Tahmourpour v. Royal Canadian Mounted Police

Tahmourpour v. Royal Canadian Mounted Police
Collection
Canadian Human Rights Tribunal
Date
2008-04-16
Neutral citation
2008 CHRT 10
File number(s)
T1151/3306
Decision-maker(s)
Jensen, Karen A.
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
ALI TAHMOURPOUR
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
ROYAL CANADIAN MOUNTED POLICE
Respondent
DECISION
2008 CHRT 10 2008/04/16
MEMBER: Karen A. Jensen
I. INTRODUCTION
II. AN OVERVIEW OF THE COMPLAINT
III. WHAT ARE THE SPECIFIC ISSUES IN THIS COMPLAINT?
IV. WHAT MUST BE PROVEN WITH REGARD TO SECTION 7?
A. Was Mr. Tahmourpour Subjected to Discriminatory Remarks, Hostile Treatment and Verbal Abuse?
B. The Evaluation of Mr. Tahmourpour's Performance at Depot
C. The Decision to Terminate Mr. Tahmourpour's Contract
D. The Assessment of Mr. Tahmourpour's Suitability for Re-enrollment
V. WHAT MUST BE PROVEN WITH REGARD TO SECTION 14 OF THE ACT?
A. Was Mr. Tahmourpour a victim of harassment on the basis of a prohibited ground?
VI. WHAT IS THE APPROPRIATE REMEDY IN THE PRESENT CASE?
VII. ORDERS
I. INTRODUCTION [1] Ali Tahmoupour is a Muslim Canadian who was born in Iran. He had always dreamed of becoming a police officer.
[2] On July 12, 1999 he was given the opportunity to achieve his dreams. On that date he entered the Royal Canadian Mounted Police (RCMP) Training Academy in Regina, Saskatchewan (known as Depot). On October 20, 1999, Mr. Tahmourpour's training contract was terminated prior to completion of the program. Mr. Tahmourpour believes that the termination of his training contract was the culmination of three months of harassment and discrimination on the basis of his race, religion and ethnic or national origin.
[3] Mr. Tahmourpour filed a complaint with the Canadian Human Rights Commission (the Commission) on March 21, 2001 alleging violations of sections 7 and 14 of the Canadian Human Rights Act.
II. AN OVERVIEW OF THE COMPLAINT [4] Mr. Tahmourpour alleged that from the first day of training at Depot he was singled out for negative treatment on the basis of his religion, race and national or ethnic origin. He stated that he was ridiculed for wearing a religious pendant and for signing his name in the Persian style. He was subject to ongoing verbal harassment, hostile treatment and negative performance evaluations by his instructors. This had the effect of undermining his confidence and impairing his ability to develop and demonstrate the necessary skills at Depot. When Mr. Tahmourpour challenged one of the instructors who was treating him negatively, the instructor in question began mounting a campaign to have him removed from Depot. At the urging of this instructor, Mr. Tahmourpour was given negative and inaccurate performance evaluations which ultimately led to his dismissal from the training program. The final act of discrimination occurred, in Mr. Tahmourpour's view, when the RCMP denied him the ability to return to the program on the basis of an inaccurate evaluation of his mental stability.
[5] It is Mr. Tahmourpour's view that the negative treatment he received was a manifestation of systemic discrimination against visible minorities at Depot. According to him, the systemic discrimination at Depot consisted of the RCMP's failure to address a culture of disrespect and negativity towards visible minority cadets at Depot, as a result of which the attrition rates for visible minorities were higher than for non-visible minority cadets.
[6] The RCMP denies that there was systemic discrimination at Depot during the time that Mr. Tahmourpour was there. The RCMP states that Mr. Tahmourpour's performance at Depot was fairly evaluated and found wanting. His training contract was terminated for no other reason than that he failed to meet the standards at Depot. When he was informed that his contract was terminated, Mr. Tahmourpour's negative reaction to this event demonstrated that he could not deal with challenges. Therefore, the RCMP was justified in putting a note on his file recommending that he not be considered for re-enrollment.
[7] The Canadian Human Rights Commission did not participate in the proceedings. However, it remained a party to the proceedings and indicated its interest in any preliminary, resolution, enforcement or judicial review proceedings that might arise.
III. WHAT ARE THE SPECIFIC ISSUES IN THIS COMPLAINT? [8] Mr. Tahmourpour alleges that the following events took place, and that they constitute harassment and differential treatment on the basis of race, religion and national or ethnic origin:
Mr. Tahmourpour was subjected to discriminatory remarks, hostile treatment and verbal abuse by instructors at Depot; Mr. Tahmourpour's performance at Depot was improperly evaluated; The Respondent terminated Mr. Tahmourpour's training contract on the basis of false pretenses; Mr. Tahmourpour was improperly designated as being ineligible for re-enrollment in the Cadet Training program at Depot; and Mr. Tahmourpour was the victim of harassment on the basis of a prohibited ground of discrimination while at Depot.
[9] For the reasons that follow, I have found that Mr. Tahmourpour's complaint is substantiated.
IV. WHAT MUST BE PROVEN WITH REGARD TO SECTION 7? [10] Section 7 of the Act defines a discriminatory practice as adverse differentiation on the basis of a prohibited ground of discrimination.
[11] The Complainant has the initial burden of establishing a prima facie case that he was subjected to adverse differentiation on the basis of his race, religion and ethnic or national origin. A prima facie case is one that covers the allegations made and which, if the allegations are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent (Ontario Human Rights Commission v. Simpsons-Sears Ltd., [1985] 2 S.C.R. 536, at para. 28 (O'Malley); and Dhanjal v. Air Canada, (1997), 139 F/T.R. 37 at para. 6).
[12] The onus then shifts to the respondent to provide a reasonable explanation that demonstrates either that the alleged discrimination did not occur as alleged or that the conduct was somehow non-discriminatory (Morris v. Canada (Canadian Armed Forces) 2005 FCA 154 at para. 26). The Tribunal must then determine, on a balance of probabilities, whether the allegation of discrimination has been substantiated.
A. Was Mr. Tahmourpour Subjected to Discriminatory Remarks, Hostile Treatment and Verbal Abuse? (a) The Reference to Mr. Tahmourpour's Religious Pendant [13] On July 12, 1999 Mr. Tahmourpour attended his first day of Physical Training (PT) at Depot. The Instructor, Sergeant Paul Hébert (now Superintendent), instructed the cadets to change into their fitness clothing and to remove all jewelry and watches. Mr. Tahmourpour approached Sergeant Hébert to explain that he wore a religious pendant and that he did not want to remove it. Sergeant Hébert replied that this was acceptable.
[14] Mr. Tahmourpour requested that Sergeant Hébert keep the information about his religious pendant confidential; he did not want to be singled out as different on the basis of his religious affiliation. Mr. Tahmourpour testified that contrary to his request, Sergeant Hébert announced to all of the cadets in Troop 4 that there was no jewelry to be worn during Physical Training, except for Ali here, who's allowed to wear his religious pendant. He stated that Sergeant Hébert made the comment in a loud, sarcastic and condescending voice while rolling his eyes in the direction of Mr. Tahmourpour.
[15] Mr. Tahmourpour testified that for several days after this incident he was questioned by his troop mates about his religion and the reason he wore a pendant. He stated that this made him feel uncomfortable and concerned that he had been identified as different.
[16] On October 14, 1999, Mr. Tahmourpour had a conversation with Sergeant Hébert during which Sergeant Hébert apologized for his comment regarding the religious pendant. According to Mr. Tahmourpour, Sergeant Hébert stated that he would employ a different method for dealing with exemptions for religious jewelry in the future.
[17] The RCMP Dress and Hygiene Instructions provided to the cadets at the time that Mr. Tahmourpour was at Depot stipulated that no jewelry was to be worn, except for medic alert bracelets. It did not provide exceptions for religious jewelry. This put cadets in a position where they either had to remove their religious jewelry, or approach the instructor as, Mr. Tahmourpour did, to request an exemption.
[18] On the basis of this evidence, I find that Mr. Tahmourpour has established a prima facie case that the RCMP Dress and Hygiene Instructions, and the announcement made by Sergeant Hébert in front of Troop 4, adversely differentiated against him on the basis of his religion.
The Respondent's Explanation
[19] Sergeant (now Superintendent) Paul Hébert testified on behalf of the RCMP. He admitted that he made an announcement to Troop 4 that no jewelry was to be worn in PT, except for Mr. Tahmourpour, who would be permitted to wear his religious pendant.
[20] Sergeant Hébert explained that he made the announcement to all the cadets because he did not want them to give Mr. Tahmourpour a hard time because he was not following the rule. Normally, if a cadet neglected to take jewelry off for PT, the troop would be required to do push ups as a reminder. To avoid this, the cadets would remind one and other to remove their jewelry. Sergeant Hébert felt he should announce to Troop 4 that Mr. Tahmourpour was permitted to wear his religious jewelry so that the cadets would not remind him to take it off before PT class.
[21] Sergeant Hébert stated that Mr. Tahmourpour did not tell him that he wanted the information to be kept confidential. Had he known this, he would not have made the announcement to the entire troop. He would have told only the right marker. The right marker makes sure that the whole troop is on time for class and in proper uniform. It would be necessary to tell the right marker that an exception had been made to the uniform rule so that he or she would not give the cadet a hard time for not being in proper uniform.
[22] Sergeant Hébert's admission that he would not have made the announcement to the entire troop had Mr. Tahmourpour asked him not to, undercuts his explanation that it was necessary to provide this information to everyone.
[23] Sergeant Hébert also acknowledged that a better practice would have been to publicly inform the cadets about the rule and the exceptions for religious jewelry and medic alerts, without mentioning any names. Then, if there were problems arising from the use of jewelry in PT class, the instructor could approach the cadet(s) on an individual basis and discretely discuss the situation.
[24] Sergeant Hébert stated that his tone of voice during the announcement would have been loud because it was a noisy environment. However, he would not have used a sarcastic voice because he respected people's beliefs and values.
[25] I accept Sergeant Hébert's testimony that the announcement was made publicly to Troop 4, but in a neutral manner. This does not, however, change the fact that Mr. Tahmourpour felt that he had been identified as being different from the rest of the troop on the basis of his religion. Although several of his troop mates testified on behalf of the RCMP that they did not know about his Muslim background, this does not mean that Mr. Tahmourpour was not questioned about his religion by other cadets who did not testify.
[26] One of the challenges that Mr. Tahmourpour faced in this case was to present evidence from his former troop mates who are now RCMP officers. Mr. Tahmourpour stated that he had difficulty finding individuals who would testify against the RCMP in this case.
[27] Moreover, Mr. Tahmourpour's own perception that he had been identified as different is sufficient for me to find that, although unintended, the effect of the RCMP's policy with respect to dress and hygiene and Sergeant Hébert's announcement about Mr. Tahmourpour's religious pendant was to adversely differentiate against Mr. Tahmourpour on the basis of his religion. This allegation is therefore, substantiated, on a balance of probabilities.
(b) Discriminatory Remarks and Treatment by Corporal Dan Boyer [28] The Head Instructor of the Firearms Unit was Corporal Dan Boyer. Corporal Boyer (now retired) was known for his loud, commanding presence on the Firearms Range. Many cadets were afraid of making mistakes on the Range because Corporal Boyer was harsh and brusque in his reprimands.
[29] Mr. Tahmourpour testified that Corporal Boyer was constantly hostile and verbally abusive towards him. He stated that Corporal Boyer would stand very close to him at the firing range and scream into his ear that he was a loser, a coward, fucking useless and incompetent. Mr. Tahmourpour conceded that Corporal Boyer yelled and was verbally abusive to other cadets in Troop 4. However, he stated that Corporal Boyer directed significantly more of his negative attention towards Mr. Tahmourpour than the other cadets. This had a very negative effect on Mr. Tahmourpour's ability to perform in Firearms.
[30] Mr. Tahmourpour stated that Corporal Boyer made it clear that he knew his behaviour was offensive. He often announced to Troop 4 that he was politically incorrect and he did not care who knew this or objected to it.
[31] Dr. Scot Wortley, a criminologist from the University of Toronto, testified on behalf of Mr. Tahmourpour. He was qualified as an expert in racism and policing. Dr. Wortley testified that the term politically correct is pejorative and sarcastic. It is meant to convey an attitude of disdain towards human rights. Dr. Wortley stated that when a person in a position of authority states that he is politically incorrect, it may communicate the idea that the system does not take complaints of discrimination seriously and that discriminatory attitudes are tolerated.
[32] Mr. Tahmourpour testified that on one occasion, fairly early in the training program, Corporal Boyer watched him sign an evaluation form and then stated: What kind of fucking language is that, or is it something that you've made up? Mr. Tahmourpour signs his name from right to left in the Persian style he learned when he was a child in Iran. He has continued to sign his name in this way. He was deeply offended when Corporal Boyer made the offensive remarks about his signature.
[33] Mr. Tahmourpour stated that he was unable to concentrate and perform to capacity in Firearms because he was in constant fear of rebuke and condemnation from Corporal Boyer.
[34] His poor performance in Firearms Training, which ultimately led the termination of his training contract, was due to Corporal Boyer's prejudicial dislike and mistreatment of him.
[35] Sergeant Brar testified on behalf of Mr. Tahmourpour. He was an instructor and troop facilitator at Depot from 1998 to 2000. Sergeant Brar is a visible minority; he is of East Asian descent. While on the firing range with his troops, Sergeant Brar observed that Corporal Boyer focused a lot of negative attention on visible minority cadets and women (unless he appeared to find them attractive, in which case he would treat them favourably). He stated that Corporal Boyer was particularly loud and abusive with visible minority and female cadets. Corporal Boyer was more jovial with Caucasian males and attractive female cadets.
[36] Sergeant Brar stated that he had observed that Corporal Boyer's behaviour had an effect on cadets' performance. When he yelled in their ear and berated them loudly, Sergeant Brar noticed that the cadets did not perform well.
[37] Sergeant Brar brought Corporal Boyer's differential treatment of the women and visible minority cadets to the attention of the Officer in Charge of Depot, Inspector Keith Clark. Sergeant Brar could not recall the specific date that he reported Corporal Boyer's behaviour to Inspector Clark. He told Inspector Clark that he believed that there would be complaints of harassment and racial discrimination as a result of Corporal Boyer's behaviour. Sergeant Brar stated that Inspector Clark did not ask for any further information.
[38] Sergeant Brar testified that he and Corporal Boyer were not on good terms during the time that he was at Depot. He stated that it was his impression, based on what he observed about Corporal Boyer's behaviour, that the latter gentleman did not like him because of his race and ethnicity.
[39] Sergeant Brar testified about an incident between himself and Corporal Boyer in which Corporal Boyer berated Sergeant Brar for a decision that he had made with respect to one of the cadets in his troop. Sergeant Brar stated that Corporal Boyer's tone of voice and abusive language towards him on the telephone was inappropriate given that he was speaking to a colleague of the same rank. Sergeant Brar hung up on Corporal Boyer rather than allowing Corporal Boyer to continue berating him.
[40] On the basis of the evidence above, Mr. Tahmourpour has made out a prima facie case that Corporal Dan Boyer made a derogatory remark about Mr. Tahmourpour's signature that was based on Mr. Tahmourpour's ethnic or national origin and that Corporal Boyer was verbally abusive toward Mr. Tahmourpour. This evidence, in addition to the evidence that Corporal Boyer flaunted his political incorrectness, and Sergeant Brar's evidence that he was harder on visible minority cadets and instructors than their Caucasian counterparts, provides sufficient circumstantial evidence to establish a prima facie case that Corporal Boyer's hostile and abusive conduct towards Mr. Tahmourpour was based, at least in part, on Mr. Tahmourpour's race, religion and national or ethnic origin.
The Respondent's Explanation
[41] Corporal Boyer testified on behalf of the RCMP. He was a Firearms instructor at Depot from July 1996 to 2001. He admitted that he made a comment about Mr. Tahmourpour's signature. However, he stated that he did not swear at him. Corporal Boyer observed Mr. Tahmourpour signing one of the feedback forms. He noticed that Mr. Tahmourpour signed his name from right to left and then added a few scribbles at the end. The signature looked like it was written in another language. Corporal Boyer testified that he did ask Mr. Tahmourpour what language his signature was in, or whether it was just something that he had made up. Corporal Boyer testified that he asked Mr. Tahmourpour about his signature out of curiosity; he was genuinely interested in different languages. Also, he stated that Mr. Tahmourpour was signing a legal document and he wanted to make sure that it was his real signature.
[42] Corporal Boyer admitted that he swears at work. He admitted that he was told by the troops that he yelled and was loud. He admitted that there were other complaints about him but he could not recall the specifics of any of the complaints. He said that it was possible that he had been warned about his condescending and inappropriate comments to cadets. Corporal Boyer admitted that one of his performance reviews stated that he had a filthy mouth, but that he had worked on this problem. Yet, he admitted that he still swore in front of his family and therefore, his efforts had not been entirely successful. Corporal Boyer also admitted that there had been complaints prior to his retirement that he swore at cadets.
[43] On the basis of this evidence, I find that it is more probable than not that Corporal Boyer asked Mr. Tahmourpour: What kind of a fucking language is that, or is it something that you just made up? Corporal Boyer's statement that he was genuinely curious about other people's languages and cultures did not ring true. It sounded rehearsed and insincere. Moreover, it was inconsistent with other evidence that I heard about Corporal Boyer's tendency to degrade visible minority cadets.
[44] His explanation with regard to the authenticity of Mr. Tahmourpour's signature did not make sense and also sounded fabricated. The manner in which Mr. Tahmourpour signed the Feedback form would have no bearing whatsoever on the authenticity or validity of the contents of the document. It simply connoted that the cadet had been given the document. Therefore, I do not accept Corporal Boyer's explanations about his signature comment.
[45] Corporal Boyer denied that he was harder on Mr. Tahmourpour than the other cadets in Troop 4. He stated that, like a number of Firearms instructors, he was loud and aggressive. He stated that he was not a bully, although he was aware that he could possibly intimidate people. Corporal Boyer said that he used this style because Firearms was a very dangerous environment and it was critical to ensure that order and decorum was maintained at all times on the line.
[46] Corporal Boyer stated that he was not politically correct at all times. He thought politically correct meant never swearing and yelling. He viewed Depot as a politically correct world where you don't swear and try keep things as polite as possible. Corporal Boyer stated that he swears and yells and in that sense, he is not politically correct. However, he did not see himself as racist.
[47] Corporal Boyer was also questioned about his reaction to a direction from his supervisor that he remove the men's magazines that he had left in the men's washroom. (I infer that men's magazines refers to material depicting women in sexually explicit ways which is seen by many as not conducive to gender equality). Corporal Boyer stated that his first response to the direction to remove the magazines may have been that Depot was trying to be politically correct. Corporal Boyer stated that by that he would have meant that Depot was a fair environment and some of the material might have been offensive to people.
[48] Corporal Boyer's evidence was not consistent or convincing. It is highly probable that he knew that political correctness meant more than not swearing, or he would not have responded that Depot was trying to be politically correct when he was told to take the men's magazines out of the washrooms. I think he knew, but was not willing to admit on the stand, that political correctness meant respecting the rights of women and minority groups, among others. I find it more probable than not that Corporal Boyer told people that he was politically incorrect, and by that he meant that he would say whatever he wanted about people even if it was sexist or racist. In my view, this is what reasonable listeners would think when they heard Corporal Boyer declaring that he was politically incorrect.
[49] Constable Brendon McCarney testified on behalf of the RCMP. He was a visible minority member of Troop 4 during the time that Mr. Tahmourpour was in Troop 4. Constable McCarney stated that he strongly disliked Corporal Boyer. He was confrontational; he would yell at the cadets right in their faces, very close to them.
[50] Constable McCarney was subjected to a tirade from Constable Boyer. He was stunned. He made sure that he did not repeat the mistake that prompted the reaction. He did not feel singled out, however. He stated that anyone who made a mistake was yelled at by Corporal Boyer, including Caucasian cadets.
[51] Constable McCarney stated, however, that he considered Corporal Boyer to be politically incorrect. By that he meant someone who is rude and uses inappropriate words to refer to an individual's race, sexual orientation or colour. He stated that someone who is politically incorrect with respect to race could be called racist. In that sense, Constable McCarney thought that Corporal Boyer could be racist, although he did not use racist terms with him. Corporal Boyer was simply mean to him.
[52] I find that Constable McCarney's evidence corroborates Mr. Tahmourpour's assertion that although Corporal Boyer was hard on all the cadets, his treatment of visible minority cadets had an added perniciousness. There is further evidence to support this conclusion in the testimony of Corporal Eldon Draudy. Corporal Draudy testified on behalf of the RCMP. He is a Caucasian male. Corporal Draudy stated that he found Corporal Boyer to be very intimidating. He was afraid of making mistakes because Corporal Boyer would yell in a very loud voice if a mistake was made. Corporal Draudy did make a mistake. Corporal Boyer yelled at him for not having his head in the game and for not concentrating. Corporal Boyer told him that he could put his life or someone else's life in danger.
[53] Corporal Draudy did not refer to Corporal Boyer as mean or abusive as did Sergeant Brar, Constable McCarney and Mr. Tahmourpour (all visible minorities). Rather, Corporal Draudy stated that he appreciated Corporal Boyer's approach because the range is a dangerous place and Corporal Boyer had to maintain strict control over it to ensure that no one was hurt. Corporal Draudy's experience of being corrected by Corporal Boyer was quite different from the experiences of the visible minority members and cadets who testified. Corporal Draudy was told that he did not have his head in the game, a comment that would be considerably easier to accept than being told, as Mr. Tahmourpour was, that he was fucking useless.
[54] On the basis of this evidence I find it more likely than not that Corporal Boyer treated visible minority cadets differently and more negatively than non-visible minority candidates. I also find it more probable than not that Corporal Boyer was verbally abusive and hostile towards Mr. Tahmourpour at least in part on the basis of his race, religion, ethnicity or national origin.
[55] Corporal Boyer denied that he was racist; he has many friends and family members who are from visible minority groups. However, in assessing the weight to be accorded to such a statement, I must consider that it is quite possible that Corporal Boyer's attitudes with respect to visible minority cadets and RCMP officers are markedly different from his attitudes towards his friends and family.
[56] There was evidence from an RCMP survey of Regular Members in 1996 that indicated that 51 percent of Caucasian male members felt resentment towards their visible minority, female and Aboriginal colleagues in the RCMP, based on their perception that employment equity initiatives have given these RCMP officers an unfair advantage. There was no evidence that this attitude had changed between 1996 and 1999 when Mr. Tahmourpour was attending training at Depot.
[57] Corporal Boyer was, like all of the instructors and facilitators at Depot, a regular member of the RCMP. In my view, it is a reasonable inference, based on the Regular Members' Survey and on the evidence presented about Corporal Boyer's behaviour at Depot, that his behaviour toward Mr. Tahmourpour may have been based, at least in part, on resentment that he, like many regular Caucasian Males, felt towards members of visible minority groups and women in the RCMP.
[58] In conclusion, I find that Corporal Boyer made a derogatory comment about Mr. Tahmourpour's signature that was based on a prohibited ground of discrimination. He also adversely differentiated against Mr. Tahmourpour on the basis of a prohibited ground by being especially verbally abusive and hostile towards Mr. Tahmourpour at Depot.
B. The Evaluation of Mr. Tahmourpour's Performance at Depot (a) The First Evaluation [59] On September 10, 1999, Mr. Tahmourpour received a Cadet Performance Feedback Sheet dated September 8, 1999 that listed 12 NI's in Applied Police Sciences (APS). NI signifies needs improvement. An NI is assigned when a cadet's performance is deficient, even if only slightly so. Cadets are provided with written notification when they receive an NI. If a cadet receives two NI's in the same competency, he or she is given a U, or an Unacceptable rating.
[60] The criticism in the September 8, 1999 Feedback document focused on Mr. Tahmourpour's alleged weaknesses in communication skills, group participation, self-assessment, ability to handle stress, and decision-making skills. A number of examples were provided that allegedly demonstrated his weaknesses in these areas. Mr. Tahmourpour was given one month to improve his performance; a meeting was set to discuss his progress.
[61] Mr. Tahmourpour alleged that almost all aspects of the September 8, 1999 evaluation were false. He stated that his performance to that point in time was no more deficient than that of any other cadet, and that the negative assessments constituted adverse differential treatment on the basis of his race, religion and ethnic or national origin. In the alternative, if his performance was weak in any of the areas listed in the evaluation, it was because of the discriminatory treatment he was receiving. Unlike his fellow cadets, he was not provided with a non-discriminatory environment in which to develop and demonstrate his capabilities.
[62] I will deal with two of the examples provided in the September 8, 1999 evaluation: Mr. Tahmourpour's weak communication skills and the pepper spray incident, the latter of which allegedly demonstrated his weaknesses in the handling stress and decision-making. These two examples are illustrative of the issues raised in this case.
(i) Mr. Tahmourpour's Communication Skills
[63] Mr. Tahmourpour's facilitators reported that he had a lot of difficulty in listening and communicating effectively. He demonstrated this during an anger management simulation on August 18, 1999. At the time, Mr. Tahmourpour failed to listen to clients who were offering a suitable course of action. Mr. Tahmourpour stated that although he did not perform remarkably well during this session, his performance was certainly no worse than other cadets in his Troop.
[64] Another example that was provided in the September 8th evaluation of Mr. Tahmourpour's poor listening and communication skills involved the community consultative group scenario. Scenarios are role plays of situations that occur during the course of police work. They require the cadets to apply the information and skills that they have acquired in training to solve the problem in the scenario.
[65] Mr. Tahmourpour volunteered to play the role of a police officer whose task was to facilitate a community meeting regarding an issue of concern to local residents. Corporals Bradley and Jacques reported that the members of a fictitious community brought different problems to the table and what started as a constructive meeting ended up in a destructive situation where community members were obviously upset with the police officer. They stated that this occurred because Mr. Tahmourpour failed to use good communication and consensus-building skills to define the problem and arrive at a solution. He failed to listen to the community members and seemed to have his own agenda.
[66] In contrast, Mr. Tahmourpour stated that the community meeting went very well. He stated that the residents of the community wanted the by-laws changed so that guests to their home would not receive parking tickets when they visited. He told them that the law was the law, and that he would try to work through the appropriate channels to see what could be done. Mr. Tahmourpour thought that all of the participants were quite happy with that result. His troop mates gave him positive feedback on his handling of the incident.
The Respondent's Explanation
[67] Corporal (now Inspector) Bradley testified that from the beginning, she perceived that Mr. Tahmourpour had a great deal of difficulty in scenario training. He had difficulty reading the environment and responding appropriately. She stated that his difficulties stemmed from poor communication skills. Communication skills are more than just speaking. They involve listening, taking in information and responding appropriately. As a result of his inability to communicate effectively, Mr. Tahmourpour was poor in all aspects of risk assessment, police and public safety assessment and interactions with suspects.
[68] Corporal Bradley stated that Mr. Tahmourpour was given regular verbal feedback about his communication skills. For example, in the anger management scenario, Mr. Tahmourpour was unable to respond to the cues and to use the techniques that he had been taught. In keeping with the standard procedure, his performance was critiqued after the scenario. Corporals Jacques and Bradley testified that the feedback would have been provided in a constructive way.
[69] With regard to the Community Consultative Group, Corporal Bradley stated that Mr. Tahmourpour seemed to have formulated an approach to dealing with the problems presented in the meeting. Regardless of the information or emotion that was presented to him, he would not deviate from his plan. The result was that he did not listen to people and would not react to what they were saying. The group became increasingly angry when they perceived that Mr. Tahmourpour was not responding to the issues they were raising. He did not use the techniques that had been taught to engage in interest-based negotiation such as paraphrasing, identifying interests, asking questions, reading emotions and saying things like ok, I can see that this is really important to you, what can we do to help you with this?
[70] Inspector Bradley provided credible testimony regarding Mr. Tahmourpour's communication difficulties. She performed well during a rigorous cross-examination on this point. When challenged, for example, about the fact that Mr. Tahmourpour's peers thought that he remained in control throughout the Community Consultative Group, Inspector Bradley stated that it was not inconsistent to remain in control of the group (which was generally positive) and yet, be unresponsive to the needs and interests that were being raised during the meeting. She did not waiver in her assessment that Mr. Tahmourpour's performance during this meeting was unacceptable. She was able to respond to the questions put to her by counsel for the Complainant in a calm, straightforward manner. She was assertive and forthright, and spoke with conviction and an air of candour that I found convincing.
[71] In contrast, I found Mr. Tahmourpour's evidence on the issue of his communication skills to be less credible. He asserted that his performance in the Community Consultative Group was excellent because he came up with a solution. It appeared to me that he did not fully appreciate that there is more to communication than expressing one's own ideas and coming up with a solution to a problem. For example, when Mr. Tahmourpour was asked what he thought was meant by active listening he stated that he thought that it meant taking good notes.
[72] Mr. Tahmourpour also demonstrated his weakness in self-assessment during the hearing. He agreed in cross-examination that he might have some weaknesses in communication skills. Yet, when asked what these weaknesses were, Mr. Tahmourpour was unable to identify any area. He often repeated that, like everyone, he had areas that he needed to work on. But, when pressed on what those might be, he was evasive.
[73] Therefore, I think it more probable than not that by September 8, 1999 Mr. Tahmourpour had demonstrated that he was failing to develop certain communication skills that are essential to police work: active listening, consensus building, interest-based negotiation, and speaking in a commanding tone of voice. The first part of Mr. Tahmourpour's prima facie case, therefore, is not made out.
[74] However, Mr. Tahmourpour asserted, in the alternative, that his weaknesses at Depot resulted from the constant unfounded criticism that he received at Depot. Mr. Tahmourpour did receive a lot of attention from the instructors at Depot. Some of the attention he received came in the form of sincere efforts to assist him to overcome weaknesses in areas such as communication skills. However, as I have already noted, he was also subjected to verbal harassment and derogatory remarks by Corporal Boyer that were based, at least in part, on his race, religion and/or ethnic or cultural background. Mr. Tahmourpour stated that he felt intimidated and his confidence was seriously undermined by this treatment.
[75] Mr. Tahmourpour testified about his feelings of alienation and vulnerability arising from a session on sensitivity training that was held early in the program. He stated that Corporal Jacques introduced the session by stating: This is the session where we are going to teach you all how to be politically correct so that you don't get yourselves into trouble. After that introduction, one cadet stated: Let's go to Fort McMurry, eh. Then another cadet quipped: Let's stop for some photocopier juice and some varsol first, eh? The cadets imitated the accent of some Aboriginal Canadians when they made these statements. Apparently, many of the cadets laughed at these remarks. According to Mr.Tahmourpour, Corporal Jacques did not object to the statements or reprimand the cadets for making them. Mr. Tahmourpour stated that he felt extremely uncomfortable and alienated from his troop mates as a result of these obviously racist comments.
[76] The Respondent did not provide any evidence in response to these allegations. Therefore, I find, on a balance of probabilities, that the events occurred as described by Mr. Tahmourpour and that their effect was to make Mr. Tahmourpour feel vulnerable to racism at Depot.
[77] It is generally understood that racism and discriminatory treatment in general have a detrimental effect on the victim's ability to function effectively in the workplace (see for example: Nkwazi v. Correctional Service Canada [2001] C.H.R.D. No. 29 at para. 119; Naraine v. Ford Motor Co. [1996] O.H.R.B.I.D. No. 23 at para. 93, rev'd on an another point: (2001), 209 D.L.R. (4th) 465 (O.C.A.); Hinds v. Canada (Employment and Immigration Commission) [1988] C.H.R.D. No. 13). Therefore, in analyzing the particular allegations in a human rights complaint, the complainant's conduct must be assessed in the context of the wider work environment. If the work, (or in this case, training) environment was poisoned with discrimination and harassment, the Tribunal must determine whether this affected the complainant's conduct or performance.
[78] When I consider Mr. Tahmourpour's conduct in the context of the discriminatory treatment he was experiencing at Depot, I find it more probable than not that this treatment was a factor in the difficulty he was having in developing and demonstrating acceptable communication skills. In an atmosphere where racial intolerance and harassment is tacitly condoned, and where cadets like Mr. Tahmourpour are subjected to verbal abuse and bullying, it is reasonable to infer that their performance will be negatively affected. For that reason, I find that although the facilitators' criticism of his communication skills was likely an accurate reflection of what they were seeing, it was not necessarily an accurate reflection of Mr. Tahmourpour's true abilities in this area. Mr. Tahmourpour was not provided with a non-discriminatory environment in which to develop and demonstrate his communication skills. Therefore, I find, on a balance of probabilities that the second part of Mr. Tahmourpour's prima facie case with respect to this aspect of the September 10, 1999 evaluation has been made out.
(ii) The Pepper Spray Incident
[79] On August 26, 1999, Troop 4 participated in a session where they received pepper spray in the face and then performed a series of tasks. The purpose of the session was to provide the cadets with a personal experience of the effects of pepper spray and to evaluate their performance under stress. Each cadet was matched with a partner whose role was to assist his or her troop mate after