Chopra v. Health Canada

Chopra v. Health Canada
Collection
Canadian Human Rights Tribunal
Date
2008-09-19
Neutral citation
2008 CHRT 39
Decision-maker(s)
Deschamps, Pierre
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
SHIV CHOPRA
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
HEALTH CANADA
Respondent
DECISION
2008 CHRT 39 2008/09/19
MEMBER: Pierre Deschamps
I. INTRODUCTION
II. PRELIMINARY ISSUES
A. The scope of the complaint
B. The findings and rulings of previous Tribunals
(i) The Drennan complaint
(ii) The Liston comments
(iii) The Gunner incident
(iv) The Scott appointment
C. The career of Dr. Chopra at Health Canada
D. The unfair treatment of Dr. Chopra
(i) The Zohair complaint
(ii) The Elanco complaint
(iii) The suspension imposed on Dr. Chopra by Dr. Lachance
(iv) The exclusion of Dr. Chopra from certain projects
E. The credibility of Dr. Chopra
III. THE SUBSTANTIVE ISSUES
A. The relevant provisions of the Canadian Human Rights Act
(i) Section 7
(ii) Section 10
(iii) Section 14
(iv) Section 14.1
(v) Section 65
B. The relevant legal principles
(i) Discrimination
(ii) Retaliation
(iii) Harassment
C. The relevant allegations
(i) Issues related to different appointment opportunities
a) The Scott appointment (1995)
b) The Self-appointment of Dr. Paterson to the position of Director, BVD (1997)
c) The Lachance appointment (1998)
d) The Alexander appointment (1999)
e) The Butler appointment (1999)
(ii) Issues related to incidents potentially discriminatory
a) The Lachance comments
b) The five-day suspension
c) The Zohair complaint
d) The Elanco complaint
e) The exclusion from the Flumequine project
(iii) The issue of systemic discrimination
IV. REMEDIES
V. ORDER
I. INTRODUCTION [1] On February 11, 2004, the Canadian Human Rights Commission referred complaint H47521 to the Canadian Human Rights Tribunal requesting, pursuant to section 49 of the Canadian Human Rights Act, an inquiry into the complaint.
[2] The record shows that in fact two complaint forms were referred to the Tribunal. The original complaint form, dated May 13, 1998 indicates as the date of the alleged conduct 1992 and ongoing while the complaint form amending the complaint form signed May 13, 1998, which is dated Januray 12, 1999, indicates as the date of the alleged conduct 1993 and ongoing.
[3] In his complaint, the Complainant, Dr. Shiv Chopra who, at all relevant times, was a drug evaluator with the Health Protection Branch at Health Canada, alleges that Health Canada discriminated against him by treating him in an adverse differential manner in the course of his employment by denying him promotional opportunities based on his race, colour and national or ethnic origin (East Indian) contrary to sections 7 and 10 of the Canadian Human Rights Act. The record shows that the Complainant later alleged that he had been harassed and retaliated against by Health Canada, allegations that bring into play sections 14 and 14.1 of the Act.
[4] The Commission was not present at the hearing. The Complainant and the Respondent were represented by Counsel.
[5] This complaint raises legal issues which go beyond a determination of discrimination in relation to sections 7 and 10 of the Act as well as of harassment and retaliation with respect to sections 14 and 14.1 of the Act.
[6] The record shows that, in 1992, the Complainant filed a complaint with the Canadian Human Rights Commission which covered events that had taken place prior to September 16, 1992. This complaint was first heard by a three member panel of this Tribunal, the Soberman Tribunal, which made findings of fact that went beyond September 16, 1992.
[7] The record shows that the decision rendered by the Soberman Tribunal was subsequently set aside by the Federal Court of Canada and another member of the Tribunal, Mr. Athanasios Hadjis, was assigned to hear new evidence. The Hadjis Tribunal made findings of fact on events that had occurred after September 16, 1992 as well as decided issues that had arisen after September 16, 1992.
[8] At the hearing, the scope of the complaint became an issue with respect to what period of time was covered by the complaint. In addition, given the findings and rulings made by the Soberman and Hadjis Tribunals, the issue of res judicata was raised as to which issues had been judicially decided by the previous Tribunals.
[9] Before inquiring into the substance of the complaint, i.e. the possible breach by the Respondent of sections 7 and 10 of the Canadian Human Rights Act, as well as sections 14 and 14.1 of the Act, the Tribunal will address a number of preliminary issues which may have an impact on the determination of the substantive issues.
II. PRELIMINARY ISSUES [10] There are five preliminary issues that have to be dealt with before examining the substantive aspects of the complaint: A. the scope of the complaint, B. the findings and rulings of previous Tribunals, C. the career of Dr. Chopra at Health Canada, D. the unfair treatment of Dr. Chopra at Health Canada and E. the credibility of Dr. Chopra.
A. The scope of the complaint [11] The record shows that, on May 13, 1998, the Complainant filed a complaint form with the Canadian Human Rights Commission bearing the number H47521. In his original complaint, the Complainant alleges that Health Canada, from 1992 and onwards, discriminated against him by treating him in an adverse differential manner throughout his employment by denying promotional opportunities based on his race, colour and national or ethnic origin contrary to section 7 of the Canadian Human Rights Act.
[12] On January 12, 1999, the Complainant filed a second complaint form amending the complaint form signed on May 13, 1998, bearing the number H47521. In his amended complaint, the Complainant alleges that Health Canada, from 1993 and onwards, had discriminated against him by treating him in an adverse differential manner throughout his employment by denying promotional opportunities based on his race, colour and national or ethnic origin contrary to sections 7 and 10 of the Canadian Human Rights Act.
[13] At the hearing, the Complainant argued that the amended complaint form did not replace the first complaint form but amended it so as to add section 10 of the Act as an additional ground of discrimination. According to the Complainant, the time period covered by the complaint remained the same and covered the period extending from 1992 and onwards.
[14] The Respondent argued that the second complaint in fact replaced the first one and that the time period covered by the complaint was the period extending from 1993 and onwards. The Respondent further argued that events that had taken place in 1992 had already been dealt with by previous Tribunals, the Soberman and the Hadjis Tribunals, and could not be the object of further litigation.
[15] The fact of the matter is that the two complaint forms, both the original one dated May 13, 1998 and the amended one dated January 12, 1999 were referred to the Tribunal. The issue pertaining to the reasons that lead Dr. Chopra to sign an amended complaint form with a different date in the period box thus becomes moot; so is the issue as to whether or not the amended complaint form was meant to replace the original complaint form. As stated, both the original complaint form and the amended complaint form were referred to the Tribunal.
[16] Furthermore, the record shows that the Complainant, after a long exchange between himself and Counsel for the Respondent in the course of his cross-examination, admitted that the period covered by the present complaint was the period extending from 1993 to 1999.
[17] The Tribunal thus finds that both complaint forms, the original complaint form as well as the amended one, are properly before the Tribunal and that the period of time covered by the complaint extends from 1993 to 1999.
B. The findings and rulings of previous Tribunals [18] The record shows that many events referred to in the present proceedings were the object of findings and rulings in previous decisions of this Tribunal related to the complaint brought by the Complainant against the Respondent on September 16, 1992, i.e. the Soberman and the Hadjis Tribunals, as well as by the complaint brought by the National Capital Alliance on Race Relations (NCARR) against Health Canada. For example, the record shows that the Hadjis Tribunal allowed evidence and made findings on events which were technically outside of the scope of the 1992 complaint which covered events up to September of 1992, notably events which occurred in 1993 and 1994.
[19] Before the start of this hearing, the Respondent brought a motion asking the Tribunal to strike out certain aspects of the complaint given the findings of Mr. Hadjis in Chopra v. Canada (Department of National Health and Welfare), [2001] C.H.R.D. No. 20 (QL) as well as in National Capital Alliance on Race Relations (NCARR) v. Canada (Health and Welfare), [1997] C.H.R.D. No. 3 (QL). The Tribunal was reluctant to remove certain aspects of the complaint. However, the Tribunal considered different allegations and made a series of rulings.
[20] The Tribunal finds that it is bound by previous findings and rulings of this Tribunal, notably those made by the following members: Soberman, Sinclair, Hadjis and Groarke and that, in as much as issues have already been considered and decided upon by other members of this Tribunal, these issues cannot be relitigated. They however form part of the history of the human rights litigation between the parties. They provide the background to the current complaint. This said, providing some background or context to the present complaint does not mean relitigating issues which have already been decided upon.
[21] The Tribunal finds, after carefully reviewing the Soberman and Hadjis decisions, and given the issues that were raised in the present proceedings, that the following events need to be considered to assess their inclusion in or exclusion of the issues that the Tribunal has to rule upon: 1. the Drennan complaint, 2. the Liston comments, 3. the Gunner incident, 4. the Scott appointment.
(i) The Drennan complaint [22] In the particulars to his amended complaint form, the Complainant states that some time in 1993 (sic), Dr. W.G. Drennan, Dr. M.S. Wong (sic), Dr. L. Ritter and an unnamed human resources officer planned to personally defame him by setting him up for a spurious charge of negligence of duty. According to the Complainant, the negligence charge was to be used in his performance appraisal and resulted in two grievances and an external investigation. The Complainant further alleges that when this was discovered, there was no impact on the perpetrators involved, nor did he receive an apology.
[23] The record shows that in his 2001 decision, Mr. Hadjis dealt with the complaint made by Dr. Drennan against Dr. Chopra in 1990. The record indicates that Dr. Chopra only learned about the existence of the complaint in 1993 pursuant to an Access to Information request which he had filed.
[24] With respect to the Drennan complaint, the record shows that on July 23, 1990, Dr. Drennan who worked at the Bureau of Veterinary Drugs, filed a complaint against Dr. Chopra about the emergency release of a drug. The complaint was documented in a memorandum addressed to Dr. Yong, Chief of the Human Safety Division, and had been put in Dr. Chopra's personal file. The complaint alleged that, on July 11, 1990, Dr. Drennan had confronted Dr. Chopra regarding the latter having failed to proceed promplty with the issuance of a certain drug to treat poultry in Saskatchewan. The records shows that, apparently, Dr. Yong concluded, at the time, that the complaint was unfounded and that Dr. Chopra had not acted inappropriately. Dr. Yong therefore did not, the record shows, follow up on the memorandum, but unfortunately, it remained in Dr. Chopra's file. Several months after the memorandum was sent, Dr. Yong informed Dr. Chopra of the complaint during the preparation of his 1990-91 performance appraisal, but Dr. Chopra apparently had no knowledge that the memorandum had found its way into his personal file (Hadjis decision, par. 144).
[25] In his decision, Mr. Hadjis states that Dr. Chopra's concern with this incident, as it relates to the complaint he was seized with, is that the verbal exchanges which occurred between him and Dr. Drennan, in July 1990, came only two days after Dr. Chopra had written to the Chairperson of the Public Service Commission, with a copy to Deputy Minister Catley-Carlson, voicing his concerns about employment equity in the federal public service as well as his frustration in not having been approached by Health Canada or any other government organization for a management position (Hadjis decision, par. 146.)
[26] With respect to Dr. Chopra's concerns, Mr. Hadjis ruled that other than the short span of time between the two events, there did not appear to be any evidence to link them and noted again that the Soberman Tribunal did not refer to this evidence at all in its decision and went on to reject the suggestion that discrimination against Dr. Chopra was a factor in Dr. Drennan's complaint or that it was linked to Dr. Chopra's complaints and allegations of discrimination (Hadjis decision, par. 290).
[27] The Tribunal finds that the issues related to the Drennan complaint have been thoroughly considered by the Hadjis Tribunal. Counsel for the Complainant acknowledged in the course of these proceedings that the complaint made by Dr. Drennan in 1990, the existence of which was discovered in December 1993, was the object of a ruling by Mr. Hadjis. Furthermore, in his ruling in Bassude v. Health Canada, 2005 CHRT 21, par. 11, Member Groarke made it clear that the parties were bound by Mr. Hadjis's findings.
[28] Hence, this Tribunal will not revisit the issues, findings and rulings pertaining to the Drennan complaint and make additional findings of fact, such as whether or not it was made in retaliation to Dr. Chopra's Employment Equity Report, whether or not it was an attempt on the part of Health Canada to discredit Dr. Chopra, whether or not it constituted boardroom racism as alleged by Counsel for the Complainant and what could have been the reasons for management at Health Canada for not informing Dr. Chopra of the existence of the complaint and rule on them. All the findings and non-findings made by Mr. Hadjis in his decision about the Drennan complaint are res judicata.
(ii) The Liston comments [29] The record shows that the comments made by Dr. Liston about Dr. Chopra in September 1992, and which are captured in a memo written by Ms. Shirley Cuddihy, referred to as the Cuddihy memo, were considered by the Hadjis Tribunal.
[30] It stems from the Hadjis decision that, in September 1992, the Deputy Minister at Health Canada requested from the Human Resources Directorate the opinion of senior management as to why Dr. Chopra had not been promoted to management levels, and Ms. Shirley Cuddihy, Chief of Staff Relations Operations in the Human Resources Directorate, was assigned to this task.
[31] The record shows that Ms. Cuddihy met with Dr. Liston, the Assistant Deputy Minister of the Health Protection Branch at that time, and that the latter made the following comments which became part of the memo she sent to her supervisor, Mr. Rod Ballantyne:
As promised, my notes from my conversations with Drs. Liston and Somers.
Dr. Liston provided comments of both a broad nature and as well relating specifically to S. Chopra
General
Employees who are being considered solely for technical positions seem to fare better than when being considered for management positions. The cultural differences are minimized when we are only looking for the scientific approach. However when we start looking for the soft skills such as communicating, influencing, negotiating - quite often their cultural heritage has not emphasized these areas and they are at a disadvantage.
Abilities to intereact (sic) with a number of stakeholders, such as industry as well as internally with peers, subordinates and superiors are important. As well we do business in the North American Way - consensus reaching model which to some cultures is very foreign.
Dr. Liston has apparently had a number of discussions with Ivy Williams on the issue. There is however a bit of a paradox in highlighting what we consider needs to be changed because we run the risk of having to defend ourselves against charges of assimilation. He suggests that we need to provide minority groups with training - we need to point them in a direction of a mirror and say: because of your cultural background, you need to communicate better or adopt a less authoritarian style. It is not a color but a culture problem nor is it a Branch or even a department but appears to be most common in departments such as ours which are technically/scienfically oriented.
Specific relating to S. Chopra
He is authoritative.
He saw in (Shiv Chopra) a great textbook knowledge and thought he could build on the soft skills. (Shiv Chopra) had a confrontational style the effects of which became apparent only sometime after his arrival in the staff position reporting to Dr. Liston. People avoided him after a period rather that being being (sic) challenged by him.
(Shiv Chopra) is not a negotiator - he doesn't make allies easily.
He has not placed himself in a position for grooming to senior management level positions.
[32] The record shows that the Cuddihy memo was not disclosed at the time to Dr. Chopra. Dr. Chopra was made aware of the existence of the memo and got a copy of it through a request under the Access to Information Act. The record shows that Mr. Hadjis dealt extensively with the comments made by Dr. Liston in 1992 and made findings of facts as well as reached certain conclusions as to the impact of the comments on Dr. Chopra's career.
[33] With respect to the Cuddihy memo, the Hadjis Tribunal found that it could be reasonably inferred from the opinions expressed by the Assistant Deputy Minister in the memo that a link between the Respondent's actions in staffing the Director's position and a prohibited ground of discrimination had been established (Hadjis decision, par. 269). The Hadjis Tribunal also found that the Cuddihy Memo accurately reflected the substance of Ms. Cuddihy's conversation with Dr. Liston and that Dr. Liston's declarations revealed an underlying assumption that persons of differing cultures may not be well-suited for senior management, because their soft skills such as communicating, influencing, negotiating have not been emphasized in their cultural heritage, thereby placing them at a disadvantage (Hadjis decision, par. 269, 272).
[34] The Tribunal concluded that the remarks made by Dr. Liston were obviously related to the visible minority groups working within Health Canada who are of diverse national or ethnic origins, including persons of South Asian origin like Dr. Chopra (Hadjis decision, par. 271) and that Dr. Liston's specific comments regarding Dr. Chopra reflected his perception of him as being one of those minority employees who lacked the soft skills needed for management (Hadjis decision, par. 275).
[35] Hence, this Tribunal will not revisit the issues, findings and rulings pertaining to the Cuddihy memo and make additional findings of fact, such as whether or not Health Canada dealt properly with Dr. Liston, whether or not the conduct of Health Canada managers constitute boardroom racism. All the findings and non-findings made by Mr. Hadjis in his decision about the Cuddihy memo are res judicata and cannot be relitigated before this Tribunal. To rule otherwise would mean that parties who are not satisfied with the ruling of a Tribunal could, at their leisure, relitigate issues ad infinitum. This is contrary to the sound administration of justice.
(iii) The Gunner incident [36] Even though this incident fell outside the scope of the complaint brought by Dr. Chopra in September 1992, the record shows that the Hadjis Tribunal dealt with this matter.
[37] In his 2001 decision, Mr. Hadjis dealt with the Gunner incident in the following manner:
Par. 143
Dr. Chopra contends that a defamatory remark was made against him by Dr. Gunner, in 1993, subsequent to the filing of this human rights complaint and he considers this event to constitute additional circumstantial evidence of boardroom racism being practiced against him. Apparently, some time after the Bureau of Veterinary Drugs was assigned to the Food Directorate, the Director-General, Dr. Gunner, met with the PIPSC steward, Mr. D.R. Carsorso, and inquired as to the existence of any union problems at the Bureau. During this conversation, Dr. Gunner questionned Mr. Carsorso about Dr. Chopra's case (What about Shiv Chopra?) In a subsequent group meeting of several members of the union, Mr. Casorso recounted the elements of this discussion, including the reference to the Complainant. Dr. Chopra was upset that personal matters about him were not raised directly with him and consequently, filed a grievance seeking a recognition of the inappropriateness of Dr. Gunner's conduct toward him. Following an apology by Mr. Casorso, and as a gesture of good faith, Dr. Chopra later withdrew his grievance.
Par. 289
In addition, there is no evidence to support Dr. Chopra'a submission that discrimination was a factor in the 1993 incident involving a union steward nor that it was even in retaliation to the complaints which he had lodged against the Respondent. Clearly, by that time, the issues raised by Dr. Chopra and other public servants, through NCARR, had created some measure of conflict between those employees and their employers. In this context, it would not have been inappropriate for a newly appointed Director-General to inquire into these issues or to even refer to these disputes as a problem. With regard to this matter as well, the Soberman Tribunal did not make any findings.
[38] The record shows that the Hadjis Tribunal dealt thoroughly with the Gunner incident and made findings that this Tribunal cannot ignore. This matter is for all intent and purposes res judicata and this Tribunal will not consider it any further except as part of the context to the current complaint. The Tribunal notes here that the Hadjis Tribunal found that the conduct of Dr. Gunner had not been discriminatory.
(iv) The Scott appointment [39] Even though the appointment of Dr. Scott to the position of Director of the Bureau of Veterinary Drugs, fell outside the scope of the complaint brought by Dr. Chopra in September 1992, the record shows that this matter was considered by the Hadjis Tribunal.
[40] The following paragraphs of the Hadjis decision need to be referred to in order to determine the findings and rulings made by Mr. Hadjis in relation to the Scott appointment:
Para. 136
In the complaint, Dr. Chopra alleges that he was treated unfairly in the manner in which his performance appraisals were prepared during this 1990 to 1992 period, and that he believes that he received this treatment because of his colour, race and national or ethnic origin. In his final arguments, Counsel for the Commission also referred to another competition in 1993, as well as an incident involving a union steward and a grievance filed against the Complainant, subsequent to the filing of the human rights complaint, as evidence of ongoing discrimination. I note that aside from the performance appraisals issue, these matters were not referred to by the Soberman Tribunal in its decision, even though all of the evidence relating thereto was presented in the first set of hearing.
Para. 141
In December 1993, Dr. Chopra applied for the competition to fill the position of Director of the Bureau of Veterinary Drugs, classified at the EX-02 level. He testified that he had viewed the poster advertising this competition prior to submitting his application. His candidacy was screened out by the screening board which determined that he did not meet two of the three experience factors listed on the statement of qualifications for the position: (i) experience in managing a scientific or medical or veterinary organization with multi-faceted programs, and (ii) experience as a departmental representative with outside organisations including media and international organizations. With respect to the first criterion, his experience was not considered recent, as required by the screening guide set up by the screening board, and regarding the second qualification, it was determined that there was no evidence of his having had any experience in dealing with the media on behalf of Health Canada. Dr. Timothy Scott was found to be the only fully qualified candidate and was appointed to the position.
Para. 142
Dr. Chopra appealled the appointment alleging that his qualifications and those of Dr. T. Scott were not adequately assessed. On November 14, 1994, Ms. Helen Barkley of the Public Service Commission Appeal Board dismissed the appeal. In her ruling, Ms. Barkley found that Dr. Chopra's dealing with the media were as a private citizen and on social issues, not as a departmental representative, and that, in any event, he did not have the managerial experience required for the position. She further held that she found no evidence of bias on the part of either of the screening board members, Ms. Francine Krueger of the PSC and Dr. Saul Gunner, the Director General of the Food Directorate, under which was located the Bureau of Veterinary Drugs.
Para. 288
I also do not find that Dr. Chopra was the victim of adverse differential treatment with respect to the December 1993 competition for the position of Director - Bureau of Veterinary Drugs. Although he was screened out for lack of recent management experience, he was also deemed to lack the second qualification of experience in dealing with outside organizations. No evidence was adduced to indicate the Dr. Chopra did in fact possess the latter qualification nor that his lacking this experience was related to discrimination by the Respondent. I am satisfied that Dr. Chopra was not qualified for the position, and that consequently, the Shakes test (the prima facie test) has not been met.
[41] In Bassude v. Health Canada, 2005 CHRT 21, Member Groarke ruled with respect to the Scott appointment that the issue had already been litigated.
[42] At the hearing, Counsel for the Complainant argued, however, that the Hadjis Tribunal did not consider what had happened after corrective measures were ordered following the successful appeal of Dr. Casorso and asked the Tribunal to address this matter. In response to this argument, the Respondent argued that the whole issue of Dr. Scott's appointment was res judicata, stating that the facts were basically the same in both instances (initial competition and subsequent competition). The Complainant disputed the fact that there was res judicata because the issues were not the same even though the facts may be the same.
[43] The record shows that, on March 3, 2006, this Tribunal ruled on a formal objection made by the Respondent to the introduction by the Complainant of evidence on the selection process leading to the appointment of Dr. Timothy Scott to the position of Director, BVD (Basudde v. Health Canada), 2006 CHRT 10:
Par. 28 This said, the Tribunal cannot, however, ignore the fact that, in his decision, Mr. Hadjis did make findings of fact in connection with allegations of discrimination related to events which were outside the 1990-1992 period, namely the appointment of Dr. Scott to the position of Director, BVD.
Par. 29 In this respect, Mr. Hadjis found that Dr. Chopra was not the victim of adverse differential treatment with regard to the December 1993 competition for the position of Director, BVD. Mr. Hadjis further found that no evidence was adduced indicating that Dr. Chopra did, in fact, possess the qualification or experience in dealing with outside organizations (Hadjis decision, par. 288). On this basis, Mr. Hadjis concluded that Dr. Chopra was not qualified for the position and that there was no prima facie case of discrimination.
Par. 30 Even if these findings can be said to be only incidental to the core issue which Mr. Hadjis had to decide, i.e. the staffing of the position of Director, BVD, they still remain findings of fact made by Mr. Hadjis that I cannot ignore.
Par. 33 The Tribunal thus finds that the period covered by the complaint filed by Dr. Chopra in 1992 was that of 1990 to 1992, more precisely September 16, 1992, the date of the filing of the complaint, that additional allegations of discrimination were raised in the course of the second hearing by Mr. Hadjis of the 1992 complaint, notably allegations of discrimination in relation to the selection process of December 1993 leading to the appointment of Dr. Scott as Director, BVD, that these allegations, although incidental and not part of the scope of the complaint filed in 1992, led to certain findings of fact by Mr. Hadjis, that these findings cannot be ignored by the Tribunal but must be put in the context of the 1992 complaint and of Mr. Hadjis' analysis of the December 1993 competition.
Par. 34 In his analysis of the evidence pertaining to the 1993 competition (Hadjis decision, para. 141-142), Mr. Hadjis only considered the facts related to the initial competition. He did not deal with the corrective measures that were implemented after Dr. Casorso was successful in his appeal. Nor did he deal with the events that took place after the implementation of these corrective measures and with any allegation of discrimination related to events that followed the implementation of the corrective measures.
Par. 35 The Tribunal therefore finds that events which took place after the PSAB decision in November 1994 were not considered, nor decided, by Mr. Hadjis in his decision. His findings of fact are limited to the initial 1993 competition and do not cover the overall process pertaining to the staffing of the position of Director BVD.
Par. 36 On this point, the Tribunal disagrees with Respondent's assertion that the corrective measures put in place after the Carsorso decision are subsumed in the overall selection process of a Director for the BVD, process which started in December 1993 and ended in February 1995 with the confirmation of Dr. Scott as Director, BVD.
[44] Given the Tribunal previous decision on the matter of the appointment of Dr. Scott, the Tribunal will consider as part of this complaint the events which occurred after corrective measures were ordered following Dr. Carsoso's successful appeal.
C. The career of Dr. Chopra at Health Canada [45] Dr. Chopra is of East Indian descent. He started working at Health Canada in 1969. In 1987, he became a drug evaluator in the Human Safety Division of the Bureau of Veterinary Drugs at a VM-4 level. His employment at Health Canada was terminated in 2004.
[46] The record shows that during the period of time he worked at Health Canada, Dr. Chopra had acting positions twice, in 1988 and in 1996. Firstly, the evidence shows that Dr. Chopra acted as Chief of the Human Safety Divison, in 1988 for a period of six weeks or so, before Dr. Yong was appointed Chief, and afterwards, off and on whenever he was asked to, up to about 1992. Secondly, the evidence shows that Dr. Chopra acted as Chief, C.N.S. Division, for a period of four months at the end of 1996 and in early 1997 (October 7, 1996 to February 7, 1997) and that as Chief of C.N.S. and Endocrine Drugs Division, on occasion he acted as Director of the Bureau of Veterinany Drugs, a few days here and there.
[47] Asked if anyone within the Department expressed concerns about his performance when he acted in the position of Chief or Director, on certain occasions, Dr. Chopra testified that not at all, that no one in the Department or outside the Department complained about his acting as Director or Chief.
[48] The record shows that as early as 1979, Dr. Chopra started showing interest in being provided opportunities to acquire experience in more senior management responsibilities. His annual appraisals before joining the Bureau of Veterinary Drugs, while with the Bureau of Drugs, state that management related training programs are recommended for this employee in order to enhance his career aspirations and that he had received extensive management training.
[49] The following comments appear in his 1979 evaluation, signed by Dr. Ian Henderson: It is obvious that this employee's interests for the future lie in the area of policy-making and management. He has been acting de facto as a Section Head for the specialty of immunology, but this has not been formalized in his job description, nor in terms of his compensation. He is somewhat frustrated by his inability to rise within the management structure of the Health Protection Branch, and is presently looking for an opportunity to enter a management career path, while attempting to maintain his expertise in the scientific discipline of immunology.
[50] In his 1980-1981 appraisal, it is stated that Dr. Chopra has received extensive management training, while his 1981-82 appraisal states that he has gained extensive management training.
[51] In relation to his 1981-1982 appraisal, it is mentioned that this employee has received extensive training in Management skills including a Diploma in Senior Management Development from the Public Service Commission and that the full potential of this employee remains underutilized, that in spite of extensive formal training and experience in management systems and a rare insight into international regulatory control of health care products, no visible career advancement has been possible. Nevertheless, the employee has managed to contain his frustration and continues to maintain his initiative and drive in typical professional manner. These comments are repeated in his 1982-1983 appraisal.
[52] In his 1986-87 appraisal, it is stated that when provided the opportunity, Dr. Chopra acts as a competent manager. In his 1987-1988 second to last annual appraisal before joining the Bureau of Veterinary Drugs, it is written that Dr. Chopra has wide experience in regulatory affairs and has demonstrated his ability to handle delicate situations requiring both scientific knowledge, tact and good writing skills, that he has the potential for advancement to a higher level in the service and that his aspirations should be met. In his l990 appraisal, signed by Drs. Yong and Messier, it is stated that Dr. Chopra has the potential to achieve his career aspirations (management). He is encouraged to pursue the DAP program initiative. His later appraisals are more sketchy.
[53] The record shows that, in 1991, Dr. Chopra reiterated his interest in being provided opportunities to acquire experience in more senior management to Health Canada officials, Mr. Ballantyne and Dr. Liston. The evidence shows that Dr. Chopra expressed his concern regarding, what he believed, was the denial of these opportunities. He expressed the opinion in the course of his testimony that the Department was giving opportunities (i.e. line management experience) to everybody else but him.
[54] Dr. Chopra stated time and time again in his testimony that he met all the qualifications required for a managerial position and that, in his opinion, given his past appraisals, he was better fitted that anybody else to occupy managerial positions, i.e. Chief or Director. The evidence shows that Dr. Chopra was told in that respect that he was lacking recent line management experience.
[55] It is worth noting with respect to Dr. Chopra's career progression that Mr. Hadjis made the following findings in his 2001 decision:
[261] Over this same 1969 to 1987 period, the Complainant claims that he was not provided with the appropriate advice and assistance from the employer, to acquire the management experience required for a senior management position. Dr. Chopra was advised as early as 1974 to register for career advancement opportunities such as the CAP and later, the DAP. The evidence shows that the Complainant did not follow up on these recommendations.
[262] The Soberman Tribunal held that such responsibilities cannot properly be left entirely to the employee within such a large bureaucracy and that the Respondent's insensitivity increased Dr. Chopra's level of frustration and eventually led to his suspicions that racial discrimination played a role in his being passed over. Nonetheless, the first Tribunal found that these findings do not demonstrate prima facie discrimination. However, I would add that the new evidence led before me reinforced the point that ultimately the responsibility to seek out and obtain such training and other advancement opportunities is the employee's. I therefore find that no inference of discrimination on the part of the Respondent can be drawn from these circumstances.
D. The unfair treatment of Dr. Chopra [56] In support of the allegations that the Complainant was discriminated against, Counsel for the Complainant relied on a number of situations where, he asserts, the Complainant was treated unfairly by Health Canada when compared to how Health Canada dealt with other employees. In his submissions, Counsel for the Complainant asserted that these situations should be considered as more than the unfair treatment of Dr. Chopra compared to the treatment of other individuals, but also as retaliation or harassment under the Canadian Human Rights Act.
[57] Given that the Tribunal has already decided not to examine events or issues that have already been considered by previous Tribunals, the events that the Tribunal considers relevant to the present proceedings are 1. the Zohair complaint, 2. the Elanco complaint, 3. the suspension imposed on Dr. Chopra by Dr. Lachance in 1999 and 4. the exclusion of Dr. Chopra from certain projects.
[58] Except for the Elanco complaint, the Zohair complaint, Dr. Chopra's suspension and his exclusion from certain projects are not identified in the complaint forms or the additional allegations as incidents of discrimination, the Zohair complaint and Dr. Chopra's suspension having occurred after the filing of the complaints forms and the additional allegations in June 1999.
(i) The Zohair complaint [59] The record shows that, in July 1999, Ms. Shaida Zohair, the secretary to the Chief of the Human Safety Division where Dr. Chopra was an evaluator, made a harassment complaint against Dr. Chopra. Health Canada ordered that an independent investigation be carried out. The investigator concluded that Dr. Chopra may have been guilty of arrogance, insensitivity or condescending behavior, but neither the frequency - three incidents alone over a one-year period - nor the nature - neither momentous nor grave - of the actions sufficiently constitute a pattern of behaviour that would support a definition of harassment. The evidence shows that Dr. Chopra was imposed a reprimand by the Director General of the Food Directorate and that Dr. Chopra grieved that decision. The evidence further shows that Dr. Chopra's grievance was upheld by the Assistant Deputy Minister who ordered that the letter of reprimand be removed from Dr. Chopra's file.
[60] Counsel for the Complainant stated in his oral submissions that he relied on the Zohair complaint for two specific reasons: firstly, to show how Dr. Chopra learned about the complaint - the complaint was made in July 1999 and Dr. Chopra was informed only in September 1999, - and secondly, how complaints against Dr. Chopra were dealt with compared to complaints made by Dr. Chopra.
[61] On this aspect, the evidence shows that Dr. Chopra learned about the complaint through the investigator. Nobody, it appears, within the Departm