Turner v. Canada Border Services Agency

Turner v. Canada Border Services Agency
Collection
Canadian Human Rights Tribunal
Date
2020-02-11
Neutral citation
2020 CHRT 1
File number(s)
T1248/6007
Decision-maker(s)
Lustig, Edward P.
Decision type
Decision
Grounds
Age
Colour
National or Ethnic Origin
Race
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2020 CHRT
1
Date:
February 11, 2020
File No.:
T1248/6007
Between:
Levan Turner
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Canada Border Services Agency
Respondent
Decision
Member:
Edward P. Lustig
I. Context and History 1
II. Background 2
III. Issue 15
IV. Legal Framework 15
V. Parties’ Positions 19
A. Complainant’s Position 19
B. Respondent’s position 29
VI. Analysis 34
VII. Order 53
I. Context and History
[1] This is a decision respecting the Complaint of Mr. Turner filed with the Canadian Human Rights Commission (the “Commission”) on February 8, 2005. Mr. Turner alleges that the Canadian Border Services Agency (the “CBSA”) discriminated against him contrary to section 7 of the Canadian Human Rights Act (the “Act”) on the basis of race, colour, national or ethnic origin, age and the perceived disability of obesity. The allegations stem from two CBSA job competitions in 2003 and 2004 for the position of a permanent (“indeterminate”) Customs Inspector that Mr. Turner applied for unsuccessfully. The first competition was for a job in Victoria that was called Selection Process Number 2003-2092-PAC-3961-7003 (“Victoria 7003”). The second competition was for a job in Vancouver that was called Selection Process Number 2003-1727-PAC-3961-1002 (“Vancouver 1002”).
[2] The Commission requested the Tribunal to institute an inquiry into the Complaint on August 24, 2007, pursuant to section 44(3)(a) of the Act.
[3] This is the third decision by the Tribunal on the merits of this Complaint. There were two previous hearings by different members of the Tribunal on the merits of this Complaint. In both previous cases, decisions were rendered by the Tribunal that were judicially reviewed by the Federal Court and in both cases the decisions of the Federal Court were appealed to the Federal Court of Appeal. As a result each of the two previous Federal Court of Appeal decisions the case was referred back to the Tribunal for reconsideration.
[4] The history of the two previous decisions of the Tribunal, the Federal Court and the Federal Court of Appeal is summarized at paragraphs 4 to 11 of my Ruling in 2017 CHRT 15. In that ruling I determined that the procedure for the reconsideration of the case by me would be by way of a hearing de novo.
[5] The hearing was held by me in Victoria over a period totaling 5 weeks. Many of the same witnesses who appeared at the first hearing also appeared at the hearing in Victoria. For them it was a long time between hearings and at some points difficult for some of them to recall clearly matters that took place many years earlier. It was a credit to them and much appreciated by the Tribunal and the parties that they did their best. As so much time had passed, some of the witnesses from the first hearing were now retired and sadly some had passed on. It was agreed by the parties that the transcript of the evidence from the first hearing of a key witness who had passed on, Mr. Tarnawski, could be used in this case. At the parties’ request, the hearing dealt only with the subject of liability, not remedies, on the understanding that should liability be found on the part of CBSA there would be a further hearing on remedies.
II. Background
[6] Mr. Turner was born on March 1, 1967. He is a black man and has assessed himself as being overweight. His family instilled in him an awareness of the history of black people in Canada. He attended the University of Toronto where he studied geography for a period of time. While in Toronto, he volunteered for service with the Toronto auxiliary police and received training at the Toronto Police College. He was commended for his service in that role and received a letter of reference from his platoon sergeant when he decided to move to Victoria.
[7] In Victoria Mr. Turner worked at several jobs involving security including at a shopping centre and at the Art Gallery and received training in security measures. When he applied for a job as a Customs Inspector in Victoria in December, 1997 he was given a positive reference from his supervisor at the Art Gallery who also commented that he “was a little overweight”. He passed the Customs Inspector Test followed by a successful interview by Ms. Kathryn Pringle and Ms. Joanne Deans and was offered a term position as a Customs Inspector with Canada Customs and Revenue Agency (CCRA), the predecessor of CBSA, from May 4, 1998 to October 15, 1998.
[8] Mr. Turner was very happy to have been selected for the job. During the first couple of weeks on the job he received in-house training in interviewing travellers and collecting duties. He then began to work with experienced officers in the Marine section, first in the primary inspection line interviewing travellers to determine their admissibility as they arrived on ships at the port and then conducting secondary searches of vehicles and travellers. He received no negative comments on his job performance during this first term of employment.
[9] Following his first term, Mr. Turner was hired back for another term as a Customs Inspector during the winter starting on December 29, 1998 for a three months term that was extended twice until October 17, 1999. He was assigned mainly to work in the Telephone Reporting Centre (TRC) clearing private vessels and planes for entry into the country over the telephone or referring them for secondary inspection but he was also assigned to Marine for primary inspection. He was tasked with training and guiding newer staff occasionally. He received very good comments from his supervisor for his work and for his positive personal attributes in his performance evaluation and was well thought of by colleagues who worked with him. He was recommended for rehire.
[10] Mr. Turner was rehired as a Customs Inspector on a term basis for a third term from May 1, 2000 to October 10, 2000. During this term he continued to be assigned mainly to the TRC with increasing responsibilities as well as some limited outside work. He received a positive performance appraisal without any negative comments.
[11] Mr. Turner was rehired again as a Customs Inspector for a fourth term from April 30, 2001 to October 9, 2001. During this term the events of 9/11 took place and as a result his term was extended to March 31, 2002. He continued to work mainly in the TRC as assigned but also in Marine as he had received training in “Officer Powers and Use of Force”. Once again, his performance evaluation was positive with respect to both his work and his conduct. Colleagues commended him on his knowledge, commitment, work ethic, good humour and sunny disposition.
[12] During his fourth term Mr. Turner applied for an indeterminate position as a Customs Inspector in Victoria but was unsuccessful after being screened in for an interview. The selection board gave him a score of 60. This was below the required minimum score of 70 and was based upon the view of the selection board that he was lacking in enforcement experience. In part, this view was related to him using a four years old event in his examples of his enforcement experience rather than something more recent. In a post interview meeting with board member Ms. Kathleen Pringle, she encouraged him to get more enforcement experience by working outside instead of working most of his time in the TRC. Initially, Mr. Turner was upset with this assessment and said that he would continue to work in the TRC but then he changed his mind and did seek and obtain assignments outside as well as suggested by Ms. Kathleen Pringle. Although, it was ultimately management’s responsibility to assign officers to work locations, there was flexibility in assignments based upon operational needs.
[13] Mr. Turner was rehired again as a Customs Inspector for a fifth term from March 31, 2002 to October 14, 2002. He obtained more experience working outside during this term. His performance evaluations by his supervisor Mr. Trevor Baird were positive with respect to his work performance, skills, knowledge and behavior. The one area that Mr. Baird had some minor concern about in his mid-term evaluation regarding Mr. Turner bringing any of his concerns forward was noted as fully corrected at the end of the term evaluation. Mr. Baird gave evidence at the hearing that was not in his written performance evaluation of Mr. Turner at that time that he had the perception that Mr. Turner shied away from more difficult tasks but noted in his evidence that this was corrected by the end of the season and that Mr. Turner had followed the advice of supervisors to get more secondary inspection and enforcement experience during this term. Mr. Hughes, a colleague of Mr. Turner that season, gave evidence at the hearing that contradicted Mr. Baird’s evidence about shying away from difficult tasks and gave positive evidence about Mr. Turner’s work ethic and enforcement skills.
[14] Mr. Turner was rehired again for a term in Client Services from December 2, 2002 to April 26, 2003 and received a peer recognition award for his professionalism and positive and helpful attitude.
[15] In January of 2003, Mr. Turner applied for another indeterminate position as a Customs Inspector in Victoria but once again was unsuccessful after being screened in for an interview. This particular competition was called Selection Process Number 2002-1060-PAC-3961-7012 (“Victoria 7012”). He was screened in on the basis of his written responses of examples with respect to competencies in a number of prescribed situations.
[16] The interview in Victoria 7012 was essentially carried out by two superintendents Mr. Mark Northcote and Mr. Ron Tarnawski. These two gentlemen operated as a Recruitment Unit with expertise in hiring processes that was set up to help handle the multitude of hiring that was then taking place and to assist other supervisors with new features that were then being introduced in the hiring processes so they could handle interviews etc.
[17] Mr. Northcote in his evidence at the hearing was critical of the manner in which Mr. Turner responded in his written competencies with respect to dealing with a difficult situation involving an example involving a black American traveler. The traveler had been pre-identified as a risk and became irate during the inspection of the interior of his car by a canine and its handler. Mr. Turner claimed to have, more or less single-handedly, settled down the traveler diffusing a tense and potentially explosive situation when, according to Mr. Turner, no one else on the scene seemed able to do so. Mr. Northcote felt that this response was poorly written and that Mr. Turner had acted as too much of an advocate for the traveler.
[18] Mr. Northcote in his evidence at the hearing was also critical of the manner in which Mr. Turner responded in another case responded to by Mr. Turner in his written competencies with an example involving the determination of the value of some imported goods for which there was no bill of sale. In this case Mr. Turner claimed that he came up with the solution that did not occur to others on the scene of valuing the goods using a document that showed the insured value of the goods. Mr. Northcote felt that this response was not an acceptable way of valuing the goods.
[19] Mr. Turner was rehired again as a term Customs Inspector for a sixth term from April 28, 2003 to September 28, 2003. He worked during that season mainly in the TRC and also on occasion in Marine. His work was assessed at the end of the term by his supervisor Mr. Terry Klassen in positive written comments dated September 26, 2003, both in terms of Mr. Turner’s performance and his behavior. Mr. Klassen recommended Mr. Turner for rehire. Mr. Klassen made no negative comments in this assessment directed to Mr. Turner’s work ethic, sick days or family time record or anything else in the written appraisal.
[20] When Mr. Klassen met with Mr. Turner on September 26, 2003 to provide him with his written performance appraisal, he verbally advised him that there was a negative “perception” about his work ethic during the past couple of summers in that Mr. Turner shied away from taking the harder tasks in favor of taking the easier route. In evidence at the hearing, Mr. Turner said he was shocked and angry to receive this message from Mr. Klassen as this “perception” had never before been raised with Mr. Turner by anyone.
[21] Mr. Klassen decided a week later on October 2, 2003 to write an email (the “first email”) about his observations of the meeting he had with Mr. Turner on September 26, 2003. He sent the first email to other superintendents including Ms. Kathryn Pringle and Mr. Trevor Baird as well as the chief of operations Ms. Diane Kavelaars but did not share the first email with Mr. Turner. In evidence at the hearing Mr. Klassen said that he did this so that the supervisors could monitor Mr. Turner with these observations and so that they could keep them in the back of their minds.
[22] The first email is set out below. It includes negative commentary about Mr. Turner with respect to an alleged “perception” about Mr. Turner that he would take the easy way out of doing tasks like failing to cash out at the end of a shift and would avoiding difficult and more demanding tasks involving work outside of the TRC. In evidence at the hearing Mr. Klassen was unable to identify exactly the source of the “perception” but stated that it was discussed at a management meeting. He was also unable to identify precisely the difficult tasks that Mr. Turner had avoided besides what he included in the first email below. He acknowledged in his evidence at the hearing that the “perception” had not been raised with Mr. Turner prior to his interview with Mr. Klassen. Mr. Turner gave evidence at the hearing that while he got along well with Mr. Klassen he had in the past on occasion referred to Mr. Turner as “rat bastard” which Mr. Turner took as a play on the words “fat bastard” from a Mike Myers’ movie “Austin Powers”. Mr. Klassen testified that he had no clear recollection of using that term to describe Mr. Turner and that he was not familiar with the movie it was supposedly taken from.
From: Klassen, Terry
Sent: October 4, 2003 9:09 AM
To: Pringle, Kathryn; Pinniger, Rick; Gibbons, Mara; Baird, Trevor
Cc: Kavelaars, Diane
Subject: FW: talk with Levan after assessment
Here is the discusion l had with Levan after delivering his assessment. Parts of it may not seem relevant to you but serve as reminders to me. The long and short of this whole document was that he was shocked that he was perceived in this manner and that he did not see himself as someone who sloughes tasks off that are harder as this was not part of his nature. I asked him to take a close look at himself next year to ensure he was not dodging harder tasks or seeking the easy path. I 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.
Terry
---Original Message---
From: Klassen, Terry
Sent: October 3, 2003 5:01PM
To: Klassen, Terry
Subject: talk with Levan after assessment
Levan’s assessment was delivered and he was appreciative of that. I went on to ask him what he felt was the toughest part of the job for him and he said it was dealing with Kenmore Air and their variation from the schedule and that no one dealt with it over the summer. I rephrased the questions and asked in the day to day duties what do you find the hardest. What I was hoping is he would open up that he found secondaries or some of the more physical tasks difficult and that he would shy away from them. His answer to the rephrased question was something else (I do not recall).
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 (a difficult task) to take but ask to supt for “advice” hoping the supt will use their discretion and go the easier way. It was also pointed out how other inspectors had complained that he had left case outs for others to do instead of doing them on his shift. These points were delivered in a very compassionate way and Levan responded with shock but not defensively. He kept on saying this is contrary to his work ethic / nature and the way he see’s the world. He asked why he had not been talked to about this in the past and I responded I did not know and thus it was not included on his assessment as he was not made aware of it and could not respond or take corrective action. He felt if supts would have come to him at the time of their concern he could have explained his actions so that it would not be seen as him sloughing things off.
I went on to explain that this perception has been around for a couple of summers and·that it was something he would need to work on next year by taking on those difficult task and being cognisant of his decisions so that he is not taking .the easy way out. I reminded·him that this I not how he is perceived all the time but rather I see him as a very good communicator that works well with the public and continues to grow In knowledge. We then broke off into his frustration in learning and that he is not being taught enough,…like how to look up things in the D series or tariff. I responded by saying a lot of these learning tasks need to taken on by the employee. I reminded him that supts work solid from the start of the day to its conclusion and that we all have found little time to do extra training but reminded him that I had done use of force training·three different times; firearms three times and a evening of learninig how to complete ·a B3 properly. I told him it was my wish at the beginnlng of the year to do a learning session each week but that became to daunting. I reminded him that for each hour of class room it is 2 to 4 hours of prep. Levan then suggested the Idea of term learning circles, so that they as a group·would pick a topic for each evening shift and explore it length till all understood it properly. I said that was a fantastic idea and would like to see-him explore this. We also talked about revamping the term refresher course to include a email prior to coming back or at the end of season asking what they would like to learn in renom training and work part of refresher around some of those suggested topics. Again I said that was a good idea and that I thought he should include that in his year end exit survey.
I asked him why he liked working at cruise ships when working aircraft, he went on to say it was a new work environment and different work. I said it also has the appearance of taking the easy road instead of coming back to help at Clipper. He assured me that this was not the case. He went on to talk about how he loves to use the different computer data bases and wishes to learn them all. He was also concerned that terms did not know the TRC and why could he not train them by making staged calls to them and have them action it in the training mode of the TRC. He went on to say that is how he trained other TRC newbees. I said that was something we could explore next year. But that terms at this point will not be assigned to the TRC as we need all designated bodies out in marine.
We closed up the one and half hour discussion with me emphasising that he needs to be cognisant that the image he is presenting is one of jumping in with both feet and not looking for a easy solution. He also asked that I impart to the other supts 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 as part of his work ethic or nature.
I believe that there is a portion of Levan that does look for the easy way out and was concerned that he did not see that within himself or if he did, not admitting it. This is something to be followed closely next year.
[23] On October 12, 2003 Mr. Klassen sent another email (the “second email”) to the same managers except Ms. Kavelaars who he had sent the first email to. The second email is set out below. It includes negative commentary about Mr. Turner with respect to Mr. Turner allegedly having a health issue and abusing sick and family leave. The only specific evidence given at the hearing respecting the use by Mr. Turner of sick time and family leave related to him spending time helping his disabled partner who had a medical condition as set out below. This issue was not formally raised before by management with Mr. Turner and he testified at the hearing that he had previously advised management about the health situation with his partner.
From: Klassen, Terry
Sent: October 12, 2003 12:05 AM
To: Pinniger, Rick; Gibbons, Mara; Baird, Trevor; Pringle, Kathryn
Cc: Klassen, Terry
Subject: talk with Levan part two
I forgot an important part of the conversation and it was regarding his attendance. I told him we were concerned that either his health was ·an issue or he was abusing his sick leave. I showed him the leave summary reports that showed a steady increased use of sick leave and family related leave over his years of employment with us.
His only comment regarding the sick leave was that starting next year his sick leave will be back at zero and he said something like it should not be a problem next year.
Regarding the family leave, he wanted me to remind me that his girlfriend (common-law) was off on disability and that a lot of his time off was taking his girl friend to medical tests or appointments. He also said his girl friends disability leave is coming to an end and she should be back at work soon. Hence next years family related leave should be lower. I said I would remind the other supts about his girl friends medical condition.
I remember getting a phone call message on the supts line that came in a 0130 hrs the night before a dayshift with Levan. He was phoning to say he would be off on a Family Related leave.
This does not seem to correlate with medical appointments or bad planning of not remembering to tell us in advance so we could make adjustments to the schedule if required. This remembrance came to me after our talk so I could not ask him about it.
terry
[24] Mr. Turner applied for the indeterminate position of Customs Inspector in Victoria 7003 prior to the end of his sixth term. Victoria 7003 was a competition open to anyone regardless of their past experience and there were many applicants. In order to treat all applicants equally, the evaluation of candidates focused on their written competencies and, if screened in for an interview, their performance in the interview. He was screened into the competition on the basis of the same written competencies that he had used in the prior competition in Victoria referred to in paragraph 15 above. Mr. Turner was interviewed by Superintendents Baird and Kathryn Pringle who both had reviewed his performance positively in the past and who both had received the first and second emails before the interview. Mr. Baird testified at the hearing that he did not read the emails but Ms. Pringle testified that she probably did. Ms. Janet Sabo who is the spouse of Mr. Baird and also works for CBSA also attended the interview as an observer.
[25] Mr. Turner was unsuccessful in Victoria 7003 based on his failure to pass the competencies related to effective “Interactive Communication” and “Teamwork and Cooperation”. He was found by the board to have embellished facts in his resume respecting his experience as an auxiliary police officer in Toronto although he was not asked about this at the interview and denied in his evidence at the hearing that he had ever portrayed himself as a regular police officer. He was also found to have embellished the number of bond audits he was involved in although there was no evidence that he performed any more bond audits than what he claimed to have performed with his team that season.
[26] Also, the selection board in Victoria 7003 felt that, in some of the examples Mr. Turner used in his written competencies, he tried to embellish his contributions to the events described to make himself look good while diminishing the roles of others involved, making them not look good. This was not something raised with Mr. Turner during his interview by selection board members but came out in the evidence of the board members who testified at the hearing. The guidelines for assessing candidates allowed and even encouraged the use of critical commentary if the candidate felt that it was accurate to describe an event. Mr. Turner in his evidence maintained that what he had written in the competencies and what he said in the interview was accurate about the circumstances of the events he described.
[27] In one of his written competencies involving the black American traveler in a difficult situation, Mr. Turner used the name of Ms. Nina Patel as a validator for this event as she was the supervisor on the scene of this event as it was described by Mr. Turner. Mr. Turner also used the name of Mr. Ken Moore as a validator for this event as he was the dog handler in this event as it was described by Mr. Turner. Essentially, in his written competency for this event Mr. Turner described Ms. Patel as a supervisor who was unable to control the difficult situation as it unfolded. He described Mr. Moore as a dog handler whose manner of actions towards the traveller in having the dog inspect the trunk of the traveller’s vehicle incensed the traveller making an already difficult situation worse. Mr. Turner described himself in the event as the person who was able to diffuse the difficult situation by taking the appropriate steps to calm down the traveller and straighten matters out.
[28] Ms. Patel was not contacted by any member of the selection board in Victoria 7003 before Mr. Turner was disqualified from that competition after his interview but was contacted by Mr. Baird about a month afterwards by telephone. Mr. Moore was never contacted by any member of the selection board to validate the event. Ms. Patel, who is now a Director at CBSA and is a person of color, gave evidence at the hearing that contradicted Mr. Turner’s view of how things happened in the event, particularly with respect to his view that others including her were not able to properly react to the situation. Mr. Moore, who is now an instructor at the CBSA College in Rigaud Quebec, also gave evidence at the hearing that contradicted Mr. Turner’s description of his role in the event and contradicted Mr. Turner’s view that others were not acting properly or able to control matters while Mr. Turner was the only person who was able to diffuse the difficult situation.
[29] Mr. Turner’s sixth term as a Customs Inspector was his last as he was informed prior to the next season that the criteria for hiring had changed and he would not be offered another term.
[30] Mr. Turner applied for Vancouver 1002 on June 15, 2003. It was also a competition open to anyone regardless of their past experience and there were many candidates. Mr. Turner was living in Victoria at the time and the job posting informed the competition that it was open to anyone “residing or working west of the Canadian Rocky Mountains.” However, Vancouver 1002 included an eligibility restriction for applicants that was different than Victoria 7003. The restriction stated that “Applicants who have been interviewed for this position since January 1, 2002, will not be eligible for this process.” Mr. Turner in his evidence at the hearing said that he interpreted this to mean that the competition was closed to persons who had, since January 1, 2002, applied for a Customs Inspector position in the Vancouver district, as in all of his previous applications in Victoria the competition had been restricted to candidates in the Victoria area, where the positions were located. Mr. Hughes in his evidence at the hearing confirmed that he had the same understanding as Mr. Turner.
[31] Mr. Turner was interviewed by Mr. Northcote and Mr. Tarnawski for Vancouver 1002. They were familiar with Mr. Turner through the interview described in paragraph 16 above. In fact, when Mr. Tarnawski encountered Mr. Turner at the interview for Vancouver 1002 he allegedly said that he remembered his “voice and presence” from an earlier interview in Victoria. In the transcript of Mr. Tarnawski’s evidence from the original hearing introduced into evidence in this hearing, Mr. Tarnawski, in answering a question about whether Mr. Turner might have stood out for him because he was a large black man, Mr. Tarnawski responded as follows: “Well I didn’t interview, I don’t think a whole pile of people that would meet the same physical characteristics as Mr. Levan Turner.”
[32] Mr. Northcote gave evidence at the hearing that the eligibility restriction for Vancouver 1002 was intended to exclude candidates for the position of Customs Inspector who had previously been found unqualified since January 1, 2002, in any competition for that position, regardless of where they resided or worked. The rationale for this according to Mr. Northcote was to provide recently unsuccessful candidates with sufficient time to gain the experience and expertise needed to be successful the next time they applied and also try to streamline the process by limiting the very large number of candidates. Mr. Northcote in his evidence at the hearing acknowledged that the restriction could have been worded differently or better. In his evidence at the first hearing, Mr. Tarnawski indicated that the restriction in Vancouver 1002 would not have been applied to a person from Victoria who had been found qualified in another competition since January 1, 2002. Mr. Tarnawski also acknowledged that the wording had caused problems for CBSA.
[33] Mr. Turner submitted virtually the same written competencies in Vancouver 1002 that he had used in Victoria 7003 and Victoria 7012 and was initially screened in for an interview by Mr. Northcote, Mr. Tarnawski and Ms. Morin on the basis of his written competencies. However, after an initial interview, Mr. Turner was found unqualified as a result of the board determining that he did not meet the eligibility restriction and was not allowed to proceed in the interview process. According to Mr. Turner’s evidence at the hearing, he learned about the disqualification through a telephone call he received from Ms. Morin who told him that he was disqualified as a result of having interviewed for a Customs Inspector position unsuccessfully in Victoria during the eligibility restriction term. Following her call, Mr. Tarnawski called Mr. Turner to explain that the eligibility restriction was meant to disqualify any applicants for the position of Customs Inspector who had unsuccessfully interviewed previously during the restricted term, A follow up letter to Mr. Turner from Messrs. Northcote and Tarnawski dated June 1, 2004 and postmarked June 3, 2004 indicated that the eligibility restriction applied to persons who had previously interviewed for the position of Customs Inspector in the Metro Vancouver, Pacific Highway and Vancouver Airport area during the restricted term. The letter invited a written response by June 9, 2004.
[34] Mr. Turner received the letter on June 7, 2004 and wrote a letter back to the address specified seeking clarification for the explanations he had received about the eligibility restriction in the calls and letter. His letter was postmarked June 8, 2004 and stamped received on June 11, 2004. The request was marked as “Received late. No feedback provided”. The same selection board had in the same competition accepted written submissions after the deadline in other cases as long as they were postmarked by the deadline.
[35] There was evidence at the hearing that there had been candidates who had been screened out of Victoria 7003 both before any interview, on the basis of their written competencies as well as candidates found unqualified after an interview in that competition, who were then permitted to continue to an interview after being screened in as applicants in Vancouver 1002.
[36] One of these candidates was Mr. Blaine Wiggins who testified at the hearing. Like Mr. Turner, Mr. Wiggins was screened into Victoria 7003 and was interviewed but found unqualified. Like Mr. Turner he also applied for Vancouver 1002 and was screened in on the basis of his written competencies. Unlike Mr. Turner he was allowed to proceed to an interview without the issue of the eligibility restriction being raised but was determined to be unqualified as a result of his interview. At the hearing, Mr. Wiggins testified that during the interview in Vancouver 1002 he was asked questions by the selection board (that included members that had found Mr. Turner ineligible) about his aboriginal background that he felt were off track and inappropriate. After his unsuccessful interview he took up his concerns about this line of questioning in response to the letter he received from Mr. Northcote advising him of the result of the interview and inviting him to submit any request for further information in writing by July 5, 2004. Mr. Wiggins hand delivered his request for further information but got no response from Mr. Northcote who testified at the hearing that the letter was received late. Mr. Wiggins testified that he followed his letter up with a further letter to the Pacific Regional Director and received a response that he would be provided feedback from the Recruitment Unit. He did receive a call but felt it was unresponsive to his concerns.
[37] During his years with CBSA Mr. Turner was one of very few black people employed as a Customs Inspector in Victoria. Ms. Lorna Thompson a black woman who was screened into a Customs Inspector competition and passed the interview but was later determined to be unqualified as a result of failing the Use of Force training in Rigaud, Quebec testified at the hearing. She claimed that during the training one of her instructors Mr. Brian McKenna used comments that she felt were stereotypically negative towards blacks in an attempt to emulate a potentially dangerous traveller at the border. She claimed that she found his behaviour troubling and bigoted and informally complained about it but received no response to her complaint. In transcript evidence submitted at the hearing from the testimony of Mr. McKenna from the original hearing, he denied the claim by Ms. Thompson that he had used a racist stereotypical negative example in his training or that he was bigoted.
[38] Mr. Ross Fairweather who was the Chief of the Vancouver International Airport testified at the hearing about a careers presentation he gave in Victoria at this time where he allegedly told attendees that if they were interested in customs and under 35 they should move to Vancouver. He stated that if that was said it was not meant to disadvantage Mr. Turner who would have been 37 when he was disqualified from Vancouver 1002, but rather to encourage young, mobile people to choose a career in Vancouver in customs. There was evidence at the hearing about the bridging program that the CBSA ran to fast track students working as Student Customs Inspectors into indeterminate positions without the need to go through the selection process that Mr. Turner as a term employee went through. Some of the students bridged who were supposed to be “high flyers” according to Mr. Northcote turned out to have a great deal less experience than Mr. Turner by the time that Vancouver 1002 took place.
[39] Since his last term position ended with CBSA Mr. Turner has worked consistently with Service Canada first as a term employee and then as an indeterminate employee, however in his evidence at the hearing he indicated that his experiences in not being hired in either of the competitions that his complaint relates to were and still are hurtful to him.
III. Issue
[40] The issue to be determined in this case is whether the CBSA discriminated against Mr. Turner, contrary to section 7 of the Act, on the basis of his race, colour, national or ethnic origin, age and the perceived disability of obesity by disqualifying him from the two job competitions for the indeterminate position of Customs Inspector in Victoria 7003 and Vancouver 1002?
IV. Legal Framework
[41] Section 7 of the Act reads as follows:
7 It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee,
on a prohibited ground of discrimination.
[42] Sections 3(1) and 3.1 of the Act reads as follows:
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 For greater certainty, a discriminatory practice includes a practice based on one or more prohibited grounds of discrimination or on the effect of a combination of prohibited grounds.
[43] A complainant alleging an infringement of the Act bears the onus of showing a prima facie case of discrimination. The applicable standard of proof is the civil standard of the balance of probabilities. To discharge the onus a complainant must establish a “connection” to a prohibited ground under the Act. (see Quebec (Commission des droits de la personne et des droits de la Jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Centre), 2015 SCC 39 at para 65 (Bombardier).
[44] A prima facie case is “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer.” (see Ontario Human Rights Commission and O’Malley v. Simpsons-Sears, [1985] 2 SCR 536 at para 28.)
[45] In order to prove a prima facie case of discrimination, the test that complainant must generally satisfy is that: i) the complainant has one or more characteristics protected from discrimination under the Act such as race, colour, national or ethnic origin, age or disability; ii) the complainant was subjected to adverse treatment or disadvantage; and iii) one or more of the complainant’s protected characteristic(s) was a factor, but not necessarily the only factor, in the adverse treatment or disadvantage. (see Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (CanLII) at para 69, citing Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 SCR 360 at para 33 and Bombardier, at paras 60-63.)
[46] In determining whether a complainant with protected characteristics has satisfied the second two parts of that test in a case under section 7 of the Act involving a complaint of discrimination in a selection board’s decision, a Tribunal is not required to assess the complainant’s qualifications and experience in absolute terms, not even in relation to other candidates. The Tribunal is not sitting as a selection board in such a case, nor is it exercising appellate jurisdiction in respect of the selection board’s decision. Rather, the Tribunal is required to assess the decision-making process of the selection board in order to determine whether the complainant was adversely impacted by the decision and whether the complainant’s protected characteristics or a combination thereof