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ENFORCEMENT AND PROCEDURE - Human rights tribunals and boards of inquiry - Appeal and judicial review

Wednesday, March 01, 2017 @ 8:57 AM  

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Appeal by Turner from a decision allowing the respondent’s application for judicial review of a Canadian Human Rights Tribunal (Tribunal) decision allowing the applicant’s complaint of discrimination. The appellant had worked as a seasonal customs inspector for five consecutive summers from 1998 to 2003. His performance reviews were always excellent. He unsuccessfully applied to permanent positions as a customs inspector in Victoria and Vancouver. In the Victoria competition, he was rejected because he was not found to have met all of the assessment criteria required for the position. He was disqualified from the Vancouver position due the restriction that applicants who had been interviewed for such a position previously were not eligible for the process. He alleged discrimination on the basis of age, race, color, and perceived disability due to weight. The Tribunal concluded that no prima facie case of discrimination had been made out. On appeal, the matter was remitted for reconsideration. The Tribunal concluded that the Victoria competition had been conducted in a discriminatory fashion because the selection board members’ conduct revealed that they viewed the appellant as a stereotypically lazy and dishonest black man. With regard to the Vancouver competition, the Tribunal determined that a Superintendent perceived the appellant to be dishonest when he responded to his question about the eligibility restriction during the appellant’s interview. That perception of dishonesty, according to the Tribunal, tainted the manner in which the Superintendent applied the restriction to the appellant. The application judge concluded that the Tribunal’s findings were not supported by the evidence that was before it.

HELD: Appeal dismissed. The law and the facts before the Tribunal did not reasonably lead to a finding of discrimination. The Tribunal’s decision was inflammatory at times and not justified in view of the factual material that was before it. The Tribunal wrongly found that there were other candidates who should have been found ineligible for the Vancouver competition. The record showed that the appellant was the only candidate who should have been declared ineligible in view of the restriction which was meant to eliminate applicants who had previously been unsuccessful further to an interview for a similar position. The respondent’s alleged concession that the appellant would have been placed on a list of qualified employees if not for the eligibility criterion that applied to the Vancouver competition was in fact not made by the respondent. This error was significant, as the Tribunal determined that a prima facie case had been made out based on its assessment of the appellant’s qualifications for the two positions, taking into consideration the past performance assessments, the appellant’s testimony, and the alleged concession. The Tribunal’s findings were based on an error of fact and a fundamental misapprehension of the evidence. The Tribunal also substituted its assessment of the appellant’s qualifications for that of the selection board’s when it held that the appellant had been discriminated against. The Tribunal, in effect, disagreed with the criteria used by the selection boards.

Canada (Attorney General) v. Turner, [2017] F.C.J. No. 15, Federal Court of Appeal, M. Nadon, A.F.J. Scott and J.M. Woods JJ.A., January 6, 2017. Digest No. 3640-010