Tazehkand v. Bank of Canada

Tazehkand v. Bank of Canada
Court (s) Database
Federal Court Decisions
Date
2020-12-30
Neutral citation
2020 FC 1193
File numbers
T-816-19
Notes
A correction was made on April 12, 2021
Decision Content
Date: 20201230
Docket: T-816-19
Citation: 2020 FC 1193
Ottawa, Ontario, December 30, 2020
PRESENT: The Honourable Mr. Justice Brown
BETWEEN:
HESAMEDDIN ABBASPOUR TAZEHKAND
Applicant
and
BANK OF CANADA
Respondent
JUDGMENT AND REASONS
[1] This is an application for judicial review of a decision by the Canadian Human Rights Commission [Commission] which dismissed the Applicant’s complaint that the Bank of Canada [Bank] refused to interview him due to discrimination based on race, national or ethnic origin [Complaint]. The Commission decided to dismiss the Complaint [Decision] based on an Investigation Report [Report] prepared by an Investigator of the Commission who recommended the Commission dismiss the Complaint. The Decision was made under subparagraph 44(3)(b)(i) of the Canadian Human Rights Act, RSC 1985, c H-6 [Act].
I. Facts
[2] The Applicant obtained a Master’s in Mathematics in 2007 and a PhD in Mathematics in 2012. He obtained a Master’s in Public and International Affairs in 2015.
[3] On October 9, 2016, he applied for a position as Analyst (Master’s Degree, Recent Graduates) [Position] at the Bank. Among other “key requirements”, the job posting [Posting] stated the Position required “education: Master’s degree in finance or a Master’s degree in a related subject such as: economics, computer science, mathematics, statistics, business administration (MBA)” obtained between 2015 and 2017.
[4] On November 23, 2016, the Applicant contacted the Bank regarding the status of his application. The Bank responded on December 5, 2016 saying the Applicant was not successful because other candidates had “extensive experience”. The Applicant emailed the Bank again saying the Position was aimed at recent graduates only, so “experience can’t have been the deciding factor”. The Respondent responded again saying other candidates “showcased extracurricular activities and strong grades”.
[5] Wishing more information as to why his application was unsuccessful, on December 9, 2016, the Applicant emailed the Bank’s Chief Operating Officer for further clarification. This time, on December 15, 2016, a senior employee of the Bank, the Director, Recruitment and Global Mobility [Director] contacted the Applicant. She advised him, among other things, “[his] academic background, although extensive, did not have the particular relevancy that the Financial Sector Departments were looking for this year”. The Applicant disagreed with this assessment and stated he had engaged in relevant course work in the past; this was set out in his email reply of December 20, 2016.
[6] On December 22, 2016, the Director arranged for a “blind review” process to validate that the initial assessment was fair. The Applicant’s name and all identifying characteristics were removed from his application, which was then distributed to managers not involved in the initial screening. This “blind review” confirmed the results of the initial assessment, particularly noting the Applicant did not have a Master’s degree in an area specific to economics and he had not written a thesis in a topic of relevance to monetary policy, as had other applicants. I note the Applicant was not aware of this “blind review” until after the application for judicial review was filed in this Court.
[7] On January 5, 2017, the Director sent a further email to the Applicant advising he did not have the relevant thesis work to show he had a sufficient background on monetary policy. The Applicant responded on January 5, 2017 asserting he did have the relevant education in monetary policy, he further stated: “[y]our explanation is very unconvincing, I still think I am being unfairly treated in this matter”.
II. Decision under review
[8] On October 5, 2017, the Applicant filed his Complaint with the Commission under section 7 of the Act, alleging that the Bank refused to employ him based on race, national or ethnic origin. The Act provides:
Employment
Emploi
7 It is a discriminatory practice, directly or indirectly,
7 Constitue un acte discriminatoire, s’il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects:
(a) to refuse to employ or continue to employ any individual, or
a) de refuser d’employer ou de continuer d’employer un individu;
(b) in the course of employment, to differentiate adversely in relation to an employee,
b) de le défavoriser en cours d’emploi.
on a prohibited ground of discrimination
BLANK
Prohibited grounds of discrimination
Motifs de distinction illicite
3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
3 (1) Pour l’application de la présente loi, les motifs de distinction illicite sont ceux qui sont fondés sur la race, l’origine nationale ou ethnique, la couleur, la religion, l’âge, le sexe, l’orientation sexuelle, l’identité ou l’expression de genre, l’état matrimonial, la situation de famille, les caractéristiques génétiques, l’état de personne graciée ou la déficience.
[9] The Bank was asked to respond to the Complaint, which the Bank did by letter dated April 24, 2018. On August 8, 2018, the Applicant filed a response letter to the Bank’s submissions.
[10] The Investigator reviewed the positions of the parties and issued a Report dated December 21, 2018.
[11] The Report found the Applicant not qualified for the Position.
[12] The Report also concluded the Applicant’s failure to obtain the Position was not linked to race, national or ethnic origin.
[13] Pursuant to subparagraph 44(3)(b)(i) of the Act, the Report recommended the Complaint be dismissed:
Report
Rapport
44 (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation.
44 (1) L’enquêteur présente son rapport à la Commission le plus tôt possible après la fin de l’enquête.
(3) On receipt of a report referred to in subsection (1), the Commission
(3) Sur réception du rapport d’enquête prévu au paragraphe (1), la Commission :
(b) shall dismiss the complaint to which the report relates if it is satisfied
b) rejette la plainte, si elle est convaincue :
(i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or
(i) soit que, compte tenu des circonstances relatives à la plainte, l’examen de celle-ci n’est pas justifié,
(ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e).
(ii) soit que la plainte doit être rejetée pour l’un des motifs énoncés aux alinéas 41c) à e).
Commission to deal with complaint
Irrecevabilité
41 (1) Subject to section 40, the Commission shall deal with any complaint filed with it unless in respect of that complaint it appears to the Commission that
41 (1) Sous réserve de l’article 40, la Commission statue sur toute plainte dont elle est saisie à moins qu’elle estime celle-ci irrecevable pour un des motifs suivants :
(a) the alleged victim of the discriminatory practice to which the complaint relates ought to exhaust grievance or review procedures otherwise reasonably available;
a) la victime présumée de l’acte discriminatoire devrait épuiser d’abord les recours internes ou les procédures d’appel ou de règlement des griefs qui lui sont normalement ouverts;
(b) the complaint is one that could more appropriately be dealt with, initially or completely, according to a procedure provided for under an Act of Parliament other than this Act;
b) la plainte pourrait avantageusement être instruite, dans un premier temps ou à toutes les étapes, selon des procédures prévues par une autre loi fédérale;
(c) the complaint is beyond the jurisdiction of the Commission;
c) la plainte n’est pas de sa compétence;
(d) the complaint is trivial, frivolous, vexatious or made in bad faith; or
d) la plainte est frivole, vexatoire ou entachée de mauvaise foi;
(e) the complaint is based on acts or omissions the last of which occurred more than one year, or such longer period of time as the Commission considers appropriate in the circumstances, before receipt of the complaint.
e) la plainte a été déposée après l’expiration d’un délai d’un an après le dernier des faits sur lesquels elle est fondée, ou de tout délai supérieur que la Commission estime indiqué dans les circonstances.
[14] The Report was sent to both parties for comment. The Applicant responded to the Report on January 18, 2019. The Respondent did not make further submissions. The Report and the Applicant’s response were sent to the Commission to decide what should happen next: if the Complaint should be dismissed, sent to the Canadian Human Rights Tribunal [Tribunal], or otherwise.
[15] On March 27, 2019, the Commission rendered its Decision and accepted the Report’s recommendation to dismiss the Complaint.
[16] The Commission determined the Applicant had “not provided any other evidence to support his claim that the failure to interview or hire him was based on his race or national or ethnic origin.”
[17] The Commission also found the Applicant did not possess the essential requirements for the Position.
[18] The Decision stated:
The Commission agrees with the recommendation to dismiss the complaint.
In his post-disclosure submissions, the Complainant has provided information to correct what he perceives to be errors in the Investigation Report. Despite these perceived errors, it is clear that the complainant did not possess the essential qualifications of the position advertised. The Respondent required a successful candidate to have obtained a Master’s degree in one of an enumerated list of subjects between 2015 and 2017. The Complainant had obtained a Ph.D. in Mathematics, one of the enumerated subjects, in 2012, which was outside of the timeframe identified by the Respondent. As such, the Complainant did not possess the essential qualifications of the position. The Complainant has not provided any other evidence to support his claim that the failure to interview or hire him was based on his race or national or ethnic origin.
III. Issues
[19] The issues are as follows:
Did the Commission breach principles of natural justice and/or procedural fairness?
Is the Decision reasonable?
IV. Standard of Review
A. Principles of natural justice and/or procedural fairness
[20] The first issue raises an issue of procedural fairness. In my respectful view, questions of procedural fairness are reviewed on the correctness standard: Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, per Binnie J at para 43. That said, I wish to note that in Bergeron v Canada (Attorney General), 2015 FCA 160, per Stratas JA at para 69, the Federal Court of Appeal says a correctness review may need to take place in “a manner ‘respectful of the [decision-maker’s] choices’ with ‘a degree of deference’: Re:Sound v Fitness Industry Council of Canada, 2014 FCA 48, 455 N.R. 87 at paragraph 42.” But, see Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [Rennie JA]. See also, Al-Haddad v. Canada (Citizenship and Immigration), 2019 FC 274 at paras 10-11 and Ibid v. Canada (Immigration, Refugees and Citizenship), 2019 FC 359 at paras 39-40. The Supreme Court of Canada’s teaching in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 23 also indicate the standard of review for procedural fairness is correctness:
[23] Where a court reviews the merits of an administrative decision (i.e., judicial review of an administrative decisions other than a review related to a breach of natural justice and/or the duty of procedural fairness), the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law. The starting point for the analysis is a presumption that the legislature intended the standard of review to be reasonableness.
[21] In Dunsmuir v New Brunswick, 2008 SCC 9 at para 50, the Supreme Court of Canada explains what is required of a court reviewing on the correctness standard of review:
[50] When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.
B. Reasonableness
[22] The second issue raises an issue of reasonableness. With regard to reasonableness, in Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, Justice Rowe stated that Vavilov sets out a revised framework for determining the applicable standard of review for administrative decisions. The starting point is a presumption that a standard of reasonableness applies. This presumption may be rebutted in certain situations, none of which apply to the second issue. Therefore the second issue is reviewable on the standard of reasonableness.
[23] In Canada Post, Justice Rowe explains what is required for a reasonable decision, and what is required of a court reviewing on the reasonableness standard:
[31] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).
[32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).
[33] Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on ... are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
[Emphasis added]
[24] In the words of the Supreme Court of Canada in Vavilov, the reviewing court must be satisfied the decision-maker’s reasoning “adds up”:
[104] Similarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. This is not an invitation to hold administrative decision makers to the formalistic constraints and standards of academic logicians. However, a reviewing court must ultimately be satisfied that the decision maker’s reasoning “adds up”.
[105] In addition to the need for internally coherent reasoning, a decision, to be reasonable, must be justified in relation to the constellation of law and facts that are relevant to the decision: Dunsmuir, at para. 47; Catalyst, at para. 13; Nor-Man Regional Health Authority, at para. 6. Elements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers.
[Emphasis added]
[25] The Supreme Court of Canada in Vavilov at para 86 states, “it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision-maker to those to whom the decision applies.”
[26] Vavilov also confirms that decision makers may assess and evaluate the evidence before them, and that, “absent exceptional circumstances”, a reviewing court will not interfere with factual findings. Vavilov instructs that the reviewing court “must refrain” from reweighing and reassessing the evidence considered by the decision maker:
[125] It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen, at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.
[126] That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir, para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam, at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48. Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: para. 48.
[Emphasis added]
V. Analysis
[27] As a preliminary issue, the Bank objects to the admissibility of Exhibit “I” of the Applicant’s affidavit - a report from the Office of the Privacy Commissioner [Privacy Commissioner]. This information was not before the Commission when it made its Decision. The Bank submitted that a Court on judicial review must rely solely on the evidence before the decision-maker, and that none of the exceptions to this general rule apply in this case. The Bank requested that the Court not admit or consider the information contained in Exhibit “I”.
[28] The Applicant argues the Privacy Commissioner’s report should be admitted because it illustrates the Bank’s poor conduct towards him and shows the Bank made the Applicant go to the Privacy Commissioner to get information rather than offering him the information requested. In addition, the Applicant says the Privacy Commissioner sided with him regarding the Bank’s conduct.
[29] With respect, I am not persuaded to admit Exhibit “I”. It is new evidence, that is, evidence which neither the Investigator nor the Commission had before them. In Davidson v Canada (Attorney General), 2019 FC 997 [Davidson], a judicial review of the same Commission’s decision pursuant to subparagraph 44(3)(b)(i) of the Act, the applicant submitted a number of documents obtained under the Privacy Act, RSC 1985, c P-21 [Privacy Act]. At para 52, I ruled these documents were not admissible because they were neither before the Investigator nor the Commissioner and met none of the exceptions to the rule that judicial review is a review of what was before the decision-maker, and generally speaking, nothing else. This rule is set out in Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency, 2012 FCA 22, per Stratas JA [Association of Universities].
[30] I made such ruling at the hearing in the case at bar, stating (edited for grammar, case citations, quotations and content):
1. The Applicant has requested the Court undertake a review of a document, two pages in length, issued by the Privacy Commissioner [Document]. The essence of the Applicant’s position is that the Document illustrates behaviour on the part of the Bank that informs the Court’s review of the actual decision under review. He submits that as part of his judicial review he is entitled to assess the conduct of the Respondent in another proceeding to assess the reasonableness of his application for judicial review of the Commission’s Decision. I am not satisfied that it is necessary or desirable for the Court to undertake reviews of other decision-makers in such an inquiry.
2. The Applicant concedes the Document was released after he filed his application for judicial review in this case. It is common ground the Document was not before the Investigator or the Commission in connection with the Decision under review.
3. It is well known, although perhaps not to the Applicant who is self represented, that judicial review entails a review of only the documents before the decision-maker, and the decision in issue. Other documents may be admissible on judicial review, but only if they satisfy conditions set out by law. I rely in this connection on Association of Universities, per Stratas JA:
[20] There are a few recognized exceptions to the general rule against this Court receiving evidence in an application for judicial review, and the list of exceptions may not be closed. These exceptions exist only in situations where the receipt of evidence by this Court is not inconsistent with the differing roles of the judicial review court and the administrative decision-maker (described in paragraphs 17-18, above). In fact, many of these exceptions tend to facilitate or advance the role of the judicial review court without offending the role of the administrative decision-maker. Three such exceptions are as follows:
(a) Sometimes this Court will receive an affidavit that provides general background in circumstances where that information might assist it in understanding the issues relevant to the judicial review: see, e.g., Estate of Corinne Kelley v. Canada, 2011 FC 1335 at paragraphs 26-27; Armstrong v. Canada (Attorney General), 2005 FC 1013 at paragraphs 39-40; Chopra v. Canada (Treasury Board) (1999), 1999 CanLII 8044 (FC), 168 F.T.R. 273 at paragraph 9. Care must be taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision-maker, invading the role of the latter as fact-finder and merits-decider. In this case, the applicants invoke this exception for much of the Juliano affidavit.
(b) Sometimes affidavits are necessary to bring to the attention of the judicial review court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker, so that the judicial review court can fulfil its role of reviewing for procedural unfairness: e.g, Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980) 1980 CanLII 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). For example, if it were discovered that one of the parties was bribing an administrative decision-maker, evidence of the bribe could be placed before this Court in support of a bias argument.
(c) Sometimes an affidavit is received on judicial review in order to highlight the complete absence of evidence before the administrative decision-maker when it made a particular finding: Keeprite, supra.
4. In my respectful submission, although there are exceptions, none of them are applicable to the Applicant’s request. I note the request is not made by notice of motion, however I waive that because the Document in question was filed in the Applicant’s Record by way of inclusion of the material and because the Respondent has had an opportunity to respond to it, where it took issue of the inclusion of Exhibit “I” of the Applicant’s affidavit. Both parties have had an ability to discuss this matter before me in writing and to amplify their views in oral submissions at the hearing.
5. My decision is that this Document is not admissible and should not have been included in the Applicant’s Record and therefore I will disregard it in coming to my decision.
A. Principles of Natural Justice and Procedural Fairness
[31] The Applicant submits the Commission erred in determining the Applicant did not possess the essential qualifications of the Position, namely obtaining a Master’s degree in one of the “enumerated list of subjects” between 2015 and 2017. A “key requirement” of the Position was a “Master’s degree in finance or a Master’s degree in a related subject such as: economics, computer science, mathematics, statistics, business administration (MBA)”.
[32] The Applicant submits that the phrase “such as” is illustrative rather than exhaustive and the Posting does not have an “enumerated list of subjects”. I agree the words “enumerated list of subjects” is used by the Commission. While I agree with the Applicant that the list is illustrative, it is not open-ended. Any acceptable degree must be in a “related subject” to a Master’s degree in Finance. That is the plain reading of the whole sentence. Therefore, the listed degrees are illustrations of degrees the Bank considered related to a Master’s in Finance. In my view, nothing material turns on the Commission’s use of its word “enumerated.” Moreover, no procedural unfairness results from that word choice when the Decision is read as a whole as it must be.
[33] The Applicant also argued the Bank “is taking the rather bizarre position that a Master’s degree in computer science is more relevant to the advertised Analyst position than a Master’s degree from the University of Ottawa’s Graduate School of Public and International Affairs (GSPIA)”. I note the Applicant has a Master’s in Public and International Affairs.
[34] The Posting was part of the record before the Commission; the Applicant submits the Commission incorrectly interpreted the Posting, which, he says, shows the Commission did not consider the record before it when issuing the Decision. This is the basis of his procedural fairness argument.
[35] With respect there is no merit to the Applicant’s procedural fairness argument on the record in this case.
[36] I agree the duty of fairness requires that the process followed by the Commission to determine whether further inquiry is warranted must be fair, neutral and thorough: see for example Desgranges v Canada (Administrative Tribunals Support Services), 2020 FC 315 [Desgranges], where Justice Kane states at paras 29 and 30:
[29] As noted in Desgranges 1, the role of the Commission is to determine whether the complaint should be forwarded to the Tribunal (Cooper v Canada (Human Rights Commission), 1996 CanLII 152 (SCC), [1996] 3 SCR 854 [Cooper]; Slattery v Canada (Human Rights Commission), 1994 CanLII 3463 (FC), [1994] 2 FC 574 at paras 14-15, 46 ACWS (3d) 923, aff’d [1996] FCJ No 385 (CA), 62 ACWS (3d) 761 [Slattery]; Sketchley v Canada (Attorney General), 2005 FCA 404 at paras 37-38, 144 ACWS (3d) 509). The Commission performs a screening function, not an adjudicative function.
[30] In Georgoulas, the Court provided an overview and summarised the relevant principles from the jurisprudence (including Hughes v Canada (Attorney General), 2010 FC 837 at paras 30-34, 323 DLR (4th) 699 [Hughes]; Cooper; Slattery; Sketchley; Bergeron v Canada (Attorney General), 2015 FCA 160, 474 NR 366; and, Ritchie v Canada (Attorney General), 2017 FCA 114, 19 Admin LR (6th) 177), all of which apply equally in the present case. At para 87 of Georgoulas, the Court noted:
87 To summarize the relevant principles from the jurisprudence which have been applied in the present case:
• The role of the Commission is not adjudicative, rather the Commission’s role is to decide if an inquiry into the complaint is warranted. The Commission’s role is to assess the “sufficiency of the evidence before it” − in other words, it plays a screening role
• The Commission has broad discretion to determine whether further inquiry is warranted in the circumstances;
• The duty of procedural fairness requires that the process followed by the Commission to determine whether further inquiry is warranted must be fair, neutral and thorough;
• In assessing the thoroughness of the investigation, deference is owed to the decision‑maker to assess the probative value of evidence and to decide whether to further investigate. Only fundamental issues need to be investigated; the Investigator need not refer to everything;
• The Commission has considerable latitude in the way that it conducts its investigations; and,
• An investigation into a human rights complaint cannot be held to a standard of perfection.
[Emphasis added]
[37] However, the Decision and Report show the Commission did thoroughly consider the record. The Court is not simply reviewing the short Decision of the Commission; it is doing that of course, but it is also reviewing the underlying Report, which, in a case like this, together with the Decision constitutes the decision under review. The two are reviewed together not in isolation: see Sketchley v Canada (Attorney General), 2005 FCA 404 [Linden JA] at para 37; Piché v. Canada (Attorney General), 2008 FCA 356 [Létourneau JA] at para 14; Asghar v. Rogers Communications Inc., 2020 FC 951 [Diner J] at para 17; and O’Grady v Bell Canada, 2012 FC 1448 [Kane J] at para 12.
[38] The Report and Decision confirms the Investigator did in fact thoroughly consider the Applicant’s submissions. Indeed a great deal of the Report is gathered from the submissions of the Applicant when he made his Complaint and in his submissions replying to the Bank’s response to the Investigator’s request for input on the Complaint. The Report, for example, at paragraphs 35 and 36 quotes from material filed by the Applicant. In addition, paragraphs 37 and 38 of the Report are based on submissions made by the Applicant and the Bank, the Posting and the Applicant’s application for the Position:
Documentary evidence
Key Requirements for Recent Graduate Analyst position
35. The job posting indicated that applicants needed to have graduated “(sic) between January 2015 and December 2017.
36. The additional key requirements for the position were as follows:
Education: Master’s degree in finance or Master’s degree in a related subject such as: economics, computer science, mathematics, statistics, business administration (MBA)
Language skills: English or French essential
Communication skills: excellent interpersonal skills and ability to clearly communicate information and ideas adapted to the target audience, using clear and compelling written and oral communications
Learning and development: ability to motivate yourself and demonstrate commitment to continuous learning and self development
Teamwork and collaboration: ability to develop positive working relationships by supporting team decisions, addressing conflicts and promoting cooperation and partnerships
Planning and organizing skills: ability to organize work effectively, setting priorities to ensure follow through and project completion in a timely manner and under tight deadlines
Innovation: capacity to create new insights, devise novel approaches and make innovative decisions
Research skills: ability to initiate and undertake in depth research projects
Analytical and technical skills:
● ability to analyze complex economic and financial issues, diagnose multidimensional problems and devise appropriate responses or strategies
● demonstrated interest in policy issues related to financial stability
● knowledge of policy issues related to financial systems, including key regulatory reforms under way
● ability to integrate specialized and complex areas of expertise, e.g., financial market analysis, economic analysis and regulatory issues analysis
Fields of study: courses in one or more of the following areas:
● macroeconomics
● microeconomics
● econometrics
● quantitative analysis
● finance
Analysis and Conclusion
37. The table below compares the essential qualifications of the Recent Graduate Analyst position and the complainant’s qualifications as demonstrated in the documents he provided to the respondent in his application package: Cover letter, resume, and Master of Arts Public and international Affairs 2015 transcript.
Key Requirements for the Recent Graduate Analyst Position
The complainant’s qualifications
Education: Master’s degree obtained between January 2015 and December 2017 in Finance or in one of the following related fields:
● Economics,
● Computer Science,
● Mathematics,
● Statistics,
● Business Administration
Master of Arts and Public and International Affairs obtained in 2015.
A Ph.D. in mathematics was obtained in 2012.
An M.SC. in Mathematics was obtained in 2007.
Language skills: English or French essential
Application submitted in English
Communication skills: excellent interpersonal skills and ability to clearly communicate information and ideas adapted to the target audience, using clear and compelling written and oral communications
Writing technical skills of composing briefing notes and writing memoranda (which)… requires that one decide what the critical and relevant information is, then one has to possess a writing style that can communicate a potentially large amount of information succinctly.
Learning and development: ability to motivate yourself and demonstrate commitment to continuous learning and self development
Not articulated in application
Teamwork and collaboration: ability to develop positive working relationships by supporting team decisions, addressing conflicts and promoting cooperation and partnerships
Not articulated in application
Planning and organizing skills: ability to organize work effectively, setting priorities to ensure follow through and project completion in a timely manner and under tight deadlines
Not articulated in application
Innovation: capacity to create new insights, devise novel approaches and make innovative decisions
Not articulated in application
Research skills: ability to initiate and undertake in depth research projects
Research positions as a policy analyst” (sic) including a study of Brazil's Africa policy over a period of 50 years. “I have skills which will be most useful in any research and that is to break the original problem into smaller and manageable parts. This also helps to more effectively plan and manage resources dedicated to complex projects.”
Analytical and technical skills:
● ability to analyze complex economic and financial issues, diagnose multidimensional problems and devise appropriate responses or strategies
● demonstrated interest in policy issues related to financial stability
● knowledge of policy issues related to financial systems, including key regulatory reforms under way
● ability to integrate specialized and complex areas of expertise, e.g., financial market analysis, economic analysis and regulatory issues analysis
Acquired through “background in Mathematics” and “it provides a certain clarity and a deliberate direction which in turn helps build a systematic approach to problem solving”.
“Able to use my mathematical knowledge to translate the quantitative results for those working in the policy world.” Previous work experience included various research assignments in an academic and / or private business environment in various fields ranging from financial and administrative data, foreign policy, and data reporting.
Fields of study: courses in one or more of the following areas:
● Macroeconomics
● Microeconomics
● Econometrics
● Quantitative Analysis Finance
The complainant states he was exempted from the following courses:
● Macroeconomic
● Microeconomics for Public Policy
The complainant did not have the other three required courses on his 2015 course transcript.
38. Based on the information above and the evidence gathered during the investigation process it appears that the complainant's lack of many of the essential qualifications required, and his failure to provide evidence in his resume and covering letter of any academic focus on, or experience in matters relating to monetary policy, or to the stability of the financial system were the sole reasons for his lack of success.
[39] In conclusion, the Investigator found:
Summary
39. Based on the evidence gathered the complainant was not qualified for the advertised position and his failure to obtain the position is not linked to his race or national or ethnic origin.
[40] Furthermore, the Decision states the Applicant “provided information to correct what he perceives to be errors in the [Report]. Despite these perceived errors, it is clear the [Applicant] did not possess the essential qualifications of the position advertised”. This further establishes the Commission thoroughly considered the evidence in the Applicant’s submissions including the Bank’s explanations for rejecting his application, the perceived discrepancies in the Posting, statistics regarding the immigration status of other applicants of the Position, and the perceived mistakes of the Report. The Commission concluded these submissions did not amount to evidence that could support the Applicant’s claim that the failure to interview him was based on his race, national or ethnic origin.
[41] I understand the Applicant disagrees with the findings of the Commission and the Report, but disagreement with a result. That is not a procedural fairness argument.
[42] With respect, and given the above, there is no basis for his argument that the Commission did not thoroughly consider the record.
[43] The Applicant raised another basis for his argument that the Decision is unfair, namely that the Commission erred in stating the Applicant had “not provided any other evidence to support his claim that the failure to interview or hire him was based on his race, national or ethnic origin”. He argues he did provide sufficient evidence to the Commission.
[44] For the reasons just outlined, these submissions do not form the basis of a procedural fairness argument. The Applicant confuses his disagreement with findings by the Commission and the Investigator, with procedural unfairness.
[45] In summary, there is no merit to the Applicant’s procedural unfairness arguments.
B. Reasonableness
[46] The Applicant challenges several aspects of the Decision including whether it reasonably assessed his allegation of discrimination based on race, national or ethnic origin, and whether it reasonably concluded he lacked the essential qualifications of the job. I will discuss these now.
[47] The Applicant criticizes the Commission’s conclusion that he had “not provided any other evidence to support his claim that the failure to interview or hire him was based on his race or national or ethnic origin”. The Applicant asserts this is contrary to the evidence arguing he did prov