Date: 20210413

Files: 566-02-8818 and 10674

 

Citation: 2021 FPSLREB 38

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

COREY NASH

Grievor

 

and

 

TreaSury Board (CORRECTIONAL SERVICE of CANADA)

 

Employer

Indexed as

Nash v. Treasury Board (Correctional Service of Canada)

In the matter of individual grievances referred to adjudication

Before: David Olsen, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievor: Pamela P. Sihota, counsel

For the Employer: Caroline Engmann, counsel

Heard at Edmonton, Alberta,

July 3 and 4, 2019, and by videoconference on December 1 to 4, 2020.

REASONS FOR DECISION

I. Individual grievances referred to adjudication

[1] Corey Nash (“the grievor”) is a parole officer employed by the Treasury Board (Correctional Service of Canada) (“CSC”) in Edmonton, Alberta. He has been with the service for 22 years.

[2] He referred to adjudication two grievances in which he alleges that he suffered discriminatory treatment while working for the service.

A. The first grievance

[3] The first grievance relates to Mr. Nash’s removal as a member of a board of inquiry (BOI) in 2011 without prior discussion with him. The inquiry was to take place at the CSC’s Stony Mountain Institution (“Stony Mountain”), located 13 km north of Winnipeg, Manitoba. Mr. Nash had worked there before he went to work in Edmonton.

[4] He alleges that the decision to remove him from that BOI was made on the basis of a “perceived mental disability” that was related to an incident in 2000 when he worked at Stony Mountain. He claims that the decision contravened the no-discrimination article of the relevant collective agreement and the provisions of the Canadian Human Rights Act (R.S.C., 1985, c. H-6; CHRA).

[5] He does not claim that he suffers from a disability. Rather, he claims that the decision to remove him was based on a discriminatory assumption about the state of his mental health that is a “perceived” disability.

[6] The employer argues that the grievance should be dismissed as there was no contravention of the collective agreement or the CHRA. It contends that Mr. Nash did not establish a prima facie case based on a “perceived disability”.

[7] It states that the decision to remove Mr. Nash from that BOI was based on a concern for his welfare as well as its interests, as he had undergone a life-threatening experience while employed at Stony Mountain in 2000, which caused him to suffer from post-traumatic stress disorder (PTSD).

[8] From the employer’s perspective, it would have been unwise to put the grievor in that environment. The decision to remove the grievor from the BOI was motivated purely by the employer’s due diligence. It offered to restore him to the BOI. He declined, claiming that the damage had been done as he had been humiliated.

[9] By way of remedy, Mr. Nash seeks a declaration that he was discriminated against on the basis of a perceived mental disability. He also seeks damages under ss. 53(2)(e) and 53(3) of the CHRA.

B. The second grievance

[10] The second grievance is related to alleged discrimination because of the grievor’s self-identification to the employer of his Métis background and the subsequent impact on his career advancement.

[11] Mr. Nash alleges that after he self-identified as Métis in 2000 for the purpose of participating in an aboriginal Career Assignment Program (CAP), his career effectively stalled, despite the great deal of experience that he had acquired over the years as well as his consistent efforts to engage the employer in discussions about meaningful development to advance his career.

[12] The culmination of events that led him to file this grievance was receiving information that two of his colleagues in Calgary, Alberta, had been appointed to positions on an acting basis as area directors. They were not qualified as they had failed in the appointment processes for the positions, which Mr. Nash had expressed an interest in filling. He alleges that because of his Métis background, he was not accorded the same opportunity to occupy either position on an acting basis as had his colleagues.

[13] The employer denies discriminating against Mr. Nash on the basis of his race and states that it has supported his career aspirations through taking significant steps.

[14] The employer claims that Mr. Nash did not have an open mind in terms of management support. His position is that he was entitled to be appointed to executive positions without a staffing process or an assessment.

[15] The listed corrective measures in both grievances are almost identical.

[16] I will deal with the grievances in the chronological order in which they were filed.

II. The first grievance

A. Introduction

[17] Did the employer contravene the no-discrimination article of the collective agreement and the CHRA by discriminating against the grievor, due to its perception that he was suffering from PTSD, when it removed him from the BOI?

B. Witness: Mr. Nash

[18] Mr. Nash had been nominated and selected to participate as an investigator for a BOI into incidents that occurred at Stony Mountain in 2011. He had received training in that role. He had been nominated as he had experience in the institution and in the community as a parole officer and as he is an indigenous person.

[19] The BOI investigated incidents that happened at Stony Mountain and in the community involving death or injury and harassment. The BOI was convened to discover the facts of the incidents to help eliminate similar events in the future.

[20] Normally, a BOI is composed of a chair, a person from the community, and an expert in corrections or case management. The chair was to be an investigator with years of experience. Mr. Nash would have been the case-management expert, based on his knowledge of and experience in institutional case management.

[21] He was provided with the convening orders to launch the inquiry and had booked his travel to Winnipeg.

[22] The day after he booked the travel, he received an email advising him that he had been removed from the BOI. No explanation was supplied.

[23] He was shocked. No rationale was provided.

[24] He emailed Lesley Strelioff, a manager, and asked if she could advise him of the rationale. He stated that he received no response. He was patient and somewhat excited about why he was removed.

[25] He telephoned her. She advised him that he would be traumatized if he took the assignment. She also advised him that an alternate local or national investigation would be a better fit. He asked her to put it in writing.

[26] When she stated that he would be traumatized, he knew that management was referring to incidents that happened at Stony Mountain between 2000 and 2002.

[27] Many times, offenders at Stony Mountain threatened his safety. Complaints had been made against him. The situation culminated in an offender that he was supervising placing a contract hit on his life.

[28] As a result of the incidents, he was assessed with PTSD. He went on injury-on-duty leave from 2002 until 2004.

[29] He started working in Edmonton under a memorandum of understanding he entered into with his employer in 2004. He stated that he was fully fit to work.

[30] Hearing the reference to being traumatized brought it all back to him.

[31] He felt that the decision was discriminatory as management referred to incidents that had occurred 10 years earlier that he had put behind him in the memorandum of understanding. It was being rubbed in his face. When it said that he would be traumatized, he knew it meant a psychological or psychiatric mental illness.

[32] After he complained, Jan Fox, the district director, spoke to him and advised him that the employer would reappoint him to the Stony Mountain BOI.

[33] He declined. He felt that it was an affront. He had already been humiliated, and the reference to him being traumatized was being used against him to imply that he was not psychologically fit for this BOI.

[34] Putting him back on the BOI would not resolve the issue.

[35] He was asked if he participated in any other BOIs after that. He stated that he has not been offered a part in one since then.

1. Cross-examination

[36] During cross-examination, Mr. Nash acknowledged that Stony Mountain would have been informed of his appointment to the BOI and that a notice would have been posted there providing the particulars of the inquiry, on the back of which would have been the BOI members’ names.

[37] Once the notice was posted, anyone passing the posting areas would have known that Mr. Nash was on the BOI.

[38] He was asked how long the BOI was to take. He believed three weeks to a month.

[39] It was pointed out that when he talked about his removal, he mentioned recalling past events and became somewhat emotional. When he was asked why he declined to participate in the BOI, he stated that the harm had already been done. He was asked what that meant.

[40] Management did not offer him an apology for suggesting that he would be traumatized.

[41] Ms. Fox offered to reappoint him to the BOI; yet, he declined.

[42] He was asked if the reason he declined was because no retraction had come. He replied “No,” and stated that it was because management had already embarrassed and humiliated him.

[43] He was asked where the humiliation arose from as only a few were privy to the information.

[44] During the phone call with Ms. Strelioff, he did not know who was involved in the process.

[45] He agreed that he made assumptions about the scope of the communication about his removal from the BOI.

[46] He was asked to confirm that based on his assumptions, he decided to stay off the BOI. He replied that he did so because he had been humiliated and embarrassed.

[47] The following is the exchange of emails on September 14 on the subject of his removal from the BOI.

[48] At 8:02 a.m., Monia Campeau of National Headquarters emailed Mr. Nash that she had just been advised that he would “… not [be] participating to this BOI therefore [she would] not proceed with the Travel Authority …”.

[49] Later, at 8:53 a.m., Mr. Nash emailed this to Ms. Strelioff: “Monia just advised that I am not participating in this BOI. Can you please advise of the rationale?”

[50] He then emailed her this at 9:25 a.m.:

As per the email from Ms Campeau this morning and as per our conversation this morning you have advised, correct me if I am wrong, the decision was made presumably yesterday that my work is considered very good but that I may be traumatized returning to SMI for this particular BOI and that an alternative BOI either local or national that I can participate in as an instigator may be a better fit for me? I am very concerned that any discussion or decision with respect to my well being did not involve my participation.

I have requested that you advise me in writing of the rationale for this decision as well as to include all of the decision makers involved in this process. I am respectfully requesting that you reply to me with this information before the end of the working day today 11Sep14 so any possible details in your response are not overlooked due to an untimely delay. Your time and attention to this is greatly appreciated.

I have cc’d to [sic] Commissioner Head and Ms. LePage as I am concerned that any untimely or unreasonable delay will compromise the integrity of this decision and/or the decision makers.

[Emphasis in the original]

 

[51] At 12:37 p.m., Brenda LePage, the regional deputy commissioner in the CSC’s Prairie Region, emailed this to Ms. Strelioff and others: “Please don’t respond to this. I have discussed with the Commissioner and will follow up personally and advise you of [sic] outcome.”

[52] At 1:49 p.m., Ms. LePage emailed this to Ms. Strelioff and others: “After his mgr (Lori Louhela) sits down with him tomorrow. [sic] She or Jan will call you with the results. We will either put him back on this BOI if that’s his choice or assign him to an alternate BOI.”

[53] On September 15, 2011, Ms. Fox emailed this to Lynn Garrow, another manager: “Corey will NOT be on the board. He declined”.

2. Continuation of cross-examination

[54] Mr. Nash was referred to his email of September 14, in which it was noted that he had copied the commissioner, Mr. Head, and Ms. LePage and that actually, he had expanded the scope of the dissemination of the information.

[55] He was placed on injury-on-duty leave on February 5, 2002. He had left Stony Mountain after his personal information had been posted at Stony Mountain. He was not diagnosed with anything at that time.

[56] He was asked whether when he was diagnosed with PTSD, he had researched it. He stated that he was certain that he had educated himself and that he has done so even more as of now.

[57] He was asked if his condition can be triggered or if he could be retraumatized and if he had heard that phrase (“retraumatization”). He stated that he was sure that he had heard it. He stated that he thought of the fight-or-flight response. That is how he came to work with elders for healing, in terms of focusing on what is important.

C. Witness: Ms. Fox

[58] Ms. Fox had a poor recollection of the events in question but did recall Mr. Nash being removed from BOI.

D. Witness: Ms. LePage

[59] Ms. LePage recalled Mr. Nash’s grievance in general terms that referred to his removal from a BOI.

[60] The BOI’s parameters were established as investigating a significant security threat that included a riot and a death in the community by a parolee who had caused significant harm.

[61] The BOI was event-driven. The situation report detailed the incidents that occurred over a 24-hour period. This was the first indication that it might be necessary to convene a BOI.

[62] The decision making with respect to convening a BOI is based at the CSC’s National Headquarters under the commissioner’s directive. She referred to the CSC’s commissioner’s directive relating to incident investigations and dated November 2010.

[63] Sections 6 and 7 of that directive set out the parameters of the commissioner’s responsibility to convene an investigation. Particularly, section 7 provides that an investigation shall be convened when an inmate dies or suffers serious bodily injury.

[64] Sections 27 through 34 deal with the composition of BOIs. CSC staff on them must be trained in conducting incident investigations. Investigations convened by the commissioner must always include at least one community member on the BOI. A pool of community members serves on a rotational basis.

[65] If a BOI was convened in her region, Ms. Fox’s role would be to ensure that it had the necessary resources to conduct its business. She would receive a debriefing and would be a member of a national committee that would review the BOI’s recommendations to the deputy commissioner and the commissioner.

[66] She was asked if she recalled when she learned of Mr. Nash’s appointment to the BOI. She stated that it would not be normal for her to know who had been appointed to a BOI. She did not know who brought it to her attention.

[67] When she became aware that Mr. Nash had been appointed to the BOI, she had concerns. She knew that he had been involved in an incident at Stony Mountain. She was aware that a settlement had been reached to which she had not been privy.

[68] Removing Mr. Nash from the BOI was not within her authority, and she called her counterpart at National Headquarters to express her concerns.

[69] Mr. Nash was removed from the BOI.

[70] She was referred to the Public Service Staffing Tribunal’s (PSST) decision in Nash v. Commissioner of the Correctional Service of Canada, 2014 PSST 10, in which Mr. Nash complained of an abuse of authority under s. 77 of the Public Service Employment Act (S.C., 2003, c. 22, ss. 12, 13) concerning his elimination from an internal advertised appointment process.

[71] Ms. LePage, who then was the regional deputy commissioner, screened the applications in this appointment process. Mr. Nash was screened out of as she determined that he did not meet two of the experience qualifications. He claimed that she discriminated against him on the basis of his race. As evidence, he relied on her role in recommending his removal from the BOI at Stony Mountain in 2011.

[72] Ms. LePage was referred to paragraph 34 of the decision, which recites as follows the evidence she gave before the PSST:

[34] With respect to the 2011 BOI at Stony Mountain Institution, Ms. LePage testified that she was aware beforehand that the complainant wanted to participate on a BOI. She became concerned when she found out that he was being considered for this particular BOI because she knew the complainant had worked there earlier. In addition, she knew that the settlement agreement between the complainant and the respondent was based on events that happened during that time. She felt that it would not be positive for him to return to the site of a stressful experience. Further, she was concerned about the potential for a claim of bias or perception of conflict of interest that might be made against the CSC based on his participation on a BOI at Stony Mountain Institution. She felt that it would be in everyone’s best interest to assign him to a different investigation. As BOIs did not fall under her authority, she contacted the Incident Investigation Branch to share her concern.

 

[73] She was asked whether she stood by her testimony. She replied that she did.

[74] The PSST concluded as follows at paragraph 55:

[55] In the present case, no evidence other than the complainant’s own assertion was led to support his allegation that his race was a factor in the treatment of his candidacy or the decision to screen him out of the appointment process. Accordingly, the Tribunal finds that the complainant had not established a prima facie case of discrimination based on race.

 

[75] Ms. LePage had concerns for Mr. Nash if he returned to Stony Mountain.

[76] She had felt that it was in everyone’s best interests that Mr. Nash be assigned to a different BOI. She stated that she asked the staff to do it. She had no intention that he not be permitted to participate in future inquiries. She left the service in 2014.

1. Cross-examination

[77] Ms LePage had raised concerns about Mr. Nash. It was not within the scope of her authority to remove him from the BOI.

[78] She was asked whether the decision was based on medical evidence. She stated that it was not, as far as she was aware. Her knowledge was more general. She was aware of an incident at Stony Mountain that had caused her concern. A memorandum of agreement had been entered into resolving issues arising from his going on injury on duty leave in 2002. In 2004 the grievor was transferred to Edmonton. It was a significant event. He could no longer work at Stony Mountain. In her view, it was not in Mr. Nash’s best interests, and one point of view was that he might not have been perceived as objective. That is not to say that he would not have been objective.

[79] She left it in the local hands of colleagues as to whether to decide to allow him to stay on the BOI or to remove him and assign him to another one.

[80] She was asked whether the possibility of a perception of bias was discussed with him. She stated that that possibility was not discussed with him. She was not the decision maker or the authority. She presented her concerns. It was up to local management to make the decision and to communicate with Mr. Nash.

[81] She raised concerns about the specific BOI because he had had a harmful experience at Stony Mountain. There was no intent to embarrass him and no negative intent. It was to protect the process and Mr. Nash. It related only to Stony Mountain.

E. Summary of the submissions

1. For the grievor

[82] The grievor’s removal from the BOI was discriminatory on the prohibited ground of a perceived mental disability.

[83] When on September 6, 2011, he was asked to participate in the BOI at Stony Mountain, he was well aware of the institution. He accepted the assignment.

[84] When he was about to make his travel arrangements on September 13, 2011, he was informed that he was no longer participating on that BOI.

[85] Mr. Nash’s removal came as a shock to him. He was upset because he had fought to be appointed to a BOI and was being removed without any reason or rationale.

[86] After that, he phoned Ms. Strelioff to ask why he had been removed. He was told that he would be traumatized if he participated on the BOI and that doing so would not be in his best interests.

[87] Later, he learned through the PSST complaint process that Ms. LePage had recommended to her counterpart at National Headquarters that Mr. Nash be removed from the BOI because she did not think that staying on it would be in his best interests and that bias could be inferred if he played a role in that inquiry. She did not make herself aware of the events at Stony Mountain before she raised her concerns with National Headquarters; nor did she reach out to Mr. Nash to discuss her concerns.

[88] The decision to remove Mr. Nash on the basis that being on the BOI would impact his well-being was not made on the basis of medical advice.

[89] Mr. Nash explained that this experience was humiliating. He knew that when the employer rationalized his removal based on his well-being and stated that he would be traumatized, it was referring to his mental health, based on the incidents that occurred in 2000 to 2002, while he was at Stony Mountain. At that time, he was diagnosed with PTSD and was forced to go on injury-on-duty leave which ultimately led to his relocation to Edmonton.

[90] While the employer offered to reinstate Mr. Nash to the BOI, the damage had been done. He declined because the impact of being removed was too much, as the employer had already embarrassed and humiliated him.

[91] Mr. Nash felt that the Stony Mountain incident should have been put behind him and that it was being used against him. Reinstatement to the BOI would not have relieved the pain caused by the initial removal. He also testified that he has not since been offered an opportunity to participate in another BOI.

[92] In the decision Québec (Commission des droits de la personne et des droits des la jeunesse) v. Montréal (City), 2000 SCC 27, of the Supreme Court of Canada, the definition of “disability” is expanded to include a perceived disability. The Court stated as follows at paragraph 76: “… the ground ‘handicap’ must not be confined within a narrow definition that leaves no room for flexibility.” And earlier, “A handicap may be real or perceived …”.

[93] The Canadian Human Rights Tribunal’s decision in Dumont v. Transport Jeannot Gagnon, 2002 CanLII 5662, is an example of that tribunal concluding that an employer discriminated against an employee on the basis of a perceived disability.

[94] Ms. LePage’s recommendation to remove Mr. Nash from the BOI and the subsequent decision to in fact remove him was based on a perceived mental disability, his earlier PTSD diagnosis. The employer’s decision was made without medical evidence. It was determined that it was not in Mr. Nash’s best interests to participate, even though he was aware of the location before he agreed to be on that BOI .

[95] Ms. LePage and the employer made the determination based on his mental well-being. Management never saw fit to talk to Mr. Nash about it.

[96] Ms. LePage mentioned that potentially, a claim of bias based on a conflict of interest could have been made had Mr. Nash remained appointed to the BOI. This concern holds less weight than what the employer termed was Mr. Nash’s well-being because it offered to reassign him to the same BOI.

[97] Even if the perception of bias is a legitimate concern, in Kirby v. Treasury Board (Correctional Service of Canada), 2015 PSLREB 41 at para. 129, Board Member Shannon stated that it is not necessary that the discriminatory consideration be the sole reason for the employer’s action. The grievor has only to demonstrate that one of the factors in the decision was a discriminatory consideration. The decision to remove Mr. Nash from the BOI was based on a prohibited ground.

2. For the employer

[98] The first grievance is dated October 2011.

[99] That discrimination was based on an alleged perceived disability. This grievance is based on article 19 of the collective agreement, which is the no-discrimination article.

[100] Mr. Nash was provided specific training on being a BOI member. He had expressed an interest, and the employer provided him training. No matter the capacity in which he was working, he did not have a right to become a BOI member.

[101] Ms. LePage provided evidence that such investigations are mandated under statute and are implemented through a commissioner’s directive. That is how they are set up. The training is developmental, as outlined in the relevant directive.

[102] Once he received the training, his name was put on a list and was drawn from it.

[103] His name was sent to National Headquarters, which decides whom to appoint to a BOI. He was appointed on September 8, 2011, and was identified as a member of the BOI.

[104] Ms. LePage was informed. She had two concerns. Her first was that as a result of certain incidents at Stony Mountain, following which Mr. Nash developed PTSD, he was removed from that environment. The second was that the employer was sending someone with PTSD into the environment that had led to the PTSD. That is how she left it.

[105] The decision was made that it was not in the interests of Mr. Nash and the employer to place him into a situation that might possibly affect him negatively.

[106] The employer must exercise due diligence with respect to employee safety.

[107] The investigation related to an offender under statutory release who had committed serious offences in the community. Mr. Nash was to be put into that environment. The reason he had to be removed from Stony Mountain was that an offender had put a contract hit on him. His life had been threatened.

[108] That is the relevant context. The employer’s decision not to send him into that environment was far from discriminatory.

[109] Ms. LePage was also concerned about the integrity of the investigation. The fact that the decision to remove Mr. Nash from the BOI was linked to him returning to Stony Mountain was not an act of discrimination.

[110] There is no evidence that at the relevant time, Mr. Nash no longer suffered from PTSD. The employer acted responsibly and reasonably.

[111] In 2017, the Board dealt with a reprisal complaint that Mr. Nash made under s. 133 of the Canada Labour Code (R.S.C., 1985, c. L-2; CLC) in November 2014, in which he alleged that he had received threats from his employer after he had invoked his right to refuse unsafe work; see Nash v. Deputy Head (Correctional Service of Canada), 2017 PSLREB 4.

[112] The basic facts are set out as follows at paragraphs 8 and 9 of the decision:

[8] The circumstances that gave rise to the grievor’s complaint had to do with an offender who had been convicted of manslaughter. The offender had been on day parole before he was released into the community. Within a week, he had violated the conditions of his release twice and had been returned to the institution on the grievor’s recommendation until he reached the point at which he was given a statutory release. During the week that the grievor supervised the offender, the grievor found the offender accommodation at a residential facility in the Edmonton area as the grievor had concluded that the offender posed a risk to his home community. A week later, the offender was apprehended in his home community in an impaired state and was returned to the institution on the grievor’s recommendation.

[9] On his next statutory release, the offender was assigned to the grievor’s caseload.…

 

[113] Mr. Nash expressed concerns that because he had recommended revoking the offender’s parole rather than recommending his admission to a residential treatment centre, the offender would pose a threat to his safety were he reassigned to Mr. Nash’s caseload. The offender had acted out of revenge while under the influence of intoxicants, which had led to his incarceration. It was shown that the offender did not abstain from intoxicants. Mr. Nash preferred to avoid the possibility of becoming the target of the offender’s need for revenge.

[114] In the month after he exercised his right to refuse unsafe work, Mr. Nash was assigned three more offenders who had had their paroles revoked. When the second offender arrived at the parole office, Mr. Nash again advised his employer that he was exercising his right to refuse unsafe work on the basis that he believed that the offender had demonstrated a clear spirit of strong hostility towards him.

[115] The offender was reassigned to a different parole officer. While Mr. Nash appealed the first ruling, the employer did not assign him any more offenders who had had their paroles revoked. Ultimately, Labour Canada ruled that Mr. Nash was not in danger, and the Board dismissed his reprisal complaint.

[116] Essentially, the employer took that precaution when it withdrew the grievor from the BOI. Mr. Nash recognized the risk involved with such offenders.

[117] There was no evidence before the Board that he no longer suffers from PTSD.

[118] Had it been mistaken, and if the assignment would not adversely impact his health, the employer offered to reassign him to the BOI. He declined. His explanation is curious. He stated that the damage had been done and that he was humiliated, so he declined the offer.

[119] That explanation does not answer the employer’s concern. The employer felt that he might be retraumatized if placed in that environment. The Board does not have the evidence necessary to find fault with the employer’s position that putting Mr. Nash back into Stony Mountain would not have triggered his PTSD.

[120] Had he stated that he would still go to Stony Mountain and prove the employer wrong, it would have been evidence to establish that he was removed on the basis of a perceived disability.

a. The employer’s submissions on the law

[121] In Nash, the decision maker clearly accepted Ms. LePage’s testimony, which is reproduced at para. 72 of this decision. Mr. Nash had contended that his removal from the BOI constituted bias and was an abuse of authority. The PSST determined that his removal did not demonstrate bias.

[122] The PSST found that the evidence did not demonstrate an actual bias and then went on to determine whether the evidence was sufficient to constitute an allegation of a reasonable apprehension of bias.

[123] At paragraphs 39 and 41, the PSST stated as follows:

39 … Ms. LePage was acting within the scope of her responsibilities as a Deputy commissioner. She explained the actions she took and the Tribunal is not persuaded that she acted unreasonably or that there was a reasonable apprehension of bias against the complainant arising from those occurrences.…

…

41 The tribunal therefore finds that the complainant has failed to prove on a balance of probabilities either actual bias or a reasonable apprehension of bias on the part of Ms. LePage.

 

[124] Although the Board is not bound by precedent, it should apply this finding unless it finds compelling reasons to depart from it. The principles of res judicata and issue estoppel should also apply. The parties are the same and the issue is the same, although there is some nuance. However, the bias aligns with a perceived disability.

[125] The decision in Rubbermaid Canada v. CAW-Canada Local 252, 2004 CarswellOnt 3232, speaks to PTSD and alleged discrimination by an employer. At paragraphs 76 to 82 is a discussion about an employee who suffered from that disorder. An employer cannot put an employee at risk and must take reasonable steps to accommodate the employee.

[126] On the flipside, had Mr. Nash been sent to Stony Mountain and had something happened, this would be a case of a failure to accommodate.

[127] By way of analogy, an employer has an obligation to exercise due diligence when certain consequences are reasonably foreseeable.

[128] When all the relevant facts leading to Mr. Nash’s removal from the BOI are reviewed, it is found that he failed to establish a prima facie case of discrimination on the basis of a perceived disability. In any discrimination case, the grievor is obliged to establish a prima facie case by setting out (1) that he or she has a condition that is protected, (2) that the employer made a decision based on that particular condition, and (3) that the grievor suffered consequences as a result of the employer’s decision.

[129] Missing is the fact that the grievor did not establish the first requirement. The employer agrees that a perceived disability may constitute a disability.

[130] It has been established only that the grievor suffered from PTSD and that the employer protected him.

[131] If the Board accepts that the employer was wrong in removing Mr. Nash from the BOI, discrimination would still not be made out, as the employer attempted to repair any damage, and the grievor voluntarily refused to participate. He had an obligation to participate in the accommodation process. There was no discrimination.

[132] It was argued that since Mr. Nash was removed from the BOI, no other such opportunities have been offered him. There is no evidence that there have been BOIs convened since that time to which he expressed an interest in being appointed.

3. The grievor’s reply

[133] The facts in the 2017 case under the CLC involving Mr. Nash should be distinguished from the facts in this case. There is no parallel between the conclusions of the case in the circumstances of 2015 and the completely different set of facts that occurred in 2011.

F. Analysis

[134] The Public Service Alliance of Canada (“the bargaining agent”) contends that the employer contravened the no-discrimination article of the collective agreement and the CHRA by discriminating against Mr. Nash on the basis of a perceived disability when it removed him from the BOI.

[135] To prove that an employer engaged in a discriminatory practice, the complainant must first establish a prima facie case of discrimination. In this context, such a case covers the allegations made, and if they are believed, it is complete and sufficient to justify a verdict in the complainant’s favour, in the absence of an answer from the employer (see Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 SCR 536 at para. 28).

[136] In Moore v. British Columbia (Education), 2012 SCC 61, the Supreme Court of Canada stated at paragraph 33 as follows:

[33] As the Tribunal properly recognized, to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. Once a prima facie case has been established, the burden shifts to the respondent to justify the conduct or practice, within the framework of the exemptions available under human rights statutes. If it cannot be justified, discrimination will be found to occur.

 

[137] The bargaining agent argues that the decision to remove Mr. Nash from the BOI was based on a discriminatory assumption that he had a perceived mental disability, which was related to an incident that occurred when he worked at the Stony Mountain in 2000.

[138] The employer argues that there is no evidence before the Board that Mr. Nash had recovered from the PTSD caused by the events at Stony Mountain in 2000 when an offender that he was supervising placed a contract hit on him. He then went on injury-on-duty leave until 2004. After that, he was transferred from the Stony Mountain environment to Edmonton parole head office.

[139] Did the bargaining agent establish a prima facie case of discrimination?

[140] It is not in dispute that Mr. Nash suffered from PTSD after the Stony Mountain incidents in 2000 and that he then went on injury-on-duty leave for four years.

[141] Nor is it in dispute that in 2004, when he returned to work, he was transferred from Stony Mountain in Winnipeg to Edmonton parole.

[142] Mr. Nash testified that he started working at Edmonton parole under a memorandum of understanding that he entered into in 2004. He stated that he was fully fit to work.

[143] Given the context of his grievance, he was asked why he felt that the decision to remove him from the BOI was discriminatory. He stated that in September 2011, management referred to incidents that had occurred 10 years earlier, which he had put behind him.

[144] He stated that hearing the reference to having been traumatized brought it all back to him.

[145] Based on the grievor’s evidence, I am not persuaded that the bargaining agent met its onus to establish a prima facie case. The question of Mr. Nash’s previous and current mental health and its connection to the alleged adverse treatment based on a perception of disability were not sufficiently addressed in the testimony other than to say that he had put the Stony Mountain incidents behind him.

[146] That said, even if I were to accept on a prima facie basis that the grievor’s previous PTSD were a factor in the employer’s decision to remove him from the BOI, weighing all of the evidence on a balance of probabilities, I would also find that the employer presented evidence to refute the grievor’s allegations discrimination.

[147] The adverse impact claimed to have been suffered by the grievor is his removal from the BOI and the embarrassment and humiliation that this caused him. According to the grievor, he knew that when the employer rationalized his removal based on his well-being and stated that he would be traumatized, it was referring to his mental health, based on the incidents that occurred in 2000 to 2002, while he was at Stony Mountain. He felt that the Stony Mountain incident should have been put behind him and that it was being used against him.

[148] While the grievor may feel that he put the incident at Stony Mountain behind him, it was not adverse or discriminatory, in and of itself, for the employer to raise the issue with grievor. The incident that occurred at Stony Mountain was a serious one: enough so that the grievor went on long-term disability and, ultimately, transferred from the institution. Given this context, it was not unreasonable for the employer to at least explore its concerns with grievor and determine whether there was any need for accommodation. As the Supreme Court of Canada stated in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l'Hôpital général de Montréal, 2007 SCC 4 at paragraph 22, “[t]hroughout the employment relationship, the employer must make an effort to accommodate the employee.”

[149] While the timing and procedure adopted by the employer to address and communicate its concerns with respect to the grievor’s participation on the BOI could have been better, ultimately, the search for accommodation is a process that is not fixed or absolute (see Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970 at p 992). In the particular circumstances of this case, I find that any adverse impact resulting from the grievor’s initial removal from the BOI was addressed by the concomitant discussion and offer to have the grievor continue with his assignment.

[150] According to the grievor, the damage had already been done at that point. The employer had humiliated him and putting him back on the BOI would not have resolved the issue. In this regard, in determining whether there has been an adverse impact, the conduct of the grievor must be considered (see Renaud at p. 994). During his testimony, the grievor agreed that he made assumptions about the scope of the communication about his removal from the BOI and he was otherwise not able to point to some tangible and measurable adverse impact beyond merely his hurt feelings. As the former Board stated in Cheung v. Treasury Board (Correctional Service of Canada), 2014 PSLREB 1 at paragraph 75, “…simple hurt feelings do not constitute an affront to one’s dignity sufficient to establish a prima facie case of discrimination” (see also Eady v. Treasury Board (Correctional Service of Canada), 2019 FPSLREB 71 at paras 107-108; and, Tahmourpour v. Canada (Royal Canadian Mounted Police), 2009 FC 1009 at para. 44, varied on other grounds in Tahmourpour v. Canada (Royal Canadian Mounted Police), 2010 FCA 192).

[151] In all the circumstances, even accepting the grievor’s prima facie allegations of discrimination, I find that the evidence does not establish that there was discrimination.

III. The second grievance

A. Introduction

[152] Mr. Nash alleges that after he self-identified as Métis in 2000 for the purpose of the aboriginal CAP, his career effectively stalled, despite the great deal of experience he had acquired over the years as well as his consistent efforts to engage the employer in discussions about meaningful developments to advance his career.

[153] The culmination of events that led him to file this grievance was when he received information that two of his colleagues in Calgary had been appointed to positions as WO-6 area directors on an acting basis. They were not qualified as they had failed in the appointment processes for the positions. Mr. Nash had expressed an interest in filling the positions. He alleges that because of his Métis background, he was not accorded the same opportunity to occupy positions on an acting basis as were his colleagues.

[154] By way of remedy, Mr. Nash seeks a declaration that he was discriminated against on the basis of his Métis background. He also seeks the maximum quantum of damages allowed under ss. 53(2)(e) and 53(3) of the CHRA.

[155] The employer states that throughout the grievor’s career management, it has acknowledged his aspirations and has taken steps to support his ambitions and progression at a level well in excess of the support offered to other employees who were similarly situated.

[156] The employer states that the grievor did not have an open mind in terms of management support. He took the position that he was entitled to be appointed to executive-level positions without a process or an assessment.

[157] Management claims that it has worked with Mr. Nash and that it made several efforts to help with his retention, advancement, and promotion in the federal public service. In particular, for 10 months, he was assigned to help with case-management strategies and to develop his skills in a management position at the Stan Daniels Healing Centre (“Stan Daniels”). The employer also paid the portion of his tuition fees not covered by the numerous scholarships he received for the courses he took for his Certificate of Aboriginal Leadership, Governance, and Management Excellence.

[158] The employer states that Mr. Nash had an ambitious personal development plan (PDP) and that as a result, it was not always possible to pay for or to offer all the training he requested because of financial and operational restraints.

[159] The employer argues that the grievor has not made a prima facie case. The elements of a prima facie case in a staffing matter are that the employee applied and was found qualified for a position, yet the employer continued to seek other candidates or hired another candidate who did not belong to one of the groups protected from discrimination under the CHRA.

[160] Mr. Nash did not even apply for the WP-6 positions.

[161] In the alternative, it argues that if he did establish a prima facie case, it has provided rebuttal evidence in terms of the training and the advancement opportunities he was provided. If the presumption is rebutted, a finding of discrimination cannot be made.

[162] Despite an adjudicator’s remedial authority, his third request is not within the Board’s jurisdiction. In that one, he asks that he be paid at the EX level from 2004 to account for his unrealized promotions.

[163] He is asking to be compensated at the EX-02 group and level. This would entail the Board making assumptions about appointments for which it does not have authority. In item 6, he requests a severance package so that he will not have to return to employment with CSC. This would constitute a remedy akin to a workforce-adjustment or severance package, for which the Board does not have jurisdiction.

[164] The employer issued a blanket objection to certain evidence on the basis of the memorandum of agreement signed in 2004 and to evidence dating in advance of 25 days before the grievances were filed. There was no objection to evidence concerning events that occurred between August 2011 and October 2013.

B. Witness: Mr. Nash

[165] His current position was that of a parole officer, level 4, working with the Edmonton Area Parole.

[166] He commenced his CSC employment in October 1997 as a correctional officer at the Edmonton Institution. He was a parole officer on an acting basis there too. He accepted an indeterminate parole officer position at Stony Mountain in 1999.

[167] In 2000, he self-identified as Métis. He states that as of then, his career progression ended.

[168] He has spent almost 3 decades in corrections. He started in 1989 as a volunteer probation officer. When he turned 18, he volunteered, so that he could accumulate experience to gain admission to college and university.

[169] He completed a bachelor of arts degree at Grant MacEwan University in Edmonton in 1993. He received an award for a project proposal to continue his education. He completed a bachelor of science in managing criminal justice at the University of Great Falls in Montana.

[170] He took courses at the University of Alberta and completed his bachelor of arts there in 1996. While finishing that degree, he commenced employment as a correctional officer and correctional service worker through Alberta Justice at the Edmonton Remand Centre, Edmonton Young Offenders Centre, and Edmonton Attendance Centre.

[171] While working as a correctional officer at the Edmonton Institution, he received an award from Alberta Justice with respect to the high-risk offender program.

[172] At the Edmonton Institution, he was nominated as the employee of the month for his correctional officer work.

[173] He commenced as a parole officer on an acting basis in administrative segregation in maximum security. He applied for and was qualified as a parole officer in 1998.

[174] He was offered an indeterminate position at Stony Mountain, where he held a parole officer position working in the general inmate population and in intake assessment.

[175] In 2000, he became aware of the CAP, which was developed for employment equity reasons. He self-identified as a Métis and was qualified through an appointment process as a high-potential aboriginal executive candidate by the Public Service Commission.

[176] Because of his self-identification and because of issues that arose at Stony Mountain, he went to Edmonton in 2004 as a parole officer. He has been a parole officer since then.

[177] He is a community parole officer. He supervises resentenced offenders in the community on day parole, on statutory release, and under long-term supervision orders. His primary function is to manage the public-safety risk and to help rehabilitate offenders so that they become law-abiding citizens.

[178] On October 4, 2013, he filed a grievance alleging that he had been discriminated against by the employer as he was not offered development and advancement opportunities during his employment with CSC.

[179] He stated that the grievance was about information he had received from his colleagues in Calgary. He was advised that some employees had been appointed as area directors on an acting basis, but they had failed their examinations.

[180] For about 10 years, Mr. Nash had been asking for an appointment as an area director on an acting basis and was advised that he would have to enter an appointment process to be considered. Then he found out that those two employees had failed the process but were appointed as directors on an acting basis.

[181] He was initially advised that those who had been appointed were on a national list. He had sent an email and had inquired about the situation.

[182] In an email dated January 7, 2013, entitled “Edmonton Area Directors”, the district director, Cindy Gee, advised the staff that two employees would continue to be in the area director role for the Edmonton parole office on an acting basis, one until February 28, 2013, and the other until March 31, 2013.

[183] He emailed the district director on January 8, 2013, inquiring about a Mr. S and whether he would be the only person working on an acting basis. He was asked whether this email had any connection to the two director assignments on an acting basis. Ms. Gee replied, indicating that Mr. S and Mr. W (both names are anonymized for the purposes of this decision) were the only ones with appointments on an acting basis.

[184] He was advised that the two employees were on a national list and that they had qualified for appointment.

[185] There were no vacant indeterminate positions at the time.

[186] On February 8, 2013, the CSC’s Human Resources section emailed all staff about an appointment process for a project officer, assessment and interventions, position.

[187] The same day Ms. Gee forwarded the notice to Mr. Nash stating, “Man…your resume is going to get a work out [sic]!!”

[188] Mr. Nash replied on March 6, 2013, to Ms. Gee, stating that he did not apply but that he was interested in WP-6 area director positions in Alberta. He stated as follows:

…

I am hoping you can help to clarify some information.

Currently [D (name redacted)], having competed, is occupying the vacant Area Director position in Edmonton for his development.

Can you tell me who are occupying the Two vacant Area Director Positions in Calgary? I understand one had qualified and the other is a developmental opportunity that I would be interested in.

What is the status of Area Directors in Red Deer?

I believe that AS-05 position in Saskatoon would have involved travel status to attend region. Calgary is much closer and I have family there as well. So I am interested in an developmental opportunity in Calgary. Please let me know what the status of those positions are.

[Sic throughout]

 

[189] Ms. Gee replied on March 6, 2013, stating in part as follows:

… I am sorry you didn’t apply [referring to the project officer assessment and interventions appointment process] I think you would have done well but I understand your reasons with your family commitments and the distance away….

As far as Calgary goes - We submitted our staffing action to indeterminately fill one of the Area Director positions in Calgary back in late November. We are currently clearing the priorities and then an offer will go out to the best fit individual out of the pool. I had expected the position to be filled indeterminately by now, but with the number of people impacted by DRAP reductions, there are priorities that have to be assessed first - depending on that process we then do a letter of offer to the best fit from the pool. Two candidates from the pool have indicated they are willing to relocate for an indeterminate position in Calgary so I am confident we will have some more stability in the South soon!!

You are correct, we have one candidate from the National pool who lives in Calgary and is acting in one of the positions. The incumbent of that position is expected back to work in April. If that situation changes and the incumbent is not expected back long term, I will again go for approval to staff indeterminately from the national pool.

Red Deer does not have a WP6 Area Director position. Red Deer falls under Calgary Rural Area Director (as well as Lethbridge, Medicine Hat, etc) [EF (name redacted)] is the WP5 for Red Deer.

I hope this answers your questions.

 

[190] Mr. Nash stated that Ms. Gee did not answer his questions. He had asked for the names of the two employees occupying the positions in Calgary.

[191] Mr. Nash had been interested in the WP-6 positions and had learned that someone had occupied one of them who had failed in the appointment process. He believed that both employees were being groomed for appointment to the WP-6 positions. He wished to be advised of the status of the area director assignments.

[192] He emailed Ms. Gee on September 16, 2013, stating in part as follows:

…

I wanted to reiterate my email below with respect to expression of interest for WP-06 acting assignments. I understand, as per our conversation, with respect to Calgary. The Vacant Area Director positions that are currently being used for development are not staffed by persons qualified at WP-06, that they in fact did not qualify in the last Area Director competition and alternating in and out of the Area Director position in Calgary. Both unsuccessful candidates are therefore being groomed as WP-06 for the next Area Director competition. Can you please confirm for me when the notice of expression of interest was sent out for these developmental assignments? As below I have expressed interest in those assignments and have previously advised you of the staff occupying that developmental assignment as not having successfully competed in the WP-06 Area Director competition you reference below. Can you please advise me as soon as possible as to the status of those A/Area Director assignments?

[Sic throughout]

 

[193] Ms. Gee replied on September 19, 2013, stating in part as follows.

…

As I shared with you during our meeting, the two indeterminate Parole Officer Supervisors who have been acting most often in the Area Director Position in the South were both in the WP6 AD/ADD competition that established the current pool. Although they were not successful, they both did extremely well and the acting assignments were identified to address the area(s) that they failed to qualify in as demonstrated during their interviews. I must also clarify that there are two additional indeterminate WP5 candidates who have also acted in the position you make reference to, one of which has since been appointed indeterminately at the WP6 level.

As I discussed with you during our meeting, I want to again encourage you to reconsider your stance to not apply for or consider acting in a Parole Officer Supervisor position. The duties and responsibilities of this position will allow you to develop, hone and demonstrate the essential qualifications for many positions at the WP 5 level and higher during competitive processes.

…

If you are interested in being considered for acting at the WP5 level please let me know and I will ensure my Area Directors are aware of your interest and that you be considered for a future acting opportunity that may become available.

 

[194] Mr. Nash stated that he now knew that those vacant positions were being staffed on an acting basis by two employees who did not qualify in the national pool. Through the Aboriginal Employee Network, a peer support network, he also knew that no aboriginal employees were represented at the WP-6 area director level at the CSC.

[195] He referred to an aboriginal employee who had been appointed as a director in Winnipeg.

[196] He stated that he was not being offered an opportunity to occupy a position on an acting basis to further his career development. The district director told him that he should consider doing so in a parole officer supervisor position.

[197] Mr. Nash did not think applying for a parole officer supervisor position on an acting basis was necessary, as he had done that at Stan Daniels. It is a “section 81” facility in which there is an agreement that the centre will operate a facility for aboriginal offenders.

[198] It is operated by Native Counselling Services of Alberta, which is a non-governmental, not-for-profit institution and one of the CSC’s closest partners.

[199] He went to Stan Daniels in September 2009, initially for a period of 3 months and 29 days. It was a minimum-security institution. He was involved in supervising up to six parole officers who were involved in institutional and community matters.

[200] After he started, he quickly realized that there was no management accountability. He trained all the staff in case-management compliance.

[201] Ms. Fox, who was the district director at that time, completed an assessment indicating that he met all the qualifications to go to Stan Daniels as a supervisor. Mr. Nash believed that all the good work he did there was not recognized.

[202] The chief executive officer (CEO), Alan Benson of Stan Daniels, approached the Public Service Commission about the outstanding work Mr. Nash was doing and requested that his appointment on an acting basis be extended for one year.

[203] The appointment ended abruptly after nine months. There was some discussion about extending it.

[204] No other developmental assignments were available. He returned to Edmonton parole. His supervisor at the time said that Mr. Nash could cover for him. No new offers arose. No performance appraisals were completed for his work at Stan Daniels.

[205] He made another complaint about his lack of career development to Rosemary Slywka under the heading “harassment/discrimination”.

[206] He emailed her on July 14, 2011, making a number of claims. His 14th claim reads as follows:

…

14) It has been 10 months since acting at Stan Daniels Healing Centre as Parole Office Supervisor for a one year period. Having met all objectives, no complaints received to my knowledge but absolutely no feed-back, positive, negative or indifferent from either NCSA or EAP with respect to my progress their or any rationale as to why no other developmental opportunities have been provided at Edmonton Parole despite several other acting opportunities repeatedly being made available to other staff. Basically I was apparently good enough to go over to a Non-Government Organization with a primary focus of addressing aboriginal issues but not good enough to be provided with bonafide developmental opportunities at Edmonton Area Parole to increase my competencies for Government Of Canada positions in management ….

…

[Sic throughout]

 

[207] By way of remedy, he sought, among other things, an immediate appointment to the WP-6 level.

[208] Mr. Nash stated that because of that complaint, he received no feedback. He stated that he was in limbo.

[209] The director at Stan Daniels carried out Mr. Nash’s performance appraisal. It is dated August 18, 2011, and reads in part as follows:

At the request of the Area Director Mr. Nash was seconded to Stan Daniels Healing Centre for three months and 29 days which was then extended for another six months, to assist with case management strategies, and to provide an opportunity for Corey to enhance his skill set in a management position.

 

[210] The review concludes with this:

For the most part, Corey was a busy case manager [sic] was always either doing file reviews, reviewing and locking reports and/or meeting one on one with the parole staff he supervised providing guidance and support.

…

It was a pleasure having Corey as part of the CMT. He shared CSC processes in most areas of case management.

…

 

[211] Under “Areas of Improvement” it is recommended that the grievor would benefit from letting go of past resentments he holds against persons he had a negative work experience with as it could hinder and pose as a barrier in the future as he does mean well and has a good heart.

[212] He was asked if he was given any other opportunities. He replied not in the form of acting opportunities.

[213] He completed the Certificate of Aboriginal Leadership, at the Banff Centre in Banff, Alberta. He was supported by management and sponsored by several organizations. He was also nominated for and selected as a trainer for parole officers. He stated that he basically trained all the staff in Alberta on R. v. Gladue , [1999] 1 SCR 68, and on the aboriginal social-history factors that the Supreme Court of Canada outlined that stand for the principle that aboriginal people do not have to prove racism in the criminal justice system.

[214] He stated that some things in his personal career development were substantial but not significant enough for him to apply to positions at the WP-5 and 6 group and levels.

[215] He had received accolades from National Headquarters, but it made no difference.

[216] He elaborated on training parole officers. He stated that he trained them on aboriginal social history. On account of his success, he was asked to become a Gladue trainer and was involved in implementing Gladue training at all sites. The training was delivered in the context of the Truth and Reconciliation Commission of Canada, which examined the overrepresentation of aboriginal people in the criminal justice system.

[217] There was an untoward reaction as some of his facilitations were ridiculed to the extent that he stopped delivering the training. He was a Gladue trainer for approximately four months.

[218] He was asked whether his self-identification as Métis has affected his career development. He stated that he believed it has. When he self-identified, it was for the CAP, as members of employment equity groups were being identified for eventual placement as public service executives. He was really proud at being assessed as an aboriginal candidate with high-executive potential.

[219] Before then, his work was considered exceptional. He had been asked to write reports on the judicial reviews of life sentences. After his assessment, he could no longer write a simple report. Multiple managers reviewed them. He had 30 to 40 reports outstanding. This happened in 2000 to 2002.

[220] He was asked to discuss with the Board how his self-identification impacted his career before he learned about the two appointments made on an acting basis. He stated that he continually carried out additional work that was not recognized. He referred to his involvement in the Aboriginal Employee Network. The Alberta Federal Council is housed at Canada Place, Western Economic Diversification, in Edmonton. He was the co-chair and organized events in which he brought together employees in the Aboriginal Employee Network in Saskatchewan and Alberta.

[221] He brought in experts in the Deficit Reduction Action Plan (DRAP) to speak to staff about it. Over 60 staff members attended. His group was awarded for one of the 5 or 6 events he was involved in coordinating.

[222] He referred to a letter from Ms. LePage dated September 17, 2012, congratulating him on receiving the Alberta Federal Council recognition award. The letter states in part as follows:

…

I was very pleased to learn of your pivotal role in the joint event organized by the Aboriginal Employees Network (AEN) in Alberta and your colleagues at the Federal Aboriginal Community of Employees of Saskatchewan (FACES). You demonstrated exemplary leadership in building the collaborative relationships needed to deliver the Join The Circle workshops in Lloydminster last March.

Your service on behalf of Aboriginal employees and members of the Federal Councils of Alberta and Saskatchewan affirms our shared commitment to supporting learning and career opportunities for Aboriginal employees.

…

 

[223] The employer did not offer him any further assignments on an acting basis. However, on January 10, 2013, the district director, Ms. Gee, met with him to discuss his concerns.

[224] Mr. Nash testified about this meeting as follows. He met Ms. Gee at Canada Place in Edmonton. She began the conversation by stating that clearly, he was not happy, as evidenced by his complaints, and that they could make assignments anywhere in the public service. She asked him where he would like to go.

[225] This statement was made in the context of him having met Fraser Macauley, the CSC’s assistant commissioner, and Don Head, its commissioner. They had promised him a career coach as well as an inquiry into actual and perceived concerns surrounding his career development. He stated that it did not happen.

[226] Ms. Gee stated that the grievor was not interested in a coach or mentor from within the Alberta district or the CSC’s Prairie Region as he had felt that he had been blacklisted.

[227] She had asked him why he was not interested in a coach or mentor. They had discussed a coach who worked at National Headquarters as a possible mentor for him. He stated that it was going nowhere.

[228] He had used someone in Human Resources at the Department of Justice as a mentor. That person had provided feedback on his résumé.

[229] He stated that he was qualified for positions such as directors of healing lodges. He applied for the position in an appointment process and was screened out.

[230] He complained to the PSST. He called a community source as a witness. At the hearing, Ms. LePage, who had left the CSC, testified that she screened Mr. Nash out of the appointment process on the basis that his assignment on an acting basis at Stan Daniels was not equivalent to that of a parole supervisor on an acting basis. None of his work in employee networks or his awards were given any weight or bearing. Stating that he was not interested in a coach or mentor position was disingenuous as it was not legitimate.

[231] Based on his experience at this point, by which time he had made his complaint about being removed from the BOI, he advised the district director that he felt that the appointment process for the director of healing lodges position had been flawed and that the screening criteria had been applied to him inappropriately.

[232] He was asked about his statement earlier in his testimony that he was not accorded the same opportunities as his colleagues were with respect to two assignments. He stated that he was subjected to harassment and discrimination, that there was a lack of meaningful opportunities to develop his heritage, and that he was denied special assistance to move forward. He repeatedly demonstrated skills, abilities, and competencies that were not recognized.

[233] He was referred to the statement he made at the meeting with the district director that they discussed the invisible barriers that he faced that had resulted in his applications being denied for over 30 positions at the CSC and at other departments. He asked what he meant by the term “invisible barriers” with respect to an aboriginal person moving forward and how it had impacted him.

[234] He stated that it was devastating. It meant having to work harder than his colleagues, which involved the assignment of more projects. It implied to him that he had pulled the “race card”.

[235] He alluded to two other projects. He was looking for input into policies. He stated that he was instrumental in having an AAA form for aboriginal specific positions. He stated that this policy has been used against him. The way the policy was applied was not in accord with its intent. In any event, his policy work was not recognized.

[236] He stated that he passed the test for the parole officer supervisor position but that he failed the recommendation. The other appointment process was posted and closed after he had left on leave. He was asked what he meant when he stated that he was not invited to play on the team. He stated that it was in terms of the references that he was not a team player. He stated that he is alienated. The obstacles he has faced are delineated throughout the emails. He is speaking truth to power, which offends that power, and he is being alienated.

[237] Others have had no difficulty moving their careers forward.

[238] Mr. Stankey, one of the candidates who acted as a WP6 Area Director, tried to discipline Mr. Nash. Mr. Stankey requested that he volunteer a bed for an offender. Beds were available. The grievor took a photograph. Mr. Stankey went to the director to chastise him for taking it. It was suggested that Mr. Nash participate in mediation because he had caused tension between CSC and Stan Daniels. Mr. Nash declined, because he did not want to participate in that model.

[239] Mr. Nash read into evidence the entirety of Ms. Gee’s email (she is annotated as “DD”) dated January 10, 2013, along with his exchange with her. It all reads as follows:

Further to our meeting this morning Corey, the following is a summary of our discussion around your career development concerns and the next steps we agreed to in relation to same.

[Mr. Nash] On 13 Jan 09 you requested a meeting with me with respect to: “… I would like to meet with you in person follow up on the meeting you had with the Commissioner and Mr. Macaulay last year. Although I was not privy to your meeting, my understanding is that you had a conversation around coaching and possible developmental opportunities. I would also like you to bring your PDP and your last PER to the meeting so we can review those documents as well…” In that regard I ha[v]e described for you options and current opportunities.

[DD] Based on your previous meeting with the Commissioner and Mr. Macaulay, you were told a personal development coach would be paid for by the Commissioner to assist you in your career goals and this has never happened.

[Mr. Nash] In my meeting with Mr Head and Mr Mccaulay on 12Jun20, in the presence of Stan Stapleton USGE RVP. Mr Head had committed to obtain a Career Coach for myself and that costs may be associated with that. Who would be responsible for those costs are unclear; however, it has not happened anyways. As well Mr Head committed to informal inquiry into the “actual and perceived” concerns surrounding my development. That has not happened, to my knowledge either.

[DD] As we discussed, you are not interested in a coach or mentor from within the Alberta District or from within the CSC Prairies… and feel you have been black listed as a “whistle blower” throughout the region.

[Mr. Nash] Unfortunately, yes, based upon the facts in my situation this is true. I view my current situation as disguised discipline.

[DD] You are mobile and prepared to relocate if necessary should a position or opportunity that suits your needs and expectations be available and you have forwarded your resume to Mike Hanley, ADCIO in the Pacific Region for their consideration.

[Mr. Nash] I am also interested in assignments to Ottawa and would consider those opportunities that are not lacking.

[DD] You did not apply in the last Area Director Competition, but indicate you feel an Area Director/Associate District Director (wp6) assignment would be an appropriate developmental level for you based on your experience. You voiced concerns over my recent email congratulating the current actor on his assignment and I explained to you he is a qualified candidate in the national pool.

[Mr. Nash] I was denied acting opportunities, historically, which has prevented my application for Area Director positions. The A/Area Director position is currently vacant and is being utilized as a developmental assignment for Mr. Stankey. Ms Louhela was appointed to Associate Director. Her position, when she is on leave, is not filled by an acting assignment, which is a lost developmental opportunity. As well, when Ms. Louhela acts as director in your absence, her position again remains vacant another lost developmental opportunity. I am interested in acting Area Director, Associate Director and Director positions.

[DD] You chose not to compete in the last Parole Officer Supervisor WP5 position and have no interest in acting in that position at the Edmonton Parole Officer or anywhere else. You feel you are beyond this level and have already demonstrated through previous projects and an acting assignment at Stan Daniels Healing Lodge in 2009 that you have surpassed this level of supervisory position. I explained there is a current pool of qualified candidates as a result of this competition process, including candidates from the Edmonton parole office.

[Mr. Nash] I have previously brought forward the 7 page letter from Jan Fox that I met all criteria for the WP-05 position to be assigned to SDHC as Supervisor. At this time I am not interested in Acting Parole Officer Supervisor at Edmonton District Parole and these opportunities have been made clear are not available to me as I am not in the current pool. We have also discussed the invisible barriers that I face that have resulted in my applications for over 30 some odd positions both within CSC and other departments having been denied.

[DD] In the two P0S competitions held prior to the most recent, you state one was posted while you were on vacation leave and you were unable to apply - and the one before this one, you competed in but did not qualify.

[Mr. Nash] With respect to the POS competition that was posted following my annual leave and closed prior to my return resulted in the appointment of several POS at District Parole.

I explained that I did not qualify as I was told by Ms Louhela that: “…your not a team player…”; however, if your not invited to play on the team, how can you be a team player? This is the same comment Mr. Stankey made to me, “…your not a team player…” when he berated me with respect to covering off my leave, contrary to the collective agreement, in August 2012. I brought this to your attention via cc to you. I have offered Mr. Stankey alternative dispute resolution such as aboriginal healing circle as per the Aboriginal Consultations and that offer was refused. I am not interested in filing individual grievances or PSST complaints as I have indicated to you this is a Human Rights issue. I am not being treated fairly and I am being blamed for my reaction. When I asked how you could cope under the circumstances that I have been placed under and you would prefer to not even think about that and I really don’t blame you.

[DD] You most recently applied on the Deputy Director position at Pesakastew Healing Lodge, but were screened out. You feel this process was flawed and the screening criteria was inappropriately applied to you. You followed our meeting up with an email that indicates after two attempts to contact the board to engage the informal discussion process regarding your screen out, your requests were ignored.

[Mr. Nash] You were aware that I applied for this position. I had shared with you the email with respect to this competition in regards to the criteria that I did not meet. You asked if I requested informal discussion. I advised you that I had requested informal discussion on two occasions but that there was no reply to my requests. I noted for you that Mr. Urmson was in the process of conducting the interviews for that position this week. They have since replied scheduling an informal discussion with respect to the areas that I do not meet.

[DD] Any further assignments with NCSA are of no interest to you.

[Mr. Nash] You advised that Mary Kimball will be vacating her current position, relocating with her partner Andrea Markowski who is assuming the position of District Director Manitoba. I noted for you that I commenced my service with CSC in 1997 as did you and Ms Markowski. We all commenced our service in 1997. The difference being you and Ms Markowski are currently Directors and I am still a Parole Officer. I had never been afforded an opportunity to gain acting management experience with Correctional Service of Canada but I have been afforded the opportunity to Act as Manager at a Non-Government Aboriginal organization (NCSA). I recounted for you the multitude of attempts I have made to gain those acting management opportunities within the Federal Government in order that I can both obtain experience and have the ability to apply on promotional opportunities all of which have been denied. You advised that you have a hearing disability and require a hearing aid, I noted for you my dual employment equity status as an aboriginal person and a person with a disability. We discussed the Career Assignment Program assessment of me by the Public Service Commission of Canada in 2000 that assessed me as a high potential aboriginal executive candidate. We discussed the fact that following my meeting with Ms Jan Fox (Former Director of Alberta District) and Mr Steve Hindle RHQ in 2009 that there view of our meetings surrounding compliance with my settlement agreement from 2004 was that they would have my executive assessment completed again and updated. That has never happened. With respect to further assignments with NCSA there are no current offers on the table not that I would not consider those options if they were reasonable.

We recounted the fact that there are limited staff at Edmonton District Parole willing to work at SDHC. None of the current supervisors at Edmonton District Parole have ever gone over to Stan Daniels Healing Centre to physically work there to improve that operation. Although the Aboriginal experience is a priority and an asset very few of the current managers have at Edmonton District have any interest in learning or working closely with our closest partner.

[DD] You have no interest in Edmonton Institution or EIFW.

[Mr. Nash] I noted for you that I have spent two years at Edmonton Institution in both operations and case management. I noted for you that I had previously applied as MAI and EIFW and was screened out of that non-degree required position and my junior colleague with two years in the service was subsequently appointed to the position.

[DD] Pesak [Pesakastew] is of interest, but only if the position is above level. You indicated you applied in an MAI competition in the past but were not successful and that also is only a WP5 position, which again you feel is below you. You were screened out of the DD Pesak position and shared your screen out email that stated this was due to the fact that your resume did not demonstrate the essential criteria of significant experience in the management of correctional operations and/or interventions in an institution or community setting and and significant experience in the management of human and financial resources.

[Mr. Nash] I have since shared with you my resume and cover letter. I also noted that the experience I have referred to that would qualify me for further consideration in this competition was gained outside of CSC through the Lead of the Aboriginal Employee Network, an AFC Community of Practice. My involvement and achievements in the Federal Public Service partnerships have no weight or regard at this time.

[DD] Your most recent assignment with Corcan you feel was a “make work” project and you have shared your concerns about this with the Commissioner already.

[Mr. Nash] I do not recall sharing with the Commissioner that this was a “make work” project. But I do view it as similar to the “make work” project that Jim Sawatske was afforded at Pe Sakastew. In that regard I shared with you at the commencement of that assignment that it was “Mission Impossible” to obtain scaffold training at no cost to CSC or Corcan and to partner with NCSA in that regard and that I was ready, willing and able to achieve the desired results. The deliverables were identified and then after commencement of the project I was directed beyond “Mission Impossible” to deliver that training at Pe Sakastew Centre, which at the outset alienated NCSA from participating as they had no direct benefit from participation. Regardless of those factors I managed to deliver the training at no cost to CSC/CORCAN. I believe that this effort should be nominated by you, seconded by Ms LePage and finally supported by Mr Head for the public service Award of Excellence (I have attached the email for you here) as this demonstrated capacity to see beyond the deficit reduction and create partnerships to assist our endeavours is exemplary service. My efforts here are the kind of efforts that should be recognized and rewarded.

[DD] You feel leadership and management is lacking for Aboriginal Initiatives in the Alberta Corridor given the number of offenders we have and you should be appointed to a Manager of Aboriginal Programs for the Alberta District where you would supervise staff and manage a budget and greatly improve the results for Alberta. I explained that no such position existed in Alberta and you indicated you would assist AI to create it.

[Mr. Nash] With respect to AI in the Alberta corridor I related to you that we have One ACDO in Edmonton and One ACDO in Calgary. We also have One ACLO in Edmonton. We have three aboriginal employees on this initiative and based upon the work descriptions and objective of AI, which I am intimately familiar with and the expectation to partner with some 54 First Nations Communities in Alberta that are geographically widely dispersed with limited funds to travel. In addition to liaising with 10 Federal Institutions in the Alberta corridor and some 105 First Nations that are represented in Edmonton with respect to the Urban Aboriginal Strategy not including the Inuit and Metis organizations and communities, respectively. The expectation is that these three staff members are to process section 81 and 84 applications for Alberta.

This is a severely under resourced initiative and given the needs and plight of the Aboriginal people in our corridor this is seriously problematic and contributes further to the demise of these many communities that will rely on both our expertise and resources to assist them to overcome their incarcerations with a view to successfully reintegrate them to their various communities. Taking into consideration the STG represented within the institutions and the strategy to manage these gangs I proposed to directly manage and supervise a staff of four in Edmonton and four staff in Calgary in order to better deliver the results that are necessary and prudent with respect to public safety. We discussed the difficulty with the direct supervisor for these positions currently at RHQ and therefore there is no hands on assistance being provided to this much sorely needed resource in our corridor. I am interested in realigning RHQ AI resources to address this need area in Alberta.

[DD] You also expressed interest in any project positions above level that might be available with Aboriginal Initiatives Regionally and Nationally as this was a good fit for you as far as your experience and areas of expertise.

[Mr. Nash] I have expressed for you my intense interest and desire to work with AI. I have previously applied as an Project Officer AS05 … Aboriginal Initiatives Directorate in July 2011 for example. On 11Sep09, despite my wealth of experience and knowledge, I was screened out as I did not meet the following criteria: “Experience in culturally competent policy interpretation and implementation and Experience and the use of computers for report writing and work plans.” I have attached that email for you simply as a joke with respect to the process which is flawed with respect to appointments in Correctional Service of Canada and as to why the service is currently in the bottom of the public service staff survey as an employer of choice.

…

[DD] I agreed upon receipt of a copy of your updated resume to share your interest and experience with AI regionally and nationally for their consideration in any future acting or developmental assignments.

[Mr. Nash] I truly appreciate your time and attention to assisting me. I apologize in advance as I understand that my frustration is apparent and I do not want you take this personally. Unfortunately for me though it is personal and I believe I am being repeatedly attacked both personally and professionally and I am not afforded an harassment free work place. I believe that I have the skills and abilities that the service requires to move our mutual agenda forward and that is the Safety of the Public. As a bench warmer/water boy I am not offered the chance to take the court, to be part of the team and/or lead a CSC team.

[DD] You also indicated that you would like to develop and manage a multimillion dollar Oil Sands Employment Project for the CSC under the employment portfolio. Again, no such position exists, but you indicated you would take this on develop the position yourself, including securing the necessary funding from other partner agencies.

[Mr. Nash] I am interested in taking the 90 day assignment with CORCAN further and having that project realize its full potential. For that I have indicated to you that I would need the necessary latitude and longevity. For example a 2.5 million dollar budget on paper that would become cost neutral after two years by employing offenders in all of the trades in the oil sands. I have actually worked out the project on my own time. My understanding is the Alberta Government is interested in further leveraging our diverse labour pool.

[DD] You indicated you could be the Manager responsible for Employment Equity for the Region. I explained that Audrey Hobman was our champion for this file as was recently shared via email and that Jim S was on special assignment on the Disability file, which you were already aware.

[Mr. Nash] I likely could be the manager for Employment Equity for the region; however, I do not recall having said that. Regardless that does not interest me, Aboriginal Initiatives though does more specifically, Nationally.

[DD] You also expressed your desire to teach other staff in the CSC and shared that you had requested education leave in the past to complete your Masters but this was declined and further, a request to a former employee at Stan Daniels for a letter of reference was not completed to secure your access to the masters program. I explained that the instructors at staff college would not be above level and would not have any staff supervisory or budget responsibilities. You indicated that you were talking about training managers and supervisors.

[Mr. Nash] I am interested in training managers and supervisors. I also explained that I have been offered a Corporate Sponsorship to complete my Masters. I required a letter of referee for my application. I requested that from Sheila Courtorielle at SDHC. Instead, as a result of the Harassment complaint I filed and Ms LePage’s “Informal review” Lori Louhela directed Sheila Courtorielle to complete a Performance Appraisal on me some 10 months after I left SDHC. I never did receive the letter for the Referee. I am interested in completing my Masters and eventually my PhD. This would serve to teach in the future. The PER from SDHC and the direction around completion of same remains an unresolved contentious issue.

[DD] As requested, you brought a copy of your last PER which also referenced evaluation of your project at Corcan., The evaluation was not attached. As stated, I have requested a copy of this to ensure that information is included with your PER.

[Mr. Nash] I have not signed my PER. I will not sign my PER. I will not discuss my PER with my supervisor as this process is like the competition process that is simply another flawed process CSC continues to utilize to justify action/inaction. The last PER, for example evaluated new objectives that were never agreed upon or even discussed. That is not my problem, it is the problem for the supervisors that manage the supervisors.

[DD] As requested, you brought a copy of your most recent Personal Development Plan, which was blank with the exception of any mandatory training required for parole officers as identified by your supervisor. When we discussed why you had not identified any of the acting/developmental assignments or training you would like to access, you expressed your concern that the entire PDP process was flawed and not worth the paper it was written on.

[Mr. Nash] I clarified for you that the PDP/PER process is an exercise in futility. I informed you that as per Jan Fox and Steve Hindle in 2009 my PER/PDP was supposed to be developed and with cooperation and in consultation with Ms Fox so that both realistic and obtainable objectives could be identified. That never happened and not due to my lack of effort to move that forward.

[DD] I encouraged you to reconsider your refusal to complete a PDP.

[Mr. Nash] I am interested in a Career Coach accessing my PDP’s, which management should have on file, from 2004 - 2012 and included in that the several competitions and PER’s that have been completed and assess that against the developmental experience that I have obtained and assist me in charting the plan for my future which I am hopeful will include my development as an executive within the Federal Public Service.

[DD] If I have missed any of the specific developmental opportunities you identified during our conversation, please let me know Corey.

[Mr. Nash] I am interested in assignments at the Parole Board Canada (I know they need a lot of help). I am interested in Foreign Affairs, Intergovernmental Affairs, Staff Relations, Investigations, Training Managers and Staff.

[DD] As I indicated above, I am prepared to share your resume with Aboriginal Initiatives both Regionally and Nationally to share your interest and experience for any possible assignments with them.

Again, I encourage you to rethink your stance on applying in future supervisory level competitions. This is often the first level of supervisory and management experience for many of our WP4 level staff and can afford valuable experience with direct responsibilities for the management of human and financial resources supported by mandatory training in areas such as finance, staffing, labor relations, crisis management, etc.

[Mr. Nash] I am denied but not deterred from applying on competitions but I have enough factual competition information to indicate that there are barriers to my development that I cannot overcome alone.

[DD] I will confirm with you when I have received a copy of your CORCAN evaluation for the assignment and will cc you on the forwarding of your resume on to AI for their consideration.

…

[Sic throughout]

[Emphasis in the original]

 

[240] Given the evidence he had provided, he was asked why he continued to work at CSC. He replied that he had a family to support.

[241] He stated that in 2012, he was offered a six-month secondment at-level at CORCAN. He told the district director that he felt that it was a make-work project. Nevertheless, he believed that he managed to deliver a project that entitled him to the Public Service Award of Excellence.

[242] CORCAN is a corporation within the CSC that provides trades training for inmates. A provincially led coach offered a scaffolding training program to inmates. Mr. Nash implemented the program, with no cost to the CSC. He created a private-public partnership. They wanted him to train 15 aboriginal inmates. A private company donated the scaffolding.

[243] The CSC’s commissioner had congratulated him. He was not recognized. He was chastised by the director who alleged that he did not consult with Mr. Benson. he received no recognition.

1. Cross-examination

[244] He was asked to identify a copy of his résumé.

[245] He was referred to the education section and in particular to the Banff Centre’s Certificate of Aboriginal Leadership, Governance, and Management Excellence program held in May 2011. He was asked whether the CSC funded it. He answered that it did, but partially.

[246] He was referred to internal training at the CSC’s Staff College and was asked whether the CSC funded it. He replied, “Yes.”

[247] He was referred to the list of other professional training, some at the Canada School of Public Service. He was asked whether the Government of Canada funded it.

[248] He stated that the answer to the question was yes, with respect to the funding of his professional training, along with the support of the Aboriginal Employee Network.

[249] He was asked if he had taken courses.

[250] He agreed. He was asked if he had a PDP. He stated that he did. It was put to him that within a budget, some courses may be approved and others may not be, and that when it comes to employees’ personal goals, most of them have a long list of things that they would like to do.

[251] He stated that he did not know about anyone else.

[252] He was asked whether for an employee with a long list of personal goals, it would be reasonable that an employer could not meet all of them and whether one does not get everything one wishes for. He agreed that those statements were reasonable.

[253] He was asked to confirm that if a goal was not listed in the PDP, it would not happen.

[254] Counsel asked him about a string of emails to Ms. Fox on February 1, 2010. He requested funding for courses. The document sets out the courses that he had taken and that the government had paid for. He sought approval for funding for the following year.

[255] He agreed that Ms. Fox agreed to fund a course.

[256] Counsel introduced a letter from Ms. LePage dated August 8, 2011, with as its subject matter a harassment complaint, in which she states that his complaint of July 14, 2011, does not meet the screening criteria as required by the Treasury Board’s harassment policy.

[257] The complaint dated July 14, 2011, contained 22 allegations of discrimination on the basis of disability and race.

[258] He was asked to confirm that Ms. LePage informed him that she would conduct an independent review of his concerns. He was asked if an independent review was the same as an investigation. He did not understand what an independent review entailed. He assumed that a third party would look into his concerns. He was asked whether he made an assumption without seeking clarification. He had said that no investigation was done, and he maintained that position.

[259] He was asked whether Ms. LePage got back to him six to eight months later with the results of the review. He stated that he did not recall. He was referred to her memorandum of March 29, 2012, in which she stated that she had reviewed his career development concerns. She outlined the level of support he had received in the past two years with respect to access to training opportunities to enhance his career aspirations. She encouraged him to consider applying to future opportunities. Mr. Nash then stated that he recalled the memo.

[260] He then stated that she did not refer to an independent review.

[261] He was asked about his concerns about several appointments to director positions in the Calgary region. He replied, “No.” He was referring to such positions in Edmonton, where two people were appointed to positions on an acting basis who were not qualified.

[262] He was asked to confirm that the language does not specifically refer to those two appointments.

[263] The grievance is about alleged harassment and discrimination. The question is about the staffing of the area director positions on an acting basis. How did this constitute harassment? He replied that the harassment was in the differential treatment.

[264] With respect to the appointment in Winnipeg of Leslie Monkman, who is of aboriginal descent, to an area director position, the grievor was asked if he knew whether Mr. Monkman had been appointed from a pool. He replied, “No.” When he was asked whether he had made inquiries, he answered, “No.”

[265] With respect to Stan Daniels, the grievor said that he had been a supervisor on an acting basis. Ms. LePage testified that in his staffing complaint, he said that the assignment was of no value. He said that was his testimony, sort of. He was told that being a parole officer supervisor at Stan Daniels on an acting basis was not equivalent. His activities at the Aboriginal Employee Network were given no credit.

[266] He made the complaint with the PSST because he was not appointed the healing lodge’s director.

[267] Ms. LePage was the regional deputy commissioner at the time and a screening officer for that appointment process. The selection board was composed of three individuals, one of whom self-identified as Métis. There were 15 applicants; 5 were screened in. He was asked to confirm that he did not seek judicial review of the PSST decision. He confirmed it.

[268] He was referred to paragraphs 17 and 18 of the PSST’s decision (2014 PSST 10) that deals with the experience required for the executive director position at three CSC healing lodges.

[269] Paragraph 17 reads as follows:

17 Ms. LePage stated that to meet Experience 1, a candidate would have extensive correctional managerial experience in an institution or community setting such as a parole office. The experience could be at the AS-08 level of the Executive Director position or at a junior level in a position that reported to a similar level. Such positions would include program, security, or parole managers. The requirement for managerial experience in a correctional environment was applied to all candidates.

 

[270] Paragraph 18 reads as follows:

18 Ms. LePage also addressed Experience 2. To meet Experience 2, a candidate would demonstrate experience managing a budget through two full cycles: planning, cash forecasting, managing, balancing and reporting. With respect to human resources, the candidate would demonstrate managing a group of employees, staffing, labour relations, harassment prevention and professional development.

 

[271] He was asked to confirm that it was not an entry-level position.

[272] He was referred to paragraph 21, which states in part as follows:

21 With respect to Experience 1, the stated requirement was managing for more than four years of full and continuous business cycles. Ms. LePage considered that the complainant’s year spent as an acting Parole Supervisor, where he had trained, recruited, and functionally supervised parole officers could be considered to address some aspects of Experience 1. However, the range of experience was narrow and failed to demonstrate the broad range of experience managing, developing policy or setting a vision, for example.…

 

[273] He was referred to paragraph 23, which reads in part as follows:

23 For Experience 2, Ms. LePage also took into account the complainant’s experience as an acting Parole Supervisor although it was not clear to her whether the duties were sufficiently broad to satisfy the requirements. Further, she considered the complainant’s experience with the scaffolding project, but found that there was no evidence of budgetary control or staff reporting to the complainant. In any event, the cumulative duration of the acting appointment and the experience with the scaffolding project was insufficient to meet the definition of “significant.”

 

[274] He confirmed that what she was concerned about was the breadth of his assignment at Stan Daniels.

[275] He was asked to confirm that Ms. LePage commented that his experience with the Aboriginal Employee Network (AEN) was valuable but that it did not provide the required level of management experience. He was asked to confirm that she really testified about that. He confirmed that no employees reported to him at that network.

[276] He was referred to his testimony-in-chief on WP-5 and WP-6 positions. WP-5 positions are parole officer supervisors. WP-6 positions are area directors.

[277] He was asked to confirm that in his testimony, he had made it crystal clear that he was not interested in a WP-5 position. He was asked whether it was because he felt that he had moved beyond a supervisor position.

[278] He replied that that was partly correct. If developmental positions were available when these complaints were made, they were no longer of interest to him. He was asked whether he had applied for WP-5 positions. He stated that he had. He had expressed interest in 2004. He was screened out. Another one had opened after he had left on holidays and had closed before he returned.

[279] With respect to WP-6 positions, he was asked if he had applied for any, which is both a national and a regional process. He stated that he was fairly certain that he had applied for an area director position. He believed that it might have been in the CSC’s Ontario Region before he went to Stan Daniels. He stated that he needed one year of supervisory experience and that after he went to Stan Daniels, posters were issued that stated that he needed two years of that experience.

[280] He was asked to confirm that he did not apply to the national process when it came to staffing the Calgary positions.

[281] He was asked whether another opportunity arose at Stan Daniels that he declined, after his one year there. He stated that a discussion took place about extending him for another year. He was asked to confirm that it did not happen because he was no longer interested. He replied, “Partly, yes.”

[282] He was referred to his 22-point harassment complaint dated July 14, 2011, and in particular to the remedy he sought, which was an immediate appointment to the WP-6 level. He was asked whether that would resolve his complaint. He replied that it would, in part.

[283] He was asked to confirm that he did not apply to be in the national pool, yet he asked the employer to appoint him without an appointment process as a resolution to his complaint. He confirmed it, based on employment equity hiring and succession planning and based on the Employment Equity Act (S.C. 1995, c. 44). This was based on four years of attempts to resolve all his complaints.

[284] He was referred to a series of emails that starts with the request to him to look into a voluntary placement at a facility in Edmonton for an inmate about to be released. Apparently, there was some delay. An assistant warden at Drumheller Institution emailed another manager that she might want to contact Mr. Nash’s supervisor as she believed there might be some historical performance issues that the supervisor would probably appreciate being informed of.

[285] Mr. Nash escalated it to the warden level. His warden told him to resolve it at the lowest level. It was put to Mr. Nash that he had not wanted to resolve it at the lowest level and that he had preferred to escalate it. He agreed.

[286] He was referred to his email chain with Mr. Head, the CSC’s commissioner. He was asked if he enjoyed and continued to enjoy direct connections to Mr. Head at the time of the grievances, which included personal meetings. He replied that he did.

[287] He was asked if he had provided Mr. Head information about what he was doing and his career aspirations. He stated that he sets out issues as he sees them.

[288] In his correspondence to Mr. Head, he refers to the CAP. In light of his evidence that the Public Service Commission had evaluated him as a high-potential candidate, he was asked whether he was in the CAP. He responded that he was in the CAP process but not for development.

[289] He stated that at the end of the process, he was assessed as a high-potential executive candidate.

[290] He did not receive a CAP assignment. The CAP was intended to bring in new blood by recruiting members of employment equity groups. Internal and external people applied. It was funded by the Treasury Board and the Privy Council Office early in 1999 to 2000. About 3000 applicants were screened. Mr. Nash stated that he passed with a mark of 825 in a basket test administered by the Public Service Commission, which was a mark equivalent to a warden. His mark was considered high. He was sent to a psychology testing centre in Ottawa, Ontario. The overall assessment was that he had high success potential. Only 20 spots in the CAP were for aboriginal candidates, based on the number of departments that said they would participate in the CAP. Mr. Nash was one of 70 who made it to the final cut. He was proud of his results. The assessment was made in 2000.

[291] In 2005, at an Aboriginal Employee Network event Mr. Nash participated as a co-chair of a committee event held on the International Day for the Elimination of Discrimination at which the results of the CAP were discussed. It was concluded that the program had failed. The Public Service Commission had brought in someone to examine why it had failed. Two reasons were that no assignments were being offered and that only a few departments had opted in.

[292] It was his evidence that when he self-identified as Métis, his career stalled. He was asked if Labour Canada investigated immediately after the Stony Mountain incident. He stated that different investigations were carried out.

[293] An investigation was launched into a work refusal based on dangerous working conditions. One was with respect to the contract hit and was found to be a danger. Another one was found to not be a danger.

[294] He was referred to an email thread in February 2013 about a position he was interested in at CORCAN industries as well as an email from Ms. Gee, the district director, dated February 8, 2013, to him setting out wording and advice that he could use in his application.

[295] Counsel asked him whether this was really Ms. Gee providing him with support coaching. He agreed that it was.

[296] He was asked whether he agreed that it was usually a good idea to resolve issues informally. He stated that he concurred.

2. Re-examination

[297] When he was asked about whether another opportunity arose at Stan Daniels, he stated, “Partly.” He was asked to explain what he meant by that. He stated that the assignment occurred during an interesting time. It was the 40th anniversary of Native Counselling Services of Alberta, and he was invited to the annual general meeting. He was allowed to bring a guest. He brought his wife. His term had been extended to a year.

[298] When they pulled up to the Edmonton EXPO Centre, in front of them were Mr. Benson, the CEO of the Native Counselling Services of Alberta, Sheila Rogers, a journalist, and Marc Hippolite, then secretary for personnel at the Treasury Board. He and Mr. Hippolite had entered into the memorandum of understanding in 2004 concerning Mr. Nash’s return to work at Edmonton parole.

[299] While they walked to the convention centre, Mr. Benson told Mr. Hippolite and Ms. Rogers about the good job he was doing. Mr. Benson asked to extend Mr. Nash’s term for another year. Mr. Hippolite agreed.

[300] Mr. Nash stated that he was not opposed to it. Between that time and the end of the assignment, no offer was made, only a discussion. But his position as a parole officer supervisor was at a higher pay level than the director position.

[301] The case-management work at Stan Daniels required follow up. It would not have benefited the organization because another facility was to open, and they would compete for the same resources.

[302] A discussion took place about a position to oversee case management for both facilities. Mr. Nash suggested having a parole officer supervisor at both facilities.

[303] He had referred to a performance appraisal after he had left the facility. It was a busy job incurring overtime. It was not feasible for him to continue. Nothing was offered. He stated that he would consider anything at Stan Daniels but that nothing was offered to him.

C. Witness: Jim Sawatske

[304] Jim Sawatske retired as a senior parole officer in September 2015 after 20 years of service. He spent 16 years as a child welfare worker with the provincial government before becoming a parole officer.

[305] He was a police liaison officer with the Edmonton Police Service.

[306] He met Mr. Nash in 2004 when Mr. Nash came to Edmonton parole.

[307] He met Ms. Fox, the district director, who advised him that Mr. Nash was to move in next door.

[308] Mr. Sawatske was advised that Mr. Nash was a problem and that the CSC directed to employ him at Edmonton parole. Their offices were next to one another. Mr. Nash was in the worse office, without a window. Mr. Sawatske got the impression from Ms. Fox that Mr. Nash would be vocal and disruptive. This coloured how he viewed Mr. Nash. He did not need to know about this. Mr. Sawatske was asked how he viewed Mr. Nash. He stated that he avoided Mr. Nash. He was told that basically, Mr. Nash would argue about everything, had strong opinions, was not flexible, and was unpredictable.

[309] They worked in proximity for at least a year. Mr. Sawatske was asked how he perceived Mr. Nash after the year. He went to Mr. Nash for advice on union and harassment matters. He viewed Mr. Nash as very knowledgeable and made a very different impression of him. The new impression was that Mr. Nash was passionate and principled. He came to empathize with what Mr. Nash was going through.

[310] Mr. Nash assisted him as a co-worker. He also benefited from Mr. Nash’s knowledge of First Nations, Métis and Inuit. Mr. Nash was the most approachable and knowledgeable employee in the office.

[311] A native liaison officer worked in the office. He was quite a good employee but not as good as Mr. Nash, who would bring in speakers and organize three- or four-day workshops.

[312] He was asked if he ever observed anyone, first-hand, within the union local expressing concerns about Mr. Nash. He stated that he did hear adverse comments from section supervisors and from parole supervisors who were to supervise Mr. Nash. Mr. Nash was shuffled around quite a bit. Everybody had time with him.

1. Cross-examination

[313] In 2004, he was not privy to any conversation with Ms. Fox. He believed that she spoke to the supervisor, the area director, of Mr. Nash. Ms. Fox did not disclose who directed Edmonton parole to employ Mr. Nash.

[314] He was asked whether, based on his testimony, he would agree that he did not have an amicable relationship with Ms. Fox. He stated that he had a fairly good relationship with her for a time. She had nominated him for a major award for exemplary performance. He fell out of her favour after 2004.

[315] He was asked about his testimony about going to Mr. Nash on union matters, as Mr. Nash was not a union representative. Mr. Sawatske was looking for accommodation. He needed support for his hearing loss. Management said that he did not need support. Ms. Fox and his supervisor had been involved, and he had involved his union steward.

[316] He approached Mr. Nash for support as he did not know the programs and policies. Mr. Nash was as well-versed as anybody.

[317] He had made a broad statement about the views of the section supervisor and the parole supervisor about Mr. Nash. It was suggested to him that it was speculation. He said that the general feeling was communicated through body language. He did not need exact words. It was suggested to him that he was making serious allegations and that specific words and actions were needed so that they could be addressed.

[318] He was asked whether since he found Mr. Nash knowledgeable, did he ever discuss the harassment policy with Mr. Nash. He stated, “Yes.”

[319] He was asked if he understood that all employees had an obligation to report harassment incidents. He was asked if he ever raised questions under the harassment policy in the context of animosity towards Mr. Nash. He stated that he did not.

[320] There was a reasonable explanation as he was going through a harassment case, and he did not need to become involved in Mr. Nash’s situation. He was asked if he discussed his testimony with Mr. Nash. He did not respond.

D. Witness: Ms. Fox

[321] Ms. Fox was the district director, corrections, for the CSC’s Alberta and the Northwest Territories districts. She retired on September 15, 2011. In that capacity, she was responsible for the overall management of a large parole district. The staff reporting to her worked as parole officers and area directors. As well, an assistant director who resided in Saskatoon reported to her.

[322] Parole officers reported to a section supervisor who would report to an area director. The area director reported to her. She was located in Edmonton. She was asked about her interactions with parole officers during her daily duties. She stated that there were two levels of hierarchy between them. She stated that she might have discussed a case with a parole officer but that doing so was rare.

[323] She was asked whether she recalled any direct communications with Mr. Nash from 2009 to 2011. She stated, “Yes.” Mr. Nash was at staff meetings. He sat on a local committee. A complaint or grievance appeared, which she dealt with at Regional Headquarters.

[324] She was the district director between 1999 and 2011. She was asked if she became aware of Mr. Nash’s career aspirations. She stated that she did but not exactly what they were, but she could advise as to what they worked on.

[325] Mr. Nash went on assignment to Stan Daniels. There was an opportunity for a developmental supervisor position run by Native Counselling Services of Alberta. She had a discussion with the director. She offered the position to Mr. Nash, and he accepted it. She was asked why she considered it a developmental opportunity. She stated that it was a promotion and that it involved supervising staff. A section 81 agreement enables an aboriginal organization to operate a correctional facility. This assignment provided Mr. Nash with an opportunity to share his experience with parole officers. She knew that he was interested in aboriginal issues. It was a good fit.

[326] She was asked how, based on Mr. Nash’s experience, this opportunity would have prepared him to enter the EX cadre.

[327] Mr. Nash needed experience supervising other parole officers and mentoring. And this position provided a high level of interchange with external parties. He also needed experience in budgeting and in strategic planning. It was a better assignment than to a supervisor position on an acting basis. She was asked about the assignment’s length. She stated it would have been less than four months; otherwise, the position would have had to be advertised.

[328] She was referred to the Native Counselling Services of Alberta’s performance appraisal report for Mr. Nash that indicates that he was seconded to Stan Daniels for 3 months and 29 days, which was extended another 6 months. She could not recall how it was extended. She was asked if she had seen the performance appraisal report dated August 18, 2011. She stated that that was possible.

[329] She was also asked about other developmental assignments given to Mr. Nash. He was offered training to become a BOI manager.

[330] He was sponsored to attend the leadership or management training in Banff given by the Alberta Federal Council of senior officials. She sat on the council on behalf of her supervisor, Ms. LePage. She was aware that Mr. Nash was involved in committees that reported to that council. It would have been considered a developmental opportunity for parole officers.

[331] When she worked on career planning with Mr. Nash, he was provided with an option to have a mentor.

[332] She was asked how that experience would help an aspiring employee in his or her development.

[333] She stated that the BOI training would enable him to participate in investigations at different institutions and to observe different leadership styles and different policies. Employees wanted the training. It was sought after.

[334] His participation on federal councils and committees exposed Mr. Nash to different departments. This was an opportunity for him to show his skills and demonstrate what he could bring to a new position.

[335] Mentors provide advice and honest feedback, and they help identify leadership opportunities that might not have been thought of. Sometimes, peers can be mentors.

[336] She sponsored training for him. She was referred to her email to Mr. Nash dated January 24, 2010, in which she confers with him about the courses he wants to take during the next fiscal year. The email requests that Mr. Nash advise her as to how many courses he requires to complete the Banff Centre’s Certificate of Aboriginal Leadership, Governance, and Management Excellence, when they will be held, and the approximate costs. She notes that he took two courses during the current year, one of which was partially paid for by a scholarship. She advises him that she is prepared to fund one course in the next fiscal year and that she supports him completing the program. She states that she thinks that they should meet to determine how they could accomplish it within budget restrictions.

[337] She was asked if she knew whether he had completed the certificate. She stated that she believed that he had done so.

[338] She was referred to an application and authorization form dated September 9, 2001, in which Mr. Nash applied for paid leave to attend a first-year law program at the University of Victoria in Victoria, British Columbia, for a combined law degree and master’s of business administration.

[339] She recalled his request for the leave. She advised him that his request was not supported at the district level as the district was facing severe financial pressures and that she did not have the funds to pay his salary and backfill his position. She also advised him that at that time, there was no requirement that staff obtain a combined law and MBA degree. She advised him that she would forward the request to Regional Headquarters for possible further consideration.

1. Cross-examination

[340] She was asked to confirm that being a parole officer is a tough job and that a certain fortitude is required. She agreed.

[341] She was asked whether Mr. Nash was a competent parole officer. She stated that she had no reason to say otherwise.

[342] She was advised that Mr. Nash testified that training was provided only after he made a complaint. She stated that she did not remember.

[343] In particular, she was asked whether the training he received at Banff was provided only after he made a complaint. She did not recall a complaint being made. It was very uncommon for parole officers to receive training in Banff.

[344] She was aware that Mr. Nash identifies as Métis. She was asked whether in 2011 and today, indigenous people were and are underrepresented in CSC, which has a priority to recruit indigenous people into management both in its regions and at its National Headquarters.

[345] Mr. Nash advised her that he was ambitious and motivated to advance within CSC, period.

[346] Employees could receive opportunities of only a term of three months less a day without an appointment process. Whether an employee was screened in during a process was beyond her purview.

[347] She did not have the authority to put someone on a BOI. She had the power to recommend someone.

[348] She would have been able to authorize in-house training; however, it was subject to a financial restraint.

[349] Predetermined qualifications had to be met to be screened in for promotional opportunities. Factors such as education and supervision experience were required.

[350] Parole officers seeking to be promoted had to look for ways to meet the qualifications. If officers did not have all the qualifications, they could prioritize ways to achieve them with their supervisors through a PDP.

[351] She referred to her career. Reaching a higher level in the executive cadre required significant management experience. She started with the CSC in 1981. It took her 19 years to rise from an entry-level to an EX-02 position.

[352] Mr. Nash’s time at Stan Daniels was devoted to dealing with indigenous persons. Occasionally, someone not indigenous could be accepted there.

[353] She was asked if she would agree that he did good work there. She was aware only of what happened at the beginning. He was well accepted for mentoring young parole officers. She did not know what happened after that.

[354] She was referred to the report of Native Counselling Services of Alberta. She was advised that in his evidence, Mr. Nash said that his performance appraisal was done a year after his term had ended and only after he had made a complaint.

[355] That was regrettable. However, it had been up to the healing lodge to provide the appraisal.

[356] She was asked whether Mr. Nash had sought to participate in the Alberta Federal Council or whether she had provided him with that opportunity.

[357] She stated that she did not remember but that she thought that he had sought it. But management would have supported him.

[358] She was asked whether she recalled that he was the co-chair of the Alberta National Committee.

[359] She stated she had a vague recollection but that it had been over 10 years ago.

[360] She was asked whether she recalled a mentoring discussion with Mr. Nash.

[361] She said, “Yes.” She met with Mr. Nash. Mr. Nash was left to provide names of mentors. She stated that she did not recall what happened. She stated that she would have assigned a parole officer supervisor as a mentor.

[362] She referred to notes and stated that it was clear that Mr. Nash was to advise as to who he wanted as a mentor. She stated that later, two years before she left the service, she was in a different building. She was asked whether she would have been responsible for following up with Mr. Nash’s supervisor. She stated that it would have been raised to Regional Headquarters and to the commissioner. She had asked Regional Headquarters to look into the issue.

[363] She referred to an email. Mr. Nash was to identify a mentor. She was asked whether as far as she knew, anyone followed up or helped him acquire a mentor.

[364] She replied that he could have had a mentor and that there was no need to advise management. That would have been fine.

[365] She produced some examples of CSC providing opportunities for Mr. Nash to gain skill sets. However, one thing that was not heard was what she did to support Mr. Nash

[366] She did things for Mr. Nash that were uncharacteristic for her position and that were not her job. Responsibility for training would fall to the section supervisor and the area director.

[367] She had 80 parole officers reporting to her. She was aware of Mr. Nash’s aspirations. She negotiated for him to go to Stan Daniels and a one-time opportunity for an assignment as an AS-5 project director. She stated that she went beyond what she did for other parole officers.

[368] She was asked whether Mr. Nash had discussed with her that he had been assessed as a high-potential individual. She said that he had told her; however, the Public Service Commission had never advised her of it.

[369] She stated that at the meeting with Mr. Nash, a reassessment was discussed, but as of then, the CAP program no longer existed.

2. Re-examination

[370] She was asked to explain her current occupation. She is the executive director of REACH Edmonton, a not-for-profit organization. It is funded by different levels of government. It looks into the root causes of crime, with the objective of making Edmonton safer in one generation. It really found value during the pandemic. It works with hundreds of newcomers and with indigenous committees. There is also the Africa Centre. It works with inner-city agencies.

E. Witness: Ms. Gee

[371] Ms. Gee is the district director, parole, for Saskatchewan and northwestern Ontario for the CSC. As of the hearing, she was in the position for two years. Before this, she was the warden at the Regional Psychiatric Centre in Saskatoon in 2016. From November 2011 to 2016, she was the CSC’s district director for Alberta and the Northwest Territories.

[372] In her role as the district director for Alberta and the Northwest Territories, she is the senior executive responsible for all community corrections for a particular region. The CSC’s Prairie Region has two districts, Alberta and the Northwest Territories, and Manitoba, Saskatchewan, and Northwest Ontario. Both district-director positions are classified EX-02.

[373] The district director is responsible for district parole officers, supervising released offenders, programs, contracts with community partners, halfway houses, section 81 healing lodges run by indigenous partners, and providing institutional beds to federal offenders. In addition, the district director is responsible for financial resources as well as buildings, vehicles, and other resources.

[374] Alberta is one of the smaller districts in terms of geography but the largest due to the staff and the number of institutions. There are many sites and over 200 staff, a number of halfway houses, Stan Daniels, and a healing centre for women.

[375] Eight parole offices are located in Calgary, Red Deer, Lethbridge, and Edmonton, Alberta. There are also contract parole offices.

[376] In terms of the reporting structure, Mr. Nash is a WP-4 parole officer. His position reports to a parole officer supervisor, a WP-5, who in turn reports to an area director, a WP-6, who in turn reports to her district director position.

[377] Some aspects of the jobs in turn report to an associate district director, who holds a WP-6 position. One works out of the district office and manages not parole officers but programs.

[378] When she became the district director in Edmonton, the position was vacant. Ms. Fox, the previous director, had just retired.

[379] During the first few weeks in her position, she tried to meet her staff. She stated that she did not remember meeting Mr. Nash at the parole office.

[380] He dropped into her office to meet her some two weeks after she started in her position. They had friends in common.

[381] She took nothing in particular from the meeting. He was friendly and knew some of the same people she knew. He was there to review his file with Human Resources. He seemed nice.

[382] She was asked whether she had any discussions with him about his career aspirations. She stated, “Yes; absolutely.”

[383] She reached out to Mr. Nash on January 9, 2013, with respect to his career aspirations. She sent him an email, which reads in part as follows:

… I would like to meet with you in person to follow up on the meeting you had with the Commissioner and Mr. Macaulay last year. Although I was not privy to your meeting, my understanding is that you had a conversation around coaching and possible developmental opportunities

I would also like you to bring your PDP and your last PER [performance evaluation report] to the meeting so we can review those documents as well.

…

 

[384] They met the next day, on January 11, 2013. They talked about a career coach. During his meeting with Mr. Nash, the CSC’s commissioner had talked about arranging for a career coach. Ms. Gee talked about a potential coach from the Alberta office or CSC. Mr. Nash had serious reservations. He stated that he had been labelled as a whistle-blower and that he would not receive a fair shake with a coach from within CSC. They talked about mobility and whether Mr. Nash would be willing to move. He said that he had already sent a résumé to the CSC’s Pacific Region. They had a conversation about the last staffing process for WP-6 area-director positions. He did not apply. He felt that an assignment at that level would be appropriate. These positions were two levels higher than the one Mr. Nash occupied then.

[385] He shared concerns about an email she had sent congratulating someone who had been appointed to a position on an acting basis. They talked about parole officer supervisor positions that were one level above Mr. Nash’s then-current position. He advised her that he chose not to apply for them as he felt that because he had recently completed an assignment at Stan Daniels, those positions were similar to the parole officer supervisor position, and that he had already done that.

[386] She reminded him that when a pool of qualified candidates is in place, it is accessed first.

[387] They discussed two earlier parole officer supervisor appointment processes. One had been posted while he was on vacation leave, and he had been unable to apply to it. The one before it he had applied to but did not qualify in.

[388] They talked about a deputy director position at a healing lodge, which he had applied for, but he had been screened out. He felt that the process was flawed. He attempted to contact the selection board by email to engage in an informal discussion process about having been screened out. He felt that his request was being ignored.

[389] They talked about indigenous organizations and Stan Daniels. He stated that he was not interested in any further Native Counselling Services of Alberta appointments. He had no interest in the Edmonton Institution. Healing lodges were still of interest but only if an available position was above his level. He had been screened out of the district director position at the Pê Sâkâstêw (“Pesak”) Centre (a healing lodge) as his résumé did not demonstrate how he met the essential criteria of significant experience managing correctional operations and/or interventions in an institution or community setting and significant experience managing human and financial resources.

[390] He had just completed an assignment with CORCAN on the scaffolding project creating opportunities for inmates. However, he felt that it was a make-work project.

[391] He felt that leadership and management was lacking for Aboriginal Initiatives in Alberta, given the number of offenders. He believed that he should be appointed as a manager of aboriginal programs for the Alberta district, where he would supervise staff, manage a budget, and greatly improve results for Alberta. She advised him that no such position existed.

[392] This led to a discussion about project positions above his level that might be available with Aboriginal Initiatives both regionally and nationally.

[393] Ms. Gee agreed to share his interest and experience with Aboriginal Initiatives regionally and nationally for its consideration in any future assignments, either developmental or on an acting basis, if he updated his résumé and completed his performance development plan.

[394] She noted that he expressed a desire to teach other staff and that he shared that he had requested education leave in the past. She explained that the instructor positions at the staff college would not be above level and that it would have no staff supervisory or budget responsibilities. He did bring in a copy of his personal evaluation report, which referred to his evaluation from the work he had performed at CORCAN.

[395] They talked about the PDP, which is the basis for future training and developmental assignments. When he showed her his PDP, other than containing generic information, it was blank. This document drives career development. Mr. Nash thought the PDP was flawed and useless, and he had no intention of filling it out. She encouraged him to fill it out.

[396] She encouraged him to reconsider applying to future appointment processes. She advised him that those who had qualified would always be considered. If he did not apply, he would not be placed in a pool, and he would have a slim chance of ever being appointed to a position.

[397] Her notes read as follows:

…

… I encourage you to rethink your stance on applying in future supervisory level competitions. This is often the first level of supervisory and management experience for many of our WP4 level staff and can afford valuable experience with direct responsibilities for the management of human and financial resources supported by mandatory training in areas such as finance, staffing, labor relations, crisis management, etc.

…

[Sic throughout]

 

[398] She advised him that she would confirm with him once she received a copy of his CORCAN evaluation and that she would copy him when she forwarded his résumé to Aboriginal Initiatives for its consideration. She sent the email after 4:00 that day. Mr. Nash’s résumé was sent to representatives of Aboriginal Initiatives both regionally, to Lawrence Burnouf, and nationally, to Marty Maltby.

[399] Mr. Nash said that her version of their discussion was interesting but not accurate. She shared with Ms. LePage both her email and his email of January 11.

[400] She was asked whether subsequent meetings were held about his career aspirations after this one.

[401] She stated that she forwarded to Mr. Nash opportunities and posters for positions that could help his career development.

[402] Mr. Maltby of Aboriginal Initiatives forwarded to Mr. Nash an email with positive feedback from participant evaluations from Parole Officer training that Mr. Nash had performed. In turn, Mr. Nash shared that email with Ms. Gee. She acknowledged the email on January 23, congratulated him, and advised him that Paul Urmson, who had been on the board for the staffing at the Pesak, had come to talk to her and had advised her that he had spoken with Mr. Nash about the Pesak appointment process.

[403] She stated that they should talk again about where he would be willing to go on an assignment. Mr. Urmson had recommended an institution.

[404] She emailed him as follows on February 7, 2013, advising him that she would be at the Regional Management Meeting the next week and asking him if he had given any more thought to what kind of an assignment he would consider for that boost to recent operational experience at a site:

…

It is the perfect timing for me to see what might be available….I get that you may absolutely have no interest in one or both of those sites…but I don’t want you to think I have forgotten you and our plan to explore the kind of developmental assignments that will address the things you were screened out of on the Pesak comp….

…

 

[405] She stated that the next week, she followed up and that at the regional management meeting, she was advised that one of the things that Mr. Nash needed was more institutional experience.

[406] She wrote to Mr. Nash, asking him if he was interested in obtaining operational experience. He replied, stating that he was interested in an AS-7 position at CORCAN. He asked her to help him apply for it. He was not interested in other positions.

[407] She was asked if she helped him. She stated that she did. She found the poster the same night. She provided a detailed process that he should follow. She suggested wording for the covering letter and for the application. She advised him to discuss the scaffolding project and sent him tricks to use to write a good cover letter. She advised him that the cover letter had to indicate how he met the position’s qualifications. She made suggestions that he could use for each qualification area.

[408] She cut and pasted text from the poster and suggested how he could address what each section asked for. She suggested how he could cover the list of essential criteria and the abilities section.

[409] The email reads as follows:

Okay, I found the advertisement…you know this is in Saskatoon right?

So your cover letter will start with the standard “attached please find my resume for your consideration which clearly demonstrates my possession of the essential criteria required for the above noted position” You might want to include the fact you just completed an assignment with Corcan on the scaffolding project…..

Then go into a brief paragraph that highlights how you meet all the essentials.

The poster says this for essentials (below) but the SOMC goes into more details….meet the essentials clearly in your application or you will get srcreened out…

Applicants must clearly demonstrate on their application that they meet all the following essential criteria and are within the area of selection. Failure to do so may result in the rejection of your application.

Successful completion of a degree/diploma from a recognized university in an area relevant to the position or a combination of education, training and experience.

Experience in the management and control of both human and financial resources.

Experience in the development of reports, presentations and / or business plans/budgets.

Experience in the planning, organization and implementation of programs and/or projects.

The SOMC goes into more details…..

Successful completion of a degree/diploma from a recognized university in an area relevant to the position or a combination of education, training and experience.

“I graduated in XX with my degree in XX and since that time have been employed with the CSC for over xx years. During that time I have held several positions as well as completed assignments as XXXX” (stan daniels, COrcan, any acting)

Most notably, during my assignments as XX XX XXX (highlight the management and supervisory) and then use the bullets for experience to demonstrate how you met each one.

Experience in the management and control of both human and financial resources.

Experience in the development of reports, presentations and / or business plans/budgets.

Experience in the planning, organization and implementation of programs and/or projects.

For these, highlight the Corcan - but talk about how “my recent assignment with corcan allowed me the opportunity to develop and demonstrate…..then talk about the criteria….

Knowledge of business management practices

Knowledge of acquisition principles.

Knowledge of CSC and CORCAN, mission, mandate and organization.

Knowledge of production, management, monitoring and quality assurance.

For abilities, you can highlight your daily work your assignments and all the volunteer work you have done with the Lifeline Group and the work you and Leland did with the Aboriginal partners last year…in this part, self identify “as an active member of my community and a strong Aboriginal man who works to be a role model for other…then go from there…the poster clearly identifies the organizational need as members of an EE group….

Ability to develop effective positive relationships with diverse groups and individuals.

Ability to communicate effectively orally and in writing.

Ability to conceive, plan, implement, manage and deliver multiple projects.

Ability to anticipate and manage change and make choices among a variety of urgent organizational demands

Ability to negotiate.

Ability to co-ordinate and provide oversight to diverse regional operations.

Ability to analyze and utilize financial and production information.

Ability to deliver business plan results

Effective Interpersonal Relationships, Reliability, Judgement and Motivation

If you have room and your cover letter is not getting too long, try and highlight how you not only meet the essential but also meet the asset criteria….

Your resume is already up to date with the recent comp at Pesak…but take a look at it Corey and make sure that it demonstrates the Essentials and the Assets in the poster.

If there is a ton of applicants the screening process will look first at the cover letter which will refer to the Resume…if the cover letter covers the essentials well…then the board will go to your resume…..if the cover letter is weak….sometimes they don’t go any further than that…especially when the advertizment states

apseega in the poster…..

…

[Sic throughout]

 

[410] Mr. Nash emailed her and thanked her. He then asked her if she thought that he met the essential criteria. He also asked if he could forward the cover letter and résumé to her for her review before he submitted them.

[411] She replied that she did not know if he met the criteria and advised him that she was leaving for Saskatchewan that day and that she would be away from the office for the next week. She did not want him to wait for her to submit the application and risk missing the deadline. She stated that if she could open his cover letter and résumé on her BlackBerry, she would look at them. She again advised him not to miss the deadline and wished him good luck.

[412] She heard a month later that he did not apply for the position.

[413] She was referred to a posting for a regional communications officer at the PM-4 group and level at the Parole Board of Canada. She had committed to Mr. Nash that if she saw posters that may be of interest, she would provide them to him.

[414] She sent it to Mr. Nash on February 8, 2013. She was not sure if the assignment would be promotional or developmental. He responded to her that he was interested although he would have to be seconded at his group and level as the position was classified below WP-4. He believed that he would have much to offer. She stated that she did not know whether he followed up on the opportunity.

[415] She also became aware of a call for interest in a project officer of assessment and interventions at the AS-5 level. She forwarded it to Mr. Nash on February 8, 2013, adding, “Man…Your resume is going to get a work out [sic]!!”

[416] She was asked why she had recommended this AS-5 project position to Mr. Nash. She stated that he might have acquired additional skills and exposure to Regional Headquarters. It was a slight promotion, and she felt it was worth considering on his part.

[417] Mr. Nash responded on February 15, 2013, stating that he did not apply. However, he was interested in the WP-6 area director positions in Alberta. He sought clarification and noted that currently “D” (name anonymized for this decision), who had applied, was occupying the vacant area director position in Edmonton for his development. The grievor queried who were occupying the two vacant area-director positions in Calgary. He understood that one had qualified and that the other was in a developmental opportunity that the grievor would be interested in. He also queried the status of area directors in Red Deer.

[418] Ms. Gee replied on March 6, 2013, stating that she was sorry that he did not apply as she thought he would have done well. She answered his questions about Calgary and Red Deer.

[419] On September 10, 2013, she became aware of an AS-6 job opportunity at the Parole Board of Canada. She forwarded it to Mr. Nash, stating, “Info for you…..this would definitely fall into the type of position you and I spoke about before as far as your areas of interest and experience.”

[420] She stated that she did not know whether he applied for the position.

[421] On November 8, 2013, she notified all district staff of a call for interest for a project officer at Aboriginal Initiatives at the AS-5 group and level. She sent a separate copy directly to Mr. Nash and advised him that it might be of interest to him.

[422] She heard back from Mr. Nash on November 15, the closing date for applications. He advised her that he would be interested and that Mr. Urmson had a copy of his most recent résumé. He stated that he would like to send a letter as well. However, he was at the Diverse Voices Family Violence conference in Edmonton and had been part of the steering committee; the week had been hectic. Normally, he would have considered this opportunity over a weekend or in the evening, but his time with his family was also precious and a priority for him.

[423] Ms. Gee responded the same day. She advised him that Mr. Urmson was not available as he was on long-term sick leave. She suggested that if he was interested in the posting, he should apply and send his résumé, and that he had been given the same notice as everyone else in the region.

[424] He replied, asking Ms. Gee if she had a copy of his résumé and stating that if she did, could she forward it to him. She replied that she did not have a copy on her BlackBerry.

[425] She stated that she did not know if he applied for the position.

[426] During the initial conversations with Mr. Nash, she said that she would forward his résumé to certain people in Aboriginal Initiatives in the regional and national headquarters, namely, Mr. Burnouf and Mr. Maltby.

[427] She was asked if she had spoken with Mr. Burnouf or Mr. Maltby about Mr. Nash. She stated that she likely did but that she did not recall.

[428] She was asked if she had any further discussions with Mr. Nash. She stated that she probably did. She knew the dates of them because she had the emails. She did not stop communicating with him. She communicated with him until she left the district.

[429] She was asked if she had had a similar interaction with any other parole officers in the district; that is, whether she forwarded or recommended career opportunities to them.

[430] She replied that she did not, at the WP-4 level. She was asked why she continued to assist Mr. Nash. She stated that she did so because he said that he was interested in working with her. She made a commitment. She had been a mentor. He was distrustful. They had started on a good footing, and she met with him a few times. She tried to address his concerns when others secured appointments. She tried to be fair and transparent. He shared with her that he felt that he had been treated poorly. She tried to be fair and to share information about potential jobs.

1. Cross-examination

[431] She was asked whether when she went to Edmonton in November 2011 there were any indigenous supervisors or managers in the district. She stated that off the top of her head, she did not know. She did not know whether any employees had self-identified as indigenous.

[432] She confirmed that Mr. Nash was involved in an important assignment at Stan Daniels and one at CORCAN.

[433] She agreed that he did a good job at CORCAN.

[434] During their meeting, Mr. Nash advised her that he had been screened out of a number of appointment processes.

[435] She could not really comment on whether Mr. Nash’s rejections discouraged him from applying for other jobs.

[436] She was aware of a report dated June 2012 and entitled, “Commissioner’s National Aboriginal Employee Consultation”, and in particular the problems faced by aboriginal employees in CSC.

[437] She knew that Mr. Nash was Métis.

[438] Specifically for Mr. Nash, she did not believe it was true that as an indigenous man, he has faced more hurdles in his career because of his race.

[439] She stated that absolutely, there are systemic barriers for indigenous people in corrections.

[440] Counsel read from pages 22 and 23 of the report, which state as follows:

Career Development

Some staff of Aboriginal ancestry find it challenging to advance their career within CSC. They expressed that few opportunities for development and training are available to them. Consequently, they feel confined to certain classification groups or professions where they do not get opportunities to develop managerial competencies. A large number of participants expressed the desire to create an Aboriginal Human Resource position that will assist in career development and training opportunities. This new resource -located in one central area - would work integrally with the Human Resources Management Sector to contribute to workplace well-being and labour relation issues.

 

[441] She was asked if she saw the link, given that she had read the paragraph in light of Mr. Nash’s circumstances. She replied, “Yes.” Mr. Nash is a good example. He received special assignments and training. Had he applied for positions, he would have had a great advantage over other aboriginal applicants.

[442] She was referred to her email to Mr. Nash dated January 8, 2013, about Edmonton area directors.

[443] Ms. Gee stated that she would frequently hear from Mr. Nash when someone else was appointed to a position. On January 7, 2013, all district staff were advised of those who were to continue in the roles of area directors on an acting basis for the Edmonton parole office.

[444] Mr. Nash wrote the following to her:

… I was to understand from your initial communiqué to staff that the Associate District Director position was a developmental assignment. I understand though that only Ms Louhela was developed in that capacity and then appointed. Is this the same with her vacated position of Area Director in that only Derek will benefit from the experience from that developmental assignment?

 

[445] The 2011 plan was to use this position possibly as a developmental assignment.

[446] She replied to Mr. Nash on January 8, as follows:

Ms. Louhela was appointed to the WP6 ADD position indeterminately in 2012. This was a deployment/appointment at level as both the ADD and AD positions are WP6 and come from the same National Qualified Pool of candidates. I had initially considered the use of this as a developmental position for my Area Directors, but it became quite clear as I learned (and am still learning) the duties and responsibilities of my position that it was imperative that this position be staffed indeterminately as this is my go to person, my coveroff, primary actor and my 2IC. I shared her appointment in an email to all staff, recognizing her deployment to the position when it occurred. The appointment would have also been posted on the PS website.

Mr. Stankey is the only qualified candidate in the active National WP6 Area Director Pool from the Edmonton Area. As a result, he will continue to act until an indeterminate vacancy exists or I am able to risk manage the position. At that time I will submit a best fit rationale to staffing, and the succesful candidate will be offered an indeterminate position or in the event there are any deployment requests or priorities, they would need to be considered as well.

Mr. Winkfien, who is also acting, has qualified in a National Process for the WP6 Area Director position.

Mr. Kane was appointed in an Area Director Position prior to my arrival and will assume those duties once the DRAP activities impacting his areas of responsibility are finalized and the incumbant from the National AS6 ADDMS pool can start.

…

[Sic throughout]

 

[447] She was asked if she had the authority to designate a position as developmental. She stated that she had the discretion to manage vacancies and/or to fill positions up to the WP-6 level. She could use one as a developmental position for a supervisor or project manager.

[448] She stated that she explained to Mr. Nash that she drew people from a qualified pool. They would have applied, gone to the interview, and had their references checked, and then, if they were qualified, they would have been placed in a pool.

[449] She was referred to an email she received from Mr. Nash, which was copied to Mr. Head, the commissioner, and Ms. LePage. Mr. Nash’s email reads as follows:

…

I wanted to reiterate my email below with respect to expression of interest for WP-06 acting assignments. I understand, as per our conversation, with respect to Calgary. The Vacant Area Director positions that are currently being used for development are not staffed by persons qualified at WP-06, that they in fact did not qualify in the last Area Director competition and alternating in and out of the Area Director position in Calgary. Both unsuccessful candidates are therefore being groomed as WP-06 for the next Area Director competition. Can you please confirm for me when the notice of expression of interest was sent out for these developmental assignments? As below I have expressed interest in those assignments and have previously advised you of the staff occupying that developmental assignment as not having successfully competed in the WP-06 Area Director competition you reference below. Can you please advise me as soon as possible as to the status of those A/Area Director assignments?

 

[450] She referred to her response dated September 19, 2013, which reads as follows:

…

As I shared with you during our meeting, the two indeterminate Parole Officer Supervisors who have been acting most often in the Area Director Position in the South were both in the WP6 AD/ADD competition that established the current pool. Although they were not successful, they both did extremely well and the acting assignments were identified to address the area(s) that they failed to qualify in as demonstrated during their interviews. I must also clarify that there are two additional indeterminate WP5 candidates who have also acted in the position you make reference to, one of which has since been appointed indeterminately at the WP6 level.

As I discussed with you during our meeting, I want to again encourage you to reconsider your stance to not apply for or consider acting in a Parole Officer Supervisor position. The duties and responsibilities of this position will allow you to develop, hone and demonstrate the essential qualifications for many positions at the WP 5 level and higher during the competitive processes.

Many of our existing Area Directors come from WP 5 or equivalent level positions (Parole Officer Supervisors, Program Managers, MAI’s/UM’s, etc). In the community, unlike the institutions, we have a more limited number of middle management and supervisory positions to afford staff in entry level positions to access for developmental purposes.

If you are interested in being considered for acting at the WP5 level please let me know and I will ensure my Area Directors are aware of your interest and that you be considered for a future acting opportunity that may become available.

 

[451] She was asked again if she could understand why Mr. Nash would feel discriminated against.

[452] She stated, “No.” They were talking about employees who were WP-5 supervisors being supported developmentally for WP-6 positions. Staff will go through the process and put in considerable work. They apply. In the case of the two individuals, they did well in the appointment process but not in a couple of areas. The baby should not be thrown out with the bathwater.

[453] Mr. Nash would not go through the process. He would not take the first step to be supported. He would have had an advantage because of his work at Stan Daniels and CORCAN.

[454] He had already decided what was for him. He would not follow through. She stated that she recognized he did not have trust. She reiterated that he should have gone through the process of applying for a WP-5 position, which was the next level. Most of the area directors had come up through a WP-5 position. He would not apply. He was not interested in a position on an acting basis. He had clear expectations.

[455] She was referred to the email of January 2013, which is the summary that incorporates Mr. Nash’s comments. She was advised that he disagreed with a number of the points.

[456] Mr. Nash recited that he had proposed to resolve this through alternate dispute resolution but that the offer was refused. She was asked if she had followed up on it. She stated that she did not remember.

[457] She was asked about the CORCAN project and whether she had approved his participation. She stated that she did not approve the project.

[458] She was referred to a letter from Mr. Head, the CSC’s commissioner, to Mr. Nash dated July 10, 2012, with respect to scaffolding training and was asked if she recalled the contents. Mr. Nash had shared it with her to support his résumé. Mr. Nash spoke at length about his awards and recognition for projects he had done at Stan Daniels and CORCAN and for his involvement with the Alberta Federal Council. He brought to her attention that he had been recognized for the work he was doing.

[459] She was referred to a letter dated September 17, 2012, from Ms. LePage congratulating Mr. Nash on receiving the Alberta Federal Council’s recognition award.

[460] Mr. Nash commented on her narrative of their October 1, 2015, meeting and to the extract in which he refers to an area director, Lori Louhela, explaining that he did not qualify for an appointment process as he was not a team player. She was asked whether she discussed this comment with Ms. Louhela. She believed that it happened some eight years in the past. She was more concerned about the present.

[461] She was asked whether as area directors Ms. Louhela and Mr. Stankey had the ability to influence assignments made on an acting basis. She replied that normally, the person to whom an employee reported would be the direct report, not the area director.

[462] She was asked if a WP-5 parole officer supervisor lived in Red Deer while remotely supervising people in Calgary. She said yes; he had been in a substantive position there for many years. He did not supervise anyone remotely.

[463] She was asked if as the district director she had the authority to make certain positions developmental, and if so, whether it would have been possible to make a WP-5 supervisor developmental position. She said, “Yes.”

[464] She recalled meeting with Mr. Nash at Canada Place in Edmonton. He advised her that he was unhappy at CSC. He said that he wanted a position in the EX group. She did not have the authority to appoint him to one; the Public Service Commission makes appointments. If he wanted to be appointed to such a position, he had to apply for one.

[465] Mr. Nash then said. “Fine; I want to be appointed as a member of the Parole Board.” She advised him that that was a Governor-in-Council appointment. He then said, “I guess there is nothing you can do for me.”

[466] She did not recall discussing career development opportunities in other departments.

F. Witness: Ms. LePage

[467] Ms. LePage is retired from the CSC. She started her public service career in 1984 in corrections as a living-unit officer in Edmonton, which was as a frontline worker.

[468] She was a parole service officer from April 1986 to August 1990. She completed case preparation for provincial and federal inmates and presented cases to the Parole Board of Canada for decision making. She was the parole police-liaison officer responsible for ongoing communications and for developing good relations with the Saskatoon city police as well as the Elizabeth Fry Society in Saskatoon.

[469] From there, she went into management and was appointed the warden of the Saskatchewan Penitentiary and the Riverbend Institution, which she held from 1999 to 2008.

[470] She became the regional deputy commissioner and assistant deputy minister in the CSC’s Prairie Region in April 2009, which she held until November 2013. In this position, she was accountable for the implementation, delivery, monitoring, and continuous improvement of all aspects of the CSC’s operations in the region. During that time, she was a member of the Commissioner’s National Aboriginal Advisory Committee and worked closely with indigenous leaders, academics, and community-based organizations to address issues and develop programs and initiatives to reduce the gap in correctional results for aboriginal offenders. She led in developing a section 81 agreement with Native Counselling Services of Alberta, which saw the creation of Buffalo Sage Wellness House for minimum-security and released aboriginal female offenders in Edmonton.

[471] She became the assistant deputy minister (ADM), Saskatchewan western economic diversification, in November 2013, which she held to her retirement in February 2016. As the ADM for Saskatchewan, she was responsible for regional development in western Canada by developing and supporting economic policies, programs, and activities to promote economic growth.

[472] She worked with several organizations, including those representing indigenous people, and with other levels of government to maximize the benefits of the government’s investment in western Canada. She was the departmental lead responsible for revitalizing the western Canada business service, which was composed of community-based not-for-profit organizations, including Community Futures Canada, Women Entrepreneurs of Canada, the Aboriginal Business Service Network, and the Entrepreneurs with Disabilities Program. That required extensive consultation in negotiations with community-based organizations, including those representing indigenous persons and persons with disabilities, for which she was awarded the Deputy Minister’s Award of Excellence.

[473] As the deputy commissioner, corrections/ADM for the CSC’s Prairie Region, she reported directly to the deputy minister of corrections. She was the most senior person in the western region.

[474] She had a staff of 3500 reporting to her and was responsible for the operations budget and staffing in the region. She was also responsible for dealing with harassment complaints.

[475] She was asked as to in that role, how often, on a day-to-day basis, she dealt one-on-one with employees.

[476] She was based in Saskatoon. She had no contact with staff in the field. Only those classified in the EX group reported to her. Typically, she would not have interacted with line staff given the many levels in the organization between her and the line, although she always believed in an open-management style.

[477] She stated that she met Mr. Nash once at a large function.

[478] A harassment complaint made by Mr. Nash came to her for review. He wrote to her in an email and to her supervisor, the commissioner. She determined that the complaint did not meet the Treasury Board’s screening criteria.

[479] However, she was concerned about what Mr. Nash stated about his career aspirations. She decided to have it investigated.

[480] She stated that she tried to mentor and share her career story with him.

[481] She wrote to Mr. Nash on August 8, 2011, advising him that it had been determined that his harassment complaint did not meet the screening criteria under the Treasury Board’s policy. Nevertheless, she stated this:

…

Your e-mail lists a number of points, many that relate to your career development or career aspirations and in that regard, I have asked that an independent review of your concerns be undertaken. You will be further advised when this review has been completed.

…

 

[482] She assigned the review to the ADM of corporate services.

[483] She wrote to Mr. Nash on March 29, 2013, with the results of the review of his concerns about his career development.

[484] The essence of his complaint was that his career was stalled for lack of training. She found that he had received a significant amount of training beyond what the average parole officer would have received. He had requested a significant amount of training. He did not receive all of it because of a lack of resources.

[485] His management team had found opportunities for a supervisory role at Native Counselling Services of Alberta and leadership courses in Banff.

[486] Ms. LePage stated she was not in a position to support the cost of him returning to school to pursue a law degree and an MBA. She supported parole officers returning to school to become psychologists. The CSC needed psychologists.

[487] She tried to support all the staff.

[488] French-language training was available online through the Canada School of Public Service. On-site training was also available. He would not have been available to take full-time language training until he reached that stage of his career.

[489] In terms of the corrective action he sought, namely, an immediate appointment to the WP-6 group and level, no finding of wrongdoing or discrimination was made. Therefore, there was nothing to remedy.

[490] He had not been assessed. He had chosen not to apply. He was not in a qualified pool. It would have been wrong to promote him above the others who had been placed in a pool. He had not gone through an appointment process for her to assess him.

[491] Here is an extract of the March 29, 2012, letter:

… I have reviewed your concerns in relation to your career development. I was encouraged to learn of the level of support you have received, particularly in the past two years, in relation to access to training opportunities to enhance your career aspirations in a leadership and managerial capacity. I was also pleased to learn of the success of your one year developmental acting opportunity as a Parole Supervisor at Stan Daniels Healing Lodge from 2009 to 2010. I also understand that a commitment has been made to support you in further expanding your CSC experience with an assignment working with Corcan.…

… You have requested the immediate appointment to a WP 06 Level to assist with the resolution of harassment, discrimination and to improve management practices. As expressed above, there has been significant support and time commitment to providing you with access to training and meaningful developmental opportunities. Your next step is to actively pursue and apply on advertised processes to which you meet the essential criteria. I understand that there was recently a Parole Supervisor process advertised for the community. I was disappointed to learn that you chose not to apply on this process in order to be assessed with the potential of being in a qualified pool for future acting and/or indeterminate managerial appointments. You have indicated on numerous occasions that you are interested and capable of taking on senior management roles. I would strongly encourage you to consider applying on future opportunities as they arise as this has the potential of opening doors to support your desired career progression into management.

…

 

[492] She was asked if she was aware that in 2000, he had been assessed as a high-potential aboriginal executive. She stated that she knew about it as he had put it in his complaint although she did not see the document until she prepared for the hearings.

[493] She was asked if she was aware of the Public Service Commission’s executive simulations. She had been through one in her career. A candidate assumes the role of a director in a fictitious agency. The simulations are conducted by way of role-play, using actors or former public servants. A competency profile is prepared by assessing the candidate’s performance in the role-play. The profile outlines overall performance patterns and assesses the candidate’s potential to go through a career assignment program.

[494] Candidates were given assignments either in or outside their departments over a two-year period, over which they were assessed. They were prequalified to a certain level.

[495] Sometimes, the program targeted specific employment equity groups. She did not know whether it targeted indigenous staff.

[496] She did not know anything about the CAP assignment results as the complaint was made some 10 years later.

1. Cross-examination

[497] She had no comments about Mr. Nash’s claim that any development opportunities provided to him were provided as a result of him making complaints.

[498] The time spent investigating harassment complaints can vary. Some investigations can take years. Decisions can be made within weeks as to whether a complaint will be acted upon.

[499] She did not have enough knowledge to form an opinion that the employer had not done anything wrong. She was not Mr. Nash’s supervisor.

[500] He had received support. There was considerable evidence that he had received the same or more support than other employees had received. She did not see any evidence that he was applying to appointment processes in a merit-based process.

[501] She thought that it was a fair comment to state that indigenous staff face systemic barriers. There are many examples in society. Corrections is not an exception.

[502] She had created developmental positions for employment equity groups. Appointment processes were run that were limited to employment equity groups. Significant work had been done with advanced leadership programs. A national program was in place. People were working on assignments throughout the region at several sites.

[503] Reference was made to her letter dated September 17, 2012, to Mr. Nash congratulating him on receiving the Alberta Federal Council’s recognition for his work on the Aboriginal Employee Network. She was asked if she recalled sending it.

[504] She stated that she had 3500 employees reporting to her. She accepted that she sent the letter. Doing so was her style. She was asked whether the employer or Mr. Nash initiated his participation. She said that she had no idea. Line managers would have been involved.

[505] She was asked whether she was aware that Mr. Nash had gone on assignment with CORCAN. She stated that she knew that he had gone on a three-month assignment at Stan Daniels. She did not know how he had been assigned. Either one of the managers or Mr. Nash might have found the assignment. She might have been aware of the project’s results at the time, but as of her testimony, she did not remember.

G. Summary of the submissions

1. For the grievor

[506] This grievance is about the discrimination Mr. Nash has experienced while trying to advance his career.

[507] This has been ongoing since he self-identified as Métis in 2000.

[508] In his evidence, he spoke extensively about his background as a parole officer, his educational background, and his CSC career, which he started in 1997. He obtained an indeterminate position in 1998.

[509] Since the beginning of his career, he has made known his aspirations to advance. He stated that in 2000, he participated in the CAP. He was identified as a high-potential candidate. He also self-identified as Métis. Before then, his work had been exceptional, and he had been considered to carry out judicial reviews. After he self-identified, he found that he could not write a single report and that his work came under greater scrutiny.

[510] His career then stalled. He was not provided with the same advancement opportunities as were his colleagues.

[511] He also testified about the comments that Mr. Stankey and Ms. Louhela made about him.

[512] He testified about harassment complaints and disparaging comments that had been made about him in the district office about concerns with historical performance issues.

[513] The Board heard from Mr. Sawatske. He testified that before Mr. Nash’s arrival in Edmonton in 2004, Ms. Fox had told him that Mr. Nash was a problem employee and that there were related concerns. After having worked with him, he considered Mr. Nash a good employee.

[514] When Ms. Gee was asked if she ever followed up with Ms. Louhela or Mr. Stankey, she stated that she had not. This speaks to Mr. Nash’s concern, which was that his employer was stymieing his career development.

[515] While Ms. Louhela and Mr. Stankey had no issues with moving their careers forward, they had control over the trajectory of his career. When Ms. Gee was asked whether it was possible for individuals in area director positions on an acting basis to have an impact on a parole officer’s advancement to a supervisory level, she said that it was possible.

[516] Mr. Nash had been previously screened out of a parole officer supervisor position on the basis that she felt that he was not a team player.

[517] Mr. Nash also testified that he was repeatedly told that he needed to qualify to be placed in an area director position on an acting basis. However, some people had done so despite not qualifying. Mr. Nash had expressed an interest before in such a placement. He was told that he had not qualified. This speaks to his concern that he was not afforded the same opportunities to occupy positions on an acting basis that would have contributed to his development. Instead, he was told that he should reconsider his stance and apply for a WP-5 supervisory position.

[518] However, he had already been at this level in a similar position as a parole officer supervisor on an acting basis at Stan Daniels. It was noted that his work there was positively received.

[519] Mr. Nash spoke of the initiative he took at Stan Daniels in creating a bring forward (“BF”) system, in which he also trained staff. The system is still in use. He also testified that he supervised six staff composed of parole officers and community officers. The assignment was extended for almost one year. It took up to one year before an appraisal was performed, which was done only because he requested it.

[520] After the assignment ended, he did not receive feedback with respect to his progress or any rationale as to why he was offered no other opportunities.

[521] In Mr. Nash’s view, despite receiving accolades for the work he did there, it was not good enough to provide opportunities on an acting basis like those provided to Mr. Stankey and Ms. Louhela.

[522] Ms. Gee said that she had the authority to designate positions as developmental from parole officer supervisor up to WP-6 area director positions. This speaks to Mr. Nash’s concern that he was treated differently as he was not being afforded the same opportunity as were others. Ms. Gee could have designated a higher-level position as developmental and allowed Mr. Nash to occupy it on an acting basis. He made it clear that he had asked repeatedly to receive the same opportunities to occupy higher-level positions on an acting basis. None was ever provided to him.

[523] Despite not receiving any opportunities, he continued to make efforts to develop his leadership skills and to provide good work to his employer.

[524] He obtained a certificate in aboriginal excellence in leadership from the Banff Centre. He provided training on aboriginal social history to staff. He was asked to provide Gladue training as well as parole-officer continuous-development training on policy. Much of the training, especially on social history and Gladue, dealt with issues relating to colonialism and systemic discrimination suffered by indigenous people.

[525] This training took place at the same time as the Truth and Reconciliation Commission of Canada conducted hearings. Mr. Nash experienced ridicule and was subjected to discriminatory comments while providing the training. This demonstrated that racism against indigenous people was still present in the organization.

[526] He received accolades from the training, but it did not lead to advancement.

[527] He also testified about his work at CORCAN in 2012. He delivered scaffolding training to aboriginal offenders. He went above and beyond what was expected to make the project successful. He arranged for monetary donations to fund the program, resulting in no cost to his employer. He created a private-public partnership.

[528] Despite not receiving developmental assignments in CSC, he worked to gain experience outside it through coaching, obtaining certifications, managing budgets, and being a head coach for several sports teams.

[529] Mr. Nash stated how devastating it was for him when he concluded that he had to work harder than his colleagues and carry out additional work to try to obtain the same opportunities as his colleagues did, only to go nowhere.

[530] He was made to feel not good enough. He could do nothing to help his employer see otherwise.

[531] Discrimination against indigenous people is a reality in Canada. In the Gladue case in 1999, which dealt with sentencing, it was recognized that indigenous offenders experience direct and systemic discrimination.

[532] This would also include the federal public service. All the employer’s witnesses recognized that indigenous people experience discriminatory barriers with respect to their career advancement in CSC.

[533] Discrimination is often not direct; it can be circumstantial. It is also well established that discrimination can exist in the absence of intent. In this case, the evidence is that after 2000, when he self-identified as Métis, Mr. Nash’s career stalled. While there is no direct evidence of discriminatory comments made about him or his Métis background or of admissions by the employer, it does not mean that he was not discriminated against.

[534] In Canada (Human Rights Commission) v. Canada (Department of National Health and Welfare), [1998] F.C.J. No. 432 (QL) at paras. 17 to 21, the Federal Court’s Trial Division referred to a text entitled, Proving Discrimination in Canada by Beatrice Vizkelety and quoted from its pages 140 and 156 as follows with respect to dealing with circumstantial evidence:

In cases such as these, where ‘direct evidence’ of illegal behaviour is unavailable, discrimination may be established by way of inference, through the use of ‘circumstantial evidence’.…

…

By contrast to evidence of specific conduct or misconduct on the part of the respondent at other times, a complainant may seek to introduce evidence pertaining to general personnel practices or to the overall composition of the employer’s workforce, … for the purposes of demonstrating that the respondent is engaging in a pattern or standard practice of discrimination. If proved, the fact finder will then be asked to infer from such general circumstances and other supporting evidence that discrimination probably occurred in the complainant’s particular case as well.

 

[535] While there was no direct evidence of a discriminatory practice, one could be established by way of inference and by using circumstantial evidence consisting of a series of facts that could be combined to justify a finding of discrimination.

[536] At the time of the grievance’s filing, no person of aboriginal background was in or on an acting basis in an area director position or in management. When the question was asked of the employer’s witnesses, no one was able to identify persons of aboriginal background in those positions.

[537] The Federal Court went on to state that discrimination is not usually overt and that rarely does an employer advise an employee that it refuses to promote the employee because the employee is indigenous. This does not mean that discrimination does not happen, because barriers do exist.

[538] The grievor wishes to point out that all the assignments he received, including at Stan Daniels, CORCAN, Gladue training, and aboriginal social-history training were focused on dealing with indigenous offenders.

[539] This work and experience were not deemed sufficient to advance his career or to provide him with an opportunity to occupy a higher-level position on an acting basis.

[540] In Moore, the Supreme Court of Canada stated that the question in every discriminatory case is the same. Does the practice result in the claimant suffering an arbitrary and unjustified barrier on the basis of his or her membership in a protected group? When it does, discrimination will be established.

[541] The employer’s practices in failing to recognize his qualifications and its failure to provide the same acting opportunities as his colleagues discriminated against him on the basis of his background.

[542] The grievor asked that I uphold the second grievance.

a. Remedy

[543] The grievor did not pursue many of the remedies sought in the grievance given, in his submission, they are not within the Board’s jurisdiction to grant.

[544] The grievor asked the Board to find that he has been discriminated against on the basis of his Métis background. Based on the personal suffering, humiliation, and anguish that the employer caused him, the grievor asked to be awarded the maximum damages allowable under the CHRA.

2. For the employer

[545] The employer covered the salient facts and the applicable tests and provided general submissions with respect to what the Board should find. Ultimately, it urged the Board to dismiss both grievances.

a. Facts

[546] The Board heard a considerable amount of evidence.

[547] The facts may be distilled into a few points.

[548] The grievor identified and communicated his career aspirations to the employer.

[549] The grievor became frustrated at not achieving a managerial position in the organization and at not working his way into the executive category.

[550] The employer provided extensive support to the grievor through training and developmental opportunities.

[551] What did the employer do to support his aspirations?

[552] What did the grievor do to support his aspirations?

[553] This review will lead to no other conclusion than that the employer took all the necessary steps to assist the grievor.

[554] The evidence will also lead to the conclusion that the grievor sat back and did not participate in his career aspirations.

b. Training by the employer

[555] In cross-examination, the grievor admitted that significant training opportunities were provided to him, as outlined in his résumé. Most of the training was funded by the employer, by CSC or the Canada School of Public Service. He received a scholarship, but the employer funded most of it. The most significant training was in leadership at the Banff Centre, which the employer had funded.

[556] He received training to become a member of BOIs. Ms. Fox explained how this training would facilitate an employee moving towards executive ranks. The employer encouraged him to take training, as evidenced by the Gladue training. After taking it, he became the Gladue trainer and received accolades for it.

[557] His allegations focus not so much on training but on developmental opportunities. Ms. Fox talked about the opportunities provided to him. He was assigned to Stan Daniels initially for four months less a day, which was extended to one year. It was a developmental opportunity. It was not just a higher position. The significance of him being assigned there was that it would demonstrate how he could work with partners outside the CSC, which funded it.

[558] The Board also heard about CORCAN, which was an opportunity provided to him through the district director. It is described in a positive way on his résumé.

[559] The Board also has the facts that throughout the period at issue, Mr. Nash had access to senior people, including the commissioner, Mr. Head; the regional deputy commissioner, Ms. LePage; and the district director, Ms. Fox. All the senior people dialogued with him and mentored him. That opportunity was not afforded to his colleagues at his level.

[560] With Ms. Fox’s departure, Ms. Gee became the district director. She proactively sought to help Mr. Nash not only by addressing his concerns but also by trying genuinely to advance his career.

[561] During Ms. Gee’s tenure, the Commissioner communicated that the organization had to proactively deal with Mr. Nash. She took from that that she would actively look for and provide him with developmental opportunities.

[562] She met with Mr. Nash. One of the things discussed was the CSC’s willingness to provide coaching for him, but he did not want a coach associated with CSC. He never came forward with a proposal; nor did he identify a potential coach. The employer was proactive. He was not.

[563] Ms. Gee forwarded posters and notices for developmental opportunities to Mr. Nash. She specifically sent them to him and encouraged him to apply.

[564] She forwarded Mr. Nash’s résumé to Aboriginal Initiatives in the regional and national headquarters because Mr. Nash had expressed interest in those opportunities.

[565] A developmental opportunity in Aboriginal Initiatives arose. Mr. Nash did not apply for it.

[566] The reason he did not apply was not heard.

[567] The classic situation occurred when Mr. Nash asked her to help him prepare an application for a position. Even though Ms. Gee was on the road, she went through the criteria in the poster and drafted an extensive cover letter for him to use in his application. She advised him not to miss the deadline for applying. He did not apply for the position.

[568] He states that the only reason he did not apply for certain positions was that he was not interested in them as he had done supervisory work at Stan Daniels. He did not want any assignments or appointments on an acting basis at the WP-5 level. He would not apply to just any position. He wanted to be placed in a WP-6 position, without his credentials being assessed.

[569] He relied on a simulation conducted by the Public Service Commission in 2000 of his potential leadership capabilities. Ten years later, he was not interested in applying for positions and putting himself in a pool from which he could be picked for an executive position. A pool could have included designated group members. That would be good career advice for anyone.

[570] The employer provided opportunities to Mr. Nash in support of his career aspirations. He was not open to engaging in appointment processes.

[571] In most of his allegations, he makes assumptions and draws conclusions without going to any pains to establish the facts.

[572] He refers to two individuals in Calgary who had received assignments on an acting basis and who had not qualified in an appointment process. He concluded that they had been recognized over him. But they had engaged in a process. They had not been successful but had worked within the process. He did not apply for the positions.

[573] If he did not apply, there was no opportunity for management to work with him on areas for improvement. He could not turn around and say that he was excluded.

[574] To sum up, the grievor communicated his aspirations. The employer provided him with training and developmental opportunities. There is a copious amount of evidence that it facilitated and supported his aspirations.

[575] The grievor resisted.

[576] The grievor would have it believed that somehow, the employer proactively limited his career aspirations because he was a member of a protected group.

[577] The grievor did not establish a prima facie case of discrimination. The employer’s conduct was not tainted by discrimination in any way.

[578] The test the Board needs to adopt is set out at paragraph 33 of Moore. Essentially, to demonstrate a prima facie discriminatory case, the grievor must have a characteristic that is protected and must have experienced an adverse impact with respect to his employment service. The protected characteristic must have been a factor in that impact.

[579] Once a prima facie case is established, the burden shifts to the respondent to demonstrate that its actions fell within the exceptions.

[580] The grievor has not established a prima facie case.

[581] In the alternative, if he established a prima facie case, the employer provided evidence to rebut it through the training as well as the opportunities provided to Mr. Nash. If the presumption is rebutted, a finding of discrimination cannot be made.

[582] Israeli v. Canada (Canadian Human Rights Commission), 1983 CanLII 6 (CHRT), is a Canadian Human Rights Tribunal decision that deals with the burden of proof and the requirements of a prima facie case in the context of a staffing case. It fits neatly into the fact situation presented in this case. Elements of a prima facie case of discrimination in a staffing case are that the employee applied and was found qualified for a position, yet the employer continued to seek other candidates. Mr. Nash did not even apply.

c. Comment on the grievor’s argument

[583] It was argued that the employer’s witnesses acknowledged that Mr. Nash did a good job. There is no reason to say that he is not competent. None of those witnesses were supervisors at Stan Daniels.

[584] It was suggested that area directors influenced his parole officer career. Ms. Gee testified that area directors could affect a career but that direct supervisors impact one.

[585] Ms. Gee said that she could create developmental opportunities, but she also said that she would have to draw appointees from a qualified pool of candidates.

[586] Mr. Nash never asked Ms. Gee to create a developmental assignment for him. At their meeting, he asked her to place him in a WP-6 position. She said that she could not as doing so was not within her authority. He then asked her to put him into an EX position. She advised him that she did not have that authority. He asked her to appoint him to the Parole Board of Canada. She advised him that that was a Governor-in-Council position. He then advised her that she could do nothing for him.

[587] Mr. Sawatske claimed that Ms. Fox had advised him that Mr. Nash was a problem employee. That evidence should have been put to Ms. Fox when she testified. She was not given an opportunity to deal with the allegation.

[588] It was argued that Mr. Nash had been screened out of a parole officer supervisor appointment process and that Ms. Louhela had advised him that he was not a “team player”. He could have made a complaint at that time with the PSST claiming that it was an abuse of authority.

[589] He was not interested in a WP-5 position. Given that he did not pursue recourse, he could not then turn around and bootstrap his position on an allegation based on discrimination.

[590] It was argued that because the developmental opportunities were all related to Aboriginal Initiatives, they were not valuable to his career; that is, they were ghettoized opportunities.

[591] This is far from the truth. Ms. LePage promoted committees dealing with indigenous issues. This is far from ghettoization. Her commendation letter to him demonstrates that the employer took great pride in his activities. She congratulated him. He has used the letter as part of his credentials.

[592] Reference was made to the fact that there is general discrimination against indigenous employees. When Ms. Gee was asked if barriers impact the careers of indigenous employees, she frankly admitted that it is so. However, it was not true for Mr. Nash, as he had been given numerous advantages.

[593] Mr. Nash was a good example of an indigenous employee who had been given opportunities and advantages over and above those provided to other indigenous employees.

[594] Barriers did not adversely impact Mr. Nash. If anyone experienced barriers, it was not him.

[595] As a matter of law, one cannot conclude that one has been discriminated against simply due to being part of a protected group.

[596] One does not say, “I am black,” and then say that because there is anti-black racism in government, “I have been discriminated against.”

[597] One says, “I applied. I was found qualified. I was not appointed. I have been discriminated against.”

[598] One does not say, “I did not apply. I was not appointed. Ergo, I was discriminated against.”

d. Remedy

[599] The employer asks that the grievance be dismissed.

IV. Analysis

[600] Section 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 that according to s. 3(1) of the CHRA, includes race.

[601] To establish that an employer engaged in a discriminatory practice, first, the complainant must establish a prima facie case of discrimination. In this context, such a case covers the allegations made, and if they are believed, it is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the employer. If the employer does provide an explanation, the onus is then on the complainant to show that the explanation was not reasonable but was a pretext or a disguise for the employer’s otherwise discriminatory conduct. See Ontario Human Rights Commission, at para. 28. The task of the Board at that point is to decide whether the grievor has established, based on all the evidence and on a balance of probabilities, that discrimination has occurred.

[602] In Israeli, which was about a complaint under the CHRA alleging discriminatory hiring practices based on religion, national or ethnic origin, and physical handicap, which were the human rights in the context of a hiring case, the Canadian Human Rights Tribunal set out the requirements for a prima facie case of discrimination at page 4 as follows:

The requirements for a prima facie case of discrimination also seem to be relatively fixed in the case law. The complainant must show: 1. that he belongs to one of the groups which are subject to discrimination under the Act eg. religious, handicapped or racial groups; 2. that he applied and was qualified for a job the employer wished to fill; 3. that although qualified he was rejected; and 4. that thereafter the employer continued to seek applicants with complainant’s qualifications.…

 

[603] Similarly, in Shakes v. Rex Pak Limited (1981), 3 C.H.R.R. D/1001 (Ont. Bd. Inq.), which had a slightly different fact scenario, the requirements for a prima facie case of discrimination were stated as 1) that the complainant belongs to one of the groups against which discrimination is prohibited; 2) the complainant applied for a position for which the complainant was qualified; 3) the complainant was rejected; and 4) the employer hired someone other than the complainant who did not belong to one of the groups against which discrimination is prohibited.

[604] Nash is about Mr. Nash’s complaint of abuse of authority under the Public Service Employment Act with respect to his elimination from an internal advertised appointment process for executive director positions at three healing lodges.

[605] Mr. Nash alleged that the CSC abused its authority by discriminating against him on the basis of his race. Ms. LePage screened the applications to determine whether each candidate met the education and experience qualifications for the position. Mr. Nash was screened out as she determined that he did not meet two of the experience qualifications. He relied upon his year spent as a parole supervisor on an acting basis at Stan Daniels and his three-month experience with CORCAN implementing the scaffolding training program as evidence of his experience.

[606] One of the management criteria required that the applicant had managed for more than four years of full and continuous business cycles. She considered that the complainant’s year spent as a parole supervisor on an acting basis could be considered to address some aspects of the necessary experience. However, the range of experience was narrow and failed to demonstrate the broad range of experience managing, developing policy, or setting a vision.

[607] With respect to the other experience criteria, a candidate had to demonstrate experience managing a budget through two full cycles, planning, forecasting, managing, balancing, and reporting. With respect to human resources, the candidate had to demonstrate managing a group of employees, staffing, labour relations harassment prevention, and professional development.

[608] Ms. LePage took into account his experience as a parole supervisor on an acting basis and with the scaffolding project but found that there was no evidence of budgetary control or staff reporting to him.

[609] The PSST concluded that there was no evidence to establish that the respondent discriminated against Mr. Nash on the basis of race in the appointment process. The PSST reasoned as follows at paragraphs 53 to 55:

53 The complainant self-identified as Aboriginal in his application document. The screening board report completed by Ms. LePage records that the complainant was considered to be within this area of selection. No evidence was presented to suggest that the complainant was screened out on the basis of race.

54 Although the Tribunal can accord weight to the complainant’s belief, it must consist of more than just a “bare possibility”, as 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: aff’d: 2006 FC 785.

55 In the present case, no evidence other than the complainant’s own assertion was led to support his allegation that his race was a factor in the treatment of his candidacy or the decision to screen him out of the appointment process. Accordingly, the Tribunal finds that the complainant has not established a prima facie case of discrimination based on race.

 

[610] In Filgueira v. Garfield Container Transport Inc., 2005 CHRT 32 at para. 41, the Federal Court stated as follows, as quoted in the PSST’s decision:

…

41. The question that I am left with is this: if an employee believes that someone in a different ethnic group is doing the same job, and receiving a higher wage, is that enough to establish a prima facie case of discrimination? I think there must be something more. There must be something in the evidence, independent of the Complainant’s beliefs, which confirms his suspicions. I am not saying that a Complainant’s beliefs do not have any evidentiary weight. It depends on the circumstances. But an abstract belief that a person is discriminated against, without some fact to confirm that belief, is not enough.

42. There are always possibilities. This is not sufficient. Proof is something more than a bare possibility. I see nothing in the evidence before me that makes this possibility real or introduces a measurable degree of probability into the equation.

43. … If there is any evidence before me, it is not appreciable. It is so minimal that it has no effect in law.

 

[611] The Court’s finding was that the evidence was ‘not appreciable’ and was ‘so minimal as to have no effect in law’. That is, there must be some appreciable evidence to satisfy the prima facie test in law.

[612] Has Mr. Nash established a prima facie case of discrimination based on his race?

[613] Mr. Nash commenced employment in October 1987 as a correctional officer at the Edmonton Institution. In 1999, he accepted an indeterminate parole officer position at Stony Mountain. His position is classified WP-4.

[614] In 2000, he self-identified as Métis. The fact that he is of Métis origin is not in dispute.

[615] As noted, s. 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 that according to s. 3(1) of the CHRA, includes race.

[616] Clearly, the first requirement is satisfied.

[617] Mr. Nash states that the discrimination he has experienced has been ongoing since he identified as Métis in 2000 and that after that identification, his career stalled.

[618] It is acknowledged that there is no direct evidence of discriminatory comments being made about Mr. Nash or his Métis background or any admissions by the employer.

A. Circumstantial evidence

[619] Mr. Nash relied on the circumstantial evidence that discrimination against indigenous people is a reality in Canada, including in the federal public service. He testified that through the Aboriginal Employee Network, he knew that no aboriginal employees were represented in the CSC at the WP-6 area-director level. However, he referred to an aboriginal employee who had been appointed as a director in Winnipeg. While statistical evidence can be useful in detecting discrimination, on its own, it is not sufficient to establish discrimination. There must be other evidence linking the grievor’s ground of discrimination with the alleged adverse treatment (see Canada (Attorney General) v. Walden, 2010 FC 490 at paras 109-118). More specific evidence came candidly and directly from the employer’s witnesses.

[620] Mr. Sawatske gave evidence that before Mr. Nash went to Edmonton parole in 2004, he was advised that Mr. Nash was a problem and that Edmonton parole had been directed to employ him. Initially, the impression was that the source of the information was the district director, Ms. Fox. However, in cross-examination, Mr. Sawatske confirmed that he was not privy to any discussion with Ms. Fox. He believed that the source was the area director. It was not disclosed who had directed that Edmonton parole employ Mr. Nash.

[621] Mr. Nash referred to an appointment process for a WP-5 supervisor position held in 2004, for which he applied and for which he was found not qualified. Purportedly, Ms. Louhela told him that he was not a “team player”.

[622] Although it is contended that management did not support his career aspirations, the evidence is clear that it supported and agreed to fund his professional training. Examples are the Banff Centre’s Certificate of Aboriginal Leadership, Governance, and Management Excellence program, his internal training at the CSC’s Staff College, the Aboriginal Employee Network, and training as a BOI member.

[623] The evidence is also clear that management facilitated and supported his assignment to Stan Daniels and to CORCAN.

[624] Of particular note is Mr. Nash’s acknowledgement of the support and coaching that Ms. Gee provided to him when she advised him on the wording and drafting of an application for a position he was interested in at CORCAN.

[625] The culmination of events that led him to file this grievance occurred in 2013, when he received information that two WP-5 parole officer supervisors in Calgary had been appointed to positions on an acting basis as WP-6 area directors for which they were not qualified as they had failed in the appointment processes for the positions.

[626] Mr. Nash had expressed an interest in filling those positions. He was advised that he would have to enter an appointment process to be considered.

[627] He corresponded with Ms. Fox, the district director. He reiterated his expression of interest in WP-6 assignments on an acting basis. He raised the situation of the two parole officer supervisors who had been appointed to positions as area directors on an acting basis.

[628] Ms. Fox’s reply, dated September 19, 2013, stated in part as follows:

…

As I shared with you during our meeting, the two indeterminate Parole Officer Supervisors who have been acting most often in the Area Director Position in the South were both in the WP 6 AD/ADD competition that established the current pool. Although they were not successful, they both did extremely well and the acting assignments were identified to address the area(s) that they failed to qualify in as demonstrated during their interviews.…

As I discussed with you during out meeting, I want to again encourage you to reconsider your stance to not apply for or consider acting in a Parole Officer Supervisor position. The duties and responsibilities of this position will allow you to develop, hone and demonstrate the essential qualifications for many positions at the WP 5 level and higher during competitive processes.

…

If you are interested in being considered for acting at the WP5 level please let me know and I will ensure that my Area Directors are aware of your interest and that you be considered for a future acting opportunity that may become available.

 

[629] Mr. Nash did not apply to that WP-6 appointment process.

[630] No evidence was adduced as to the qualifications required for the WP-6 positions.

[631] Mr. Nash did not think that applying for a parole officer supervisor position on an acting basis was necessary as he had done that at Stan Daniels.

[632] Mr. Nash testified that he had applied for a position as the director of healing lodges and that Ms. LePage had screened him out on the basis that his assignment on an acting basis at Stan Daniels was not equivalent in terms of the necessary experience to being a supervisor in parole on an acting basis. He had complained to the PSST on a number of grounds, including that Ms. LePage had discriminated against him on the basis of his race. The complaint was dismissed. He did not seek to have the decision judicially reviewed.

[633] Applying these facts to the other criteria set out in the case law to establish a prima facie case of discrimination in the context of hiring practices that contravene the CHRA, I am not persuaded that the grievor established a prima facie case. He did not apply for the WP-6 positions. There is no evidence before the Board as to the qualifications for those positions.

[634] It is known that two WP-5 supervisors, a level above Mr. Nash, applied to the appointment process, and although they were not successful, they did well enough to warrant developmental assignments to address shortcomings.

[635] There is no probative evidence to establish that Mr. Nash had he applied in the competition would have been similarly situate to the two supervisors, from which an inference might be drawn, had he not been accorded a developmental assignment that in the absence of an explanation from the employer, could have been race related.

[636] Nor does the circumstantial evidence help the grievor establish his case. In my view, it leads to the opposite conclusion, which is that management supported and helped Mr. Nash to a level well in excess of what it provided to other CSC indigenous or for that matter for any employee similarly situated.

[637] I conclude that the grievor did not establish a case of discrimination and that the grievance should be dismissed.

[638] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

V. Order

[639] The grievances are denied.

April 13, 2021.

David Olsen,

a panel of the Federal Public Sector Labour Relations and Employment Board