Banda v. Correctional Service of Canada

Banda v. Correctional Service Canada
Collection
Canadian Human Rights Tribunal
Date
2024-07-12
Neutral citation
2024 CHRT 89
File number(s)
T2482/3920
Decision-maker(s)
Khurana, Jennifer
Decision type
Decision
Grounds
Colour
National or Ethnic Origin
Race
Summary:
The Tribunal dismissed Simon Banda’s claim that Correctional Service Canada (CSC), the Respondent, discriminated against him during a training program to become a Correctional Officer. Mr. Banda identifies as Black and is of Zambian origin.
The Respondent ran a training program for candidates looking for a career in corrections. Mr. Banda attended the training program, hoping to work as a Correctional Officer with CSC. After completing 11 of the 12 weeks scheduled for training, CSC released Mr. Banda from the program.
Mr. Banda says that the Respondent training officers singled him out and treated him more severely than White recruits in the program, in part due to his race. Mr. Banda says that an incomplete homework assignment led to a chain of other discriminatory events. The events included over-scrutiny of his performance and unfair assessments on evaluations, which ultimately resulted in his release from the program.
The Respondent denies Mr. Banda’s claim. It says that Mr. Banda’s release was because he failed the required tests. After three strikes, CSC immediately releases a recruit from the program. Failing the shotgun test was Mr. Banda’s third strike.
The Tribunal dismissed Mr. Banda’s complaint fully. The Tribunal found that none of the incidents that Mr. Banda raised showed his race was a factor in how CSC treated him. There was nothing discriminatory in Mr. Banda’s failure on the shotgun test. The Tribunal could not find a link between the incidents and the realities of persistent stereotyping and anti-Black racism, even when looking at the incident as a whole. The Tribunal found that CSC properly released Mr. Banda because of his third strike on the shotgun test.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2024 CHRT
89
Date:
July 12, 2024
File No(s).:
T2482/3920
Between:
Simon Banda
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Correctional Services Canada
Respondent
Decision
Member:
Jennifer Khurana
I. OVERVIEW [1] Simon Banda attended the Correctional Training Program (“the Program” or “CTP”) operated by the Respondent, Correctional Services Canada (CSC) from April 2 to June 19, 2014, with the goal of eventually working as a Correctional Officer with CSC. After completing 11 of the 12 weeks scheduled for training, Mr. Banda was released from the Program and sent home.
[2] Mr. Banda self-identifies as Black and is of Zambian origin. He alleges that CSC training officers and other employees singled him out and treated him more severely than White recruits in the Program, at least in part due to his race, colour or national and/or ethnic origin contrary to section 7(a) or 7(b) of the Canadian Human Rights Act (the “Act”). Mr. Banda also alleges that this discrimination culminated in his release from the Program, just days before his expected graduation.
[3] CSC is the federal government agency that administers correctional sentences of a term of two years or more. It manages correctional facilities of various security levels and supervises offenders under conditional release in the community. As part of its recruitment process for potential correctional officers, CSC operates the CTP to determine the suitability of a candidate for a career in corrections.
[4] CSC denies that Mr. Banda was singled out for adverse differential treatment based on a protected characteristic. It says Mr. Banda was released from the Program because he failed the required tests.
[5] The Canadian Human Rights Commission (the “Commission”), acting in the public interest, participated in the hearing.
II. DECISION [6] Mr. Banda’s complaint is dismissed. He has not established that it was more likely than not that he suffered adverse differential treatment or that CSC subjected him to adverse differentiation at least in part due to his race, colour or national and/or ethnic origin. Mr. Banda is not entitled to any remedy under the Act.
III. CONTEXT [7] Mr. Banda is a graduate of the University of Winnipeg with a Bachelor’s in Business Administration. He applied to work for CSC as a Correctional Officer. Correctional Officers maintain the safety and security of federal penitentiaries, along with other front-line staff who work with offenders. To become a Correctional Officer, candidates are required to complete all three components of the CTP.
[8] CSC training consists of three stages: 1) online learning; 2) pre-session learning and workbook assignments; and 3) on-site class learning and testing. Stages 1 and 2 of the Program mainly involve individual learning and preparation, whereas stage 3 has a blended learning approach with both individual study and in-class training. It is largely practical and skills-based in nature.
[9] Acceptance into the CTP is not an offer of employment with CSC. A candidate must successfully complete the CTP and meet all conditions before an offer, including the start date and location of employment, is confirmed. If a recruit does not complete the CTP, they may reapply and, if accepted, can attend the Program again. Throughout the CTP, recruits are expected to learn the skills necessary to carry out the duties of a Correctional Officer.
[10] For Mr. Banda, stage 3, consisting of in-class training, was held at the CSC National Training Academy at the Royal Canadian Mounted Police (RCMP) Depot in Regina, Saskatchewan. He was part of CTP 26, which ran from April 2, 2014, until June 25, 2014. Mr. Banda was the only Black recruit in the group of 27 recruits who participated in CTP 26.
[11] The training at the National Training Academy covered topics such as law and policy, use of firearms, chemical and inflammatory agents, fire safety, self-defence, arrest and control techniques, defensive techniques and suicide prevention. Recruits were continually assessed and provided with feedback throughout the training. They were also formally evaluated on a number of theories and skills areas and required to achieve a minimum grade or standard on each test. Recruits could be released from the training program at any time.
Weapons testing in the CTP [12] Recruits were tested on three firearms: a 9mm pistol, a C8 carbine and a 12-gauge shotgun. Weapons tests followed the same format, namely: a) dry manipulation (without live ammunition); b) accuracy (with live ammunition); and c) manipulation (with live ammunition).
[13] In dry manipulation, recruits were required to show that they can operate the gun safely. In the live range area, recruits were given a scenario describing a threat, and the recruit was required to perform immediate actions to reduce the threat. Trainers would complete score sheets and deduct marks if the recruit missed part or all of a step. In the accuracy portion, performed at the same time as the live manipulation, recruits were required to hit three out of four headshots and 16 body shots. Instructors watched to ensure the manipulation was correctly performed. Certain actions could result in an immediate failure.
[14] CTP tests are standardised, and automatic marks are assigned for each skill. For the accuracy portion, the silhouette of a person is marked with scoring rings. For the manipulation aspect, the recruits were required to put on their safety.
[15] The parties dispute whether there is a place for subjectivity in assessing these tests. CSC acknowledges there is an observable component, but Mr. Banda argues that CSC trainers judged him more harshly in grading his skills and unfairly evaluated him in his final assessment, resulting in his release from the CTP.
The “Three-Strikes” or Re-test Policy [16] Upon their arrival, new recruits were provided with a CSC Welcome Package that outlined the rules, regulations, policies and procedures that applied at the CSC National Training Academy at the RCMP Depot. These included a re-test policy that applied to all formal theory or skills tests. The policy states that, when recruits arrive at the National Training Academy, they are given two re-test credits for the entire Program. The policy allows one re-evaluation of the same test following a failure on the initial test. If the recruit passes the re-evaluation, they can continue in the Program. If they fail the re-evaluation, they are released from the Program and eliminated from the staffing process. Failure on any third evaluation would also result in the recruit being released from the Program. The Re-test Policy is sometimes referred to as the “Three Strikes” Policy because after three strikes the recruit is immediately released from the Program and is “out”.
[17] Recruits were required to pass all tests to complete the Program, though the Re-test Policy did not apply to all tests. In other words, not all failures of a test or assessment were counted as a “strike”.
[18] Staff Training Officers (STOs) monitor and record a recruit’s performance and assess recruits to determine whether they are the right fit for a career in corrections. They are instructed to note personal suitability concerns or interactions with a recruit as a result of a complaint, observation or performance issue and/or failure, in the recruit’s training file.
CTP 26 [19] The manager of CTP 26 was Albert Boucher. Julia Schepers was the training assistant. Mr. Banda’s complaint also relates to his involvement with a number of other training officers, namely Angela Davie, Jennifer Brooks (formerly Jennifer Brand), Brian Brooks, Martin Lamarche, Charlene Byfield, Mr. Chinn and Mr. Seems. Ms. Byfield and another instructor, Mr. Parent, are Black. All the other trainers or instructors are White. Ms. Brooks, Ms. Davie, Mr. Brooks, Mr. Boucher, Mr. Lamarche, Ms. Byfield and Ms. Schepers testified at the hearing.
[20] Mr. Banda successfully completed stages 1 and 2 and all other interviews and testing and received a conditional offer of employment from CSC. He was released from the Program on June 19, 2014, and was one of three recruits released due to the Re-test Policy.
First Strike [21] On April 23, 2014, Mr. Banda failed the Self-Defence Theory exam, a 10-question multiple-choice exam, with a score of 60%. There is no dispute that Mr. Banda failed to achieve the minimum score of 70% to pass and that this counted as his first strike under the Re-test Policy. Mr. Banda acknowledges that he failed this test and that this was not based on any discriminatory conduct or practice. Mr. Banda attended a remedial session and on April 28, 2014, completed and passed the re-test with Ms. Davie.
Second Strike [22] On June 12, 2014, Mr. Banda failed the initial qualification in the 9mm Pistol test with Mr. Parent. Mr. Banda made four head shots but did not hit all required body shots. He attended a remedial session and was successful on the re-test. This counted as his second failure or strike under the Re-test Policy. Mr. Banda does not dispute that he failed the 9mm Pistol test and does not allege that this was due to discrimination.
Third Strike [23] The parties dispute what happened at Mr. Banda’s Shotgun Initial Qualification Standard test on June 19. According to CSC, Mr. Banda did not meet the minimum requirements on safety and handling because he repeatedly failed to apply the safety selector on his firearm. This counted as Mr. Banda’s third strike, resulting in his release from the Program.
[24] Mr. Banda alleges that he should have passed the test and that he failed due to Ms. Davie’s discriminatory evaluation. My findings on this allegation are set out below.
Failure of non-strikable assessments [25] Mr. Banda also failed non-strikable assessments, namely the Sudden in Custody Death Syndrome theory test on May 2, 2014, and the Search and Seizure quiz. He passed the re-tests for both but neither counted as a failed test under the Re-test Policy.
IV. ISSUES IN DISPUTE AND SCOPE OF THE COMPLAINT [26] At the outset of the hearing, I asked the parties to confirm my understanding of the issues that I would have to determine in this proceeding. I detailed the list of allegations that were before me, and I asked the parties for their input. They agreed with my characterisation of the issues in dispute, set out below.
[27] Mr. Banda relies on a number of incidents that begin on or around May 6, 2014, and end on June 19, 2014, when he was released from the Program following the Shotgun Qualification Standard test. He relies on these incidents in support of his claim that he was treated unfairly and unjustly compared to White colleagues and was subject to racial stereotyping, contrary to the Act. His allegations relate to the following incidents or issues:
1) Notation regarding incomplete homework assignment;
2) Allegation regarding photos on the gun range;
3) Denial of a sick leave request;
4) Shotgun testing and release from the Program;
5) Escort and release from the premises;
6) Booking of flight; and
7) Enhanced documentation, scrutiny and monitoring;
[28] In general terms, CSC argues that Mr. Banda has failed to establish a prima facie case of discrimination but that, even if he did meet this onus, it has provided a reasonable explanation for each and every incident of alleged discrimination.
V. ISSUES
[29] I have determined the following issues in relation to each of the specific allegations set out in paragraph [27] above. I address them in turn in my analysis below.
Has Mr. Banda established a prima facie case of discrimination under section 7 of the Act because CSC subjected him to adverse differential treatment, at least in part due to his race, colour or national and/or ethnic origin?
If yes, has CSC established a valid justification for its otherwise discriminatory actions?
If CSC cannot establish a justification, what remedies should be awarded that flow from the discrimination?
VI. REASONS AND ANALYSIS Legal Framework
[30] Mr. Banda alleges discrimination in relation to employment based on race, colour or national and/or ethnic origin, contrary to section 7 of the Act. There are two parts to proving discrimination in the employment context.
[31] The complainant has the onus of proving the existence of a prima facie case. The use of the expression “prima facie discrimination” must not be seen as a relaxation of the complainant’s obligation to satisfy the Tribunal in accordance with the standard of proof on a balance of probabilities, which they must still meet (Québec (C.D.P.D.J) v. Bombardier Inc., 2015 SCC 39, at para. 65 (“Bombardier”).
[32] To establish a prima facie case, the complainant has to prove that it is more likely than not that they meet all three parts of this test: 1) they had a characteristic protected from discrimination under the Act; 2) they experienced an adverse impact with respect to employment; and 3) the protected characteristic was a factor in the adverse impact (Moore v. B.C. (Education) 2012 SCC 61, at para. 33).
[33] The protected characteristic does not have to be the only factor in the adverse treatment and no causal connection is required (see, for example, First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 [FNCFCSC] at para. 25).
[34] In determining whether discrimination occurred, the Tribunal may consider the evidence of all parties. The respondent can present evidence to refute an allegation of prima facie discrimination, put forward a defence justifying the conduct under s. 15 of the Act, or do both (see Bombardier at paras. 64, 67, 81; Emmett v. Canada Revenue Agency, 2018 CHRT 23 at paras. 61, 63-67).
[35] If the complainant establishes a prima facie case of discrimination, the respondent must justify its decision or conduct based on the exemptions set out in the Act or developed by the courts (Bombardier, supra, at para. 37).
[36] Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices (Radek v. Henderson Development (Canada) Ltd. (2005 BCHRT 302 at para. 482)). In determining whether an inference of racial discrimination is more probable than the explanation offered by the respondents, I need to be mindful of the nature of racial discrimination as it is understood today and that it will often be the product of learned attitudes and biases and often operates on an unconscious level (Shaw v. Phipps, 2010 ONSC 3884 at para. 75). In a case where direct evidence of discrimination is absent, “it becomes necessary ... to infer discrimination from the conduct of the individual or individuals whose conduct is at issue. ... The conduct alleged to be discriminatory must be analyzed and scrutinized in the context of the situation in which it arises” (Basi v. Canadian National Railway Company, 1988 CanLII 108 (CHRT) at pages 10-16 [Basi]).
FINDINGS OF CREDIBILITY
[37] Much of this case turns on my findings of fact with regard to the alleged incidents and on my assessments of credibility. In some instances, the parties presented starkly divergent accounts of what happened, and, where it was necessary to resolve a conflict in the evidence, I have set out my reasons below.
[38] In assessing credibility and reliability in this case, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354. When making credibility findings, I have tried to determine which account of the facts in relation to each issue is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances.
[39] I have considered the following factors in assessing whether a witness’s testimony is in “harmony with the preponderance of the probabilities”:
• The internal consistency or inconsistency of evidence;
• The witness’s ability and/or capacity to apprehend and recollect;
• The witness’s opportunity and/or inclination to tailor evidence;
• The witness’s opportunity and/or inclination to embellish evidence;
• The existence of corroborative and/or confirmatory evidence;
• The motives of the witnesses and/or their relationship with the parties; and
• The failure to call or produce material evidence.
(see McWilliam v. Toronto Police Services Board, 2020 HRTO 574 (CanLII), at para 50, citing Shah v. George Brown College, 2009 HRTO 920 at paras. 12-14; Staniforth v. C.J. Liquid Waste Haulage Ltd., 2009 HRTO 717 at paras. 35-36).
[40] Where credibility is concerned with a witness’s sincerity, reliability is concerned with the accuracy of a witness’s testimony. The accuracy of a witness’s testimony involves considering issues such as their ability to accurately observe, interpret and recount events. See McWilliam v. Toronto Police Services Board, 2020 HRTO 574 (CanLII), at para. 51.
[41] In general terms, Mr. Banda’s evidence in chief was given freely and directly, but, on cross-examination, it was not. He was not forthright in his answers, and I have concerns about his credibility.
[42] I found Mr. Banda evasive when pressed in cross-examination. He would often avoid answering the question asked. For example, when challenged with a piece of evidence or about his account of an entry in his performance appraisal, he would not respond directly. He did not admit basic facts freely and did not readily acknowledge or concede statements that he did eventually concede when pressed. This did not bolster his credibility or my assessment of his version of events. Mr. Banda also refused to admit statements where they did not support his premise, even when they were not particularly controversial. For example, he refused to concede that he could not have taken a specific flight because it would have required him to get to the airport at least an hour ahead of time.
[43] I also have concerns about Mr. Banda introducing new versions of events for the first time at the hearing. This complaint has been ongoing for many years, and the fact that salient aspects of the alleged incidents only arose for the first time at the hearing affects my evaluation of Mr. Banda’s evidence where his account of events diverges from the Respondent’s. For example, Mr. Banda conceded that he had reviewed his performance evaluation many times, even a hundred or more times, yet mentioned for the very first time in these proceedings that the reason he wanted a sick note when he was supposed to be writing an exam was because of physical pain or an injury. This was never mentioned in any of the materials prior to the hearing. In another example, he testified for the first time at the hearing that he had reviewed two White recruits’ homework assignments, which was not previously mentioned in these proceedings. When asked why this was the first time these points were being raised, he responded “no one asked me about them”. He categorically denied for the first time in these proceedings that an entire practice session with Mr. Brooks occurred on June 19.
[44] I agree with CSC that these are not the hallmarks of a credible witness.
[45] The Respondent’s witnesses generally testified openly, candidly and plainly and when tested on cross-examination were not defensive. Much of Mr. Banda’s complaint relates to what he says was a pattern of discrimination set off by Ms. Brand and perpetuated by the other instructors, particularly Ms. Davie whose assessment of his Shotgun Qualification Standard test resulted in his release from the Program.
[46] I found Ms. Davie’s evidence about the events of June 19 candid and open, particularly when challenged about the alleged aggressive behaviour Mr. Banda was said to have exhibited on the range. While in some cases Respondent witnesses could not recount details from 2014, they admitted what they could or could not recall and I would expect there to be challenges with reliability for both Mr. Banda and CSC’s witnesses given the passage of time. Where the parties’ evidence was entirely divergent, multiple witnesses from CSC testified and corroborated their version of events. Although Mr. Banda had intended to call some former recruits who could have said otherwise, he did not do so.
[47] My detailed findings with respect to each alleged incident are set out below. I have integrated my findings of fact with my legal findings for each of the allegations, including my consideration of the alleged cumulative impact of the alleged incidents.
Issue 1: Has the Complainant established a prima facie case of discrimination under section 7 of the Act? (a) Does the Complainant qualify for protection from discrimination because he has a protected characteristic? [48] Yes. There is no dispute that Mr. Banda has a characteristic protected under the Act and therefore qualifies for protection from discrimination. CSC did not argue that Mr. Banda does not fall with the ambit of the protections of the Act.
(b) Did the Complainant suffer an adverse impact with respect to employment? (c) Was the Complainant’s race, colour or national and/or ethnic origin a factor in the adverse treatment, including his release from the program? [49] Mr. Banda has failed to meet the requirements of the second and/or third parts of the prima facie test for all of the incidents he alleges were discriminatory. In some cases, I do not find that he has established that he suffered an adverse impact or adverse differential treatment. For those incidents where he has satisfied this part of the test, I do not find that he established a link with a protected characteristic. I have set out my findings below under each alleged incident of discrimination in analysing the second and third parts of the test.
1) Notation regarding incomplete homework assignment [50] On or about May 6, 2014, the recruits in CTP 26 were required to hand in their Arrest and Control Theory homework assignment. Self-study homework assignments were intended to help prepare recruits for exams, and recruits kept their copies to help them study.
[51] Mr. Banda alleges that STO Brand told him on May 8 that she had noted that he did not complete his homework in his performance evaluation. According to Mr. Banda, he was the only recruit singled out for not completing the homework assignment and knew that four White recruits did not receive performance notations for their incomplete homework assignments. Mr. Banda also maintains that he had completed half or three quarters of the assignment.
[52] Ms. Brand’s May 8 entry in Mr. Banda’s performance evaluation reads as follows:
On 2014-05-06 Recruit Banda handed in his Arrest and Control Theory Assignment with less than half of the assignment completed. When asked he indicated that he needed more time. The assignment was given to them on May 1st. There was a weekend over this period in which it could have been completed. I, instructor Brand, met with Banda on May 8th to discuss the concern of his homework not being complete. He indicated that he had ¾ of the work completed, however he writes it on his own notes and then transcribes it to his homework sheets. He does this because he wants to put it in his own words rather than copy “word for word”. I indicated to him that it would be preferable if he knew the material more “word for word”, as it helps with test writing and ensuring that he receives full marks. The discussion then led to his difficulties with testing, when there is a large amount of reading to be done. He said that he has looked into getting a doctor’s note that would enable him to have more time to do testing, however he does not want to miss class time to get this done. It was suggested to him that he does not want to fail another “strikable” test because of time frames. It was further suggested to him that if he needed to take time off of class for a doctor’s appointment, that would be a reasonable excuses [sic] for missing class. It was also suggested that classmates could assist him in catching up in anything that he missed. Also, that I would help coordinate with him a day that would be best for him to miss. It was left up to Banda to decide what he wanted to do.
[53] Mr. Banda denies that he asked Ms. Brand about a doctor’s note or said that he had difficulty with tests where there was a lot of reading.
[54] There was no formal complaint process in place at the time, so Mr. Banda reviewed the Welcome Package for new recruits which provided that if a recruit felt harassed or discriminated against in training, they should speak with a trainer or the manager of the Learning Center. Mr. Banda met with another trainer as well as Mr. Brooks to share his concerns about Ms. Brand’s entry in his performance evaluation. Mr. Brooks told Mr. Banda not to worry about what other recruits had done and to concentrate on his own work. Mr. Banda felt CSC was dismissive of him as it took no further action to address his concerns about the homework notation.
[55] According to Mr. Banda, when he spoke to Ms. Brand, this was the beginning of the end for him in CTP 26. Following that discussion, Mr. Banda claims Ms. Brand began to wage a campaign against him to have him removed from the Program and that what had been a previously friendly atmosphere changed for the worse. This incident led to other STOs giving him negative and inaccurate performance evaluations, which ultimately led to his release from the Program. Mr. Banda said that he avoided dealing with Ms. Brand as he learned that she was in a personal relationship with Mr. Brooks. Mr. Banda also alleges that Mr. Brooks’ name is listed in the entry because of his relationship with Ms. Brand.
[56] Ms. Brand was new to the CTP, and Mr. Banda’s class was her first training program as an instructor. She testified that she was trying to find her way and make a good impression because she hoped to get an indeterminate position with CSC. She did not review all homework assignments but did spot checks of the recruits’ homework to make sure they were on track, though their homework was not marked or graded.
[57] Ms. Brand testified that she noted that Mr. Banda had completed less than half of his homework, which she discussed with him. She made the May 8 entry to document the conversation and the fact that he had admitted some issues with testing. She explained that she could not randomly allow a recruit extra time, but if Mr. Banda got a medical note, he might be able to get more time to complete the assignment, and she could arrange his schedule so that he would have the time to see a doctor. Ms. Brand testified that she wanted to fix things and get Mr. Banda what he needed, especially as she had already seen that he had failed a test.
[58] CSC argues that Mr. Banda experienced no adverse impact as a result of this notation which was only an account of the conversation with Ms. Brand and had no impact on his release from the Program. Mr. Banda conceded in cross-examination that the May 8 entry was not the reason he was released from the Program.
[59] While the May 8 notation is not why Mr. Banda was released from the Program, I agree with Mr. Banda that an entry in a performance evaluation about a failure to complete an assignment or suggesting that a recruit is having difficulty reading large volumes of work can leave a negative impression for a supervisor or potential employer, even if it is merely an “administrative” or internal document as CSC contends. The fact remains that failing to complete homework would not be perceived as positive by a supervisor in the workplace, and an entry to that effect in a performance evaluation is not neutral.
[60] While I accept that the notation had an adverse effect, the evidence does not allow me to infer a link between the May 8 notation or the questions about homework and a protected characteristic. Mr. Banda must demonstrate something more than his own belief that Ms. Brand made the notation or asked about his homework at least in part because of his race, colour, national and/or ethnic origin.
[61] I acknowledge that Mr. Banda’s allegation about the May 8 notation is that this is one of many examples of hypervigilance or over monitoring, as the only Black recruit. But the evidence does not support his allegation of a link to a protected characteristic. I am not persuaded that Ms. Brand focused more on Mr. Banda or was stricter in her review of his assignment compared to the other recruits because there was no evidence presented to compare similar assignments. While Mr. Banda relies on the fact that none of the White recruits had notations in their performance evaluations about homework, Ms. Brand did not review all of them, and Mr. Banda admitted in cross-examination that he did not know whose assignments Ms. Brand had reviewed. He acknowledged that the assignments were reviewed by several instructors.
[62] While Mr. Banda disputes Ms. Brand’s claim that he had completed less than half of the assignment, he did not produce his homework, nor did Mr. Banda call any of the recruits whose homework he maintains was also incomplete to support his claim. If Mr. Banda had called the other recruits, or I had evidence that Ms. Brand had reviewed White recruits’ homework assignments that were similarly incomplete such that Ms. Brand had chosen to only focus on Mr. Banda and make a notation, that may have allowed some inference to be drawn. But none of that was before me, and Mr. Banda’s allegations are speculative.
[63] Further, I do not find the fact that the May 8 entry in Mr. Banda’s performance evaluation lists the names of both Ms. Brand and Mr. Brooks to assist Mr. Banda in his claims that this event was discriminatory. Mr. Banda testified that the notation is wrong as only Ms. Brand was present. When asked about this at the hearing, Ms. Brand did not recall why both names were listed, and Mr. Brooks testified that he could not remember but thought he might have been the instructor or had something to do with the topic. In any event, the fact that Ms. Brand and Mr. Brooks were partners does not support a finding that it was more likely than not that there is a link between the May 8 notation and a protected characteristic. The suggestion that their names appearing on the entry together reflects some concerted effort to harm Mr. Banda because of his race is without evidentiary foundation.
[64] I also do not accept Mr. Banda’s claim that Ms. Brand set out to wage a campaign against him to have him removed from the Program. In cross-examination, Mr. Banda admitted that Ms. Brand did not have anything to do with his strikable tests. Ms. Brand wanted to secure a permanent job, and the evidence does not support this claim as being anything more than speculative. The tenor of Ms. Brand’s entry does not align with Mr. Banda’s claim. I find that the notation reflects a level of concern for Mr. Banda and an attempt to set him up for success.
[65] I will address this more fully below in my findings about the alleged cumulative impact of the individual alleged incidents of discrimination.
2) Allegation regarding photos on the gun range [66] Mr. Banda alleges that, on or about June 12–14, 2014, he was seated between two other recruits on the gun range when Ms. Davie gestured to him, called him over and asked if he was taking photos. He was the only one Ms. Davie asked, despite the fact that one or both of his fellow recruits had previously been written up for having taken photos and for inappropriate conduct. Mr. Banda explained that they were seated on the bench in an open area where his hands and legs would have been visible. Mr. Banda told Ms. Davie that he had not taken photos and that she should ask the other recruits. Ms. Davie did not apologise to Mr. Banda or give any explanation for her question.
[67] Recruits were strictly prohibited from taking photos, and CSC’s Training Academy Rules, Regulations, Policies and Procedures only allowed cellphones to be used by recruits in uniform in exceptional circumstances and with prior approval of the STO.
[68] CSC argues that there was no adverse impact associated with the event. Mr. Banda was not in earshot of the other recruits, no one heard what was being discussed, and there was no entry on Mr. Banda’s performance evaluation as a result of the incident.
[69] STO Davie acknowledged at the hearing that she called over Mr. Banda and asked him if he had been taking photos. She indicated that something caught her eye and that she believed Mr. Banda was standing, such that he was in position to take photos, whereas the two other recruits were seated. According to Ms. Davie, there had been issues of recruits taking selfies or other photos of themselves with firearms, which was strictly prohibited. When asked why she called over Mr. Banda, rather than the other two recruits who had previously been spoken to or disciplined for taking photos, Ms. Davie said that she did not consider their past actions. Her reason for calling over Mr. Banda was only motivated by the fact that he was standing. The seated recruits would not have had a good view to take photos of the range. Ms. Davie testified that she did not document the question or the incident on Mr. Banda’s performance evaluation because nothing noteworthy occurred.
[70] I acknowledge that one of the most significant effects of anti-Black racism can include the over-monitoring or heightened scrutiny of Black men, as Mr. Banda argues relying on Adams v. Knoll North America, 2009 HRTO 1381 at paras. 45-47. However, even if I accept that the very asking of the question singled out Mr. Banda and that he suffered some adverse impact from having been called over to speak to Ms. Davie in front of the other recruits, I am not persuaded that he has made out a link to a protected characteristic in any event.
[71] I find that it was a fair question, given the strict policy against photos, and I am not persuaded that Mr. Banda has established a link to a protected ground to support his claim of discrimination. While discrimination on the grounds of race or colour can be subtle and requires an analysis and scrutiny of the context of the situation in which it arises, there must be something more than abstract belief or suspicion to link Ms. Davie’s question to a prohibited ground of discrimination (see Dulce-Crowchild v Tsuut’ina Nation, 2020 CHRT 6 at para. 91).
[72] Ms. Davie asked Mr. Banda a question, he answered it, and she was satisfied with his response. This minor interaction and her question were reasonable in the context of a school or training setting where discipline and rules are important and instructors are required to strictly enforce them. Further, Ms. Davie asked Ms. Miller, a White recruit, the same question on April 15, 2014, and that recruit was asked to remove her cellphone when she had it in class on the parade floor. In contrast to the incident with Mr. Banda, Ms. Davie noted the incident in Ms. Miller’s performance evaluation.
[73] Mr. Banda also alleges that this incident was part of Ms. Davie trying to get even with him and is linked to his failure of the Shotgun Standard Qualification test, which I will address below.
3) Denial of sick leave request [74] Mr. Banda went to see Ms. Davie in the afternoon of June 13, 2014, with a sick leave form, just as he was supposed to start an exam. He told Ms. Davie that he wanted to take the afternoon off to go to the medical clinic. Rather than approving his leave, Ms. Davie referred Mr. Banda to Mr. Boucher, the National Training Academy Manager, because the recruits were having a final test that afternoon. According to Mr. Banda, Ms. Davie told him that he was trying to buy time because he was worried about the test.
[75] Mr. Banda alleges that Ms. Davie denied a request he made for sick leave at least in part because of his race, colour or national and/or ethnic origin whereas other recruits were routinely granted leave without question.
[76] Ms. Davie’s June 13 entry in Mr. Banda’s performance evaluation notes that he approached her with a leave form stating that he wanted to take the afternoon off as he did not feel well, and that, upon further discussion with Mr. Banda and Mr. Boucher, “Simon indicated that he was not in the right frame of mind to write the test as he had failed the 9mm Pistol test yesterday. It was pointed out to Simon that he had shown considerable improvement on the range earlier in the day and that he should be focusing on the positives rather than the negatives”. The notation goes on to say that Mr. Banda was placed in the staff board room to settle himself and that, when Ms. Davie checked in with him, he was studying the material. He was given more time to prepare and to get into the right frame of mind to write the final security test. Another STO, Mr. Lamarche, testified that, when Mr. Banda was in the boardroom, Ms. Davie asked him to look in on Mr. Banda to make sure he was OK.
[77] Ms. Davie testified that she referred Mr. Banda to see Mr. Boucher because she had never had a recruit request sick leave immediately before a test. She also testified that Mr. Banda told her he did not feel well enough to write the test and wanted more time. He wanted the weekend to prepare, and she did not feel it was fair for him to have an extra weekend to study. Ms. Davie explained that there is a procedure for receiving accommodation and that Mr. Banda would require a doctor’s note or some other documentation if he was going to make the request.
[78] Mr. Boucher testified that Mr. Banda said he was concerned about the exam, felt unprepared and did not want to write it, and was quite nervous about it. Mr. Boucher explained that he tried to reassure Mr. Banda that he was ready for the test and deci