Cst. SM, Sgt. SV and Cpl. JR v. Royal Canadian Mounted Police

Cst. SM, Sgt. SV and Cpl. JR v. Royal Canadian Mounted Police
Collection
Canadian Human Rights Tribunal
Date
2024-10-22
Neutral citation
2024 CHRT 113
File number(s)
T2635/1121, T2636/1221, T2637/1321
Decision-maker(s)
Paul Singh
Decision type
Decision
Grounds
Colour
National or Ethnic Origin
Race
Religion
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2024 CHRT
113
Date:
October 22, 2024
File Nos.:
T2635/1121, T2636/1221, T2637/1321
Between:
SM, SV and JR
Complainants
- and -
Canadian Human Rights Commission
Commission
- and -
Royal Canadian Mounted Police
Respondent
Decision
Member:
Paul Singh
Table of Contents
I. INTRODUCTION 1
II. DECISION 2
III. FACTS 2
A. The Unit 3
B. The RCMP NCO promotion process 3
C. Complainants’ evidence 5
(i) Cpl. JR 5
(ii) Cst. SM 7
(iii) Sgt. SV 9
D. Complainants’ witnesses 10
(i) Cst. TL 10
(ii) S/Sgt. GS 10
(iii) Dr. Kanika Samuels-Wortley 11
E. The RCMP’s witnesses 11
(i) Insp. VM 11
(ii) Jamie Kenny 11
(iii) A/Comm. MP 12
(iv) Insp. CM 12
(v) Supt. JC 12
(vi) Nadine Huggins 12
IV. ANALYSIS 13
A. Legal principles 13
B. Prima facie test for discrimination 15
C. Credibility 15
D. SLO backgrounds 16
E. Justification for candidate selections 17
(i) The 2016 Corporal Training / Reviewer Position 17
(ii) The 2018 Corporal Supervisor/Investigator Position 21
(iii) 2019 Staff Sergeant position 27
F. Racial comments 33
G. Promotions within the Unit 35
H. Availability of acting opportunities 35
I. Expert evidence on systemic racism in police organizations 38
J. Subjectivity of the NCO promotion process 40
K. The Strachan memo 42
V. Conclusion 43
VI. Decision and Order 44
I. INTRODUCTION [1] The Complainants SM, SV, and JR, who are of South Asian descent and identify as visible minorities, are police officers employed by the Respondent Royal Canadian Mounted Police (“RCMP”). Their complaints (“Complaints”) each center on the RCMP’s failure to promote them because of their colour, national or ethnic origin, and/or race (collectively “race”) while they worked at an RCMP unit in Ontario (the “Unit”) and on the alleged racism in the Unit’s promotional processes generally. This, they say, constitutes discrimination contrary to section 7 of the Canadian Human Rights Act, RSC 1985, c H-6 (“CHRA”).
[2] The RCMP denies discriminating against the Complainants during the promotion competitions at issue, or at all, and seeks a dismissal of the Complaints.
[3] The Complaints were referred to the Tribunal for inquiry in February 2021 and later joined.
[4] The Unit is a covert unit. In October 2021, I allowed the RCMP’s motion for a broad confidentiality order, on consent of the Complainants, on the basis that disclosure of information relating to the Unit would be injurious to officer safety, national security, and sensitive RCMP investigations: SM, SV and JR v. Royal Canadian Mounted Police, 2021 CHRT 35. The scope of the confidentiality order included anonymizing the names of the Complainants and other officers affiliated with the Unit and not disclosing information about Unit operations (“Operations”) including descriptions, investigations, and techniques.
[5] In May 2022, I allowed the RCMP’s motion, on consent of the Complainants, to bifurcate the issue of liability and remedy in these proceedings. The issue of the RCMP’s liability for the Complaints would first be determined by the Tribunal. If liability was found, the issue of remedy would be determined by the Tribunal at a subsequent hearing.
[6] In October 2023, I allowed the RCMP’s motion, on consent of the Complainants, to close the hearing to the public: SM, SV and JR v. Royal Canadian Mounted Police, 2023 CHRT 46. I determined it was not reasonably possible to mitigate the risk to officer safety, national security, and sensitive RCMP investigations while conducting an effective hearing without excluding the public.
[7] A 15-day hearing on liability for the Complaints was completed in December 2023 and closing submissions were completed in March 2024. The Canadian Human Rights Commission did not participate in the hearing.
[8] Twelve witnesses testified at the hearing. I refer to the officers by the rank they held at the time of the hearing. Six witnesses testified for the Complainants cases: the Complainants - Corporal (“Cpl.”) JR, Constable (“Cst.”) SM, and Sergeant (“Sgt.”) SV; two lay witnesses - Staff Sergeant (“S/Sgt.”) GS who was Sgt. SV’s supervisor in 2019, and Cst. TL, a current member of the Unit; and one expert witness - Dr. Kanika Samuels-Wortley.
[9] In response, six witnesses testified for the RCMP: the current Officer-in-Charge (“OIC”) of the Unit - Inspector (“Insp.”) VM; the current civilian OIC of the RCMP’s National Promotions Unit - Ms. Jamie Kenny; the three previous OICs of the Unit whose promotional decisions were challenged in the Complaints - Assistant Commissioner (“A/Comm.”) MP, Insp. CM, and Superintendent (“Supt.”) JC; and the RCMP’s Chief Human Resources Officer - Ms. Nadine Huggins.
II. DECISION [10] The Complaints are all dismissed as the Complainants did not prove that their race was a factor in the promotion competitions at issue.
III. FACTS [11] In the Complaints, Cpl. JR says he was subject to racial discrimination in a 2016 Corporal Training/Reviewer promotion competition. Cpl. JR and Cst. SM both say they were subject to racial discrimination in a 2018 Corporal Supervisor/Investigator promotion competition. Sgt. SV says he was subject to racial discrimination in a 2019 Staff Sergeant promotion competition.
[12] To contextualize the Complaints, I have set out some general information about the Unit, the RCMP’s Non-Commissioned Officer (“NCO”) promotion process, and relevant witness evidence.
A. The Unit [13] The Unit performs covert Operations on a full-time basis. It works with other covert units (“Related Units”) and non-covert RCMP units and agencies, as needed.
[14] The majority of the Unit’s Operations relate to national security investigations and sensitive international investigations. The Unit is comprised, in order of rank, of one Inspector, one Staff Sergeant, three Sergeants, ten Corporals, and about seventy-four Constables. Apart from the Inspector, who is a commissioned officer, the remaining ranks in the Unit are non-commissioned.
[15] The Constables in the Unit are primarily responsible for conducting Operations on the road. The Constables are supervised by Corporals in a Team Leader position. The Sergeants supervise the Corporals and oversee Unit Operations.
B. The RCMP NCO promotion process [16] Regular, non-commissioned members of the RCMP are appointed under the Royal Canadian Mounted Police Act, RSC 1985, c. R-10. NCO promotions are governed by the NCO promotion process found in the RCMP’s Career Management Manual.
[17] Promotion opportunities are advertised on the RCMP’s Infoweb. The advertisement sets out key information about the position. This includes: the required competencies and training which the candidate must demonstrate they meet in their application; the names of the Subject Matter Experts (“SME”) who will validate competency examples; and the name of the Selecting Line Officer (“SLO”) or their delegate who will select the successful candidate for promotion.
[18] To apply for an NCO promotion, the candidate must have a passing score on the Job Simulation Exercise (“JSE”) and the minimum years of required service. The minimum years of service are: seven years for promotion from Constable to Corporal; at least two years for promotion from Corporal to Sergeant; and at least two years for promotion from Sergeant to Staff Sergeant.
[19] Candidates applying for a promotion must submit an application package which contains three documents: an application form which includes the candidate’s background information and confirmation of support from their current supervisor; a competency resume which includes two examples per functional competency required; and a cover letter which includes an explanation of how the candidate’s experience and skill set is relevant to the promotional opportunity.
[20] Candidates submit their application package to the National Promotions Unit (“NPU”), which screens the package to ensure it is complete. If the package is complete, it goes to the competency validation stage through a validation committee.
[21] A validation committee made up of two SMEs reviews the candidates’ competency examples to determine whether the examples meet the minimum requirements set out in the job advertisement.
[22] When the SMEs determine that a candidate meets the competency requirements, the candidate is deemed validated. The candidate need not be re-validated for that competency at that level for future promotional processes even if they submit new competency examples in a future application package.
[23] If the SMEs determine that a candidate has not met the minimum requirements for a required competency, they are not validated. The candidate is provided an explanation for the non-validation and removed from the promotion process.
[24] If the candidate’s competency examples are validated, they move to the final selection stage. At this stage, the SLO makes the final selection of the successful candidate. A maximum of seven candidates can advance to this stage. Where there are more than seven candidates, those with the top seven JSE scores advance.
[25] The SLO makes the selection based on the application packages only. They have discretion to use their own scoring matrix when reviewing application packages. There is no interview process. Performance documents such as performance reviews are not included in the application package, and SLOs do not consider performance reviews when making their final selection.
[26] The SLO has the discretion to select the candidate who is the right “fit” for the position after considering the candidates’ applications. Factors that inform the “fit” analysis include current and future operational needs of the unit, and skills that may be lacking in the unit, After selecting the successful candidate, the SLO prepares a Line Officer Recommendation Rationale (“Rationale”) for the unsuccessful candidates, which explains why the successful candidate was selected.
[27] Prior to the selection being finalized, the NPU receives a copy of the Rationale and any scoring matrix or notes the SLO prepared to support the selection. The role of the NPU is to review the Rationale for selection and to verify whether there is sufficient information contained in the Rationale to explain the SLO’s selection. The NPU also verifies whether the information in the Rationale is expressly contained in the application packages. This is to help ensure that only information contained in the application packages informs the SLO’s selection, and not the SLO’s personal knowledge of a candidate outside the promotion process.
[28] Candidates may object to the involvement of any SME or SLO identified in the job advertisement. An objection is submitted in writing to the NPU, who then determines its merits. Whether the NPU upholds an objection is assessed on a case-by-case basis and is dependent on the nature of the objection. If the NPU upholds an objection, the SME or SLO is replaced.
C. Complainants’ evidence (i) Cpl. JR [29] Cpl. JR is 48 years old and identifies as Indo-Canadian, with his parents born in Bangladesh. After obtaining an undergraduate degree from the University of Western Ontario he decided to pursue a career in the RCMP.
[30] Cpl. JR graduated from Depot training in 2000 and began his RCMP career as a Constable performing General Duty and First Nations policing in Saskatchewan. He then moved to Traffic Services. During this time, Cpl. JR testified about experiencing racism and being called racial slurs by members of the public.
[31] In 2006, Cpl. JR transferred to Ontario and joined the Unit. Over the next decade, he gained various experiences in the Unit. He was certified as a Field Coach to mentor new members coming into the Unit. He also became an instructor on several advanced training courses for Unit Operations and was sent overseas several times to teach these courses for the RCMP’s international partner agencies.
[32] Cpl. JR testified that he expressed an interest in promotion to the Corporal rank in the Unit for many years. He stated that during his time in the Unit, he observed a lack of visibly racialized representation in the Unit’s promotional ranks, and a lack of cultural competence in the Unit’s Operations.
[33] Cpl. JR’s Unit performance reviews were consistently positive and noted his interest in promotion to Corporal.
[34] Cpl. JR testified that the Unit Operations primarily targeted racialized communities and Unit members often concentrated their work in these communities. He testified that White Unit members would use derogatory language and jokes when referring to these communities, including their worship, traditional attire, and cuisines. He testified that he also engaged in inappropriate jokes and used derogatory language on occasion. He eventually recognized this was inappropriate and stopped doing so.
[35] In 2016, Cpl. JR applied for the Corporal Training Coordinator position. He was unsuccessful, losing the position to Cpl. MW, a White Constable who had been acting in the role at the time of the promotion competition. The Rationale Cpl. JR received from A/Comm. MP (the SLO for that process) cited Cpl. MW’s instructional experience in the areas of firefighting, first aid, and firearms, as well as Cpl. MW’s acting experience in the Training Coordinator role as two of the right fit criteria on which she had based her decision.
[36] Cpl. JR testified he could not understand how Cpl. MW’s instructional experience in the fields of firefighting, first aid, and firearms could be more important for the position than Cpl. JR’s own examples, which came almost entirely from Unit Operations. Cpl. JR also testified he had asked to act in the Training Coordinator role before the promotional competition, but this request was denied because he had not yet passed the JSE. He stated that passing the JSE had never been a policy requirement to occupy an acting position.
[37] In 2017, after a year in the role, Cpl. MW went on sick leave and Cpl. JR was asked to act in the Training Coordinator position. In 2018, while still acting in the Training Coordinator Role, Cpl. JR decided to apply for promotion to the Corporal Team Leader position.
[38] Both Cpl. JR and Cst. SM applied for the Corporal Team Leader position in 2018 and both were unsuccessful in the competition. The successful candidate was SS, a White Constable. Cpl. JR testified that Cpl. SS was several years junior to him and he had been Cpl. SS’s Field Coach and mentor when Cpl. SS was a new member. Cpl. JR was also the second-in-charge on Cpl. SS’s team, where Cpl. SS did not have any leadership role.
[39] When Cpl. JR reviewed the Rationale from Insp. CM (the SLO for the process), he testified he was confused by its focus on Cpl. SS’s tactical intervention skills. Cpl. JR testified that the Unit is not involved in tactical takedowns due to its covert nature. He could not understand how these skills had made Cpl. SS’s application better than his own when Cpl. JR’s application specifically described the day-to-day duties of the Corporal Team Leader position.
[40] Cpl. JR testified that in November 2019 he decided to file a human rights complaint after speaking with Cst. SM and Sgt. SV. When he was promoted to Corporal Team Leader in 2021, he testified that given his experience and tenure, he should have been many ranks ahead of where he was.
(ii) Cst. SM [41] Cst. SM is 59 years old and identifies as East-Indian. He was born in the United Kingdom and grew up in a small town in British Columbia. He joined the RCMP after two years with the Ontario Provincial Police. He enrolled in Depot training in 1990 and joined the Unit in 1991 as a Constable and continued to hold that rank for the past 33 years.
[42] Cst. SM testified that he passed the Corporal JSE many times between 2000 and 2016 and had led several complex and lengthy investigations for the Unit. He was a Unit Field Coach for new members and served as second-in-charge under several Corporals.
[43] Cst. SM’s performance reviews were consistently positive and noted his ongoing interest in promotion to Corporal. He testified that he had unsuccessfully applied for promotion to Corporal several times in past years.
[44] Cst. SM described his experience with racism in the Unit during over the past three decades of service. These included being called a “Paki” on his first day in the Unit and witnessing racist comments made by White Unit members about racialized communities in which they worked.
[45] Cst. SM testified that he was customarily assigned as second-in-charge of a team when there were no promotions in the Unit. However, once a Corporal Team Leader promotion came up, a White Constable would be moved into the second-in-charge role so they could use that role in their promotional application.
[46] Cst. SM described the lack of visibly racialized people in the Unit’s promotional ranks and lack of cultural competence in the Unit’s Operations. He noted that even as recently as 2020, when he went on leave, visibly racialized members were called derogatory names in the Unit.
[47] Cst. SM testified about his application package for the 2018 Corporal Team Leader position. He described how his competency examples and cover letter set out the types of skills that were needed for the position and how he met the criteria for promotion. He said he was called to a meeting in Insp. CM’s office to discuss not being chosen for the promotion and Cpl. SS being the successful candidate. Cst. SM testified he was distraught and frustrated following the meeting and, in July 2018, decided to file a human rights complaint.
[48] Later that year, Cst. SM testified that then-RCMP Assistant Commissioner Jodie Boudreau contacted him to discuss his concerns with the Unit, which he relayed to Ms. Boudreau. He said he also reported his concerns about discrimination during the Unit’s 2019 Managerial Review but no one followed up with him regarding his feedback.
(iii) Sgt. SV [49] Sgt. SV is 47 years old and identifies as East Indian. He was born in Prince Edward Island and obtained his undergraduate degree in science and pursued doctoral studies in chemistry before leaving the program to join the RCMP.
[50] Sgt. SV joined the RCMP in 1999 and completed Depot training in 2000. From 2000 to 2003 he worked in General Duty policing in New Brunswick before joining the Musical Ride. The Musical Ride promotes the RCMP’s image in communities throughout Canada and involves police officers performing drills on their horses. Sgt. SV went through several months of training in equestrian skills before beginning his tour with the Musical Ride.
[51] After a three-year tour with the Musical Ride, Sgt. SV transferred to the Unit in 2006. He was a Constable in the Unit until 2009. He then worked in several Related Units performing covert work. In 2012, he was promoted to Corporal. In 2016, he was promoted from an outside Related Unit into the Unit as a Sergeant. He did not occupy this position on an exclusive basis as he was still required to perform the full-time duties of his former position. Sgt. SV spent six months as the Unit Sergeant before his supervisor from the Related Unit arranged for his return to the Related Unit.
[52] Sgt. SV testified to racial comments and jokes he witnessed in the Unit. These included comments relating to attire, worship, and cuisines of racialized communities. He also testified to his belief that White officers were favored for promotion opportunities in the Unit.
[53] Sgt. SV’s performance evaluations over the years were positive and documented his interest in promotion. In November 2019, Sgt. SV sought to return exclusively and on a full-time basis to the Unit and applied for promotion to the role of Unit Staff Sergeant. Sgt. SV testified in detail about the application he submitted and how he believed he was exceptionally qualified for the role.
[54] Sgt. SV was not successful in the competition. The selected candidate, PL, was a White Sergeant who had spent the last 17 years in the Unit and was promoted up from the rank of Constable. The Rationale that Sgt. SV received from Supt. JC (the SLO for the process) stated that the Staff Sergeant role would require in-the-field participation in Unit Operations and that S/Sgt. PL had been chosen for his experience in this area in addition to his acting experience in the role.
[55] Sgt. SV testified about meeting with Supt. JC about the competition results. Supt. JC informed him that S/Sgt. PL’s application package was more unit-level in nature whereas Sgt. SV’s package was more national and international in nature. Sgt. SV said he felt confused by the Rationale and the explanation received by Supt. JC. Sgt. SV explained that he believed the Staff Sergeant role was an office-based managerial role that would not require in-the-field participation in Unit Operations. Sgt. SV also believed he had addressed his unit-level managerial skills and experience thoroughly in his application. Sgt. SV subsequently filed a human rights complaint in November 2019 as he believed his race was a factor in not receiving the promotion.
D. Complainants’ witnesses [56] In addition to their own testimony, the Complainants called two other RCMP officers (Cst. TL and S/Sgt. GS) and an expert witness (Dr. Kanika Samuels-Wortley) in support of their case.
(i) Cst. TL [57] Cst. TL joined the Unit in September 2019. He testified that he filed a harassment complaint against a member in the Unit who had made an offensive comment on the radio. That complaint was informally resolved through the Independent Centre for Harassment Resolution. Cst. TL said that in his view acting opportunities were not fairly distributed within the Unit and there was favoritism.
(ii) S/Sgt. GS [58] S/Sgt. GS has been an RCMP officer since 1995. He was Sgt. SV’s supervisor in a Related Unit in 2019 when Sgt. SV applied for the Staff Sergeant position in the Unit. S/Sgt. GS testified that the Staff Sergeant role typically held an “administrative job function”. He testified he was not surprised that Sgt. SV did not receive the Staff Sergeant position in the Unit. He said that the selected candidate S/Sgt. PL had been acting in that position and had gained the necessary skills to be the successful candidate.
(iii) Dr. Kanika Samuels-Wortley [59] Dr. Samuels-Wortley is an associate professor in the Department of Criminology and Justice at Ontario Tech University. The Complainants filed an expert report from Dr. Samuels-Wortley titled Systemic and Implicit Bias within Police Institutions, and she also testified at the hearing. Her report addressed barriers that racialized police officers face in career advancement through a review of existing literature on policing, race, racism, and organizational bias. The research she reviewed suggested that systemic racism and implicit bias may limit the promotional opportunities for racialized police officers.
E. The RCMP’s witnesses [60] In response to the Complainants’ evidence, the RCMP called six witnesses.
(i) Insp. VM [61] Insp. VM identifies as a racialized officer of Guyanese descent. He was the OIC of the Unit and held that position since November 2020. Insp. VM joined the RCMP in 2000, at the same time as Cpl. JR, and was in the same Depot training cohort as Sgt. SV. He described being successfully promoted through the NCO ranks and then the Commissioned Officer ranks to the Inspector level. In 2021, Insp. VM promoted Cpl. JR from Constable to Corporal.
(ii) Jamie Kenny [62] Ms. Kenny was the acting OIC of the NPU, which is responsible for overseeing NCO promotional processes. Ms. Kenny had worked at the NPU for about ten years. She provided a comprehensive account of the NCO promotion process.
(iii) A/Comm. MP [63] A/Comm. MP identifies as a gay woman. She was the SLO for the 2016 Corporal promotion competition in which Cpl. JR was unsuccessful. A/Comm. MP joined the RCMP in 1985. She was the OIC of the Unit at the rank of Inspector from January 2016 to March 2017.
(iv) Insp. CM [64] Insp. CM identified as ethnically diverse. He was the OIC of the Unit from 2017 to 2018 at the rank of Inspector and was the SLO for the 2018 Corporal promotion competition in which Cst. SM and Cpl. JR were unsuccessful. Insp. CM joined the RCMP in 1991 and left in December 2018.
(v) Supt. JC [65] Supt. JC identifies as Indigenous. He was the OIC of the Unit from October 2018 to August 2020 at the rank of Inspector. He was the SLO for the 2019 Staff Sergeant promotion competition in which Sgt. SV was unsuccessful. He joined the RCMP in 1989 and spent numerous years in Aboriginal Policing.
(vi) Nadine Huggins [66] Ms. Huggins identified as a racialized person and is the RCMP’s Chief Human Resources Officer. Her responsibilities in the role included modernizing the RCMP’s people management strategies, developing initiatives for improving equity, diversity and inclusion, and modernizing recruitment and retention strategies. She joined the RCMP in 2020 and prior to that worked on various diversity, equity, and inclusion initiatives in other federal departments of the Government of Canada including as Executive Director with the Treasury Board Secretariat.
IV. ANALYSIS A. Legal principles [67] The Complainants bring their Complaints under s. 7 of the CHRA which states:
It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee
on a prohibited ground of discrimination.
[68] The Complainants allege that contrary to s. 7(b) the RCMP adversely differentiated against them in the promotion competitions at issue on the prohibited ground of race.
[69] In accordance with the legal test for discrimination, the Complainants must prove a prima facie case on a balance of probabilities that they have a characteristic protected by the CHRA, that they experienced an adverse impact in their employment, and that their protected characteristic was a factor in the adverse impact. If the Complainants prove these elements, the burden shifts to the RCMP to justify their conduct. If the conduct is justified, there is no discrimination: Moore v. British Columbia, 2012 SCC 61 [Moore]. The evidence on all three elements of the Moore prima facie test must be “clear, convincing, and cogent”: Naistus v. Chief, 2009 CHRT 4 at para. 72.
[70] Further, a protected characteristic need only be a factor in the adverse treatment, and not necessarily a significant or only factor: Stewart v. Elk Valley Coal Corp., 2017 SCC 30 at para. 46. In addition, discrimination does not require intent - rather, the focus is on the effect of a respondent’s actions on the complainant: Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 SCR 536 at para. 18.
[71] The Complainants do not rely on direct evidence to prove their prima facie case. Instead, their cases are circumstantial. As this Tribunal and Courts have recognized, it is difficult to prove allegations of discrimination by way of direct evidence. As stated by the Tribunal in Basi v. Canadian National Railway, (1988) 9 CHRR D/5029 at D/5038, “discrimination is not a practice which one would expect to see displayed overtly, in fact, there are rarely cases where one can show by direct evidence that discrimination is purposely practiced”. The Tribunal must therefore consider all the circumstantial evidence to determine what was described in Basi as the “subtle scent of discrimination”.
[72] However, it is not enough that circumstantial evidence is simply consistent with an inference of discrimination: Brooks v. Canada (Department of Fisheries and Oceans), 2004 CHRT 36 at para. 114 (reversed on other grounds 2006 FC 1244). Circumstantial evidence must, if believed, tend to prove the allegation of discrimination. An inference of discrimination may only be drawn “where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses”: Dawson v. Canada Post Corp, 2008 CHRT 41 at para. 73.
[73] While the Supreme Court of Canada in Moore set out the general test for discrimination, the Ontario Board of Inquiry (as it then was) in Shakes v. Rex Pak Ltd., 1981 CanLII 4315 (ON HRT) (“Shakes”) set out a tailored test to address employment discrimination arising from a failure to promote. This test has been endorsed by the Federal Court: Canada (Department of National Health and Welfare) v. Chander, [1997] FCJ 692.
[74] In accordance with the Shakes test, complainants must prove the following three elements: they were qualified for the promotion; they were not promoted; and someone no better qualified than them but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position.
[75] The Shakes test does not supplant the Moore test. It serves only as a guide and should not be applied in a rigid or arbitrary fashion in every employment case: Canada (Armed Forces) v. Canada (Human Rights Commission), 2005 FCA 154 at para. 26. The key issue for the Tribunal is whether the Complainants have proven that their race was a factor in the RCMP’s decision not to promote them. While the Shakes test may serve as a useful guide, it is not binding on this determination: Emmett v. Canada Revenue Agency, 2018 CHRT 23 at para. 58.
B. Prima facie test for discrimination [76] There is no dispute that the Complainants have satisfied the first two elements of the Moore test. They are of South Asian descent and their racial identity is a protected characteristic under the CHRA. They also suffered an adverse impact in their employment as they were unsuccessful in the promotion competitions at issue.
[77] On the third element, however, I find that the Complainants have failed to prove on a balance of probabilities that their race was a factor in their failure to be promoted. It is to this issue that I now turn.
C. Credibility [78] I can accept some, all, or none of a witness’ evidence depending, in part, on their credibility.
[79] In Faryna v. Chorny 1951 CanLII 252 (BCCA) the British Columbia Court of Appeal described the approach that should be taken to assess credibility, which I have adopted:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again a witness may testify to what he sincerely believes to be true, but he may honestly be mistaken. (pg. 356-357)
[80] On considering the factors set out in Faryna, I find the witnesses called on behalf of the RCMP to be credible and reliable witnesses. Their evidence was reasonable, believable, and internally consistent. It was also consistent with contemporaneous records and harmonious with each other’s evidence.
[81] I also accept that the Complainants genuinely believed they were better qualified than the successful candidates in the promotion competitions at issue. I further accept that they genuinely believed their race was a factor in their failure to be promoted. However, after considering the RCMP’s justification for the promotion decisions and other collateral evidence, I cannot draw an inference of a nexus between the Complainants’ race and their failure to be promoted.
D. SLO backgrounds [82] The SLOs for the promotion competitions at issue vigorously denied discriminating against the Complainants. They each testified that they themselves were members of an equity seeking group and would not engage in the type of racial discrimination alleged.
[83] The SLOs membership in an equity seeking group does not, of course, mean that they could not engage in discrimination against the Complainants or others. However, their background is relevant insofar as it serves to contextualize the approach they took when evaluating the Complainants’ promotion applications.
[84] For example, A/Comm. MP testified that in her role as an SLO she reviewed the application packages within the context of her own experiences as a gay woman who herself overcame barriers within the RCMP.
[85] Insp. CM testified he was “hurt” when he learned of the allegations of discrimination against him in light of his own ethnically diverse background and contributions he had made to promote diversity within the RCMP. This included being involved in the Commanding Officer’s committee to promote racial diversity amongst members applying for NCO and Commissioned Officer promotions.
[86] Similarly, Supt. JC, who is of Indigenous heritage, testified he has been involved in various diversity initiatives within the RCMP to help promote the interest of equity-seeking members within the RCMP. This included being the “O” Division leader for Indigenous Reconciliation where he was involved in initiatives related to the RCMP’s efforts to implement the Truth and Reconciliation Calls to Action. This also included being on the “O” Division Diversity and Employment Equity Committee along with Insp. CM. In this context, he testified he was aware of the importance of racial equality in hiring decisions and firmly rejected engaging in discrimination against Sgt. SV in the 2019 Staff Sergeant promotional process.
E. Justification for candidate selections [87] Based on the SLOs evidence, which I accept, I cannot conclude that their justification for promoting the successful candidates were a pretext for discrimination. Each of the SLOs testified that, in their view, the successful candidates were better qualified than the Complainants and provided what I determined to be reasonable explanations for their selections, as set out below.
(i) The 2016 Corporal Training / Reviewer Position [88] In 2016, Cpl. JR applied for a Corporal Training/Reviewer position in the Unit. A/Comm. MP was the SLO for this competition. The primary purpose of the position was to coordinate and deliver training for the Unit.
[89] Two candidates were shortlisted for this position (Cpl. JR and Cpl. MW) as both candidates met the minimum requirements for the position and were qualified to perform the position. Their application packages were provided to A/Comm. MP at the final selection stage and she selected Cpl. MW, a White officer, for the position.
[90] A/Comm. MP scored the application packages in her scoring matrix as follows:
Title of table
Legis 1
Legis 2
Facil 1
Facil 2
“Op” 1
“Op” 2
Spvsr
Cover
Total
Cpl. JR
5
4.5
5
5
5
5
8
17
54.5
Cpl. MW
4
4.5
5
5
5
5
9
19
56.5
[91] In her matrix, “Legis” refers to the functional competency of “Knowledge of Applicable Legislation and RCMP Policies, Procedures, and Strategic Priorities”, “Facil” refers to the functional competency of “Knowledge of Facilitation/Instructional Techniques”, and “Op” refers to the functional competency of Operations techniques.
[92] A/Comm. MP testified about how she created her scoring matrix. She assigned a value of 1-5 for each functional competency example included within the competency resume, a value of 1-10 for supervisor comments, and a value of 1-20 for the cover letter.
[93] A/Comm. MP explained that she allotted significant weight to the Supervisor comments because these comments were the only source of independent, third-party information in an application that was otherwise entirely written by the applicant. A/Comm. MP allotted the most weight to the cover letter because the cover letter provided the applicant the opportunity to discuss the full breadth of their relevant work experience and to explain how that work experience tied into the position requirements.
[94] A/Comm. MP stated that Cpl. JR outscored Cpl. MW by one point in the functional competency examples, as set out in the scoring matrix. However, she determined that Cpl. MW’s supervisor comments and cover letter were stronger than those of Cpl. JR.
[95] A/Comm. MP testified that Cpl. MW’s cover letter was more focused than Cpl. JR’s on the position requirements. Cpl. MW better tailored his experience to the position requirement and more clearly described how, when, and where he coordinated and provided training programs. The training examples Cpl. MW provided were comprehensive and spanned his lengthy career from his time as a firefighter prior to joining the RCMP to his time in the RCMP, including as an Acting Training Coordinator in the Unit. A/Comm. MP stated it was evident from a review of Cpl. MW’s application that “training was in his DNA”. She stated that the cover letter provided by Cpl. MW had so many examples of his training skills that she could envision Cpl. MW performing well in the Training/Reviewer role and was confident he was the best candidate for the job. On review of Cpl. MW’s cover letter, I accept as reasonable A/Comm. MP’s characterization of its contents.
[96] A/Comm. MP prepared a Rationale for Cpl. JR dated August 22, 2016 which was approved by the NPU. In it she comprehensively set out the reasons why Cpl. MW was selected over Cpl. JR. The Rationale was consistent with her testimony and the candidates’ application materials and included the following explanation:
The recommended candidate provided a stronger Covering Letter. He provided clear details of his skills and showed how they could quickly dovetail into the Training/Reviewer position. The information he provided went beyond the scope of [Operations] duties. The recommended candidate’s Covering Letter laid out clear leadership roles and decision-making abilities when the member may not have even been in an acting role. For example, he provided examples of his experience as an instructor prior to joining the RCMP with Kirkland Lake Fire Services, lecturing on firefighting techniques on a three-week Instructional Techniques Course at the Ontario Fire College, delivering Course Training Standards (CTS) to Volunteer Fire Services as an Officer of the Ontario Fire Marshal’s Office, and delivering training as a Red Cross First Aid/CPR Instructor. Within the RCMP, he described that he is a lead Basic Firearms Instructor during [redacted].
He described how he was identified for his understanding of [Operations] principles and leadership skills to instruct on [Operations] courses, where the feedback he delivered gave the candidates tools to meet the Course Training Standards (CTS). He stated that he has instructed on over 20 STC, 4 ASCs (240 members plus 100 firefighters); that he was lead instructor, coordinator and mentor on 1 ASC and on 11 STCs; that he was hand-picked and sent to Indonesia to deliver an STC, representing the Canadian government and the RCMP. He demonstrated problem solving abilities when ensuring the [Operations] CTS’ were taught accurately by members of their [redacted] section, overcoming challenges relating to the language barrier and cultural differences, and ensuring debriefs were delivered in a way that respected their rank structure. What set the recommended candidate apart was hi