution for 11 years, but has held only one acting appointment as a CX‑02 correctional officer, which lasted for one year. He received a second acting appointment to this same position in January 2011. He has never received an acting appointment to the position at issue. The situation is very different for people who are not members of a visible minority group. Mr. Dubois has awarded them a number of acting appointments to the position at issue for periods of up to 17 years.

78 According to the complainants, employees who are not members of a visible minority group also receive more training than those who are. For example, according to Mr. Bhar, Mr. Bérard has received 15 work‑related training courses.

79 The Tribunal does not have jurisdiction to rule on those acting appointments because the complainants never filed complaints regarding those appointments. Neither does the Tribunal have jurisdiction to rule on issues relating to the training offered to employees. However, the Tribunal can consider this information in its analysis of the circumstantial evidence.

80 The Tribunal notes that the evidence of the unequal distribution of acting appointments is weak. The complainants submitted no documents relating to this point. The complainants’ statements are the only evidence provided. Those statements are vague. The complainants identified only a few employees, including Mr. Bérard, who received such appointments. The complainants do not specify how many employees who were not members of a visible minority group received an acting appointment to the position at issue in recent years. Therefore, their statements do not establish the scope of this unequal distribution.

81 Regardless, the Tribunal does not need to come to a conclusion about this presumed unequal distribution of acting appointments because it had no impact on the appointment process at issue, given that the process involved an objective knowledge exam for which candidates could prepare. Mr. Ben Achour’s exam, which he filed into evidence, indicates that the exam answers could all be found in the CSC’s Security Manual and Commissioner’s Directives. Thus, having held the position on an acting basis gave candidates no advantage.

82 As for the distribution of work‑related training among employees who are members of a visible minority group and those who are not, even if the Tribunal agreed with the complainants’ assertion that the distribution was unequal, it would not be enough to establish a prima facie case of discrimination because the complainants did not demonstrate that it gave the individuals who received that training an advantage.

Firearms training

83 Mr. Bhar alleges that the respondent discriminated against him because of his race, religion or ethnic origin when it refused to provide him with firearms training. He stated that a correctional manager at Leclerc Institution had told him that the institution’s assistant warden of correctional operations did not want him to receive the training because he is Muslim. (The Tribunal is not naming these individuals because they were not called to testify to provide their version of events.)

84 Even if the Tribunal believed Mr. Bhar’s claim, it could not conclude that a prima facie case of discrimination had been established because there is no link between the refusal of training and discriminatory behaviour in the appointment process. According to the testimony of Mr. Dubois and Mr. Bhar himself, those two individuals played no part in the appointment process. Moreover, the written exam contained no questions relating to firearms.

Behaviour of the author of the anonymous report

85 Mr. Bhar also alluded to the author of the anonymous report, discussed earlier. According to Mr. Bhar, that person had been harassing him for about 10 years. Even if the Tribunal were prepared to accept that that individual had been harassing Mr. Bhar for a number of years because of his race, religion or ethnic origin, it could not conclude that a prima facie case of discrimination in this appointment process had been established because that officer did not take part in the appointment process and played no role in it. There is no link between that correctional officer’s behaviour and the appointment process.

86 The Tribunal therefore finds that, overall, even if it were true, the complainant’s evidence does not establish a prima facie case of discrimination. The complainants did not establish that an unequal distribution of acting appointments and work‑related training opportunities had an impact on the results of this appointment process. With regard to the comments made by the assistant warden of correctional operations about the refusal to offer Mr. Bhar firearms training, even if Mr. Bhar’s evidence were accepted, the complainants were unable to establish a link between that behaviour and the appointment process at issue because that person played no role in the process and none of the questions on the written exam referred to firearms. The same comment applies to Mr. Bhar’s alleged harasser—he was in no way involved in this appointment process. See Chopra CHRT, at para. 211 (QL). Therefore, the complainants did not establish a prima facie case of discrimination on the grounds of race, religion or ethnic origin.

Issue V: Did the respondent correctly assess the experience of one of the appointees?

87 The complainants submit that Jean‑François Joly, one of the appointees, does not have experience in participating in case management activities, one of the essential qualifications of the position. According to the complainants, case management involves monitoring the inmate from the moment of detention up to his reintegration into the community. Case management also means that the respondent makes a correctional officer responsible for approximately 10 inmates whose progress he is required to monitor.

88 Mr. Ben Achour explained that there are four units at Leclerc Institution. He has worked in units 1 and 2. Mr. Joly worked in Unit 1 and, according to Mr. Ben Achour, the respondent does not engage in case management in that unit because the inmates are there only temporarily. The work description for that unit makes no mention of case management and there is no case management team. In all other units, inmates are managed by a case management team.

89 Mr. Dubois stated that participation in case management is defined in the Correctional Manager document as participation as a member of a team in the review and/or writing of case management reports, and/or participation in activities relating to an inmate’s progress toward rehabilitation.

90 Mr. Dubois stated that Mr. Joly had demonstrated in his cover letter and in his curriculum vitae that he had acquired that experience both in Unit 1 and in other areas of the institution.

91 According to Mr. Dubois, correctional officers in Unit 1 participate in case management. While they do not have a group of inmates whose progress they must monitor, they take part in many case management activities. Mr. Joly’s curriculum vitae indicates that he took part in case management when he worked in that unit. He conducted inmate intake assessments. According to Mr. Dubois, that is an important part of case management because it must be determined whether an inmate is dealing with any particular problems. If an inmate is suicidal, for example, the inmate must receive psychiatric care.

92 Mr. Dubois also pointed out that Mr. Joly had indicated in his curriculum vitae that, as an acting correctional officer between January 2008 and May 2009, he was responsible for recording all relevant inmate information in the unit’s log book. That information is used to make case management decisions. For example, in segregation, if the inmate is violent, the correctional officer records that information and the case management team takes it into consideration when assessing the situation.

93 Mr. Joly’s curriculum vitae also indicates that, when he was an acting CX‑02 correctional officer between May 2006 and January 2008, he motivated and encouraged inmates to take part in programs. In Mr. Dubois’ view, that constitutes participation in case management. An employment program, for example, helps inmates find work upon release. A violence prevention program helps inmates change their behaviour. Mr. Dubois gave several other examples of tasks performed by Mr. Joly that Mr. Dubois considered to be case management.

94 Mr. Dubois specified that he did not know Mr. Joly before he came to work at Leclerc Institution and that their relationship was purely professional.

95 Mr. Joly stated that he had the required experience. He gave essentially the same examples as Mr. Dubois, and added a few others. For example, when he worked in Unit 1, he referred inmates to a psychologist as needed and provided information about the inmates to the correctional manager.

96 Mr. Bérard, one of the appointees, testified on this issue. According to him, employees working in Unit 1 participate in case management, but not in the same way as in other units because the clientele is different. Mr. Bérard gave a few examples. For example, a correctional officer must conduct an inmate’s intake interview and place him in one of the two groups in Unit 1, namely, the regular population or the restricted population. The correctional officer also participates in case management by helping the inmates in various ways: for example, by advising them on how to terminate their housing lease because of their incarceration, informing inmates’ families of their incarceration, advising inmates on how to deal with their employment outside the institution, helping inmates contact a lawyer, and so on. The correctional officer must also prepare observation reports.

97 The Tribunal notes first that the SMC requires little in the way of case management. Candidates were not asked to have engaged in case management, but rather, were required only to have experience “in participating in case management activities” for inmates. In light of this very broad wording, the Tribunal finds that Mr. Dubois could have reasonably concluded that the examples he provided constituted participation in case management activities, especially those relating to the writing of reports or parts of reports. The same can be said for the examples provided by Mr. Joly and Mr. Bérard. Therefore, the Tribunal finds that the respondent did not abuse its authority in its assessment of this qualification.

Decision

98 For all these reasons, the complaints are dismissed.

John Mooney
Vice-Chairperson

Parties of Record

Tribunal Files:

2010-0101, 2010-0102 and 2010-0103

Style of Cause:

Radhouane Ben Achour, Lahcen Ben Jab, Hassane Bhar and the Commissioner of the Correctional Service of Canada

Hearing:

Montreal, Quebec
February 17 and 18, 2011, and June 21 to 23, 2011

Date of Reasons:

September 20, 2012

APPEARANCES:

For the complainants:

Radhouane Ben Achour, Lahcen Ben Jab and Hassane Bhar

For the respondent:

Martin Charron

For the Public
Service Commission:

Céline B. Henry (written submissions)