Ottawa, Ontario, September 8, 2006
Present: The Honourable Mr. Justice Beaudry
BETWEEN:
Applicant
and
CANADIAN HUMAN RIGHTS COMMISSION
The Commission
and
FARM CREDIT CANADA
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review under section 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7, of a decision dated June 21, 2005, by Michel Doucet, member of the Canadian Human Rights Tribunal (the Tribunal). The Tribunal dismissed the applicant’s complaints alleging discrimination in employment based on his race, national or ethnic origin and family status, contrary to section 7 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the Act). The applicant represented himself at the hearing.
I. Issues
[2] The issues are as follows:
1. Did the Tribunal make patently unreasonable findings following its analysis of the four positions sought by the applicant:
(a) the position of French as a second language teacher?
(b) the position of diversity advisor?
(c) the position of translator?
(d) the position of bilingual communications officer?
2. Did the Tribunal breach the rules of natural justice:
(a) by appearing impatient or by allowing the respondent more latitude than the applicant at the hearings?
3. Did the Tribunal deny the applicant procedural fairness by displaying bias in making its decision?
[3] For the following reasons, my response to all these questions is in the negative. Accordingly, this application for judicial review will be dismissed.
II. Factual Context
[4] The applicant is a Canadian citizen, originally from the Democratic Republic of the Congo.
[5] He arrived in Montréal on October 14, 1984, and studied at Concordia University. In 1990, he obtained a certificate to teach French as a second language to adults. The following year, at the same university, he successfully completed a BA in French Studies (with a specialization in teaching French). In the autumn of 1991, he began a Master’s of Linguistics at the Université du Québec à Montréal with a specialization in teaching French. Although he did not complete his Master’s, the applicant admits stating in the complaint form that he submitted to the Canadian Human Rights Commission that he had a Masters of Linguistics with a specialization in teaching French, which turned out to be inaccurate.
[6] The applicant’s experience in teaching French as a second language to adults in Quebec is as follows: first, as a volunteer with the Catholic association, “Catholic Immigration Services”, then teaching French as a second language to adults at the Commission des Écoles catholiques de Montréal from 1991 to 1998.
[7] After a trip to his native country, the applicant settled in western Canada, in Regina, Saskatchewan, in May 1998. He found his first job with the Conseil culturel fransaskois, and soon after obtained a part-time job for the summer of 1998 at the Language Institute at the University of Regina, teaching French as a second language to adults. At the same time, he taught French as a second language to CBC technicians.
[8] In September 1998, he taught three French courses at the Language Institute, and was hired by the Institute to give French courses to public servants, a judge and a senior university official. In 1999, he left the Institute for a full-time position with the CBC. During the same time period, he also taught French as a second language to adults at the RCMP Academy.
[9] However, according to the applicant, his employment plans in the West were impeded by racial discrimination. In the complaint form he submitted to the Canadian Human Rights Commission, the applicant alleges discrimination in employment from the end of July 1999 onwards by the Farm Credit Corporation, now Farm Credit Canada (the respondent), based on his race, national or ethnic origin and family status contrary to section 7 of the Act. The applicant maintains that he applied for four positions with the respondent and was not hired for any of them.
[10] He then left Saskatchewan, and has been working since November 2002 for the Canada School of Public Service in Ottawa, where he teaches French as a second language to federal public servants.
III. Decision under review
[11] The Tribunal’s decision dated June 21, 2005, dismissed the applicant’s complaints.
IV. Relevant Statutory Provisions
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18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
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18.1 (1) Une demande de contrôle judiciaire peut être présentée par le procureur général du Canada ou par quiconque est directement touché par l’objet de la demande.
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Powers of Federal Court (3) On an application for judicial review, the Federal Court may
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Pouvoirs de la Cour fédérale (3) Sur présentation d’une demande de contrôle judiciaire, la Cour fédérale peut:
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(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
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a) ordonner à l’office fédéral en cause d’accomplir tout acte qu’il a illégalement omis ou refusé d’accomplir ou dont il a retardé l’exécution de manière déraisonnable;
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(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
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b) déclarer nul ou illégal, ou annuler, ou infirmer et renvoyer pour jugement conformément aux instructions qu’elle estime appropriées, ou prohiber ou encore restreindre toute décision, ordonnance, procédure ou tout autre acte de l’office fédéral.
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Grounds of review (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
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Motifs (4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le cas:
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(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
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d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; |
V. Analysis
Standard of review
[12] The first step is to establish the standard of review applicable to this case. An analysis of the four factors set out in Dr Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 determines the standard that this Court must use in similar situations.
(i) privative clause/right of appeal
[13] The Act lacks both a privative clause and a right of appeal. Therefore, this factor is neutral.
(ii) expertise of tribunal
[14] The Act entrusts the hearing of complaints of violations of human rights to specialized persons (subsections 48.1(1), (2), (3)). The special procedure at both the inquiry and mediation levels requires experience and expertise in, and sensitivity to, human rights. This factor calls for considerable deference.
(iii) purpose of statute
[15] The purpose of the Act is to ensure that human rights are respected. The Tribunal entrusted with a complaint or complaints must assess the evidence, i.e. the credibility of witnesses, and apply recognized legal principles to determine whether there has been discrimination in employment. This factor calls for less deference.
(iv) nature of question
[16] If the question is one of pure fact, greater deference will be accorded to the disputed decision. If the question is one of mixed law and fact, less deference will be shown. Last, if the question is one of law, the Court dealing with an application for judicial review will accord no deference.
[17] Following a pragmatic and functional analysis, the Court adopts the standard of review of patent unreasonableness on the first issue, since it essentially deals with questions of fact, assessing witnesses and determining credibility (Quigley v. Ocean Construction Supplies Ltd., Marine Division, 2004 FC 631, [2004] F.C.J. No 786 (F.C.) (QL)).
[18] Regarding the other two issues, breaching the rules of natural justice and procedural fairness, it is not necessary to carry out a pragmatic and functional analysis. According to the case law, the Court must intervene where the applicant establishes that one of these two principles has been breached (Ha v. Canada (Department of Citizenship and Immigration), 2004 FCA 49, [2004] 3 F.C.R. 195 (F.C.A.); Housen v. Nikolaisen, [2002] 2 S.C.R. 235).
Did the Tribunal make errors of fact regarding the four positions?
[19] I will first review the complaint regarding the position of French as a second language teacher, followed by the complaints regarding the other three positions.
[20] The Tribunal correctly identified the legal principles that must be followed in order to establish a prima facie case of discrimination in the employment context. The complainant must prove that he was qualified for the particular employment, that he was not hired and that someone no better qualified but lacking the distinguishing feature that is the gravamen of the complaint (i.e. race, colour, etc.) subsequently obtained the position (Shakes v. Rex Pak Limited (1982), 3 C.H.R.R. D/1001).
[21] The Tribunal acknowledged that the applicant had established a prima facie case of discrimination regarding the position of French as a second language teacher. I agree with this finding. The applicant had obtained the highest score on the written examination. He and four other candidates were then invited for an interview. However, he ranked equally with another candidate after the interview.
[22] The Tribunal shifted the burden to the respondent to provide a reasonable explanation for its decision to select the other person for the position.
[23] Citing the relevant case law, the Tribunal examined the evidence to detect whether or not it carried “the subtle scent of discrimination” (Premakumar v. Air Canada, D/03/02, 2002/02/04).
[24] The Tribunal assessed the events concerning the confusion surrounding a cover letter that accompanied the applicant’s resumé. At paragraph 58 of its decision, the Tribunal states:
. . . In light of these facts, I cannot conclude that the Respondent intended to exclude the Complainant from the selection process at this stage. The Respondent provided a reasonable explanation of the conduct complained of. In fact, I find that the Complainant is largely, if not totally, responsible for the imbroglio that followed the submission of his resumé for this position. If he had followed the instructions that were clearly set out in the vacancy announcement, and had filed his resumé with Ms. Kenny as requested, he would have avoided a lot of frustration.
[25] After a thorough analysis of the respondent’s explanation as to why it give the position to someone other than the applicant, the Tribunal found the explanation to be reasonable, and stated that there was no evidence that the applicant’s race or ethnic origin was a factor. In paragraph 66 of the decision, citing Folch v. Canadian Airlines International (1992), 17 C.H.R.R. D/261, D/303), the Tribunal indicates:
However, I must point out that it is not the Tribunal's role to review the merits of the Respondent's choice and determine whether it was correct. There is a subjective element in every hiring process. The fact that the Respondent used subjective criteria in assessing the candidates, and that it may have erred in applying those criteria, does not in itself render its decision subject to attack on the basis that it is discriminatory.
[26] There is no reason for intervention by this Court.
Did the Tribunal make patently unreasonable errors regarding the other three positions?
[27] It is clear from the evidence that the applicant did not have the necessary qualifications for the position of bilingual communications officer. Although his English is acceptable, he failed to establish that his English skills, while good, were at the level required for the position. Again, the Tribunal assessed the evidence and correctly applied the burden of proof, citing the relevant case law. As for the position of diversity advisor, the respondent explained why it did not hire the applicant, and he chose not to cross-examine the witness who had made that decision. The Tribunal therefore found that the applicant did not have the academic qualifications or the necessary experience required for the position. The same finding was made regarding the position of translator.
[28] The Court does not intend to intervene because there is no evidence of patently unreasonable errors. The Tribunal’s decisions concerning the four positions are well-reasoned, the analysis is thorough and supported by the evidence.
Did the Tribunal breach the rules of natural justice by appearing impatient or by allowing the respondent more latitude than the applicant at the hearings?
[29] The Court reviewed the transcript of the hearings held from July 2 to 7, 2005, and notes that the Tribunal gave the applicant every opportunity to present his evidence and to cross-examine the witnesses. At the beginning of the hearing, the Tribunal explained to the applicant the procedure to be followed. The Tribunal was patient and tolerant. It even allowed the applicant to submit evidence of his claim concerning the position of bilingual communications officer, even though this claim was not mentioned in the applicant’s complaint. The Tribunal did intervene several times during the hearings, but only to explain to the applicant the difference between an argument and how he had to present his evidence; it explained both the procedure and the law.
[30] The Tribunal was careful to avoid situations that could be detrimental to the applicant. It ensured that the proceeding was fair and equitable for both parties, not just the applicant. Therefore, the Court rejects the applicant’s allegations that the Tribunal breached the rules of natural justice.
Did the Tribunal deny the applicant procedural fairness by displaying bias in its decision-making?
[31] An allegation of bias is a serious allegation (Arthur v. Canada (Attorney Genera) 2001 FCA 223, [2001] F.C.J. No 1091 (F.C.A.) (QL). The Court of Appeal stated the following at paragraph 8:
. . . It challenges the integrity of the tribunal and of its members who participated in the impugned decision. It cannot be done lightly. It cannot rest on mere suspicion, pure conjecture, insinuations or mere impressions of an applicant or his counsel.
[32] In Bell Canada v. Canadian Telephone Employees Association, [2003] 1 S.C.R. 884, the Supreme Court of Canada stated the following about the requirements of independence and impartiality:
. . . Both are components of the rule against bias, nemo debet esse judex in propria sua causa. Both seek to uphold public confidence in the fairness of administrative agencies and their decision-making procedures. It follows that the legal tests for independence and impartiality appeal to the perceptions of the reasonable, well‑informed member of the public. Both tests require us to ask: what would an informed person, viewing the matter realistically and practically, and having thought the matter through, conclude?
(Emphasis in the original)
[33] After reviewing the applicant’s allegations and the Tribunal’s decision, the Court finds that the applicant’s allegations of bias are essentially a criticism of the Tribunal for not deciding in his favour.
[34] The Court is satisfied that an informed person, viewing the decision and the transcripts realistically and practically, would conclude that the allegations of bias are unfounded.
[35] The Tribunal was faced with contradictory evidence. The Tribunal performed its task well: it assessed the credibility of the witnesses, applied the relevant case law and disposed of each of the applicant’s complaints in a clear and precise manner.
JUDGMENT
THE COURT ORDERS that the application for judicial review be dismissed. In light of the circumstances, the respondent shall have its costs, fixed at $2,000.
Certified true translation
Mary Jo Egan, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1247-05
STYLE OF CAUSE: DANIEL KASONGO SADI and
CANADIAN HUMAN RIGHTS COMMISSION and FARM CREDIT CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: September 5, 2006
REASONS FOR JUDGMENT
AND JUDGMENT: The Honourable Mr. Justice Beaudry
APPEARANCES:
Daniel Kasongo Sadi FOR THE APPLICANT
(representing himself)
Roger J.F. Lepage FOR THE RESPONDENT
SOLICITORS OF RECORD:
Daniel Kasongo Sadi FOR THE APPLICANT
(representing himself)
Balfour Moss FOR THE RESPONDENT