FPSLREB Decisions

Reasons for Decision

Introduction

1Dean Tajitsu, the complainant, applied in an internal advertised appointment process for the FB-05 position of Superintendent at the Vancouver International Airport (VIA). The complainant was eliminated from the appointment process as he failed to meet one of the essential qualifications used to screen candidates.

2The complainant alleges that the respondent, the President of the Canada Border Services Agency (CBSA), abused its authority in the appointment process. The complainant is of Japanese descent and he alleges that the respondent discriminated against him on the prohibited grounds of race and national or ethnic origin. Additionally, he alleges that personal favouritism and bias influenced the appointments of two candidates, Jeffrey Goddard and Bonnie Yan.

3The respondent denies that an abuse of authority occurred and states that discrimination, personal favouritism, and bias were not present in the appointment process.

4The Public Service Commission (PSC) attended the hearing. It took no position on the merits of the case.

5The complainant provided notice to the Canadian Human Rights Commission (CHRC) in accordance with s. 78 of the Public Service Employment Act, S.C. 2003, c. 22, ss. 12,13 (PSEA) to indicate that he intended to raise an issue involving the interpretation and application of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA). Prior to the hearing, the CHRC provided a written submission in which it reviewed the relevant legislation and jurisprudence. It took no position on the merits of the case.

6For the reasons that follow, the Public Service Staffing Tribunal (the Tribunal) finds that the complaint is not substantiated. It has not been shown that the respondent discriminated against the complainant on prohibited grounds or that the appointment of either Mr. Goddard or Ms. Yan was influenced by personal favouritism or bias.

Background

7In 2011, CBSA issued a Job Opportunity Advertisement for the appointment process for the FB-05 Superintendent position at VIA.

8Screening was conducted by Nicole Goodman, David Lee, and Ken McPherson. The assessment board members, George Morris, Mr. Lee, and Mr. McPherson, then assessed the screened-in candidates using an interview and reference checks. They were assisted by Lynne MacKay, a PSC employee, who provided guidance and expertise to the assessment board throughout the appointment process.

9The complainant was one of 97 candidates for the position. He was eliminated from the appointment process during the screening process as he did not meet the essential qualification of recent and significant experience providing a leadership role within a CBSA district or division (the leadership qualification).

10On January 25, 2012, CBSA posted a Notification of Appointment or Proposal of Appointment indicating that ten appointments would be made from the appointment process. The complainant then filed a complaint with the Tribunal alleging abuse of authority pursuant to s. 77(1)(a) of the PSEA.

11As required by the Public Service Staffing Tribunal Regulations, SOR/2006-6, as amended by SOR/2011-116, the complainant filed written allegations prior to the hearing. During the hearing, he withdrew an allegation regarding the prescribed word limit for applicants to describe their experience and an allegation regarding abuse of authority in the choice of an advertised appointment process. Therefore, neither the prescribed word limit nor the choice of process has been considered in these reasons for decision.

Issues

12The Tribunal must determine the following issues:

1. Did the respondent abuse its authority by discriminating against the complainant on the basis of race and national or ethnic origin?
2. Did the respondent abuse its authority by showing personal favouritism or bias toward Mr. Goddard or Ms. Yan?

Analysis

13Section 77(1) of the PSEA provides that a person in the area of recourse may make a complaint to the Tribunal that he or she was not appointed or proposed for appointment because of abuse of authority. Whether an error constitutes an abuse of authority depends on the nature and seriousness of the error in question and the degree to which it is improper. See Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008 at para. 66.

14In Tibbs the Tribunal determined that the complainant bears the burden of proof (see paras. 49, 50 and 55). In order for the complainant to meet this burden, it is necessary for him to present sufficient evidence for the Tribunal to determine, on a balance of probabilities, that a finding of abuse of authority is warranted.

Issue I:  Did the respondent abuse its authority by discriminating against the complainant on the basis of race and national or ethnic origin?

15Section 80 of the PSEA states that in considering whether a complaint is substantiated under s. 77, the Tribunal may interpret and apply the CHRA.

16Section 7 of the CHRA provides that it is a discriminatory practice to directly or indirectly refuse to employ or continue to employ any individual, or, in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination which, according to s. 3(1) of the CHRA, includes race and national or ethnic origin.

17The complainant feels that he was discriminated against in employment on the basis of his race and national or ethnic origin which is Japanese. The complainant did not allege an abuse of authority in the decision to screen him out of the appointment process on the basis that he does not meet the leadership qualification. He did not claim that he possessed the required experience or that his experience was improperly assessed. In regard to race and national or ethnic origin, he noted only that one other candidate self-declared as a person of mixed origin including Japanese and was screened into the appointment process.

18In order to establish that the respondent engaged in a discriminatory practice, the complainant must first establish a prima facie case of discrimination as set out by the Supreme Court of Canada in Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536 (“O’Malley”).

19A prima facie case is one that covers the allegations made and which, if the allegations are believed, would be complete and sufficient to justify a finding in the complainant’s favour in the absence of an answer from the respondent. Once a prima facie case is made, the onus then shifts to the respondent to disprove the allegations or provide some other reasonable explanation. The Tribunal cannot take into consideration the respondent’s answer before determining whether a prima facie case of discrimination has been established. See Lincoln v. Bay Ferries Ltd., [2004] FCA 204 at para. 22.

20It is not necessary that discriminatory considerations are the sole reason for the actions at issue in order for the complaint to be substantiated. The complainant need only show that discrimination is one of the factors in the respondent’s decision. See Holden v. Canadian National Railway Company (1990), 14 C.H.R.R. D/12, (F.C.A.) at para. 7.)

21A number of decisions have served to illustrate the kind of evidence that may be used to establish a prima facie case of discrimination. In Shakes v. Rex Pak Ltd., (1981) 3 C.H.R.R. D/1001, where it was alleged that an employer refused to employ the complainant on the basis of prohibited grounds, the Ontario Board of Inquiry set out three factors to be considered in determining whether a prima facie case has been made out, which are:

1. that the complainant was qualified for the particular employment;
2. that the complainant was not hired; and,
3. that someone no better qualified but lacking the distinguishing feature which is the basis of the complaint of discrimination subsequently obtained the position.

22The circumstances of each case should be considered to determine whether the Shakes test may either be applied in its original form or be adapted to suit the case. (See for example Sangha v. Mackenzie Valley Land and Water Board, 2006 CHRT 9, at para. 194; rev’d on the question of remedy only, 2007 FC 856.) The question that must ultimately be determined is whether a prima facie case has been established within the meaning of O’Malley. See Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2005 FCA 154 at paras. 25-30, (“Morris”).

23Although the jurisprudence states that the Shakes test should not be automatically applied, it is appropriate to the facts of this case.

24The Tribunal finds that a prima facie case has not been made as the evidence led by the complainant would not be complete and sufficient to justify a verdict in his favour in the absence of an answer from the respondent.

25Based on the evidence, the complainant does not meet the first element in the Shakes test which requires that the complainant is qualified for the particular employment, in this case the FB-05 position. While the complainant asserts that discrimination was a factor in this appointment process, he does not contest the decision that found him unqualified because he did not pass the leadership qualification. The complainant did not assert that he met the leadership qualification and did not challenge any aspect of the assessment board’s decision to find him not qualified.

26As the first element of the Shakes test has not been met, it is not necessary to analyze the remaining elements of the test.

27Although the Tribunal can accord weight to the complainant’s belief that he felt he was subject to discrimination because he is of Japanese descent, the Canadian Human Rights Tribunal has stated that “an abstract belief that a person is discriminated against, without some fact to confirm that belief, is not enough.” See Filgueira v. Garfield Container Transport Inc., 2005 CHRT 32 at para. 41; application for judicial review dismissed, 2006 FC 785. In the present case, the complainant has been found unqualified for the position and has shown no link between this decision and the prohibited grounds of discrimination on which he relies.

28As the complainant has not established a prima facie case of discrimination, the respondent is not required to provide an answer or a reasonable explanation.

29The allegation of discrimination against the complainant based on race and national or ethnic origin has not been proven.

Issue II:  Did the respondent abuse its authority by showing personal favouritism or bias toward Mr. Goddard or Ms. Yan?

30Abuse of authority is not defined in the PSEA, except to the extent that s. 2(4) states that it includes personal favouritism and bad faith.

31In Glasgow v. Deputy Minister of Public Works and Government Services Canada, 2008 PSST 0007, at para. 41, the Tribunal stated that personal favouritism may include the selection of a person solely based on a personal relationship, as a personal favour, or to gain personal favour with someone else.

32To establish bias, it is not necessary that actual bias is found. A reasonable apprehension of bias may constitute abuse of authority. See Denny v. Deputy Minister of National Defence, 2009 PSST 0029, at para. 125, referring to Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at p. 394.

33The complainant testified that he knows that Mr. Lee has what the complainant referred to as “close personal relationships” with both Mr. Goddard and Ms. Yan. He stated that Mr. Lee described them as friends during the exchange of information between the parties. In his view, these relationships must have led to personal favouritism and bias toward Mr. Goddard and Ms. Yan in the appointment process.

34To support the allegation, the complainant described individual incidents that, in his view, demonstrated the close personal relationship leading to his perception of personal favouritism and bias toward these candidates in the appointment process. Considerable evidence was also directed toward describing the social culture of CBSA employees at VIA.

Social activities among CBSA employees at VIA

35Alexander Bishop, a Border Services Officer (BSO) at VIA, described the structure of the workplace. Employees work on teams that share the same shift schedule. Their working hours and days off are the same and teamwork is important. Mr. Bishop testified that he was aware of a number of charity events outside the workplace in which team members, including BSOs and Superintendents, participated. He attended many social events with his team members, including barbecues, camping trips and weddings. These events took place at the homes of team members and elsewhere. They were attended by groups ranging from two people to hundreds of people.

36Ms. Goodman, a Chief of Operations at VIA and a member of the screening board for the appointment process, testified that VIA employees often socialize outside the workplace. Because they work on the same schedule, team members’ participation in group activities outside the workplace is commonplace. She knew of camping trips, Las Vegas holidays, shopping outings and more. In her view, participation in these activities had no bearing on the appointment process and it would not concern her if members of the screening board had attended functions where candidates were present.

37Mr. Morris, the chairperson of the assessment board and the acting Assistant Director of Investigations and Removal, testified that in the large CBSA workplace at VIA, interaction among employees is natural and he had no concern about Mr. Lee participating on the assessment board whether or not he had attended any of these events.

38Mr. Lee, a Chief of Operations, testified that during 11 years as a manager at VIA, he has worked with hundreds of officers and a number of them, including Mr. Goddard and Ms. Yan, were candidates in the appointment process. Mr. Lee, too, described the workplace culture at CBSA. He stated that socializing among CBSA employees is extensive. He attributed the prevalence of social activities to a shared work experience in a high pressure work environment and the need for employees to decompress to process the resulting stress. Mr. Lee testified that he had seen the complainant at social events and recalled sitting next to him during card games which were typically attended by 20 to 50 employees.

39As to the complainant’s assertion that Mr. Goddard and Ms. Yan were his close personal friends, Mr. Lee stated he may well have described them as ‘work friends’ during the exchange of information with the complainant, but he had not intended to imply a close or personal relationship. They were colleagues.

Attendance at weddings

40The complainant testified that he had heard that Mr. Lee attended Mr. Goddard’s wedding.

41Mr. Lee acknowledged that he attended Mr. Goddard’s wedding in 2008 which coincided with a time when they were working on the same team. He estimated that 15 to 20 CBSA employees were among the guests at the wedding. Similarly, when Mr. Lee married in 2005, he invited approximately 16 colleagues, including Mr. Goddard.

42Mr. Lee attended the bachelor party held in Las Vegas prior to Mr. Goddard’s wedding. He testified that Mr. Goddard invited those of his work colleagues who had been invited to the wedding and a group of them arranged to travel together and attend the event.

Mr. Goddard’s attendance at Control and Defensive Tactics Training

43The complainant stated that he had received information that both Mr. Lee and Mr. Goddard were scheduled to attend the same Control and Defensive Tactics (CDT) recertification course during December 2011 while the assessment of candidates in the appointment process was underway. The complainant thought it was unusual that Mr. Goddard would be recertifying because he was then working as an FB‑04 employee in CBSA’s Trade and Compliance unit where he did not require CDT certification. The Statement of Merit Criteria for the appointment process does not require CDT certification for appointment to the position.

44Mr. Lee confirmed that he was scheduled to attend CDT recertification training at that time. An email advising him of the course dates listed the employees who would attend and it included Mr. Goddard. Mr. Lee stated that he was not involved in the decision to send or schedule Mr. Goddard for training. He stated that an employee’s manager must approve CDT training and Mr. Goddard did not report to Mr. Lee or anyone at VIA at that time. Mr. Goddard’s manager at CBSA’s Trade and Compliance office held the authority to approve his training and attendance at CDT in December 2011.

45David Langlands, a BSO and a chief union steward at VIA, testified that a member told him that Mr. Goddard was scheduled to attend CDT recertification. Recertification is required every three years. He had no information about the approval of Mr. Goddard’s attendance or the reasons behind the decision. However, he felt that the appearance of a candidate in the appointment process attending CDT recertification training was an issue. He believed that the training opportunity should have been given to a uniformed FB-03 who needed the training rather than to Mr. Goddard who did not require it. Mr. Langlands testified that he objected on behalf of the union and later was advised that Mr. Goddard would not be attending.

46Mr. Morris testified that in 2011 Mr. Goddard requested a demotion from the FB‑04 position to an FB-03 BSO position at VIA. Mr. Morris stated that there is a constant need for FB-03s at VIA and they required CDT certification. He knew that Mr. Goddard was dissatisfied in the FB-04 position. He believed that one reason for requesting a demotion was the potential for greater earning capacity in the FB‑03 position due to shift premiums and overtime, neither of which were available in the FB-04 position.

Travel to Las Vegas with Ms. Yan

47The complainant testified that he knew that Ms. Yan and Mr. Lee travelled together to Las Vegas in 2008 because Mr. Lee told him in the exchange of information that he had been in Las Vegas with her.

48Mr. Lee denied that he had ever told the complainant that he went to Las Vegas with Ms. Yan. In 2008 he was in Las Vegas with a group of his colleagues. While there, they met a group of CBSA employees from another district and Ms. Yan was travelling with this group. The two groups attended an evening event together.

Other evidence

49The complainant suggested that Mr. Lee may have been at Mr. Goddard’s cottage.

50Mr. Lee denied that this had ever occurred. Further, Mr. Lee stated that neither Mr. Goddard nor Ms. Yan has ever been to his home and he has never been to their homes.

51Mr. Lee testified that he has known Mr. Goddard and Ms. Yan as work colleagues since they started working at VIA in 2001 or 2002. While they may see one another at social events attended by other work colleagues, he has never developed a personal relationship with either of them. Other than the weddings described above, they do not attend one another’s family functions or celebrate milestones such as birthdays together. He denied the allegation that they are close friends.

Finding with respect to personal favouritism

52The Tribunal finds no evidence, actual or circumstantial, that suggests personal favouritism toward Mr. Goddard or Ms. Yan.

53With respect to Mr. Goddard, it has been established that Mr. Lee and Mr. Goddard attended one another’s weddings and that Mr. Lee attended Mr. Goddard’s bachelor party. On each occasion, they attended as a member of an invited group of CBSA co-workers. There is no evidence that they were singled out for special duties or responsibilities on any of these occasions, which occurred approximately three and six years prior to the start of the appointment process.

54The proper context for the events referred to by the complainant is the social environment described in the evidence of Mr. Bishop, Ms. Goodman, Mr. Morris and Mr. Lee. The workplace culture of CBSA at VIA includes extensive employee contact in social gatherings outside the workplace. This interaction is commonplace, according to the witnesses. Evidence which isolates individual events without acknowledging the greater context may be misleading.

55The complainant has failed to establish that the participation of either Mr. Lee or Mr. Goddard in these activities was something other than collegial participation in social events.

56The complainant has failed to demonstrate a link to an allegation of abuse of authority in the scheduling of Mr. Lee and Mr. Goddard for CDT recertification. Mr. Lee had no authority to approve Mr. Goddard’s attendance at the course. Neither has it been shown whether Mr. Goddard actually attended CDT recertification, particularly after Mr. Langlands received assurances that he would not. Further, the complainant has failed to demonstrate any connection between acquiring CDT recertification and the appointment process.

57With respect to the suggestion that Mr. Lee and Ms. Yan travelled together to Las Vegas, the evidence shows that this assertion is incorrect. Mr. Lee stated that they were in Las Vegas at the same time with two separate groups of CBSA employees whose trips overlapped or coincided. This is far different from travelling together, as the complainant alleged, and it does not suggest a personal relationship of a kind that might influence selection on some basis other than merit.

58The Tribunal finds that the complainant has not established that personal favouritism influenced the appointments of Mr. Goddard and Ms. Yan. While the complainant asserted that they had close personal relationships with Mr. Lee, he failed to demonstrate that this is factual. The incidents on which he relied, when viewed in context, are not sufficient to support a finding of personal favouritism.

59The Tribunal concludes that the complainant has failed to prove the allegation of personal favouritism.

Finding with respect to bias

60The Tribunal finds no evidence of actual bias on the part of the assessment board. The Tribunal must, therefore, determine whether the evidence is sufficient to support an allegation of reasonable apprehension of bias.

61In Denny at para. 125, the Tribunal referred to Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369, [1976] S.C.J. No. 118 (QL), which sets out the test for reasonable apprehension of bias at p. 394 (S.C.R.):

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

62The Tribunal in Denny also referred to the more recent expression of the test as set out in Newfoundland Telephone Company v. Newfoundland (Board of Commissioners of Public Utilities, [1992] 1 S.C.R. 623, [1992] S.C.J. No. 21 (QL) at para. 22 (QL), and applied it to the circumstances of that complaint. Based on the jurisprudence, the test for reasonable apprehension of bias in a staffing complaint can be formulated as follows: Would a reasonably informed bystander looking at the process reasonably perceive bias on the part of one or more of the persons involved in the assessment of the complainant? See Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 0010.

63As noted above, it is well-established in evidence that social interaction among CBSA team members at VIA is common. Mr. Lee acknowledged that he has worked with hundreds of employees at VIA and has socialized with them as workplace colleagues. The weddings, the bachelor party, and crossing paths in Las Vegas occurred years before the appointment process and were attended by many other CBSA employees from VIA. The evidence does not suggest that Mr. Lee has a stronger or closer relationship with Mr. Goddard or Ms. Yan than any other employee at VIA. When viewed against this contextual background, a reasonably informed bystander would not perceive bias on the part of Mr. Lee toward the appointees.

64Accordingly, the Tribunal finds that the complainant has not proven the allegation of bias.

Decision

65For these reasons, the complaint is dismissed.

Joanne B. Archibald
Member

Parties of Record

Tribunal File:

2012-0056

Style of Cause:

Dean Tajitsu and the President of the Canada Border Services Agency

Hearing:

August 13-14, 2013
Vancouver, British Columbia

Date of Reasons:

September 27, 2013

APPEARANCES:

For the complainant:

Roxane Gunning

For the respondent:

Karen Clifford

For the Public
Service Commission:

Trish Heffernan