Tabor v. Millbrook First Nation

Tabor v. Millbrook First Nation
Collection
Canadian Human Rights Tribunal
Date
2015-04-29
Neutral citation
2015 CHRT 9
File number(s)
T1658/1311, T1659/1411
Decision-maker(s)
Marchildon, Sophie
Decision type
Decision
Decision status
Final
Grounds
Marital Status
Sex
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2015 CHRT
9
Date:
April 29, 2015
File Nos.:
T1658/1311, T1659/1411
Between:
Stacey Lee Tabor
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Millbrook First Nation
Respondent
Decision
Member:
Sophie Marchildon
Table of Contents
I. Complaint & Background 1
II. Analysis of the complaint 2
A. Legal Framework 2
B. Ms. Tabor’s case 4
(i) Derogatory comments regarding women 5
(ii) Difficulty getting funding for captain’s training 5
(iii) Work experience with Millbrook and its fishery from 2000-2006 7
(iv) 2007 lobster season 9
(v) 2008 captain’s license 11
(vi) Experience of other women in Millbrook’s administration and fishery 12
C. Prima facie case established 13
D. Millbrook First Nation’s response to the complaint 15
(i) Derogatory comments regarding women 16
(ii) Difficulty getting funding for captain’s training 17
(iii) Experience with Millbrook and its fishery from 2003-2006 19
(iv) 2007 lobster season 20
(v) 2008 captain’s license 27
(vi) Experience of other women in Millbrook’s administration and fishery 33
E. Complaint substantiated 36
III. Order 37
I. Complaint & Background
[1] To begin with, I would like to honour and acknowledge the Mi’kmaq (Mi’kmaw) First Nations people and the Millbrook First Nation community. The hearing of this matter was held on traditional Mi’kmaw territory and close to the Millbrook community, in Truro, Nova Scotia. I was impressed and find it worth mentioning that the parties and witnesses who participated in the hearing, the majority of whom live together in the Millbrook community, were respectful and cordial amongst each other, even in the midst of conflict and litigation. I find their behaviour exemplary and commend them for it. In this decision, when referring to Millbrook First Nation, I am referring to the First Nation as an employer and not to the community as a whole or individual community members.
[2] The Complainant, Ms. Stacey Lee Marshall Tabor, is a Mi’kmaw First Nation woman and a member of the Millbrook First Nation. She comes from a family of fishers and began fishing at 16 years of age. She also comes from a family that fought for their aboriginal and treaty rights. Donald Marshall, her uncle, fought for his treaty right to fish. The Supreme Court of Canada recognized Mr. Marshall had a Mi’kmaq treaty right to fish for sustenance and trade in R. v. Marshall, 1999 CanLII 665 (SCC).
[3] Like her uncle, Ms. Tabor stands up for what she believes in. Ms. Tabor has also exercised her treaty right to fish by doing some unlicensed fishing. It is also clear from Ms. Tabor’s testimony that her passion is fishing. She wants to practice this passion and wishes to someday realize her dream of being a fishing boat captain. In fact, to her knowledge, she was the first First Nations woman to qualify to be a fishing boat captain in Nova Scotia. However, like many other people who have attempted to be the first to do something, it can often be a challenge to be a pioneer. Despite her aspirations and qualifications, Ms. Tabor has only been able to work, on a few occasions, as a Deckhand and First Mate for the Millbrook First Nation fishery.
[4] Ms. Tabor claims Millbrook First Nation has denied her employment in its fishery over several years because she is a woman. Specifically, she asserts Millbrook refused to consider her for a captaincy in its fishery in 2008. She contends her situation is reflective of a larger practice on the part of the First Nation to exclude women from participating in its fishery. Ms. Tabor also claims her exclusion from captaining a vessel in 2008 was based on her marital status, because Millbrook First Nation had issues with her husband following his captaincy in 2007 and held those issues against her as well. Ms. Tabor alleges Millbrook’s actions are discriminatory practices pursuant to sections 7 and 10 of the Canadian Human Rights Act [the CHRA].
[5] For its part, Millbrook First Nation denies the allegations made against it. It claims Ms. Tabor was not selected for a captain’s job in 2008 because there was a more qualified candidate. It also denies having a practice of excluding women from participating in its fishery.
[6] Following the filing of her complaint, Ms. Tabor contends Millbrook First Nation retaliated against her pursuant to section 14.1 of the CHRA. The retaliation allegations will be analyzed in a separate decision.
[7] After hearing from the parties and reviewing all the evidence, submissions and affidavits before me, I find Ms. Tabor’s complaint under sections 7 and 10 of the CHRA to be substantiated for the reasons that follow.
II. Analysis of the complaint
A. Legal Framework
[8] In human rights cases, the complainant has the burden of proof of establishing a prima facie case. 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” (Ont. Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC) at para. 28 [O’Malley]).
[9] Millbrook’s submissions focus mainly on its decision to choose another candidate over Ms. Tabor when she applied for a captain’s license in 2008. As such, Millbrook argues the test from Shakes v. Rex Pak Ltd., (1982) 3 C.H.R.R. D/1001 [Shakes] should be applied to determine if Ms. Tabor has established a prima facie case. That test is: (1) she was qualified for the job; (2) not hired; and, (3) that someone no better qualified, but lacking the distinguishing feature, in this case, of being a woman, subsequently obtained the position (see Shakes at para. 8918).
[10] However, in Premakumar v. Air Canada, 2002 CanLII 23561 (CHRT) the Canadian Human Rights Tribunal (the Tribunal) stated:
[77] While both the Shakes and the Israeli tests serve as useful guides, neither test should be automatically applied in a rigid or arbitrary fashion in every hiring case: rather the circumstances of each case should be considered to determine if the application of either of the tests, in whole or in part, is appropriate. Ultimately, the question will be whether Mr. Premakumar has satisfied the O'Malley test, that is: if believed, is the evidence before me complete and sufficient to justify a verdict in Mr. Premakumar's favour, in the absence of an answer from the respondent?
(see also Lincoln v. Bay Ferries Ltd., 2004 FCA 204 at paras. 17-18; and, Morris v. Canada (Canadian Armed Forces), 2005 FCA 154 at paras. 24‑30)
[11] I agree with this statement and find it would be inappropriate to apply the Shakes test in the circumstances of this case. The nature of the allegations raised in this complaint are broader than the individual 2008 decision to choose another candidate over Ms. Tabor for a captain’s role. Prior to 2008 and on an ongoing basis, Ms. Tabor alleges a systemic practice of denying employment opportunities to women in the Millbrook First Nation fishery, including herself. Moreover, it is Millbrook who characterizes the 2008 captain’s decision as being based on a comparison of the qualifications between Ms. Tabor and the chosen candidate. In her complaint and evidence, Ms. Tabor states she was not provided with such an explanation for Millbrook’s 2008 captain’s decision.
[12] Therefore, applying the O'Malley test to the context of this case, to demonstrate prima facie discrimination Ms. Tabor had to establish: that she had a characteristic or characteristics protected from discrimination under the CHRA (section 3 of the CHRA); that she was refused or deprived employment or treated adversely in employment (section 7 and/or 10(a) of the CHRA); and, that the protected characteristic or characteristics were a factor in the refusal to employ her (section 7(a) of the CHRA) or the practice that deprived her of employment opportunities (section 10(a) of the CHRA) (see Moore v. British Columbia (Education), 2012 SCC 61 at para. 33 [Moore]).
[13] If a prima facie case is established, a respondent can avoid an adverse finding by calling evidence to show its actions were not discriminatory; or, by establishing a statutory defence that justifies the discrimination. In this case, Millbrook led evidence in an effort to show that its actions were not discriminatory. Therefore, it had an evidential burden to rebut the prima facie case to avoid an adverse finding (Peel Law Association v. Pieters, 2013 ONCA 396 at para. 68 [Pieters]). However, the ultimate burden of proof remained on Ms. Tabor to establish Millbrook’s evidence was false or a pretext (see Pieters at para. 74).
[14] Furthermore, it should be kept in mind that discrimination is not usually practiced overtly and, consequently, proving it by way of direct evidence is often difficult. Therefore, the Tribunal’s task is to consider all the circumstances and evidence to determine if there exists the “subtle scent of discrimination” (see Basi v. Canadian National Railway, 1988 CanLII 108 (CHRT)). As the standard of proof in discrimination cases is the ordinary civil standard on a balance of probabilities, “[a]n inference of discrimination may be drawn where the evidence offered in support of it renders such an inference more probable than the other possible inferences or hypotheses” (Béatrice Vizkelety, Proving Discrimination in Canada (Toronto: Carswell, 1987) at p. 142).
[15] Finally, it is not necessary that discriminatory considerations be the sole reason for the actions in issue for a complaint to succeed. It is sufficient that a discriminatory consideration be one of the factors in the actions in issue (Holden v. Canadian National Railway Co., (1991) 14 C.H.R.R. D/12 (F.C.A.) at paragraph 7).
B. Ms. Tabor’s case
[16] The events giving rise to Ms. Tabor’s complaint span over a decade, mainly from 1996 to 2008. The evidence offered in support of her complaint can be divided into the following categories: (i) derogatory comments regarding women; (ii) difficulty getting funding for captain’s training; (iii) work experience with Millbrook and its fishery from 2000-2006; (iv) the 2007 lobster season; (v) the 2008 captain’s license; and, (vi) the experience of other women in Millbrook’s administration and fishery. On a prima facie basis, the following are my findings of fact related to each of these categories of evidence, unless specified otherwise.
[17] Based on this evidence, I find Ms. Tabor has established a prima facie case of discrimination pursuant to sections 7 and 10 of the CHRA, on the compound grounds of sex and marital status.
(i) Derogatory comments regarding women
[18] Ms. Tabor began her experience working for Millbrook in 1996 when she was a summer student working as a fisheries guardian. Of the four fisheries guardians working for Millbrook that summer, Ms. Tabor was the only female. She described the working environment as sexist and chauvinistic.
[19] It was during her 1996 summer experience that Mr. Alex Cope, at the time and currently the Band Administrator for Millbrook First Nation and an elected Band Councillor, first made comments regarding the role of women in the fisheries. Mr. Cope made comments to the effect that the only place for women’s breasts on a boat was on the bow as a figurehead. Mr. Cope repeated the comments at a dinner in Ms. Tabor’s home, in front of their guests, in 2005. This time the comments were specifically directed towards Ms. Tabor.
[20] Craig Tabor, the Complainant’s husband, confirmed Ms. Tabor’s testimony when he also testified that he was present for and heard Mr. Cope make the same comments during the get together at the Tabors’ home in 2005.
(ii) Difficulty getting funding for captain’s training
[21] By 1998, Ms. Tabor wanted to get training to become a captain. She decided to pursue a Master Limited course, a form of captain’s training and certification, at the Nova Scotia Community College School of Fisheries in Pictou, Nova Scotia. She found out other men from Millbrook were taking the course and the First Nation was funding their training. However, when she approached Millbrook for funding for the training, she was denied the funding and told there were no more spots available at the school.
[22] Despite this denial, Ms. Tabor phoned the school and was told a spot was still available. She registered for the Master Limited course on a Friday and began attending the school the following Monday.
[23] Ms. Tabor testfied that Mr. Cope was angry at her for going to the school and told her, in a phone conversation, she should not be there as she was taking the spot from someone else. She tried many times to find out who the person was that she was allegedly taking a spot from, but was unable to do so. She also does not recall many Millbrook community members being present at the school for the course. In her recollection, there were only two other Millbrook community members attending the course.
[24] Near the end of the course, Ms. Tabor contacted Ms. Clara Gloade, a former Band Councillor for Millbrook First Nation and member of the Native Women’s Association of Nova Scotia (the Association), to enquire whether there were any other options to receive funding for her fisheries training. Ms. Gloade supported Ms. Tabor’s pursuit of fisheries training and offered her a job at the Association to help with the tuition fees.
[25] Ms. Gloade testified before the Tribunal. She tried to obtain funding for Ms. Tabor’s course by bringing the issue before Millbrook’s Chief and Council, but was unsuccessful. It is Ms. Gloade’s opinion that Millbrook was reluctant to fund Ms. Tabor’s course because she is a woman. As a result, and given she wanted to help Ms. Tabor obtain training to realize her ambition of becoming a captain, Ms. Gloade helped Ms. Tabor obtain employment at the Association in an effort to assist with her tuition fees.
[26] On the last day of her training, Ms. Tabor learned Millbrook would fund her course after all. Ms. Tabor successfully completed the Master Limited course, including meeting a minimum requirement for time at sea fishing.
(iii) Work experience with Millbrook and its fishery from 2000-2006
[27] Millbrook’s fishery fishes various species of marine creatures. A large part of their catches are lobster, rock crab and snow crab. The lobster fishing season usually runs from the beginning of May to the end of July, followed by the snow crab season that usually runs from the end of June to September.
[28] Following her training at the School of Fisheries, Ms. Tabor worked various seafaring jobs outside of Millbrook First Nation. She started working for Millbrook in 2000. Her first position was “doing ropes”, which is a form of fishing gear preparation and is done on land.
[29] In 2001 and 2002, Ms. Tabor worked as a Deckhand fishing lobster out of Pictou Landing. Her duties included regular deck jobs, such as fishing and seperating lobster, baiting traps and painting buoys.
[30] Following the 2002 lobster season, Ms. Tabor made her interest known to Adrian Gloade, the Millbrook First Nation Fisheries Manager, that she was interested in fishing the snow crab season as well. Fishing snow crab is more demanding than fishing lobster, as the boat goes further out at sea and for longer periods of time, usually 2-3 days, but it is also more lucrative. Ms. Tabor was told she did not have enough experience to go snow crabbing. However, around the end of June 2002, Mr. Tabor received a call from Adrian Gloade offering him a position as a Deckhand on a snow crab boat. At that time, Mr. Tabor did not have any fishing experience in Millbrook’s fishery. His only experience with Millbrook’s fishery at that point, from earlier in 2002, was preparing gear and painting buoys.
[31] Later in September 2002, while Ms. and Mr. Tabor were driving together in front of the Band office, Mr. Cope flagged the couple down and explained he needed their help to go out snow crab fishing. According to the Tabors, at that time, there was a shortage of fishers because a number of them were on strike and refusing to fish. The Tabors agreed to fish the rest of the 2002 snow crab season and Ms. Tabor was assigned to a vessel as a First Mate fishing out of Port Bickerton. A First Mate has added responsibilities on top of those of the Deckhands, including overseeing the crew and navigating the boat when the captain is not available. The position requires more training and sea experience than that of a Deckhand.
[32] Three weeks into her assignment as First Mate, Ms. Tabor informed Adrian Gloade that she was five weeks pregnant. She continued to fish the 2002 snow crab season until a particularly rough time at sea caused her some stomach pain. She decided to stop fishing for the season for the safety of her pregnancy.
[33] On March 14, 2003, Ms. Tabor gave birth to a son.
[34] Around July or August 2003, Ms. Tabor called Adrian Gloade about securing another position with the fishery. As a snow crab vessel was short a crew member, Ms. Tabor was given an opportunity to go out on a “hitch”. A “hitch” is the period of time from when the vessel leaves the wharf to go out to sea until it returns to land. As mentioned above, in the case of snow crab fishing, a hitch could last a few days. Unfortunately, during the hitch in 2003, Ms. Tabor was injured and, thereafter, was no longer available to fish for the rest of the 2003 season.
[35] In Ms. Tabor’s experience, to apply for a fishing position with Millbrook’s fishery, one needs to call or show up at the Band office, or speak with Adrian Gloade. The Fisheries Department then decides whether a job is made available to an individual. There is no formal application process or forms to fill out. This was Mr. Tabor’s experience as well. As he explained, it is the informal, however, usual process to be followed when someone is interested in obtaining a job in the fishery.
[36] From 2004 to 2006, Ms. Tabor made several attempts to gain employment fishing for Millbrook by calling or appearing in person at the Band office. Despite her Master Limited certificate and fishing experience, she was unsuccessful in doing so. When she would request work, she was treated dismissively.
[37] During this time, and given she could not secure employment with Millbrook’s fishery, she eventually gave up trying to work in the fishery. She dedicated herself to taking care of her child, along with working other non-fishing jobs, including making lobster traps for Millbrook in 2004.
[38] Ms. Loretta Bernard, a former Band Councillor and former receptionist for Millbrook, also testified before the Tribunal and corroborated Ms. Tabor’s accounts of trying to gain employment in the fishery. She witnessed Ms. Tabor calling and coming into the Band office to request work on the fishing boats. Ms. Tabor was not taken seriously by Millbrook officials. Ms. Bernard described their behavior as rolling their eyes, making jokes about Ms. Tabor, and making comments about the place of women in the community, namely that they should stay home with their kids.
(iv) 2007 lobster season
[39] Mr. Tabor also worked for Millbrook’s fishery. His first position, in April 2002, was painting buoys and preparing gear prior to the fishing season. In fact, he first met and worked with Ms. Tabor in April 2002 and she taught him how to make lobster traps and prepare the gear for the lobster fishery. As mentioned above, Mr. Tabor was subsequently offered a position as a Deckhand for the 2002 snow crab season, his only prior experience in the fishery being painting buoys and preparing gear earlier that year. Mr. Tabor continued to work as a Deckhand during the 2003 lobster and snow crab seasons. In 2004, Adrian Gloade approached him to take his captain’s training even though he did not have the sea time required to complete this training. While he did his captain’s training in 2004, he lacked a first aid certificate, along with the minimum requirement of sea time, to complete his Master IV Class certificate. Despite this, he mentored as a First Mate over the course of the 2004 and 2005 seasons and fished both lobster and snow crab. For the 2006 and 2007 lobster seasons, Mr. Tabor was awarded a captain’s license, on a boat named the Chief Rachael Marshall, fishing out of Lismore. He was given the captain’s position without asking for it. He eventually completed his first aid certificate and received his Master IV Class certificate in 2009.
[40] As mentioned above, Mr. Tabor corroborated Ms. Tabor’s assertion that all that needed to be done to get a job with the fishery was to make your interest known by calling or speaking in person to Adrian Gloade or to appear at a council meeting and manifest your interest. He also testified about the drug tests administered by Millbrook for those who wanted to fish. They are usually offered around March or April and all fishers have to take the test before the fishing season commences. There is a second opportunity for a person to take the drug test again if the first one is failed. According to Mr. Tabor, he failed more drug tests than he passed, but was still allowed to go fishing. In her testimony, Ms. Tabor corroborated Mr. Tabor’s evidence on this issue.
[41] A captain normally chooses his own crew and Mr. Tabor wanted to hire Ms. Tabor as a Deckhand for the Chief Rachael Marshall in 2007. However, he encountered resistance from Millbrook to let him hire her. After much insistence, Mr. Tabor was able to get Ms. Tabor on his crew. This was the first time Ms. Tabor was employed in Millbrook’s fishery, on a fishing boat, since 2003. She ended up steering the boat for most of the 2007 lobster season.
[42] At the end of the 2007 lobster season, Mr. Tabor was asked to go out fishing snow crab for Millbrook on a different boat. He left the fishing gear from the Chief Rachel Marshall on the wharf to dry out, as is the usual practice, so it would not become moldy when later stored. The gear remained on the wharf for a few weeks. It took longer than usual for the gear to dry out since it rained the first week. Mr. Tabor also conceded that the gear remained out on the wharf longer than usual because he was out snow crab fishing. While at sea snow crab fishing, Millbrook hired people to remove the fishing gear from the wharf and deducted the costs for doing so from Mr. Tabor’s 2007 earnings from Millbrook’s fishery.
[43] In the past, Mr. Tabor was asked by Millbrook to help remove gear from the wharf for other fishers, and was never paid to do so. According to Mr. Tabor, it is common practice in Millbrook for fishers to help each other out and he does not understand why Millbrook had to pay people to remove his gear in 2007.
[44] There was also a disagreement between Millbrook and Mr. Tabor regarding the lobster sales arising from the Chief Rachael Marshall. Millbrook identified a shortfall between Mr. Tabor’s pay and the lobster sales from his boat. Mr. Tabor claims there are discrepancies in Millbrook’s accounting and that some lobster sales were not properly attributed to his boat.
[45] In 2007, Mr. Tabor was also involved in a small claims action initiated by Frank Gloade, a former Deckhand of his from the 2006 season. In 2006, Frank Gloade was asked by Millbrook to leave Mr. Tabor’s crew before the end of the season in order to fish snow crab for Millbrook on another vessel. As a result, Mr. Tabor had refused to pay Frank Gloade for the part of the fishing season where he was assigned to the other boat. Frank Gloade pursued Mr. Tabor in small claims court for breach of contract. Millbrook supported Frank Gloade in the action.
[46] Following the small claims court proceedings, around August 2007, Mr. Cope told Mr. Tabor he would not fish or work in any capacity for Millbrook ever again. Mr. Tabor has not worked for Millbrook since that time. Despite the dispute with Millbrook over gear storage and sales in 2007, Mr. Tabor believes it is the small claims court action that was the catalyst for Mr. Cope telling him he would never work for Millbrook again.
(v) 2008 captain’s license
[47] Following her experience as Deckhand in 2007, and seeing as Mr. Tabor was not returning to work in the fishery, Ms. Tabor was interested in taking over the license for the Chief Rachael Marshall for the 2008 lobster season. In or about early January 2008, she and Mr. Tabor approached Mr. Cope regarding the lobster sales issue from the 2007 season. During this conversation, Ms. Tabor indicated to Mr. Cope her interest for the captain’s license for the Chief Rachael Marshall for the upcoming lobster season.
[48] On January 8, 2008, Ms. Tabor went to a Band Council meeting, attended by Mr. Cope and Adrian Gloade, where she reiterated her interest for the captain’s license for the Chief Rachael Marshall.
[49] In January or February 2008, in a phone conversation, Ms. Tabor spoke with Adrian Gloade over speakerphone in Mr. Tabor’s presence. Mr. Gloade informed her that, despite her interest, Millbrook allocated the Chief Rachael Marshall captain’s license to Frank Gloade. During this conversation, when pressed by Ms. Tabor as to the reasons why she was not chosen for the captain’s license, Ms. Tabor described Adrian Gloade as becoming evasive and indicated that the Fisheries Committee had considered her for a license, but that she did not “stand out”. When Ms. Tabor asked why she was not notified that the decision was upcoming, Adrian Gloade told her the Fisheries Committee was in a rush to allocate the licenses due to an upcoming meeting involving the Department of Fisheries and Oceans. Mr. Tabor corroborated Ms. Tabor’s evidence regarding the phone conversation with Adrian Gloade and that she was told at that time that she did not get the licence as it was given to Frank Gloade.
[50] As a result, Ms. Tabor did not receive a captain’s license for the 2008 lobster season.
(vi) Experience of other women in Millbrook’s administration and fishery
[51] Ms. Tabor also testified that, to the best of her knowledge, there has never been a female captain in the Millbrook fishery. Furthermore, very few women work in the fishery, and those that do, work in low-level positions, usually on land, or perform administrative duties. Ms. Tabor feels angry, hurt, frustrated, humiliated, degraded, embarassed and, at times, depressed that her own First Nation would exclude her from its fishery. She testified that the whole experience leading to her complaint has “taken the wind out of her sails” and that she is exhausted by having to continually try to prove herself to people who do not want to take notice of her.
[52] Ms. Gloade also testified as to her experience as a Band Councillor for Millbrook First Nation for almost 20 years. She raised local women’s issues before Band Council on many occasions. She stated she was always outvoted on issues regarding women at Band Council. Based on her observations and experiences on Band Council, she believes women, including Ms. Tabor, are treated differently than men in Millbrook.
[53] Ms. Bernard, also in her experience as a Band Councillor for over 14 years and receptionist for Millbrook for approximately 9 years, corroborated Ms. Gloade’s assertions regarding women in Millbrook First Nation. Ms. Bernard testified that women are treated differently than men and that many leaders and councillors of the community believe women should not work and should stay at home with their children. In her view, this kind of thinking is commonplace in Millbrook. Ms. Bernard added that, to her knowledge, there are very few women working in Millbrook’s fishery, and the ones that do, mostly work low-level positions in the office or baiting traps on the wharf.
C. Prima facie case established
[54] Ms. and Mr. Tabor testified for many hours, but answered questions succinctly and without hesitation. More importantly, their testimony was consistent with the allegations in the complaint and their affidavits, even when challenged under cross-examination. Mr. Tabor testified with a considerable amount of detail that corroborated Ms. Tabor’s testimony. Although married to Ms. Tabor, I had no reason to believe Mr. Tabor was testifying in a self-serving manner in support of his wife. Overall, I found Ms. and Mr. Tabor’s evidence to be credible and reliable.
[55] Ms. Gloade and Ms. Bernard also corroborated the larger context of Ms. Tabor’s evidence regarding the way women in Millbrook and, more specifically, in the fisheries are treated.
[56] When considered as a whole, the evidence brought forward in support of Ms. Tabor’s complaint shows, on a prima facie basis, a pattern whereby she has been denied employment opportunities in Millbrook’s fishery. It begins with the comments by Mr. Cope, a prominent authority and decision-maker in the community. Mr. Cope’s comments may indicate Millbrook’s attitude towards employing women in the fishery. Coupled with her difficulty in getting funding for her captain’s training, the subtle scent of discrimination begins to permeate.
[57] Despite her training and experience, including obtaining a Master Limited certificate with all its corresponding requirements of sea time experience and other certifications, Ms. Tabor only rises to the position of First Mate with the Millbrook fishery. Her one season as a First Mate coming in 2002 when there is a shortage of fishers. Otherwise, from 2000 to 2003 Ms. Tabor works mostly as a Deckhand on a few occasions.
[58] From 2004 to 2006, despite contacting the Band office and Adrian Gloade multiple times by phone and in person for a job opportunity to go out fishing, Ms. Tabor cannot secure employment with Millbrook’s fishery. Ms. Bernard testified that Ms. Tabor’s requests for employment in the fishery are not taken seriously by officials in Millbrook because she is a woman. This further corroborates Millbrook’s prima facie attitude towards employing women to fish in its fishery.
[59] In contrast to Ms. Tabor, Mr. Tabor begins fishing for Millbrook at the request of Adrian Gloade and receives employment in the fishery without issue, including regular work in both the lobster and snow crab fishery every year. Adrian Gloade even approaches him about getting his captain’s training. Once Mr. Tabor completes his captain’s training, and despite not meeting all the requirements to get his captain’s certification, he quickly rises in rank, becoming a captain in 2006 without asking for it. This notwithstanding failing some drug tests.
[60] In 2007, Mr. Tabor’s second year as a captain, he attempts to hire Ms. Tabor on his crew. It takes much convincing on his part for Millbrook to agree thereto. At the end of the 2007 lobster season, disagreements arise between Mr. Tabor and Millbrook over gear storage and sales, along with a small claims court action. The result of the small claims court action is that Mr. Tabor is told he will never work for Millbrook again. He in fact has not returned to work for Millbrook since that time.
[61] All these facts culminate with Millbrook’s decision not to award Ms. Tabor a captain’s license in 2008. By her account, despite making her intentions known, Millbrook did not even consider her for the role of captain. This is consistent with Ms. Tabor’s evidence regarding the way Millbrook treated her other applications for work in the fishery from 2004-2006. It is also consistent with Ms. Tabor’s other evidence regarding Millbrook’s views of women working in the fishery.
[62] Based on the prima facie facts leading up to the 2008 decision, I am satisfied on a prima facie basis that sex was at least a factor in Ms. Tabor being denied the captain’s license. Therefore, a prima facie case under section 7 of the CHRA, based on sex, has been established.
[63] On a prima facie basis, I am also satisfied that the fact that Ms. Tabor is married to Mr. Tabor was a factor in Millbrook’s decision not to award her a captain’s license in 2008. The ground of marital status encompasses discrimination based on the particular identify of a spouse or family member (see B. v. Ontario (Human Rights Commission), 2002 SCC 66). In my view, there is a prima facie link between the alleged performance issues Millbrook had with Mr. Tabor’s captaincy in 2007; the 2007 small claims action; Mr. Tabor’s assertion that he was told he would not work for Millbrook again; and, Ms. Tabor not being considered for a captaincy in 2008. Given the sequence and proximity of the events between 2006 and 2008, and Millbrook’s hesitance to allow Mr. Tabor to hire Ms. Tabor in 2007, I believe sufficient evidence was presented to warrant an explanation from Millbrook as to the marital status allegation. Therefore, I am satisfied that a prima facie case under section 7, based on marital status, has also been established.
[64] Finally, the combined evidence of Ms. Tabor, Ms. Gloade and Ms. Bernard on their experience in Millbrook’s administration and fishery leads me to believe, on a prima facie basis, that Ms. Tabor’s experience may be reflective of a larger practice whereby women are deprived of employment opportunities in Millbrook’s fishery. Ms. Tabor’s evidence regarding the comments about women in the fishery and her difficulty in gaining employment with Millbrook’s fishery; combined with Ms. Gloade and Ms. Bernard’s evidence regarding Ms. Tabor’s treatment; how women’s issues are not taken seriously by Millbrook; that very few woman work in the fishery; and, that those who do work in the fishery, are given low-level positions, satisfies me that a prima facie case, pursuant to section 10(a) of the CHRA, has been established on the ground of sex.
D. Millbrook First Nation’s response to the complaint
[65] As mentioned above, Millbrook led evidence to attempt to demonstrate that its actions were not discriminatory. It addressed each aspect of Ms. Tabor’s case: (i) the derogatory comments regarding women; (ii) Ms. Tabor’s difficulty in getting funding for her captain’s training; (iii) Ms. Tabor’s experience with Millbrook and its fishery from 2003-2006; (iii) the 2007 lobster season; (iv) the 2008 captain’s license; and, (v) the experience of other women in Millbrook’s administration and fishery.
[66] From Millbrook’s initial response to this complaint to the Commission in 2008; to the filling of its affidavits before the Tribunal; and, finally, to its presentation of testimonial evidence at the hearing of this matter, Millbrook’s explanations to the actions giving rise to this complaint were constantly changing and evolving. Various inconsistencies in Millbrook’s position and evidence will be highlighted in the following pages. Overall, I find Millbrook’s evidence to be unconvincing, unreliable and pretextual. Having considered all of Millbrook’s evidence and weighing it against the evidence offered by Ms. Tabor, on a balance of probabilities, I find Millbrook discriminated against Ms. Tabor.
(i) Derogatory comments regarding women
[67] In responding to the allegation that he made comments to the effect that the only place for women/breasts on a boat was on the bow as a figurehead, Mr. Cope’s testimony was inconsistent with his sworn affidavit.
[68] In his affidavit he swore he never made the comment in 1996. With regard to the allegation that the comment was repeated in 2005, Mr. Cope swore in his affidavit that it was actually Mr. Tabor who made the comment then. He added that he found it saddening that Mr. Tabor was now attributing the comment to him in order to advance Ms. Tabor’s complaint.
[69] In his testimony in chief, Mr. Cope confirmed the statements in his affidavit. However, on cross-examination, he was presented with Millbrook’s initial response to the complaint before the Commission, filed by its counsel and dated September 2, 2008. A portion of that response states:
Alex Cope does agree that he made the comment regarding the front of the boat however, he made the comment in jest to Ms. Tabor’s husband, Craig Tabor, who is Alex Cope’s nephew.
[70] Mr. Cope then explained that he may have said the comments jokingly, along with others who were saying it as well. According to him, it was an ongoing joke and not specifically directed at Ms. Tabor.
[71] Mr. Cope’s testimony on this issue was unconvincing and unreliable. It is clear the comments were made. Based on Mr. Cope’s comment that it was an “ongoing joke”, and Ms. and Mr. Tabor’s prima facie evidence, I find the comments were also made on more than one occasion. The fact that the September 2008 statement mentions the comments were made to Mr. Tabor also leads me to accept Ms. and Mr. Tabor’s evidence that the comments were directed towards Ms. Tabor in 2005.
(ii) Difficulty getting funding for captain’s training
[72] In his affidavit, Mr. Cope stated Millbrook was reluctant to pay for Ms. Tabor’s captain’s training course because she had previously enrolled in the course in 1997, but did not finish it. However, when testifying, he explained that Millbrook initially offered the course to ten people. Ms. Tabor only found out about the training once the spots were full; and, Millbrook was not initially willing to fund her spot as she circumvented the Band by going directly to the school to get another spot opened up. This resulted in one more spot than Millbrook was willing to fund. Adrian Gloade also testified that Ms. Tabor only expressed interest in the training once the spots were full and that she contacted the school directly and had a spot opened up for her.
[73] On this issue, Millbrook also challenged the reliability of Ms. Clara Gloade’s evidence regarding Ms. Tabor’s difficulty in getting funding for captain’s training. According to Millbrook, Ms. Gloade’s recollection of people and events, in general, was not accurate. Millbrook also noted that Ms. Gloade has spent her lifetime championing First Nations women’s issues in Nova Scotia; therefore, it is not surprising to hear how she describes the situation of First Nations women in Millbrook. According to Millbrook, it would be counter-intuitive for someone, whose very essence and entire career has centered around the plight of Aboriginal woman in Nova Scotia, to suggest anything less than she did about the Millbrook Fishery.
[74] While I agree Ms. Gloade’s memory has faded, and that she could not recall some events and some individuals, this does not, in my view, affect the reliability of her whole testimony. On the specific point that she attempted to champion Ms. Tabor’s cause before Millbrook’s Council to obtain funding for her course at the School of Fisheries, and her understanding from Ms. Tabor that this was because Millbrook was reluctant to fund her course, I find her evidence reliable. I also accept her evidence that women are treated differently than men in Millbrook as will be discussed later in these reasons.
[75] While Ms. Gloade’s testimony is not determinative of why Ms. Tabor was initially denied funding for her captain’s training, it does corroborate Ms. Tabor’s assertion that she had challenges receiving funding.
[76] I do find it concerning however that Millbrook would argue that, given Ms. Gloade defended First Nations women’s rights all her life, this necessarily affects her credibility. I find this to be an unwarranted attack on her integrity as nothing in her evidence leads me to question her motives for testifying or the credibility of what she said.
[77] Overall, I find Millbrook’s explanation for Ms. Tabor’s difficulty in getting funding for her captain’s training to be unreliable and unconvincing.
[78] Ms. Tabor explained the reason why she di