Abi-Mansour v. Canada (Attorney General)

Abi-Mansour v. Canada (Attorney General)
Court (s) Database
Federal Court Decisions
Date
2015-07-17
Neutral citation
2015 FC 882
Decision Content
Date: 20150717
Docket: T-550-13
Citation: 2015 FC 882
Ottawa, Ontario, July 17, 2015
PRESENT: The Honourable Mr. Justice LeBlanc
BETWEEN:
PAUL ABI-MANSOUR
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
JUDGMENT AND REASONS
[1] The Applicant seeks judicial review pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7, of a decision of the Public Service Staffing Tribunal (the Tribunal) dated March 6, 2013. The Tribunal dismissed the Applicant’s complaint of abuse of authority made pursuant to section 77(a) of the Public Service Employment Act, SC 2003, c 22 (the Act) in relation to an internal appointment process held by the Department of Aboriginal Affairs and Northern Development Canada (the Department).
[2] The Applicant alleges that the Department, by using improper assessment methods and appointing persons who were unqualified or less qualified than him, has discriminated against him on the basis of race and national or ethnic origin and has, therefore, abused its authority within the meaning of section 77(a) of the Act.
[3] For the reasons that follow, the Applicant’s judicial review application is dismissed.
I. Background A. The Appointment Process at Issue [4] In June 2010, the Department launched a process to fill a position of Human Resource Business Analyst at the AS-04 level and to establish a pool of candidates for potential future staffing of similar positions. The Applicant was one of 26 candidates to apply for the position. The Job Opportunity Advertisement (the JOA) and the Statement of Merit Criteria for this AS-04 Analyst position listed the following essential and asset qualifications:
Essential Qualifications:
College diploma or an acceptable combination of education, training and experience;
Two year experience in PeopleSoft Version 8 and/or 8.9 or equivalent system application;
Two year experience in participating in data integrity activities such as data audit;
Two year experience in PeopleSoft or equivalent system reporting.
Asset Qualifications:
Experience in PeopleSoft version 8 or 8.9 or equivalent system;
Experience in providing or facilitating training on PeopleSoft;
Experience in HR business analysing and system impact identification;
Experience in project management.
[5] Through the JOA, candidates were advised that they “may be required to meet the asset qualifications or the organizational needs, depending on the requirements of the specific position being staffed”. In terms of “organizational needs”, the JOA provided that the selection “may be limited to candidates self-identifying as belonging to one of the following Employment Equity Groups: Aboriginal people and Visible Minorities”.
[6] The candidates were also informed of the need to provide in support of their application a resumé as well as a cover letter describing how they meet the requirements for the position to be staffed. The JOA provided the details of the information the cover letter should contain:
In the cover letter, candidates are to use the essential qualification experience and education statements from the Statement of Merit criteria as headers and then provide concrete examples demonstrating how they meet each of these requirements. Resumes will be used to validate the experience and education information provided in the cover letter. Failure to provide sufficient information may result in the candidate being screened out. Also in the cover letter, candidates should identify which of the asset criteria that they meet and provide concrete examples to demonstrate how they meet them. A person may be appointed to the position even though he/she does not meet any or all of the asset qualifications. However, meeting these criteria is desirable and may be a deciding factor in choosing the person to be appointed.
[7] Of the 26 candidates who participated in the appointment process, 11, including the Applicant, were screened into the process. The merit assessment of these 11 candidacies consisted of a review of their candidacy applications, an interview before a three-member assessment panel and reference checks. Following that process, the Applicant as well as five other people were found to meet the essential qualifications of the AS-04 Analyst position and placed in a pool of candidates. The five other people placed in the pool were Mr. St-Goerges, Ms. Privalova, Ms. Morin, Ms. Verner and Ms. Chauret.
B. The Appointments and the Complaints [8] The first person from the pool to be appointed to an AS-04 Analyst position was Mr. St-Goerges, an Aboriginal person. This appointment was not challenged. Mss. Privalova, Morin and Verner, were then also appointed to AS-04 Analyst positions in the Department’s Human Resources and Workplace Services Branch (HRWS Branch), leaving the Applicant and Ms. Chauret as the only remaining candidates in the pool.
[9] The Applicant challenged those three appointments by way of two complaints to the Tribunal that were eventually consolidated. The basis of his complaints that the Department abused its authority by discriminating against him was summarized as follows by the Tribunal:
a. During the interview, one member of the assessment panel questioned him using a technique that is normally used when one thinks a person is lying while another member of that panel interacted with him in an intimidating manner;
b. The assessment process was totally subjective, with the result that he was marked lower than appropriate on certain questions so that the assessment panel could justify the appointment of other candidates than him; an objective written test would have permitted him to demonstrate his strength in a objective manner;
c. References are not a valid tool to assess qualifications and should only be used in the final stages of a selection process, not as a basic selection tool, as was the case here;
d. The personal suitability questions were based on the ‘local culture’ within the Department, with which he is not familiar as he had never previously worked in this Department;
e. Email correspondence between a member of the assessment panel and a senior human resources advisor shows that the Department was looking for ways to eliminate him from the process;
f. Of the six persons in the pool of candidates, only Mr. St-Goerges and him met the organization need set out in the JOA in furtherance of the Department’s Employment Equity Plan but of the two, he was the only one belonging to an under-represented group in the Department; therefore, appointing Mr. St-Goerges and not him, was inconsistent with the Plan, so was the appointment of Mss. Privalova, Morin and Verner, three white women who do not meet the JOA’s organizational need;
g. His technical experience, education and technical and analytical skills were superior to those of these three appointees; in addition, it is not clear from the resumés, references, rating guides and appointment rationales for these three persons how they met the qualifications for the appointment: Ms. Privalova made very little mention of PeopleSoft in her resumé and the information from her references is not consistent with the rationale for her appointment; Ms. Morin failed the interview and her references’ information does not demonstrate that she had the experience described in the rationale for her appointment; as for Ms. Verner, she had no technical background or in-depth experience in human resources and her references did not support her appointment rationale that she had experience in PeopleSoft training or in human resources business analysis;
h. Ms. Verner’s appointment was made in retaliation for having filed a complaint concerning the appointments of Ms. Privalova and Ms. Morin; and
i. Reports show that in a majority of cases taken from a sample of 64 appointments at the Department, the documentation on file does not permit to determine whether all qualifications were assessed or that there was a clear link between qualifications and the assessment. They also show that the Department developed an Employment Equity Plan to ensure that it has fair employment systems and a representative workforce so as to meet the requirements of the Employment Equity Act, S.C. 1995, c. 44 and, therefore, remove employment equity barriers affecting visible minorities in particular and close the gap between visible minority representation and the workforce availability.
[10] Since his complaints raised an issue involving the interpretation or application of the Canadian Human Rights Act, RSC 1985, c H-6, the Applicant, as required by section 78 of the Act, notified the Canadian Human Rights Commission of the issue. However, the Commission informed the Tribunal that it did not intend to participate in the proceedings brought forward by the Applicant.
[11] Subsequently, two other persons – Ms. V and Mr. B - were appointed in AS-04 Analyst positions in the HRWS Branch to replace Ms. Privalova and Ms. Morin. One replacement was deployed from another position and the other was appointed from a different appointment process. At the same time, the Applicant was also eliminated from another appointment process initiated by the Department for an EC-04 position.
[12] The Applicant claimed before the Tribunal that the Department appointed these two persons from outside the pool to avoid appointing him to an AS-04 Analyst position. In particular, he contended that if Ms. Chauret was not appointed to replace Ms. Privalova or Ms. Morin, it was because he would stand out as being the only person left in the pool who had not been appointed to a position. Finally, he contended that the decision to eliminate him from this other appointment process was made to retaliate against him.
C. The Tribunal’s Decision [13] The Tribunal examined the following three issues:
a. What is the role of the Tribunal in addressing the Applicant’s concerns regarding employment equity?
b. Did the Department abuse its authority by discriminating against the Applicant on the basis of race, national or ethnic origin? and
c. Did the Department retaliate against the Applicant for having filed his complaints?
[14] On the first issue, the Tribunal concluded that although it had no jurisdiction to consider whether a government department is fulfilling its responsibilities under the Employment Equity Act, a role vested in the Canadian Human Rights Commission, employment equity matters could nonetheless be relevant to an abuse of authority analysis under section 77 of the Act where such matters were established as an organizational need as permitted by section 30(2)(b)(iii) of the Act. The Tribunal ruled that in such cases, it had the authority to consider whether or not the department concerned had regard to the identified organizational need when it selected a particular candidate for a particular position.
[15] As to the second issue, the Tribunal, applying the tests developed in human rights jurisprudence, found that the Applicant had established a prima facie case of discrimination. In particular, it found that if believed and in the absence of an answer from the Department, the Applicant’s evidence would demonstrate that the Department (i) tried to unfairly eliminate him from the appointment process when one of his references was unavailable, (ii) used assessment tools that were highly subjective, (iii) appointed unqualified persons to positions, all of whom were neither Middle Eastern, of Lebanese origin or visible minorities, (iv) included him in the pool of qualified candidates with no intention of appointing him to a position, (v) appointed women who are not underrepresented in the Department rather than an underrepresented visible minority person, (vi) recruited from outside the pool rather than to appoint him, and (vii) refused to appoint Ms. Chauret so that he would not be the only person left in the pool without an appointment.
[16] Being satisfied that a prima facie case of discrimination had been established, the Tribunal stated the burden was on the Department to rebut the allegations upon which the prima facie case of discrimination was based. It found that this burden had been successfully met as it was satisfied that the Department had led convincing evidence establishing that the Applicant’s race or national and ethnic origin were not factors in its decision to appoint persons other than him. In particular, that evidence showed, according to the Tribunal, that the Applicant was not appointed to the AS-04 Analyst position because he did not have experience in PeopleSoft and did not demonstrate on his application materials that he met the other asset qualifications that were legitimately considered by the Department in making the appointments at issue.
[17] Finally, with respect to the third issue, the Tribunal found that the Applicant’s allegations of retaliation were either unfounded or entirely speculative.
II. Issues [18] The Applicant claims that the present judicial review application raises the following four issues:
a. Did the Tribunal breach procedural fairness by refusing to deal with the allegation of abuse of authority in appointing candidates who do not meet essential qualifications by being bias, not thorough and neutral?
b. Did the Tribunal commit a jurisdictional error in finding that it has no jurisdiction to deal with employment equity matters?
c. Did the Tribunal err in dealing with the discrimination allegation? and
d. Did the Tribunal err in dealing with the retaliation allegation?
[19] The Department contends that the sole issue to be determined in this case is whether the Tribunal’s decision that the Applicant failed to establish any abuse of authority, including that there was no discrimination in the appointment process at issue, is reasonable.
[20] Apart from the bias allegation, I agree that the issues raised by the Applicant all come down to determining whether the Tribunal’s decision is reasonable.
[21] The parties have also raised a number of preliminary matters which I will address first.
III. Analysis A. Preliminary Matters (1) Style of Cause [22] The Department requests that the style of cause be amended to remove “Department of Aboriginal Affairs” as the respondent and replace it by the “Attorney General of Canada” as the sole respondent. It claims that government departments are not legal entities and are not to be made parties in proceedings before the Court. The Applicant did not respond to that preliminary matter.
[23] The Department is correct: government departments are not legal entities and cannot therefore be named as parties (Gravel v Canada (Attorney General), 2011 FC 832, at para 6; Mahmood v Canada (1998), 154 FTR 102, at para 14, 82 ACWS (3d) 898). Since, according to Rule 303(1)(a) of the Federal Courts Rules, SOR/98-196 (the Rules), it is not proper to name the Tribunal as the respondent in these proceedings, the Department shall be replaced by the Attorney General of Canada, as contemplated by Rule 303(2). The style of cause will be modified accordingly.
(2) Notice of Constitutional Question [24] Less than a week prior to the hearing of the present proceedings, the Applicant served on the Department a Notice of Constitutional Question raising issues under the Canadian Charter of Rights and Freedoms. The Department opposed the filing of that Notice both because of its lateness and its lack of specificity. At the hearing, I upheld the Department’s objection to filing. Here are my reasons.
[25] The filing of the Notice of Constitutional Question in this case faces at least two insurmountable obstacles. First, there was no constitutional argument before the Tribunal. In Boshra v Canada (Attorney General), Docket T-789-10, December 21, 2011, the Court held that constitutional questions should not be addressed on judicial review when they were not raised with the Tribunal (Boshra, at para 7). This stems from the well-established principle that constitutional issues, specially Charter issues, should not – and must not – be decided on a factual vacuum (Worthington v Canada (Minister of Citizenship and Immigration), 2004 FC 1546, 258 FTR 102 at paras 24-25; aff’d in 2006 FCA 30).
[26] Second, the Notice did not comply with Section 57(2) of the Federal Courts Act which requires such notice to be filed at least 10 days before the day on which the constitutional question is to be heard. The notice requirement is mandatory, with two possible exceptions: where Attorneys General consent, which is not the case here, or where there has been de facto notice which, again, is not the case here. Apart from those limited circumstances, this requirement cannot be ignored or waived by the Court.
[27] Here, not only was the Notice of Constitutional Question not served and filed within the prescribed timeline, but it provided no details whatsoever as to the basis of the constitutional challenge. This total lack of specificity is fatal as courts “cannot deal with constitutional arguments raised in a random and unstructured manner” (Canada (Attorney General) v Misquadis, 2003 FCA 473, [2004] 2 FCR 108, at para 50). At a minimum, a notice of constitutional questions must set out the material facts and the legal basis for the constitutional question (Gitxsan Treaty Society v Hospital Employee’s Union, [2001] 1 FC 135 (C.A.), [1999] FCJ No. 1192 (QL), at para 11).
[28] Here, the Notice of Constitutional Question met neither of these requirements and was not filed within the 10-day delay contemplated by section 57(2) of the Federal Courts Act. It was therefore not acceptable for filing.
(3) The Applicant’s affidavits in support of the present proceedings [29] The Department claims that certain parts of the two affidavits filed by the Applicant – a self-represented litigant - in support of the present judicial review application go beyond statements of facts and contain argument and opinion. It contends that this is the case of paragraphs 8, 14, 17, 18, 20, 23, 24, 25, 26, 27, 28 of the June 14, 2013 affidavit and of paragraphs 8, 14, 21, 22, 24, 25, 28, 29, 30, 31, 32, 33 and 34 of the August 28 affidavit. The Department requests that these paragraphs be struck out.
[30] According to Rule 81(1), affidavits are to be confined to facts within the personal knowledge of the deponent. Affidavits are not the proper vehicle to provide opinion or to argue the case. The usual remedy for an affidavit that contains portions that are opinionated and argumentative is to strike those portions out. It is also open to the Court to exercise its discretion by giving no weight or probative value to opinionated and argumentative assertions in an affidavit (McEwing v Canada (Attorney General), 2013 FC 525, 433 FTR 59, at para 107).
[31] Here, I am satisfied that all the paragraphs of the Applicant’s affidavits that the Department has identified as amounting to opinion or argument are in fact opinionated and argumentative. I have opted to give them no weight or probative value.
(4) The attachments to the Department’s affidavit [32] In support of its position in the present proceedings, the Department has filed an affidavit from Ms. Isabelle Larose, who is one of its Senior Staffing Advisors. The Applicant claims that the attachments to this affidavit should be struck as they are duplicative of his own exhibits related to the complaint process and therefore irrelevant or as they consist of cases and jurisprudence.
[33] This claim has no merit. Duplication of court materials is no ground for striking out exhibits. Information on the complaint process must have been relevant as the Applicant himself speaks to it in his own affidavits. Furthermore, in the absence of any transcript of the proceedings before the Tribunal and given the nature of the Applicant’s challenge to the Tribunal’s decision, that information was, in my view, relevant. Finally, I have not been able to locate exhibits to Ms. Larose’s affidavit in the nature of cases and jurisprudence. I can only speculate that the Applicant is referring to the cases and jurisprudence that were included at volumes VI and VII of the “Respondent’s Record” which, again, is no ground for striking these materials from the record.
B. Statutory Framework [34] Appointments in the federal public service are the exclusive purview of the Public Service Commission (PSC). The PSC may delegate that authority to deputy heads of federal departments who in turn, may authorize any person to exercise or perform any of the powers and functions delegated to them by the PSC (sections 11, 15 and 24 of the Act).
[35] Section 30 (1) of the Act provides that appointments to or from the federal public service “shall be made on the basis of merit and must be free from political influence”. These principles are the cornerstones of the appointment process in the federal public service (Samatar v Canada (Attorney General), 2012 FC 1263, [2014] 2 FCR 43, at para 83). Section 30(2) defines when an appointment is made on the basis of merit. It reads as follows:
Meaning of merit
Définition du mérite
(2) An appointment is made on the basis of merit when
(2) Une nomination est fondée sur le mérite lorsque les conditions suivantes sont réunies :
(a) the Commission is satisfied that the person to be appointed meets the essential qualifications for the work to be performed, as established by the deputy head, including official language proficiency; and
a) selon la Commission, la personne à nommer possède les qualifications essentielles — notamment la compétence dans les langues officielles — établies par l’administrateur général pour le travail à accomplir;
(b) the Commission has regard to
b) la Commission prend en compte :
(i) any additional qualifications that the deputy head may consider to be an asset for the work to be performed, or for the organization, currently or in the future,
(i) toute qualification supplémentaire que l’administrateur général considère comme un atout pour le travail à accomplir ou pour l’administration, pour le présent ou l’avenir,
(ii) any current or future operational requirements of the organization that may be identified by the deputy head, and
(ii) toute exigence opérationnelle actuelle ou future de l’administration précisée par l’administrateur général,
(iii) any current or future needs of the organization that may be identified by the deputy head.
(iii) tout besoin actuel ou futur de l’administration précisé par l’administrateur général.
[36] The Act provides that different geographic, organizational or occupational criteria can be established by the PSC or the person holding the appointment authority for “designated groups” within the meaning of section 3 of the Employment Equity Act than for other persons (section 34 of the Act). Designated groups within the meaning of the Employment Equity Act are women, aboriginal peoples, persons with disabilities and members of visible minorities.
[37] For the purposes of determining whether a person meets the qualifications referred to in sections 30(2)(a) and 30(2)(b)(i) above, the PSC - or the person to whom PSC’s appointment authority has been delegated - can use any assessment method, such as a review of past performance, interviews and examinations, that it considers appropriate (section 36 of the Act).
[38] In Kilbray and Wersch v Canada (Attorney General), 2009 FC 390, 344 FTR 203, the Court described this statutory scheme as giving a deputy head “considerable discretion when it comes to staffing and in making appointments” (Kilbray and Wersch, at para 39). Then it described, at paragraph 41, the objective of the reform that was brought to the Act in 2003:
The objective of the new PSEA was to reform the previous service staffing regime because it was too complex and slow. The new staffing system is directed at enabling managers to fill vacancies in a timely fashion with qualified people. The new system no longer uses competitions or relative merit concepts. Rather, the focus is on finding a person who is a good fit for the job. This determination is made by the Deputy Head of each department on delegation from the Public Service Commission. The Deputy Head may then delegate to departmental directors or managers.
[39] The Act’s new philosophy is echoed in the Act’s preamble, which states that “delegation of authority should be as low level as possible within the public service, and should afford public service managers the flexibility necessary to staff, to manage and to head their personnel to achieve results for Canadians” (see also Attorney General of Canada v Lahlali, 2012 FC 601, 411 FTR 245, at para 16-17).
[40] Section 77 of the Act provides that a person who has not been appointed or proposed for an appointment can make a complaint to the Tribunal when the person was not appointed or proposed for an appointment by reason of an “abuse of authority” by the Commission or the deputy head in the exercise of its or his/her authority under section 30(2).
[41] The Act does not provide an exhaustive definition of the concept of “abuse of authority” but it stipulates that reference to this concept in the Act “shall be construed as including bad faith and personal favouritism” (subsection 2(4)). According to the Federal Court of Appeal’s decision in Kane v Canada (Attorney General), 2011 FCA 19, at para 66, Parliament’s intent in “limiting the Tribunal’s jurisdiction to adjudicate employees’ complaints to instances of abuse of authority” was to “reduce the staffing delays, and overly intrusive surveillance, associated with was effectively do novo appellate review under the former Act”. Although the concept of abuse of authority shall not be limited to instances of serious misconduct carrying a moral stigma or requiring an element of intention, it requires more than an error or omission, or even improper conduct (Lavigne v Deputy Minister of Justice and Public Service Commission, 2009 FC 684, at para 62; Lahlali, above at para 38).
[42] Abuse of authority complaints are determined by a single member of the Tribunal “as informally and expeditiously as possible” (section 98). When the Tribunal finds a complaint to be substantiated, it may order the PSC or the deputy head to revoke the appointment or not to make the proposed appointment and to take any corrective action that it considers appropriate. The Tribunal is not empowered however to order the Commission to make an appointment or to conduct a new appointment process (sections 81 and 82).
[43] The Act provides for some interplay with the Canadian Human Rights Act. Section 80 empowers the Tribunal to interpret and apply the Canadian Human Rights Act in considering whether a complaint under section 77 is substantiated. Section 3 of that Act lists prohibited grounds of discrimination as including race, and national or ethnic origin and section 7 provides that it is a discriminatory practice to, directly or indirectly, refuse to employ any individual or, in the course of employment, differentiate adversely in relation to an employee, on a prohibited ground of discrimination.
[44] The reliefs listed in sections 53(2)(e) and 53(3) of the Canadian Human Rights Act are also available to the Tribunal when ordering the Commission to take a corrective action (section 81(2)). Finally, complainants raising an issue involving the interpretation or application of the Canadian Human Rights Act are obliged to notify the Canadian Human Rights Commission of the issue (section 78). When so notified, the Commission has the right to make submissions to the Tribunal with respect to that issue (section 79(2)).
C. Standard of Review [45] In a challenge of similar nature brought by the Applicant against an appointment decision of the Department of Foreign Affairs (Abi-Mansour v Department of Foreign Affairs, 2013 FC 1170), Justice Richard Boivin, as he then was, at paras 54-55, held that the standard of reasonableness was applicable to issues concerning abuse of authority, including where issues of discrimination are the basis of the alleged abuse of authority:
With respect to the other three (3) issues, the reasonableness standard applies. In Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 [Dunsmuir] the Supreme Court of Canada held that a reviewing court does not have to conduct a standard of review analysis where jurisprudence determined in a satisfactory manner the standard of review applicable to the question before the court (Dunsmuir, above at para 62). The three questions concerning abuse of authority can qualify as questions of mixed fact and law. They involve the interpretation of the PSEA as well as provisions of the CHRA concerning employment discrimination, that the PSST is allowed to interpret and that they are closely related to its function. The jurisprudence has indicated that such decisions by the PSST are reviewable under the reasonableness standard (Lavigne v Canada (Deputy Minister of Justice), 2009 FC 684 at paras 42, 45, 46, 50, ]2009} FCJ No 827 (QL) ]Lavigne}; Alexander v Canada (Attorney General), 2011 FC 1278 at para 44, [2011] F.C.J. No. 1560 (QL) [Alexander]; Kilbray v Canada (Attorney General), 2009 FC 390 at para 33, [2009] F.C.J. No. 531 (QL) [Kilbray]; Kane v Canada (Attorney General), 2011 FCA 19 at para 40, [2011] F.C.J. No. 79 (QL); Jalal v Canada (Minister of Human Resources and Skills Development), 2013 FC 611 at para 31, [2013] F.C.J. No. 640 (QL); Canada (Attorney General) v Lahlali, 2012 FC 601 at paras 22-23 [2012] F.C.J. No. 591 (QL) [Lahlali]; Smith v Canada (Attorney General), 2011 FC 1401 at para 21, [2011] F.C.J. No. 1709 (QL).
The Court recalls that the role of reviewing courts, when applying the reasonableness standard, is not to reweigh the evidence that was before the decision-maker. They have to limit their examination to "[...] the existence of justification, transparency and intelligibility within the decision-making process" and should be concerned with determining "whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law" (Dunsmuir, above at para 47; Newfoundland and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at paras 15-16, [2011] 3 S.C.R. 708 [Newfoundland Nurses].
[46] In a Judgment released on May 29, 2015 (Abi-Mansour v Deputy Minister of Foreign Affairs and International Trade Canada, 2015 FCA 135), the Federal Court of Appeal upheld Justice Boivin’s Judgement. On the standard of review issue in particular, the Court of Appeal held, at paragraph 6, that the issues of abuse of authority and discrimination had properly been reviewed on a standard of reasonableness.
[47] This pretty much settles the issue. In particular, it disposes of the Applicant’s argument that less deference should be owed to the Tribunal when it considers a discrimination-based complaint because of a lack of expertise in human rights matters.
[48] To the extent the Applicant raises procedural fairness concerns, the applicable standard of review is correctness (Abi-Mansour v Deputy Minister of Foreign Affairs and International Trade Canada, above at para 6). There is no disagreement between the parties on this issue.
D. The Tribunal’s finding that the Applicant failed to establish that the Department abused its authority in the appointment process at issue is reasonable [49] As the Department correctly points out, in a reasonableness analysis, it is not enough to disagree with the Tribunal’s findings. The Applicant must demonstrate that the Tribunal’s finding that the Department did not abuse its authority in the appointment process at issue is not rationally supported by the evidence. More particularly, he must show that the Tribunal’s finding that the Department has rebutted the allegations upon which he based his prima facie case of discrimination by persuasively explaining that the Applicant has failed to establish that he possessed the qualifications being sought by the Department for the positions at issue, including experience with the PeopleSoft software application, falls outside the range of possible, acceptable outcomes which are defensible in respect of the facts and law.
[50] It is worthy of note that in conducting a reasonableness analysis, one has to be mindful that in considering a complaint, the Tribunal may examine the assessment process but it is not its role to reassess candidates or redo an appointment process (Lahlali, above at paras 39 and 42).
[51] As in Abi-Mansour v Department of Foreign Affairs, above, the Applicant is raising a myriad of arguments against the Tribunal’s decision.
[52] First, he contends that the Tribunal refused to exercise its jurisdiction by not considering his Employment Equity concerns as a separate issue from the discrimination issue. Then he claims that the Tribunal committed a series of reviewable errors in its assessment of the explanations provided by the Department to demonstrate that the Applicant’s race or national and ethnic origin were not factors in its decision to appoint persons other than him. The Applicant essentially contends in this respect that the impugned decision is unreasonable to the extent the Tribunal:
- ignored evidence that the “right fit” discretion is being generally used to commit disguised discrimination;
- found that a candidate to an appointment process is not qualified if he or she does not possess the asset qualifications which, by definition, are arbitrarily chosen by the employer;
- accepted that his own application had been objectively and properly assessed;
- found that Ms. Morin met the essential qualifications for the positions at issue;
- failed to take into consideration that he was a stronger candidate that Mss. Morin, Privalova and Verner and the two persons appointed from outside the pool of the appointment process at issue;
- failed to give any weight to the fact the Department did not apply organizational needs despite the existence of gaps in the representation of visible minorities in its workforce; and
- found that he failed to establish that the Department retaliated against him for having filed complaints with the Tribunal.
(1) The jurisdictional argument [53] The Applicant claims that the Tribunal had to consider Employment Equity as a separate issue and not, as it did in this case, as a component of the discrimination analysis. By failing to conduct a separate Employment Equity analysis, the Applicant contends that the Tribunal declined to exercise its jurisdiction, committing thereby a fatal jurisdictional error.
[54] This argument cannot succeed. It is correct to say that the Federal Court of Appeal, in Lincoln v Bay Ferries Ltd., 2004 FCA 204, made it clear that the Employment Equity Act was intended to apply independently from the Canadian Human Rights Act and to impose on employers “duties and obligations that are specific to that legislation, that are to be enforced pursuant to that legislation and that are unrelated to a complaint under section 7 of the Canadian Human Rights Act” (Lincoln, at para 27).
[55] However, this does not require the Tribunal to do more than what is required by the Act in terms of Employment Equity. In my view, the Tribunal, in the present case, properly described its role in this respect. It first reminded that the responsibility of enforcing compliance with the Employment Equity Act has been bestowed by Parliament to the Canadian Human Rights Commission, not the Tribunal, meaning that the Tribunal has no authority to consider whether a government department is fulfilling its obligations under the Employment Equity Act. Second, it stated that although the role of enforcing compliance with the Employment Equity Act belongs to the Canadian Human Rights Commission, equity matters may nonetheless be relevant to complaints made under the section 77 of the Act where a department establishes an organizational need as a merit criterion, as it is permitted to do under subsection 30(2)(b)(iii). In such instances, the Tribunal has the authority, pursuant to subsection 77(1)(a) of the Act, to determine whether the identified organizational need was duly taken into consideration in the appointment process.
[56] Contrary to the Applicant’s assertion, this mirrors the position adopted by the Tribunal in Brown v Commissioner of Correctional Services of Canada, 2011 PSST 0015. In that case, the Tribunal provided useful guidance on the interaction between the Act and the Employment Equity Act:
[68] It is useful at this point to examine the purpose of the EEA and how that Act operates to better understand the relation between that Act and this appointment process. The purpose of the EEA is to correct conditions of disadvantage in employment experienced by women, aboriginal peoples, persons with disabilities and members of visible minorities (the designated groups) (s. 2). The Act sets out several obligations on the employer in order to reach those goals. Among them is the obligation to identify and eliminate barriers to employment for employees in the designated groups and institute policies and practices that will achieve a degree of representation in each occupational group in the employer’s workforce that reflects their representation in the workforce in the country (s. 5). The CHRC is responsible for enforcing the EEA (s. 22). It does so through compliance audits. When the employer does not comply with the EEA, the CHRC may issue a direction to the employer to remedy the non-compliance (s. 25(2)). The employer may ask for a review of the direction by an Employment Equity Review Tribunal established by the Chairperson of the CHRC (s. 28 (1)).
[69] The EEA and the PSEA are coordinated to ensure that both EE and merit are respected in appointments. Section 30(2)(b)(iii) of the PSEA allows the deputy head to establish organizational needs as a merit criteria. It is uncontested that EE can be an organizational need and that “[m]ember of a designated Employment Equity group” was identified as an organizational need in this appointment process. The PSEA also contributes to EE goals by allowing the deputy head to limit the area of selection to designated groups, or to have a broader area of selection for those groups (s. 34). The EEA ensures that merit is respected in appointments since the employer is not required to hire a person who does not meet the merit criteria within the meaning of the PSEA where merit applies (s. 6(c)).
[57] The Tribunal made it clear in Brown, at paragraph 71, that it will consider whether or not an employer has had regard to an organizational need only when such a need has been established as a merit criterion. This is consistent with the jurisprudence of this Court which establishes that the language used at subsection 30(2) of the Act confers on deputy heads discretion to identify current or future organizational needs as a merit criterion (Abi-Mansour v Department of Foreign Affairs, above at para 87).
[58] In other words, Employment Equity concerns engage the Tribunal’s jurisdiction only when Employment Equity is identified as an organizational need under subsection 32(2) of the Act in relation to an appointment process that is the subject of a complaint pursuant to section 77 of the Act. Therefore, I see no reason to interfere with the Tribunal’s approach to the Applicant’s Employment Equity concerns.
(2) The Department’s rebuttal of the prima facie case of discrimination [59] The Tribunal held that the Department led convincing evidence establishing that the Applicant’s race or national and ethnic origins were not factors in its decision to appoint persons other than him. In particular, it was satisfied that the Department had established that although the Applicant may have met the essential qualifications for the advertised positions, he did