FPSLREB Decisions

Reasons for Decision

Introduction

1 The complainant, Jeffrey Brown, alleges that the respondent, the Commissioner of Correctional Service of Canada (CSC), abused its authority by eliminating him from an appointment process due to what he refers to as systemic discrimination contrary to the Canadian Human Rights Act, R.S.C 1985, c. H-6 (CHRA) and by improperly assessing his interview via a videoconference.

2 The respondent denies that there was any abuse of authority and replies that the complainant was eliminated from the appointment process because he failed two essential knowledge qualifications for the position.

Background

3 On April 17, 2009, the respondent posted a job opportunity advertisement on Publiservice to fill Correctional Manager positions at the CX-04 group and level at Warkworth Institution and Millhaven Institution in the Ontario Region. The positions were open to employees of CSC and the National Parole Board occupying a position in Ontario and the Office of the Correctional Investigator. The closing date was May 1, 2009.

4 The complainant met the education and experience requirements for the position and was invited to an interview held on May 29, 2009.

5 The assessment board determined that the complainant did not meet the required pass mark for two essential knowledge qualifications: knowledge of security policies and practices and knowledge of crisis management policies and practices. As a result, on June 8, 2009, the complainant was notified that he had been eliminated from the appointment process.

6 Four Notifications of Appointment or Proposal of Appointment were issued on June 30, 2009, for Correctional Manager (CX-04) positions under this appointment process. Another five were issued on July 15, 2009.

7 The complainant filed three complaints of abuse of authority under s. 77(1)(a) of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12,13 (the PSEA). One complaint was received on July 5, 2009, and the other two on July 17, 2009. The three complaints were consolidated for the purposes of these proceedings, in accordance with s. 8 of the Public Service Staffing Tribunal Regulations, SOR/2006-6, as amended by SOR/2011-116.

8 The complainant notified the Canadian Human Rights Commission (CHRC), pursuant to s. 78 of the PSEA, that his complaints raised an issue involving the interpretation or application of the CHRA. The CHRC informed the Public Service Staffing Tribunal (the Tribunal) that it did not intend to make submissions in these complaints.

9 The Public Service Commission (PSC) did not attend the hearing, but provided written submissions.

Preliminary matters

10 At the commencement of the hearing, the respondent objected to the re-hearing of any allegations and evidence relating to systemic discrimination on the basis of res judicata, issue estoppel and abuse of process.

11 The objection related to the allegation and evidence the complainant wished to present concerning what he referred to as systemic racial discrimination, or, in effect, evidence of a pattern of racial discrimination, in support of his allegation of discrimination in the Ontario Region of CSC.

Respondent's position

12 The respondent submits that the issue of a pattern of racial discrimination was decided six months previously in the case of Brown v. Commissioner of Correctional Service of Canada, 2011 PSST 0015 (Brown 1). It states that in that case, the Tribunal did not find a pattern of racial discrimination in CSC.

13 The respondent cited numerous cases from the jurisprudence in support of its position that the Tribunal should not hear evidence of a pattern of racial discrimination in this case since that issue had already been determined in a previous decision (Brown 1). In particular, it referred to Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 (CanLII), [2001] 2 SCR 460, at para. 25, in relation to the doctrine of issue estoppel. The respondent submits that in Brown 1 the Tribunal made a final decision on the issue of systemic discrimination and that the issue and the parties are the same in this case.

14 With reference to Danyluk, at para. 18, the respondent submits that the complainant is only entitled to “one bite at the cherry”. The complainant had an opportunity to refer Brown 1 for judicial review but chose not to do so. To permit the complainant to re-litigate this issue would constitute harassment of the respondent. It also submits that duplicative re-litigation creates potentially inconsistent decisions and creates undue costs for the respondent and the Tribunal.

15 The respondent submits that the doctrine of abuse of process may apply where the strict requirements of issue estoppel are not met. With reference to Toronto (City) v. Canadian Union of Public Employees (C.U.P.E.), Local 79, [2003] 3 S.C.R. 77; [2003] S.C.J. No. 64 (QL) at para. 38,the respondent believes that the policy grounds for abuse of process are applicable here, namely to preserve the litigants' and the courts' resources, to uphold the integrity of the legal system by avoiding the potential for inconsistent decisions, and to protect the principle of finality.

16 The respondent submits that this case involves a nearly identical issue and that it would be an abuse of process for the complainant to raise the same issue that he lost in Brown 1.

17 Finally, the respondent submits that even where a party is seeking to introduce new evidence regarding the issue, the test for admitting new evidence is strict. The new evidence must be evidence that could not have reasonably been produced at the earlier hearing, and it must be decisive or would have changed the result had it been submitted earlier.

The complainant's position

18 The complainant submits that the Tribunal did not find against the respondent on the issue of a pattern of racial discrimination in Brown 1. Rather, he contends that the Tribunal found that it did not have sufficient evidence to reach a conclusion on the issue in that case.

19 The complainant also submits that it is not his intent to retry Brown 1. The evidence he intends to present is new and was not available at the time of the earlier hearing.

Analysis of preliminary matter

20 Prior to proceeding with the analysis of the doctrines of issue estoppel and abuse of process, it is important to clarify the Tribunal's role with respect to discrimination.

21 A person's right to file a complaint concerning an internal appointment process is governed by s. 77(1) of the PSEA, which states that “[...] a person in the area of recourse [...] may [...] make a complaint to the Tribunal that he or she was not appointed or proposed for appointment [...]”.

22 The words “a complaint to the Tribunal that he or she was not appointed or proposed for appointment” clearly stipulate that a complaint must be personal to the complainant. The complaint cannot be filed on behalf of another person and cannot be about how other unsuccessful candidates were treated. Therefore the complainant must have a personal interest in an appointment to the position (see Silke v. Deputy Minister of National Defence, 2010 PSST 0009, para. 68).

23 As such, the Tribunal's role under s. 77 of the PSEA is to determine whether or not the respondent abused its authority with respect to a complainant in an appointment process. One of the grounds for abuse of authority is discrimination against a complainant. Since a complaint must be personal to a complainant, the Tribunal's role is not to determine whether or not a pattern of racial discrimination exists at CSC, but whether the complainant experienced racial discrimination in this appointment process. While evidence of a pattern of racial discrimination can serve to establish context and background for the discrimination alleged, at the end of the day, a link or connection must be made between the evidence of a pattern of racial discrimination and the particular situation of the complainant (see Kofoworola Ogunyankin v. Queen's University, 2011 HRTO 1910 (CanLII)).

24 Therefore, the issue to be determined in these particular complaints is whether or not the respondent discriminated against the complainant in this appointment process.

Does the doctrine of issue estoppel apply to these complaints?

25 The Tribunal dealt with the doctrines of issue estoppel and abuse of process in Lavigne v. Deputy Minister of Justice, 2010 PSST 0007. In para. 24 of that decision, the Tribunal referred to the two step process enunciated by the Supreme Court of Canada in Danyluk:

In Danyluk, paragraph 33, the Supreme Court held that the application of issue estoppel is a two-step process. The Tribunal must first determine whether the three preconditions to the operation of issue estoppel have been satisfied. The Tribunal must then decide whether it ought to exercise its discretion in applying this doctrine. In paragraph 25 of Danyluk, the Supreme Court set out three preconditions to the operation of issue estoppel:

1. that the same question has been decided;
2. that the judicial decision which is said to create the estoppel was final; and
3. that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies.

26 Under s. 77 of the PSEA, a person who is not appointed in an internal appointment process is entitled to make a complaint that he or she was not appointed or proposed for appointment by reason of abuse of authority on the part of the PSC or deputy head. The complaints, in this case, relate to a different appointment process (2009-PEN-IA-ONT-001704), than the complaints in Brown 1 (2007-PEN-IA-ONT-236). In Brown 1, the complaints related to an appointment process that was initiated in 2007 leading to appointments in February and March 2009. This case concerns an appointment process that was initiated in April 2009 leading to appointments in June and July 2009. The assessment board in the present case is also different. Furthermore, the reasons that the complainant was eliminated from this appointment process are different from the reasons in Brown 1. In Brown 1, the complainant was eliminated from the appointment process because he failed the essential qualifications strategic thinking and values and ethics.

27 By virtue of s. 79(1) of the PSEA, the persons appointed or proposed for appointment are parties to a complaint. These persons are different in this case from the persons appointed or proposed for appointment in Brown 1. Therefore, some of the parties in Brown 1 were not the same persons as the parties in the present proceedings.

28 For these reasons, the Tribunal finds that the first and third preconditions for the establishment of issue estoppel have not been met. Given this finding, it is not necessary to address the second precondition. The Tribunal therefore finds that the doctrine of issue estoppel does not apply to these complaints.

Does the doctrine of abuse of process apply to these complaints?

29 The doctrine of abuse of process was set out by the Supreme Court of Canada in Toronto (City). The doctrine has been applied to preclude relitigation in circumstances where the strict requirements of the doctrine of issue estoppel have not been met, but where allowing the litigation to proceed would nonetheless violate principles such as judicial economy, consistency, finality, and the integrity of the administration of justice (See Lavigne, at para. 28). In Toronto (City), the Supreme Court set out the principles underlying this doctrine:

[37] (...) the doctrine of abuse of process engages “the inherent power of the court to prevent the misuse of its procedure, in a way that would . . . bring the administration of justice into disrepute” (Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.), at para. 55, per Goudge J.A., dissenting (approved [2002] 3 S.C.R. 307, 2002 SCC 63)). Goudge J.A. expanded on that concept in the following terms at paras. 55-56:

The doctrine of abuse of process engages the inherent power of the court to prevent the misuse of its procedure, in a way that would be manifestly unfair to a party to the litigation before it or would in some other way bring the administration of justice into disrepute.(...)

One circumstance in which abuse of process has been applied is where the litigation before the court is found to be in essence an attempt to relitigate a claim which the court has already determined.

(...)

(Emphasis in the original.)

[38] (...) The policy grounds supporting abuse of process by relitigation are the same as the essential policy grounds supporting issue estoppel (...):

The two policy grounds, namely, that there be an end to litigation and that no one should be twice vexed by the same cause, have been cited as policies in the application of abuse of process by relitigation. Other policy grounds have also been cited, namely, to preserve the courts' and the litigants' resources, to uphold the integrity of the legal system in order to avoid inconsistent results, and to protect the principle of finality so crucial to the proper administration of justice.

30 In Lavigne, the Tribunal applied the doctrine of abuse of process to decide that the complainant in that case was precluded from re-litigating several issues that had already been addressed in a previous Tribunal decision. Lavigne can be distinguished from the present case. In Lavigne, the respondent had held two appointment processes in the fall of 2006, created a pool of qualified candidates and appointed six people in May 2007. Mr. Lavigne filed complaints against those appointments and the Tribunal rendered a decision. In April 2008, the respondent appointed another person from that same pool and the complainant filed a complaint against that appointment submitting the same allegations as indicated in his previous complaint concerning the six appointees. In that particular case, the subsequent appointment related to the same appointment process initiated in the fall of 2006 and the Tribunal concluded that the complaint was the same, the issues raised by Mr. Lavigne had already been determined, and that he had not submitted any new evidence in support of those issues.

31 The issue of discrimination the complainant seeks to litigate in the present case concerns a different appointment process, which took place after the appointment process in Brown 1. He also relies on evidence that did not exist at the time of the hearing into Brown 1. Furthermore, the fact that the existence of discrimination was not established in Brown 1 does not mean that discrimination could not have played a role in this subsequent appointment process. As such, the fact that the complainant has alleged that discrimination was a factor with respect to a different appointment process in the past should not preclude him from alleging that discrimination was a factor in this particular appointment process.

32 The Tribunal finds that the doctrine of abuse of process does not apply in this case. The issue is not the same as in Brown 1, and the Tribunal's decision in the present case will not have any bearing on its decision rendered in Brown 1, nor will it bring the administration of justice into disrepute (see Toronto (City), at paras. 53 and 55).

33 The Tribunal is satisfied that this conclusion is sufficient to dispose of the preliminary matter. However, the Tribunal is of the view that it would have exercised its discretion to hear the matter in this case had the criteria of the doctrines of issue estoppel and abuse of process been met. Issues of discrimination are always contentious and at times complex. A pattern of racial discrimination is not an individual event or, necessarily, a limited series of events. It reflects a pattern of behaviour that may be ingrained in the culture of an organization and demonstrated over time in various ways. Direct evidence of discrimination is in most cases difficult to obtain. It may only be detected through its “subtle scent” (see Basi v. Canadian National Railway Company (No. 1) (1988), 9 C.H.R.R. D/5029 (C.H.R.T.). The fact that a pattern of racial discrimination has not been proven in one case does not mean that it does not exist and will not be proven in a different case based on new evidence. For similar reasons, where a pattern of racial discrimination has been demonstrated in a particular case, the Tribunal does not believe that a respondent should be barred from presenting evidence in a future case that the problem has been corrected.

34 The complainant seeks to introduce the Commissioner's Report entitled Commissioner's National Consultation with Visible Minority Employees – Working towards Achievement of a Barrier-free and Inclusive CSC, as well as evidence relating to the non-advertised appointments of six allegedly unqualified persons to CX-04 positions, and other evidence regarding the representation of visible minorities in CSC. This evidence was not considered in Brown 1.

35 In this particular case, the Tribunal believes, for the reasons set out above, that it is in the interest of fairness and justice to hear the issue given that it is a different appointment process, conducted at a different time, leading to different appointments and involving new evidence relevant to the issue raised.

Issues

36 The Tribunal must determine the following issues:

1. Did the respondent abuse its authority by discriminating against the complainant in this appointment process (2009-PEN-IA-ONT-001704)?
2. Did the respondent abuse its authority when it interviewed the complainant via videoconference?

Analysis

37 At the pre-hearing teleconference held on October 21, 2011, the complainant identified four allegations that he intended to pursue at the hearing: a) failure to properly apply merit criteria in evaluating his application; b) failure to adhere to the posted Statement of Merit Criteria and Conditions of Employment (SMC); c) failure to properly evaluate the complainant's asset qualifications; and d) systemic and specific racial bias in the Ontario Region of CSC.

38 Early in the evidentiary portion of the hearing, the complainant stated that he would not be pursuing the first three of these allegations. He stated that he would only pursue the final allegation concerning systemic racial discrimination.

39 At that point, the Tribunal reminded the complainant that he had filed his complaint under s. 77(1)(a) of the PSEA, which provides that a person may make a complaint that he or she was not appointed or proposed for appointment by reason of abuse of authority by the deputy head in the exercise of its or his or her authority under s. 30(2) of the PSEA. Subsection 30(2) of the PSEA provides that a person may be appointed on the basis of merit where the PSC (or delegated deputy head) is satisfied that the person to be appointed meets the essential qualifications for the work to be performed.

40 The respondent submitted that the Tribunal only has jurisdiction to hear complaints regarding an appointment process and that if the evidence relates solely to systemic racial discrimination, the Tribunal would have no jurisdiction to rule on it.

41 The complainant acknowledged these cautions and proceeded to address the allegation of systemic and specific racial discrimination.

Issue I: Did the respondent abuse its authority by discriminating against the complainant in this appointment process (2009-PEN-IA-ONT-001704)?

42 Section 80 of the PSEA provides that in determining whether a complaint is substantiated under s. 77, the Tribunal may interpret and apply the CHRA. The complainant alleges that he was eliminated from the appointment process due in part to what he refers to as systemic discrimination.

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

44 The Tribunal has established that the complainant bears the burden of proof in a complaint of abuse of authority. See Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, at paras. 48-55.

45 In the context of human rights, a complainant has the onus of establishing a prima facie case of discrimination. The Supreme Court of Canada, in Ontario (Human Rights Commission) v. Simpson Sears, [1985] 2 S.C.R. 536 (known as the O'Malley decision) established a test for showing a prima facie case of discrimination as follows:

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 [...]

46 It is only necessary for the complainant to show that the alleged discrimination was one of the factors, not the sole or even main factor, in the decision to eliminate him from the appointment process. See Holden v. Canadian National Railway Company (1990), 14 C.H.R.R. D/12 (F.C.A.), at para. 7.

47 If the complainant establishes that there was a pattern of discriminatory conduct in CSC, it is still necessary for him to demonstrate a link or nexus between that discriminatory behaviour and evidence, both direct and circumstantial, of individual discrimination in the appointment process in order for a prima facie case to be made. See Chopra v. Canada (Department of National Health and Welfare), 2001 CanLII 8492 (C.H.R.T.), at para. 211.

48 The Tribunal is required to determine whether the complainant has established a prima facie case of discrimination before it considers the respondent's explanation. If the complainant establishes a prima facie case of discrimination, then the burden shifts to the respondent to provide a reasonable non-discriminatory explanation for its conduct. See Lincoln v. Bay Ferries Ltd., [2004] F.C.J. No. 941; 2004 FCA 204 (QL).

49 The complainant presented three types of evidence in support of his allegation of a pattern of individual racial discrimination: a) a report on the Commissioner's consultations with members of visible minority groups at CSC; b) evidence regarding six non-advertised appointments in the Ontario Region of CSC; and c) other evidence regarding the representation of members of visible minority groups in CSC.

The Commissioner's Report on Consultation with Members of Visible Minority Groups in CSC and other documents

50 The complainant is a parole officer at CSC at the WP-04 group and level. His current position is located in Windsor, Ontario. He identifies himself as a visible minority person and a person of Aboriginal descent.

51 The complainant testified that the Commissioner of CSC, Don Head, travelled across Canada between March and July 2010, to consult with members of visible minority groups at CSC. The complainant helped to facilitate the Commissioner's meetings in Kingston and Toronto, Ontario.

52 He submitted into evidence the report resulting from these consultations. It is entitled Commissioner's National Consultation with Visible Minority Employees – Working towards Achievement of a Barrier-free and Inclusive CSC, dated November 2010 (the Commissioner's report). He testified that this is the final report on the consultations and that it has been reviewed and signed by the Commissioner. The complainant referred to the following passage from the Commissioner's message at the beginning of the report:

...CSC needs to recognize the contribution of its diverse workforce. It is imperative that CSC acknowledge and identify the systemic issues and barriers affecting the career progression of visible minority (VM) employees. As an organization, we need to develop meaningful, practical and creative solutions to managing the concerns of VM employees at CSC.

In support of this goal, I travelled to the field in spring summer 2010 to listen to the stories of VM staff – stories that outline their contributions to the success of the CSC mandate; stories that highlight the systemic barriers limiting VMs from achieving their best work; stories that call upon CSC to implement the recommendations of past reports and strategic plans by establishing relevant employment equity programs and meaningful policies that reflect the diversity of CSC's workforce. (Emphasis added)

53 In the complainant's opinion, these passages constitute an acknowledgement by the Commissioner of systemic barriers within CSC.

54 The complainant also believes that another statement in the Commissioner's report that “...the common challenge across CSC is to adopt an organizational culture where diversity is valued...” means that diversity is not valued at present. He further believes that a subsequent passage in the Commissioner's report stating “We have an opportunity to rewrite the VM story at CSC. I am looking forward to engaging you in a new narrative – a story of an organization that is strong, diverse, barrier-free, inclusive and ultimately reflective of today's Canadian society”, is a further admission of the existence of barriers.

55 The complainant also quoted from a number of sections in the body of the report, which he believes confirm problems facing members of visible minority groups in CSC and support his contention of systemic barriers. The complainant believes that the only conclusion one can reach from reading this report is that there are systemic barriers at CSC.

56 The complainant also submitted an email from the Commissioner to Aboriginal employees in CSC informing them that he would be conducting similar consultations with them to discuss “...addressing systemic barriers to recruitment, career advancement and employee retention...”

57 According to the complainant, the Commissioner is personally making an effort to improve the state of members of visible minority groups at CSC, but not all managers are receptive to his efforts. He alleges that wardens in the institutions have a great deal of flexibility to manipulate the staffing system.

The non-advertised appointments of six allegedly unqualified persons to CX-04 positions

58 The complainant submitted six Notifications of Consideration (NOCs) for non-advertised appointments to CX-04 positions at Warkworth Institution. The NOCs were all dated November 2, 2011.

59 The respondent objected to the admissibility of these documents, noting that these appointments, resulting from a different appointment process, took place after the appointment process at issue. Referring to the Federal Court decision in Alexander v. Canada (Attorney General), 2011 FC 1278, at para. 69, the respondent submitted that it would be improper to allow the complainant to expand the complaint beyond this specific appointment process.

60 In Alexander, the applicants sought to enlarge their complaints to have the Tribunal examine all staffing appointments in the Ontario Region of Health Canada between 2004 and May 2008. The complainant, in this case, is not seeking to have these other appointments reviewed. He is citing these appointments as circumstantial evidence of a pattern of racial discrimination in the Ontario Region of CSC.

61 In Brown 1, the Tribunal determined that it could examine incidents and events that occurred in previous appointment processes since such incidents may be part of the context of a complaint and could shed light on the current appointment process. The Tribunal is of the view that the same principle applies for incidents and events that occurred after the appointment process. Therefore, it will consider this evidence as part of the context of the claim of a pattern of racial discrimination. However, the Tribunal's jurisdiction in the present matter is limited to this appointment process and does not extend to those six appointments.

62 The complainant testified that after he was eliminated from the appointment process, he met with Bruce Somers, Assistant Deputy Commissioner, Corporate Services, for the Ontario Region. At that meeting, he was informed that CSC could not appoint him or anyone else who was unsuccessful in an advertised appointment process by way of a non-advertised appointment. However, he alleges that this is exactly what happened in the case of the six non-advertised appointments referred to above.

63 The complainant submitted an email dated December 1, 2011, from Ann Anderson, Warden of Warkworth Institution, to a CSC employee whose name was blacked out. In the email, Ms. Anderson explains that despite conducting four advertised appointment processes, it had been difficult to fill Warkworth's need for correctional managers. Non-advertised appointments were made because the latest correctional manager qualified pool for Warkworth had been exhausted. The complainant understood this statement to mean that there were no remaining qualified candidates from the latest appointment process. Therefore, the persons who were appointed via non-advertised appointments must have been found unqualified in the previous appointment processes.

64 The complainant testified that none of the six appointees were members of visible minority groups or Aboriginals. He stated that two employees who were Aboriginal had been acting in these positions but neither was appointed. The complainant stated that he is a representative on a CSC diversity committee and he is continually reviewing the representation of members of visible minority groups and Aboriginal employees in CSC, particularly in the managerial ranks. He testified that he had enough evidence to know that none of the six appointees were members of visible minority groups or Aboriginals.

65 The complainant stated that he is in both categories of under-represented employees: a member of a visible minority group and a person of Aboriginal descent. He believes CSC could have used these non-advertised appointments to alleviate the under-representation of these employment equity groups, but it chose not to. He would have been willing to relocate from Windsor to accept one of these positions but he was not considered.

66 In the complainant's view, these non-advertised appointments are further evidence of discrimination against employees in employment equity groups.

Other evidence regarding the representation of members of visible minority groups in CSC

67 The complainant introduced a press release dated June 16, 2010, and a list of recommendations from a report issued by the Standing Senate Committee on Human Rights. The report itself, which was not introduced into evidence, is entitled Reflecting the Changing Face of Canada: Employment Equity in the Federal Public Service.

68 The complainant contends that a number of passages from the press release and the recommendations support his allegation of systemic racial discrimination in the Ontario Region of CSC.

69 The complainant contends that the list of recommendations from the Senate Committee report demonstrates that there is under-representation of visible minority groups in the public service, and CSC is part of the public service. He further submits that the Commissioner's report on consultation with members of visible minority groups refers to a Statistics Canada projection that the number of members of visible minority groups in Canada is increasing. However, he believes that CSC is still using 2006 census data for comparison purposes. Therefore, he contends that if members of visible minority groups were underrepresented in CSC based on 2006 data, the situation will be worse when 2011 census data is available.

70 He also submitted a table from a CSC database identified only as PMMR, to establish that 17% of the offender population were ethno-cultural as of August 2011. The ethno-cultural percentage is based on self-identification and includes persons who self-identified as black and Aboriginal. He notes that this is an increase from the 13% identified in the Commissioner's report that was published in November of 2010.

71 The complainant submits that this information is relevant because he has heard from CSC managers that the department wants its workforce to reflect the ethno-cultural composition of the offender population. He admits that this is hearsay, but he states that this conclusion can be inferred from the Commissioner's report, which states:

The rapid changes in Canadian demographics require CSC to respond according to the growing needs of both the offenders and staff population. As a result, CSC must incorporate a new paradigm of ethnoculturally sensitive institutional changes. This will allow CSC to become a leader in the advancement of recruitment, retention and career - development of best practices for VMs.

Has the complainant established a prima facie case of discrimination?

72 As the Federal Court indicated in Canada (Human Rights Commission) v. Canada (Department of National Health and Welfare), 1998 CanLII 7740 at paras. 17-22 (F.C.T.D.), where direct evidence of a discriminatory practice is unavailable, it can be established by way of inference through the use of circumstantial evidence, consisting of a series of facts, each of which, when combined, may justify it. Citing Beatrice Vizkelety, Proving Discrimination in Canada, (Toronto: Carswell, 1987), the Court added, at para. 18 of the decision, that a complainant may introduce evidence of general personnel practices or of the overall composition of the employer's workforce to demonstrate that the employer is engaging in a pattern or standard practice of discrimination. If proved, the tribunal hearing the matter will then be asked to infer from such general circumstances and other supporting evidence that discrimination probably occurred in the complainant's case as well.

73 However, a link must be established between this evidence and the evidence, both direct and circumstantial, of individual discrimination in the complainant's situation in order for a prima facie case to be established (See Chopra, para. 211). The Canadian Human Rights Tribunal found in Filgueira v. Garfield Container Transport Inc., [2005] C.H.R.D. No. 13; 2005 CHRT 32, at para. 41 (QL); confirmed by [2006] F.C.J. No. 1005; 2006 FC 785(QL), that “an abstract belief that a person is discriminated against, without some fact to confirm that belief, is not enough”.

74 These complaints were filed under s. 77(1)(a) of the PSEA, which provides that a person may make a complaint to the Tribunal that he or she was not appointed or proposed for appointment by reason of abuse of authority by the Commission or deputy head in the exercise of its, his or her authority under s. 30(2) of the PSEA. Section 30(2) provides that a person must meet the essential qualifications for the work to be performed in order to be appointed.

75 The complainant presented as evidence the Commissioner's report of 2010, the non-advertised appointments of six allegedly unqualified persons, the press release containing a list of recommendations from the Senate Committee report and a table from a CSC database. All of this evidence is circumstantial.

76 With respect to the Commissioner's report, the Tribunal accepts that it does raise concerns about how members of visible minority groups are treated at CSC. It is obvious that the Commissioner conducted these consultations to identify the concerns of members of visible minority groups so that steps could be taken to address them. However, it is difficult to discern whether the statements in the Commissioner's report reflect acceptance by CSC that there are systemic barriers in CSC or simply reflect that members of visible minority groups believe that these barriers exist. Certainly, there is no clear statement in the Commissioner's report that CSC accepts that discriminatory systemic barriers to the advancement of members of visible minority groups exist. Furthermore, the contents of the report must be considered in the context in which they were obtained. In the Commissioner's message, he states the purpose of the consultations, was to “...listen to the stories of VM staff...that highlight the systemic barriers limiting VMs from achieving their best work...”

77 It would have been helpful if the Tribunal had direct evidence regarding the statements made in the Commissioner's report. The Tribunal notes that at the complainant's request, it issued a summons to call the Commissioner to testify at the hearing. However, the bargaining agent, through the person representing the complainant, decided not to call the Commissioner, nor anyone else involved in the writing of the Commissioner's report, to testify. Therefore, the Tribunal is left with only the complainant's interpretation of the contents of the Commissioner's report. While the Tribunal has no reason to doubt that the complainant believes his interpretation to be true, it is not possible to make a finding of fact concerning the meaning of the Commissioner's report without the testimony of the Commissioner or someone who may have been involved in writing it.

78 Regarding the six non-advertised appointments at Warkworth Institution, the complainant has made an assumption that the six appointees were found unqualified in previous appointment processes, but he has presented no evidence that they were candidates in any of those processes. Even if his claim were true, this does not mean that they did not meet the essential qualifications for the positions at the time they were appointed.

79 The list of recommendations from the Senate report concerns the public service as a whole. The complainant submitted no verifiable statistics concerning the representation of visible minority groups in CSC, in the Ontario Region or in the CX group.

80 While the complainant assumes that the representation of members of visible minority groups in CSC will be worse when the 2011 census data is available, this is largely speculation. Reasonable conclusions can only be reached when 2011 census data is available to compare to the CSC workforce.

81 The Tribunal cannot conclude from the complainant's evidence that CSC has a goal to match the representation of its workforce population with the offender population. His evidence on this point is, by his own admission, hearsay and from unnamed sources. Furthermore, the section of the Commissioner's report he identifies states that CSC must introduce ethnoculturally sensitive institutional changes, but it does not state that one of those changes is to balance the representation in the workforce population with the offender population.

82 In the Tribunal's view, the complainant's circumstantial evidence is insufficient to lead to a finding that discriminatory systemic barriers exist for members of visible minority groups at CSC. Even if this evidence was sufficient to establish that systemic barriers to the advancement of visible minority employees exist at CSC, the complainant has not established a link between his evidence and any evidence of individual discrimination in his case. The complainant has not adduced any evidence that would establish or lead to the inference that his race or colour or ethnic origin were factors in the respondent's determination that he did not achieve the pass mark for two of the essential qualifications. He has not challenged the assessment board's determination that he did not meet the two essential qualifications. None of his evidence relates to discrimination in the appointment process that is the subject of his complaint.

83 For these reasons, the Tribunal finds that the complainant has not established a prima facie case of discrimination. There is no evidence to establish that the complainant's race, colour or ethnic origin was a factor in his elimination from the CX-04 appointment process.

Reasonable non-discriminatory explanation

84 While the above conclusion is sufficient to dispose of the allegation of discrimination in this appointment process, the Tribunal is of the view that the respondent has also provided a reasonable non-discriminatory explanation for eliminating the complainant from the process. According to the respondent, the complainant was eliminated from the appointment process because an assessment board determined that he failed to meet two essential knowledge qualifications for the position. Under s. 30(2) of the PSEA, the respondent cannot appoint someone to a position if he or she does not meet the essential qualifications for the work to be performed. The complainant did not challenge this issue since he decided not to pursue his allegations relating to merit.

85 At the time of this appointment process, Angie Legacy was the Deputy Warden at Warkworth Institution and a member of the board that assessed the complainant. Ms. Legacy explained the board's assessment of the complainant and why he failed two essential qualifications. The complainant asked Ms. Legacy some questions for clarification, but did not challenge the board's conclusions regarding his assessment.

86 Ms. Legacy also testified that the SMC used in the appointment process stated that CSC had an organizational need for members of designated employment equity groups. However, CSC had no need to invoke the organizational needs provisions of the SMC, because all of the successful candidates were offered positions. She stated that even if the respondent had wanted to appoint someone from an employment equity group to fill the identified organizational need, that person still would have had to have met the essential qualifications. She explained that the complainant did not meet two essential qualifications, and thus he could not have been appointed without violating the merit principle in s. 30 of the PSEA.

87 Adele Anderson testified on behalf of the respondent. She is a subject-matter specialist in staffing and was involved in the six non-advertised appointment processes. Ms. Anderson contradicted the complainant's assertion that none of the six appointees were members of a visible minority group or Aboriginal persons. She testified that two of the six persons who were appointed through the non-advertised appointment processes were self-identified as persons of Aboriginal descent. Ms. Anderson submitted the assessments that were conducted for these two persons. Both assessment documents note that these appointments meet the organizational need for persons from employment equity groups. The complainant acknowledged on cross-examination that he had not seen the documentation of the six persons appointed through the non-advertised appointment processes and he did not know if any had self-identified as being in a designated employment equity group.

88 Ms. Anderson acknowledged that the two appointments would not improve the representation of visible minorities in the CSC, since Aboriginal employees are counted separately. The Tribunal notes, however, that the complainant's allegations of racial discrimination relate to his membership in both employment equity groups – persons in a visible minority group and persons of Aboriginal descent.

89 Ms. Legacy's testimony contradicted the complainant's statement that there is only one member from the visible minority or Aboriginal groups at the CX-04 level at Grand Valley Institution and that there are none in Kingston. According to Ms. Legacy, there are two CX-04s who are members of the relevant employment equity groups at Grand Valley and one at the Kingston Penitentiary. She testified that one of the CX-04s at Grand Valley was offered an appointment arising from the appointment process at issue, but declined and was subsequently appointed to a CX-04 position at Grand Valley. The complainant questioned Ms. Legacy on this evidence, but the resulting testimony did not demonstrate that Ms. Legacy's claims were incorrect.

90 The respondent introduced a report entitled Correctional Service of Canada's Workforce Statistical Profile and Analysis – Correctional Services (CX) Occupational Group, March 31, 2011. This report shows that visible minority representation was 6.1% of the CX workforce compared with workforce availability of 3.5%. The comparable figures for Aboriginal persons were 9.5% representation and 8.5% availability. The complainant challenged the workforce availability numbers because they were based on the out-dated 2006 census. On cross-examination, however, he conceded that he could not dispute the respondent's assertion that the more recent 2011 census data would not be available until 2012.

91 In the Tribunal's view, the respondent cannot be held accountable for failing to use census statistics that are not yet available. Furthermore, even if the 2011 census data, when available, show an increase in workforce availability, it cannot be determined at this point in time if the availability will exceed the current workforce representation for visible minority and Aboriginal persons at CSC.

92 As for the Commissioner's report, the respondent submits that the Commissioner's statements cannot be interpreted as an admission of a pattern of racial discrimination. Rather they are an acknowledgement of employee concerns and a pledge to address those concerns. The respondent cites a number of passages from the Commissioner's report stating, among other things, that CSC has made continuous progress in increasing representation in the four designated employment equity groups, that the report is based on qualitative research rather than a statistical analysis, and that it reflects the perspectives and experiences of visible minority persons in CSC. The respondent notes that the views and beliefs of managers were not canvassed and that the Commissioner's report is, therefore, one-sided. Overall, the respondent contends that the Commissioner's report has little probative value, is not reliable, and can be given little weight as evidence.

Conclusion

93 It is the complainant's position that discriminatory, systemic barriers to employment exist in the public service and that the failure to appoint him in this appointment process is the result of these barriers. However, as noted above, it is the complainant who has the burden of proof in a case before the Tribunal. The burden does not rest with the respondent to prove that it did not abuse its authority whenever it appoints a person who is not a member of a designated employment equity group.

94 The Tribunal concludes that the complainant has not met his burden. The respondent has provided a reasonable non-discriminatory explanation for not appointing the complainant. Based on the evidence, the Tribunal finds that the complainant was not appointed in this appointment process because he failed to meet two of the essential knowledge qualifications, not because of his race, colour or ethnic origin.

Issue II: Did the respondent abuse its authority when it interviewed the complainant via videoconference?

95 The complainant expressed concern that his interview had been conducted by videoconference. Ms. Legacy acknowledged that this method was used to interview the complainant. She testified that the assessment board conducted the interviews from Warkworth Institution, which is near Campbellford, Ontario. The complainant was in Windsor, Ontario. She stated that videoconferences are regularly used in CSC for meetings and interviews in order to control travel costs. She also stated that CSC human resources staff endorse videoconferencing as an appropriate method for conducting interviews.

96 From Ms. Legacy's perspective, the board and the complainant had no difficulty communicating during the interview. She did not recall the complainant expressing any concern over this interview method before, during or after the interview. She first learned that it was an issue for the complainant during her testimony at the hearing when he questioned her about it in cross-examination. Ms. Legacy acknowledged that the complainant was the only candidate interviewed via videoconference. She did not know if the complainant was offered any alternative interview method.

97 In his final arguments, the complainant submitted that he had requested to travel to Kingston for the interview but was offered no alternative other than participating via videoconference. He submitted that interviews are sufficiently difficult without having to contend with the relatively new method of videoconferencing. He stated that he was not familiar with videoconferencing equipment nor was he comfortable being interviewed via videoconference.

98 The complainant did not submit any evidence to show that he requested his interview take place in Kingston rather than via videoconference. Ms. Legacy testified that the complainant raised no concerns regarding the use of videoconferencing technology before, during or after the interview. Ms. Legacy testified that the assessment board conducted the interview from Warkworth Institution which is some distance from Kingston. Conducting an in-person interview in Kingston would have resulted in travel costs for all of the participants in the interview, something the videoconference was intended to minimize or avoid.

99 Section 36 of the PSEA provides that the deputy head may use any assessment method that he or she considers appropriate. In the present case, the respondent chose to interview the complainant and administered the interview via videoconference. The Tribunal is of the view that interviews can be administered several different ways, such as in person, via teleconference or videoconference.

100 The complainant has not established how the decision to conduct the interview via videoconference produced an unfair result. The respondent explained that video conferencing was regularly used in CSC for meetings and interviews in order to control travel costs. The complainant did not refute this claim. Nor did he provide evidence that he sought or required assistance with the equipment or informed the assessment board that he was uncomfortable proceeding this way. There is no evidence that he raised his concerns over videoconferencing with the respondent at any time prior to the hearing. Therefore, the complainant has not demonstrated that the respondent abused its authority when it conducted his interview by videoconference.

Decision

101 For all these reasons, the complaints are dismissed.

Kenneth J. Gibson
Member

Parties of Record

Tribunal File:

2009-0446/0475/0476

Style of Cause:

Jeffrey Brown and the Commissioner of Correctional Service of Canada

Hearing:

December 6-8, 2011
Kingston, Ontario

Date of Reasons:

July 5, 2012

APPEARANCES:

For the complainant:

Ken Boone

For the respondent:

Allison Sephton

For the Public
Service Commission:

John Unrau (written submissions)