Hughes v. Transport Canada

Hughes v. Transport Canada
Collection
Canadian Human Rights Tribunal
Date
2014-07-09
Neutral citation
2014 CHRT 19
File number(s)
T1822/5212
Decision-maker(s)
Malo, Robert
Decision type
Decision
Grounds
Disability
Decision Content
Between:
Chris Hughes
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Transport Canada
Respondent
Decision
File No: T1656/01111
Member: Robert Malo
Date: July 9, 2014
Citation: 2014 CHRT 19
Table of Contents
I.......... Background. 1
A. Position of the complainant 1
B. Position of the respondent 2
C. Position of the Canadian Human Rights Commission. 3
II........ The facts. 4
A. Evidence of the complainant 4
B. Evidence of the respondent 18
III....... Law.. 30
A. Marine security analyst (PM-04 competition – reference number 05-MOT-OC-VAN-005187) 34
B. Regional security and emergency preparedness inspector (TI-06 competition – selection process 05-MOT-OC-VAN-005467) 40
C. Regional transportation security and emergency preparedness inspector (TI-06 competition – selection process 06-MOT-OC-VAN-008455) 43
D. Transportation security inspector (TI-06 competition – selection process 07-MOT-EA-VAN-60712) 45
E. The provisions of section 14.1 of the Canadian Human Rights Act 48
IV....... Conclusion. 55
I. Background A. Position of the complainant [1] The complainant, Chris Hughes, maintains that the respondent, Transport Canada, discriminated against him contrary to section 7 of the Canadian Human Rights Act (the Act) on the basis of certain disabilities that he has, discrimination that allegedly occurred in the course of four competitions that he participated in to obtain a position with Transport Canada.
[2] Furthermore, the complainant claims that the respondent retaliated against him contrary to section 14.1 of the Canadian Human Rights Act given that he filed complaints against the Canada Revenue Agency (CRA) and the Canada Border Services Agency (CBSA).
[3] As part of his initial application for a marine security analyst (PM-04) position bearing number 05MOT-OC-VAN-005187, he submits that he demonstrated to the selection board his past performance assessment as an employee of the federal public service in a clear and positive manner.
[4] In his application for the marine security analyst (PM-04) position, the complainant states that he told the selection board that he was discriminated and retaliated against in his previous jobs with the CRA and the CBSA.
[5] In fact, he filed a complaint against the CRA and the CBSA for those alleged discriminatory practices. As a result of the alleged abuse by his former employers, he suffered from stress and depression. The complainant states that his application for the marine security analyst (PM-04) position was rejected even though he demonstrated that he had the essential qualifications for that desired position.
[6] The complainant also states that the respondent rejected his application for the following other three positions: regional security and emergency preparedness inspector (TI-06 competition, selection process 05-MOT-OC-VAN-005467); regional transportation security and emergency preparedness inspector (TI-06 competition, selection process 06-MOT-OC-VAN-008455); transportation security inspector (TI-06 competition, selection process 07-MOT-EA-VAN-60712).
[7] It is in the course of those four competitions that the complainant claims to have been discriminated against under section 7 of the Canadian Human Rights Act and retaliated against contrary to section 14.1 of the Canadian Human Rights Act on the basis of prior complaints that he filed against the above-mentioned agencies.
[8] For a better understanding of the applicable legal provisions, the Tribunal refers to section 7 of the Canadian Human Rights Act, which reads as follows:
Section 7: It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any individual, or
(b) in the course of employment, to differentiate adversely in relation to an employee on a prohibited ground of discrimination.
Section 14.1: It is a discriminatory practice for a person against whom a complaint has been filed under Part III, or any person acting on their behalf, to retaliate or threaten retaliation against the individual who filed the complaint or the alleged victim.
B. Position of the respondent [9] In its arguments, the respondent tells the Tribunal that there was no discrimination in any of the competitions that the complainant participated in.
[10] In that respect, the respondent states that each competition that the complainant participated in had specific requirements and, depending on the particularities of each competition and the complainant’s knowledge and experience, the complainant’s applications were rejected. The respondent claims the complainant’s applications were rejected essentially because he was unable to show that he had the required experience for the positions in issue.
[11] Similarly, the respondent states that it was up to the complainant to show or prove that he had the required skills to be able to obtain one of the desired positions.
[12] That evidence had to be submitted by means of written tests, interviews and references, which were required for the positions.
[13] Thus, the respondent maintains that the complainant did not have the required qualifications for any of the competitions that he had applied for.
C. Position of the Canadian Human Rights Commission [14] At the very beginning of her presentation, the Canadian Human Rights Commission (Commission) representative stated that the Commission’s participation is directly related to the aspect of the retaliation and to the interpretation of section 14.1 of the Canadian Human Rights Act within the context of the federal public service.
[15] More specifically, the Commission argues that it would be useful to know whether section 14.1 of the Act protects individuals who have filed discrimination complaints against a Crown agency and would protect those individuals from retaliation by other Crown agencies. In other words, the Commission is asking whether section 14.1 of the Act must be read as covering retaliation by other Crown agencies that are not party to the complaint currently under review.
[16] In this case, if the response to the above question is yes, did the respondent deny the complainant a job opportunity because of his previous complaints against the CBSA or the CRA? That is the Commission’s alternate question to the Tribunal.
[17] Finally, the Commission contends that the respondent did not provide arguments with respect to the first above-mentioned question and as a result, it asks the Tribunal to adopt its position for the facts in this case.
[18] In reply, the respondent argues that there is no evidence to support a finding of retaliation by other government agencies or by the respondent against the complainant.
II. The facts A. Evidence of the complainant [19] To establish the evidence, counsel for the complainant first referred the Tribunal to a complaint summary dated January 27, 2008 (Exhibit C-3, Tab 128), and had the complainant testify at the hearing; the complainant referred to his first application for the marine security analyst (PM-04) position, which he submitted in 2005.
[20] As part of that competition, the complainant had an interview with the selection board, which was chaired by John Lavers and included two other members, that is, Sonya Wood and Ron Perkio.
[21] The complainant stated that he passed the interview phase for that competition and that, subsequently, his application proceeded to the next phase in which the board checks his references.
[22] In his testimony, the complainant told the Tribunal, while reviewing his curriculum vitae, that he had been a collection contact officer/compliance officer, PM-1, from February 1, 1995, to December 4, 1999, and then from May 1, 2000, to September 14, 2001.
[23] He was then a customs inspector, PM-2, from May 6, 2002, to October 14, 2002, and from April 28, 2003, to September 26, 2003.
[24] Finally, he was a business window agent (PM-1) for the following periods: December 5, 1999, to April 30, 2000; November 28, 2001, to May 5, 2002; October 15, 2002, to April 25, 2003; and September 19, 2003, up until the time he created the curriculum vitae provided at the hearing (Exhibit C-4, Tab 1).
[25] The complainant stated that he then worked in various positions for short periods of time as an inspector, both in the private and public sectors. In July 2011, he was hired by Elections British Columbia to assist the chief electoral officer for a short period of five or six weeks. He was unemployed starting in September 2011.
[26] As previously mentioned, for the purposes of the complainant’s application to the respondent, a selection board of three members, specifically, John Lavers, Sonya Wood and Ron Perkio, was formed to determine eligible candidates for that position.
[27] In his testimony, the complainant stated that first he passed the written exam and then he was called to participate in an interview with the board members.
[28] The complainant stated that his oral interview went well and as a result, the third phase of his application was the reference check.
[29] The complainant stated in his testimony that he did not immediately provide references to the selection board because he knew that questions about his previous complaints against the CRA and the CBSA would be asked and/or could influence the scoring of his interview for the PM-04 position. Consequently, he waited to be contacted again for the references.
[30] He told the Tribunal that he went on stress leave in 2001 after a stressful incident at work.
[31] Similarly, he stated that, in 2005, he suffered from depression, which also originated from circumstances in his previous job.
[32] In fact, the complainant told the Tribunal that he had stopped an illegal act allegedly committed by the CRA in 2000 and that he was then retaliated against and was refused several promotions by the CRA.
[33] He also stated that that stressful situation caused him to become depressed in 2005 and that he was then unable to work for some periods of time in 2005. He stated that that was because of stress (stress leave).
[34] Thus, the complainant stated in his testimony that he was contacted in the beginning of February 2006 by the board’s chair, John Lavers, for three references in support of his application.
[35] In that respect, the complainant received a call from Mr. Lavers on February 1, 2006.
[36] After that call, the complainant sent Mr. Lavers a few references by email on February 1, 2006 (Exhibit C-1, Tab 26).
[37] Given that the complainant was asked to provide references in support of his application, he contacted some of his former employers for assistance with providing references in support of his file.
[38] The complainant then told the Tribunal that he had difficulty obtaining such references, which he informed John Lavers of, as shown in the various email exchanges in the record (Exhibit C-1, Tab 28, more specifically).
[39] In one of the emails from the complainant to John Lavers, more specifically, in an email dated February 6, 2006, the complainant informed the selection board chair of problems he had obtaining the necessary references. In particular, the complainant told Mr. Lavers that some references could be evasive or refuse to be a reference for him.
[40] Similarly, he told Mr. Lavers that their refusal to be references had nothing to do with his performance or reliability at work or his personality. He told Mr. Lavers that there had been a court settlement with the CBSA and the CRA on December 19, 2005. He stated in that same email that those two agencies, that is, the Canada Revenue Agency (CRA) and the Canada Border Services Agency (CBSA), had originally been part of one organization called the CCRA.
[41] In the same email, the complainant told Mr. Lavers that he was working at that time for the Insurance Corporation of British Columbia (ICBC), which had hired him without hesitation, and that if Mr. Lavers so desired, ICBC could provide a reference in respect of him.
[42] In his evidence, the complainant also referred to an email from John Lavers to the two other board members, that is, Sonya Wood and Ron Perkio, dated February 6, 2006, in which Mr. Lavers referred to the fact that there were apparently outstanding issues with respect to his references. Mr. Lavers then asked Mr. Perkio if he had any comments in that respect (Exhibit C-1, Tab 28, page 137).
[43] The next day, on February 7, 2006, Sonya Wood sent an email to John Lavers and Ron Perkio, which reads as follows:
Hi John, it’s not an uncommon situation. I’ve previously encountered supervisors declining to provide references, reasons can vary, e.g. some Employers/Departments have specific policies prohibiting or limiting the release of employee information; or some supervisors aren’t comfortable providing reference as didn’t supervise the employee for long enough period to gauge performance; and so on.
When/if a can candidate’s Reference Contact declines to provide a Reference check, there are other options/tools which the Selection Board can (& should) utilize to assess Personal Suitability...e.g. Board can ask the candidate to provide copies of any Letters of Reference or Performance Evaluations that the candidate may have, and can ask the candidate to provide alternate/additional Reference Contacts.
In the e-mails below Chris has included what seem to be “quotes” from Performance Evaluation Reports & prior Reference checks, from his previous employment. You could ask Chris for copies of those documents.
(See Exhibit C-1, Tab 28.)
[44] Given that email exchange that mentions additional reference requests, the complainant then provided a series of documents, which appear in Exhibit C-1, Tab 30, Sub-tabs A to T, that would assist the selection board in obtaining additional information on his past performance.
[45] In his testimony, the complainant stated that after he provided those documents and the above-mentioned list of references to Mr. Lavers, Mr. Lavers told the complainant, on February 27, 2006, that none of the persons mentioned were available to be references in respect of him.
[46] In his evidence, the complainant referred to John Lavers’ handwritten notes (see Exhibit C-1, Tab 36), which show the essence of the communication between him and Mr. Lavers.
[47] More specifically, they show that the complainant apparently stated that he was concerned about retaliation by his former employers and about his civil action against the CCRA, which resulted in him being awarded $51,000.00 in compensation in December 2005.
[48] In his testimony, the complainant also stated that, after his discussion with Mr. Lavers on February 27, 2006, he did not have any other discussions with him. It was not until May 6, 2006, that he got initial feedback further to that discussion with Mr. Lavers, and it was then that he learned that his application had not been accepted for the desired position.
[49] In that regard, at the hearing, it was clarified that a letter dated March 21, 2006, from John Lavers to the complainant stated that his application had not been accepted for the marine security analyst (PM-04) position (Exhibit C-1, Tab 51).
[50] In his testimony, the complainant stated that he again tried to contact Mr. Lavers for information on why his application for the marine security analyst (PM-04) position had been rejected because he had also applied for another position, that is, a TI-06 competition, and wanted to get Mr. Lavers’ impression so that he could make improvements for the other competitions in which he wanted to participate, if necessary.
[51] Also in his testimony, given that Mr. Lavers told him that none of the references submitted agreed to be a reference for the complainant, the complainant stressed in his testimony that he did inform Mr. Lavers of the difficulties that he had experienced in his former positions with the CRA and CBSA and that he was forced to resign in December 2005 with $51,000 in compensation.
[52] He also stated in his testimony that he told Mr. Lavers that he was worried about possible retaliation given his past actions (illegal garnishee issue and filing human rights complaints against the CRA and the CBSA).
[53] As part of his questions to Mr. Lavers as to why his application had been rejected, the complainant told the Tribunal that, sometime around May 15, 2006, he contacted Mr. Lavers, and it was at that point that Mr. Lavers told him that he had not met the detail-oriented criterion and, more specifically, that were no references from supervisors confirming that he was detail-oriented.
[54] During that same telephone discussion, Mr. Lavers allegedly stated that only one person, Bill DiGuistini, had actually agreed to be a reference, but that he purportedly had not provided any negative or positive feedback with respect to Mr. Hughes.
[55] Consequently, the complainant stated that Mr. Lavers had told him that Bill DiGuistini had actually responded, but that no one else had agreed to be a reference.
[56] Similarly, Mr. Lavers apparently told the complainant that he had primarily been seeking references from the complainant’s former supervisors to confirm his qualities and abilities, specifically those related to whether he was detail-oriented.
[57] In his testimony, the complainant also confirmed that, subsequent to that first marine security analyst (PM-04) competition, another competition for the same type of job, that is, a PM-04 position, was opened and that it no longer included the detail-oriented criterion.
[58] Later in his testimony, the complainant stated that he had also applied for another position, that is, for a regional transportation security and emergency preparedness inspector position with a closing date of October 3, 2005. It was actually an application for a similar position as described above, but for a TI-06 qualification.
[59] In the same manner as his application for the PM-04 position, the complainant stated that he had to pass a written test to qualify. However, the complainant’s application was rejected because he received a mark of 60% on the test and the passing score was 70%.
[60] In this testimony, the complainant expressed disappointment that he was not given a standardized test, which is typical in federal government employment competitions, but a different test, a WCT345 test, for the position.
[61] In his testimony, the complainant also referred to a letter by Sonya Wood dated June 26, 2006, regarding the TI-06 position referred to above (Exhibit C-2, Tab 74). Ms. Wood apparently told him that he had indeed obtained a result of 60% on Written Communication Test 345, and that the passing score for that test was 70%.
[62] In his testimony, the complainant stated that he told Transport Canada about his concerns regarding that issue.
[63] Similarly, he apparently also had discussions with Sonya Wood and/or Debbie Guinn and told them that his hand had cramped up when writing the test. The complainant stated that Ms. Wood or Ms. Guinn did not specifically comment on the fact that he complained about having a hand cramp when writing his test.
[64] The complainant believes that the hand cramp certainly affected his final score in that test.
[65] Then, the complainant stated that he applied for a second regional transportation security and emergency preparedness inspector position at the TI-06 level.
[66] The closing date for that competition was August 3, 2006.
[67] According to the complainant, that second application was for an equivalent TI-06 position with the same classification as those in the first TI-06 position.
[68] Once again, after learning that his application had been accepted, it was subsequently rejected because, according to Transport Canada, the complainant did not have sufficient experience in conducting investigations.
[69] That information was communicated to the complainant in an email dated October 12, 2006, at Exhibit C-2, Tab 96.
[70] Nonetheless, the complainant stressed in his testimony that both jobs were exactly the same according to him.
[71] Regarding his second application for a TI-06 position, the complainant stated that, in his application, he clearly referred to his experience in conducting investigations.
[72] Given his disagreement with the decision regarding the second TI-06 position, the complainant wrote to Transport Canada to express his disagreement and requested that his application be readmitted.
[73] However, he stated that he was never sent a response regarding his request and he consequently filed a formal complaint with the Public Service Commission (see Exhibit C-2, Tab 100).
[74] Finally, in his testimony, the complainant stated that he submitted a third application, once again for position at the TI-06 level, this time for a transportation security inspector position with a closing date of April 2, 2007.
[75] In that regard, the complainant referred to the level of experience required for that type of position, that is, experience in conducting extensive investigations.
[76] Regarding the third application for a TI-06 position, the complainant then modified his curriculum vitae to contain more specific information on his past experience in his various positions, but also his personal experience as follows: “extensive investigation into how I was harassed, black listed and retaliated against by a number of Canada Customs and Revenue Agency (CCRA), Canada Revenue Agency (CRA) and Canada Border Services Agency (CBSA) employees” (Exhibit C-3, Tab 105).
[77] In that additional summary of his personal experience with respect to his most recent investigations, the complainant referred to the incidents he was involved in at the CRA and the CBSA.
[78] In his testimony, he told the Tribunal that the third application was rejected and more specifically, he drew the Tribunal’s attention to page 609 of the exhibits submitted (see Exhibit C-3, Tab 107) that states that his application was not accepted because his experience was as follows: “not extensive, not work related, personal issues”.
[79] Also, he told the Tribunal that he filed a third complaint with the Public Service Commission and that an investigation was conducted.
[80] Subsequently, the witness draws the Tribunal’s attention to various email exchanges (see Exhibit C-3, Tab 120), with Paul Martin, a human resources consultant at Transport Canada, Pacific Region, as an attempt at mediation to resolve his complaints.
[81] In particular, he drew the Tribunal’s attention to an email to Paul Martin dated June 14, 2007, referring to the various qualifications he stated in his application for the PM-04 position, and also the various pieces of written information he had sent to Mr. Lavers, that is, the documentation shown in Exhibit C-1, Tab 30.
[82] In that email, the complainant stated that his health had greatly deteriorated, but that he still maintained his position that he had met the detail-oriented criterion.
[83] After learning of the various notebooks kept by the board members who had evaluated him for the PM-04 position, the complainant stated that, for him, the situation had become more of a human rights issue than the staffing problem as he had originally thought. Consequently, he decided to abandon his three staffing-related complaints and proceed directly with human rights complaints (see the email in Exhibit C-3, Tab 124, page 710 and see also Exhibit C-3, Tab 125, page 712).
[84] Furthermore, the complainant stated that, on September 21, 2010, in a letter to the Canadian Human Rights Commission, he decided to amend his human rights complaint and include an allegation of retaliation (see Exhibit C-3, Tab 129).
[85] Before finishing his examination in chief, the complainant told the Tribunal about the difficulties he had in finding a job and the financial hardship he had experienced. He told the Tribunal that the whole situation had caused him great stress and had made him depressed. He also told the Tribunal that he had been unable to provide financial assistance to his father, who had Parkinson’s disease and had experienced many problems in the last six years.
[86] Similarly, he told the Tribunal that his marriage had fallen apart and that he had been insolvent five to six times over the past few years. He told the Tribunal that he was very depressed because he was told that he did not pass the various tests required for the competitions he participated in, more specifically, because he did not obtain adequate responses.
[87] Finally, he told the Tribunal that the last six years have been a nightmare for him.
[88] In her cross-examination of the complainant, the Canadian Human Rights Commission representative told the Tribunal that she would focus particularly on section 14.1 of the Canadian Human Rights Act regarding retaliation.
[89] First, she drew the Tribunal’s attention to the various comments in the evaluations made by the selection board for the marine security analyst (PM-04) position (see Exhibit C-1, Tabs 39, 40, and 41).
[90] Regarding Exhibit C-1, Tab 40, dated March 2, 2006, which was signed by John Lavers, she drew the Tribunal’s attention to page 231, question 14, regarding the detail-oriented criterion.
[91] She asked the complainant about a possible score that would be reflective of the comment “very good example” at page 231.
[92] The complainant told the Tribunal that the comment would have surely resulted in a score of between 16 and 18 on the evaluation grid at page 236 of the same tab.
[93] However, the complainant told the Tribunal that a score of 12 was attributed to him with the following comment: “failed”.
[94] Subsequently, she drew the Tribunal’s attention to Exhibit C-1, Tab 41, more specifically to page 247, where the following comment appears: “very good on his interview question”. The complainant told the Tribunal that the same score, 16 to 18, should have been given and not a score of 12 as shown on page 238.
[95] Finally, counsel drew the Tribunal’s attention to Tab 39, page 215, where the following comment appears: “nicely handled - he was thorough”. The complainant told the Tribunal that once again, he should have been given a score of 18 to 16 instead of a score of 12, which was given to him at the very beginning of the tab at page 206.
[96] The complainant told the Tribunal that he had adequately satisfied the detail-oriented criterion.
[97] In the cross-examination by the respondent, the complainant reiterated his past difficulties for which he acted as a whistle-blower.
[98] More specifically, he stated that the fact that he had reported an illegal activity had created animosity toward him by people who worked for the same agency.
[99] In particular, he stated that he was able to obtain the reference summaries for the customs officer and collections enforcement officer positions that he held around the end of the year 2000. He then uncovered the very harsh language and the negative comments that appeared in those reports.
[100] The complainant stated that as a result of those negative references, he went on a period of stress leave in 2001, which developed into a state of anxiety and then finally in 2005, the medical situation turned into depression.
[101] Regarding the problems he experienced in and around the year 2000, as mentioned above, the complainant stated that he sought, through mediation, to resolve the cases and find employment. However, he stated that after receiving some inaccurate information and threats, he was forced to resign. As a result, he received compensation in the amount of fifty-one thousand dollars ($51,000.00) on December 7, 2005, but was unable to find a job within the CRA. Also in his examination, he stated that the CBSA had been included in his settlement and was bound by the same conditions.
[102] In addition, he told the Tribunal that as part of his settlement, the parties agreed that Brian Currie would be a reference to allow the complainant to find a new job.
[103] Later in the cross-examination by the respondent’s representative, the representative asked the complainant whether Mr. Lavers had actually retaliated against him and the complainant stated the following:
Q Is it your position that Mr Lavers was retaliating against you?
A Yes, because I explained to him why the references were not providing references and that there had been previous human rights complaints and I provided him with performance reviews from those individuals that were refusing to give references that showed I was a good employee. So he –yes, he was a party to retaliation under 14.1 by failing me in a pretextual manner, yes.
Q A party with who?
A Well, CRA and CBSA should have been providing references, in my opinion.
Q But they’re not a party to this action; correct?
A Correct.
(See the testimony excerpt dated March 20, 2013, page 14, lines 7 to 22.)
[104] In his testimony, the complainant reviewed the various comments shown in Exhibit C-1, Tab 30, and told the Tribunal that he adequately met the conditions for the detail-oriented criterion.
[105] In his cross-examination, the complainant also reviewed why his applications had not been accepted for the three TI-06 positions.
[106] As such, regarding his first application for the TI-06 position, he stated that his hand had cramped up, which had prevented him from adequately completing the required written test. In cross-examination, counsel stressed that his hand cramp problem had not been mentioned in the complaint that he had filed in support of this case.
[107] Regarding his second application for a TI-06 position, the complainant maintained that he had the necessary and required skills in the area of conducting investigations. Finally, regarding his application for a third TI-06 position, with respect to the requirement of conducting extensive or more complex investigations, he told the Tribunal that even if the comments he made in his application do not relate directly to a position, the personal experience indicates that he conducted an extensive investigation and as a result, he also qualified for that third TI-06 position.
[108] He also stated that in contrast to the urgency of the situation to recruit staff for TI-06 positions, given his skills, which he believes that he demonstrated, he was discriminated against because his application was not readmitted like those of the other candidates.
[109] In his testimony, the complainant also stated that, because he told Mr. Lavers about his prior psychological problems, he believes that, during the TI-06 competitions, which apparently took place at the same time as his application for the PM-04 position, Mr. Lavers had personal discussions with human resources staff about the complainant’s concerns and had certainly communicated his account of what happened with the CRA and the CBSA. Consequently, the complainant maintains that the information that he provided to Mr. Lavers was disseminated throughout all of Transport Canada.
[110] Furthermore, the complainant stated that he was retaliated against because Mr. Lavers did not, as part of the reference check, communicate with Brian Currie, even though he was unavailable.
[111] Again in his re-examination, counsel drew the complainant’s attention to a number of applications, shown in Exhibit C-3, Tab 102, Sub-tabs A to H, from other candidates for the same competitions for which the complainant applied (TI-06 positions).
[112] Similarly, in the re-examination, counsel reviewed Exhibit C-3, Tab 108, Sub-tabs A to H, which also contain other applications and which were compared with the complainant’s application for the transportation security inspector (TI-06) position. In that regard, the complainant stated that his qualifications were better or similar to those of the other candidates.
[113] In his testimony, the complainant reviewed the various comments shown in Exhibit C-1, Tab 30 and told the Tribunal that he adequately met the conditions under the detail-oriented criterion.
B. Evidence of the respondent [114] As previously stated, counsel for the respondent told the Tribunal that, regarding the four applications submitted by the complainant to Transport Canada, there was not a discrimination problem, but a staffing problem.
[115] The respondent called Brian Savelieff as the first witness. Mr. Savelieff was in charge of the human resources program and also helped management with recruitment and with staff performance evaluations at Transport Canada.
[116] According to Mr. Savelieff, the detail-oriented criterion was established to find candidates who were able to pay attention to detail and be precise in their work.
[117] In his testimony, he told the Tribunal that, according to the criteria established in the rating guide for the marine security analyst (PM-04) position, the detail-oriented criterion was a strict criterion that the candidate either met or did not meet.
[118] In cross-examination, the witness stated that he was not the supervisor of the selection board chair, John Lavers, and that he had not worked as advisor for the PM-04 program or for the TI-06 positions.
[119] Consequently, Mr. Savelieff’s testimony essentially involved general administrative knowledge of the hiring program at Transport Canada.
[120] In cross-examination, to clarify the detail-oriented criterion, the witness told the Tribunal the following about that qualification:
You do pass qualifications. You are found qualified or unqualified against each qualification or merit criteria.
(See testimony excerpt dated March 21, 2013, page 18, lines 4 to 6.)
[121] He also told the Tribunal that the detail-oriented criterion was an essential qualification and that it was characterized as non-compensatory.
[122] The witness added the following: “[I]t must be passed unto itself. A candidate must be found qualified or not qualified in that particular area in order to be found qualified overall and potentially be put into an eligibility list or pool. To be hired one must be found qualified against this particular qualification.” (Testimony excerpt dated March 21, 2013, page 36, lines 8 to 21.)
[123] In finishing the cross-examination of the respondent’s representative, counsel asked the following question about the qualification of the employer, Transport Canada: page 100, testimony excerpt dated March 21, 2013, line 8:
Q So, although the federal government has departments, legally they are not the employer correct?
A Correct. Treasury board is the employer.
Q And in fact it’s Her Majesty in Right of Canada as represented by Treasury Board is?
A Yes.
Thank you.
[124] Subsequently, the witness added the following:
The Chairperson: Not the agency. Treasury Board is the employer. Again, it’s a simple question?
The witness: That’s fair. Treasury board is the employer, yes. We are all departments of the public service. The way it’s always been described to me as Treasury Board is the employer.
(Testimony excerpt dated March 21, 2013, page 100, lines 16 to 22.)
[125] The respondent called another witness, William Keenlyside, who was, at the time of his testimony, the regional manager marine security officer.
[126] He told the Tribunal that he has worked in the marine security operation centre since July 1, 2004.
[127] During his testimony, the witness, Keenlyside, referred to the fact that he was involved in the second TI-06 application. More specifically, he testified with respect to the criterion on having experience in conducting investigations.
[128] The witness told the Tribunal that that criterion refers to investigations that originated from situations with respect to law enforcement.
[129] According to him, the complainant’s experience was very limited in his ability to conduct investigations under the “experience in conducting investigations” criterion. Consequently, the complainant’s application was rejected.
[130] According to the witness, the complainant was unable to confirm his qualifications for the position’s required experience. There was a lack of validation in that respect by the complainant.
[131] He told the Tribunal that as part of his duties in other agencies, such as the CBSA and Transport Canada, he has participated in various selection boards some 40 times.
[132] The respondent called Michael Fu, who was particularly involved in the third TI-06 position, as the third witness.
[133] Mr. Fu was one of the three selection board members for that position.
[134] At the beginning of his testimony, Mr. Fu reviewed the criteria for the position (see Exhibit C-3, Tab 103), which consisted of three kinds of experience, one of which was that of conducting extensive investigations.
[135] In his testimony, Mr. Fu reviewed the complainant’s application for the third TI-06 position and told the Tribunal that that was the first time that he had seen a candidate describe his personal experience as the required experience for such a position (TI-06).
[136] Namely, he referred to the experience the complainant had listed regarding an investigation into impaired driving. He considered that experience insufficient. Also, given the experience stated by the complainant in his application regarding his problems with the Canada Customs and Revenue Agency (CCRA), he concluded that that experience was as follows: “not extensive, not work related, personal issue”.
[137] He once again told the Tribunal that a simple investigation into impaired driving was not sufficient for the criteria sought in the third TI-06 position.
[138] He also told the Tribunal that, given the inadequate experience provided in the complainant’s application, the complainant’s application could therefore not be accepted and he had written “OUT” (see top right of page 594, Exhibit C-3, Tab 105).
[139] In the cross-examination by counsel for the complainant, in response to a question on whether he knew about Mr. Hughes’ complaints against the other departments where Mr. Hughes had previously worked while he was a member of the board for the third TI-06 application, the witness told the Tribunal that he had heard about such complaints, which he considered “managers talking”. That information had originated from Brian Bramah and not from Sonya Wood or John Lavers.
[140] He also told the Tribunal that there were no discussions with Ms. Wood or Mr. Lavers regarding Mr. Hughes’ complaints in the other departments where he had worked. Furthermore, he stated that no discussion with Ron Perkio regarding the complainant ever took place.
[141] Again in the cross-examination by counsel for the complainant, the witness told the Tribunal that regarding the personal investigation experience the complainant referred to in his application (see pages 595 and 596, Exhibit C-3, Tab 105), he considered that “a hobby” on personal time.
[142] He stated that even if that statement was serious, it was strictly private in nature. He believed that that information could not be considered as an extensive investigation as part of the third TI-06 application.
[143] Thus, he told the Tribunal that he was unable to measure the complainant’s understanding of the law. Similarly, he had no basis from which to judge the complainant’s knowledge of the law.
[144] Finally, in the cross-examination by counsel for the Canadian Human Rights Commission, on his knowledge of the complainant’s former complaints that he found out about in a discussion with Brian Bramah, the witness told the Tribunal that he had only heard the complainant’s name and that he had filed human rights complaints, nothing else.
[145] As another witness in support of its evidence, the respondent called Sonya Wood, one of the three members of the selection board for the marine security analyst (PM-04) position.
[146] In her testimony, Ms