Hughes v. Canada Border Service Agency

Hughes v. Canada Border Service Agency
Collection
Canadian Human Rights Tribunal
Date
2019-05-29
Neutral citation
2019 CHRT 23
File number(s)
T1726/8111, T1769/12411
Decision-maker(s)
Ulyatt, George E.
Decision type
Decision
Decision status
Final
Grounds
Age
Disability
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2019 CHRT
23
Date:
May 29, 2019
File Nos.:
T1726/8111 & T1769/12411
Between:
Chris Hughes
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canada Border Services Agency
Respondent
Decision
Member:
George E. Ulyatt
Table of Contents
I. OVERVIEW 1
II. ISSUES AND LEGAL FRAMEWORK 2
III. PROCEDURES BEFORE THE TRIBUNAL 4
IV. THE FACTS 10
A. The competitions 12
(i) 2000-7015 12
(ii) 2001-7009 13
(iii) 2002-7012 13
(iv) 2003-1002 13
(v) 2003-7003 16
(vi) Stewart, British-Columbia 17
(vii) 2005-1001 18
(viii) 2005-1005 18
(ix) 2005-2006 Public Service Commission Hearings 18
(x) 2006-066 20
(xi) 2006-001 20
V. DECISION 26
A. Age discrimination 26
B. Medical Disability 30
C. Perceived medical disability or medical disability 44
D. 2006-001 Competition 44
VI. DIRECTION BY THE TRIBUNAL 45
I. OVERVIEW
[1] Chris Hughes (the “Complainant”) filed two complaints. The first one was against the Canada Border Services Agency (“CBSA”) and its predecessor, Canada Customs and Revenue Agency (“CCRA”). He filed it on January 19, 2005, and alleged age-based discrimination in the context of employment in accordance with s.7 and s.10 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, (the “Act”). The second one was filed on December 19, 2008, and was against CBSA only. He alleged discrimination based on age and disability, contrary to s.7 and s.10 of the Act. Since both complaints referred to the same competitions and discussed the same events, the Complainant asked for them to be heard jointly.
[2] The Complainant’s complaint is based upon s.7 and 10 of the Act which state:
Employment
7 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.
[3] Section 10 of the Act forbids the establishment of hiring practices or policies that deprive a class of individuals of employment opportunities. Section 10 states:
Discriminatory policy or practice
10 It is a discriminatory practice for an employer, employee organization or employer organization
(a) to establish or pursue a policy or practice, or
(b) to enter into an agreement affecting recruitment, referral, hiring, promotion, training, apprenticeship, transfer or any other matter relating to employment or prospective employment,
that deprives or tends to deprive an individual or class of individuals of any employment opportunities on a prohibited ground of discrimination.
[4] The Complainant argues that the Respondent discriminated against him in a series of hiring competitions for Customs Border Inspector (CBI) and Border Services Officers (BSO) in the above time frame. He alleges that between 2001 and 2006, he was passed over for indeterminate employment in favour of younger candidates, mainly those under 35 years of age, and that he was also discriminated against because of his mental disability and/or perceived disability. He alleges that CBSA contravened to s.10 of the Act, which prohibits discriminatory practices and policies “that deprives or can deprive an individual or class of individuals opportunities on a prohibited ground of discrimination” and s.7, which makes it a discriminatory practice to refuse to employ or continue to employ any individual or to differentiate adversely in the course of employment.
II. ISSUES AND LEGAL FRAMEWORK
[5] There were two issues to determine in the Complainant’s allegations:
a) Did the Respondent discriminate against the Complainant on the basis of a disability or perceived disability; and
b) Did the Respondent discriminate against the Complainant on the basis of age?
[6] The parties have agreed that if the answers to the questions are in the affirmative they shall be referred to a Remedial Hearing.
[7] There is no question that the grounds of age and disability are both prohibited grounds under s.3 of the Act.
[8] It is accepted law that in a claim of discrimination, the Complainant bears the initial onus of establishing a prima facie case of discrimination. A prima facie case is “...one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer.” (Ontario Human Rights Commission and O’Malley v. Simpsons-Sears, [1985] 2 SCR 536 at p. 558). As explained in Stanger v. Canada Post Corporation, 2017 CHRT 8 at 12, this is a three-prong test:
To demonstrate prima facie discrimination in the context of the CHRA, complainants are required to show: (1) that they have a characteristic or characteristics protected from discrimination under the CHRA; (2) that they experienced an adverse impact with respect to a situation covered by sections 5 to 14.1 of the CHRA; 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; Siddoo v. I.L.W.U., Local 502, 2015 CHRT 21, para. 28). The three elements of discrimination must be proven 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) (“Bombardier”), 2015 SCC 39 at paras. 55-69).
[9] Moreover, “it is not necessary that a prohibited ground or grounds be the sole reason for the actions in issue for a complaint to succeed. It is sufficient that a prohibited ground or grounds be one of the factors in the actions in issue” (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, at 25, see also Holden v. Canadian National Railway Co., (1991) 14 C.H.R.R. D/12 (F.C.A.) at para. 7; and, Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 (CanLII) at paras. 44-52 [Bombardier]).
[10] It is also accepted that a “subtle scent of discrimination” is sufficient to determine that there was discrimination. This quote is often used before the courts and tribunals and the Tribunal is mindful of this. However, the Complainant must sufficiently explain the nature and extent of the problem to allow the Respondent to address and attempt to solve the issue of accommodation. (See the Respondent’s factum at page 13, Central Okanagan School District No. 23 v. Renaud, [1992] 2 SCR 970).
[11] It is clear that the law is such that the Complainant need not prove the Respondent’s intentions to discriminate in order to establish a prima facie case (O’Malley, supra, para 14).
[12] If the complainant meets his onus, the Respondent can either try to refute the allegations of prima facie discrimination, or establish, on the balance of probabilities, a defence based on a bona fide occupational requirement (Bombardier, paras. 35-37, 55-56). It is trite law that the refutation cannot be based upon a simple pretext.
III. PROCEDURES BEFORE THE TRIBUNAL
[13] This was a very unusual case. A complaint was filed on July 7, 2009, and a second one was filed on December 19, 2011. They were both referred jointly to the Tribunal by the CHRC since the Complainant asked for the complaints to be heard together. The hearing commenced on June 23, 2015, and was adjourned due to the late production of medical evidence by the Complainant. The hearing resumed on April 4, 2016, almost a year later.
[14] Since this matter was referred to the Tribunal in June 2012, there were motions for disclosure, motions for redaction of documents, and numerous case law filings, filed by both parties. The CHRC decided not to participate in this case.
[15] At the end of the Respondent’s case the Complainant brought a motion to call reply evidence with respect to new evidence, which he alleged could not have been anticipated. Ultimately, the Complainant was allowed to call limited reply evidence.
[16] Final written submissions were filed by the Complainant on July 4, 2017, and the Respondent filed their submissions on September 21, 2017.
[17] The Tribunal was surprised that in the Complainant’s written submissions, there was no reference to the issue of his alleged medical disability or to the medical evidence presented at the hearing.
[18] The Respondent, in their submissions, addressed the issue of disability, alleged disability, the medical evidence, as well as age discrimination.
[19] Furthermore, on October 5, 2017, the Complainant filed a reply submission addressing his diagnosis, medical illness, and doctor’s reports to support same.
[20] What was concerning was the fact that the Complainant, in his reply submissions, asserted that the Respondent had never, until his written submissions, taken issue with the Complainant having a disability.
[21] This is simply not true.
[22] A brief analysis needs to be done:
a) In paragraph 82 of the Respondent’s Statement of Particulars there is a specific denial of a disability.
b) The issue of disability arose during the first few days of the hearing. At that time the Complainant was adducing into evidence medical reports to deal with that issue.
c) The Complainant brought a motion on March 24, 2016, for:
An order declaring that the Respondent, Canada Border Services Agency, is prohibited from objecting to the fact that the Complainant has a disability;
An order declaring that Canada Border Services Agency has in fact accepted that Mr. Hughes has a disability;
That, in light of points 1 and 2 above, Mr. Hughes only needs to provide evidence regarding his disability in the form of his own testimony as well as the medical information supplied to him by his physicians; and
Such further and other relief as counsel may advise and the Tribunal may permit.
[23] The Tribunal, on April 4, 2016, delivered an oral decision which dismissed the Complainant’s motion and stated beginning at page 314 of the transcript:
The Tribunal has been advised by counsel for the Respondent and the Complainant that all medical evidence has been provided by the Complainant in September 2015, some six months ago.
There has been no objection by the Respondent to these (inaudible) after this juncture, nor has there been any request from the authors of these reports being produced.
At the conclusion of the hearing in June 2015 there was a (inaudible) between Mr. Yazbeck and Mr. Stark where Mr. Yazbeck inquired as to whether or not the Respondent objected or was denying the client Mr. Hughes was disabled.
Subsequently Mr. Yazbeck followed up letters to Mr. Stark by letters of June 30, 2015; a second of June 2015; February 8th, 2016, which is found in the Complainant’s Motion’s Brief dated March 24, 2016, at Exhibit D.
Mr. Stark responded to this correspondence by way of a letter of February 22nd, 2016, wherein he stated: “Thank you for your letter dated February 8, 2016, in which you inquired as to whether the Respondent takes issue with the fact of Mr. Hughes’ disability. This inquiry is a little unusual in review since the burden is on the Complainant to establish a prima facie case of discrimination, an essential component of which is that he establish he had a disability at all material times. If the reason for your inquiry is to ask whether the Respondent’s prepared to make an admission in this regard, then we can advise that the answer is in the negative.”
The Tribunal as a result of the correspondence and the history of the complaint directed that if there were any further objections, motions must be brought by March 24th, 2016.
The Complainant brought a motion on that date wherein he sought relief for:
One: an Order declaring that the Respondent Canada Border Services Agency is prohibited from objecting to the fact that the Complainant has a disability.
Two: an Order declaring that Canada Border Services Agency has in fact accepted that Mr. Hughes has a disability.
Three: that in light of points one/two above Mr. Hughes need only produce evidence regarding his disability in the form of his own testimony as well as the medical information supplied to him by his physicians.
As a result of that there were two issues that were identified being at page 205 of the Complainant’s material: Is Respondent prohibited from objecting to the fact of Mr. Hughes’ disability? And is it necessary to have physicians (ph) testify to the nature of Mr. Hughes’ disability?
The Respondent and Complainant disagree on what has been agreed and what has disagreed in the proceedings.
I think it is important to examine that the authority of this Tribunal is found within the Canadian Human Rights Act and I refer the parties at 48.1(1) that: “There is hereby established a tribunal to be known as the Canadian Human Rights Tribunal consisting, subject to subsection (6), of a maximum of fifteen members, including a Chairperson and a Vice-chairperson, as may be appointed.”
Section 48(9) “Rules of Evidence: In conducting an inquiry, the judge is not bound by any legal or technical rules of evidence and may receive, and base a decision on, evidence presented [by] the proceedings that [a] judge considers credible or trustworthy in the circumstances.”
Section 50(3)(c): “subject to subsections (4) and (5), receive and accept any evidence and other information, whether on oath or by affidavit or otherwise, that the member or panel sees fit, whether or not that evidence or information is or would be admissible in a court of law.”
In fact the Respondent has covered in his Reply Brief and submitted as part of his argument the case of Richard Carpenter 2015 CHRT number 8. This was a decision of a Tribunal Member Olga Luftig and I refer to parts of that decision paragraphs [33]: “Section 48.1(1) of the Act (supra) creates the Tribunal. Therefore, the Tribunal is what is called a “creature of statute”. It has only the powers which the Act confers on it, either expressly, or by necessary implication as recognized in the case law. The Tribunal is not a judicial authority. Rather, it is a quasi-judicial body, that is to say, an administrative body that functions in [in a manner] the same way as a court.”
Paragraph [34]: “There are other significant differences between a court and the Tribunal flowing from the fact that the Tribunal is a statutory creation, conducting a statutory inquiry. Of relevance are the following: The Act does not create or make a complaint into a common law cause of action (Chopra v Canada, 2007 FCA 268).”
“An inquiry under [this] Act is not an action governed by the Federal Court Rules, specifically Federal Court Rule 169, nor is it a ‘proceeding’ under FC Rule 1.1. Put briefly, a complaint is not the same as a lawsuit in a court.”
“Subsection 50(3)(c) provides that in a Tribunal hearing, the member or panel can ‘receive and accept’ any evidence and [any] other information that the member or panel sees fit, and highlighted “whether or not” … it “ … would be admissible in a court of law, subject only to privilege and information from a conciliator.”
[35]: “Therefore, the rules of evidence which apply to a Tribunal hearing provide much greater leeway for admissibility than do the rules of evidence applicable in a court.”
Paragraph [36]: “Parliament’s intention in making the Tribunal a quasi-judicial administrative body constituted by the Act was to provide the public with less formal, more flexible procedures for hearing human rights complaints than those of the courts (see section 48.9(1) of the Act.)”
Paragraph [37]: “Therefore, one must both exercise caution and make appropriate adjustments when comparing and trying to import terminology and [processes] from civil courts to administrative human rights tribunals.”
The Complainant in these proceedings states in his Complainant’s Motion Brief at paragraph 17: “There is no doubt that a threshold for providing” — excuse me — “proving a disability is not high. Dumont this Tribunal accepted that the complaint has been discriminated against on the basis of perceived disability based on the testimony of the Complainant and the fact that medical certificates have been provided to their employer prior to termination. The circumstances of the present case are exactly the same and there’s no reason to depart from the Tribunal’s previous decision and its authority.”
The Complainant referred to Dumont v Transport Jeannot Gagnon Inc. 2002 CanLII 5662, paragraphs 45 to 47 which was at tab four.
I had also made reference to a case of Mellon v Canada (Human Resources Development) 2006 CHRT 3.
This Tribunal is mindful of the authorities and position taken by the Complainant and also in the circumstances the position of Mr. Stark stating that the — at page four of his Brief, paragraph 11 (ph): “It is trite law that the onus resides with a complainant to establish a prima facie case of discrimination. In adverse effect discrimination cases the proof lies with the Complainant. He who alleges must prove. A prima facie case is in the Human Rights context one which covers the allegations made and which if they are believed is complete and sufficient to justify a verdict in the Complainant’s favour in the absence of answer from the Respondent employer.”
Furthermore at paragraph 12 the Respondent’s counsel indicates that the relief seeking a declaratory relief is an extraordinary remedy.
In the present circumstances the Tribunal will not make a declaratory slot (ph) and the Complainant must meet the onus of proving a prima facie case.
The position of the Respondent ought not to have caught the Complainant unawares in light of the attraction (ph) made by Mr. Stark in June of 2015 and his reply correspondence of February 2016.
The Tribunal agrees not to make such an Order, but is prepared to find — I’m sorry, but is not prepared to find that the motion by the Complainant is not abuse of process.
Again I just remind the parties the powers of the Tribunal Section 50 (ph) of 3(c) and rules one of procedure and rules of the Tribunal which gives wide latitude on how they proceed.
In the present circumstances the medical evidence shall be entered into evidence. The parties are free to argue relevance, weight of the said reports and as to what the Tribunal should consider relevant to same.
In the present circumstances the Respondent, if it takes the position that the authors of these reports — some of which are in fact the subject to the control of the Respondent — they may request that those people be brought forward. Such request must be made to this Tribunal by four p.m. on April 5th.
[24] Certainly, the Complainant was aware of the Respondent’s position prior to bringing the motion and he certainly knew after the decision of April 4, 2016, that the issue of a disability was in play and to suggest otherwise is untenable.
[25] With respect to the reply arguments, the Tribunal, after hearing arguments, allowed the reply arguments to ensure that the Complainant’s position was before the Tribunal.
[26] Many arguments were presented at the hearing regarding alleged irregularities in the staffing processes. In this regard, it is important to note that the Tribunal is not an employment law adjudicator, nor an arbitrator, and does not deal with irregularities in a hiring process unless there was a breach based on a prohibited ground (Folch c. Lignes aériennes Canadien 1992 CanLII 7197 (CHRT). The Tribunal has to be cautious of not attempting to be an employment law adjudicator. In the case of Moffat v. Davey Cartage Co. (1973) Ltd. 2015 CHRT 5, the Tribunal stated:
[45] Unless there is evidence that a discriminatory ground was a factor, directly or indirectly, it is not the role of the Tribunal to second-guess the business decisions of company management which, with the benefit of hindsight, may be easy to criticize … The Tribunal will ask itself whether the explanation proffered in support of the decision was reasonable in that context, but only so far as is necessary to determine whether the explanation given in support of the decision was not simply a pretext for discriminatory considerations.
[27] In this context, the Tribunal needs to look at the evidence it was provided with to determine if the CBSA discriminated against the complainant on the basis of his age, his disability, or both, during one, or many, of the eleven competitions. To do so, it will start with an overview of each competition the Complainant applied to.
IV. THE FACTS
[28] At the hearing, the Complainant testified that in April 2001, he had a “critical stress incident”, which triggered his mental health issues. This occurred while working at the CCRA. The evidence of the Complainant was that he became aware that his supervisor at the CCRA had written two recommendations for him, a positive recommendation for his applications with Customs, and a second assessment recommendation, which made a negative reference against hiring him within CCRA. This event led the Complainant to take a sick leave of about 15 weeks from July to September 2001. He ultimately returned to work and was placed in a position with different supervisors, but this was the beginning of many more issues with management at the CCRA.
[29] The Complainant was initially employed as a federal public servant with the CCRA in 1995. The Complainant was a customs contact officer at a PM-02 level. This position was multifaceted and required him to interpret and apply legislation and deal with individuals who were in arrears. The Complainant would try to negotiate voluntary payments and, if unsuccessful, would then commence legal actions such as garnishee applications. The Complainant worked for the CCRA for six years.
[30] It was while working for the CCRA that he started applying for customs inspector positions, which were still under the responsibility of the CCRA at the time. His first application was made in 2001. From 2002 to 2004, he was successful in obtaining three seasonal terms with CBSA. The Complainant, however, was unsuccessful in obtaining indeterminate employment, despite having received positive reviews during his term positions.
[31] In total, the Complainant entered 11 competitions to work as a CBI or a BSO, mostly in the Victoria area, had multiple interviews and was placed into a number of pre-qualified pools. It was from these pre-qualified pools, which are time limited, that candidates were being chosen by managers for indeterminate positions. However, the Complainant was not chosen. There were also other occasions where the Complainant was not eligible, or was screened out at or before the interview process.
[32] The CBSA hiring practices were convoluted and seemed to have exceptions to the standard rules. Selection boards, which consisted of two to three individuals, were usually tasked to hire candidates based upon selected competencies.
[33] The Respondent submitted at the hearing that hiring practices were consistent and generally followed the following steps:
a) there is a poster asking for applications;
b) after the close of the competition, there is a review of the applications;
c) there is an assessment of each application;
d) there is a screening for further assessment, which would usually consist of an interview or a re-examination;
e) candidates are scored on various competencies;
f) reference checks are conducted;
g) hiring managers establish an eligibility list or a pre-qualification pool (PQP) with the names of the qualified candidates;
h) from the PQP, the hiring manager can hire candidates on a best fit basis.
[34] The hiring processes were not all that straightforward as the competitions could often be geographically limited to designated ports of entry. The evidence shows that a candidate for a position at one port of entry would usually not be a candidate for a position at another port of entry. However, these were not the only rules. Some candidates could be seconded out of a previous competition. Furthermore, there were many exceptions to the standard practice of using pools. Managers had flexibility as they could: a) draw on specific employees from an existing pool; b) assign an existing employee to fill the role in an acting capacity; c) reassign an existing employee or utilize student recruitment or d) hire an employee on a short term contract.
[35] The main exception appears to be the use of a process known as “named referral” in which a specific person was put forward for hire without a competition. These were only used rarely and usually for a specific location.
[36] With respect to student hires, Superintendent Pringle stated that from the mid 90’s to 2003, students were routinely hired. The Respondent stopped using this practice around 2004 for a number of reasons, for example, because it was more effective to hire from a competition. Thus, through competitions, a number of candidates were screened on specific competencies and if successful, placed in a hiring pool. Ideally, candidates were selected as vacancies occurred and the practice was to take candidates from the older pools first, provided they had not expired.
[37] I will now examine the eleven competitions in which the Complainant participated in order to determine if he was discriminated against in one or more of them.
A. The competitions
(i) 2000-7015
[38] The CCRA in late 2000 advertised to hire indeterminate, acting and term positions in the locations of Victoria, Sydney and Bednall Hollow. Applicants were restricted to residents of Metropolitan Victoria up to and including Duncan. The Complainant was successful and was placed in a qualified pool in March of 2001. The Complainant testified that he was required to bring to the interview process a driver’s license and a birth certificate. He alleged that the driver’s license was used as a proof of age, which is an indicium of age discrimination.
[39] The Complainant testified that the 7015 pool, which he was screened into, was only good for two years. However, the pool was extended for one year and he was appointed to a term position in April 2002 for the summer. The position of CBI required him to work at both primary and secondary screening sites. The primary is the first contact for entrance into the country and the secondary is a more detailed examination. The Complainant also completed an officers training course.
[40] In October 2003, the Complainant received a positive assessment from his supervisor for the period of 2003-04-28 to 2003-09-28. The only comment on the briefing form by the Complainant was “I had a perfect attendance record”.
(ii) 2001-7009
[41] There was a competition in March 2002 for intermediate, acting or term positions and it was open to persons who had previous experience as customs inspectors.
[42] The Complainant was ineligible to compete, as he did not have the experience to apply at the time. This in itself is not an issue. It is not an allegation of discrimination but the Complainant takes issue with the position of the shifting hiring practices of the Respondent. In his evidence, the Complainant acknowledged that in the 2001-7009 competition, of the five individuals who received permanent positions, two were within one year of his age, one was three years younger and one was ten years older.
(iii) 2002-7012
[43] In or about January of 2003, another competition was launched to hire in a limited area. The Complainant had pre-qualified for this pool and was interviewed by Katherine Pringle, Robert Farrell and Mark Northcott. Ms. Pringle was the Chair and she and Mr. Northcott conducted the interview. The Complainant met the criteria and was placed in a pool and was ultimately hired.
(iv) 2003-1002
[44] This was a competition that commenced in June 2003 for permanent, term and acting positions at the Metro Vancouver District Airport, and it was open to experienced customs inspectors. Applicants who had already been interviewed for a customs inspector position in January of 2002 were ineligible to apply. The core competencies for this position were communication, professionalism, team player and adaptability, initiative and service. The successful candidates would have to complete training in the use of force in Rigaud, Quebec. Rigaud, Quebec is a training centre for CBSA inspectors.
[45] The evidence disclosed that the Complainant was screened in for the first interview. He had his first interview with a board of two people, Holly Freeround (Stoner) and Ron Tarnawski, on April 21st, 2004.
[46] The Complainant was successful in his first interview and was called for the second interview. The second interview was conducted by a board of three people: Ron Tarnawski, Bart Northcott and Karen Morin. At no time before or during either interview did the Complainant request an accommodation, mention he had a disability, or disclose that he had medical issues.
[47] During the course of the first interview, the Complainant asked Ms. Stoner to get him a glass of water and in her absence, he questioned the Chair as to the appropriateness of the questions being asked as according to Mr. Hughes they diverted from the norm and Ms. Stoner was making him nervous. Both Ms. Stoner and Mr. Northcott testified that they had no information that the Complainant had any sort of disability. Despite this curious behaviour, Mr. Hughes was called for the second interview, but failed this one, for according to Mr. Northcott the Complainant’s answers dealing with difficult situations, one of the criteria, was unsatisfactory and the Complainant did not demonstrate a lot of self-confidence.
[48] Subsequent to the second interview, when the Complainant was screened out of the process, there was a meeting between Ms. Rashid, Mr. Tarnawski, and Colin Reid, where it was suggested to have a post board meeting with the Complainant, which is not part of the normal evaluation process. There was also a telephone conversation between Ms. Rashid and Ms. Kavelaars, a personnel consultant, as to the best way to proceed. There were differences as to what the motive behind this phone call was and what was actually said.
[49] On August 25th, the Complainant was invited to a feed-back session with Mr. Tarnawski and Ms. Stoner. It did not go well. It appears that the Complainant did not understand the purpose of the meeting in as much as he believed there would be a reconsideration of his application. The meeting was confrontational, with the Complainant having prepared forms for Mr. Tarnawski and Ms. Stoner to sign admitting to errors in the process. Both sides were critical of the other, with the Complainant alleging that the meeting was just for show and was organized to disguise a discriminatory practice.
[50] The evidence of Ms. Stoner was that the Complainant became agitated and left the room, slamming the door as he left. The Complainant did not accept this version of the events but admitted saying at the end of the meeting that he would “see you in court”.
[51] Three days later, on August 28, 2004, the Complainant met with Ms. Kavelaars to advise her of his concerns with the process, as he wanted to have a resolution. At the end of the day, however, there was no resolution. The Complainant was still employed with CBSA.
[52] During this period, the Complainant also attended an informational session in Victoria, where Chief Superintendent Fairweather spoke to CBSA employees. The Complainant alleges that Mr. Fairweather made comments to the effect that “if you want a career in customs and are under 35, come to Vancouver.” This is one of the Complainant’s allegations supporting age discrimination.
[53] The Complainant ultimately filed a complaint with the Public Service Commission (PSC) alleging bias by the boards against him. The investigation did not support bias but it did disclose discrepancies between the screening processes and the posted competencies.
[54] The PSC required the Respondent (at this time CBSA) to take preventative action. The process was redone but there were no changes to the results of the competition. The Complainant filed an application to the Federal Court of Canada, which was dismissed.
(v) 2003-7003
[55] On or about October 11, 2003, CCRA advertised a competition for term, indeterminate, and anticipatory hiring for PM-02 Customs Inspector positions in Victoria, Sidney, and Bedwell Harbour. The closing date for this competition was October 30, 2003, and it was geographically restricted to persons residing or employed in greater Victoria including Colwood, Langford, and Sidney. The posting asked that applicants advise of any accommodation they require in order to participate in the assessment phase of the process. Candidates appointed permanently would be required to complete core and mode specific training in Rigaud, as well as use of force training that would require “significant physical exertion”. The Complainant was screened in and was interviewed by Kathryn Pringle and Trevor Baird on December 16, 2003. He never asked for any accommodation nor did he mention he had a disability.
[56] The Complainant was successful in the assessment process and was placed in a prequalified pool in March 2004.
[57] In May 2004, the Complainant was on sick leave/unpaid leave from CCRA. CBSA wanted to offer him a secondment within CBSA for the summer, but due to administrative issues and because he was on leave, the CCRA would not allow him to be seconded to CBSA. Instead, CBSA selected him from the pre-qualified pool (Competition 3961) and the Complainant worked for CBSA during the summer of 2004.
[58] In the context of this competition, the Respondent had wanted to take a lot of the successful applicants to Rigaud, Quebec for further training. The Complainant also wished to be selected to go. Ultimately, four candidates from the pool were selected to go, all of whom were in their 20’s. The Complainant contends that they stopped doing placements when they came to his name.
[59] At the end of his summer contract, the Complainant returned to work with CCRA, and he decided to file a complaint with the PSC to investigate alleged irregularities in competition #2003-7003. The PSC found no flaws in the placements.
[60] During the hearing before our Tribunal, Ms. Pringle testified about this process and the employment of the Complainant during the summer of 2004. Ms. Pringle confirmed that she did a performance review of the Complainant in 2004, where she wrote a very positive report using phrases such as “projects professional image, conducts himself in a polite manner when dealing with the public, is able to make appropriate decisions based on the priorities of the agency.”
[61] Furthermore, Ms. Pringle acknowledged in that performance review that “it had been a pleasure working with him” and she agreed to act as a reference for him with respect to his reliability.
[62] In his testimony, the Complainant also indicated that Ms. Pringle did not know about any medical conditions from which he may have suffered at the time. He also confirmed that he had worked with Ms. Pringle in the past and that he had received compliments from her.
(vi) Stewart, British-Columbia
[63] There is a small port in British Columbia, Stewart, which was very hard to staff. In 2004, a position became available for staffing and it was initially filled by using a named referral to appoint Stanley Stinson. He was a qualified candidate in the Victoria pool, a pool the Complainant was also part of. It is the position of the Respondent that this referral came about in unique circumstances and that it was in fact not an indeterminate appointment.
[64] The Stewart appointment became available again for the winter period of 2004, and the Respondent put out a call letter to staff this position in September 2004. The Complainant was interested in a permanent position and would have been ready to move to Stewart to obtain it. When CBSA offered him a position in Stewart, they told him it would only be temporary and so he refused. Finally, CBSA decided to offer it to Mr. Van Helvoirt, who was in the 2003-1002 pool and gave him an indeterminate position. The Complainant thinks it is really unfair because if CBSA had offered him an indeterminate position first, he would have accepted.
[65] Moreover, the Complainant alleges that Mr. Van Helvoirt was screened into the 2003-1002 pool late and was screened in while being evaluated for two competencies on the same example.
[66] The Complainant takes the position that this was improper and if he had been screened into the Vancouver competition, he would have been able to take this position.
(vii) 2005-1001
[67] This was a competition for permanent, temporary, seasonal, part time and full time PM-03 positions at the Border Services Offices, at various locations in British Columbia and the Yukon. The Complainant was invited for an initial interview in March 2005 in Vancouver. The Complainant did not advise the panel that he needed an accommodation. At the time, the Complainant had just completed his third term with the Respondent. The panel consisted of Steven Cronin and Catherine Black. Evidence disclosed that the Complainant had had no prior contact with Mr. Cronin or Ms. Black. Evidence disclosed that in a conversation between Mr. Cronin and Mr. Northcott, that Mr. Northcott had advised Mr. Cronin that the Complainant had failed his prior competition.
[68] The Complainant was not successful in the interview and was not passed on for further assessment. In particular, he was unsuccessful in the Effective Interactive Communication Competency, scoring only 55 points, where a passing mark was 70.
(viii) 2005-1005
[69] In spring of 2005 there was a posting and the Complainant applied once more. He was automatically screened out on the basis of not having been successful in the earlier 2005-1001 competition.
(ix) 2005-2006 Public Service Commission Hearings
[70] Whilst this is not part of the hiring process, some of the Complainant’s claims have proceeded to a hearing before the Public Service Commission (PSC) respecting complaints in the process in competitions 2003-1002 and 2003-7003. This began in October 2005 and continued up to February and August 2006. There was considerable evidence as to the Complainant’s behaviour at those hearings, which are germane to the 2005 and 2006 competitions, and which will be discussed in more depth.
[71] The evidence disclosed before our Tribunal shows that the hearings were apparently very confrontational. Ms. Lennax, who appeared on behalf of the Respondent, testified that the Complainant was angry, disruptive, disrespectful and confrontational. She went on to say that at one juncture the Complainant had jumped up from the table, yelling and using profanity, and had stormed out of the room. On the other hand, the Complainant is of the opinion that Ms. Lennax was treating him with disdain, and was laughing at his evidence. The Complainant has admitted that he was very angry, and that he was under considerable stress during the hearings. One of the Complainant’s witnesses, Levan Turner, confirmed that he viewed Ms. Lennax as laughing when the Complainant was giving evidence, to the point where the investigator required her to cease.
[72] There is no question that during the course of the hearings, Ms. Lennax took copious notes of what went on. In her testimony before this Tribunal, Ms. Lennax said that she did feel threatened by the Complainant. As previously stated, the Complainant and Mr. Turner disagreed with Ms. Lennax and contradicted her evidence.