Date: 20031120
Docket: T-105-02
Citation: 2003 FC 1373
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
(REPRESENTING THE CANADIAN ARMED FORCES)
Applicant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
- and -
GEORGE A. MORRIS
Respondents
REASONS FOR ORDER
SIMPSON J.
Introduction
[1] This application by the Canadian Armed Forces (the "CAF") is for judicial review of a decision of the Canadian Human Rights Tribunal (the "Tribunal") dated December 20, 2001 (the "Decision"), in which the Tribunal concluded that George A. Morris (the "Complainant") had not been promoted by the CAF from Warrant Officer to Master Warrant Officer because of his age, contrary to section 7(b) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the "Act").
[2] The CAF alleges that the Tribunal:
(a)erred in law when it:
(i)applied an incorrect test to determine that the Canadian Human Rights Commission (the "Commission") had made out a prima facie case of discrimination;
(ii)used an adverse inference to determine that the CAF had not provided a reasonable explanation for not promoting the Complainant.
(b)erred in law and in fact when it concluded that:
(i)the Commission had adduced sufficient evidence to make out a prima facie case of discrimination;
(ii)the CAF had not shown a reasonable explanation, other than discrimination on the basis of age, for not promoting the Complainant.
The Relief Sought
[3] The CAF asks that the Complainant's complaint be referred back to a differently constituted Tribunal for a redetermination. The CAF also seeks its costs of this application for judicial review.
Background
[4] On June 11, 1963, when he was 19 years old, the Complainant enrolled in the CAF as a Non-Commissioned Member ("NCM"). He began his career as a Private and, after three promotions from Private to Corporal, from Corporal to Master Corporal, and from Master Corporal to Sergeant, he became a Warrant Officer on September 18, 1981, at age 37. Thereafter, he was not eligible for further promotion to the position of Master Warrant Officer until he completed a prerequisite course described as the 7th Qualification Level Course or "QL7". This he accomplished in February 1990 at age 46. He subsequently served for nine further years until mandatory retirement in 1999 at age 55 without being promoted to the position of Master Warrant Officer.
[5] During his career, the Complainant served in the following locations:
· Petawawa, then Picton and then back to Petawawa, Ontario
· 1975 - Cornwallis, Nova Scotia
· 1978 - London, Ontario
· 1980 - CFB Borden, Ontario
· 1981 - London, Ontario
· July 1987 - Lincoln and Wellington Regiment in St-Catharines, Ontario
· July 30, 1994 - Hamilton, Ontario detachment of RCR Battle School
The Promotion Assessment System
[6] Canadian Forces Administrative Order 49-4 provides that, to become eligible for promotion, a Warrant Officer must complete the QL7 course, serve three years in his rank, meet the medical standard, have satisfactory performance and conduct, be recommended by his Commanding Officer and achieve a high enough ranking on the National Merit List to take advantage of the positions available in any year.
[7] The annual process whereby NCMs were ranked on the National Merit List began at the unit where the NCM was employed. Within a regiment, each battalion was a unit which in turn was composed of several companies. Each company had three platoons with one Warrant Officer for the company and one for each of the platoons for a total of four Warrant Officers per company.
[8] Each year, Company Commanders would meet with Platoon Commanders to assess Warrant Officers and, at the end of the assessment, the Company Commander would rank the Warrant Officers from first to last.
[9] Then the Unit Merit Board would meet and Company Commanders would discuss their Warrant Officers and, eventually, a Unit Merit List would be prepared by consensus.
[10] Thereafter, each Warrant Officer would be the subject of a Performance Evaluation Report (a "PER") prepared by Company and Platoon Commanders.
[11] The PER was a comprehensive document which included evaluations of fourteen aspects of employment and a notation about whether the NCM's Commanding Officer recommended the NCM for promotion. Unit Merit Boards eventually assigned PER scores which depended on the individual's performance and on his or her ranking on the Unit Merit List.
[12] Once PERs were completed, the Unit would send them to Ottawa where the National Merit Board ranked the NCMs partly on performance (80%) and partly on potential (approximately 20%). Those rankings were then used to prepare a National Merit List. The Complainant scored well for performance, and was highly recommended, but his scores for potential dropped over time.
[13] The National Merit List was highly confidential and the top NCM on the list for promotion to a certain position was promoted when a vacancy arose in the relevant position.
[14] This entire process varied slightly in the period from 1987 to 1994 when the Complainant was posted extra-regimentally to the Lincoln and Wellington Regiment in St. Catharines, Ontario. The Reserves were divided into geographic areas instead of battalions and the Unit Merit Board was replaced by an Area Board.
The Issues
[15] The dispute is a narrow one because the parties agree on the following matters:
a)That the Commission bears the legal burden to show, on a balance of probabilities, that the Complainant has been discriminated against on a prohibited ground. There must be sufficient evidence to prove a prima facie case of discrimination.
b)That, in meeting its burden, the Commission need not show that age is the sole or most important reason for the failure to promote the Complainant. It need only be "a" reason.
c)That the Commission can establish a prima facie case with circumstantial evidence.
d)That, once the Commission establishes a prima facie case, the onus shifts to the CAF to show a reasonable explanation, other than discrimination, for the conduct which is the subject of the complaint.
e)That, if explanations are given, the Commission must show that the explanations are mere pretexts.
[16] However, the parties disagree about:
i)whether the correct test was applied. In other words, was evidence about the characteristics and qualifications of those who were promoted required to make the Commission's prima facie case?
ii)whether the Tribunal should have drawn an adverse inference because the CAF did not adduce evidence about those who received promotions to support its explanations.
a) The Prima Facie Case
[17] The CAF says that the relevant test is the one set out in Shakes v. Rex Pak Ltd. (1981), 3 C.H.R.R. D/1001 (Ont. Bd. of Inquiry) at D/1002, by a Board of Inquiry which proceeded under the Ontario Human Rights Code ("Shakes"). The CAF also says that the Tribunal erred because it did not require the Commission to demonstrate, as part of its prima facie case, that someone younger and no better qualified was promoted instead of the Complainant.
[18] At this point, it is useful to set out the text of Section 7 of the Act. Section 7(b) speaks of different treatment on a prohibited ground (age in this case) adversely affecting a complainant. It reads:
| 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.
[My emphasis]
|
7. Constitue un acte discriminatoire, s'il est fondé sur un motif de distinction illicite, le fait, par des moyens directs ou indirects_:
a) de refuser d'employer ou de continuer d'employer un individu;
b) de le défavoriser en cours d'emploi.
|
[19] The CAF says that the Commission cannot prove a prima facie case involving different treatment without adducing evidence about the promotions received by other candidates. The CAF says that the Commission has the necessary powers and should have investigated the matter and included its findings as evidence in support of its prima facie case.
[20] The Commission's position is that it need not prove different treatment as part of its obligation to make out a prima facie case on the balance of probabilities. All that it must show is discriminatory conduct which was the failure to promote.
[21] The Tribunal considered the cases dealing with the requirements for proving a prima facie case. Shakes was a hiring case in which a woman of colour alleged that she had not been offered a job because of her race. The Board held that, in such cases, the Commission was required to show that the complainant was qualified for the position, that she had not been hired, and that another person was hired who was no better qualified but who lacked the distinguishing feature. In other words, comparison evidence was required.
[22] The Tribunal also considered its 1983 decision in Israeli v. Canada (Human Rights Commission) (1983), 4 C.H.R.R. D/1616 (Can. Human Rights Trib.). It was also a hiring case in which Dr. Israeli was not hired because it was said that he did not fulfill all the requirements for the position. In that case, a prima facie case was established when it was shown that the complainant belonged to a group that was subject to discrimination, that he was qualified and rejected, and that the prospective employer continued to seek applicants with the Complainant's qualifications. It was not found necessary to show that someone no better qualified, but lacking the distinguishing feature, was actually hired.
[23] With regard to these decisions, the Tribunal said:
It has been held that while these tests are helpful, they may not appropriately identify the elements of prima facie case in every employment related case. As the Canadian Human Rights Tribunal concluded in Singh v. Statistics Canada:
In the Tribunal's view both the Shakes and the Israeli tests serve as useful guides, and will be appropriate for direct application in many hiring or promotion cases. Neither test should, however, be automatically applied in a rigid or arbitrary fashion in every hiring or promotion case: rather the circumstances of each case should be considered to determine if the application of either of the tests, in whole or in part, is appropriate. Ultimately, the question will be whether the complainant has satisfied the O'Malley test, that is: if accepted, is the evidence before the Tribunal complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent?
The present case does not fall squarely within the fact patterns of either Shakes or Israeli. The issue for Mr. Morris is not that he was not hired but that he was not promoted. Moreover, promotions were not decided on an individual basis but rather on the basis of a merit list created annually through a fairly complex process. Nonetheless, certain similarities do exist, particularly with respect to circumstances in Shakes, for although Mr. Morris was not promoted, there is evidence that in each of the years at issue, a minimum of one Warrant Officer in the RCR was promoted to Master Warrant Officer, and that in 1993, at least sixteen Warrant Officers were promoted.
It is not necessary to know whether those Warrant Officers were in fact qualified or were perhaps of the same age as Mr. Morris, in order for a prima facie case to be made out. As the Tribunal in Chander v. Department of National Health and Welfare, pointed out, if the evidence establishes that discrimination was a factor in denying the complainant an employment opportunity, irrespective of the qualifications and characteristics of the other candidate, the prima facie case will have been made out and the burden will have shifted to the Respondent to provide an explanation.
[24] However, I am not persuaded that the Tribunal was correct when it adopted the description of a prima facie case developed in Chander. In Chander the Tribunal had to reach a conclusion irrespective of the qualifications of other candidates who were promoted because there were no other candidates.
[25] In contrast, in this case, there were other candidates who were promoted and whose qualifications could be compared with those of the Complainant (the "Comparison Evidence"). Accordingly, it is my view that Comparison Evidence was required to establish a prima facie case of discrimination under section 7(b) of the Act.
b) The Sufficiency of the Evidence
[26] The next question is whether the Tribunal erred because (in addition to the problem created by the lack of the Comparison Evidence) there was insufficient other evidence to support the conclusion that members of the National Merit Board used age as a factor in assessing the Complainant's potential. The CAF notes that the only evidence of discriminatory conduct connected with the Complainant was the evidence of CWO Ginn who had no role in assessing candidates for promotion at the material time. The CAF says that there was no evidence before the Tribunal that any of the members of the National Merit Board used age as a factor in assessing the potential of any candidate, let alone the Complainant.
[27] However, the Decision discloses that the Tribunal was satisfied, having heard evidence from five witnesses, that once a Warrant Officer completed the QL7 course, the vast majority of Warrant Officers were promoted to become Master Warrant Officers within a few years. The Tribunal concluded that it was exceptional for a Warrant Officer not to be promoted after the QL7 course and, in my view, this conclusion was justified on the evidence described in paragraphs 93 to 96 of the Decision.
[28] In particular, the Tribunal relied on the following evidence to support its conclusion that age was a factor in assessing potential for purposes of promotion:
1)the undefined heading of "potential" in the Guidance Manuals; the Tribunal concluded that the existence of subjectivity in the scoring by the Merit Board led to higher scoring of younger candidates
2)the fact that the Manuals did not prescribe relative scoring weight to factors such as experience and employability during the four years immediately following the Complainant's formal qualification for promotion when he was highly recommended;
3)the contradictory evidence of Merit Board members regarding how potential was scored;
4)the evidence of CWO Ginn that one of the employability factors included time remaining in an individual's career;
5)the dramatic drop in the Complainant's score for potential as he aged
[29] I have already concluded that, in the circumstances of this case, a prima facie case could not be shown without the Comparison Evidence. However, had it not been available, the evidence described above and discussed in paragraphs 134 to 144 of the Decision would have been sufficient.
The Negative Inference Regarding the CAF's Explanation
[30] The Tribunal first dealt with the absence of the Comparison Evidence in its consideration of the Commission's case when it refused to draw a negative inference against the CAF to assist the Commission in proving a prima facie case. In this regard, the Tribunal said at paragraphs 129 and 130 of the Decision:
The Commission submits that the exceptionally low scores accorded to Mr. Morris on potential, when contrasted with his high performance scores, suggest that the Regimental Merit Board discriminated against him because of his age. However, no information was provided by either party regarding the ages and PER File content of the Warrant Officers who received better scores on potential. It is possible that this evidence would have demonstrated that the others were younger in age and that the content of their PER Files did not differ significantly enough from Mr. Morris's to justify his poorer potential score. Although one would ordinarily expect such comparative evidence to be led by the Commission for purpose of establishing its prima facie case. Counsel for the Commission suggested that these findings could nonetheless be reached by drawing a negative inference from the Respondent's failure to produce this information.
However, at this state of the analysis, the burden of proof remains on the Commission to establish a prima facie case. While elements of that case can certainly be drawn from the evidence actually adduced by the Respondent, the Commission should not attempt to do so through a negative inference derived from evidence that the Respondent has not introduced. The issue of negative inferences could, of course, be raised later, in the context of the Respondent's explanation or defence, but this can only arise once the prima facie case has been made and the burden of proof has shifted.
[My emphasis]
[31] When it came to a consideration of the CAF's explanations, the Tribunal recognized that, if there was discrimination on the basis of age in the Complainant's assessments, it was likely to appear in the assessment of his "potential". The CAF tried to explain the Complainant's low "potential" scores by suggesting that:
i)his extra-curricular activities were not associated with the military, but were directed to a future career as a police officer;
ii)he lacked communication and second language skills;
iii)he had poor leadership skills
iv)he was unwilling to move to a new posting outside southwestern Ontario;
v)he lacked deployment on operational missions and he had served outside the regiment from 1987 to 1994.
[32] The Tribunal concluded at paragraph 170 of its Decision that ... "the only real way for me to assess if these explanations are justified would be by comparing (the Complainant's) profile with those of the other Warrant Officers who ranked ahead of him. As I stated earlier, this evidence was never adduced." The Tribunal continued its commentary on this issue in paragraphs 171, 173 and 174. There is said:
The evidence pertaining to the other Warrant Officers is presumably in the Respondent's possession and there was no suggestion made that it is no longer available. In fact, the Respondent presented the PERs of one of the other candidates who was promoted to master Warrant Officer, Mr. W., who was 46 years old when he was promoted in 1993. He was cited as an example of an older Warrant Officer who was elevated to the next rank at an age similar to Mr. Morris's. It would seem natural for the Respondent to lead evidence, regarding other Warrant Officers, in light of the Canadian Forces' defence that Mr. Morris's employment profile was lacking when compared to other Warrant Officers, with the result that he received a very low score on potential.
A broader issue is raised with respect to the parties' disclosure obligations. Prior to the commencement of the hearings, the Tribunal instructed the parties to disclose to each other all documents in their possession which are relevant to the case and for which no privilege is claimed, in accordance with Sub-Paragraph 6(1)(c) of the Canadian Human Rights Tribunal's Draft Rules of Procedure. The PERs of all persons against whom Mr. Morris was rated are clearly relevant, since they constitute the only manner for determining if Mr. Morris's low scores on potential were due to the explanations provided with respect to the designated factors. Yet, this material was never disclosed.
The Respondent's failure to adduce this evidence before the Tribunal serves to undermine all of its explanations for Mr. Morris's low score on potential. Even if it were true that, for instance, an absence of any assignments on operations missions would be detrimental to a Member's assessment, how can I determine that Mr. Morris was in fact marked down for this reason, without having had the opportunity to compare him with the younger, higher ranked Warrant Officers, in order to examine the level of experience that they had? Without any information about the other Warrant Officers, I am simply unable to determine that any of the explanations given by the Respondent justifies Mr. Morris's score. For these reasons, I find that all of the above-mentioned justifications given by the Respondent do not constitute a reasonable explanation so as to satisfactorily rebut the Commission's prima facie case of discrimination.
[33] I have concluded that these passages do not disclose a reviewable error. The CAF bore the onus of satisfying the Tribunal, on a balance of probabilities, that it had one or more reasonable explanations for not promoting the Complainant after he completed the QL7 course and after he achieved excellent performance ratings. The Tribunal drew an adverse inference from the CAF's failure to produce the PERs of the officers with whom the Complainant was in competition. In my view, it was reasonable for the Tribunal to question the validity of the explanations for the Complainant's low score under the heading "potential" in the absence of Comparison Evidence.
Conclusion
[34] Both the CAF and the Commission should have adduced evidence about the promotion history and PERs of the Complainant's competitors for the position of Master Warrant Officer.
(Sgd.) "Sandra J. Simpson"
JUDGE
Vancouver, B.C.
November 20, 2003
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET:T-105-02
STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA
(REPRESENTING THE CANADIAN ARMED FORCES)
v. CANADIAN HUMAN RIGHTS COMMISSION et al.
DATE OF HEARING:May 27, 2003
PLACE OF HEARING:Toronto, Ontario
REASONS FOR ORDER BY:SIMPSON J.
DATED:November 20, 2003
APPEARANCES BY:Ms. Liz Tinker
For the Applicant
Ms. Andrea Wright
For the Respondent
SOLICITORS OF RECORD:Morris Rosenberg
Deputy Attorney General of Canada
Department of Justice
The Exchange Tower
130 King Street West
Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For the Applicant
Andrea Wright
Canadian Human Rights Commission
344 Slater Street
Ottawa, Ontario
K1A 1E1
For the Respondent