Saldanha v. Statistics Canada

Saldanha v. Statistics Canada
Collection
Canadian Human Rights Tribunal
Date
2024-10-11
Neutral citation
2024 CHRT 109
File number(s)
T2467/2420
Decision-maker(s)
Khurana, Jennifer
Decision type
Decision
Grounds
Colour
National or Ethnic Origin
Race
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2024 CHRT
109
Date:
October 11, 2024
File No.:
T2467/2420
Between:
Barbara Saldanha
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Statistics Canada
Respondent
Decision
Member:
Jennifer Khurana
I. OVERVIEW [1] Barbara Saldanha, the Complainant, worked for Statistics Canada, the Respondent, from January 2004 until April 2017 as an interviewer employed by Statistical Survey Operations (SSO). Ms. Saldanha self-identifies as a visible minority of South Asian origin. After initially working in a Regional Office, Ms. Saldanha joined the Canadian Health Measures Survey (CHMS or ‘Survey’) in 2007 as a field interviewer. The CHMS was a mobile team of interviewers that conducted health interviews and surveys across Canada. Ms. Saldanha loved her work with the CHMS and things were going well when she began to report to a new Senior Interviewer (SI). Ms. Saldanha was then removed from the CHMS team and returned to her home region in 2016 following a decision to start using bilingual interviewers only on the Survey.
[2] Ms. Saldanha alleges that she experienced adverse differential treatment in employment on the grounds of race, colour and national and ethnic origin and that she was treated unjustly and unfairly compared to her white colleagues, contrary to sections 7(a) and (b) of the Canadian Human Rights Act (“the Act”). In particular, Ms. Saldanha alleges that she was unfairly targeted with respect to the application of various policies, that she was subject to discriminatory and inappropriate behaviour by her supervisor, and that when the CHMS switched to a bilingual team, her removal was a pretext for discrimination. Finally, Ms. Saldanha alleges Statistics Canada retaliated against her for filing a human rights complaint when she was not selected in a selection process for positions in her home region, effectively terminating her employment with Statistics Canada.
[3] Statistics Canada denies the allegations and says that Ms. Saldanha is a frustrated employee who did not get along with her supervisor and assumed that all managerial decisions she did not like targeted her personally. It argues that interpersonal conflicts in a traveling team of colleagues who spend a lot of time together are bound to occur, but that none of these challenges had any link to discrimination or a protected characteristic under the Act. It says that running the CHMS involved significant planning, time and resources, and that operational decisions had to be made, including changes to the staffing structure. None of those decisions had to do with Ms. Saldanha’s race, colour or ethnicity. Statistics Canada also denies that the non-renewal of Ms. Saldanha’s term employment was orchestrated in retaliation for her human rights complaint. It says there is no evidence to support Ms. Saldanha’s claim that anyone involved in the selection process knew about her human rights complaint.
[4] The Commission is a party to the proceedings and acts in the public interest. It did not participate at the hearing.
[5] Ms. Saldanha is an intelligent, articulate woman who represented herself admirably throughout these proceedings. My findings do not take away from her skills and experience as an interviewer, which were recognised by her employer given the length of her employment and the evidence I heard about her performance. But on the evidence before me and the law I am bound to apply, I do not find that she has met the test for discrimination or retaliation under the Act.
II. DECISION [6] Ms. Saldanha’s complaint is dismissed. She has not established that it was more likely than not that Statistics Canada subjected her to adverse differentiation at least in part due to her race, colour or national and/or ethnic origin, nor that she was retaliated against for filing a human rights complaint. Ms. Saldanha is not entitled to any remedy under the Act.
III. CONTEXT
A. The Structure of the SSO and the CHMS
[7] The SSO is a distinct organization responsible for carrying out the collection of survey data for statistical programs throughout Canada. It plays a supporting role for Statistics Canada but is listed as a separate agency under Schedule V of the Financial Administration Act.
[8] Within the SSO, there are two levels of employees: interviewers and SIs. SIs are responsible for day-to-day supervision of other interviewers, including training, assignment of work, performance evaluation and approval of leave requests. All SSO interviewers are paid on an hourly basis and have fluctuating workload levels, depending on the nature of assignments available. Collective agreements govern terms of employment for SSO interviewers. The SI reports to the Data Collection Manager (DCM), who reports to the Regional Program Manager, who ultimately reports to the Director for the Central Region, who in turn reports to the Director General for the Collection and Regional Services Branch.
[9] The CHMS was launched in 2007 and aims to collect important health information about Canadians to determine relationships between disease risk factors and health status. It is an example of one of many surveys to which SSO interviewers could be assigned. The CHMS includes two components: 1) the collection of direct health measures by medical experts (e.g. blood tests, weight); and 2) a household survey which collects information on how Canadians feel about their overall health. This case only relates to work performed in the second category, namely the collection of survey responses.
[10] The CHMS was staffed with existing, qualified SSO interviewers who would travel from one site to the next along with medical experts. SSO employees across Canada could respond to Expressions of Interest to indicate their desire to be considered for an assignment on the CHMS team. Over the years Expressions of Interest were solicited when additional team members were required, and criteria were adjusted to reflect the organisation’s operational needs. Accepting an assignment with the CHMS did not impact an interviewer’s substantive position or their existing terms of employment.
B. Ms. Saldanha’s work with Statistics Canada from 2003 until 2007 [11] Ms. Saldanha was hired in December 2003 to work as a Core Field Interviewer for the Toronto Regional Office in Scarborough, Ontario. She was initially trained to conduct a survey of housing spending but also worked on other assignments, sometimes taking on multiple surveys at a time. She conducted in-person interviews as well as telephone interviews and received a linguistic allowance because she could do interviews in multiple languages, including Hindi, Urdu and Arabic. Ms. Saldanha did not conduct any interviews in French. She enjoyed the work, received positive performance appraisals, and did not have any issues in the workplace.
C. The CHMS project: 2007-2009 [12] The CHMS went live on January 2, 2007 and was managed by the Collection Planning Division (CPMD) in Ottawa. The CHMS initially required interviewers to be bilingual and to meet the federal government language test level of “BBC”. Ms. Saldanha applied to be an interviewer after seeing an Expression of Interest but did not meet the language requirements. She continued working on various contracts through the Toronto Regional Office in Scarborough.
[13] Ms. Saldanha joined the CHMS during Cycle 1 of the project in the fall of 2007 when the CHMS waived the language requirement.
D. Ms. Saldanha’s grievances [14] Ms. Saldanha filed a number of grievances regarding issues related to this complaint.
[15] On April 24, 2013, Ms. Saldanha grieved her removal from the CHMS team following a verbal dispute with her colleague in February 2013. On April 17, 2016, the Complainant grieved Statistics Canada’s decision not to renew her assignment to the CHMS team on the grounds that she was not bilingual. Ms. Saldanha grieved the Employer’s decision to not conduct a selection process and not to evaluate her language skills. She also grieved the use of what she believed was an expired and outdated qualifying list of candidates.
[16] On June 10, 2016, after she filed her human rights complaint, Ms. Saldanha filed a grievance alleging that she had experienced adverse differential treatment based on her race due to discriminatory intent and motive on the part of the SI on the CHMS team. On November 14, 2016, the Complainant filed a grievance alleging adverse differential treatment and lack of work assignments. She also requested that she be granted indeterminate status. On May 30, 2017, Ms. Saldanha grieved the non-renewal of her term contract and requested that she be immediately reinstated.
IV. PROCEDURAL AND EVIDENTIARY ISSUES A. Conduct of the hearing [17] At the outset of the hearing, I proposed asking Ms. Saldanha open-ended questions and allowing her to provide any additional evidence that was not addressed by my questions. The parties consented to my proposal. I also told the parties to intervene at any time if they had concerns about any of my questions. They did not raise any concerns with respect to my questions during Ms. Saldanha’s evidence or any time during the hearing.
[18] I did not require opening statements from the parties but gave them the opportunity to make a brief statement if they wished. I also asked for input about the issues in dispute and how I characterised them. I suggested that given that Ms. Saldanha made a number of allegations in her SOP, we structure these in three buckets: 1) allegations related to Ms. Doucette; 2) allegations regarding changes to the CHMS; and 3) allegations of retaliation related to the 2017 hiring process. The parties agreed. Ms. Saldanha confirmed that she was not alleging that she was terminated on the basis of a protected ground, but rather only that filing of her human rights complaint was a factor in her contract not being renewed in 2017.
[19] Ms. Saldanha intended to call three witnesses at the hearing, namely Ayesha Alagaratnam, Maria Lopez and Lynn Minor, all of whom were interviewers with the CHMS. Ms. Minor was summonsed to appear but did not testify. Statistics Canada called five witnesses, namely Catherine Puopolo, Marlene Mathon, Maryse Doucette, Geoff Bowlby and Karla Collins.
B. Ms. Minor’s request to be an interested party [20] Ms. Saldanha intended to call Lynn Minor as a witness at the hearing. She submitted a summary of Ms. Minor’s proposed evidence in keeping with the Tribunal’s direction to the parties to submit detailed will-say statements in advance of the hearing. Shortly before the start of this hearing, Ms. Minor contacted the Tribunal and expressed concerns about testifying.
[21] When Ms. Minor appeared at the hearing, she said that Ms. Saldanha’s proceeding was being used to create a false narrative about the CHMS being converted to a bilingual programme and that there was a conflict between information being addressed in Ms. Saldanha’s case and another proceeding. She was prepared to read out her written statement but did not want to testify. I told Ms. Minor that the purpose of her being called as a witness was to hear her oral evidence, that Ms. Saldanha would ask her questions, and that Statistics Canada would have the opportunity to cross-examine her. I denied her request to speak to Statistics Canada’s legal counsel and representative. Ms. Minor later wrote to the Tribunal and said she needed to consult legal counsel as I had been dismissive of her concerns. Ms. Minor also made a request that the decision to issue her summons be reconsidered.
[22] I sought submissions from the parties about how to proceed. Statistics Canada advised they would object to an adjournment request, and to the admissibility of Ms. Minor’s written statement. Ms. Saldanha did not want to wait for Ms. Minor to seek legal counsel, nor did she want to seek an adjournment to try and have the summons enforced and chose to proceed without Ms. Minor’s oral evidence.
C. Ms. Minor’s request to be added as an interested party [23] After her brief appearance at the hearing, Ms. Minor filed a motion to be added as an interested party to the proceedings and asked for the opportunity to submit a personal impact statement because she wanted the Tribunal to know about the negative experience she had while working for Statistics Canada, and that the issue is one of abuse of women in vulnerable and low-paying positions. Among other things, in her motion Ms. Minor referred to an alleged conflict related to the Respondent’s decision to transition the CHMS to the Regional office.
[24] The Tribunal has the jurisdiction to allow any interested party to intervene in regard to a complaint (section 50(1) of the Act and Rule 27(3) of the Tribunal’s Rules of Procedure). The onus is on the interested party applicant to demonstrate how their expertise will be of assistance in the determination of the issues. Interested party status will not be granted if it does not add significantly to the legal positions of the parties representing a similar viewpoint. The Tribunal must also take into account its responsibility under s.48.9(1) of the Act to conduct proceedings expeditiously and informally in determining the extent of an interested party’s participation. Adding an interested party can be disruptive of Tribunal proceedings and is not warranted simply because the moving party is interested in the outcome of a case or has a personal interest in the proceedings.
[25] The applicant for interested party status must show that:
a) its expertise will be of assistance to the Tribunal;
b) its involvement will add to the legal positions of the other parties; and
c) the proceeding will have an impact on the moving party’s interests.
Walden et al. v Attorney General of Canada, 2011 CHRT 19 at para. 23 [Walden].
[26] The Tribunal has held that a person or organization could be granted interested person status if they are impacted by the proceedings and could provide assistance to the Tribunal in determining the issues in dispute, and if the assistance adds a different perspective to the positions taken by the other parties, and furthers the Tribunal’s determination of the matter (First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 11 at para.3).
[27] Both Ms. Saldanha and Statistics Canada opposed Ms. Minor’s request. Both were concerned about the timing of this request, the delays that would result and the prejudice that would flow from Ms. Minor’s participation at this late stage in the proceeding. Statistics Canada argued that Ms. Minor does not offer any unique expertise that would enhance the Tribunal’s decision-making process. The parties also agreed that Ms. Minor could have given evidence and shared the facts outlined in her motion by testifying.
[28] After hearing from the parties on the request I issued an oral ruling dismissing the request. Although I had already ruled on the motion, Ms. Minor later sent the Tribunal a communication withdrawing documents she sent to the Tribunal without legal counsel, namely her motion to be added as an interested party, her request for reconsideration of the Tribunal’s issuance of a summons, the ‘impact statement’ she submitted, and any other correspondence she sent in after July 9, 2021.
[29] I did not find that granting Ms. Minor interested party status would have offered any particular expertise to the Tribunal or assisted me in my task, namely, to determine whether Statistics Canada infringed Ms. Saldanha’s rights under the Act and if so, the appropriate remedy for such infringement. I also found that the timing of her proposed addition as an interested party would prejudice and disrupt the rights of the parties. The Tribunal does not grant interested party status to an individual simply because they are personally interested in what is happening in the Tribunal’s proceedings. That status is not interchangeable with being a witness for one of the parties. This is Ms. Saldanha’s complaint and Ms. Minor could have testified if she wanted to be heard on evidence relevant to Ms. Saldanha’s complaint.
[30] Statistics Canada objected to the admissibility of Ms. Minor’s written statement in light of the fact that they could not cross-examine the witness. After hearing from the parties on this issue, I admitted Ms. Minor’s statement, but told the parties that I would hear submissions on the weight, if any, to be given to the statement as Ms. Minor’s evidence could not be challenged. I address this below with regard to my findings specific to each allegation.
D. Language of the proceeding [31] The hearing was conducted in English. Statistics Canada called one witness, Ms. Doucette, who testified in French. The Tribunal arranged simultaneous interpretation which was available to all participants and observers who wished to use it.
E. Terminology [32] Ms. Saldanha’s allegations are based on race, national or ethnic origin, and/or colour. I will refer to them collectively as “protected characteristics.” I am referring to individuals in this decision who are not Caucasian as racialized. I will refer to individuals who are Caucasian as White.
V. ISSUES
[33] I must determine the following issues:
1. Has Ms. Saldanha established a prima facie case of discrimination under section 7 of the Act because Statistics Canada subjected her to adverse differential treatment, at least in part due to her race, colour or national or ethnic origin?
a) If yes, has Statistics Canada established a valid justification for its otherwise discriminatory actions?
b) If Statistics Canada cannot establish a justification, what remedies should be awarded that flow from the discrimination?
2. Did Statistics Canada retaliate against Ms. Saldanha for filing a human rights complaint contrary to s. 14.1 of the Act by requiring her to compete for a position and ultimately not selecting her? If yes, what remedies should flow from the retaliation?
VI. REASONS AND ANALYSIS A. Legal Framework (i) Discrimination under s.7 of the Act [34] Ms. Saldanha alleges discrimination in relation to employment based on race, colour or national and ethnic origin, contrary to section 7 of the Act. There are two parts to proving discrimination in the employment context.
[35] The complainant has the onus of proving the existence of a prima facie case. The use of the expression “prima facie discrimination” must not be seen as a relaxation of the complainant’s obligation to satisfy the Tribunal in accordance with the standard of proof on a balance of probabilities, which they must still meet (Québec (C.D.P.D.J) v. Bombardier Inc., 2015 SCC 39, at para 65 [Bombardier].
[36] To establish a prima facie case, the complainant has to prove that it is more likely than not that they meet all three parts of this test: 1) they had a characteristic protected from discrimination under the Act; 2) they experienced an adverse impact with respect to employment; and 3) the protected characteristic was a factor in the adverse impact (Moore v. B.C. (Education) 2012 SCC 61, at para 33).
[37] The protected characteristic does not have to be the only factor in the adverse treatment and no causal connection is required (see, for example, First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 [FNCFCSC] at par. 25).
[38] In determining whether discrimination occurred, the Tribunal may consider the evidence of all parties. The respondent can present evidence to refute an allegation of prima facie discrimination, put forward a defence justifying the conduct under s.15 of the Act, or do both (see Bombardier at paras 64, 67, 81; Emmett v. Canada Revenue Agency, 2018 CHRT 23 at paras 61, 63-67).
[39] If the complainant establishes a prima facie case of discrimination, the respondent must justify its decision or conduct based on the exemptions set out in the Act or developed by the courts (Bombardier, supra, at para 37).
[40] Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices (Radek v. Henderson Development (Canada) Ltd. (2005 BCHRT 302 at para 482)). In determining whether an inference of racial discrimination is more probable than the explanation offered by the respondent, the Tribunal must be mindful of the nature of racial discrimination as it is understood today and that it will often be the product of learned attitudes and biases and often operates on an unconscious level (Shaw v. Phipps, 2010 ONSC 3884 at para 75). In a case where direct evidence of discrimination is absent, “it becomes necessary ... to infer discrimination from the conduct of the individual or individuals whose conduct is at issue. ... The conduct alleged to be discriminatory must be analyzed and scrutinized in the context of the situation in which it arises” (Basi v. Canadian National Railway Company, 1988 CanLII 108 (CHRT) at pages 10-16 [Basi]).
B. Retaliation [41] Retaliation complaints are founded on the fact that a previous human rights complaint was filed, rather than on prohibited ground of discrimination (Iron v. Canoe Lake Cree First Nation, 2024 CHRT 81 at para 18). To make out a case of retaliation, the Complainant must show that:
a) they previously filed a human rights complaint under the Act;
b) they suffered an adverse impact;
c) filing the complaint was a factor in this adverse impact.
(First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada) 2015 CHRT 14, at paras 4 and 5)
[42] Proof of intention to retaliate is also not necessary, and the Tribunal may rely on a complainant’s reasonable perception that the act was retaliation for filing a human rights complaint (see Millbrook First Nation v. Tabor, 2016 FC 894 at paras 63-64). A respondent may present evidence to refute the allegation of prima facie retaliation, although their explanation must be reasonable and not a pretext.
VII. FINDINGS OF CREDIBILITY [43] Much of this case turns on my findings of fact with regard to the alleged incidents and on my assessments of credibility. In some instances, witnesses presented starkly divergent accounts of what happened, and, where it was necessary to resolve a conflict in the evidence, I have set out my reasons below.
[44] In assessing credibility and reliability in this case, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354. When making credibility findings, I have tried to determine which account of the facts in relation to each issue is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances.
[45] I have considered the following factors in assessing whether a witness’s testimony is in “harmony with the preponderance of the probabilities”:
• The internal consistency or inconsistency of evidence;
• The witness’s ability and/or capacity to apprehend and recollect;
• The witness’s opportunity and/or inclination to tailor evidence;
• The witness’s opportunity and/or inclination to embellish evidence;
• The existence of corroborative and/or confirmatory evidence;
• The motives of the witnesses and/or their relationship with the parties; and
• The failure to call or produce material evidence.
(see McWilliam v. Toronto Police Services Board, 2020 HRTO 574 (CanLII),at para 50, citing Shah v. George Brown College, 2009 HRTO 920 at paras 12‑14; Staniforth v. C.J. Liquid Waste Haulage Ltd., 2009 HRTO 717 at paras 35-36).
A. Issue 1: Has Ms. Saldanha established a prima facie case of discrimination under section 7 of the Act? (i) Does Ms. Saldanha qualify for protection from discrimination because she has a protected characteristic? [46] Yes. There is no dispute that Ms. Saldanha has a characteristic protected under the Act. The respondent did not argue that Ms. Saldanha does not fall with the ambit of the protections of the Act.
(ii) Did Ms. Saldanha suffer an adverse impact with respect to employment? (iii) Was Ms. Saldanha’s race, colour or national and/or ethnic origin a factor in the adverse treatment?
[47] Ms. Saldanha has failed to meet the requirements of the second and/or third parts of the prima facie test for all the incidents or conduct she alleges were discriminatory. In some cases, I do not find that she has established that she suffered an adverse impact or adverse differential treatment. For those incidents where Ms. Saldanha has satisfied this part of the test, I do not find that she established a link with a protected characteristic. I have set out my findings below under each alleged incident of discrimination in analysing the second and third parts of the test.
[48] I have organised Ms. Saldanha’s allegations of discrimination into two broad categories. First, Ms. Saldanha makes several claims of adverse differential treatment while she was working with the CHMS and Ms. Doucette was her supervisor. She alleges that Ms. Doucette discriminated against racialized interviewers and gave preference to her White, Francophone colleagues. Second, Ms. Saldanha alleges that the CHMS was changed to a bilingual programme as a way to get rid of her, at least in part due to a protected characteristic.
B. ALLEGATIONS OF DISCRIMINATION WHILE ON THE CHMS TEAM [49] For two years Ms. Saldanha enjoyed what she described as a dream job. Interviewers would travel across Canada, spending six weeks at a time interviewing Canadians in person. The team dynamic was a positive one and they would socialise at the hotel, have BBQs, and spend time together on weekends, sharing meals and traveling together. The interviewers enjoyed the benefits of travel reward programs and were even permitted to use their government rental vehicles to travel outside city limits to places like Banff. According to Ms. Saldanha the whole dynamic changed when the team began to report to Ms. Doucette who created a culture of exclusion. The team was no longer a cohesive unit.
[50] Witnesses for both parties testified about a number of challenges in the group. The following examples are indicative of the nature of problems I heard about: interviewers feeling excluded because they weren’t invited to social events; the holding of a “fake goodbye dinner”; interviewers gossiping about one another; the organization of poker games; interviewers receiving late night calls from a colleague needing to be picked up after a night of partying; interviewers who felt management was playing favourites; ‘rowdy’ behaviour and conversations about interviewers’ sex lives; interviewers claiming they did not receive new official Statistics Canada jackets; and interviewers allegedly abusing government policy on the use of rental vehicles and per diems.
[51] Statistics Canada argues that interpersonal relationships were strained in the CHMS team as would be expected in any diverse team working under unique conditions, but that the reasons for these tensions were entirely unrelated to discrimination.
[52] I agree. As set out below, I have no difficulty finding that Ms. Doucette and Ms. Saldanha disliked each other and that the team was replete with division and unhealthy group dynamics. But I am not persuaded that these challenges or any behaviour on the part of Ms. Doucette was connected to a protected characteristic. There were a number of reasons for the antipathy between Ms. Saldanha and Ms. Doucette, but the evidence does not support an inference as to a link to Ms. Saldanha’s race, colour or ethnicity.
[53] It is not my task to make findings on general allegations of unfairness, nor to pass judgment on the professionalism or conduct of federal public servants whose salaries are paid by taxpayers and who were purportedly conducting important surveys on the health of Canadians while traveling around Canada. It is neither my task to judge the managerial skills of Ms. Doucette or the DCM to whom she reported, or more broadly, the governance and management of the CHMS in the absence of a nexus with the Act. My focus is only on whether Ms. Saldanha experienced adverse differential treatment while working with the CHMS at least in part because of a protected characteristic.
[54] Marlene Mathon was the Assistant Chief of Health Surveys from 2011 to 2016. She managed the administration of the CHMS team, including their per diem and travel requests. The DCM reported to Ms. Mathon and Ms. Mathon in turn reported to Maureen Charron, the Chief of Health Surveys. Ms. Mathon described the traveling CHMS group as a “dysfunctional family.” She was aware that there was discord and favoritism in the group and that the DCM, Ms. Arrowsmith, had her clique. Some interviewers “partied” and liked to drink, and others did not. Ms. Mathon testified that she had been working with the DCM to correct some of the problematic behaviour in the group.
[55] I acknowledge that an individual can suffer exclusion from an employment activity or group social event at least in part because of a protected characteristic. The dynamic is further complicated by the fact that lines between the workday and interviewers’ off time were blurred because they were on the road together for weeks on end. I also acknowledge that it can be difficult to parse out culture and language from other factors involved in workplace dynamics to determine why a manager or supervisor has their “favourites.”
[56] But I am not persuaded that Ms. Saldana’s experiences as part of the group and the divisions among interviewers were caused by discriminatory conduct on the part of Ms. Doucette.
[57] Ms. Lopez, another interviewer on the team who had previously worked with Ms. Doucette, described being thrown into a “pit of snakes” when she joined the Survey. People were awful to one another. Ms. Lopez described those who were not close to Ms. Doucette as the “left-overs” or “rejects”, a group that included Ms. Saldanha and Ms. Alagaratnam, as well as white interviewers. The “left-overs” were tolerated but not invited to social outings and largely consisted of people who did not like to go out drinking. Ms. Doucette also acknowledged in her evidence that she had challenging relationships with Ms. Saldanha, Ms. Minor, Ms. Lopez and another interviewer, Ms. Gresham.
[58] I also find that Ms. Saldanha herself contributed to these fraught dynamics and to divisions in the group. Ms. Doucette testified that when she joined the CHMS, Ms. Saldanha told her that she would have a hard time integrating in the team as she was French‑speaking. Ms. Lopez also told Ms. Doucette that Ms. Saldanha called Ms. Doucette “White Trash” and spoke badly about the management of the team. Ms. Doucette also reported the comments to the DCM because she thought Ms. Saldanha was having a negative impact on the morale and functioning of the CHMS and addressed this with Ms. Saldanha. According to Ms. Doucette, Ms. Saldanha denied making the comments but continued disrespecting her authority and also had conflicts with a few of the other interviewers.
[59] Ms. Doucette acknowledged in her evidence that Ms. Saldanha achieved positive response rates as an interviewer. She generally gave Ms. Saldanha positive performance evaluations but said that the problem was Ms. Saldanha’s attitude. She wrote that “she must work on her relationships with supervisors and colleagues in order to improve her role on the CHMS team” and that Ms. Saldanha “does not accept constructive criticism which makes communication very difficult.” She also testified that she received a number of complaints from Survey respondents who said they did not like Ms. Saldanha’s approach or found her intimidating. She also received complaints from hotel managers at some sites because hotel staff found Ms. Saldanha’s requests demanding. Ms. Doucette testified that it was obvious Ms. Saldanha detested her, did not want to listen to her feedback and would refuse to admit her mistakes. Ms. Doucette maintains she was the one who was mistreated by Ms. Saldanha, starting with how she was greeted when she joined the CHMS.
[60] Several members of the CHMS team, including Ms. Saldanha, filed a workplace complaint against Ms. Doucette in March 2016. The complaint alleges, among other things, harassment and unfair and preferential treatment of team members. I agree with Statistics Canada that the group complaint does not substantiate Ms. Saldanha’s claim that Ms. Doucette targeted racialized interviewers. Had discrimination been a concern on the part of Ms. Saldanha, it would be reasonable to expect that there would be some mention of this in what is otherwise a quite detailed and extensive complaint. Yet the only mention of racial discrimination in the whole seven-page complaint relates to an incident involving Ms. Alagaratnam, who alleged that Ms. Doucette was racist when she accompanied her on an on interview and offered to conduct it in her place when the survey respondent initially refused to participate. None of the other allegations in the group complaint mention discrimination or a protected characteristic.
[61] Ms. Alagaratnam testified that she initially enjoyed working on the CHMS and traveling across Canada, but that she was subject to demeaning, belittling discriminatory treatment by Ms. Doucette and that the DCM would not do or say anything to stop this behaviour. Ms. Alagaratnam said Ms. Doucette created a toxic environment and she thought she was being observed more closely than others because she had a different skin colour and was not Francophone.
[62] Ms. Doucette testified that she believed she had a very positive relationship with Ms. Alagaratnam until she started reading the materials related to this complaint. Ms. Alagaratnam never raised any concerns with her or told her that she felt she was being treated differently compared to the rest of the team. She found Ms. Alagaratnam a hard-working interviewer and had nothing negative to say about her performance. Ms. Doucette also testified that Ms. Alagaratnam had complained to her that Ms. Saldanha would ask her to do things for her, and that she told her that she was not Ms. Saldanha’s lapdog. When asked about the incident mentioned in the group complaint, Ms. Doucette testified that after the survey respondent declined to participate in the survey, she offered to conduct the interview herself as this was a technique used to try to improve response rates. She denied that this had anything to do with race and says that this was standard practice and a commonly used technique.
[63] I accept Ms. Doucette’s evidence about Ms. Alagaratnam and that she had a legitimate non-discriminatory reason to act as she did in the observation. In her evidence about the unhealthy dynamics in the team, Ms. Doucette referred to Ms. Saldanha, Ms. Minor, Ms. Lopez and another interviewer she had problems with, but at no point raised Ms. Alagaratnam as a problem or as someone who impacted the group dynamics in a negative way. While Ms. Alagaratnam testified that she felt mistreated by Ms. Doucette because she was not White, she has not provided more than her own suspicions about what she believed Ms. Doucette thought about her. Throughout her evidence describing divisions in the group, Ms. Alagaratnam did not say these tensions were due to race or colour or ethnicity, but rather mentioned linguistic tensions between Anglophones and Francophones, and the fact that some interviewers liked to socialise and go drinking, whereas others kept to themselves and preferred to focus on work. Ms. Alagaratnam also testified that she complained about Ms. Doucette to Ms. Mathon but did not mention race or another discriminatory ground. In my view, Ms. Alagaratnam’s evidence does not support Ms. Saldanha’s allegations about Ms. Doucette creating divisions and problems at least in part because of discrimination.
[64] In sum, I accept Statistics Canada’s submission that interpersonal issues in the CHMS team were distinct from discrimination. I acknowledge that there is often no direct evidence to support allegations of racial discrimination, and that I must evaluate the alleged discriminatory conduct in the context of the situation in which it arises. But in my view, Ms. Saldanha has not presented more than her subjective belief and speculation to support her allegations of discrimination in the team. I cannot draw an inference that race or another protected characteristic was a factor in how the CHMS team operated in the absence of any material facts that are capable of supporting such a claim. Ms. Saldanha has failed to establish a link between the group dynamics and Ms. Doucette’s alleged discriminatory attitude.
C. Allegations of discriminatory comments [65] Neither Ms. Saldanha nor Ms. Alagaratnam testified that Ms. Doucette made discriminatory comments to them or in their presence. Ms. Saldanha did testify that she once saw Ms. Doucette making a face when describing a Black interviewer.
[66] Ms. Lopez’s evidence about Ms. Doucette stands in stark contrast to that of Ms. Saldanha and Ms. Alagaratnam. According to Ms. Lopez, Ms. Doucette made a number of discriminatory comments and displayed an openly discriminatory attitude. For example, when the Survey was in Regina, the fridge in Ms. Lopez’s room broke and Ms. Doucette told her she wanted nothing to do with the manager of the hotel, because “it’s that Black woman.” According to Ms. Lopez, Ms. Doucette would openly admit that she had dislikes of certain cultures and ethnic groups. When asked if she heard Ms. Doucette make discriminatory comments about Ms. Saldanha, Ms. Lopez responded that she thought she may have, but she could not pinpoint any. She said she did hear Ms. Doucette make a comment that Ms. Saldanha and Ms. Alagaratnam were “penny pinchers” who did not waste a lot of money, that they were never well-dressed, and that is the way ‘they are’ or ‘it is in their culture’.
[67] Ms. Lopez also testified about an incident involving Ginette, another interviewer, who she allegedly heard making comments about Quebec’s “loi sur la laïcité”, and who said that “if they are not happy to follow our rules, they can go back to their countries.” According to Ms. Lopez, when she raised concerns about Ginette’s comments to Ms. Doucette, she was told not to bother about the incident and that “it’s just Ginette, she does not understand things.”
[68] At the end of her evidence, Ms. Lopez testified that she felt it was her duty to speak up when she sees discrimination. She also said that you could not have an SI saying things like “I finally got my all-White bilingual dream team.” In cross-examination, Ms. Lopez was asked why she did not mention this comment earlier in her evidence when explicitly asked about any discriminatory comments Ms. Doucette may have made, and why it would not be the first comment that came to mind. She said she misunderstood the question and thought she was being asked about comments made about Ms. Saldanha or Ms. Alagaratnam. Ms. Lopez also said that by the time Ms. Doucette made the “dream team” comment, Ms. Saldanha had already left the team.
[69] Ms. Doucette strongly denied making any of these comments or making a face about anyone. She also denied ever having referenced her desire for an “all-White dream team” or that she had informal discussions with Ms. Lopez about Ms. Saldanha