Race/Ethnic or National Origin

The Tribunal issued an extensive decision in Chopra v. National Health and Welfare⁹¹ regarding an individual complaint of race discrimination (as well as ethnic or national origin). In very general terms, the complainant (of South Asian origin and an employee of the respondent since 1969) alleged that Health Canada denied him the opportunity to compete fairly for senior management positions, in particular the position of Director, Bureau of Human Prescription Drugs. Originally filed n September of 1992, the complaint was heard by a tribunal during the course of several days in September and October of 1995. A decision was issued in March of 1996⁹² dismissing the allegations of discriminatory treatment of the complainant in the staffing of a management position at the Department of National Health and Welfare. That decision was overturned on appeal due to the tribunal’s legal error of excluding expert evidence related to issues of systemic discrimination⁹³. The tribunal had excluded general evidence of a systemic problem at Health Canada that the complainant (and the Commission) had hoped to use to establish circumstantial evidence to infer that discrimination had occurred in the particular case of the complainant. The Federal Court returned the matter to the "original tribunal" to be disposed of on the basis of the record from the previous hearing and any further statistical evidence that the complainant or the Commission had sought to introduce, as well as materials in response that might be submitted by the respondent department. Since the original tribunal could not be reconstituted, a new tribunal was assigned to reconsider the matter in light of the Federal Court judgment.

A number of evidentiary issues were dealt with during the course of the new hearing. These included the question of the scope of new evidence that would be allowed, in particular as it applied to the respondent. The Tribunal determined that Health and Welfare should be allowed to lead new evidence even though it related to materials already placed before the original tribunal. It reasoned that the statistical evidence potentially reinforced the particulars of the complainant’s case. As the respondent’s original assessment of the alleged prima facie case against it affected the type of evidence it chose to submit in its defence at the original hearing, the Tribunal determined that fairness required that the respondent be allowed to tender evidence that went beyond the strict facts and issues raised by the new statistical evidence. At the same time, the Tribunal ruled that the respondent could not hold in reserve its evidence and move, at the conclusion of the complainant’s case, that the allegations be dismissed as having failed to establish a prima facie case. In other words, the respondent would have to elect not to submit evidence on the substance of the allegations if it chose to present a motion for dismissal on this basis, something it ultimately declined to do.⁹⁴

The Tribunal also set out the principles that should guide it with respect to findings of fact made by the original tribunal. It emphasized that it would be imprudent for it to start reassessing the testimony of witnesses whom it had not directly heard. However, should new evidence be received, it would be incumbent on the Tribunal to reassess the issue to which it related. As to issues not related to new evidence, the Tribunal ruled that it was still entitled to reassess if there was "a palpable or manifest error in the first Tribunal’s assessment of the facts or an error in its conclusion as to the law."⁹⁵ Beyond these matters, the Tribunal determined that it should defer to the findings of fact made by the original tribunal.

The Tribunal’s decision explains in detail the factual circumstances surrounding the allegations of race discrimination⁹⁶. The manner in which the competition for this position was conducted, its temporary staffing and the ultimate appointment of the successful candidate to it (during the period 1990-92) was the central substantive focus of the Tribunal. With respect to the final competition (March-April, 1992), it concluded that the complainant had been screened out due to a lack of managerial experience. Since the complainant’s failure to make the list of qualified candidates was the result of applying an objective criterion, he had failed to establish a prima facie case of discrimination. Nevertheless, the evidence before the Tribunal raised other issues about possible discrimination against the complainant related to denial of opportunities. As the Tribunal observed: "...[T]he most important and troubling question is whether there is any evidence linking Dr. Chopra’s lack of management experience to the actions or omissions of the employer and whether they are somehow associated with an adverse differential treatment based on a prohibited ground under the CHRA."⁹⁷

This question was ultimately answered in the affirmative. To support its conclusion, the Tribunal pointed to several facts: (i) the failure of the department to appoint the complainant as acting Director, (ii) the appointment of someone else as acting Director even though the individual failed to meet the stated qualifications, (iii) the assumption of a senior manager that some "cultural" groups lacked "soft skills" related to communicating, influencing and negotiating.⁹⁸ The failure to appoint him on an acting basis was, in all the circumstances, crucial. As the Tribunal said: "The consequences of this failure by Health Canada to give Dr. Chopra the chance to act in this position when this opportunity arose are significant. Had he assumed these duties for all or part of the period leading up to the final competition, he would have acquired the recent management experience required to be screened into that competition."⁹⁹ Instead, the respondent appointed a person who was not a member of a visible minority to act on an interim basis, a person who did not meet the stated requirements of the position. As to the complainant, the Tribunal found "...that essentially no thought was given to appointing Dr. Chopra at all, he was simply perceived as lacking the ‘soft skills’, consistent with the Assistant Deputy Minister’s general perception of certain persons with diverse cultural backgrounds. I find that this inference is more probable than other possible inferences. Applying the test articulated in the O’Malley case, I am satisfied that the evidence is sufficient to justify a verdict in the Complainant’s favour in the absence of an answer from the Respondent, and that the Complainant and the Commission have established a prima facie case of discrimination such that the burden then shifts to the Respondent to provide a reasonable explanation for its actions."¹⁰⁰

The respondent then pointed to the lack of managerial skills of the complainant to justify the decision not to appoint him on an acting basis. Given a number of inconsistencies in the evidence regarding the staffing of the position on an acting basis and, more importantly, the established fact that the person appointed to act did not meet the qualifications for the job, the Tribunal found the explanation offered by the respondent to be pretextual. Since the respondent was unable to satisfy the burden of proof, the complaint was found to be substantiated, at least insofar as it related to the failure of the respondent to offer the complainant the opportunity to act as Director on an interim basis¹⁰¹. As to remedy, the Tribunal chose to allow the parties to negotiate a suitable settlement, but retained jurisdiction to hear arguments on the issue should the parties fail to agree.

Statistical evidence regarding systemic discrimination, which had been excluded at the first hearing, played no significant role in the Tribunal’s conclusion that the respondent had discriminated against the complainant. Nevertheless, the Tribunal’s views in this regard give insight into how such evidence may be treated in the future. As the Tribunal acknowledged, the Federal Court has established that statistical evidence of systemic discrimination may be introduced as circumstantial evidence to infer that discrimination probably occurred in a particular case. However, additional evidence must be presented in cases of individual complaints that links the statistical data to specific acts of alleged discrimination. As applied to the case before it, the Tribunal underscored that "...even if the existence of systemic barriers to the promotion of visible minorities in the EX group was established, the Commission would be required to demonstrate a link between this evidence and the evidence, both direct and circumstantial, of individual discrimination in Dr. Chopra’s situation, in order for a prima facie case to be established."¹⁰²

The Tribunal found that there were serious methodological deficiencies in the expert evidence presented by the Commission that vitiated its reliability. The labour pools or "feeder groups" used by the Commission’s witness in determining the availability of visible minorities for appointment to EX or management positions were considered inappropriate. For example, personnel data was distributed between two broad categories from which EX appointments are made that did not reflect the relative numbers coming from each group. This resulted in an over-estimation of the available candidates who might be expected to belong to visible minorities. The Commission’s witness had also used a "static" analysis in establishing the representation rates of visible minorities, as opposed to an analysis based on "applicant flow". The former determines the representation rate at a specific moment in time, whereas the latter determines it over a period of time. The Tribunal felt that the use of a "static" analysis did not provide reliable data with respect to hiring patterns over time, which was important to establishing circumstantial evidence of discrimination. The Tribunal also criticized the methodology used by the expert witness because of the absence of any statistical testing of the findings. While the relatively small amount of data may render such statistical testing ineffective, the Tribunal pointed out that "...if numbers are ‘too small’, there is no logical justification for making any inference that discriminatory barriers exist against entry by visible minorities into the EX category."¹⁰³

A further evidentiary matter considered by the Tribunal was issue estoppel. In its final submissions to the Tribunal, the Commission pointed out that the issue of systemic discrimination at senior management levels in the Department of Health and Welfare had already been litigated and decided in another case ("NCARR")¹⁰⁴. That being so, the Commission argued that the respondent should be precluded from relitigating an issue regarding which a finding had already been made (upholding the validity of the allegation). The NCARR case concerned a complaint under section 10 of the CHRA alleging that the Department was engaged in a discriminatory practice reflected in a policy or practice that deprived or tended to deprive a class of individuals (visible minorities) of employment opportunities. Dr. Chopra was both a witness at that proceeding and at the time chairperson of the Employment Equity Committee of NCARR. After reviewing the law applicable to issue estoppel, the Tribunal concluded that while the issues in the two cases were similar, the actual employee groups under scrutiny were sufficiently distinct to render inapplicable the doctrine of issue estoppel. Moreover, the Commission itself had effectively waived any right it might have had to plead issue estoppel by leading evidence on the issue of systemic discrimination and by its failure to raise the issue at an earlier moment in the proceedings. While this produced a conclusion which appeared at odds with that arrived at in previous adjudication on the class action, the Tribunal emphasized that it would be capricious to set aside its own findings, which were based on evidence it actually heard (and adduced by the Commission itself), in favour of findings based on evidence that was materially different and submitted in the context of another proceeding.

In Nkwazi v. Correctional Service Canada¹⁰⁵ allegations of race and colour discrimination in the workplace were upheld, in part, by the Tribunal. The complainant is a black woman born in Zimbabwe who immigrated to Canada in 1983. Following the successful completion of a Bachelor of Science degree (and previous upgrading of her nursing skills), she accepted part-time employment in October 1995 at the Regional Psychiatric Centre (RPC) operated by Correctional Service Canada in Saskatoon. Her status as a nurse at RPC was that of a casual employee governed by the terms of a three month contract, which meant she was called to work on an as-needed basis. Her casual contract was renewed nine times, though her contract stipulated that she could work no more than 125 days in any 12 month period.

The alleged discrimination against the complainant occurred in and around the time when a competition for a term staff nurse position took place. The evidence (extensively reviewed in the decision of the tribunal) established that a member of management attempted to exclude the complainant from consideration by unjustifiably insisting she take a one week rest period beginning on the anniversary of the date she first began working at RPC. It was alleged (wrongly) by the Respondent that all casual employees were required to take a one week break at the end of each 12 month period of work. As it applied to the complainant, the alleged rest period coincided with the competition for the nursing position and an unusually short time frame for applications. The Tribunal found that no one else but the complainant was subject to a deliberate attempt to exclude them from the competition (by attempting to restrict their knowledge of it). In particular, no Caucasian employee was so treated. The Tribunal therefore concluded, on a balance of probabilities, that the complainant’s race and colour were motivating factors in the actions taken by management at RPC. Notwithstanding the attempt to exclude her, the complainant did subsequently compete for the term staff nurse position, but failed to make the eligibility list.

The poor performance of the complainant in the competition was explained by nervousness caused by the fact that the very person who attempted to exclude her from consideration sat on the panel that interviewed the candidates. In light of this, the Tribunal concluded that the complainant had not been given a fair opportunity to compete on a level playing field. While the Tribunal could not find that the actions of management effectively denied the complainant access to the position in question, it indicated that these actions would be taken into consideration when assessing damages.

Of even greater concern to the Tribunal were allegations of intimidation of the complainant following her complaint of discriminatory treatment, in particular the failure to renew the complainant’s term contract as a casual employee. While management at Correctional Service Canada maintained that this decision had been taken because of poor performance, the Tribunal could find no credible evidence to support the claim. The testimony offered was vague and devoid of any specific detail relevant to the performance of the complainant’s duties as a nurse at RPC.¹⁰⁶

While the Tribunal recognized that current provisions of the CHRA make a retaliatory act an independent discriminatory practice, the events relevant to this complaint predated amendments to the Act that brought these provisions into force. This raised the rule against giving retrospective effect to a new enactment, precluding the Tribunal from considering the retaliatory acts as an independent basis for liability under the CHRA. However, the Tribunal determined that such acts could be considered when assessing damages that resulted from the discrimination suffered by the complainant relevant to the competition for the staff nursing position.

In light of the relationship between the retaliatory act and the original discriminatory act, the Tribunal ordered that Correctional Service Canada reinstate the complainant as a casual employee at RPC for a three-month term at the first reasonable opportunity, and to renew the contract thereafter as a function of the needs of the institution. It further ordered payment for lost wages, an order that took into consideration an inappropriate job reference that had been given to another prospective employer of the complainant.¹⁰⁷ The concern of the complainant that negative comments by management at RPC would spread in the health care community if she too actively sought other employment had inhibited her efforts to find other employment. With respect to non-pecuniary damages for pain and suffering and due to the wilful and reckless nature of the discriminatory acts, the Tribunal found that current provisions in the CHRA (introduced in June of 1998) that allow for a maximum of $20,000 under both headings should not be applied to events that occurred before the provisions were adopted¹⁰⁸. However, the Tribunal awarded the maximum damages of $5,000 that were available under the CHRA prior to the 1998 amendments.

Failure to substantiate allegations of discrimination before the Tribunal often turns on the credibility of witnesses. In Wong v. Royal Bank of Canad¹⁰⁹a it was the lack of credibility of the complainant herself that resulted in the complaint being dismissed. The case involved a conflictual relationship between Ms. Wong and her employer with whom she worked for approximately two and a half years. Disagreements arose regarding performance appraisals and the inability of the complainant to achieve the promotions she thought she deserved. At a certain point her depressive illness was such that she could not return to work and was put on short term disability by the Bank. Eventually she began receiving long term disability from the Bank as well. The complainant alleged that her difficulties in getting the work for which she felt she was qualified, as well as denial of access to training programs, was due to her being of Chinese origin. After she began receiving disability payments she filed a complaint alleging that the Bank had discriminated against her by refusing her job opportunities because of her race and national or ethnic origin and by refusing to accommodate her disability (stress and depression). Her complaint was ultimately amended to cover the termination of her employment by the Bank approximately two years into her disability payments.

The credibility of the complainant was seriously damaged by what the Tribunal characterized as numerous examples of her being selective in what information she disclosed and adopting a strategy of deception or untruths. These included failure to disclose information relevant to her work status to insurance companies handling the disability insurance, concealing information from her employer relevant to her work status and misleading medical professionals with respect to personal information relevant to her depression. In point of fact, the complainant’s employment with the Bank was terminated after it discovered that she was working at a trust company at the same time as receiving disability benefits.

Given the lack of credibility of the complainant, the Tribunal gave considerable weight to the testimony of other witnesses. The Tribunal found the evidence as a whole supported the Bank’s view that the complainant had been treated fairly and equitably with respect to job performance assessment and access to training programs. Rather than being motivated by race or ethnic origin discrimination, the failure of the complainant to gain admission to the AMPB program related to her lack of competitiveness when compared to the other applicants. This conclusion was reinforced by the fact that four applicants of Chinese origin were accepted for the program as a result of the same competition in which the complainant participated. The eventual termination of her employment by the Bank was justified given the lack of honesty the complainant had demonstrated by collecting disability payments from the Bank while working for another financial institution.

Allegations that the Bank had failed to accommodate the complainant’s depression were also rejected by the Tribunal. The Tribunal pointed to ample evidence about the fair and reasonable way the Bank had responded to her medical condition, underscoring that she had received the full six months of short-term disability payments, following which long-term disability was paid until the Bank discovered her lack of integrity. As to the complainant’s contention that it was her illness that lay at the root of her dishonesty, the Tribunal referred to the psychiatric evidence heard at the hearing to the effect that depressive illness short of psychosis does not preclude rational decisions. In short, psychiatric patients do not lie more than members of the general public. Lack of honesty is just not an illness issue and cannot therefore be explained away as part of a general depressive condition.

The credibility of the complainant was also at issue in the case of Baptiste v. Correctional Service Canada,¹¹⁰ which involved another nurse with CSC. Ms. Baptiste alleged that she was denied promotional and career opportunities, that she was inappropriately assessed on her performance appraisals and that her work as a nurse at the Matsqui Institution was generally devalued because she is black. The evidence established that considerable conflict and animosity existed between the complainant and other staff members at the Matsqui Institution. Bad feelings also existed in her relationship to immediate supervisors and in her dealings with prisoners who at various times fell under her care.

At the outset of its decision, the Tribunal underscored the difficulties it had in explaining the selective and apparently flawed memory of the complainant regarding various incidents and documents relevant to the allegations of discrimination that had been attested to by various witnesses called by Correctional Services. It found that to accept the testimony of the complainant would require a finding that all these witnesses "...lied on the witness stand, that these incidents never happened, and that the documents purporting to record the incidents were fabrications."¹¹¹ In refusing to make such a finding, the presiding member of the Tribunal went on to declare that "I do not know whether Gloria Baptiste is consciously lying when she says that she did not receive these documents and that the recorded discussions and incidents never happened, or whether, for some reason, her memory is profoundly flawed. Either way, I am left with very serious reservations about the general reliability of her testimony. As a result of these concerns, unless otherwise noted, where the testimony of Gloria Baptiste conflicts with that of other witnesses, I prefer the testimony of the other witnesses."¹¹²

The atmosphere that prevailed in the prison hospital was depicted in the evidence as often crude, in great part because of the attitude of inmates towards the staff. For example, it was not unusual for nurses to be called "douche bag" or to be compared in a vulgar fashion to female sex organs. A male nurse was sometimes referred to as "faggot" and "queer". In the case of the complainant, she often received the epithets "black bitch" and "jungle bunny".¹¹³ The evidence before the Tribunal was consistent in demonstrating that racial intolerance was generalized throughout the inmate population. The rough environment within the prison hospital spilled over from time to time into the way various members of the staff expressed themselves as well. The Tribunal found that some of the complainant’s peers had periodically referred to her in racially derogatory terms. Even her immediate supervisor in a moment of exasperation had referred to the complainant as the "black bitch", though the complainant was not present at the time and the supervisor quickly apologized to other members of the staff who had overheard her remark. The Tribunal referred to this remark as having been "intemperate"¹¹⁴ and not reflective of an attitude of racial intolerance.

With respect to the complainant’s performance appraisals, the Tribunal concluded that the complainant’s supervisor had become increasingly frustrated with her attitude and behaviour, that co-workers considered the complainant rude, aloof and unwilling to be a team player, and that several serious incidents of poor judgment had been appropriately recorded in performance appraisals. The Tribunal did not consider the "intemperate" remark referred to above was sufficient to establish that the poor performance appraisals had been unfair or motivated by racial intolerance. It emphasized that the complaint was not about the ‘poisonous work environment’ but rather about the alleged unfairness in the evaluation of her work performance. On this issue, the Tribunal found that the appraisals were detailed and careful and that the complainant was not treated any differently than her co-workers in the process of evaluating their performance on the job.

In dismissing the complaint, the Tribunal pointed out that the use of racially derogatory language by inmates should be discouraged. While it admitted that this could probably never be completely eliminated, the Tribunal found it disturbing that verbal excesses were also reflected in the behaviour of members of the staff of Correctional Services. Even though the evidence in the case at bar did not establish that the complainant was adversely affected by racial intolerance regarding the issues of performance appraisals and denial of opportunities, the Tribunal underscored that the management of Correctional Services should take steps to ensure in the future that the use of racial derogatory epithets was effectively sanctioned.

Apart from issues of credibility, an allegation of discrimination may fail simply because of the insufficiency of evidence placed before the Tribunal. This was the case in Cizungu v. Développement des ressources humaines Canada¹¹⁵, which involved a complainant of African origin who worked in a call centre as a term employee (responding to French-language inquiries) from January 5 to June 10, 1998. This period of time covered two term contracts back-to-back. Following the refusal of the department to offer him a third contract, the complainant alleged that he had been discriminated against because of his race, colour and national or ethnic origin. At the time the complaint was filed, the complainant alleged that no explanation had been given to him to justify the refusal to renew his contract. However, the complainant testified before the Tribunal that reference had been made to his African accent by a departmental manager as being the reason for the non-renewal of his contract.

Two departmental witnesses testified that the question of accent was never an issue in evaluating the performance of the complainant. The difficulties that arose related to problems of communication experienced by the complainant, such as inflexibility in choice of phrase and repetitive responses to clients with difficulties of understanding. It was also noted that the duration of calls handled by the complainant were consistently longer than those taken by his colleagues. The Tribunal itself judged that the slight accent of the complainant was no impediment to understanding what he said. In light of all these factors (and the fact that the original complaint made no mention of the issue of accent), the Tribunal concluded that the reason for the non-renewal of contract had no relationship to the complainant’s African accent when speaking French.

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End Notes