Emmett v. Canada Revenue Agency

Emmett v. Canada Revenue Agency
Collection
Canadian Human Rights Tribunal
Date
2018-07-25
Neutral citation
2018 CHRT 23
File number(s)
T1727/8211
Decision-maker(s)
Gupta, Susheel
Decision type
Decision
Grounds
Age
Sex
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2018 CHRT
23
Date:
July 25, 2018
File No.:
T1727/8211
Between:
Diane Carolyn Emmett
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canada Revenue Agency
Respondent
Decision
Member:
Susheel Gupta
Table of Contents
I. Background 1
II. Procedural History 2
III. Facts 4
A. Ms. Emmett’s Education and Employment History with the CRA 4
B. CRA Executive Staffing 6
IV. Issues 7
V. Preliminary Matters 8
A. Passage of Time/Delay 8
B. Audio Gap in Mr. Troy’s Testimony 10
C. Scope of the Complaint 11
VI. Applicable Legal Principles 12
A. Section 7 of the Act 12
B. Section 10 of the Act 17
C. Compound Discrimination 19
D. Tribunal’s Holistic Approach 20
VII. The Witnesses 20
VIII. Position of the Parties and Analysis 24
A. Has the Complainant met her burden establishing systemic discrimination on the prohibited ground of sex under section 10 of the Act? 24
(i) Culture, Attitude and Cross-Organizational Expertise 25
(ii) Executive Policy Framework 28
(iii) Selection Process 29
(iv) Acting Assignments 37
(v) Statistical Evidence 40
(vi) Conclusion 49
B. Has the Complainant met her burden establishing systemic discrimination on the prohibited ground of age under section 10 of the Act? 50
(i) Selection Process 50
(ii) Pre-Retirement Flex Policy 52
(iii) Culture and Attitude 53
(iv) Statistical Evidence 55
(v) Conclusion 56
C. Has the Complainant met her burden establishing systemic discrimination on the compounded grounds of sex and age under section 10 of the Act? 56
D. Was the Complainant discriminated by the Respondent on the basis of sex and/or age contrary to section 7 of the Act? 57
(i) 1999 Acting Director Opportunity (TNTSO) 58
(ii) 2000 Acting Director Opportunity (TETSO) 60
(iii) 2001 Acting Director Opportunity (TCTSO) 61
(iv) 2001 Acting Director Opportunity (TETSO) 62
(v) 2002 Lateral Move / Director Deployment Opportunity (TETSO) 63
(vi) 2003 and 2004 Transfers of other Executives 64
(vii) 2003 Acting Director Opportunity (TNTSO) 65
(viii) 2004 Director Competition (TCTSO) 66
(ix) 2004 Interim Director Opportunity (TETSO) 68
(x) 2004 Lateral Director Competition (TETSO) 69
(xi) 2004 to 2006 Short-Term Acting Opportunities 73
(xii) 2006 Acting Director Opportunity (TNTSO) 73
(xiii) 2006 Competition Held for Two Director Positions (TNTSO and TWTSO) 76
E. Conclusion 79
I. Background
[1] The purpose of this inquiry is to decide whether the Complainant, Ms. Diane Emmett, was subjected to discrimination based on sex and/or age by her employer, the Canada Revenue Agency (CRA), with respect to policies and practices established by the CRA (s. 10 of the Canadian Human Rights Act, RSC 1985, c H-6 (the Act or the CHRA)) and/or in the course of employment (s. 7 of the Act).
[2] Ms. Emmett worked for the CRA from 1981 until her retirement in 2011. She aspired to become a Tax Service Office (TSO) Director in the Greater Toronto Area (GTA). This, in of itself, appears to be an impressive challenge for anyone given that, at the relevant time, there were only 4 TSO Director positions in the GTA, 3 at the EX-03 level and 1 at the EX-02 level. In pursuit of this goal as an EX-02, she conveyed her interest in acting EX-03 assignments and applied for selection processes at the TSO Director level.
[3] Aside from one acting assignment, Ms. Emmett claims the CRA bypassed her for TSO Director job opportunities in favour of male colleagues who were no better or even less qualified than her. Regarding job opportunities where a female was selected, Ms. Emmett claims it was because they were younger than her. She claims her treatment is reflective of a larger practice within the CRA of systematically denying executive level employment opportunities to women and/or persons over the age of 50, especially in the Southern Ontario Region (SOR) and then after 2006 in the Ontario Region (OR) when the Northern Ontario Region (NOR) merged with the SOR to form the OR.
[4] There is no dispute that sex and age are characteristics protected from discrimination under the Act and that Ms. Emmett possesses these characteristics. There is also no dispute that Ms. Emmett did not receive the job opportunities at issue. The only remaining question for the Canadian Human Rights Tribunal (Tribunal) to decide is whether Ms. Emmett’s sex and/or age was a factor in her being denied the employment opportunities at issue.
[5] Information regarding the identity of current and former employees of the Respondent unrelated to the complaint has been anonymized in accordance with the confidentiality order issued in Emmett v. Canada Revenue Agency, 2013 CHRT 12 [Emmett 2013]. Only those names of individuals who testified at the hearing are found within this decision.
[6] For the reasons that follow, the complaint is dismissed.
II. Procedural History
[7] This matter has been with the Tribunal for an exceptionally long period of time. When assigned this file following the passing of former Member Bélanger, I continuously worked with the parties to ensure that, after a thorough review of the record of the case, a final decision would be rendered as quickly as possible in accordance with the Tribunal’s obligations under the Act (ss. 48.9(1)).
[8] Member Bélanger presided over approximately 52 days of in-person hearing days. Over 85 exhibits were filed totalling over 7,319 pages of material.
[9] The Complainant filed her written closing submissions (totalling 123 pages) on March 31, 2015. The Respondent filed fulsome closing submissions (over 200 pages) on June 22, 2015. The Complainant filed a Reply (over 160 pages) on August 25, 2015.
[10] Sadly, Member Bélanger passed away on November 27, 2015, before the completion of the case. Shortly after Member Bélanger’s death, the parties were contacted by the Tribunal Chairperson to discuss how to move forward. I was subsequently assigned to carry the inquiry forward to completion.
[11] After a series of case management conference calls (CMCC), the parties agreed that a new evidentiary hearing would not be required and that the matter should proceed based on the record of the case. The parties agreed that the record of the case would include: all oral evidence presented at the hearing, all of the evidence (exhibits) previously tendered during the hearing, as well as, all oral and written submissions to date. Furthermore, my review of the evidence would be based on both the written transcripts and the audio recordings of the hearing. There was one exception with regards to the receipt of new evidence concerning the testimony of Mr. Gerald Troy. Unfortunately, his testimony was not captured by the audio recording software when he testified before Member Bélanger. The parties agreed to allow Mr. Troy to testify before me so that I could hear his evidence as part of my review of the case.
[12] I also allowed the parties to file amended final submissions in order to fix discrepancies in their footnote references. Furthermore, as transcripts had not been previously ordered by the former Member, I ordered transcripts of the entire proceedings to be produced and provided to assist the parties at no expense to them.
[13] The parties agreed that should I have any questions, required clarification or further submissions upon completing my review of the evidence, I would contact them in writing or hold a CMCC.
[14] The parties agreed to make additional opening statements (case “overview”), before I commenced my hearing and careful review of all of the evidence. That overview occurred on October 7, 2016. During the course of the overview, the parties were given an opportunity to highlight key points in their respective cases before I began to review the record of the case and hear all the evidence filed during the course of the hearing. The parties agreed to me contacting them jointly if I believed that I required further closing oral submissions from them following my review of the record.
[15] After my review of the record, including a review of the exhibits, listening to the audio recordings, reading the transcripts, and attentively reading the written final submissions and additional addendums filed by the parties, I sent a letter to the parties on May 24, 2018. In this letter, the parties were thanked for their comprehensive and thorough written submissions. I also stated that further oral submissions were not required. The parties did not communicate to the Tribunal to raise any objections to me deciding the merits of the complaint without hearing oral final submissions.
III. Facts
A. Ms. Emmett’s Education and Employment History with the CRA
[16] Ms. Emmett received an Honours Bachelor of Arts Degree in Economics in 1974 and a Master of Arts Degree in 1978. She also completed accounting courses, which would have allowed her to write exams to acquire an accounting designation.
[17] Ms. Emmett was hired by the CRA in 1981 as an AU-01 Tax Auditor in Hamilton. Following a competition, she was promoted to an AU-02 Tax Auditor position in 1983 in Hamilton. In 1986, Ms. Emmett competed, and was found qualified for, an acting AU-03 Audit Manager’s position in Hamilton. The duration of this acting assignment was between March 1986 and September 1986. That same year, Ms. Emmett was found qualified to participate in a Career Advancement Program (CAP). This program helped high potential employees advance their careers to senior management positions. Ms. Emmett’s participation in this program allowed her to take on various challenging assignments within the CRA in several locations, notably in St. Catharines and in Ottawa. She graduated from the CAP in November 1988 and returned to her permanent AU-03 Audit Manager’s Position in Hamilton. Ms. Emmett competed in a competition for an AU-04 District Manger’s position in 1990 and was promoted to this position. Not long after, the position was reclassified to the EX-01 level. Ms. Emmett competed and was successfully promoted to the EX-01 Director’s position in Hamilton in July 1992.
[18] In the meantime, considerable structural changes occurred to what is now the CRA from the mid-1990’s to 2003. Originally structured and called the Department of National Revenue (DNR), it had two Deputy Ministers with two independently operating branches. There was what was described to me as DNR Taxation, which operated under one branch and DNR Customs and Excise, which operated under the other. Customs operated separately from Excise.
[19] The process of restructuring/merging these two branches into one single organization and under one Deputy Minister was known as “administrative consolidation”. Administrative consolidation resulted in the restructuring of geographical offices, reduction of senior and middle management positions, and the combining of corporate functions.
[20] Consolidation created challenges in terms of bringing different work cultures together and finding new positions for some employees. Consolidation also brought changes to leadership, senior management needs and to the delivery of the organization’s mandate. Many employees were moved around as the new organization was being structured and organized. Subsequent to all of this, in 2003, the Customs branch (now the Canada Border Services Agency) was carved out to become a separate Agency. Ms. Ruby Howard, interim Assistant Deputy Minister at the time, testified that many managers were uncomfortable with the change since they saw themselves as becoming “small” fish in a large pond, when they had been “big” fish in a small pond.
[21] Following the consolidation, Ms. Emmett was found to be a “surplus” executive on a few occasions. Her position was eliminated and she was transferred to another position, which was also then subsequently eliminated.
[22] With the elimination of positions there was also the creation of new positions. According to the testimony of Ms. Gloria Reid, former TSO Director, as a result of administrative consolidation, the CRA sought expressions of interest for 17 newly created EX-01 positions in the SOR. Ms. Reid testified that Ms. Emmett only expressed an interest in 3 of the 17 positions advertised. She only applied to positions within the audit program area located in the GTA, with the exception of the position advertised in the Toronto East TSO office (TETSO). During cross-examination, Ms. Emmett testified that she did not express an interest in the TETSO position because she did not want to commute to that location.
[23] Ms. Emmett was eventually deployed, without competition, to the EX-01 Assistant Director of Verification and Enforcement (ADVE) position in the Toronto North Tax Service Office (TNTSO) on June 3, 1996. This position was later reclassified to the EX-02 level in 1998. Ms. Emmett remained in this position for the most part until her retirement on September 7, 2011.
[24] In that time period, Ms. Emmett alleges she was denied several acting assignments, a lateral transfer appointment and promotions to Director positions on the grounds of sex and/or age discrimination.
[25] Ms. Emmett was however assigned, on several occasions and without competition, to short-term acting assignments as the Director of the TNTSO office. In 2003, she was given a lengthier acting EX-03 Director assignment in the same office, which was for a period of three and a half months.
[26] In 2009, Ms. Emmett left the workplace and remained off work for over two years due to an undisclosed illness. She submitted her letter of resignation in May 2011, which indicated her decision to retire.
B. CRA Executive Staffing
[27] At the hearing, Ms. Carolyn Wlotzki, who worked in Human Resources for the CRA, provided testimony that after Customs became its own Agency in 2003, the CRA employed approximately 40,000 employees. Approximately 470 employees of those employees were at the executive level (representing approximately 1% of the total CRA workforce across the country). This number fluctuated over time as there was constant change and movement within the organization.
[28] Ms. Wlotzki also provided uncontradicted testimony that:
Executives are a national resource [1]
Across Canada, there were approximately 51 TSOs and Tax Centres
There were approximately 16 TSOs across Ontario, 4 of which were, and still are, in the GTA
The OR employed over 13,000 people, only around 88 of which were at the executive level
In the OR, there were 18 EX-02 positions, 5 EX-03 positions, 1 EX-04 position and 1 EX-05 position
There were only 4 TSO Director positions in the GTA
The Director positions for TNTSO, Toronto Centre (TCTSO), and Toronto West (TWTSO) were at the EX-03 level
The Director position in TETSO was classified at the EX-02 level at the relevant time
[29] In addition, the CRA’s human resources section provided executives with career counselling services. Executives could also opt to take advantage of counselling services provided by the Public Service Commission in areas such as interview preparation and coaching. Furthermore, executives were able to seek training from both government providers and external providers.
[30] It was suggested to Ms. Emmett that Ms. Howard could provide Ms. Emmett with mentoring, as Ms. Howard had become an Executive Coach with the CRA after retiring in March of 2003. Mr. Troy reached out to Ms. Howard on Ms. Emmett’s behalf seeking to inquire whether Ms. Howard would act as a coach to Ms. Emmett. Ms. Howard agreed to work with Ms. Emmett in such a capacity, but Ms. Emmett refused Ms. Howard’s offer.
IV. Issues
[31] In my view, the issues in this case are as follows:
Has the Complainant met her burden establishing systemic discrimination on the prohibited ground of sex under section 10 of the Act?
Has the Complainant met her burden establishing systemic discrimination on the prohibited ground of age under section 10 of the Act?
Has the Complainant met her burden establishing systemic discrimination on the compounded grounds of sex and age under section 10 of the Act?
Was the Complainant discriminated by the Respondent on the basis of sex and/or age contrary to section 7 of the Act?
V. Preliminary Matters
[32] Before dealing with the merits of the complaint, the Tribunal will address some preliminary matters.
A. Passage of Time/Delay
[33] It is not lost on the Tribunal that much time has passed since the first alleged act of discriminatory conduct took place in 1999.
[34] The Complainant initially filed her complaint with the Commission in June 2007 for a discrete period in 2006. Following a four year investigation by the Commission, the scope of the inquiry was significantly expanded to include alleged conduct occurring from February 22, 1999, to September 6, 2006. The matter was referred to the Tribunal for an inquiry in 2011.
[35] The passage of time has caused some evidentiary challenges in this case. Much, if not most, of the documentation pertaining to executive staffing processes, advertised job openings, job applications, and competition files at issue were destroyed pursuant to the CRA’s document retention policy before the complaint was even filed at the Commission.
[36] In effect, Ms. Wlotzki testified that the only selection process files in existence are the 2006 TNTSO and 2006 TWTSO competitions. Evidence relating to the 2004 lateral process was also filed with the Tribunal.
[37] Ms. Wlotzki testified that all acting appointment files at issue were also destroyed pursuant to the CRA’s retention policy. While Ms. Emmett takes issue with whether there were any acting appointment files to begin with, no evidence was brought forward demonstrating that such documents were in fact accessible and/or held back from the Complainant.
[38] In its amended written closing submissions, the CRA argues that the 15 year span, from the earliest alleged discriminatory act until the first day of hearing of the complaint, impaired its ability to provide a full answer and defence. This is largely due to the fact that much relevant documentation was destroyed pursuant to the CRA’s document retention policies.
[39] Ms. Emmett acknowledged during the hearing that she had begun selectively compiling numerous documents since 1996 in order to document incidences she perceived to be discriminatory against her. Some of the documents she compiled were in the nature of staffing announcements, committee membership lists, organization charts, corporate reports, internal employee newsletters and a number of other documents.
[40] The CRA asks this Tribunal to give more weight to the few documents it was able to retrieve in its electronic files relating to staffing processes coupled with the testimony of witnesses who were directly involved in the decision-making process.
[41] The Respondent also argues that the Tribunal should not give any weight to e-mails and acting assignment announcements filed into evidence by the Complainant because they are not official documents and do not contain justifications for the decisions made, they are simply announcements. The Tribunal notes that the authenticity of these documents is not contested by the Respondent. The issue is whether these documents, on their own and as Ms. Emmett argues, ought to be relied upon to explain the CRA’s rationale for selecting one candidate over the others. Ms. Emmett submits that the announcements should speak for themselves and that any explanation provided by witnesses should be given little weight as they could be false explanations provided after the fact.
[42] I agree with the Respondent that the documents it filed relating to staffing processes coupled with the testimony of the Respondent’s witnesses who were directly involved and knowledgeable of the circumstances, should be given greater weight than the interpretation of events provided by the Complainant. The decision-makers and/or those directly involved in the acting and staffing processes are best suited to explain the rationale for staffing decisions taken.
[43] It would be improper for the Tribunal to rely on Ms. Emmett’s interpretation of the announcements because, as a third party to the appointment and staffing processes, Ms. Emmett’s interpretation of the evidence is speculative at best. At the hearing, Ms. Emmett acknowledged that she was not involved in the decision-making process, had no knowledge of whether interviews were held, whether there had been accommodation requests, whether other women or employees older than the selected employee were considered, or whether there were any specific reasons one person was chosen over another. In addition, I accept Ms. Howard’s evidence that the Respondent would never, in a staffing announcement, describe the various challenges faced by an office or the reasons and discussions why a specific employee was selected in order to deal with the said challenges.
[44] I do however find that the announcements, which were created by the CRA, are still helpful to support witness testimony. I will accordingly give some weight to them. However, unless otherwise specified, the Tribunal will give more weight to the testimony of witnesses involved in the acting assignment and staffing processes where there are discrepancies between their testimony and that of Ms. Emmett.
[45] Finally, while the Complainant contests the CRA’s claim that much documentation was destroyed and argues that the CRA deliberately withheld documents at the hearing, the Tribunal finds that it has no reason to doubt the validity of the CRA’s retention policy. Furthermore, I was not provided with any convincing evidence demonstrating that the CRA deliberately withheld documents. I find that the Respondent provided a reasonable explanation for how it was able to produce documents that appeared to be from the period when documents were destroyed, namely that those documents were found in other places such as an employee’s email system or other electronic filing systems. In this day and age of documents being transmitted and stored electronically, it is not unusual for copies to be found in multiple locations.
B. Audio Gap in Mr. Troy’s Testimony
[46] On December 16, 2016, the Tribunal advised the parties that the audio recording device failed to capture approximately one hour of Mr. Troy’s testimony on re-examination during the afternoon of December 8, 2016. Following concerns received by the Complainant, the parties submitted written submissions wherein the Complainant alleges the gap in the audio recording could prejudice her “in a possible judicial review of the Tribunal’s decision.” She requests that actions be taken to remedy the said audio gap. However, the Complainant concedes that the audio gap does not create a prejudice with respect to “the Tribunal’s ability to make a decision”. The Respondent argues in its Reply that the Complainant failed to demonstrate any prejudice in these proceedings as a consequence of the said audio gap.
[47] Given that I personally presided over the December 8, 2016, hearing, and as I informed the parties at the relevant time, I heard the evidence of Mr. Troy directly, I am confident in my comprehension and recollection of the witness’ testimony. Since the Complainant’s right to have the decision-maker hear all the evidence has been respected, I find that the Complainant has not demonstrated any prejudice caused by the audio gap. It is therefore not necessary for me to take any remedial action. Any contradictions or discrepancies of fact regarding the witness’ testimony, which are material to the complaint, shall be dealt with further below.
C. Scope of the Complaint
[48] Despite Member Bélanger’s previous ruling (Emmett 2013), Ms. Emmett argues in her amended final written submissions that the Tribunal ought to find that the CRA engaged in a discriminatory practice against women in non-executive positions, and especially women within the AU group. Consistent with the Tribunal’s previous ruling in this matter, I find that alleged discrimination against women in non-executive positions is not part of the inquiry.
[49] Member Bélanger stated as follows in Emmett 2013:
[30] As this statement indicates, the under-representation of women in the CRA is not the basis of the Complainant’s allegations of systemic discrimination. Rather, it is the “…engrained attitudinal and cultural barriers that negatively stereotyped women from the audit field […] from advancing to key executive positions in the CRA’s organization” that forms the basis of the Complainant’s allegations of systemic discrimination. The Complainant points to statistical information of women auditors being historically under-represented in the CRA, whether in the executive group or other occupational groups, as evidence in support of her allegations of systemic discrimination. Whether that evidence supports the Complainant’s allegations or establishes a prima facie case of discrimination will be determined following the hearing of this complaint.
[31] […] I see no prejudice to the Respondent if the Complainant advances statistical information regarding the under-representation of women in other occupational groups at the CRA to support her allegations of systemic discrimination.
[50] Contrary to Ms. Emmett’s assertions, these passages do not recognize that the complaint includes allegations of systemic discrimination in non-executive groups. It is clear to me that the Tribunal allowed the Complainant’s allegations relating to attitudinal and cultural barriers and statistical information with respect to women in occupational groups other than the executive as support for the Complainant’s allegations of systemic discrimination in the executive group. In effect, Ms. Emmett’s only allusion to other groups in her initial complaint is where she refers to a “negative stereotype that women with an audit background are less capable of holding the most senior level positions in the field organization.” It would therefore be inappropriate for the Tribunal to expand the scope of the complaint to include allegations of systemic discrimination with respect to staffing practices in the non-executive group, including auditors, so late in the inquiry.
VI. Applicable Legal Principles
A. Section 7 of the Act
[51] Under paragraph 7(b) of the Act, it is a discriminatory practice to adversely differentiate an employee on a prohibited ground of discrimination.
[52] Much ink has been spilt trying to explain the burden that lies on the complainant. The Tribunal finds that it is necessary to explain this burden in greater detail for the benefit of the parties with the hope of bringing greater clarity to this area of law.
[53] First, the Tribunal agrees with the reasons adopted by the British Columbia Human Rights Tribunal for refraining from describing a complainant’s burden of proof as a “prima facie” one. We adopt the same practice for the same reasons set out at paragraphs 48-50 of Vik v. Finamore (No. 2), 2018 BCHRT 9:
[48] I pause here to make an observation about language. In my view, the terminology of “prima facie discrimination” is not helpful and, in some cases, may create fundamental misconceptions about the law of discrimination. First, Latin phrases which describe legal tests takes the law away from the people it is meant to serve. Without specialized legal training, the words “prima facie” are unlikely to carry much meaning for the majority of people trying to understand their rights, and comply with their obligations, under the law. As decision makers, we should be striving to make our decisions understandable and to speak as plainly as possible to achieve that purpose. Using Latin is not helpful to that goal.
[49] Second, using the term “discrimination” at this stage is misleading. Participants, rightly, may think that a finding of prima facie discrimination is the same as a finding of discrimination. For complainants, it is then difficult to understand how a respondent could justify the discrimination. Respondents, for their part, carry the stigma of having discriminated before having the opportunity to justify their behaviour. In fact, discrimination may only be found to occur after both the prima facie and the justification analysis, if one is advanced. Where there is a justification, there is no discrimination: Moore at para. 33. It is, in my view, unhelpful to introduce the value-laden term of “discrimination” until the whole analysis is complete.
[50] The significance of the prima facie test for discrimination is that it describes the complainant’s burden of proof under the discrimination analysis. This concept can, and in my view should, be described in much plainer terms – for example, as simply “the complainant’s case”. Doing so might bring the Code slightly closer to being the “law of the people”: Tranchemontagne v. Ontario (Director, Disability Support Program), 2006 SCC 14 (CanLII) at para. 33.
[54] A complainant’s 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” (see Ont. Human Rights Comm. v. Simpsons-Sears, [1985] 2 SCR 536, 1985 CanLII 18 (SCC) at para. 28 [O’Malley]).
[55] For Ms. Emmett to meet her case, she is required to show that she; (1) has a characteristic or characteristics protected from discrimination under the Act; (2) that she experienced an adverse impact; and, (3) that the protected characteristic or characteristics were a factor in the adverse impact (see Moore v. British Columbia (Education), 2012 SCC 61 at para. 33 [Moore]).
[56] The Tribunal notes the Complainant’s reliance on Shakes v. Rex Pak Ltd., (1982), 3 CHRR D/1001 [Shakes] and would like to make the following comments. Under Shakes, a complainant’s case is met where (1) the complainant was qualified for the particular employment; (2) the complainant was not hired; and, (3) someone no better qualified but lacking the distinguishing feature, which is the basis of the complaint of discrimination, subsequently obtained the position.
[57] It is well established that this framework serves only as a guide and should not be applied in a rigid or arbitrary fashion in every hiring case (Lincoln v. Bay Ferries Ltd., 2004 FCA 204 at para. 77 [Bay Ferries]; see also O’Bomsawin v. Abenakis of Odanak Council, 2017 CHRT 4 at paras. 46-48).
[58] Ultimately, the issue for the Tribunal to decide is whether the Complainant has met her burden of establishing that her sex and/or age was a factor in the CRA’s decision not to award her with the staffing opportunities at issue. The Shakes framework is helpful to decide this, but is not binding. In deciding this issue, I have considered all the evidence adduced by the parties, including elements related to the Shakes test.
[59] All three elements of the Moore criteria must be established on a balance of probabilities (see Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 at para. 56 [Bombardier]). Moreover, evidence of discrimination, “even if it is circumstantial, must nonetheless be tangibly related to the impugned decision or conduct” (Bombardier at para. 88).
[60] Ms. Emmett relies on Bay Ferries to support her contention that the Tribunal cannot take into account a respondent’s explanation in determining whether a complainant has made their case (Bay Ferries at paras. 18, 22). Effectively, in relying on O’Malley, the Federal Court of Appeal found that the Tribunal erred when it took into account the respondent’s answer before concluding that the complainant’s case had not been established (Bay Ferries at para. 22).
[61] However, since Bay Ferries, the Supreme Court of Canada issued Bombardier wherein the Supreme Court clarified the complainant’s burden of proof in discrimination cases and explained that a tribunal is to consider the evidence as a whole, including the respondent’s evidence, in deciding whether a complainant has made their case. In light of the decision in Bombardier, it is apparent to the Tribunal that the burden, as set out in O’Malley, has been misinterpreted for a number of years (see Bombardier at paras. 55‑59). The Supreme Court explained that in the context of discrimination “the expression ‘prima facie’ refers only to the first step of the process and does not alter the applicable degree of proof” (at para. 59). It further explained:
[64] … the use of the expression “prima facie discrimination” can be explained quite simply on the basis of the two‑step test for complaints of discrimination under the Charter. This expression concerns only the three elements that must be proven by the plaintiff at the first step. If no justification is established by the defendant, proof of these three elements on a balance of probabilities will be sufficient for the tribunal to find that s. 10 of the Charter has been violated. If, on the other hand, the defendant succeeds in justifying his or her decision or conduct, there will have been no violation, not even if prima facie discrimination is found to have occurred. In practical terms, this means that the defendant can either present evidence to refute the allegation of prima facie discrimination, put forward a defence justifying the discrimination, or do both.
[Emphasis added]
[62] It is clear from the above quoted passage that the Supreme Court rejected the narrow interpretation of the requisite burden of proof ascribed to O’Malley by the Federal Court of Appeal in Bay Ferries. The Supreme Court’s explanation also makes it clear that the complainant’s burden is not one “on its face” and therefore, there is nothing “prima facie” about it. This is another reason to move away from describing the complainant’s case as being a “prima facie” one.
[63] The Tribunal understands the Supreme Court’s directions in Bombardier to mean that the Tribunal can find that a complainant has not established their case where he or she: (1) in the absence of an answer from the respondent, failed to adduce evidence to meet the burden or, (2) the respondent was able to adduce evidence to the contrary (see also Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 3d ed (LexisNexis, 2009) at 101-105; see also Peel Law Association v. Pieters, 2013 ONCA 396 at paras. 63‑77).
[64] It is also my view that allowing the responding party to present evidence that contradicts the complainant’s evidence of discrimination in the first stage of the discrimination analysis is consistent with the text and scheme of the CHRA and the Supreme Court’s teachings in Bombardier.
[65] While Bombardier explained the concept of the complainant’s case in the context of section 10 of the Québec Charter of Human Rights and Freedoms, CQLR c C-12 (Québec Charter), I believe that the Supreme Court’s directions equally apply to the Canadian Human Rights Tribunal.
[66] In this respect, the Tribunal notes the Supreme Court’s directions in British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 [Schrenk], which reminds human rights tribunals that, in interpreting their enabling legislation in accordance with the modern principle of statutory interpretation and the rules particular to human rights legislation, tribunals must not ignore the text or scheme of the statute itself (Schrenk at paras. 29-32).
[67] In effect, like the Québec Charter, the CHRA also contemplates a two-step test for complaints of discrimination. Once a complainant has satisfied their burden under the first step of the test, the respondent can chose to justify its practice(s) under section 15 of the Act. The CHRA is also silent as to the degree of proof a complainant must meet to make their case, which indicates that the applicable standard is the civil standard of proof (i.e. proof on a balance of probabilities). The Tribunal therefore sees no reason to depart from the Supreme Court’s teachings on the complainant’s burden of proof as expressed in Bombardier.
[68] While Bombardier was released following the filing of the parties’ submissions, it is my view that the Supreme Court’s clarification does not have any impact whatsoever on the parties’ respective cases or the burden of proof that lies on the Complainant. Instead of addressing the parties’ submissions going to discrimination in silos, I relied on Bombardier to consider the parties’ submissions together as a whole in assessing whether the Complainant has met her burden.
B. Section 10 of the Act
[69] The difference between complaints made under section 7 and section 10 of the Act is the number of people affected (Moore at para. 58).
[70] Discrimination is systemic where an employer establishes or pursues 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 (para. 10(a) of the Act).
[71] The Complainant must establish credible evidence that the CRA is pursuing a policy or practice that deprives or tends to deprive women and/or individuals over the age of 50 of employment opportunities, on a balance of probabilities (Walden v. Canada (Social Development), 2007 CHRT 56 at para. 7; Gravel v. Public Service Commission of Canada, 2010 CHRT 3 at para. 226; Gaz métropolitain inc. c. Commission des droits de la personne et des droits de la jeunesse, 2011 QCCA 1201 at para. 38 [Gaz métro QCCA]).
[72] In CN v. Canada (Canadian Human Rights Commission), [1987] 1 SCR 1114, 1987 CanLII 109 (SCC) [Action Travail], the Supreme Court defined systemic discrimination as follows at page 1139:
Systemic discrimination in an employment context is discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of "natural" forces, for example, that women "just can't do the job" (see the Abella Report, pp. 9-10).
[73] Recently, in Commission des droits de la personne et des droits de la jeunesse c. Gaz métropolitain inc., 2008 QCTDP 24 [Gaz métro QCTDP], aff’d 2011 QCCA 1201, the Human Rights Tribunal of Québec defined systemic discrimination as:
[36] […] 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.
[74] Systemic discrimination is characterized by “the disproportionate exclusionary effects stemming from institutional recruitment, hiring and promotion policies that are, in general, apparently neutral” (Gaz métro QCTDP at para. 72). The consequences of the policies or practices themselves can be evidence of systemic discrimination (Gaz Metro QCCA at para. 38). Evidence of systemic discrimination can also be informed and supported by various factors such as “institutional policies, decision-making processes, behaviours and attitudes” (Gaz métro QCTDP at para. 67). Oftentimes these factors appear innocuous. However, where it is shown that these factors, when combined, deprive or tend to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination, a finding of systemic discrimination is substantiated (see for example Gaz métro QCTDP at para. 67; see also Radek v. Henderson Development (Canada) and Securiguard Services (No.