FPSLREB Decisions

Reasons for Decision

Introduction

1 Yacine Agnaou (the complainant) participated in an advertised internal appointment process to staff an Associate Senior Regional Director position and a Law Directorate Director position. Both positions were at the LA-3A group and level in the Department of Justice. The complainant’s application was screened out because the assessment board decided that he did not have the requisite experience, that is, six months of experience acquired in the last two years in human resources management within the federal public service.

2 The complainant alleges that this requirement discriminates against people who, like him, are members of visible minorities. He also argues that the Deputy Minister of Justice (the respondent) abused its authority by ignoring its employment equity (EE) obligations when developing and designing the appointment process. According to the complainant, if the respondent had taken its EE obligations into consideration, it would have included membership in a visible minority in the merit criteria.

3 The respondent denies having abused its authority. It submits that the experience requirement is not discriminatory. It also submits that it does not have to include membership in a visible minority as a merit criterion. It adds that it fulfilled its EE obligations and wants to point out that it is not the role of the Public Service Staffing Tribunal (the Tribunal) to ensure that the Employment Equity Act, S.C. 1995, c. 44 (the EEA) is applied.

4 The Public Service Commission (the PSC) described its staffing policies, in particular its EE policy and its policy for assessing candidates. According to the PSC, the complainant did not show that the respondent did not fulfil its EE obligations set out in the PSC and Treasury Board policies. It alleges that the complainant did not provide any direct or indirect evidence that the respondent had to make EE a merit criterion in the appointment process.

Background

5 In April 2008, the respondent posted a Job Opportunity Advertisement (JOA) on the federal government’s Publiservice website to staff the two above-mentioned positions on an indeterminate basis. These positions were located in the Quebec Regional Office (QRO) of the Department of Justice. The process also served to create a pool of qualified candidates to staff other positions that could become vacant later. The process was open to all employees of the public service of Canada.

6 The assessment board that did the preliminary screening consisted of Micheline Van Erum, then Senior Regional Director, and René Lapierre, then Associate Senior Regional Director. Marcela Mujica supported the board in her capacity as human resources advisor.

7 Eighteen people, including the complainant, applied for these positions. The respondent screened the candidates using the education and experience criteria. Five candidates, including the complainant, were eliminated at this step in the process. The selected candidates then underwent a written examination and an interview. The assessment board also checked references.

8 The complainant’s application was screened out because the respondent found that he did not have one of the essential qualifications needed for these positions, namely, recent experience in human resources management in the federal public service. The term “recent” had been defined as “at least six (6) months’ experience in the last two (2) years”.

9 On June 27, 2008, the respondent posted the Notifications of Appointment or Proposal of Appointment for the appointment of Francisco Couto to the position of Associate Senior Regional Director and the appointment of Michel Synnott to the position of Director of the Immigration Law Directorate.

10 On July 7, 2008, the complainant filed a complaint of abuse of authority regarding these appointments with the Tribunal pursuant to section 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, sections 12 and 13 (the PSEA).

11 The complainant sent notice to the Canadian Human Rights Commission (the CHRC) to inform the CHRC that he intended to raise an issue related to interpretation or application of the Canadian Human Rights Act, R.S.C., 1985, c. H‑6 (the CHRA). The CHRC did not attend the hearing, but it did send written submissions to the Tribunal before the hearing, describing the analytic grid that, according to the CHRC, should be applied in cases of discrimination. However, it did not take a position regarding the issue of whether or not there was discrimination in the appointment process.

12 The Tribunal finds that the complainant’s complaint is not substantiated for the following reasons.

Preliminary issues

13 Most of the preliminary issues had to do with the admissibility of documents that the complainant sent to the Tribunal after the hearing was closed.

14 The case law concerning submission of new evidence after evidence-taking has ended shows that this issue is left to the discretion of the member of the Tribunal hearing the case and the member must exercise this discretion with care and circumspection. The definitive nature of the hearing is essential in the context of the legal system and a hearing should only be reopened to accept new evidence in cases where the interest of justice requires this. See the decision in 671122 Ontario Ltd. v. Sagaz Industries Canada Inc., 2001 SCC 59 (CanLII).

15 To decide whether the new evidence submitted by the complainant should be accepted, the Tribunal applied the criterion set out in the decision in Whyte, Kasha v. Canadian National Railway, 2010 CHRT 6 (CanLII). According to this criterion, the following three conditions must be fulfilled for new evidence to be accepted when a tribunal has not yet formulated its final conclusion:

1. it must be shown the evidence could not have been obtained with reasonable diligence for use at the trial;
2. the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; and
3. the evidence must be such as presumably to be believed, or in other words, it must be apparently credible, although it need not be incontrovertible.

The documents concerning Mr. Couto and Mr. Synnott

16 After the close of the evidence, the complainant submitted two documents to the Tribunal showing that Mr. Couto and Mr. Synnott are no longer in the positions to which they had been appointed as part of the appointment process at issue. Mr. Couto has since been appointed to the position of Regional Director General of the QRO and Mr. Synnott to the position of Associate Regional Director General of the same regional office.

17 The respondent was opposed to the submission of this new evidence because the evidence had been closed at the end of the hearing.

18 The Tribunal finds that these documents could have substantially influenced the outcome of this case if the complaint had been substantiated since whether or not the positions in question were filled by means of the appointment process at issue is a factor that the Tribunal can take into consideration in deciding whether revocation of an appointment should be ordered. However, since the complaint was dismissed, and consequently the Tribunal cannot order corrective action, this matter does not need to be decided.

19 Mr. Synnott specified in an email that he sent to the Tribunal on September 19, 2011, that he had been appointed to the above-mentioned position for a period of one year and that his substantive position would continue to be Director of the Immigration Law Directorate at the QRO. In an email dated May 29, 2012, the complainant noted that he had not received this email. The Tribunal checked the complainant’s file and it seems that there had in fact been an oversight. Section 9 of the Public Service Staffing Tribunal Regulations, SOR/2006-6, as amended by SOR/2011‑116 (the Regulations), specifies that no proceeding is invalid by reason only of a defect in form or a technical irregularity. Therefore, the Tribunal finds that there was a simple defect in procedure that did not cause any prejudice to the complainant, given that the complainant had the opportunity to read this email and comment on it. Moreover, this detail provided by Mr. Synnott would only have had an effect if the Tribunal had ordered corrective action, which was not the case since the complaint was considered to be unsubstantiated.

Job Opportunity Advertisement for the position of coordinator at the Regional Litigation Support Centre in the QRO

20 The complainant also filed a JOA for the above-mentioned position after the close of evidence. The Tribunal will deal with the admissibility of this document in its analysis of the second issue.

Exchange of emails between Karl Chemsi, Yves Côté and Johanne D’Auray

21 Also after the close of evidence, the complainant sent the Tribunal an email dated September 20, 2010, from Mr. Chemsi, the respondent’s representative, to Mr. Côté; another dated September 23, 2010, from Mr. Côté to Ms. D’Auray; and a third with the same date from Ms. D’Auray to Mr. Côté. The complainant obtained these documents through an access-to-information request addressed to the respondent. He alleges that these documents show that the respondent did not respect the witness exclusion order issued by the Tribunal at the beginning of the hearing of this complaint, thereby undermining procedural fairness.

22 The respondent submits that these documents are not admissible as evidence since they could not have had an important influence on the result of the case. The respondent also submits that these emails do not show that the respondent infringed the witness exclusion order.

23 The Tribunal does not accept these three emails as evidence. By applying the criterion set out in Whyte, the Tribunal finds that the second condition is not met. These emails could not have had an important influence on the result of the case since they do not show that the respondent infringed the Tribunal’s witness exclusion order.

24 There were three hearing sessions for this complaint: one from May 17 to 19, 2010, another from September 27 to October 1, 2010, and a third from December 14 to 16, 2010. The complainant was the only one who testified at the session from May 17 to 19, 2010. Therefore, when these three emails were written, the Tribunal had heard only the complainant’s testimony.

25 In the three-sentence email that the respondent’s representative sent to the person who seems to be his supervisor, Mr.  Côté, on September 20, 2010, the respondent’s representative gives an update on when the hearing will resume. He does not mention the complainant’s testimony. Therefore, even if the respondent’s representative did send a copy of his email to two future witnesses, namely Ms. Van Erum and Ms. Mujica, these two witnesses did not receive any information from the respondent’s representative concerning the complainant’s testimony.

26 The other two emails do not mention the complainant’s testimony either. In the email of September 23, 2010, from Mr. Côté to Ms. D’Auray, Mr. Côté just asks Ms. D’Auray for a brief note on the subject of the complainant’s complaint for the Minister and asks her to mention this file at a meeting to be held the following day. In the other email, Ms. D’Auray responds that she will also not be attending this meeting and that she will pass on his request to another employee.

27 Therefore, there is nothing in these email exchanges to indicate that the respondent’s representative revealed the content of the complainant’s testimony to future witnesses. Therefore, these email exchanges are not admissible as evidence because they could not have had an important influence on the result of the case.

Notes taken by the respondent’s representatives during the preparation of Ms. Van Erum’s testimony

28 After the close of the evidence, the complainant also sent the Tribunal what he alleges are the handwritten notes taken by the respondent’s “representatives” while Ms. Van Erum’s testimony was being prepared. This document is dated December 7, 2010. The complainant argues that these notes show that the respondent’s representative once again infringed the Tribunal’s witness exclusion order.

29 The Tribunal does not accept these handwritten notes as evidence because they do not meet the second condition set out in Whyte. These documents could not have had an important influence on the result of this case because they do not show that the respondent infringed the Tribunal’s witness exclusion order. When these notes were written, the following people had testified: the complainant, Mr. Lapierre, Zina Glinski and Ms. Mujica. Nothing in these notes indicates that the respondent’s representative informed Ms. Van Erum about the content of their testimony.

Email from the respondent’s representative to the Tribunal registry

30 As mentioned earlier, the hearing for this complaint consisted of three sessions. During the first session, the Tribunal ordered the exclusion of witnesses and ordered the witnesses who had already testified not to discuss their testimony with anyone, including the representatives of the parties, until all the evidence-taking had ended. The Tribunal also dealt at length with the issue of communication between the parties’ representatives and their clients and witnesses during the second hearing session. On October 2, 2010, the complainant went back to this issue and asked the Tribunal to order, among other things, that the respondent’s representative and the PSC’s representative not discuss the complaint with future witnesses. In an email on October 7, 2010, the registry sent this request by the complainant to the respondent’s representative for comment. The respondent’s representative responded by email the same day that he was opposed to this request and that the complainant could not dictate procedures to the Tribunal. He added that he intended to comply with the witness exclusion order. Unfortunately, the complainant received neither the email from the registry nor the one from the respondent’s representative. 

31 The Tribunal finds that the complainant should have received a copy of these emails, but this oversight had no impact on the complaint. The parties had plenty of opportunity to express their viewpoint on this issue during a conference call between all parties on October 20, 2010. Therefore, the complainant did not suffer any prejudice in this regard. This oversight was only a procedural defect as described in section 9 of the Regulations and does not invalidate the proceedings at issue.

Exchange of emails between the complainant and the respondent on the subject of the complainant’s application being screened out of a competition for a position as legal counsel for the office of the Associate Deputy Minister and exchange of emails between the complainant and the PSC regarding this same application

32 On June 15, 2012, that is, after the close of evidence, the complainant sent the Tribunal other documents. They consisted of an exchange of emails between the complainant and the respondent regarding the complainant’s application for a position as legal counsel for the Associate Deputy Minister’s office at the LA-2A group and level. The respondent had screened out his application for this position. The complainant also sent the Tribunal an exchange of emails between the complainant and the PSC regarding this same application.

33 The Tribunal finds that these new documents are not admissible into evidence because they could not have had an important influence on the result of the case. These documents deal with another appointment process that has nothing to do with the process at issue.

34 The complainant argues that screening out his application for this other position has an impact on the compensation that the Tribunal may order pursuant to section 53(2)(c) of the CHRA. Since the Tribunal dismissed the complainant’s complaint, it could not order such compensation.

35 Since these new documents are clearly not relevant, the Tribunal did not ask the other parties to comment.

Issues

36 The Tribunal must decide the following issues:

1. Did the respondent discriminate against the complainant because of his race or ethnic origin by requiring that candidates possess six months of experience acquired in the last two years in human resources management within the federal public service?
2. Did the respondent abuse its authority by ignoring its EE obligations when developing and designing the appointment process and, more specifically, by not including membership in a visible minority as a merit criterion?

Analysis

37 Section 77(1)(a) of the PSEA states that a person who is in the area of recourse may make a complaint 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 PSEA does not define what an abuse of authority is, but section 2(4) states that “for greater certainty, a reference in this Act to abuse of authority shall be construed as including bad faith and personal favouritism”.

38 As the Tribunal’s case law has established, this inclusive formulation indicates that the abuse of authority includes, but is not limited to, bad faith and personal favouritism. The Federal Court of Appeal established in Kane v. Attorney General of Canada and Public Service Commission, 2011 F.C.A. 19 (the Supreme Court of Canada agreed to hear an appeal of this decision) that an error may also constitute an abuse of authority (para. 64). However, it is clear from the preamble to the PSEA and the PSEA as a whole that there needs to be more than simple errors or omissions to have an abuse of authority. Whether an error constitutes an abuse of authority depends on its nature and severity. Abuse of authority also includes omissions and improper conduct. The importance of the omission and the extent to which the conduct is improper may determine whether or not they constitute an abuse of authority. See, for example, the decision in Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008.

Issue I:  Did the respondent discriminate against the complainant because of his race or ethnic origin by requiring that candidates possess six months of experience acquired in the last two years in human resources management within the federal public service?

39 The complainant alleges that requiring this experience constitutes discrimination against individuals who, like him, are members of visible minorities because this requirement is a barrier to these people when applying for the positions covered by this appointment process. According to him, this requirement “annihilates” [Translation] his chances of being appointed to the positions because of his race or ethnic origin.

40 The respondent does not dispute the fact that the complainant is a member of a visible minority.

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

42 Section 7 of the CHRA stipulates that it is a discriminatory practice, directly or indirectly, to refuse to employ or continue to employ any individual, or in the course of employment, to differentiate adversely in relation to an employee on a prohibited ground of discrimination. Section 3 of the CHRA lists the prohibited grounds of discrimination, which include race and ethnic origin. The CHRA does not refer to the concept of “visible minorities”, a concept that is found in the EEA. The Tribunal will therefore deal with the complainant’s allegation as being based on race and ethnic origin within the meaning of section 3 of the CHRA.

Analytical framework for alleging discrimination

43 The Tribunal’s case law has established that the complainant bears the burden of proving, on a balance of probabilities, that there was an abuse of authority in the appointment process. See, for example, Tibbs at para. 49.

44 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 Ltd., [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....

45 The Tribunal must 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 succeeds in establishing prima facie evidence of discrimination, it is up to the respondent to provide a reasonable explanation showing that the discrimination did not occur as alleged or that the conduct was in one way or another non discriminatory (see Grant v. Manitoba Telecom Services Inc., 2012 CHRT 10, para. 49).

46 The Federal Court indicated in Canada (Human Rights Commission) v. Canada (Department of National Health and Welfare), 1998 CanLII 7740 at para. 17 (Chopra F.C.), that it is possible to establish discrimination by way of inference through the use of circumstantial evidence when direct evidence is unavailable. This evidence consists of a series of facts which, when combined, may prove discrimination.

47 In this case, the complainant’s evidence in support of his allegation 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 that the Federal Court cited with approval in Chopra:

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.

48 Even if the Tribunal finds that there is sufficient circumstantial evidence to establish the existence of discriminatory practices, the complainant must still demonstrate a link between that circumstantial evidence and the evidence of individual discrimination against him or her 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; and Chopra v. Canada (Department of National Health and Welfare), 2001 CanLII 8492 (C.H.R.T.), para. 211) (Chopra CHRT)). Therefore, the issue that the Tribunal must decide is whether the complainant was the victim of discrimination in the appointment process. Although evidence of practices involving racial discrimination may play a role in establishing the context or background for the alleged discrimination, ultimately the connection between the evidence of practices involving racial discrimination and the complainant’s personal experience must be established. See Ogunyankin v. Queen’s University, 2011 HRTO 1910 (CanLII), para. 221.

Did the complainant establish evidence of a prima facie case of discrimination?

49 All of the people called upon to testify in this complaint, except for Ms. Glinski, were summoned to appear by the complainant.

50 The complainant’s evidence regarding the discriminatory effect of the experience requirement is mainly based on the representation rate for visible minorities occupying a position in the LA group in the Department of Justice. He argues that visible minorities are under-represented at the senior levels in this group because of racial and ethnic discrimination against them.

51 Data that the complainant obtained from the respondent under an access‑to‑information request indicate that, as of March 31, 2008, there were 236 managers in the LA group in the Department of Justice who had sub-delegated authority in human resources management, and that 4.3% of this group, that is, ten people, were members of visible minorities.

52 A survey done by Statistics Canada of federal employees indicates that, in 2008, there were 386 supervisors in the LA group in the entire public service and that 4.9%, namely 19 supervisors, were members of visible minorities.

53 The complainant also submitted in evidence a presentation that John H. Sims, Deputy Minister of Justice at the time, made to the Standing Senate Committee on Human Rights on June 8, 2009. In this presentation, Mr. Sims stated that there were 4,500 employees in the Department of Justice at that time and that 14% of them were members of visible minorities. Mr. Sims added that members of designated groups [within the meaning of section 3 of the EEA: women, Aboriginal peoples, persons with disabilities and members of visible minorities] are under-represented at the senior levels of the LA group. Mr. Sims makes no mention, however, of the specific number of members of visible minorities that hold senior positions in the LA group. He made a similar statement in a speech he gave on March 26, 2008, at the Advisory Committee on Visible Minorities conference and in a memorandum issued to managers in the Department on April 21, 2008.

54 The complainant filed in evidence a report entitled Summary of Employees by Occupational Category and Gender as of March 31, 2008[Translation] prepared by the Department of Justice, which indicates that the Department had 2,511 employees in the LA group, of which 258 or 10.2% were members of visible minorities. This summary gives us the following breakdown of employees who are members of visible minorities at each level of the LA group in the Department of Justice.

Group and level	Number of employees in the group and level	Number of employees who are members of visible minorities	Percentage of employees who are members of visible minorities
LA-00	50	8	16.0%
LA-01	347	68	19.6%
LA-2A	1,403	151	10.8%
LA-2B	436	23	5.3%
LA-3A	201	5	2.5%
LA-3B	65	3	4.6%
LA-3C	9	0	0%

 

55 Unfortunately, this report does not show the availability rate for visible minorities, that is, the percentage of people who are members of visible minorities in the labour market who are able to do this work in the Department of Justice.

56 The complainant also submitted in evidence a report by the Department of Justice entitled Estimates of Representation of Availability ‑ March 31, 2008 [Translation], which indicates that visible minorities were over-represented in the LA group at the QRO when the appointment process was held. There were 156 employees in the LA group, 14 of whom were members of visible minorities. Members of visible minorities represented 9% of individuals in the LA group in the QRO. Their availability rate was 6.2%.

57 In summary, the complainant’s statistical evidence indicates that members of visible minorities make up 14% of Department of Justice employees. The evidence also indicates that visible minorities were not under-represented in the LA group at the QRO. The evidence shows that visible minority members within the Department had access to management positions, since they represented 4.3% (10 individuals) of the 236 managers in the LA group who had sub-delegated authority for human resources management in the Department. Moreover, the complainant’s evidence indicates that there are visible minority members at all levels of the LA group except at the LA‑3C level. Therefore, there were visible minority members in the LA-3A group and level, the group in which the positions were being staffed, and the LA-2B group and level, the feeder group for the group in which the positions were being staffed.

58 The complainant’s evidence does not clearly show whether visible minority members were under-represented in the LA group as a whole in the Department since the complainant did not provide the availability rate for visible minority members in this group. The complainant’s evidence does not clearly show whether visible minority members were under-represented in the LA-3A group and level, the group and level of the positions being staffed, because the complainant did not submit in evidence the availability rate for members of visible minorities for this level and for the other senior levels in the LA group. Therefore, the complainant did not show that there was an under‑representation of visible minority members in the relevant group and level, that is, the group for the positions being filled (LA-3A group and level).

59 If there is under-representation in the LA-3A group and level and other senior levels of this group, there is nothing to indicate that this is due to the experience requirement or a discriminatory act. Therefore, even if the complainant had shown under-representation of visible minority members in the senior levels of the LA group, the Tribunal could not conclude that this under-representation is necessarily the result of a discriminatory act, as the Canadian Human Rights Tribunal explained in paragraphs 236 and 237 of Chopra:

... 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.

60 In this case, the complainant did not make a connection between the human resources management experience requirement and the alleged under‑representation of visible minority members in the senior levels of the LA group.

61 Therefore, the Tribunal finds that, on the whole, even if the complainant’s evidence were proven to be correct, it does not prove a prima facie case of discrimination. An abstract belief that there was discrimination against a person, without facts to confirm this belief, is not sufficient (see Filgueira v. Garfield Container Transport Inc., 2005 CHRT 32, para. 41). The complainant did not succeed in proving the existence of a discriminatory act against visible minorities. Moreover, even if he had succeeded in showing the existence of such an act and under-representation of visible minority members in the management levels of the LA group, he would also have had to establish the necessary link between these practices and this under-representation and evidence of individual discrimination against him based on race or ethnic origin. Based on the evidence provided, the Tribunal finds that the complainant did not succeed in establishing this link. See Chopra, at para. 211 (QL). Therefore, the complainant did not show that the respondent discriminated against him because of his race or ethnic origin by requiring that candidates have six months of experience acquired in the last two years in human resources management within the federal public service.

The respondent’s reply

62 Although the conclusion above is sufficient for ruling on the allegation of discrimination, the Tribunal finds that the respondent also provided convincing evidence that the experience requirement is not a barrier for visible minority members such as the complainant to obtaining a management position (LA-2B, LA-3A, and higher). The respondent also showed that there was an over-representation of visible minority members in the Department and that the complainant’s race or ethnic origin was not a factor in his elimination from the appointment process.

63 In fact, the statistical evidence presented by the respondent indicates that visible minority members are over-represented in the Department of Justice (all classifications combined). The Department of Justice report Estimates of Representation of Availability (ERA) as of June 30, 2008[Translation] indicates that as of that date there were 4,775 employees in this Department and 567 were members of visible minorities. The visible minority members represented 11.9% of the Department’s employees, whereas their rate of availability on the labour market was 9.0%.

64 The respondent’s evidence also indicates that visible minority members are not under-represented in the LA group in the Department of Justice. The ERA[Translation] indicate that there were 2,551 employees in the LA group in the Department of Justice, including 268 who were members of visible minorities. The visible minority members represented 10.5% of employees in the LA group, whereas their availability rate was 7.6%.

65 Ms. Glinski is a senior analyst with the Department of Justice who has worked more than 20 years in the field of EE. Her role is to ensure that the respondent fulfils its EE obligations. She referred to the Treasury Board’s 2008-2009 Annual Report on Employment Equity in the Public Service of Canada, which cites the Department of Justice as an example in the area of EE because of its exemplary practices.

66 The Department of Justice’s 2008-2009 progress report on employment equity indicates that the recruitment rate for visible minorities in the LA group was double their availability rate (15.7% and 7.6% respectively) for that year. This report also indicates that their representation in the senior levels of the LA group, including the management levels, had increased significantly. The respondent exceeded its objectives for these levels. It had hired 11 people at the LA-2B group and level, whereas its objective was three people. The respondent had appointed more members of visible minorities to the LA-2B level than their representation rate in the feeder group, that is, the LA-2A group and level. It had also exceeded its objectives for the LA-3A group and level since the objective was two people and it had hired three.

67 Ms. Glinski also referred to an analysis report on the respondent’s performance in the area of EE entitled Employment Equity Workforce Analysis that had been done by Hara Associates. This report explains that the concentration of members of visible minorities at the lower levels of the LA group is because of intensive recruitment of members of this group in the past few years. With time, these people will receive promotions and their representation in the higher levels of the LA group will increase.

68 In short, the statistical evidence provided by the respondent indicates that the Department of Justice is doing fairly well in regard to the representation of visible minorities. This group was not under-represented in either the Department or the LA group. The Tribunal cannot determine whether visible minorities were under‑represented at the LA-3A group and level and the other higher levels in the LA group because neither the complainant nor the respondent submitted evidence regarding the availability rate for members of visible minorities for these groups and levels.

69 The respondent’s evidence also indicates that the requirement of six months of experience in human resources management did not constitute a barrier to visible minorities. Ms. Van Erum and Mr. Lapierre explained that everyone, including employees who are members of visible minorities, could acquire this experience by holding a position at the LA-2B group and level in the Department of Justice or holding another management position in the public service. Several positions at the LA‑2B group and level include human resources management responsibilities. The complainant could have applied for these positions since the respondent recently conducted several appointment processes for positions at this group and level. The respondent submitted in evidence six Job Opportunity Advertisements posted between June 2006 and October 2007. These processes were open to lawyers in the Department of Justice and Public Prosecution Service Canada (after this service separated from the Department of Justice) occupying positions in the Montréal region. These processes did not call for experience in human resources management.

70 The complainant admitted in his testimony that he had not applied for these positions.

71 The Tribunal finds that the complainant and any other member of a visible minority could have acquired the experience in human resources management by applying for a position at the LA-2B group and level, a position below the position at issue, or by applying for a management position.

72 The evidence shows that the requirement to have six months of experience in human resources management was established because it was related to the work of the positions being staffed. As the work descriptions and the testimony by Mr. Lapierre and Ms. Van Erum indicate, the incumbents of the positions at issue must manage numerous employees. They must, among other things, assume responsibility for the administration of the activities and resources of their directorate. This includes managing directly or through subordinate managers the work of the lawyers and their support staff, evaluating their performance, solving labour relations problems, authorizing training plans, dealing with classification and pay issues, and staffing positions.

73 The evidence also shows that the respondent sincerely believed that the experience was a legitimate requirement for being able to do this work. Ms. D’Auray had occupied the position of Senior Regional Director from April 2003 to December 2005. Since October 2011, she has been a judge with the Tax Court of Canada. According to her, to be able to perform the duties of the position of Senior Regional director, the incumbent needs to have at least two years of recent experience in human resources management. A person cannot occupy these positions without having previously managed lawyers. According to her, this experience cannot be acquired from books.

74 According to Ms. Van Erum, requiring less than six months of experience would compromise the Director’s ability to perform his or her duties properly. Mr. Lapierre and Ms. D’Auray also stated that a person could not properly perform the duties of the position without this experience.

75 Mr. Lapierre stated that the respondent had earlier asked for two to five years of human resources management experience. He recommended that the requirement be a minimum of two years of experience, but Ms. Van Erum decided to require only six months of experience so that the process would be as inclusive as possible.

76 Anne Lafrance was the staffing team leader in the Department of Justice during the appointment process at issue. Ms. Lafrance stated that Ms. Van Erum had discussed the requirement of six months of experience with her. Ms. Lafrance told her that six months had to be a minimum. She also told Ms. Van Erum that this was not unreasonable in the circumstances in order to enable the greatest possible number of people to participate in the process.

77 The complainant submits that this requirement is not necessary since Mr. Lapierre performed the duties of Associate Senior Regional Director and he never had delegated human resources authority. The Tribunal does not accept this argument since the evidence shows the opposite. Ms. Van Erum stated that the deputy head had delegated human resources management authority to her, but Mr. Lapierre assumed this authority in her absence, which was 30% to 40% of the time. For example, she had to go to headquarters in Ottawa at least once a week. This agreement was included in the work description for the position of Associate Senior Regional Director submitted in evidence.

78 Ms. D’Auray corroborated Ms. Van Erum’s testimony on the subject. She said that when she had been in the position of Senior Regional Director, Mr. Lapierre had assumed the authority delegated to her for human resources management when she had to be away, which happened frequently.

79 The Tribunal cannot accept the complainant’s argument that the respondent could have required knowledge of human resources management instead of experience in this area. The Tribunal points out that pursuant to section 36 of the PSEA the delegated manager has discretionary authority to establish the essential qualifications for a position. In this case, the manager wanted candidates who had concrete experience in human resources management rather than book-based knowledge of the subject. Acquiring book-based knowledge is not at all the same thing as acquiring experience in the field. Having experience in the field involves a lot more than having studied a subject; it means having had the opportunity to put the knowledge acquired into practice. As Ms. Van Erum pointed out, hiring a person who does not have this experience would jeopardize sound management of this directorate.

80 The evidence also shows that the complainant and any other member of a visible minority could have acquired the experience in human resources management by applying for and being selected for a position at the LA-2B group and level. Therefore, the essential experience qualification at issue does not create a barrier to anyone obtaining a position at the LA-3A group and level. It involves moving through the ranks in order to acquire the necessary experience. The complainant was at the LA‑2A group and level and wanted to obtain a position at the LA-3A group and level, namely two levels higher than his current position.

81 In light of the preceding, the Tribunal finds that the complainant’s race and ethnic origin were not a factor in his being screened out of the appointment process. The reason he was screened out was not discriminatory but simply because he did not have the necessary experience. The Tribunal finds that this reason is valid and is also supported by the evidence.

Issue II:  Did the respondent abuse its authority by ignoring its EE obligations when developing and designing the appointment process and, more specifically, by not including membership in a visible minority as a merit criterion?

82 The complainant alleges that the respondent abused its authority during the development and design of the appointment process by ignoring its EE obligations set out in the EEA, and in PSC, Treasury Board and the respondent’s own policies. The complainant argues that if the respondent had complied with the legislation and these policies, it would have included membership in a visible minority as a merit criterion.

83 During the hearing, the complainant stated many times that the respondent did not fulfil its EE obligations set out in the EEA. It would be useful to examine the purpose of the EEA and its application in order to clearly understand the link between this legislation and the appointment process at issue.

84 The purpose of the EEA, stated in section 2, is to correct the conditions of disadvantage in employment experienced by the designated groups, namely women, Aboriginal peoples, persons with disabilities and members of visible minorities. Section 5 of the Act lists several duties that the employer must fulfil to attain these goals, notably the need to eliminate employment barriers against persons in designated groups and to institute positive practices to ensure that the members of visible minorities achieve a degree of representation that reflects their representation in the Canadian workforce. Section 22 of the EEA gives the CHRC responsibility for implementing the EEA, which it does through enforcement. Section 25(2) states that the CHRC may, in case of non-compliance, order an employer to take corrective action. Under section 27(1), the employer may make a request for a review to an employment equity tribunal established by the Chairperson of the CHRC.

85 The EEA and the PSEA are coordinated so as to ensure that appointments comply with both merit and EE requirements. According to section 30(2)(b)(iii) of the PSEA, the deputy head may identify membership in a visible minority as an organizational need. The EEA, for its part, promotes compliance with the merit principle in appointments since section 6(c) states that the employer is not required to hire persons without basing the hiring on merit in cases where the PSEA requires that hiring be based on merit.

86 It is important to understand that it is not the Tribunal’s responsibility to apply the EEA. As indicated above, this role was given to the CHRC by Parliament in section 22 of the EEA. The Federal Court of Appeal confirmed in paragraph 27 of Lincoln v. Bay Ferries Ltd., [2004] F.C.A. 204, F.C.J. No. 941 (QL) that the obligations of the employer under the EEA are unrelated to a complaint under section 7 of the CHRA:

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.

87 However, this does not mean that EE issues are not relevant in the context of complaints made under section 77 of the PSEA. Section 77(1)(a) gives the Tribunal the right to determine whether the deputy head abused his or her authority in the exercise of his or her authority under section 30(2). As indicated above, section 30(2)(b)(iii) allows the deputy head to identify organizational needs, which may include membership in a visible minority, as a merit criterion. The Tribunal may examine the organizational needs identified by the deputy head when it determines whether the deputy head abused his or her authority in establishing the merit criteria. See, for example, Gannon v. Deputy Minister of National Defence, 2009 PSST 0014, para. 70.

88 The Treasury Board, the PSC and several public service agencies have adopted EE policies that apply to appointments. The deputy head and the assessment boards must follow these policies when making appointments and compliance with these policies is a relevant factor in a complaint made under section 77 of the PSEA. For example, the PSC policy, Employment Equity in the Appointment Process, states that the assessment tools must not create systemic barriers. If the deputy head or the assessment board contravenes this policy, this could possibly constitute an abuse of authority. It all depends on the specific facts of the complaint.

89 Therefore, certain EE aspects are relevant in the case of a complaint made under section 77 of the PSEA, but this does not mean that the Tribunal has a general mandate to monitor the application of the EEA.

90 In this case, the complainant has not established that the respondent contravened the provisions of the EEA that would apply to this complaint or the Treasury Board, PSC or Department of Justice EE policies that apply to appointments.

91 The complainant argues that the respondent is not sufficiently familiar with the legislation or the PSC, Treasury Board and Department of Justice policies regarding EE. The Tribunal is satisfied that the members of the assessment board, Ms. Van Erum and Mr. Lapierre, as well as Ms. Mujica, the human resources advisor, were sufficiently familiar with the legislation and policies governing appointment processes subject to the PSEA. These people all stated in their testimony that they were familiar with these documents.

92 The complainant also criticized the members of the assessment board for not having done enough study and analysis of EE when designing and developing the appointment process. The Tribunal does not agree with the complainant’s viewpoint. Ms. Van Erum, Mr. Lapierre and Ms. Mujica stated that they consulted the relevant Department of Justice and Treasury Board documents on EE. Ms. Van Erum specified that she had consulted the statistics on the representation rate for visible minorities in the Department of Justice. She regularly discussed the representation of visible minorities with the human resources advisors. The Tribunal is satisfied that the assessment board did the appropriate checking.

93 The complainant argues that the assessment board and the human resources advisor should have consulted many other documents, which he submitted in evidence, including various Senate reports on EE and a March 2000 report by the Task Force on the Participation of Visible Minorities in the Federal Public Service entitled Embracing Change in the Federal Public Service.

94 The Tribunal finds that the role of members of an assessment board and human resources advisors is to know and master the legislation and policies that govern staffing in the public service. They do not have to be familiar with the EE reports cited by the complainant. These documents are intended to inform the Prime Minister and the Cabinet, who decide whether to follow up on them or not. If they decide to follow up, they usually do so through legislation or policies.

95 The complainant argues that membership in a visible minority should have been a merit criterion since this group is under-represented in the higher levels of the LA group in the Department of Justice. The Tribunal already dealt with the issue of representation of visible minorities in the Department in its analysis of the first issue. The statistical data indicate that visible minorities are not under-represented in this Department, in the QRO or in the LA group. There is not enough data to determine whether they are under-represented at the LA-3A level, the level of the positions being staffed, and other senior levels in this group.

96 Even if the complainant had proven that visible minorities were under‑represented at the senior levels of the LA group, the deputy head would still not have been obligated to include membership in a visible minority as a merit criterion. The PSEA does not require that the deputy head make this membership a merit criterion. The deputy head may do so pursuant to section 30(2)(iii) of the PSEA if he or she considers it appropriate, but this authority is discretionary. In Visca v. Deputy Minister of Justice, 2007 PSST 0024, the Tribunal stated that, under section 30(2), “broad discretion is given to managers ... to establish the necessary qualifications for the position they want to staff”.

97 The complainant was not able to identify the provisions of the EEA or the PSC, Treasury Board or Department of Justice policies that require the deputy head to include membership in a visible minority as a merit criterion.

98 The complainant referred to the Department of Justice’s Human Resources Management Plan 2007-2010, which states that during the 2008-2009 fiscal year, the respondent will adopt a departmental directive specifying that EE will be included as an organizational need in statements of merit criteria (SMCs) for all positions at the senior level in the LA group. However, the Tribunal notes that this directive was not yet in effect when the appointment process began.

99 The complainant indicated that on April 21, 2008, Mr. Sims sent managers a memorandum telling them to include an EE criterion in the SMCs for positions in the LA group.

100 Ms. Van Erum explained that the appointment process was already under way when Mr. Sims issued the memorandum. The closing date for applications was April 23, 2008. She believes she saw the memorandum on the last day that the position was posted. She consulted the employees in the human resources unit and was told that the memorandum did not apply retroactively. Ms. Lafrance also said that she did not think the memorandum applied retroactively. Therefore, Ms. Van Erum decided not to amend the SMC in order to avoid having to start the entire appointment process over again.

101 Ms. Mujica stated that the respondent had decided not to repost the positions given that there was a pressing need to fill them because of the imminent retirement of the people who were in these positions.

102 During the appointment process, Guylaine Paquin was human resources advisor for the Department of Justice. She provided support to the managers to ensure that the staffing complied with EE requirements. She explained that it is the delegated manager who decides whether EE should be included as a merit criterion.

103 Mr. Lapierre stated, as did Ms. Van Erum, that it was not necessary to include membership in a visible minority in the SMC because not including this criterion did not prevent them from choosing a person who was a member of this group. The Tribunal finds that their testimony on the subject is not clear. The Tribunal wants to point out that there is nothing to prevent a manager from appointing a qualified person who is a member of a visible minority in the same way as the manager can appoint any qualified person who is not a member of this group. However, the choice of a candidate must be based solely on the criteria included in the SMC. Therefore, a manager cannot use the visible minority criterion as justification for appointing a person from this group, while setting aside all other qualified individuals who are not members of a visible minority if this criterion is not included in the SMC. In this case, the respondent did not use membership in a visible minority to decide who to appoint to the positions in the competition so the use of an EE criterion had no effect in this case.

104 Therefore, the Tribunal finds that Ms. Van Erum, the delegated manager, did not abuse her discretionary authority by not including membership in a visible minority in the merit criteria. The Deputy Minister of Justice did not indicate that his directive applied retroactively, forcing managers to restart appointment processes that were already under way. It was reasonable not to restart the process given that there was a pressing need to fill these positions.

105 The complainant argued that Ms. Van Erum was not very concerned about her EE obligations. He gave as an example the fact that, in August 2007, Ms. Van Erum ended the acting appointment of Rita Haddad, who was a member of a visible minority, in the position of coordinator at the QRO’s regional litigation support centre. He also gave as an example the fact that Ms. Van Erum had removed certain duties, including participation in the QRO’s management committee, from Anne-Murielle Hassan, also a member of a visible minority. As the Tribunal mentioned earlier in its decision, it does not have a mandate to ensure that a manager fulfils his or her EE obligations within the Department. It is the responsibility of the CHRC to ensure that the EEA is applied. This allegation has no effect on the appointment process at issue. Consequently, it is not necessary for the Tribunal to deal with a JOA for the position of coordinator for the QRO’s regional litigation support centre that was submitted after the close of the evidence, a position that Ms. Haddad had already held on an acting basis.

106 In conclusion, the Tribunal finds that the complainant did not succeed in proving that the respondent abused its authority in developing and designing the appointment process and, more specifically, by not including membership in a visible minority as a merit criterion.

107 Even if the respondent had included membership in a visible minority as an organizational need, the complainant would still have been screened out of the appointment process since he did not have experience in human resources management, an essential qualification for the positions being filled. Section 30(1)(a) of the PSEA states that the PSC or its representative cannot appoint a person who does not meet the essential qualifications established for a position and section 6(c) of the EEA states that an employer is not required to appoint persons without basing the appointment on merit in cases where the PSEA requires that the appointment be based on merit.

Other considerations

108 The complainant emphasized the fact that the respondent had decided that the human resources management experience involved being accountable for this management.

109 The Tribunal finds that the respondent provided a reasonable explanation for this interpretation of the requirement for experience in human resources management. Ms. Van Erum and Mr. Lapierre indicated that the screening board had decided that human resources management meant that the person was responsible and accountable for, among other things, direct supervision of employees on a daily basis, assigning duties, identifying training and development needs, and evaluating performance. This accountability implies delegation of authority for pay, approval of leave and labour relations. In the federal public service, the deputy head usually delegates such authority to people in management positions. In the Department of Justice, for the LA group, authority for human resources management is delegated to employees in positions at the LA-2B group and level or higher. The complainant had not acquired this experience in the position that he was in at the time of the appointment process since he was in a prosecutor position at the LA-2A group and level in the Public Prosecution Service of Canada, a position two levels lower than the positions at issue.

110 The complainant also argues that the respondent should have indicated in the SMC that human resources management experience involved being accountable for this management. In Neil v. Deputy Minister of Environment Canada [2008] PSST 0004, at paras. 50 and 51, the Tribunal found that failure to include in the SMC how a particular criterion will be assessed does not amount to an abuse of authority. In this case, the complainant did not suffer any harm because the respondent failed to mention the concept of accountability in the SMC. The complainant knew that the concept of accountability was an important component of experience in human resources management because, in her email of April 30, 2008, Ms. Mujica explicitly asked what his accountability in this area was. The complainant therefore had plenty of opportunity to explain his accountability in human resources management. However, the assessment board rejected his application after this clarification because it found that the complainant had coordinated projects, but not managed human resources.

Decision

111 For the above reasons, the complaint is dismissed.

John Mooney
Vice Chairperson

Parties of Record

Tribunal File:

2008-0482

Style of Cause:

Yacine Agnaou and the Deputy Minister of Justice

Hearing:

May 17 to 19, 2010;
September 27 to October 1, 2010; December 14 to 16, 2010 Last written submissions received April 11, 2011 Montreal, Quebec

Date of Reasons:

June 18, 2012

APPEARANCES:

For the complainant:

Yacine Agnaou

For the respondent:

Karl Chemsi

For the Public
Service Commission:

Lili Ste-Marie