Itty v. Canada Border Services Agency

Itty v. Canada Border Services Agency
Collection
Canadian Human Rights Tribunal
Date
2023-03-31
Neutral citation
2023 CHRT 14
File number(s)
T1817/4712
Decision-maker(s)
Luftig, Olga
Decision type
Decision
Grounds
Age
National or Ethnic Origin
Race
Notes
Further to editing done after the release of the decision, text after paragraphs 333 and 361 were formatted as quotations. The subsequent paragraphs numbers were kept as they were in the original.
Summary:
People who want to work at Canada’s border need to go through a training program with the Canada’s Border Services Agency (CBSA). In 2008, Geevarughese Johnson Itty applied to become a border services officer. Mr. Itty is from India originally but had already lived in Canada for 20 years at the time he applied.
He passed the screening, and the CBSA accepted him to take part in the training program in Rigaud, Quebec. Recruits are assessed throughout the training program. The CBSA asks recruits to leave the program if their assessors do not pass them. Mr. Itty did not qualify after a series of practice simulations. He had to go home and was not offered a job as a border services officer.
Mr. Itty filed a complaint with the Canadian Human Rights Tribunal, saying that he had been discriminated against because of his race, colour and national or ethnic origin. He gave the Tribunal many examples of negative things that had happened during the program which he felt were tied to his accent, skin colour or background. Mr. Itty and the CBSA both brought experts to the Tribunal to share information about how the CBSA evaluated Mr. Itty and others. The CBSA also brought evidence that, in the Greater Toronto Area where Mr. Itty would have worked, people with the same background as him were overrepresented. The Tribunal considered all of the evidence and found that there was no link between the negative experiences Mr. Itty had and his protected characteristics.
Mr. Itty also raised an important issue called “spoliation”. He was not able to show the Tribunal the records of his classmates who had passed the course because the CBSA had already destroyed them. This mattered because he thought he had been marked more harshly. Mr. Itty said that the CBSA had done this on purpose to harm his chances in this complaint. The CBSA said they had destroyed the records as they would with any other file. The Tribunal found that the CBSA should have had better policies and coordination when it came to records and human rights complaints. But this did not mean that it met the legal test for spoliation.
This decision contained some very sensitive information from the CBSA. The Tribunal ordered this information to be kept confidential. So not all of the details that went into the decision are shared publicly.
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2023 CHRT 14
Date:
March 31, 2023
File No.:
T1817/4712
Between:
Geevarughese Johnson Itty
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canada Border Services Agency
Respondent
Decision
Member:
Olga Luftig
Contents
I. OVERVIEW 1
II. DECISION 4
III. PRELIMINARY ISSUES 4
Confidentiality Orders 4
Which part of Section 7 of the Act applies to the Complaint? 5
IV. ISSUES 9
V. LEGAL FRAMEWORK 9
The test for discrimination 9
Credibility 12
The Complainant 13
VI. ANALYSIS 14
Protected Characteristic 14
Did CBSA’s actions adversely impact Mr. Itty in relation to employment? 14
Was one or more of the protected characteristics a factor in CBSA’s treatment of Mr. Itty? 14
Classroom Engagement: 15
Changes to Mr. Itty’s classroom seat assignment 18
The Control and Defensive Tactics Simulation 21
The allegation that the Complainant was assessed more strictly than his classmates during the D-II Behavioural Simulations, and that POERT was flawed 29
Mr. Itty’s D-II Assessments 41
VII. Experts 54
Dr Willis, The Complainant’s Expert 56
Credibility - Dr. Willis 64
Dr. Durand, The Respondent’s Expert 65
Credibility – Dr. Durand 70
Complainant’s Final Feedback Session 70
VIII. CONCLUSION 77
IX. THE EVIDENTIARY ISSUE OF SPOLIATION 78
a) Was the destroyed evidence relevant? 79
b) Was the evidence destroyed intentionally? 80
c) Was litigation contemplated or ongoing at the time the evidence was destroyed? 95
d) Is it reasonable to infer that the evidence was destroyed to affect the outcome of the litigation? 96
X. ORDER 97
Note: This is the public version of this Decision, containing redactions of confidential information. The confidential version of the Decision has been issued to the parties.
I. OVERVIEW [1] Geevarughese Johnson Itty (Complainant or Mr. Itty), alleges that the Respondent, Canada Border Services Agency (Respondent or CBSA), discriminated against him on the grounds of race, colour and national or ethnic origin, contrary to sections 7 and 10 of the Canadian Human Rights Act, R.S.C.1985, c.H-6 (Act or CHRA) in the course of his participation in the CBSA’s Port of Entry Recruit Training program (POERT), which he did not pass.
[2] In 2007, the Complainant, a naturalized Canadian citizen born in India, was employed as an Appeals Officer with the Canada Revenue Agency. Through an interchange program, he applied to the Respondent for the position of Border Services Officer (BSO). He passed the initial screening which was the first part of POERT, and was invited into the nine-week portion of POERT in Rigaud, Quebec as a BSO candidate (also called “recruit” or “trainee”). There were 16 or 17 recruits in the Complainant’s class.
[3] This nine-week part of POERT contains two evaluation stages, called “Determination Points”: Determination Point I (D-I), administered during the fourth week, and Determination Point II (D-II), administered at the end. Candidates must pass both D-I and D-II in order to be placed in the pool of those eligible to be hired as BSOs.
[4] The D-I evaluation consists of two written exams and three exercises which are called “simulations” (Simulations). Simulations are explained in more detail later in the Decision, so for context, briefly, Simulations are live role plays in which the BSO candidate plays a uniformed BSO in a Canadian Port of Entry at a border crossing, and an actor plays a traveller (Traveller) and they interact as they would in either what is called a “primary” interview, primary being the first contact a traveller has with Canada when arriving at a Port of Entry, or “secondary”, which is where a primary BSO refers a traveller for more intensive examination if the primary BSO has concerns or is unsure about either the traveller’s admissibility into Canada or the admissibility of the traveller’s goods. The recruit’s performance in the Simulations in both D-I and D-II are assessed by CBSA personnel, trained as assessors (Assessors). The Assessors make handwritten notes on the Simulation as it unfolds, contained in what this Decision calls “Assessment Forms”.
[5] Each of the D-I Simulations assess seven skills or attributes called “Behavioural, Organizational or Technical Competencies”, which if referred to as a group in this Decision, I call “Behavioural Competencies”: Client Service Orientation; Supporting CBSA Values; Analytical Thinking; Decisiveness; Effective Interactive Communication; Information Seeking Techniques; and Legislation, Policies and Procedures.
[6] During the D-I evaluations, the CBSA also informally assesses and provides feedback to the recruits on Competencies called “Dealing with Difficult Situations” and “Self-Confidence”. These two Competencies are formally evaluated at the end of D-II.
[7] The D-II evaluation consists of another set of two written exams, a Control and Defensive Tactics Simulation which tests if the recruit knows how to use force when required, and three Behavioural Simulations. The Behavioural Simulations in D-II each assess the same Competencies as assessed in D-I, plus Dealing with Difficult Situations and Self-Confidence.
The Complainant’s position
[8] The Complainant passed all the D-I written exams and Simulations. He continued on to the D-II training portion, which included classroom instruction, Control and Defensive Tactics (CDT) instruction, and practice Simulations, and was assessed at the end of D-II. The Complainant passed the D-II written exams and the CDT Simulation but did not pass all the Competencies in the D-II Simulation and was not placed in the pool of potential BSOs. He alleges that his failure, along with certain negative experiences during the POERT program, were tied to his race, colour, and/or national or ethnic origin, which are characteristics protected by the Act.
The Respondent’s position
[9] The Respondent’s position is that the only reason Mr. Itty did not pass the POERT Simulations was that he could not demonstrate the Competencies necessary to be a BSO. CBSA did not treat him differently than any other candidates. There is no evidence, direct or circumstantial, that race, colour, ethnic or national origin played any part in CBSA’s decision not to pass him. The job of Border Services Officer entails a large responsibility to protect the health, safety, security and economy of Canada and its citizens; therefore, CBSA expects BSO candidates to demonstrate specific Competencies.
[10] Mr. Itty filed the Complaint against CBSA with the Canadian Human Rights Commission (Commission) on January 20, 2010.
Overview of spoliation
[11] In the course of its investigation (Investigation), the Commission requested various documents from CBSA, including copies of the Assessors’ handwritten Assessment Forms for all of D-I and D-II Simulations of Mr. Itty’s classmates. As discussed in detail below under “Spoliation”, it transpired that unfortunately, the CBSA had already destroyed the documents before this request. The Commission referred the Complaint to the Tribunal on April 24, 2012.
[12] The Complainant has asked the Tribunal to find that the CBSA deliberately destroyed these documents – that is, that the CBSA engaged in what is called “spoliation” of the documents and that therefore, the Tribunal ought to draw a negative inference against the CBSA that the destroyed documents would have told against the CBSA. I have not found that spoliation occurred, for the reasons set out below. Therefore, I do not make an adverse inference against the Respondent about what those documents may have contained, although I acknowledge that is both unfortunate and frustrating that the parties and the Tribunal did not have access to them during this proceeding.
Approach to the evidence
[13] Pursuant to the Tribunal’s statutory authority in section 50 of the Act, I have carefully considered and weighed all the evidence, including testimony from expert and lay witnesses, and documentary evidence, and the parties’ submissions, but I have not repeated or summarized all of it. I have gone into greater detail where I have found evidence or submissions to be material to the ultimate decision.
II. DECISION
[14] For the reasons which follow, I conclude that the Complaint is not substantiated because the evidence failed to establish on the balance of probabilities that the Complainant’s race, colour, or national or ethnic origin were a factor in his negative experiences at the POERT program and in his final failing assessment. The evidence also failed to establish that POERT was systemically discriminatory, contrary to section 10 of the Act.
[15] Therefore, the Complainant is not entitled to remedies.
III. PRELIMINARY ISSUES Confidentiality Orders [16] Because of the sensitive nature of parts of the evidence surrounding the POERT program, the Tribunal made several orders of confidentiality pursuant to section 52 of the Act before and during the hearing (Confidentiality Orders). In other Rulings, the Tribunal ordered that the Confidentiality Orders applied to certain documents named in those Rulings. The Confidentiality Orders are: Itty v. Canada Border Services Agency, 2013 CHRT 34, dated December 16, 2013 (First Confidentiality Order); Itty v. Canada Border Services Agency, 2015 CHRT 26, dated January 14, 2015, (Second Confidentiality Order), and Itty v. Canada Border Services Agency, 2017 CHRT 26 (Third Confidentiality Order).
[17] There were also confidentiality orders in the following Rulings: all styled Itty v. Canada Border Services Agency: 2015 CHRT 2; 2019 CHRT 31 (2019 Disclosure Order) and 2020 CHRT 38 (Two Letters Ruling).
[18] The Tribunal made oral confidentiality orders at the hearing to apply to unredacted documents it ordered disclosed.
[19] The parties also agreed that the Tribunal would issue two versions of the Decision: one for the parties, containing confidential information as required, and one for the Tribunal’s website, accessible to the public, without confidential information.
Which part of Section 7 of the Act applies to the Complaint? [20] Section 7 of the Act states:
“It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee, on a prohibited ground of discrimination”.
[21] The Complainant’s allegations of discrimination were based on section 7 of the Act, but prior to the commencement of the hearing he had not specified whether the Complaint was pursuant to subsection 7(a) or subsection 7(b) of the Act. The Tribunal understood subsection 7(a) to be the relevant subsection and asked all parties if they agreed.
[22] Both parties agreed that subsection 7(a) applied to the facts at hand. However, the Complainant argued that subsection 7(b) further applied since the Complainant was “…already a Crown employee on an interchange…” from the Canada Revenue Agency (CRA) and all the events at issue occurred during his employment with the CRA. The Respondent disagreed that subsection 7(b) was at issue here since the Complainant was not a Canadian Border Services Agency (CBSA) employee at the time of the alleged discriminatory practice.
[23] The Complainant claims that no matter the specific name of the “departmental corporation” used, whether it is the CRA or the CBSA under Schedule II of the Financial Administration Act, RSC 1985, c.F-11 (Financial Administration Act), the Complaint remained an employee of the Crown at all relevant times. Citing Harkin v. Attorney General (Canada), 2010 CHRT 11 (CanLII) [“Harkin”], the Complainant explains that the Tribunal has refused to make any distinction between “Crown entities” for the purposes of subsections 7(a) and (b), even when those entities are “separate establishments” within the meaning of another section of the Act (Harkin at paras 101-104). The Complainant therefore argues that section 7 of the Act should be read and applied as a whole and that “nothing turns on” making a distinction between subsections 7(a) and 7(b).
[24] The Respondent claims that on the plain reading of section 7, it clearly addresses two different aspects of employment-related discrimination: one with respect to hiring and firing of employees, while the other deals with discrimination during actual or ongoing employment. The Respondent cites Robichaud v. Canada (Treasury Board), 1987 CanLII 73 (SCC), [1987] 2 SCR 84 [Robichaud], where the Supreme Court of Canada interpreted subsection 7(b) as applying to discrimination during ongoing employment, and as aiming to remove discrimination “in the workplace” (Robichaud at para 12). The Tribunal endorsed this interpretation of subsection 7(b) in Cluff v. Sage, 1992 CanLII 20 (CHRT) [Cluff].
[25] In Harkin, the case the Complainant relies on, the Tribunal did not find that the Public Service Staff Relations Board (PSSRB) employees were included in the category of employees subject to a Consent Order involving the Treasury Board (TB). Even though the TB exercised “de facto control over the personnel management of the PSSRB”, the PSSRB remained a separate employer. In Harkin, the Tribunal did not need to draw further distinctions between Crown entities for the purposes of subsection 7b) of the Act since the Complaint had failed based on the Complainant’s inability to provide sufficient evidence to substantiate the Complaint. I do not agree with the contention that the fact the Tribunal did not draw further distinctions between Crown entities in that case equivalates to accepting that they can all fall under the definition of the same employer for the purposes of subsection 7b).
[26] The jurisprudence of this Tribunal has established that the phrase “in the course of employment” found at subsection 7(b) of the Act equivalates to “work-or job-related” (Robichaud at para 12, Cluff at p.9). In Cluff, the Tribunal established that an employee is “in the course of employment” when carrying out activities:
1. which they might normally or reasonably do or have specific authorization to do while employed;
2. “which fairly and reasonably may be said to be incidental to the employment or logically or naturally connected with it”;
3. “in furtherance of duties they owe to their employer”;
4. “in furtherance of duties owed to the employer where the employer is exercising or could exercise control over what the employee does” (see p.10).
[27] In the present case, when considering all the documentary evidence presented, I do not find that the Complainant was “in the course of employment’ at POERT when the alleged discrimination occurred.
[28] There is no dispute that when Mr. Itty applied for the Border Services Officer (BSO) position with the Respondent, he was employed by the Canada Revenue Agency (CRA) as an Appeal’s Officer. In the document tilted, “Assignment/Interchange/Secondment Information”, it is stated, among other things, that Mr. Itty is an Appeals Officer in the “Substantive Government Department” of the CRA. His duties involved, amongst other things, receiving and reviewing taxpayers’ files, including files from the CRA’s audit department.
[29] In a letter dated October 7, 2008, the CBSA informed Mr. Itty that he had been selected for POERT. This same letter advised that he would retain his substantive position with the CRA during the POERT training and that if he was unsuccessful at POERT, he would return to his substantive position. The terms and conditions of his participation in POERT, attached to the letter, included that he would remain subject to the “Terms and Conditions of employment of [his] substantive group…”. Mr. Itty signed and accepted those Terms and Conditions.
[30] Mr. Itty also signed an “Interchange Agreement” with the CRA and the Respondent, CBSA. In it, the parties agreed that Mr. Itty would attend POERT, but that while he was at POERT, the CRA would continue to pay him his salary. The Respondent would reimburse the CRA for those payments. I disagree with the Complainant that the CBSA “indirectly” paid Mr. Itty’s salary when he was at POERT. The fact the CBSA made reimbursements to the CRA does not mean the relationship between the CBSA and Mr. Itty was now one of employer and employee. Rather, the reimbursement was the reflection of a financial arrangement between the CBSA and CRA pursuant to the Interchange Agreement. This was reasonable given the fact the CRA was not benefiting from Mr. Itty’s normal duties as an Appeals Officer during his time at POERT.
[31] The status of Mr. Itty at POERT was one of trainee∕ participant. The POERT program constituted the final stage of his application to become a BSO with the CBSA. Only after participated in and successfully passing the POERT program could he then qualify to become an employee with the CBSA (emphasis added). Mr. Itty also acknowledged in his testimony that his potential employment with the CBSA as a BSO was conditional to him passing the POERT.
[32] When applying the criteria established by the Tribunal in Cluff, none of the evidence adduced established that the activities Mr. Itty engaged in as a participant in POERT were “fairly and reasonably incidental” or “logically or naturally connected to his duties” as an Appeals Officer with the CRA. Additionally, Mr. Itty’s participation at POERT was in no way “in furtherance of his duties” at the CRA. There was no evidence submitted that the CRA did or could control any of Mr. Itty’s actions and activities at POERT.
[33] Mr. Itty was not dealing with taxpayers’ “Notices of Objections” or income tax returns; he was not reviewing their files or researching them, nor was he making decisions on them or writing reports reflecting his analysis and decisions on them. Rather, he was taking part in classroom instruction as a trainee, studying the written course materials, taking written exams and being tested on Simulations, all based on the duties, responsibilities and knowledge required of a BSO, including customs and excise laws; immigration laws; assessing the conduct or travellers and their verbal responses to questions in face-to-face interactions; learning how to physically control and arrest unruly travellers; and learning and demonstrating other aspects of the duties of a BSO.
[34] In sum, I find that the alleged events and behaviour which form the basis of the allegations in Mr. Itty’s Complaint did not occur either directly or indirectly in the course of his employment with the CRA – they occurred while he was a trainee/participant in POERT. At that time, Mr. Itty was not directly or indirectly performing his CRA duties nor doing work related to those duties. I also note in passing that the CRA was never named as a Respondent to this Complaint.
[35] For the above reasons, I conclude that it is subsection 7a) of the Act, rather than subsection 7b), which applies to this Complaint.
IV. ISSUES [36] I must decide the following issues:
1. Has Mr. Itty established that CBSA discriminated against him, contrary to sections 7 and 10 of the CHRA?
More specifically, I must determine:
whether one or more prohibited grounds of discrimination were a factor in CBSA’s decision to fail Mr. Itty from the POERT program, thus eliminating him from the pool of potential BSO employees of CBSA, contrary to subsection 7(a) of the CHRA; and if the CBSA is pursuing a practice or a policy that tends to deprive individuals of any employment opportunities on the prohibited grounds of race, colour and national or ethnic origin, contrary to section 10 of the CHRA.
V. LEGAL FRAMEWORK The test for discrimination [37] For Mr. Itty to establish a prima facie case of discrimination, he must establish on the civil standard of the balance of probabilities that:
he had one or more of the identified characteristics protected against discrimination by the Act at the relevant time, specifically, race, colour and national or ethnic origin; and that CBSA’s actions adversely impacted him in relation to employment contrary to section 7 of the Act, (here, adverse treatment in respect of hiring), and section 10 of the Act (here a discriminatory policy or practice in respect of hiring); and
that one or more of his protected characteristics was a factor in how CBSA treated him.
(Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Centre), 2015 SCC 39 (CanLII) at para 63 [Bombardier] and Moore v. British Columbia (Education), 2012 SCC 61 (CanLII) at para 33).
[38] A protected characteristic need only be one contributing factor in the adverse treatment. It does not have to be a “causal connection”. In other words, the discriminatory act can be explained by a variety of reasons, so long as one of the reasons is discrimination linked to a protected characteristic (Bombardier, supra, at paras 44, 56). In addition, there is no need to establish an intention to discriminate, because discrimination can be unconscious and can be the result of various factors (Bombardier, supra at para 41).
[39] A prima facie case of discrimination has been described as "...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 CanLII 18 (SCC) at para 28).
[40] In deciding whether a Complainant has met its burden of establishing a prima facie case of discrimination on the balance of probabilities, the Respondent can either present evidence to refute the allegation of prima facie discrimination, offer a defence that justifies the discrimination (that is, the bona fide occupational requirement statutory defense pursuant to section 15 of the Act), or it can do both (Bombardier at para 64). In other words, the Respondent can show that discrimination never occurred and ∕or if it did, that there was a defensible legal explanation for it.
[41] In deciding whether the Complainant has successfully met his onus of establishing a prima facie case of discrimination, the Tribunal considers all evidence presented. This includes any evidence of the Respondent attempting to refute the existence of a prima facie case of discrimination. If a complainant has been able to meet their burden that there is a prima face case of discrimination, then the burden of proof transfers to the Respondent who can then put forward a defence justifying the discrimination (Campbell v. Canadian Imperial Bank of Commerce, 2019 CHRT 13 (CanLII) at para 113; White v. Canadian Nuclear Laboratories Ltd., 2020 CHRT 37 (CanLII) at para 41).
[42] Mr. Itty alleges that the Competencies on which the Assessors evaluated his performance in the Simulations, particularly the three Competencies he failed “…are extremely subjective and therefore vulnerable to prejudice and discrimination” (Complainant’s SOP, at para 3). Most of the witnesses agreed that personnel selection in general and behavioural assessment in particular are inherently vulnerable to bias, but the Respondent’s witnesses say that the Assessment Center methodology is designed to minimize the risks of results being tainted by conscious or unconscious bias. The Complainant says that the POERT program deviates from the Assessment Center method in several important ways, such that it does not follow best practices to minimize the risk of bias.
[43] The Complainant specifically cites the following as examples of ways in which the POERT program is systemically discriminatory: Lack of diversity in the assessor pool; inadequate training for assessors (including not enough training of bias, lack of refresher training, lack of evaluation of assessors); failure to ensure inter-rater reliability for visible minorities; and the lack of data on failure/attrition rates for visible minority recruits.
[44] The majority of the submissions made before me at the hearing and in the parties’ closing submissions appeared to focus on section 7 of the Act. However, I found that much of this evidence, in particular the expert evidence and Dr. Ducharme’s evidence, was also relevant to the Complainant’s allegations of systemic discrimination.
[45] Section 10 of the Act addresses discriminatory policies or practices, and states:
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.
[46] In Chopra v. Health Canada, 2008 CHRT 39, at para. 255, the Tribunal quoted the Supreme Court of Canada case Action Travail des Femmes v. CNR, 1987 CanLII 109 (SCC) as defining systemic discrimination in employment as follows:
“Systemic discrimination in an employment context….results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. Systemic discrimination is often unintentional. It results from the application of established practices and policies that, in effect, have a negative impact upon hiring and advancement prospects of a particular group. It is compounded by the attitudes of managers and co-workers who accept stereotyped visions which lead to the firmly held conviction that members of that group are incapable of doing a particular job, even when that conclusion is objectively false…”
Credibility [47] Credibility played an important role in the hearing of this matter. In considering the significant questions of credibility at play in this Complaint, have done my best to follow the guidance of the leading case of Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 357:
Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors combine to produce what is called credibility.…
The test must reasonably subject his [witness’] story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
[48] Deciding if a person is credible or not is not a science and it is not always possible to precisely describe how credibility is assessed.
[49] My conclusions about a witness’s credibility need not be universally applicable to that witness’s testimony: while I may believe someone in some instances, this does not mean I must believe everything they said. Similarly, if I don’t believe some aspects of a witness’s testimony, I am not required to disbelieve all of it. As an adjudicator, I have not given much importance to witness demeanour, as demeanor is often not a sufficient indicator of credibility.
The Complainant [50] In these Reasons, I comment on the credibility of various lay and expert witnesses. At the outset, however, I will begin by commenting on the credibility of the Complainant. It is the Complainant who bears the initial prima facie burden to establish his allegations.
[51] At times when Mr. Itty was asked a question about an exhibit, he would respond by reading verbatim from the exhibit. I noted that he was not tuning in to what his own and Respondent counsel were asking him. At times he appeared to not understand what was being asked (and in certain cases this was understandable), while at other times, it appeared that he was not listening to the question. He was both argumentative and evasive during different parts of his testimony, and at times combative towards counsel.
[52] I find it understandable that a complainant would have a certain amount of frustration, anger and even hostility towards a respondent who the complainant feels has treated him unfairly by discriminating against him. However, when Mr. Itty became evasive in answering certain questions and argumentative about legal points during his testimony, it weakened the credibility of those parts of his testimony. For example, it was undisputed that Mr. Itty passed D-II Simulation 6, assessed by Gregory Zbitnoff. However, for a period in his testimony, he refused to acknowledge that fact, saying he did not know what happened in the Integration Meeting of the Assessors after the Simulations were completed. He finally admitted that he passed Simulation 6. This kind of sparring with counsel on an obvious, undisputed fact did not support Mr. Itty’s credibility. I formed the impression that although Mr. Itty honestly believed his allegations, his viewpoint and testimony on certain alleged incidents was not reliable. I wish to note that in assessing Mr. Itty’s credibility, I have not given much importance to his demeanour, as demeanor by itself is often not a sufficient indicator of credibility or reliability of testimony.
[53] The Respondent says that Mr. Itty was not credible, and provided many examples. Some, I agree with and have noted above. Others, which relate to matters which might better be described as litigation strategy, I disregard entirely. In summary, I accepted parts of his testimony and did not accept other parts. In the Decision, I say which parts I did not accept, and why.
VI. ANALYSIS Protected Characteristic [54] There was no dispute that the Complainant was born in India or that he is South Asian. There was also no dispute when he described himself as “not Caucasian”—that is, not white. Therefore, I find that the Complainant has the following characteristics protected by section 3(1) of the Act: race, colour, and national or ethnic origin.
Did CBSA’s actions adversely impact Mr. Itty in relation to employment? [55] There was also no dispute that Mr. Itty failed the POERT program and consequently was not placed into the qualified pool for employment as a BSO. This was an adverse impact on him within the meaning of the Moore test.
[56] In addition to failing the POERT program, Mr. Itty alleged a series of discriminatory events and behaviour by CBSA personnel that had adverse impacts on him throughout his time at POERT in Rigaud. I will address them in turn in the following section.
Was one or more of the protected characteristics a factor in CBSA’s treatment of Mr. Itty? [57] This was the most disputed area of the Complaint. The Complainant made a series of allegations that certain behaviours by CBSA personnel constituted discriminatory practices pursuant to subsection 7(a) of the Act.
[58] Specifically, the Complainant alleged that:
Many times in the classroom, Instructor Jean-Pierre Landry ignored the Complainant’s questions while answering those of others who asked many more questions; his classroom seat assignment was changed three times while some other recruits experienced no seat changes; he had to play the Traveller role twice in the D-II CDT Simulations while other recruits only had to play the Traveler once, if at all, thereby negatively impacting his Behavioural Simulations and that CBSA did this intentionally so that he would fail in his D-II Behavioural Simulations, which followed the CDT Simulations; he was assessed more strictly than his classmates in the D-II Behavioural Simulations; and, CBSA personnel humiliated and insulted him during his Final Feedback, barred him from taking notes and did not give him reasons for his failure from POERT.
[59] Further, under s.10, he alleged that the POERT program itself had several failings in its design and execution which led to the outcomes he experienced. The evidence on his personal experience and the allegations of broader systemic issues was highly intertwined; and as such I am dealing with them together to avoid repeating evidence.
[60] I will proceed through each allegation as it was presented:
Classroom Engagement: [61] Mr. Landry was the lead Facilitator/Instructor (Instructor) for Mr. Itty’s class, and taught Customs and Secondary Baggage Examination and other subjects. He was also the co-ordinator for Mr. Itty’s class.
[62] Mr. Itty testified that there were 16 candidates (recruits) in his class. The Instructor was at the front and wrote on a board. Each recruit had a module of the training materials. The training required group exercises after each module; the Facilitator formed smaller groups of four or five recruits, who would go up to the board. If recruits had clarification questions, the Facilitator would answer them.
[63] In terms of the number of questions asked per day in Mr. Landry’s class, Mr. Itty alleged that another recruit would have asked 10 to 15 questions and Mr. Itty would have asked 6 or 7. Mr. Itty alleged that Instructor Landry answered all of the other recruit’s questions, but at the most, only answered one or two of Mr. Itty’s questions, although Mr. Itty did not remember Mr. Landry answering any of his own questions, particularly when he taught Customs penalties on the computer program dealing with that. Some recruits, including Mr. Itty, had difficulty navigating between the screens, and Mr. Landry was walking around the room. When Mr. Itty raised his hand to ask for help, Mr. Landry would just look at him and walk away. The candidates in the class with some BSO experience helped Mr. Itty.
[64] The Respondent denies that this was the case. Mr. Landry testified that he did not recall doing so. The Respondent argues that even if Mr. Landry did refuse to answer some of Mr. Itty’s questions in class, he treated other recruits the same way to keep lessons on track. Mr. Landry testified that he offered to answer students’ questions at lunch or during breaks or after class if they required more time to discuss their questions and told them to write their questions on what was called the “parking lot blackboard” which was in the classroom. He would then answer those questions later.
[65] In December of 2008, recruits were given an opportunity to assess their Facilitators. Mr. Itty wrote in his assessment that Mr. Landry “stated that all of us should ask questions but on several instances he appeared unresponsive, maybe he didn’t pay attention”. However, Mr. Itty also noted that Mr. Landry was approachable and available for individual questions. Mr. Itty further noted that Mr. Landry was sensitive and respectful of diverse opinions “to a certain extent”, offered constructive feedback, remained on topic, and ensured teaching objectives were met. When asked to identify the instructor’s weaknesses the only thing Mr. Itty noted at the time was that he “[f]ailed to provide live examples and failed to relate life experiences on the job.” In reviewing these assessments from the class as a whole, the Tribunal notes that several other recruits in Mr. Itty’s class wrote that Mr. Landry was very good at keeping lessons on track, and that he did not let questions that were off topic take up too much classroom time.
[66] Mr. Landry testified that in class, he recalled Mr. Itty asking him a question twice. Mr. Landry had told the class that he had to write something on the board and he would not be answering questions then. Mr. Itty asked him the questions while Mr. Landry was writing on the board. Mr. Landry noted that at the end of every lesson he covered, he would tell the class that they could ask questions at the break or during lunch, Mr. Landry testified he had a “vivid” recollection of the incident with Mr. Itty because he had never had a recruit ask him a question when he was writing something on the board and not approach him afterwards to ask clarifying questions, except for Mr. Itty. Mr. Landry testified that he may have needed to cover new material at that time. Mr. Landry acknowledged that if he was in that kind of situation again, perhaps he might do it differently. Mr. Landry remembered AM’s name, but did not remember ignoring Mr. Itty and answering all of AM’s questions, nor did he remember not helping Mr. Itty on the computer, and he noted that sometimes recruits help each other.
[67] I find that Mr. Itty truly believed that Mr. Landry ignored his questions, and I accept that Mr. Itty thought Mr. Landry should have answered them, and his comments about Mr. Landry in his Assessment of the Facilitator form confirm that Mr. Itty believed this. However, I do not accept that Mr. Landry ignored all of Mr. Itty’s questions.
[68] The evidence also failed to establish that Mr. Landry ignored Mr. Itty’s questions or requests for assistance more than anyone else’s. But even if Mr. Landry did so, the evidence did not establish that any failure to answer Mr. Itty’s questions with the same frequency as those of his classmates was linked to Mr. Itty’s protected characteristics. Further, Mr. Landry testified th