FPSLREB Decisions
Decision Information
The complainant made a complaint, alleging that the respondent abused its authority in the application of merit. He claimed that the director general was biased against him, was a good friend of the appointee, and discriminated against him because of his race and ethnic origin. He also alleged that a selection board member was the appointee’s mentor and that the appointee was favoured by receiving a series of acting appointments. The evidence showed that the selection board member attributed more points to the complainant on the written exam. She retired in 2020 and had no influence on the appointee’s appointment in 2022. The director general was not involved in selecting the appointee, and the evidence did not show that he had any influence over that selection. The evidence revealed that the complainant did not express his interest and that he declined several opportunities to act in the position. The Board found that the selection board member and the appointee had a professional relationship. The fact that the director general and the appointee walked together from the office to a train did not demonstrate that they had a close personal relationship. The complainant failed to establish that the appointment was made on the basis of personal favouritism. The Board concluded that a reasonably informed bystander could not reasonably perceive bias on the part of the director general and the selection board member. The complainant also failed to establish that his race or his ethnic origin was a factor in him not being appointed.
Complaint dismissed.
Decision Content
Date: 20250304
File: 771-02-44361
Citation: 2025 FPSLREB 22
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Between
Yoginder Gulia
Complainant
and
Chief Administrator of the Courts Administration Service
Indexed as
Gulia v. Chief Administrator of the Courts Administration Service
Before: Guy Giguère, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: Satinder Bains, Public Service Alliance of Canada
For the Respondent: Karen Clifford, counsel
For the Public Service Commission: Maude Bissonnette Trudeau, senior analyst
REASONS FOR DECISION |
Introduction
[1] Yoginder Gulia complains against the indeterminate appointment of Shirley Aciro as an administrative services supervisor classified AS-04 at the Courts Administration Service Ontario Region Toronto Regional Office (“the CAS office”).
[2] Mr. Gulia (“the complainant”) claims that Imtiaz Rajab, the CAS office’s regional director general, is biased against him, which tainted the appointment process at issue. This was demonstrated by appointing Ms. Aciro for reasons of personal favouritism. The complainant alleges that Mr. Rajab is a close friend of Ms. Aciro, who was favoured by receiving a series of acting appointments. He further contends that a selection board member was a mentor for the appointee and that that member failed to disclose the conflict of interest.
[3] The complainant also alleges that Mr. Rajab discriminated against him because his origins are from India.
[4] On March 14, 2022, the complainant made a complaint for those reasons claiming that the respondent abused its authority under s. 77(1)(a) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13).
[5] The respondent denies that personal favouritism or bias were factors in the appointment process. The respondent explains that Mr. Rajab and Ms. Aciro have no personal relationship. Furthermore, Mr. Rajab was not involved in the appointment process. The fact that a selection board member was a mentor for the appointee did not affect the assessment of merit. The respondent also submits that the complainant failed to prove his discrimination allegation.
[6] To resolve this complaint, I must determine if the respondent abused its authority when it made the appointment for reasons of personal favouritism or if it did not appoint the complainant because of bias. I must also determine if the respondent discriminated against him.
[7] For the following reasons, I find that the respondent did not abuse its authority, as the complainant did not establish that it demonstrated personal favouritism or bias in the appointment process. He did not establish that he was discriminated against because of his race or ethnic origin from India.
Context
[8] In November 2006, the complainant starts working at the CAS office as a registry officer. He later acts in several short duration acting assignments as a senior registry officer. In June 2013, he is called to the Bar of the Law Society of Ontario and now also works part-time as a lawyer.
[9] On October 13, 2017, Mr. Rajab emails the CAS office staff about an opportunity for an acting assignment as a planning and projects officer (AS-04) for a period of four months less a day, with the possibility of an extension. Later, the employees who expressed their interest are offered acting assignments. Ms. Aciro applies for an acting assignment, but the complainant does not. As a result, she is offered one, and he was not.
[10] On July 31, 2018, an appointment process (“the 2018 process”) is launched for the positions classified AS-04 at the CAS office. Two new positions are to be filled for two streams of jobs. Stream 1 is an administrative services coordinator position, and Stream 2 is a planning and projects officer position. The positions are advertised as to be filled, notably, on a term basis and indeterminately. The intent is also to create a pool, to staff similar positions in the future.
[11] Both Ms. Aciro and the complainant apply to the 2018 process. In early 2019, both are assessed by a written exam, an interview, and references check. The selection board consist of Johanne Parent, Assessment Taxing Officer, and two others. The complainant and the appointee are found qualified and are placed in a pool of candidates for future appointments.
[12] At the beginning, the two AS-04 positions are filled on an acting basis of four months less a day. In 2018, Christopher Garito, a registry officer classified at the PM-03 group and level, acts in both Stream 1 and 2 positions. In 2019, he is appointed in Stream 1 as an administrative services supervisor at the AS-04 group and level. He reports directly to the director of management services.
[13] Throughout 2017 to 2021, six employees act in the positions, including Ms. Aciro, who does act several times in both streams.
[14] In March 2020, the COVID-19 pandemic strikes, the CAS office is initially shut down for a month. After that most employees work from their homes. In July and August 2020, the CAS office switches to holding virtual hearings and to having documents filed electronically.
[15] With his information technology background and with Ms. Aciro’s help, Mr. Garito is very involved in bringing that change to the CAS. Those two work together to codify the Zoom videoconferencing hearings and the e-filing processes. Her role is also to revise most of the administrative procedures, to align with remote work. She also liaises with the CAS’s sections, to ensure business continuity.
[16] In March 2021, Mr. Garito replaces the director of management services position on an acting basis. On August 6, 2021, Ms. Aciro replaces him in his substantive position as the administrative services supervisor on an acting basis for a term ending on March 3, 2022. On January 26, 2022, Mr. Rajab signs the articulation of selection decision for her indeterminate appointment as the administrative services supervisor.
[17] On March 11, 2022, Mr. Garito signs Ms. Aciro’s offer letter as acting CAS regional director general in replacement of Mr. Rajab. She accepts the indeterminate appointment to the administrative services supervisor position. On the same day, the “Notice of Appointment or Proposal of Appointment” for her appointment is posted on the federal government’s jobs website.
Analysis
[18] Question 1: Did the respondent abuse its authority by making the appointment for reasons of personal favouritism?
[19] Evidence of personal favouritism can be direct, such as facts establishing a close personal relationship between a selection board member and an appointee. It can also be established through circumstantial evidence, such as the preferential treatment of a candidate, selection board members’ comments or actions, or events before or during an appointment process. Circumstantial evidence can be as convincing as direct evidence. Its convincing power depends on its source as well as how it relates to the issues in a complaint, and it usually lies in the weight of many circumstances added together. See Glasgow v. Deputy Minister of Public Works and Government Services Canada, 2008 PSST 7; and Ayotte v. Deputy Minister of National Defence, 2009 PSST 21.
[20] The complainant claims that Ms. Parent failed to disclose that she was Ms. Aciro’s mentor. He testified that he often saw them together in the office.
[21] The respondent argues that the fact that Ms. Parent acted as a mentor to Ms. Aciro, in conjunction with the Department of Health (Health Canada), did not affect the assessment of merit. In cross-examination, the complainant confirmed that Ms. Parent attributed more points on the written exam to him than to Ms. Aciro. He went on to indicate that from his workspace, he could not see Ms. Parent’s office, and that he had no knowledge that the mentoring was done in conjunction with Health Canada.
[22] The complainant also alleges that Mr. Rajab and the appointee are close friends. The respondent denies any personal relationship between them. The complainant’s evidence is that he has seen them walking together after work toward Union Station in Toronto. Also, she helped Mr. Rajab make some presentations. The complainant also argues that Ms. Aciro was favoured with several acting assignments, which gave her an advantage with respect to the appointment.
[23] The respondent submits that Mr. Rajab had nothing to do with Ms. Aciro’s appointment. Mr. Garito testified that it was his decision to appoint Ms. Aciro, as she excelled in all duties assigned to her in the acting appointment during the height of the COVID-19 pandemic. He explained that he prepared the articulation of selection decision document, but that Mr. Rajab signed it because, at that time, he had the delegated authority for appointments. However, Mr. Rajab was absent afterward and on March 11, 2022, Mr. Garito signed Ms. Aciro’s offer letter, as acting regional director general, Ontario Region.
[24] I find that the complainant’s evidence, whether direct or circumstantial and considered together, does not establish that personal favouritism was a factor in Ms. Aciro’s appointment. From the start, Ms. Parent attributed more points to the complainant on the written exam. She retired in 2020 and had no influence in Ms. Aciro’s March 2022 indeterminate appointment. There is no evidence of a close personal relationship between Ms. Parent and Ms. Aciro. The fact that Ms. Parent acted as a mentor to Ms. Aciro, in conjunction with Health Canada, is evidence only of a professional relationship.
[25] As well, Mr. Rajab was not involved in selecting Ms. Aciro for the indeterminate appointment in 2022. There is no evidence that he had any influence in that selection. The fact that Mr. Rajab and Ms. Aciro walked together from the office to catch a train does not demonstrate that they had a close personal relationship. In fact, in cross-examination, the complainant acknowledged that they took the same train, as they lived in the same neighbourhood.
[26] Finally, the complainant argues that Ms. Aciro received preferential treatment by acting several times in AS-04 group-and-level positions, which justified selecting her for the indeterminate appointment. The respondent submits that the complainant did not seek acting appointments in those AS-04 positions, as he was more interested in acting as a PM-04 senior registry officer.
[27] I conclude from the evidence that the complainant declined several opportunities to act in the AS-04 positions, which meant that he did not gain experience in them, as did Ms. Aciro. He did not express his interest in response to Mr. Rajab’s October 2017 email for Stream 1 and Stream 2 positions. As a result, he did not gain experience early, as did Ms. Aciro. Also, in July 2021, Mr. Garito offered the complainant an acting position at that level, which he declined.
[28] For all those reasons, I find that the complainant did not establish that the appointment was made on the basis of personal favouritism.
[29] Question 2: Did the respondent abuse its authority by not considering the complainant for the indeterminate appointment because of bias against him?
[30] The respondent has the duty to assess candidates impartially and in a way that does not give rise to a reasonable apprehension of bias. A test has been long established to determine whether there is a reasonable apprehension of bias (see Committee for Justice and Liberty v. National Energy Board, 1976 CanLII 2 (SCC); and Newfoundland Telephone Co. v. Newfoundland (Board of Commissioners of Public Utilities), 1992 CanLII 84 (SCC)).
[31] Applied to this case, the test consists of determining whether a reasonably informed bystander could reasonably perceive bias on the respondent’s part in the appointment process (see Denny v. Deputy Minister of National Defence, 2009 PSST 29; Gignac v. Deputy Minister of Public Works and Government Services, 2010 PSST 10; Amirault v. Deputy Minister of National Defence, 2012 PSST 6; Drozdowski v. Deputy Head (Department of Public Works and Government Services Canada), 2016 PSLREB 33; Monfourny v. Deputy Head (Department of National Defence), 2023 FPSLREB 37).
[32] The complainant claims that Ms. Parent, as a selection board member in the 2018 process, was biased, as she was Ms. Aciro’s mentor and failed to disclose that she was in a conflict of interest. He also alleges that Mr. Rajab was biased against him and did not like him. He explains that because of his union activities, he would question policies and decisions; as a result, his relationship with Mr. Rajab was not pleasant.
[33] A reasonably informed bystander could not reasonably perceive bias on the part of Ms. Parent in the 2018 process. Any concerns by the fact that she was a mentor to Ms. Aciro, are dissipated by the fact that she attributed more points to the complainant. Moreover, she retired in 2020 and had no involvement in selecting Ms. Aciro for the indeterminate appointment in 2022. Therefore, a reasonably informed bystander could not reasonably perceive bias on the part of Ms. Parent in the 2022 appointment.
[34] As well, a reasonably informed bystander could not reasonably perceive bias on the part of Mr. Rajab. He did not participate in selecting Ms. Aciro for the appointment in 2022 and there is no evidence that he had any influence in the selection. Mr. Garito decided to appoint her, and he testified that he prepared the articulation of selection decision not Mr. Rajab.
[35] Therefore, I conclude that the complainant did not establish that he was not considered because of bias against him. It is not enough to suspect or assume bias; it must be real, likely, or reasonably evident. There is no such evidence in this case. See Gignac, at para. 72.
[36] Question 3: Did the respondent discriminate against the complainant because of his race and ethnic origin?
[37] The complainant explained that he has felt discriminated against at the CAS because of his Indian race and ethnic origin. He believes that Mr. Rajab discriminated against him because of his ethnic origin of India. While both are of Indian race, Mr. Rajab’s origin is the Caribbean, as is Ms. Aciro. The complainant explained that he is more qualified for the AS-04 position, as he is a licensed lawyer, and the appointee is not. He was found qualified in two staffing processes for PM-04 positions and for the AS-04 position, while the appointee was found qualified only for the AS-04 position.
[38] The test to determine if discrimination occurred in employment proceeds in two steps. First, the complainant must establish prima facie discrimination; that is, evidence, in the absence of a response from the respondent, which would be sufficient to conclude that discrimination occurred. See Moore v. British Columbia (Education), 2012 SCC 61; Giannini v. Statistical Survey Operations, 2022 FPSLREB 89 at paras. 49 to 55; McNabb v. Treasury Board (Canada Border Services Agency), 2024 FPSLREB 143 at paras. 117 and 118.
[39] These three elements are required to establish prima facie discrimination in employment matters:
1) the complainant has a characteristic protected from discrimination under the Canadian Human Rights Act (R.S.C., 1985, c. H-6);
2) the complainant has experienced an adverse impact in his employment; and
3) the protected characteristic was a factor in the adverse impact.
[40] In this case, the complainant meets the two first elements. He was not appointed indeterminately, and his race and ethnic origin are characteristics protected from discrimination.
[41] He then must demonstrate a connection (also known as a “nexus”) between those two elements. In other words, that one showing that his race and ethnic origin (the protected characteristics) were factor for not being appointed (the adverse impact), while recognizing that other factors might be present. Both evidentiary steps are necessary. Without both, there is no prima facie case. See Bourdeau v. Treasury Board (Immigration and Refugee Board), 2021 FPSLREB 43; and Kirby v. Treasury Board (Correctional Service of Canada), 2015 PSLREB 41.
[42] The threshold for establishing prima facie discrimination is low. It requires that the complainant adduce some evidence linking either his race or his ethnic origin as a factor in him not being appointed. This can be established by either direct or circumstantial evidence.
[43] While the complainant believes that he was discriminated against, he has to present some facts to confirm his belief, through either direct or circumstantial evidence. However, he did not present evidence to demonstrate that his race or ethnic origin were a factor in not being appointed. Mr. Rajab did not participate in selecting Ms. Aciro for the appointment in 2022. There is no evidence that Mr. Rajab influenced the process. Mr. Garito testified that he selected Ms. Aciro because she has been on the talent management plan since 2019 and is very qualified. Holding a law degree is not required for the administrative services supervisor position. The CAS’s workforce is diversified, as the majority of employees are members of visible minorities. See Nash v. Commissioner of the Correctional Service of Canada, 2014 PSST 10 at para. 54.
[44] For all those reasons, I find that the complainant did not establish that his race and ethnic origin were a factor in him not being appointed. Therefore, I conclude that he did not establish a prima facie case of discrimination.
[45] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
Order
[46] The complaint is dismissed.
March 4, 2025.
Guy Giguère,
a panel of the Federal Public Sector
Labour Relations and Employment Board