Saint-Jean v. Canada Revenue Agency

Saint-Jean v. Canada Revenue Agency
Collection
Canadian Human Rights Tribunal
Date
2024-09-13
Neutral citation
2024 CHRT 100
File number(s)
T2646/2221
Decision-maker(s)
Langlois, Marie
Decision type
Decision
Grounds
Colour
National or Ethnic Origin
Race
Notes
This translation will undergo a linguistic revision before its final publication on the CHRT website.
Summary:
Mr. Saint-Jean (the Complainant) has worked at the Canada Revenue Agency (CRA) since 1998. He progressed through the ranks, from a clerical and regulatory position to a team leader in 2004. That same year, he sought promotions but was unsuccessful. He later obtained a transfer to a higher-level position and, in 2021, was promoted to a management position in revenue collection.
In his complaint to the Canadian Human Rights Commission, the Complainant alleges that he experienced discrimination from certain managers at the CRA starting in 2004. He also claims that systemic discrimination exists in his workplace.
The CRA asserts that Mr. Saint-Jean’s race, national or ethnic origin, and colour were not factors in the management decisions made about him. Furthermore, the Complainant’s allegations had already been the subject of internal and external investigations, which had not established any harassment against Mr. Saint-Jean.
Firstly, the Tribunal finds that Mr. Saint-Jean did not prove that his race, national or ethnic origin, or colour were factors in the CRA’s decisions. Therefore, the Tribunal concludes that Mr. Saint-Jean was not subjected to employment discrimination or discriminatory harassment.
Secondly, the Tribunal determines that the Complainant did not demonstrate that the CRA engages in systemic discrimination against Black individuals. The Tribunal observes that the CRA’s policies increasingly favour visible minorities, including Black individuals.
The Tribunal dismisses the Complainant's complaint.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2024 CHRT
100
Date:
September 13, 2024
File No(s).:
T2646/2221
Between:
Frantz Saint-Jean
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canada Revenue Agency
Respondent
Decision
Member:
Marie Langlois
Table of Contents
I. DECISION 1
II. OVERVIEW 1
III. ISSUES 3
IV. LEGAL PRINCIPLES 4
(i) Discrimination in the course of employment (section 7(b) of the CHRA) 6
(ii) Discriminatory harassment (section 14(1)(c) of the CHRA) 7
(iii) Systemic discrimination (section 10(a) of the CHRA) 10
V. ANALYSIS 13
A. DISCRIMINATION IN THE COURSE OF EMPLOYMENT AND DISCRIMINATORY HARASSMENT 13
(i) Does Mr. Saint-Jean have one or more characteristics protected under the CHRA? 14
(ii) Was Mr. Saint-Jean the victim of an adverse impact in respect of his employment with the CRA? 14
(iii) Was Mr. Saint-Jean the victim of adverse differential treatment in the course of employment on the basis of his race, his national or ethnic origin or his colour? 15
(iv) Conclusion regarding discrimination in course of employment and discriminatory harassment 34
B. SYSTEMIC DISCRIMINATION 36
(i) Evidence from Mr. Expérience, Mr. Raymond, Mr. Thaverne, Mr. Villiers and Ms. Ligondé 37
(ii) Complaints against Ms. Bachant, Ms. Péloquin and Mr. Tremblay 41
(iii) Grievances regarding findings of Ms. Proulx’s preliminary investigation (Grievances 7010 9709 and 7010 9710) 42
(iv) Grievance regarding 2014–2015 performance evaluation (Grievance 7012 6681) 43
(v) Grievance regarding letter of reprimand of June 10, 2015, on negligence in performing duties (Grievance 7012 6682) 44
(vi) 2015 staffing recourse process 44
(vii) Harassment grievance dated May 6, 2016 (Grievance 7013 7317) 45
(viii) Discrimination and harassment complaint dated December 14, 2016 45
(ix) Conclusion regarding systemic discrimination 49
VI. CONCLUSION 50
I. DECISION [1] The Canadian Human Rights Tribunal (the “Tribunal”) dismisses the complaint of discrimination, harassment and systemic discrimination based on race, national or ethnic origin or colour filed by Frantz Saint-Jean with the Canadian Human Rights Commission (the “Commission”) on February 24, 2016.
[2] The Tribunal finds that the Complainant did not meet his burden of proof of demonstrating that he was a victim of discrimination, harassment or systemic discrimination. He failed to establish a prima facie case, that is, he failed to present sufficient evidence regarding the discrimination in the course of employment he is alleging. He also failed to demonstrate that he was a victim of systemic discrimination or of discriminatory harassment based on his race, national or ethnic origin, or colour.
II. OVERVIEW [3] Mr. Saint-Jean is Black. He comes from Haiti but has lived in Quebec for 33 years. He is a member of a visible minority.
[4] Mr. Saint-Jean has worked at the Canada Revenue Agency (CRA) since 1998. He started his career in the CR-4 (Clerical and Regulatory) group at the Quebec Regional Contact Centre (QRCC) in Montreal. Between 1998 and 2003, he was promoted and held PM-1 and PM-2 (Program Administration) positions.
[5] From 2002 to 2005, he was a union representative. He supported his colleagues but did not manage grievances.
[6] In January 2004, he was promoted to a position at the MG-3 (Management Group) level, obtaining first an acting team leader position and then a permanent one. At that time, he was the only Black person occupying an MG-3-level position in his call centre.
[7] From 2012 to 2015, he finished school, obtaining a master’s in public administration from the École nationale d’administration publique (ÉNAP) [National School of Public Administration]. The CRA reimbursed part of his tuition fees.
[8] Between 2004 and 2019, he tried, but failed, to get promoted. He stayed in the MG‑3 group.
[9] In 2019, he was promoted to an MG-5 position.
[10] Between 2019 and 2020, he was transferred to a senior officer position (level SP-8, Services and Programs Group).
[11] In 2020, he was transferred to an analyst/editor position at the Official Languages Office (level HR-05, Human Resources Group).
[12] On April 1, 2021, he was promoted to an MG-6 position (annual salary of $132,427), as a revenue collection manager.
[13] In the complaint he filed with the Commission on February 24, 2016, which is now before the Tribunal, Mr. Saint-Jean submits that he has been discriminated against since 2004. In his opinion, the discriminatory conduct towards him started that year because of his race, national or ethnic origin, and colour. The discriminatory conduct explains why he was excluded from certain positions or assignments and why he had to wait for so long before being promoted.
[14] He also submits that he was subjected to discriminatory harassment by certain managers, namely, Hélène Binette (a manager at the Montreal Tax Services Office (TSO)) and Marie-Josée Péloquin (an assistant director at the Collections and Client Services Division).
[15] He adds that there is systemic discrimination at the Montreal QRCC.
[16] The CRA, however, is of the view that Mr. Saint-Jean’s race, national or ethnic origin and colour have nothing to do with the management decisions made in his regard and that Mr. Saint-Jean was not discriminated against in the course of his employment. The CRA also refutes the harassment allegations, given that they were the subject of both an internal and an external investigation, neither of which demonstrated that Mr. Saint-Jean had been harassed. Moreover, it considers that the procedures and policies applied at the QRCC as well as elsewhere at the CRA are actually designed to prevent systemic discrimination and generate statistics on the representation of visible minorities at the CRA.
III. ISSUES [17] Mr. Saint-Jean alleges that he was discriminated against in the course of employment and harassed in matters related to employment because of his race, national or ethnic origin and colour, within the meaning of sections 7(b) and 14(1)(c), respectively, of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (CHRA). He also submits that the CRA uses practices described in section 10(a) of the CHRA, in that it pursues policies or practices that deprive or tend to deprive an individual of employment opportunities because of the individual’s race, national or ethnic origin, or colour.
[18] The CRA argues that its staffing process, which includes employment equity principles, is free from discrimination since it is based on merit.
[19] Finally, the CRA submits that Mr. Saint-Jean’s grievances and complaints were not decided to his satisfaction because they were unfounded, not because the procedures were discriminatory. The CRA has already responded to Mr. Saint-Jean through its internal procedures and argues that this could be considered similar to res judicata, that is, an issue that has been resolved definitively by a court of justice.
[20] The issues are as follows:
A. Has Mr. Saint-Jean established a prima facie case of discrimination in the course of employment within the meaning of section 7(b) of the CHRA?
(i) Does Mr. Saint-Jean have one or more of the characteristics protected under the CHRA (prohibited grounds of discrimination)?
(ii) If so, did he experience an adverse impact in respect of his employment with the CRA?
(iii) If so, was he the victim of adverse differential treatment in the course of employment on the ground of his protected characteristics?
B. Has Mr. Saint-Jean established a prima facie case of discriminatory harassment in matters related to employment within the meaning of section 14(1)(c) of the CHRA?
C. Does the CRA pursue policies or practices that deprive or tend to deprive individuals of any employment opportunities on the prohibited grounds of discrimination of race, national or ethnic origin, or colour within the meaning of section 10(a) of the CHRA?
[21] Before answering these questions, it is worth reviewing certain principles.
IV. LEGAL PRINCIPLES [22] The prohibited grounds of discrimination listed in section 3(1) of the CHRA include race, national or ethnic origin, and colour.
[23] Differentiating adversely against an employee in the course of employment is a discriminatory practice under section 7(b) of the CHRA.
[24] Under section 14(1)(c) of the CHRA, it is also a discriminatory practice, in matters related to employment, to harass an individual on a prohibited ground of discrimination.
[25] Another discriminatory practice, under section 10(a) of the CHRA, is to establish or pursue a policy or practice that deprives or tends to deprive an individual of any employment opportunities on a prohibited ground of discrimination.
[26] The Complainant has the burden of establishing a prima facie case of discrimination for each of these discriminatory practices. A prima facie case is one which “covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent‑employer” (Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC) [Simpsons-Sears] at para 28).
[27] The case law recognizes the difficulty in proving allegations of discrimination by direct evidence, given that discrimination is not a practice which one would expect to see displayed directly or overtly. The Tribunal must therefore consider all the circumstances to determine on a balance of probabilities whether there is discrimination or whether there is, as described in Basi v. Canadian National Railway, 1988 CanLII 108 (CHRT), the “subtle scent of discrimination”. In short, the Tribunal can draw an inference of prima facie discrimination when the evidence before it renders such an inference more probable than the other possible inferences or hypotheses (Beatrice Vizkelety, Proving Discrimination in Canada (Toronto: Carswell, 1987) at 142. See also Khiamal v. Canada (Human Rights Commission), 2009 FC 495 at para 60).
[28] To discharge their burden, a complainant has to generally show, on a balance of probabilities (Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Centre), 2015 SCC 39 at para 67 [Bombardier], that they have a characteristic protected under the CHRA, that they experienced an adverse impact with respect to their employment and that the protected characteristic (referred to as a “prohibited ground of discrimination” by the Act) was a factor in the adverse impact (Moore v. British Columbia (Education), 2012 SCC 61 at para 33).
[29] In making their case, a complainant is not required to prove that the respondent intended to discriminate against them, given that, as the Supreme Court of Canada noted in Bombardier, some discriminatory conduct involves multiple factors or is unconscious (Bombardier at paras 40 and 41). The intent to discriminate is therefore not a governing factor. Rather, it is the result, the adverse effect, that is significant (Simpsons-Sears at paras 12–14).
[30] The Tribunal may therefore consider circumstantial evidence. That being said, evidence of discrimination, even if it is circumstantial, must nonetheless be tangibly related to the impugned decision or conduct (Bombardier at para 88).
[31] Moreover, as the Tribunal rightly noted in André v. Matimekush-Lac John Nation Innu, 2021 CHRT 8, when the Tribunal has to determine whether a complainant has met the burden of proof,
… it has to consider the evidence in its entirety, including that filed by the respondent, as appropriate. Consequently, it may, among other things, decide that the complainant failed to meet their burden of proof if the evidence presented is not sufficiently complete or if the respondent was able to present evidence that, for example, refutes the Complainant’s allegation (Dulce Crowchild v. Tsuut’ina Nation, 2020 CHRT 6 (CanLII), at paragraph 10; Brunskill v. Canada Post Corporation, 2019 CHRT 22 (CanLII), at paragraphs 64 and 65 [Brunskill]; Nielsen v. Nee Tahi Buhn Indian Band, 2019 CHRT 50 (CanLII), at paragraph 47 [Nielsen]; Polhill v. Keeseekoowenin First Nation, 2019 CHRT 42 (CanLII), at paragraph 58; Willcott v. Freeway Transportation Inc., 2019 CHRT 29 (CanLII), at paragraph 12 [Willcott]).
[32] In addition, it is not essential that the connection between the prohibited ground of discrimination and the impugned decision be an exclusive one, or a causal one, given that it will suffice if the prohibited ground played a role in the complained of decisions or conduct. In short, the evidence must establish that the prohibited ground of discrimination was a factor in the impugned decision (Bombardier at paras 45–52).
[33] As a result, it is sufficient if the complainant’s race, national or ethnic origin, or colour were one of the factors that influenced the decisions the respondent made in the course of employment (A.B. v. Eazy Express Inc., 2014 CHRT 35 (CanLII) at para 16).
[34] If it is the case, once this proof of prima facie discrimination is established, the employer could justify its decision by showing, also on a balance of probabilities, that it flows from a bona fide operational requirement under section 15 of the CHRA. The burden of proof then shifts to the employer (Peel Law Association v. Pieters, 2013 ONCA 396 (CanLII) at para 67).
(i) Discrimination in the course of employment (section 7(b) of the CHRA) [35] The Complainant raises section 7(b) of the CHRA, which reads as follows:
7. It is a discriminatory practice, directly or indirectly,
…
(b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination.
7. Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects :
[…]
b) de le défavoriser en cours d’emploi.
[36] To establish a prima facie case of discrimination within the meaning of section 7(b), the Complainant must therefore demonstrate that the Respondent differentiated adversely in relation to him in the course of employment and that there is a connection between, on the one hand, the adverse differentiation and, on the other, a prohibited ground of discrimination under section 3 of the CHRA (Bombardier at para 52).
[37] Regarding refusal to hire or promote, the Tribunal stated as follows in Turner v. Canada Border Services Agency, 2020 CHRT 1 (CanLII) at para 54 [Turner]:
[54] Discrimination need only one factor in the respondent’s decision not to hire or promote for a complainant to be successful under the Act. The Tribunal is tasked with discerning whether discrimination was a factor in failure to hire. To do so the Tribunal must consider all of the circumstantial evidence, make findings of fact and determine whether the inference that may be drawn from the facts support a finding of discrimination on the balance of probabilities. However, there has to be a nexus between the conduct under scrutiny and a prohibited ground of discrimination. The nexus can be inferred through the circumstantial evidence, but the inference of discrimination must be more probable than other possible inferences. In making the inference, the fact at issue must be proved by other facts. Each piece of evidence need not alone lead to the conclusion. The pieces of evidence, each by themselves insufficient, are combined to provide a basis for the inference that the fact at issue exists. The finding of discrimination by the Tribunal can be based upon circumstantial evidence as well as direct, anecdotal and statistical evidence. (see Khiamal v. Canada, 2009 FC 495 at paras 80–84 (Khiamal)).
[38] This statement, which concerned section 7(a) of the CHRA (refusal to employ or continue to employ), is just as valid when applying section 7(b) (adverse differentiation in the course of employment).
(ii) Discriminatory harassment (section 14(1)(c) of the CHRA) [39] Regarding the issue of harassment, the CHRA states as follows in section 14:
14 (1) It is a discriminatory practice,
…
(c) in matters related to employment,
to harass an individual on a prohibited ground of discrimination
14(1) Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait de harceler un individu :
[…]
c) en matière d’emploi.
[40] To establish a prima facie case of discriminatory harassment within the meaning of section 14(1)(c), a complainant essentially must demonstrate that the behaviours or conduct they have complained about were (i) related to a prohibited ground of discrimination, (ii) unsolicited or unwelcome and (iii) persistent or serious enough to create a hostile or negative work environment that undermined their dignity (see Bilac v. Abbey, Currie and NC Tractor Services Inc., 2023 CHRT 43 at paras 22 and following; Morin v. Canada (Attorney General), 2005 CHRT 41 at para 246).
[41] In this case, the Tribunal will perform the same analysis of the issue of discriminatory harassment as in Alizadeh-Ebadi v. Manitoba Telecom Services Inc., 2017 CHRT 36:
[163] Section 14(1)(c) of the CHRA makes it a discriminatory practice to harass an individual on a prohibited ground of discrimination in matters of employment. While the CHRA does not define the term “harassment” the Tribunal and the Courts have provided guidance with respect to the application of this term that are relevant to this case, including the following:
i. the conduct has to be unwelcome by the victim and related to a prohibited ground of discrimination that detrimentally affects the work environment or leads to adverse job related consequences for the victim;
Morin, supra.
ii. the gravamen of harassment lies in the creation of a hostile work environment which violates the personal dignity of the complainant;
Dawson v. Canada Post Corporation, 2008 CHRT 41 (“Dawson”).
iii. in certain circumstances a single incident may be enough to create a hostile work environment and in others some element of repetition or persistence is required. Accordingly, the nature of the conduct should be calculated according to the inversely proportional rule: the more serious the conduct and its consequences are, the less repetition is necessary; conversely, the less severe the conduct, the more persistence will have to be demonstrated;
Dawson, supra.
iv. harassment does not include expressions that are rude and offensive but not connected to a particular characteristic. Conduct can be offensive and based on personal circumstances, but not repetitive enough or serious enough to constitute harassment under the CHRA;
Morin, supra.
v. in determining whether the conduct is unwelcome, an objective standard must be applied based on what a reasonable person would perceive from the perspective of the victim;
Hill, supra.
vi. in assessing the “reasonableness” of the conduct at issue, the touchstone is the usual limits of social interaction in the circumstances. The following more specific factors are relevant in the determination: the nature of the conduct; the workplace environment; the pattern of prior conduct between the parties; whether the alleged harasser is in a position of authority over the complainant; and whether an objection has been made.
Hill, supra.
vii.by virtue of section 65 of the CHRA any act or omission committed by an employee of an association or organization, in the course of employment of said employee, shall, for the purposes of the CHRA, be deemed to be an act or omission committed by that association or organization. This remains the case unless the association or organization did not consent to the commission of the act or omission and exercised all due diligence to prevent the act or omission from being committed and subsequently, to mitigate or avoid the effect thereof;
viii. employers have an obligation to their employees to create and maintain a discrimination-free work environment and their duty of diligence exists once it becomes aware of an act that, by reason of its intrinsically offensive, humiliating or degrading character, would likely degenerate into harassment if it were subsequently repeated.
Dawson, supra.
ix. the existence of an anti-harassment policy itself is not enough to release the employer from all due diligence. There is a positive duty upon an employer to take prompt and effectual action when it knows or should know of the conduct in the workplace amounting to racial harassment and to avoid liability, the employer is obliged to take reasonable steps to alleviate, as best it can, the distress arising within the workplace and to reassure those concerned that it is committed to the maintenance of a workplace free of racial harassment.
Hinds v. Canada, 1988 CarswellNat 993.
[42] The Tribunal will take these criteria into account in its analysis of the evidence, below, to determine whether or not harassment has occurred.
(iii) Systemic discrimination (section 10(a) of the CHRA)
[43] Regarding systemic discrimination, section 10 of the CHRA states that it is prohibited, in the following terms:
10 It is a discriminatory practice for an employer, employee organization or employer organization
(a) to establish or pursue a policy or practice
…
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
10 Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite et s’il est susceptible d’annihiler les chances d’emploi ou d’avancement d’un individu ou d’une catégorie d’individus, le fait, pour l’employeur, l’association patronale ou l’organisation syndicale :
a) de fixer ou d’appliquer des lignes de conduite;
[…] .
[44] In the present case, the Tribunal must therefore analyze the evidence presented to determine whether the CRA’s policies or practices deprive or tend to deprive Black people of any employment opportunities.
[45] The word “annihiler” in the French text of section 10 of the CHRA means, according to the dictionary, [translation] “to reduce to nothing, to render ineffective” (Le Robert online dictionary). However, in the English version of the CHRA, the standard seems a little more flexible since it refers to depriving or tending to deprive an individual of employment opportunities.
[46] The Tribunal finds that the English text is more consistent with the general scheme of the CHRA. Requiring an individual to prove that their employment opportunities have been “reduced to nothing” as a result of the employer’s policies or practices, as in the French version, could have the effect of raising the standard of proof required under the English version, which is limited to proving that the policies or practices “deprived or tended to deprive” the individual of employment opportunities. I find that the requirement under the English version is more in line with the case law on the issue.
[47] The Tribunal notes that, in Dorais v. Canadian Armed Forces, 2021 CHRT 13 at para 54 [Dorais], the concept of systemic discrimination emphasizes the most subtle forms of discrimination. It recognizes that long-standing social and cultural mores carry within them value assumptions that contribute to discrimination in ways that are substantially or entirely hidden and unconscious (citing Public Service Alliance of Canada v. Canada (Treasury Board), 1991 CanLII 387 (CHRT) at 9).
[48] In Dorais (at para 55), the Tribunal also refers to paragraph 73 of its decision in Emmett v. Canada Revenue Agency, 2018 CHRT 23 (CanLII), in which it cited with approval Commission des droits de la personne et des droits de la jeunesse c. Gaz métropolitain inc., 2008 QCTDP 24, aff’d 2011 QCCA 1201 [Gaz métro QCTDP]. At paragraph 36 of Gaz métro QCTDP, the Quebec Human Rights Tribunal defines systemic discrimination as [translation] “the cumulative effects of disproportionate exclusion resulting from the combined impact of attitudes marked by often unconscious biases and stereotypes, and policies and practices generally adopted without taking into consideration the characteristics of the members of groups contemplated by the prohibition of discrimination.”
[49] In Young Worker v. Heirloom and another, 2023 BCHRT 137, CanLII, at para 53 [Young Worker], the British Columbia Human Rights Tribunal points out that Canadian law recognizes that anti-Black stereotypes are a form of discrimination that continues to seep into our collective psyche, whether consciously or subconsciously. It cites decisions of the Court of Appeal for Ontario, the British Columbia Human Rights Tribunal, the Nova Scotia Human Rights Tribunal and this Tribunal (R. v. Parks, 1993 CanLII 3383 (ON CA); Balikama obo others v. Khaira Enterprises and others, 2014 BCHRT 107 [Balikama] at paras 585 and 586; Turner at para 49; and Symonds v. Halifax Regional Municipality (Halifax Regional Police Department) (Re), 2021 CanLII 37128 (NS HRC) at paras 84 and 85).
[50] The British Columbia Human Rights Tribunal adds that the social context is inextricably tied to centuries of Black slavery, segregation, colonialism, and other gross inequalities founded on racism (Young Worker at para 53, citing Balikama at paras 474–476; Knights v. DebtCollect Inc., 2017 HRTO 211 at para 21; and R. v. Morris, 2018 ONSC 5186 at para 22 (reversed on other grounds in R. v. Morris, 2021 ONCA 680).
[51] There is another difference between the English and French versions of section 10 of the CHRA. In this regard, the Tribunal notes the comments it made in Walden et al. v. Social Development Canada, 2007 CHRT 56 (CanLII) at paras 97 and 98 [Walden] (affirmed by the Federal Court [2010 FC 490] and reversed by the Federal Court of Appeal on other grounds [2011 FCA 202] on judicial review):
[97] The French version of s. 10 refers to practices that deny or tend to deny “les chances d’emploi ou d’avancement d’un individu ou d’une catégorie d’individus”. When the French and the English versions of s. 10 are read together, one is led to the conclusion that the term “employment opportunities” refers to conditions which enable employment and the advancement of individuals in their employment.
[98] This interpretation is reflected in the Tribunal’s jurisprudence wherein the term “employment opportunities” has been used to refer to opportunities to transfer to another job (Gauthier v. Canadian Armed Forces, [1989] C.H.R.D. No. 3 T.D. 3/89); opportunities to do certain kinds of work that would enhance earnings and career potential (O’Connell v. Canadian Broadcasting Corp, [1988] C.H.R.D. No. T.D. 9/88); training opportunities (Green v. Canada (Public Service Commission), [1998] C.H.R.D. No. T.D. 6/98, reviewed on other grounds in: Canada (Attorney General) v. Green [2000] 4 F.C. 629 (T.D.)); and continued and uninterrupted employment (Hay v. Cameco [1991] C.H.R.D. No. 5 No. T.D. 5/91).
[52] I cite with approval paragraph 106 of the Tribunal’s decision in Turner:
[106] As human beings we are imperfect. Unfortunately, we are all subject to the possibility that we may form prejudicial feelings and attitudes towards other human beings who have different personal characteristics than we have-- not because of anything they have done but because of our conscious or unconscious acceptance of untrue negative stereotypes propagated over time about who they are. Section 7 of the Act is intended to ensure that people having the protected characteristics under the Act are not discriminated against in employment decisions that are made, whether intentionally, unintentionally, consciously or unconsciously, in whole or in part, because of their protected personal characteristics.
V. ANALYSIS [53] The issues regarding discrimination in the course of employment and discriminatory harassment are addressed together in the following section.
[54] The Respondent raised the issue of the Tribunal’s jurisdiction to rule on Mr. Saint‑Jean’s complaint. As the case law has established, the Tribunal has the power to perform its own analysis of the events covered by the grievances or complaints filed by Mr. Saint‑Jean with the CRA. The findings of the various grievance levels, the preliminary investigation conducted by Ms. Proulx and the investigation conducted by Textus in no way replace the quasi-judicial inquiry and analysis that the Tribunal must conduct under the CHRA. The parties were given a full hearing on the complaint, and this decision is the result of an analysis of the evidence and the applicable law.
[55] The CRA raised a preliminary issue in its statement of particulars regarding the Tribunal’s jurisdiction, but, at the hearing, counsel for the CRA correctly admitted that the Tribunal has concurrent jurisdiction in the matter at hand. Accordingly, there is no need to address this issue further.
A. DISCRIMINATION IN THE COURSE OF EMPLOYMENT AND DISCRIMINATORY HARASSMENT [56] Has Mr. Saint-Jean established a prima facie case of discrimination in the course of employment within the meaning of section 7(b) of the CHRA? To answer this, it is necessary to determine whether he possesses one or more characteristics protected by the CHRA, whether he experienced an adverse impact with respect to his employment, and, if so, whether he was subjected to adverse differential treatment in the course of his employment on the basis of his protected characteristics.
[57] Has Mr. Saint-Jean established a prima facie case of harassment in matters related to employment within the meaning of section 14(1)(c)? To answer this, it is necessary to determine whether the behaviour or conduct complained of by Mr. Saint-Jean was related to a prohibited ground of discrimination, unsolicited and unwelcome, and persistent or serious enough to create a hostile or negative work environment that undermined his dignity.
(i) Does Mr. Saint-Jean have one or more characteristics protected under the CHRA? [58] Race, national or ethnic origin, and colour are prohibited grounds of discrimination under section 3(1) of the CHRA. It is irrefutable that Mr. Saint-Jean has characteristics protected under the CHRA. He is black-skinned and originally from Haiti. He belongs to a visible minority. No one disputes this fact.
[59] Thus, the Tribunal finds that there are prohibited grounds of discrimination under sections 7(b), 14(1)(c) and 10(a) of the CHRA.
(ii) Was Mr. Saint-Jean the victim of an adverse impact in respect of his employment with the CRA? [60] Mr. Saint-Jean points to a series of events that he claims have caused him to experience an adverse impact in respect of his employment. Among other things, he states that he held his MG‑3 position without any promotion whatsoever for a period of 15 years, from 2004 to 2019. The CRA confirms that he maintained his MG‑3 job level throughout this period without promotion.
[61] The Tribunal is of the view that the lack of promotion has certainly had an adverse impact on his employment. According to the evidence in the record, salary increases with job level. According to the information provided by the CRA at the hearing, the documents filed and its website, annual compensation increases from $87,654 for an MG‑3 to $96,896 for an MG‑4, to $116,233 for an MG-5 and to $132,427 for an MG-6 as of November 1, 2020. There is clearly a salary progression between the various MG job levels.
[62] Mr. Saint-Jean remained at the MG‑3 level for 15 years. During that period, his MG‑3 base salary rose from $51,824 in 2004 to $81,587 in 2019. However, had he been promoted to levels above MG‑3, his salary would have risen much more significantly. Therefore, because he remained at the MG‑3 level for 15 years, he did not benefit from a pay increase attributable to promotion from one level to the next.
[63] The Tribunal concludes that Mr. Saint-Jean suffered, at the very least, a financial loss in connection with his employment. In light of this conclusion, it is not necessary at this stage to analyze all of Mr. Saint-Jean’s allegations. I will provide the full analysis while addressing the next issue.
[64] The Tribunal therefore finds that Mr. Saint-Jean has indeed suffered an adverse impact with respect to his employment with the CRA under section 7(b) of the CHRA.
(iii) Was Mr. Saint-Jean the victim of adverse differential treatment in the course of employment on the basis of his race, his national or ethnic origin or his colour? [65] As seen above, it is sufficient that the protected characteristic or characteristics, in this case, Mr. Saint-Jean’s race, national or ethnic origin, or colour, were a factor in the manifestation of the adverse impact in the course of employment to establish a prima facie case of discrimination in the course of employment within the meaning of section 7(b) of the CHRA. As for establishing a prima facie case of harassment, as seen above, the Tribunal must analyze the individual items of evidence and the evidence as a whole in light of the CHRA and the case law to determine whether there is a link between the impugned conduct and the prohibited grounds of discrimination.
[66] Mr. Saint-Jean submits that the events constitute discrimination based on his race, his national or ethnic origin and his colour, while the CRA argues that the decisions were made for management reasons having nothing to do with his race, national or ethnic origin, or colour.
[67] Mr. Saint-Jean also claims to have been subjected to workplace harassment by his managers in connection with these events.
[68] Having analyzed the record and for the reasons that follow, the Tribunal finds, on a balance of probabilities, that Mr. Saint-Jean’s race, national or ethnic origin, and colour were not factors in the decisions made with respect to him by the CRA. The Tribunal also finds, on a balance of probabilities, that he was not subjected to harassment, as no link between the conduct of his managers and his race, national or ethnic origin, or colour has been established.
[69] In his complaint filed with the Commission on February 24, 2016, and amended on June 8, 2016, and February 18, 2021, Mr. Saint-Jean states that the period of discrimination and harassment began in January 2004, when he was appointed team leader at the MG‑3 level. At the hearing, he specified that the relevant period was from 2004 to 2019, the date on which he was promoted to the MG‑5 level. In his statement of particulars, filed with the Tribunal on October 15, 2021, Mr. Saint-Jean refers to a series of events and circumstances supporting his allegations that he was not promoted between 2004 and 2019 because of his race, national or ethnic origin, or colour.
[70] The Tribunal lists these events and circumstances below:
1) 2003: Discriminatory comments
2 Temporary assignments
3) 2008: Middle Management Development Program (MMDP)
4) 2010: Exchange with Mr. Prévost
5) 2011: Team restructuring study
6) 2011: Late performance evaluation
7) January 2012: Office move
8) May 2012: Position with Finance Department of Laval Tax Services Office
9) June 2012: Position with Appeals Division of Montreal Tax Services Office
10) October 2012: Haiti project
11) April 2015: Reprimand
12) July 2015: Close scrutiny by Ms. Binette
13) April 2016: Disciplinary meeting
14) August 2016: Assignment to manage a different team
15) August 2016: Performance improvement plan
I will analyze each event in turn.
1) 2003: Discriminatory comments [71] In his testimony, Mr. Saint-Jean described two incidents that occurred in 2003. First, somebody allegedly made racist comments during the announcement of the results of the team leader competition for which Mr. Saint-Jean had qualified. Second, Mr. Saint-Jean’s manager allegedly told him not to apply for the permanent team leader position, saying that it was [translation] “not worth it.” Mr. Saint-Jean applied anyway. He was not selected, and no explanation was provided to him.
[72] These incidents occurred in 2003. They are therefore prior to the period relevant to his complaint before the Commission, which covers the period from 2004 to 2019. I allowed Mr. Saint-Jean to relate the incidents in question at the hearing solely for the purpose of establishing the context.
2) Temporary assignments [73] Mr. Saint-Jean testified that in 2006, Ms. Quan To, who had the same job level as he did, MG‑3, became team leader of the team he wished to lead. Her MG‑3 position was not yet permanent, while Mr. Saint-Jean’s was. He is of the view that he had more experience than Ms. Quan To and should have been appointed. He added that permanent staff usually have priority over temporary staff.
[74] In 2006, Serge Tremblay promoted Ms. Carpentier to a team leader position from his pool even though she was not a permanent employee. Mr. Saint-Jean did not obtain the assignment and is of the view that this was an additional act of discrimination against him.
[75] In 2007, Mr. Saint-Jean applied for lateral transfers that he did not obtain, despite the references Serge Tremblay gave him.
[76] In 2009, Ms. Haddou, MG‑5 manager of the pool, assigned a white employee with less experience than Mr. Saint-Jean to replace her while she was on vacation.
[77] Orel Raymond, who testified at the hearing, confirmed that, generally, employees with greater seniority were chosen to fill in for those higher up in the hierarchy.
[78] Manon Dubé, a retired CRA executive, was a manager at the Call Centre in Montreal. She was responsible for, among other things, training and staffing at the time of the alleged events. She was also an employment equity advisor. She explained that the merit principle guided decisions relating to staffing, promotions, transfers and other staff movements. Acting replacements are also determined on the basis of merit, not seniority. For several years, many employees competed for the few senior positions available. During these lean years, many employees had to wait for the promotions they wanted.
[79] The Tribunal finds that the evidence presented does not support the conclusion that race,