Hughes v. Transport Canada

Hughes v. Transport Canada
Collection
Canadian Human Rights Tribunal
Date
2018-06-01
Neutral citation
2018 CHRT 15
File number(s)
T1656/01111
Decision-maker(s)
Luftig, Olga
Decision type
Decision
Grounds
Disability
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2018 CHRT
15
Date:
June 1, 2018
File No.:
T1656/01111
Between:
Chris Hughes
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Transport Canada
Respondent
Decision
Member:
Olga Luftig
Table of Contents
I. The Liability Decision 1
II. Remedies hearing and decision 1
III. The Complainant’s requested remedies 1
IV. Marine Security Analyst or Intelligence Analyst 3
A. Comments on the documentary evidence 3
V. Statute Law on rights, opportunities and privileges denied a victim of discrimination 4
VI. Respondent’s closing submissions on Marine Security Analyst position 4
VII. The Complainant’s testimony 6
A. Evidentiary issue re other human rights complaints 22
VIII. Testimony of Respondent’s Witnesses 23
A. Testimony of Respondent’s witness Mr. Timothy Shorthouse 23
B. Testimony of Respondent’s witness Ms. Lea-Anne Domae 29
C. Credibility of Respondent’s witnesses’ testimony 40
IX. Had the Respondent appointed the Complainant as a PM-04 Marine Security Analyst in 2006, would the Respondent have later appointed him to a TI-06 Inspector position? 41
A. What is the legal test to apply to the remedial claim for promotion to TI-06 Inspector? 41
B. The Respondent’s position 42
C. The Complainant’s position 42
D. Analysis on the correct legal test under the CHRA for establishing the loss of a position in the employment context 43
E. Factors to take into account in deciding promotion to TI-06 45
F. Complainant’s further submissions 45
G. The Respondent’s position 48
H. The Complainant’s Reply Submissions 51
I. Analysis regarding the Complainant’s claim for instatement to a TI-06 position 53
X. Should the Tribunal instate the Complainant to the position of PM-04 Intelligence Analyst? 59
A. The Respondent’s position 59
B. The Complainant’s position 60
C. Analysis 63
XI. Lost Wages and benefits 64
A. The Complainant’s position and submissions 64
B. The Respondent’s position and Submissions 66
C. The issue of the Minutes of Settlement 69
D. The Complainant’s position 69
E. The Respondent’s position 70
F. The issue around the Complainant’s testimony regarding the Minutes 71
G. Were the Minutes admissible into evidence? 72
H. Is the Settlement amount, or any part of it, relevant to the Complainant’s claim of compensation for lost wages? 74
I. Analysis 74
J. Should the Tribunal strike from the record the Complainant’s testimony regarding his understanding of clause 7 of the Minutes of Settlement? 76
K. Analysis regarding the potential outcome of the CBSA complaint 76
L. Analysis regarding the Tribunal’s finding of discrimination in the HRSDC Decision 76
M. Analysis regarding the amount and duration of compensation for lost wages and benefits 77
N. Determining the End-Point of the Wage Loss Compensation Period 78
O. Mitigation 82
XII. Does Awarding Lost Wages and Instatement Constitute Double Recovery? 84
XIII. Other Compensation and Benefits 85
A. Analysis re Overtime 85
B. Compensation for Medical and Dental Expenses 88
C. Analysis 88
D. Respondent’s position 89
E. Analysis 89
F. Payment for the cost of an actuary/accountant to calculate gross-up 90
G. Retroactive Pension Adjustment 90
H. Vacation Leave, Sick Leave, Bereavement Leave, Volunteer Leave and Family Leave 91
I. Confidentiality Order – Claim for Compensation in respect of Pain and Suffering 91
J. Pain and suffering 92
The Complainant’s position 92
The Respondent’s Position 93
K. Analysis of the Compensation Claim for Pain and Suffering 94
L. Special Compensation 95
M. Did the Respondent engage in the discriminatory practice wilfully? 96
Complainant’s position 96
Respondent’s position 96
Analysis 96
N. Did the Respondent engage in the discriminatory practice recklessly? 97
Analysis 98
O. Interest 99
XIV. Retention of Jurisdiction Orders 99
XV. Confidentiality Order pursuant to section 52 of the CHRA 100
XVI. Remedial Order pursuant to s. 53 of the CHRA 101
I. The Liability Decision
[1] On January 27, 2008, Mr. Chris Hughes (Complainant), filed a complaint (Complaint) with the Canadian Human Rights Commission (Commission) against Transport
Canada
(Transport
Canada
, or the Respondent). He alleged that the Respondent discriminated against him on the ground of his disability, depression, in a series of four (4) job competitions by failing to appoint him to any of the positions, contrary to section 7 of the Canadian Human Rights Act, R.S.C., 1985, c. H-6, (Act or Human Rights Act). He also alleged that the Respondent retaliated against him, contrary to section 14.1 of the Act.
[2] The first Tribunal hearing dealt only with liability. Briefly put, in Chris Hughes v. Transport Canada, 2014 CHRT 19 (Liability Decision or LD), Member Malo decided, at paragraph 342(a), that the “complaint with respect to the … marine security analyst (PM-04) application is upheld under the provisions of section 7(a) of the CHRA;”
[3] Member Malo decided that the Complainant did not establish a prima facie case of discrimination in the first competition for Inspector, classified in the TI group, sixth level (TI-06 Inspector or Inspector TI-06), and that the Respondent did not discriminate against the Complainant in two other competitions for TI-06 Inspector positions, and dismissed those three allegations. The retaliation allegation was also dismissed.
II. Remedies hearing and decision
[4] The Tribunal held a hearing on remedies (Remedies hearing). This is the Remedies Decision. Unless specified otherwise, all references to testimony in this Remedies Decision are to the testimony at the Remedies hearing.
III. The Complainant’s requested remedies
[5] The Complainant requested the following remedies in the Complainant’s Requested Remedy document (called at the hearing, Document C-11, which was not made an exhibit), with modifications and additions submitted at the Remedies hearing:
Appointment to the position of Marine Security Intelligence Analyst PM-04, retroactive to May 8, 2006, and appointment to Inspector TI-06 as of January 1, 2007; this requested remedy was modified at the Remedies hearing to a date in late 2008, when the Respondent did not appoint any Inspectors pursuant to its2008 TI-06 Deployment Notice;
Payment representing:
Lost wages in the amount of $581,697.97;
Lost benefits; expenses totalling $22,500.00; the Complainant also seeks an order that the Respondent continue to pay his medical and dental bills until he is reintegrated into the federal medical and dental plans;
Expenses totalling $22,500.00, specified later in this Decision;
Shift premiums, weekend premiums and overtime totalling $225,000;
Return of 15 weeks sick leave credits;
Restoration, cash payout of vacation pay;
9 days’ credit for volunteer leave or a payment of the cash value;
45 days’ credit for family leave;
Compensation for pain and suffering and special compensation totalling $40,000;
Adjustment of the Complainant’s federal government pension and payout retroactive to 2006, as if the Complainant had been continuously employed since 2006;
Interest on all of the above at the Bank of Canada posted rates;
Gross-up, calculated by an actuary, for any negative income tax liability arising out of any of the payments.
As alternatives to the remedies of appointment to Inspector TI-06 and lost wages in the amount of $581,697.97, appointment to a position as an Analyst at the PM-04 group and level, retroactive to May 8, 2006, and lost wages of $508,684.60.
At the Remedies hearing, the Complainant requested that the Respondent pay for an accountant or actuary to calculate any gross-up;
At the Remedies Hearing, the Complainant claimed wages and all attendant benefits, as well as reimbursement of health-related expenses for the period from the end date of the claims in Document C-11, which was August, 2015, to instatement, if the Tribunal ordered instatement;
At the Remedies Hearing, the Complainant requested that the Tribunal retain jurisdiction to deal with any issues that may arise from the implementation of the Remedies Decision.
IV. Marine Security Analyst or Intelligence Analyst
[6] The federal public service (Public Service) classifies the Marine Security Analyst position as being in the PM group, fourth level, namely PM-04. This Remedies Decision will call the position “Analyst”, or “PM-04 Analyst”, defined as Marine Security Analyst (PM-04). As at the hearing date, the Respondent called the same position “Intelligence Analyst”.
A. Comments on the documentary evidence
[7] The Tribunal identified the Complainant’s binder titled “Outline of evidence concerning the PM-04 Marine Security Analyst position” as The Reference Document. In front of the Index is a document titled “Complainant’s Outline of Evidence”. It is essentially the Complainant’s written summary of the evidence, referencing exhibits or transcripts from the Liability Hearing, attached as tabs. All other documents in The Reference Document were admitted into evidence during the Liability Hearing.
[8] The Respondent’s position was that the Liability Decision and the exhibits speak for themselves. Although the Respondent did not object to the Tribunal permitting the Complainant’s Outline of Evidence to be entered, the Respondent noted that it did not agree to the accuracy or truth of its contents. I did not rely on the Complainant’s Outline of Evidence in arriving at this Decision.
[9] Unless otherwise indicated, I have relied on: those exhibits from the Liability hearing which were included in the evidence at the Remedies hearing; new documentary exhibits filed at the Remedies hearing; the Liability Decision; and the testimony at the Remedies Hearing which I found reliable.
V. Statute Law on rights, opportunities and privileges denied a victim of discrimination
[10] Subsection 53(2) of the Act reads in part:
“If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may…make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:
[…]
(b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, the rights, opportunities or privileges that are being or were denied the victim as a result of the practice;”
VI. Respondent’s closing submissions on Marine Security Analyst position
[11] During his closing arguments and submissions, the Respondent’s counsel stated:
“Obviously we accept, as we have to, Member Malo’s finding with respect to the PM-04 competition where the finding would leave the result that Mr. Hughes was entitled to have basically been part of a pool of six (6) candidates, of which 4 of them were ultimately selected. We accept that and actually we go as far to say we agree there’s a probable chance that of that group he would have become a PM-04 at that time. The reason is because we also heard the evidence from our own witness […forgot name for a moment], Ms. Domae that although only 4 of the 6 candidates were selected initially, the other 2 weren’t - one was screened out because they didn’t pass the security requirement, the other refused the position - she actually said that the other 2 positions were ultimately filled. So it seems reasonable that if Mr. Hughes had actually not refused the position and if he had passed the security requirements, that he probably, I shouldn’t say probably, that he would have become a PM-04 at that time.”
When I asked Respondent counsel whether by “at that time” he was saying May 2006, he answered:
“I think that’s about the right time. We weren’t able to tell a specific date by looking at the document itself, but we don’t dispute the fact that it seems like a reasonable period of time”.
[12] Ms. Lea-Anne Domae was the witness the Respondent’s counsel referred to. She is the Respondent’s Human Resources Manager for the Pacific Region.
Analysis
[13] I found Ms. Domae to be forthright and candid in giving her testimony, and her evidence credible and reliable. For example, she candidly and immediately conceded in cross-examination that she did not personally know the Complainant, nor was she familiar with his resume, because she started working at the Respondent in 2011. However, she knew the history of the 2005-2006 Analyst job competition, knew how Transport Canada filled the Analyst positions at issue from the eligible pool, and knew what happened to the appointed individuals (i.e., as at the hearing date, she knew whether they were still working at Transport Canada, and their status.)
[14] I take into account the Respondent’s counsel’s closing arguments and agreement that the Complainant would have been appointed as an Analyst, and that the Respondent did not dispute that May 2006 was a reasonable time period for that appointment to have occurred.
[15] I therefore conclude, in accordance with subsection 53(2)(b) of the Act, that one of the opportunities denied the Complainant as a result of the Respondent’s discriminatory practice was appointment in May, 2006 to the indeterminate [full-time] position of Marine Security Analyst, PM-04.
[16] The Complainant also seeks appointment to Inspector, TI-06 as of January 1, 2007 or another date (I discuss the proposed dates later), on the basis that had the Respondent appointed him to the Analyst position in May 2006, the Respondent would have later promoted him to TI-06 Inspector. The Complainant submits that one of the reasons grounding his claim that he would have become an Inspector is the experience he would have gained as an Analyst.
[17] I find it is therefore necessary to assess the evidence presented on the roles, duties, qualifications and skills required in both the Analyst and TI-06 Inspector positions.
VII. The Complainant’s testimony
[18] The Complainant worked as a Collections Officer, at the PM-01 level, at the Canada Customs and Revenue Agency (CCRA), and later at the Canada Revenue Agency (CRA), for ten consecutive years, from February 1995 to December 2005. During that time, in 2002, 2003 and 2004, he was appointed three times as an Acting Customs Officer at the PM-02 level. He left CRA in circumstances he described as being forced to resign as part of a settlement. He had not wanted to leave.
[19] From August 2005 to 2007, the Complainant applied for four positions with Transport Canada: one Analyst position, and three TI-06 Inspector positions.
[20] The Respondent told him he did not advance in the first TI-06 Inspector competition because he scored 60 in the Written Communication Test (WCT345), when the pass mark was 70. In the second TI-06 Inspector competition, the Respondent told him that he did not advance because he did not have enough experience in investigations. In the third, the Respondent told him he lacked experience in extensive investigations.
[21] The Complainant testified that had the Respondent hired him as an Analyst in May 2006, he would have obtained experience in extensive investigations. He based this assertion on his understanding of an Analyst’s duties, which he understood to include sifting through large amounts of data about incoming ships, assessing risk, and deciding and targeting which ships required inspection. He thought he would be looking through many different kinds of databases to see if ship crew had criminal records. He felt that as an Analyst, he would be doing extensive investigations every day. He based his understanding on his time at Customs, when they did that kind of checking. He testified he was pretty sure that the Analysts’ duties were similar to those he had performed as an Acting Customs Officer.
[22] Prior to the Analyst and Inspector competitions, the Complainant had attended a meeting convened by Mr. John Lavers, Chair of the 3-member Selection Board for the Analyst competition. Mr. Lavers told the attendees that numerous positions were available. The Complainant described the marine security unit as brand new; the federal government was establishing three of them in response to the terrorist attacks on September 11, 2001, those which occurred in Spain in 2004, and in England in 2005. The government wanted to establish one of the marine security units in Victoria, British Columbia (BC).
[23] The Complainant testified that because in August 2006, only one person qualified as and was appointed a TI-06 Inspector in Esquimalt, B.C., Mr. VK, there would have been three or four Analysts referring work to this Inspector. One could therefore conclude that there was a severe shortage of Inspectors for this marine security unit in August 2006.
[24] Mr. VK is shown on the Government Electronic Directory Services (GEDS) printout dated August 3, 2015 (Exhibit C-12) as still working as a TI-06 Inspector. The Complainant estimated there were 20 TI-06 Inspectors named in this GEDS document.
[25] The first TI-06 Inspector position the Complainant applied for was pursuant to an external job posting, closing October 3, 2005. He testified that an external posting is open to the public, and described closed competitions as internal – that is, only for members of the federal Public Service.
[26] As part of the first TI-06 competition, the Complainant wrote a Knowledge Test which he described as very difficult, and which required the candidate to demonstrate knowledge of relevant legislation and judicial and quasi-judicial procedures. The only person who scored higher than the Complainant was the person hired in that competition, Mr. VK. The Complainant’s score of 52 out of 56, or 93%, was higher than four other people who were later hired as Inspectors.
[27] On June 26, 2006, the Respondent wrote the Complainant, advising he had failed the WCT345, and that his score remained valid indefinitely unless he rewrote the test. The earliest he could rewrite was October 7, 2006. The Complainant confirmed in cross-examination that every candidate had to pass the WCT345 in order to become a TI-06.
[28] In the Liability Decision, Member Malo concluded that the Complainant did not make out a prima facie case of discrimination regarding the first TI-06 Inspector competition (LD, at para 268).
[29] The Complainant tendered Exhibit C-13 as a GEDS printout about Mr. TS, which identifies Mr. TS as a Transportation Security Inspector, Developmental. The Complainant testified that Mr. TS went from a developmental position to a full-time TI-06, because he was an internal employee; the Respondent developed his skills and groomed him from the lower Developmental level, making him a TI-05, and then a TI-06, an opportunity the Complainant did not get.
[30] The competition for the 2nd TI-06 position, Regional Transportation Security and Emergency Preparedness Inspector had a closing date of August 3, 2006. The Complainant testified this competition was for the same position as the first TI-06 competition. He believed that by August 3, 2006, he would have been an Analyst for a few months and would have applied as an internal employee for the TI-06 job, for which he could have been hired.
[31] The Complainant’s position and testimony were that usually with internal job postings, the bar is not set as high for experience factors because departments want to promote internally. He had seen this numerous times in numerous departments. The Complainant’s position, in brief, was that it was easier to be promoted internally than to be appointed externally.
[32] On September 18, 2006, the Respondent’s Ms. S. Wood, a member of the Selection Board for the Analyst competition, who was also in human resources and responsible for providing human resource information to the Selection Board, emailed the Complainant that the WCT 345 pass score had been reduced from 70 to 60, for the second TI-06 competition. In its October 12, 2006 email to the Complainant, the Respondent told him he had been screened out of this second TI-06 competition because he did not have the required experience in conducting investigations. The Complainant believed he would have gained that experience as an Analyst.
[33] The Complainant presented in evidence the Selection Board Report showing seven appointments resulting from the second TI-06 competition. The Complainant noted that since Mr. VK’s August 2006 appointment, there were no other appointments until February and April, 2007. The Complainant felt there was a clear need for TI-06s.
[34] The Complainant’s position, as reiterated in his testimony, was that after he would have been hired as an Analyst, the Respondent would have very readily given him an Acting TI-06 Inspector assignment. The Respondent would have done so because of his Customs experience, the experience he would have gained as an Analyst, and the need for TI-06s. The change to the passing grade of the WCT345 meant he passed it. The Respondent had already marked him on many of the ability and suitability requirements during the Analyst competition, so he felt he was essentially pre-qualified for the TI-06 position. Further, Mr. Ron Perkio, who was a member of the Selection Boards for both the Analyst and TI-06 staffing competitions, knew the Complainant had done well in the Analyst competition.
[35] Another reason why the Complainant felt he would have been assigned as an Acting TI-06 was because the standards for an Acting assignment are not the same as for a full-blown competition. In response to my question whether there was a need for Acting TI-06s, the Complainant testified that there were lots of openings; they only had Mr. VK in 2006. Then seven more were hired in February and April 2007 as a result of the second TI-06 competition.
[36] From the third TI-06 competition, which closed April 2, 2007, the Respondent hired another six Inspectors in October, 2007. The full complement was 19 or 20. The Complainant noted that three of those hired also scored 60 on the WCT345.
[37] The Complainant testified about Mr. JL, an internal employee. It was the Complainant’s belief that an adhesive note attached to Mr. JL’s application noted he was originally screened out, then screened in. Tab 26, Complainant’s Remedy Book contained a copy of JL’s application, on the first page of which was a copy of handwritten note. I could not read the entire note; part of it said “L, Was in the “out” pile. The original note was not produced at the Remedies hearing. The Complainant felt that the Respondent had given Mr. JL, an internal employee, the benefit of the doubt, which it did not do for the Complainant who was not an employee. He testified that Mr. JL had been screened in on the basis of his experience conducting investigations. However, the Complainant asserted that Mr. JL had less experience than the Complainant (a few months versus the Complainant’s seven and one-half years of law enforcement), and had lower knowledge marks than the Complainant in the 2005 Knowledge Test. Yet Mr. JL was hired.
[38] Tab 27, Complainant’s Remedy Book, is the job posting for the third TI-06 competition, closing April 2, 2007, for which the Complainant applied. The Respondent appointed six more TI-06s in October, 2007 as a result of this competition.
[39] The Complainant presented in evidence applications from some of the other individuals who also applied in each of the three TI-06 competitions. The Complainant submitted that these applications demonstrate that most of those hired had a Customs Inspector or tax background. The Complainant had both.
[40] Mr. VK was appointed as a TI-06 Inspector on August 8, 2006, and five weeks afterwards, a September 18, 2006 email from Sonya Wood demonstrates that the Respondent lowered the pass mark for the WCT345 test to 60. The Complainant’s position was that the Respondent should have hired him as an Analyst on May 8, 2006, and that shortly after Mr. VK was hired, the Respondent would have moved the Complainant from Marine Security Analyst to Inspector, to work with Mr. VK, because it would have made business sense to do that.
[41] The Complainant adduced a document detailing the count of completed staffing actions for TI-06 Inspectors in the Pacific Region between January 1, 2005 and July 10, 2008 (2005-2008 TI-06 Staffing Count). It demonstrates that in the period, the Respondent hired twelve people through external advertisement, two through internal advertisement, and one through a non-advertised internal hire. He felt that he could have been hired either through the internal ad or the non-advertised ad for an internal hire, had he been hired in 2006 for the Analyst position. He noted that one person is listed as “ACIN”, which means Acting appointment. He felt this demonstrated that there were Acting assignments, and that the Respondent had the option of using them.
[42] The Complainant testified that the List of Vacant Positions presented in evidence demonstrates that as at July 2008, even after the three TI-06 staffing processes, the Respondent still did not have enough people, and still had five TI openings. (I note that four of those vacancies were for TI-06 Inspectors; the fifth was for TI-05 Inspector.)
[43] The Complainant testified that after he left CRA, whenever he obtained work in the federal government, he checked job postings accessible only to government employees.
[44] He presented Exhibit C-14, a Deployment Notice for TI-06 Inspector, closing October 8, 2008 (2008 TI-06 Deployment Notice). The Complainant felt its requirements in respect of the experience or interpersonal relations factors were less strict than the requirements for those same factors for the three Inspector positions for which he had applied. To him, the 2008 TI-06 Deployment Notice was an example of the lower bar for internal employees.
[45] He felt that because he passed the Knowledge Test and personal suitability criteria when he applied for the PM-04 Analyst position, and because he possessed Customs inspector experience, he would have been essentially pre-qualified for the TI-06 position.
[46] The Complainant presented the exhibits below, which he had obtained from the Treasury Board website:
Exhibit C-15 is Appendix A-1 of the Collective Agreement between Treasury Board and the Public Service Alliance of Canada (PSAC), for the PM group, which expired June 20, 2011. It contains pay rates for the PM-04 level, as well as provisions for sick leave, vacation leave, family leave, bereavement leave and volunteer leave;
Exhibit C-16 is Appendix A-1 of the Collective Agreement effective June 21, 2011 to June 20, 2014, between Treasury Board and PSAC, for the PM group, which succeeded Exhibit C-15;
Exhibit C-17 is a document the Complainant identified as containing relevant sections of the TI-Inspectors’ Collective Agreement (TI Collective Agreement), expiring June 21, 2011;
Exhibit C-18 is an excerpt from the TI Collective Agreement applicable to the period June 22, 2011 to June 21, 2014.
[47] The Complainant used the excerpts from the Collective Agreements to arrive at the amounts for lost wages and other amounts and credits he seeks as remedies, which are set out in Document C-11.
[48] The Complainant testified that the wage amounts in the Collective Agreements are annual. To calculate his wage losses, for each year, he started by using May 8, his proposed 2006 hiring date, to June 21, the yearly expiry date of each pay grid pursuant to the Collective Agreement. He then prorated that and combined it with the remaining part of the year. He then deducted any wages he earned from other employers during the specified period, except the period January 1 to March 31, 2006, prior to the discrimination. He explained that on the anniversary of one’s hiring, one goes from step 1 to step 2 in the chart shown in the Collective Agreements, and that each year, one also receives an economic increase until reaching the maximum in one’s pay grid.
[49] Tab 42, Complainant’s Remedy Book, contains a series of the Complainant’s T4s, showing earnings from employment in various years and Employment Insurance (EI) benefits received.
[50] The Complainant testified that as a federal employee, he would have been covered for dental, drug and medical expenses. He sought an order that the Respondent provide him with medical, dental and drug benefits in accordance with its policy for indeterminate employees, retroactive to May 8, 2006. When he was married, his wife submitted his health expenses to her plan, providing the Complainant with 100% coverage. Starting on page 5 of Exhibit C-19, there are medical, dental and pharmaceutical bills from September 21, 2011 to 2015, and the Complainant claims the rounded amount of $7,000.00.
[51] The Complainant testified that John Lavers had told candidates that the Marine unit would be a 24/7 operation, with a lot of shift premiums and overtime. Overtime is anything above the standard 37.5 hour work week. This Decision will call shift premiums, week-end premiums and overtime, collectively, “Overtime”.
[52] The Complainant testified that when he was at CRA and CBSA, he never refused Overtime, and he would have done the same at Transport Canada.
[53] The Respondent did not have 2006 and 2007 T4s for Marine unit employees. The Complainant therefore estimated Overtime for those years based on later years, assuming 2006 and 2007 had the higher amounts of Overtime because the Respondent was short-staffed in those years.
[54] Exhibit C-20 are Employee E’s T4s for the years 2008 to 2014, on which the Complainant based his Overtime claims for 2009 to 2012. Employee E was an Analyst in the MSOC who worked there from 2006 to 2012; E opted for voluntary layoff in 2012, pursuant to workforce adjustment. The Respondent’s Ms. Domae later testified about E.
[55] For 2008, the Complainant lowered his Overtime estimate to $15,000 because he would not have been able to work Overtime due to his eye operations.
[56] Using E’s T4s for 2009 to 2012, he compared the basic PM-04 wage in the Collective Agreement to the amount on E’s T4s for those years, and attributed any amount over the Collective Agreement wage to Overtime.
[57] E’s 2009 T4 was $88,000. The PM-04 wage in the Collective Agreement was $58,000. Therefore, the Complainant estimated E’s Overtime at $30,000.
[58] For 2010, E’s T4 stated $73,000. The Complainant did not know which level on the pay grid E occupied— the pay scale was $57,000 to $62,000. The Complainant assumed $61,000 regular pay, and therefore assumed E made approximately $12,000 in Overtime.
[59] For 2011, E’s T4 stated $85,000.00. The Complainant thought E, who he assumed was hired three years prior, would have been at the top of the pay scale by 2011, earning $65,000.00, so he estimated E made just under $20,000 for Overtime.
[60] In 2012, E’s T4 stated $94,300. The top of the PM-04 scale in 2012 was $66,400, so the Complainant calculated E’s Overtime at about $28,000.
[61] For 2013 and 2014, the Complainant’s calculation for each year was $25,000, in keeping with the previous 2 years, because Employee E took voluntary layoff in 2012.
[62] The Complainant testified that the Collective Agreements provided for one day off with pay each year for volunteer work. He seeks either a retroactive credit of 9 days (from 2006 to 2015) if he is instated, or if not possible, payment of the cash value of 9 Volunteer Days.
[63] The Complainant testified that at CCRA/CRA, he had worked his way up to four weeks’ annual vacation. Had the Respondent hired him in May 2006, he testified that the Collective Agreements provides that his past service would have counted towards the calculation of his entitlement to vacation hours. As one builds up hours, if one does not use one’s entire vacation time every year, one gets a payout of the cash value.
When I asked if he went on vacation when he was working at CRA, he testified he may have gone on one or two, but nowhere near the hours to which he was entitled. The Collective Agreements provide that an employee cannot carry more than 262.5 hours into the next fiscal year. Anyone who has in excess of that amount receives a cash payout. He calculated that the total number of hours for the nine years between 2006 and 2015 was 1,667.8 hours. He subtracted from that 262.5 hours which he could carry into his first year at Transport Canada if he were instated. The Complainant submitted he should start work with 262.5 hours of vacation banked, and a cash payout representing the difference of 1,405.3 hours.
[64] The Complainant testified that he used the same rationale to calculate Family Leave Credits as he had for Volunteer Days. He submitted he would have been entitled to five days of Family Leave for each year in the period 2006 to 2015, for a total of 45 days.
[65] The Complainant testified, and I find, that Article 46 of the Collective Agreement entitles an employee to seven days’ Bereavement Leave when a family member dies. The Complainant testified that he would have used that leave in 2010 when his father died. He would have needed at least one additional week, so he would have used a week of Sick Leave.
[66] The Complainant seeks 15 weeks credit for sick leave (Sick Leave), on the basis that if he had been a permanent government employee since May of 2006, he would have accrued 15 days of sick leave per year. He arrived at 145 days by prorating 2006, and then calculating the yearly accrual.
[67] He had a retinal tear followed by two retinal detachments, and consequently had surgeries on his right eye on August 19, September 2 and November 20, 2008, during the recovery for which he could not have worked for at least 14 weeks, leaving an entitlement of 15 weeks which should be credited to him.
[68] The Complainant submitted in Document C-11 that the Collective Agreements provide for 13 paid statutory holidays each year. He submits that statutory holidays might factor into sick leave usage because he would only use four sick days in a week when a paid statutory holiday fell on a day during the period of his medical incapacity.
[69] The Complainant testified that his rationale for requesting that his CRA/CBSA pension be adjusted as if it were continuous – that is, as if he had not obtained the right to access his pension due to financial hardship in December, 2006, was that he would not have accessed it had the Respondent hired him in May, 2006. Therefore, the Pension would have been continuous. He requested that the federal government’s pension service (ACURIS) make the calculation as to what his pension would have been, along with employee deductions and/or contributions, and employer contributions.
[70] The Complainant typed Exhibit C-21, a synopsis of evidence on Special compensation, to use as an aide memoire at the hearing. The Complainant felt it necessary to do so because of his concern that he would become emotionally distraught and miss something important when he testified because of the nine years between 2006 and the hearing. The Respondent did not object to the Complainant using Exhibit C-21, so long as the Respondent had an opportunity to cross-examine on it. I did review Exhibit C-21, and based my findings and conclusion partially on it, but more on the Complainant’s testimony.
[71] Mr. Hughes testified that “over the last nine years”, it cost all his savings to survive. He had to cash his federal pension to survive 2009, 2010, and 2011. In late 2006 he foresaw that he would have problems getting jobs, so he took his federal pension out in December 2006 so that he could access it later. He would have not done that if Transport Canada had hired him. As his pension would have grown for the last nine years prior to the hearing, he took a large financial loss in cashing out his pension.
[72] He felt that Transport Canada had known he was depressed from day one, that they would have known the discrimination would make his depression worse, and that it did. His depression, stress and anxiety got worse through the years. It affected his marriage, which had been very rocky for four years, before breaking down in late 2011. He attributed this to the financial hardship caused by discrimination, as well as litigation involving the Commission and Tribunal. He testified that the process of his marriage falling apart was full of stress, arguments and crying. Because of the uncertainty over his finances over the period 2006 to 2015, the couple did not have children.
[73] For much of this period, he was either worried about finances or actually under financial duress, and he almost went broke about 10 times. He twice had to borrow money from his parents, who in turn borrowed $7,500 from their Church in order to lend him the money. He repaid them from the money he received from cashing out his pension. His father was very sick with Parkinson’s from 2008 to 2010. He was unable to help his parents, but they were helping him. It caused him great distress not to be able to help his father financially, such as hiring him a caregiver so that he would not have had to be at a care facility for his last six months.
[74] At one point, just before his father died, in the period March to May 2010, his anxiety was very high because he thought he had Multiple Sclerosis, or ALS or Parkinson’s disease. He thought this because he had trouble holding his neck up, and had trouble walking on breaks while working at the Coast Guard as his legs couldn’t hold him up. He described feeling like he was going to collapse. He experienced nervous twitches. His doctor did tests and told him he did not have any of these conditions. After finding out the Complainant’s situation, the doctor told him he had acute stress and anxiety.
[75] He has gone for counselling a number of times over the years, but couldn’t specifically recall whether he went during the above period. His doctor talked with him about ways to reduce his anxiety, such as going for walks, trying to stay active, watching comedy or movies, staying away from alcohol and caffeine, and having supportive friends. At 25, he had quit drinking, because it could have been a problem due to his family history. But it was not a problem for him.
[76] The few times he did get jobs, it helped stave off financial hardship. But the jobs he was able to get were short–term, and then he would be back in financial hardship. He worked five months in 2013, and six months in 2014, for B.C.’s Ministry of Children and Family, in what is called an “auxiliary position”.
[77] In response to my question about whether his wife worked during the marriage, he testified that she did, and posited that he would have run out of money more quickly than he did, had she not been working.
[78] His mortgage balance had been $200,000, but he had to re-finance it in 2012 and 2013, to get through those years, so it increased to $260,000. By August 2014, he had to sell the home to access the remaining equity. His mother mortgaged her home to lend him $10,000. He had to repay her, and also friends who had loaned him money. His line of credit was at its maximum. The remaining equity from his house didn’t last long, and he was in debt again by November 2014. He described himself as homeless by that time, living in a hotel.
[79] From 2006 to 2012, he didn’t go to the gym much, put on weight, and was isolating himself from friends. He stopped enjoying life. By November, 2014, although he had won two human rights cases, the government had not paid him. He was going to go on a hunger strike in 2014 until he was paid. The failure of a global settlement meeting on the cases devastated him.
[80] He agreed in cross-examination that after the failed global settlement meeting, he did settle his two com