Turner v. Canada Border Services Agency

Turner v. Canada Border Services Agency
Collection
Canadian Human Rights Tribunal
Date
2010-06-10
Neutral citation
2010 CHRT 15
File number(s)
T1248/6007
Decision-maker(s)
Sinclair, Grant, Q.C.
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
LEVAN TURNER
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
CANADA BORDER SERVICES AGENCY
Respondent
DECISION
2010 CHRT 15 2010/06/10
MEMBER: J. Grant Sinclair
I. INTRODUCTION
A. Mr. Turner's Pre-Customs Inspector Experience
B. Mr. Turner's Custom Inspector Experience
(i) May 1998 to October 1998
(ii) December 1998 to October 1999
C. Mr. Turner's December, 1998 to October, 1999 Performance Review
(i) May 2000 to October 2000
(ii) May 2001 to September 2001
(iii) October 2001 to October 2002
(iv) May 2003 to September 2003
D. Previous Competitions
E. Vancouver Competition 1002
F. Shalivi Sharma
G. The Student Bridging Program
H. Supt. Ron Tarnawski
I. How was the Eligibility Restriction Applied?
J. Victoria 7003
II. Decision
A. Qualifications and experience as Customs Inspector.
B. The Klassen emails
C. Victoria 7003
D. Vancouver 1002
I. INTRODUCTION [1] Mr. Levan Turner is the complainant in this matter. He describes himself as a black male, who was 37 years at the time of his complaint. He is currently employed by the federal government as a PM-2 with Service Canada. He has been in that position since June 2008.
[2] In 2005, Mr. Turner filed a complaint with the Canadian Human Rights Commission. His complaint, dated February 8, 2005 is against the Canada Border Services Agency (CBSA). CBSA came into existence on December 12, 2003. It is the successor agency to the Canada Customs Revenue Agency (CCRA). CBSA is responsible for the enforcement of customs and immigration laws at Canada's borders. Following the creation of the CBSA, the position of Customs Inspector (CI) became Border Services Officer.
[3] Mr. Turner's complaint arises out of two competitions for the position of Customs Inspector with CCRA. He applied in both competitions. At the time he applied, he was working as a seasonal CI for the summer season in the port of Victoria. He had worked as a seasonal CI in Victoria from 1998 to 2003.
[4] The first competition he applied for was posted by CCRA on June 9, 2003 for a CI position in Vancouver, B.C. (Vancouver 1002). The second competition was posted by CCRA on October 11, 2003 for a CI in Victoria, B.C. (`Victoria 7003). Mr. Turner did not obtain either position. In both cases, the Selection Boards for these two competitions did not consider him qualified to be a CI.
[5] Mr. Turner claims that the decisions of the Selection Boards were tainted by discriminatory considerations, namely considerations of his race, national or ethnic origin and age, contrary to s. 7 of the Canadian Human Rights Act.
A. Mr. Turner's Pre-Customs Inspector Experience [6] Mr. Turner's résumé indicates that he worked in various jobs in Toronto between 1985 and 1995. He was also enrolled in a four year geography program at the University of Toronto, but did not complete it.
[7] His résumé also indicates that, between 1991 and 1995, he was a member of the Metropolitan Toronto Police Auxiliary. This is a voluntary activity which involved community policing, traffic control for special events and community public relations.
[8] As a volunteer, he would do ride-alongs with a regular police officer and assist in policing duties. He was trained in defensive tactics, tactical takedowns and handcuffing. Mr. Turner estimated that, as an auxiliary, he gained more than 2,000 hours of policing and enforcement experience.
B. Mr. Turner's Custom Inspector Experience (i) May 1998 to October 1998 [9] In 1995, Mr. Turner moved to Victoria. He first worked as a seasonal CI with the Marine Team, Revenue Canada, Customs & Excise, (the predecessor to CCRA) in Victoria, from May 1998 to October 1998. Marine is responsible for the outside processing of cruise ships, ferries, aircraft, pleasure craft and float planes. As to the ferries arriving in the Port of Victoria, marine dealt mainly with the Coho and the Clipper. The Coho is a car ferry that runs between Victoria and Port Angeles, and the Clipper is a passenger ferry that runs between Seattle and Victoria.
[10] The duties of a CI include control of goods and people coming across the international border, interviewing and assessing their admissibility to Canada.
[11] Marine involves primary inspection and secondary inspection. Primary inspection would be the first contact with a CI that persons would have coming off a ferry or cruise ship. That is when they would present their customs declaration and would be questioned by a CI.
[12] At that point, the CI would determine whether they would be admitted to Canada or be sent to secondary for further examination. To make that determination, a CI is trained to ask standard questions and look for indicators, for e.g., whether they believe the traveler, how they answer questions, whether they are evasive, and then decide whether to send them to a secondary examination or admit them to Canada.
[13] If they are referred to secondary, the primary CI would complete a referral sheet to be given to secondary. The secondary CI, who works in another area, would review the referral sheet, verify what was said at the primary inspection and take whatever action is required. This could be collecting custom duties and taxes, referring them to immigration if necessary or admitting them to Canada. Secondary inspection also has an important enforcement aspect. This involves searching, apprehending or arresting individuals seeking admission to Canada, who are uncooperative, belligerent or who become unmanageable when being questioned by a CI.
(ii) December 1998 to October 1999 [14] Mr. Turner returned to work as a seasonal CI in Victoria from December 1998 until October 1999. He said that he took this position because he wanted to become a full time CI. This is because he loves the interaction with the public and because of his auxiliary policing background he had become very interested in law enforcement. CI work gave him the best of both worlds.
[15] When he came back in December 1998, he was assigned to the Telephone Reporting Centre (TRC) and worked there from December 1998 to October 1999. The TRC is a static location. A CI assigned to the TRC works for the whole shift, and would not as a general rule, do any outside processing.
[16] The function of the TRC is to clear private vessels and aircraft coming into Victoria from outside Canada. The masters of the vessels or the pilots of the aircraft would phone the TRC to obtain telephone clearance into Canada.
[17] The CI would conduct the same interview, would ask the same questions that would be asked of a person coming across the border on land or by ferry. If they were admitted to Canada, they would receive a clearance number, which is proof that they had called in and were cleared by a CI.
[18] If the CI determined that further information or examination was required, they would be referred for a secondary examination to another CI outside the TRC.
C. Mr. Turner's December, 1998 to October, 1999 Performance Review [19] At the end of the season, Mr. Turner received a written performance review for December 1998 to October 1999 from Supt. Perry, his supervisor at the TRC.
[20] In the review, Supt. Perry wrote that Mr. Turner had become knowledgeable with the legislation and regulations related to the duties performed by a customs inspector and TRC operations. His appearance was always professional and in accordance with Department guidelines. He said that Mr. Turner worked well with the rest of the team members and assisted with the training and guidance to new staff that came into the TRC. Supt. Perry did note in the review that TRC staff only make referrals and rarely help with primary or secondary referrals. He recommended Mr. Turner for re-employment as a CI for the next season.
[21] Mr. Turner said that the TRC was the part of the CI job where he felt most at home and it was in the TRC where he spent most of his time. But he said that during that season, from time to time, he would help with outside processing doing secondary examinations. He did agree, however, that there was no mention in his review of doing any secondary enforcement duties.
(i) May 2000 to October 2000 [22] Mr. Turner returned as a CI in the TRC and worked there from May, 2000 to October 2000. His performance review again was done by Supt. Perry. He noted that Mr. Turner demonstrated the ability to make decisions with limited information and exercised good common sense and sound judgment. Team work was a very strong point of his and he was of great assistance in training new staff. He was always looking for ways to improve the operation and share this with the rest of the staff. He demonstrated an in-depth knowledge of the different systems used in the TRC. Again there is no mention of Mr. Turner helping out with the marine team. Supt. Perry recommended Mr. Turner for recall the next season.
(ii) May 2001 to September 2001 [23] Mr. Turner worked as a CI in Victoria with the marine section from May 2001 to September 2001. His performance review was prepared by Supt. Kathryn Pringle. She commented that Mr. Turner conducted himself in a polite and professional manner. He communicated effectively both orally and in writing. He worked well with his co-workers and was always willing to assist with extra tasks without complaint. She noted that he had become the resident computer expert in the TRC and was able to resolve problems when there was no IT support, especially on the weekends.
(iii) October 2001 to October 2002 [24] In October 2001, operating under a state of alert because of 9/11, CCRA decided to hire seasonal CIs beyond the summer season. Mr. Turner was extended from October 2001 to December 2001 and then to October 2002 when he worked outside in marine.
[25] For this period, he received two performance reviews, a mid-summer review and an end of season review. In his August 2002 mid-summer review of Mr. Turner, his supervisor, Supt. Baird, reported that Mr. Turner had a very good understanding of the primary process and was able to make quality referrals while facilitating low-risk travelers. He was able to make appropriate decisions when doing secondary exams and was professional, even in difficult circumstances.
[26] Mr. Turner was a team player, communicated well with both the public and his co-workers and had the potential to be a very effective communicator. Supt. Baird lauded him for the effort he had made to bring forward issues in a constructive manner after pointing out that this was something Mr. Turner had failed to do in the past. He concluded by encouraging Mr. Turner to gain more experience in enforcement through secondary examinations.
[27] In his October 14, 2002 end of season performance assessment, Supt. Baird wrote that Mr. Turner had an excellent understanding of primary and secondary procedures. He demonstrated an effective ability to deal with difficult or hostile situations and good judgment when dealing with secondary examination and enforcement activity.
[28] He noted that Mr. Turner had successfully completed the Officers Powers and Use of Force training at the beginning of the summer and that he had been involved in secondary examinations during the summer and had worked on gaining enforcement experience. As with his other performance reviews, Mr. Turner was praised for interacting well with the public and his co-workers and for his willingness to take on extra work when asked.
[29] In his evidence, Supt. Baird commented on the two reviews that he prepared for Mr. Turner in 2002. There are things that he liked about Mr. Turner as an employee and work that he did well. But he would not characterize Mr. Turner as fully developing into all of the roles expected of a CI. Mr. Turner was very comfortable doing that part of the job that was more service-oriented, like working in the TRC.
[30] As to those of the job that required being more proactive in terms of enforcement and identifying non- compliance amongst travelers or doing secondary examinations and seeing them through to enforcement, such as seizures, that was not Mr. Turner's strong suit.
[31] As to Mr. Turner's 2002 mid-summer review, Supt. Baird explained that employees were given their goals and objectives at the beginning of the season, what was expected of them and how they would be assessed in terms of performance. The mid-season assessment was to let them know if they're on track, or if there were performance issues.
[32] Supt. Baird said that his consistent view of Mr. Turner was that he was always polite and courteous when dealing with the public and fellow officers and always presented himself in a professional manner even in difficult circumstances.
[33] As to his comment about bringing work-related concerns forward in a constructive manner, he said this was added specifically to address a performance issue that Mr. Turner was having in the workplace. His observation was that at times, that he had a tendency to bring issues forward in a manner that Supt. Baird characterized as complaining. He identified this as an issue for Mr. Turner and acknowledged that Mr. Turner had positively responded and had made efforts to be more constructive.
[34] Supt. Baird said that when he wrote in the review that Mr. Turner had the potential to be a very effective interviewer, he was underscoring that Mr. Turner had the fundamentals to develop good interviewing skills. But he was not saying that Mr. Turner was then a good interviewer. He had to work at it.
[35] Good interviewing techniques are developed through practice. The more secondary examinations and focusing attention to that skill set, the better opportunity there is to develop and become more skilled. He observed that this was an area where Mr. Turner was weak and did not put enough effort into developing these skills.
[36] Supt. Baird, said with respect to enforcement experience, that TRC offers very limited enforcement experience because the job involves answering telephones and making referrals to the field. Only rarely would TRC staff help with the secondary examination.
(iv) May 2003 to September 2003 [37] Mr. Turner was last employed as a seasonal CI from May 2003 to September 2003 and worked outside in marine. His performance review was prepared by his manager, Supt. Terry Klassen. In his performance review, Supt. Klassen indicated that Mr. Turner provided quality service to the public and to his peers. At times, he had taken on a leadership role when the Supt. was not on site.
[38] He noted that Mr. Turner had a good understanding of customs enforcement and provided fair, responsible and effective enforcement of the programs. He said that the seizure documents for that summer showed that Mr. Turner was involved in six different enforcement actions. In three of them, he was the lead officer, one for seizure and two for officer powers incidents, all dealing with narcotics.
[39] But Supt. Klassen said this was average enforcement experience for that summer and would not necessarily provide a CI with a broad understanding or a good foundation for customs enforcement. Customs enforcement just doesn't deal with narcotic offences. It also involves seizures of other prohibited material such as pornography, alcohol, tobacco, clothing, souvenirs or jewellery that travelers do not report. There are a lot of areas of customs enforcement that were not covered under these six enforcement events.
[40] He concluded that Mr. Turner had met the majority of the performance expectations and recommended him for re-hire.
[41] After they met on September 26, 2003 to discuss and sign off on the review, they had an informal discussion in which Supt. Klassen brought up some concerns that he had not mentioned in the performance review.
[42] Mr. Klassen told Mr. Turner there was a perception among some Supts. that he tended to avoid the harder tasks and sloughed off work. Mr. Turner said this was very surprising to him considering his performance review. He was shocked that Supt. Klassen didn't bring this to his attention sooner so he could respond.
[43] Supt. Klassen also told Mr. Turner that there were also complaints from other custom inspectors that he did not do the cash-out at the end of his shift. A cash-out involves taking the monies collected from duties and taxes at the end of the shift, leaving enough for a cash float for the next shift, and taking the balance to the main office. At the main office, it is put in the safe for the day clerk to take to the bank the next morning. Again Mr. Turner said he was very surprised to hear this because nobody had ever raised this with him before.
[44] David Cormie, who was a CI for 32 years, worked with Mr. Turner in marine. Mr. Cormie, would rate Mr. Turner at the top of the CIs he worked with. He would never describe Mr. Turner as lazy or that he ever was shirking his duties.
[45] Mr. Cormie said that he worked shifts following Mr. Turner but did not recall any complaints about Mr. Turner not doing the cash-out. Mr. Cormie said it was always a judgment call whether to cash out a small amount such as $50 or leave it for the next shift.
[46] After his informal discussion with Mr. Turner, Mr. Klassen sent an email dated October 4, 2003 to other Supts., Rick Peninger, Mara Gibbons, Kathryn Pringle, Trevor Baird and Diane Kavelaars. In his email, Mr. Klassen wrote: I then went to the point and started talking about how he is perceived, i.e., how he sometimes shies away from the harder tasks, or knows the right procedure, but asks to Superintendent for advice, hoping the Superintendent will use their discretion and go the easier way. It was also pointed out how other inspectors had complained that he had left cash outs for others to do instead of doing them on his shift.
[47] The last three sentences in this email read: I asked him to take a close look at himself next year to ensure he is not dodging harder tasks of seeking the easy path. In turn he asked that we give him ongoing feedback on how he is doing in our eyes. The conversation went very well and without conflict.
[48] On October 12, 2003, he sent another email to the Supts. entitled Talk with Levan, part two. He wrote that he had forgotten an important part of the conversation. It was regarding his attendance.
[49] Mr. Turner recalled talking about attendance in this session. Mr. Klassen was concerned that either Mr. Turner's health was an issue or he was abusing his sick leave. He said that Mr. Turner's Leave Summary reports showed a steady increased use of sick leave and family related leave over his years of employment. Mr. Turner said this issue had never been raised with him before.
[50] As to the family leave, Mr. Turner explained that Mr. Turner's girlfriend was on disability and had some medical issues. But she would be back at work and the family related leave would be lower.
[51] Supt. Klassen's email concluded with the comment: We closed up the one and a half hour discussion with me emphasizing that he needs to be cognizant of the image he is presenting as one of jumping in with both feet and not looking for an easy solution. He also asked that I impart to the other Superintendents that they should feel free and easy to come and discuss with him when something is not sitting right as he does not see this sloughing off as part of his work ethic or nature.
[52] Supt. Klassen did not record these concerns in Mr. Turner's performance review because he had not been given an opportunity to respond.
[53] He also indicated that he had this discussion so that when Mr. Turner came back for the 2004 summer season, which Mr. Klassen recommended, his next supervisor would see these comments and work with Mr. Turner so that these concerns were addressed the next year.
[54] Mr. Klassen agreed that he did not send similar emails concerning his end-of-season meetings with other seasonal employees to the other Supts.
[55] Mr. Turner was not hired for the 2004 summer season. He was told this because CBSA had changed its hiring practices.
D. Previous Competitions [56] Although Mr. Turner received very favorable job performance reviews as a five year seasonal term employee, he did not do well in prior competitions for an indeterminate CI position.
[57] Mr. Turner applied for a CI position in competition Victoria 2009. He was interviewed on April 2, 2002 but failed to pass the interview, having scored a failing grade of 60 on the enforcement orientation. In their interview notes, the Board comprised of Supts. Kathryn Pringle and Dave Denis, indicated that Mr. Turner did not demonstrate the capacity to exercise balanced judgment. The reason was that, in answer to a question, he said that he would only collect duties and taxes if the traveler wanted to pay.
[58] The Board also noted that one of his examples on which he was interviewed related to an incident from four years earlier. This indicated to the Board that he lacked current enforcement experience although he had worked several years experience as a CI.
[59] In May 2002, shortly after his interview, Supt. Pringle called Mr. Turner and explained to him that his lack of enforcement experience had adversely affected his performance in the interview. She encouraged him to work outside in marine during the coming summer rather than in the TRC so he would gain more enforcement experience. She also encouraged him to apply in upcoming competitions if he wanted an indeterminate position once he had acquired that experience.
[60] Initially he resisted this advice, telling Supt. Pringle that because he had not qualified in this competition, he would prefer to work in the TRC where he believed his talents could be better used. He did however work in marine the next season.
[61] In 2002, Mr. Turner again competed for a CI position in Victoria 7012. He was interviewed on February 13, 2003 and again failed to qualify.
[62] In his interview, Mr. Turner received a failing grade on both enforcement orientation and service orientation. A differently constituted Board, Supts. Tarnawski, Northcote and Pringle had similar concerns about his enforcement approach. The Board noted that Mr. Turner did not get all the information before making decisions. He made numerous assumptions regarding who he was dealing with and how he should deal with them. This was after his 2002 mid-season and end of summer performance reviews where Supt. Baird emphasized that Mr. Turner needed to get more enforcement experience.
E. Vancouver Competition 1002 [63] The Vancouver competition, 2003-1727-PAC-3391-1002 was dated June 9, 2003. It was for a CI position for Vancouver International Airport District, Metro Vancouver District and Pacific Highway District. The competition was open to persons residing or working west of the Canadian Rocky Mountains.
[64] In addition to the criteria to be satisfied to be screened into this competition, there was also an eligibility restriction, which provided, Applicants who have been interviewed for this position since January 1, 2002 will not be eligible for this position.
[65] This competition was open both to those working in the public service and to external applicants. Applications were submitted online to the human resources section, who would compile a master list of the names and addresses of those who had applied and the date of their application. The applications were then given to the Selection Board appointed for the particular competition, who would decide who would be screened in.
[66] Once a candidate was screened in, they would be invited to take the Customs Inspector Test (CIT). Those who had written and passed this test did not have to do so again. The pass mark was 585/900.
[67] Those candidates who passed the CIT were sent a Portfolio of Competencies package (POC) to be completed and returned. For Vancouver 1002, there were eight competencies listed: adaptability, initiative, client service orientation, dealing with difficult situations, decisiveness, self-confidence, teamwork and cooperation, and effective interactive communication.
[68] Applicants were asked to describe a particular event, ideally two-three years old, and focus on what they did, felt and thought, using a different event for each competency.
[69] The Selection Board would initially do a paper review of the POC package submitted by each candidate and determine whether there was sufficient information to demonstrate they had an understanding of the competencies. If so, they would be invited to an interview.
[70] At the interview, the Board would question the candidate on some of the competencies. This was a much more intensive exercise by the Board and would also give the candidate the opportunity to expand on their written answers.
[71] Mr. Turner read the Vancouver 1002 poster as being for a position in the Vancouver International Airport, Metro Vancouver District and Pacific Highway District. Because he had not interviewed for a CI position in Vancouver since January 1, 2002, he considered that he was eligible for this process.
[72] The Vancouver 1002 competition involved two interviews. Mr. Turner satisfied the preliminary stages and was invited to the first interview on April 26, 2004. The members of the Selection Board were Supts. Ron Tarnawski, Mark Northcott and Karen Morin.
[73] In the informal discussion prior to the formal interview, Mr. Turner mentioned to Mr. Tarnawski that he had met him before. He said Mr. Tarnawski's response was yes, he remembered Mr. Turner's voice and his presence. As noted earlier, Mr. Tarnawski was a member of the Selection Board who had interviewed him in February, 2003 for Victoria 7012.
[74] Early in the interview, the Board asked him if he had applied for this position within the eligibility period set out in the job posting. Mr. Turner said no, his understanding and interpretation being that the position was for Vancouver.
[75] The Board indicated to him that, in the event that CBSA's records indicate that he did in fact apply for the position since January 1, 2002, he would no longer be eligible for the process.
[76] After the interview, the Board researched its files and found that Mr. Turner had in fact interviewed for two CI competitions since January 1, 2002, namely, Victoria 7009 on April 2, 2002 and Victoria 7012 on February 13, 2003.
[77] Although Mr. Turner was successful at that interview, he was disqualified from proceeding to the second interview because he came within the eligibility restriction.
[78] The interview notes from Mr. Turner's Vancouver interview, April 26, 2004 at shows a passing score of 70 and then the notation, not qualified to interview. NQ'd inside of restriction on poster.
[79] Mr. Turner challenged this, saying that there were other people that had interviewed previously in Victoria. He believed them to be Trent Van Helvoirt, Heath Lariviere, Mike Curtis and Chris Hughes. It appears, however, from the evidence that these four persons had interviewed previously for Victoria and were successful.
[80] Shortly after his interview, Mr. Tarnawski called him and explained that because Mr. Turner was unsuccessful in a prior Victoria competition within the time restriction, he was screened out of the Vancouver process. He also told Mr. Turner that the restriction did not apply to candidates who had been interviewed and were successful in prior Victoria competitions.
[81] Mr. Tarnawski followed with a letter dated June 1, 2004, which Mr. Turner received on June 7, 2004. The letter referenced Vancouver 1002 and stated that due to a restriction on the Customs Inspector Job Poster, applicants who have been interviewed for the above-mentioned position since January 1, 2002, will not be eligible for this process. As it has been determined, you were interviewed after that date you are not eligible for this process. If you require any further information you are to submit a request in writing by June 9, 2004.
[82] Mr. Turner sent a reply letter dated June 7, 2004. The CBSA date stamp indicated that it was received on June 11, 2004). In his letter, Mr. Turner requested further information. He noted that in their earlier conversation, Mr. Tarnawski told him that he was disqualified because he was not successful in the earlier Victoria competitions. But according to Mr. Tarnawski's June 1, 2004 letter, any candidate who was interviewed, successful or not, would be disqualified.
[83] Mr. Turner did not receive any reply to his letter from CBSA. According to Mr.Tarnawski, this was because Mr. Turner's request letter was received after the date specified for requests for information. He said that CBSA was trying to make sure that people who asked for feedback were actually serious about getting feedback.
[84] He conceded that Mr. Turner had raised serious concerns, but said if it's late it's late. However, his June 1, 2004 letter did not state that the request for information had to be received by June 9, 2004, only that it had to be submitted by that date.
F. Shalivi Sharma [85] Shalivi Sharma gave evidence on behalf of CBSA. At the time, Vancouver 1002 was advertised, she was a CBSA Resourcing Advisor whose clients included mainland customs hiring managers for the Pacific Highway District, Vancouver International Airport, and Metro Marine District. She assisted them with the Selection Boards as well as with any training that Selection Board members needed and provided them with general staffing advice.
[86] Ms. Sharma was involved in the drafting of the Vancouver 1002 competition poster. When she first met with the recruitment unit, which at that time consisted of Ron Tarnawski and Mark Northcott, they indicated that they were interviewing the same candidates over and over again who were not being qualified for the position.
[87] At that time they were running multiple processes in order to deal with the shortage of customs inspectors and the high turnover rate. So they decided that anybody who was found not qualified, since January 1, 2002, not just for Vancouver, but also for Victoria, would not be considered for this process as not enough time would have lapsed for them to upgrade their skills.
[88] Ms. Sharma agreed that the poster should have read candidates who had interviewed since January 1, 2002 and who were unsuccessful were not eligible for this competition. The failure to make this intent clear was an error on her part.
[89] Ms. Sharma was asked whether a Selection Board should consider the past experience and performance reviews of an employee who has already been in the position, she said that it is not something she would advise the Board to do. Because this was also an external process, it would not be appropriate to consider the performance of an internal candidate. An external candidate would not have this advantage. All candidates should be assessed according to the same criteria.
G. The Student Bridging Program [90] Ms. Sharma testified about the Student Bridging Program. It is for students who have worked with CBSA while they completed their studies and have graduated. They are then eligible to be bridged without competition into an indeterminate BSO position.
[91] The process involves an assessment against a statement of merit criteria. The hiring manager determines whether they meet each of the qualifications that have been outlined. The program is administered by the Public Service Commission.
[92] There's no minimum in the bridging program in terms of how many years they have worked. In the Student Bridging Program, the students would be hired seasonally, but some students do stay on during the fall and winter semesters but only work part time.
[93] Between 2000 and 2005, there were less than 10 students who were bridged. Since 2005, the total has increased to about 20 or 30 a year in the Pacific Region.
[94] Ms. Sharma did not consider the Bridging Program to be preferential treatment for persons under the age of 35, but agreed that the majority of students in that program would be under the age of 35.
[95] Ross Fairweather also gave evidence for CBSA on the issue of age discrimination. He is the Acting Senior Policy Advisor for the Arming Division of CBSA and has been employed by that Agency and its predecessor organizations for approximately 30 years.
[96] In 2004, he was an acting chief at the Vancouver International Airport, the traffic side of the International Airport. In that year he was invited to Victoria to speak to some of the CIs and it is alleged that at that time he said if you are under 35 and wanted to pursue a career in Customs come to Vancouver. He said that is not something he would have said. Nor is he aware of any under 35 hiring policy within CBSA or its predecessor organizations.
[97] In fact, Mr. Fairweather said it is the opposite. It's always been his belief and several of his colleagues that some world experience is good for people in this job. They need to have maturity and ability to bring the real world to bear on the decisions they are making about people who travel from other places in the world.
[98] Mr. Fairweather said he thinks it takes a blend. He said CBSA has officers who come in under the bridging program and he has also hired officers who were mature persons who have spent years in other professions. To his knowledge, bridging was not a great source for recruiting officers.
H. Supt. Ron Tarnawski [99] Mr. Tarnawski is a Supt. at the Pacific Highway Truck Crossing located in the Pacific District. He has worked with CCRA/CBSA for about 19 years.
[100] Mr. Tarnawski said that, in the past, each district within the Pacific Region was responsible for its own recruitment and running its own selection and assessment process. There were inconsistencies in the way the processes were being run and there was no experience being transferred from one process to another.
[101] Also they were highly competitive and it was not uncommon for districts to offer positions to employees that the other district had run a selection process for and qualified. They would wait for a pool to be created and then raid the pool.
[102] So it was decided to establish one recruiting unit that would do all the selection processes for the entire Pacific Region. This has evolved into a National Recruiting Centre and a national recruiting process with regional offices throughout the country. As part of this process, recruiting units were set up and a standardized interview process was designed where a candidate would apply online, the application would be screened by people that had experience in screening.
[103] Mr. Tarnawski spoke to the eligibility restriction for Vancouver 1002. He said it was put in because they were seeing the same candidates in selection process after selection process. An overwhelming majority would be found not qualified, only to be back for another interview a short time later in the next selection process. Candidates were not taking the opportunity nor did they have the time to develop the required skills. It was becoming a very difficult issue to manage.
[104] Mr.Tarnawski agreed that the wording of the eligibility restriction was lacking. It should have said candidates who interviewed for the position and were unsuccessful were not eligible for this competition.
[105] Mr. Tarnawski first met Mr. Turner when he was one of four candidates he interviewed for Victoria 7012 on February 13, 2003. The reason for his involvement in the interviews was that Victoria was running this competition and needed guidance from the recruiting unit on how to implement the new national process.
[106] As to applying the eligibility restriction and making sure that candidates were not slipping through the net, Mr. Tarnawski said that it was necessary to physically go through the databases from previous selection processes and compare them against the Vancouver 1002 database. Ms. Sharma and her staff did this and highlighted those persons who had applied to previous competitions within the eligibility period.
[107] Mr. Tarnawski said that as the database was being developed, those comparisons were taking place. Sometimes the comparison may not have been done until sometime into the selection process, depending on when the information was available. Unless a candidate was screened out prior to the interview, eligibility was determined at the interview stage.
[108] Mr. Tarnawski said that this wasn't perfect. The lists of candidates were in the hundreds and the Unit had limited resources to deal with the large volume of candidates.
[109] Mr. Tarnawski said that he did recognize Mr. Turner at the Vancouver 1002 interview as having participated in an earlier competition, but did not specifically recall which one. But he strongly denied the suggestion that he recognized Mr. Turner because he is a black man and because of his size.
[110] Rather, he recalled him as a person with a very outgoing, positive personality and for that reason it was easy to remember him as one of the four persons that he interviewed on February 13, 2003. That is why after his interview, the Board decided to follow up on Mr. Turner's eligibility. Mr. Tarnawski did not recall whether the Board followed up on any other candidate to determine whether they fell within the restriction.
I. How was the Eligibility Restriction Applied? [111] To determine if the eligibility restriction was applied to all candidates for Vancouver 1002, Ms. Sharma was asked to provide a master list of all candidates who had applied for Vancouver 1002 and who had previously been interviewed in other competitions since January 1, 2002. She produced four lists, Vancouver 1002; Victoria 7003; Victoria 7012; and Victoria 1020.
[112] The master lists purported to list all of the applications received for each of these competitions that were prepared at the closing date of the poster when all the applications were received and reflected all of the candidates who applied for the competition. The master list was updated as the recruitment unit went through the process of screening people in, inviting them for testing, interviews, and so on.
[113] The evidence does not disclose the posting and closing dates for Victoria 1020 and whether it was within the restriction. In any case, it does not matter as the data indicates that all of the candidates who applied for Victoria 1020 and Vancouver 1002 failed the CIT and thus would not have been interviewed.
[114] For the other competitions, the master lists indicated as follows. There were 21 candidates who applied for Vancouver 1002. Of these, some also applied for Victoria 7012 or Victoria 7003 or both. Mr. Turner applied in all three.
[115] Of these 21, only two, Laura Keble and Blaine Wiggins initially raised questions about the equal application of the restriction. On review, however, the evidence shows that Ms. Keble applied for Victoria 7012 but was found not qualified on her POC. This did not disqualify her for Vancouver 1002 because she did not proceed to interview. She did qualify for Vancouver 1002.
[116] Blaine Wiggins' status is more problematic. He did not qualify at the interview for Victoria 7012, yet he did proceed to the second interview for Vancouver 1002 but did not qualify at that stage.
[117] There are two possibilities here. Either Mr. Wiggins fell within the restriction and should not have proceeded to interview in Vancouver 1002. The other possibility is that the master list for Mr. Wiggins shows him listed at two different addresses for the two competitions.
[118] The conclusion from this data is that no candidate who was unsuccessful after interview in Victoria 1020, 7012 or 7003 competitions suc