SUPREME COURT OF PRINCE EDWARD ISLAND. The Prince Edward Island Human Rights Commission. Canada Health Infoway Inc.

Transcription

1 SUPREME COURT OF PRINCE EDWARD ISLAND Citation: Ayangma v. HRC & Canada Health Infoway 2013 PESC 7 Date: Docket: S1-GS Registry: Charlottetown Between: And: And: And: Noel Ayangma The Prince Edward Island Human Rights Commission Canada Health Infoway Inc. Anne Nicholson, a Human Rights Panel Appointed pursuant to s. 26 of the Human Rights Act, R.S.P.E.I. 1988, Cap. H-12 Applicant Respondent Respondent Respondent Before: The Honourable Justice John K. Mitchell Appearances: Noel Ayangma, acting on his own behalf Gregory J. Howard, solicitor for Prince Edward Island Human Rights Commission Rosemary Scott Q.C. & Tracey L. Clements Q.C., solicitors Canada Health Infoway Place and dates of hearing Place and date of judgment Charlottetown, Prince Edward Island February 20, 2013 Charlottetown, Prince Edward Island April 29, 2013

2 Page: 2 Administrative law - Standard of Review on Prince Edward Island Human Rights Commission to be reasonableness on questions of fact and questions of mixed fact and law where the legal issues cannot be easily extracted. Standard of correctness applies when there are issues of law of general application and not within special expertise of tribunal. STATUTE CONSIDERED: Human Rights Act, R.S.P.E.I. 1988, Cap. H-12. CASES CONSIDERED: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190; Ayangma v. French School Board, 2005 PESCAD 18; Ayangma v. Eastern School Board, 2008 PESCAD 10; Hawkes v. Prince Edward Island Human Rights Commission 2013 PECA 3; Attis v. New Brunswick School District No. 15 [1996] 1 S.C.R. 825; Domtar Inc. v. Quebec (Commission d appel en matière de lésions professionelles), [1993] 2 S.C.R. 756; Ayangma v. Prince Edward Island (Human Rights Commission) 2004 PESCAD 23; C.N.R. v. Canada (Human Rights Commission) S.C.R (SCC); National Capital Alliance and Race Relations v. Dept. of Health and Welfare (1997) CanLII TEXT REFERRED TO: David Watt, Watts Manual of Criminal Evidence, 2011 Carswell. Mitchell J.: [1] The Applicant seeks an Order quashing the August 23, 2012 decision of Adjudicator Anne Nicholson, a one-person panel appointed pursuant to s. 26 of the Human Rights Act, R.S.P.E.I., 1988, Cap. H-12, and an order remitting the matter back to the panel with directions to deal with the issue of remedy. [2] The following are the Applicant s own words setting out his grounds for judicial review: The Panel erred in law and departed from the well settled law and failed to apply in the present case the stare decisis principle to the points of law or factual the situation already determined by both the Panel and the Courts. The Panel erred in law and made both an incorrect and unreasonable decision, overlooked several pieces of relevant evidence, in arriving at her findings of fact and in deciding without regard for the material before her, that neither discrimination nor systemic discrimination was established in the present case.

3 Page: 3 The Panel erred in law and misinterpreted the law related to discrimination/systemic discrimination in the employment here when she concluded on the facts of this case that neither discrimination nor systemic discrimination was established in the present case. [3] In his factum, the Applicant adds two more grounds. They are, again, in his own words: Facts (4) Did the Panel make erroneous finding of credibility? (5) Did the Panel err in law in holding that systemic discrimination was not established in the present case? [4] The Respondent, Canada Health Infoway Inc., is a not-for-profit corporation, created in 2001 by Canadian Provincial Territorial and Federal First Ministers, to foster and accelerate the development and use of a Pan-Canadian Electronic Health Record Network. In 2005 Infoway had several program director positions open. One of those was the position of program director, tele-health. This position reported directly to John Burns, senior vice president of investment programs. In addition to that role, Burns carried out the job of program director, tele-health (and three other vacant director positions) from February 2005 until July [5] Infoway advertised the position in the Globe and Mail, Toronto Star and La Presse. It posted the position on its web site and utilized several employment agencies in an effort to find a suitable candidate. One such firm, Brain Hunter, found the Applicant s resume on-line. They contacted the Applicant, provided him with a position profile and asked his permission to forward his resume to Infoway. There was an initial telephone interview conducted by Guylaine Charbonneau on May 6, The purpose of this interview was to assess the Applicant s french. Charbonneau thought his french was fine but that he didn t speak with a Québécois accent. She believed he spoke with an African accent and believed that he was, probably black. [6] Infoway received eighteen names and resumes for this position. Most of these people were screened out early and not interviewed. Some had the initial interview but not a second interview. Only three people were moved along to the interview with Burns; the Applicant, Brian Hill, and the successful candidate, Robert Vigneault. [7] The Applicant s second interview was by way of video conference. The interviewers were Louise Coss and Burns. Coss was the HR person for Infoway. Her

4 Page: 4 role was to assess soft skills and Burns was to assess the technical side. The Applicant gave evidence that the interview was in progress for half an hour before Burns arrived. Burns, he said, stayed maybe ten minutes and asked one or two questions then left. Burns gave evidence that he was present for twenty to thirty minutes during the interview. He did not ask all candidates the same questions. Rather, his style was to look at each resume and to see where it was unclear and needed follow up. He would then drill down in that area to obtain the information he needed. [8] Burns asked questions in three specific areas about which he was concerned. He concluded that the Applicant did not have the necessary experience to manage a portfolio of One Hundred and Fifty Million ($150,000,000) Dollars as the job required. He states that he advised Charbonneau who in turn advised Brain Thrust, who in turn neglected to inform the Applicant. [9] Burns also gave evidence that Vigneault s name first surfaced from one of the employment agencies. Burns stated that he told the employment agency not to approach Vigneault. Vigneault was the director of Tele-Health Manitoba and Infoway had already hired a director away from Manitoba Tele-Health. Burns did not want to be seen as poaching Manitoba Tele-Health s employees. However, by June 21 st, sometime after the Applicant s interview with Burns, Dr. Sarah Muttitt advised Burns that Vigneault was interested. Burns described Dr. Muttitt as, one of the top experts in tele-health in the country, and said that she, oversaw one of the best telehealth networks in Canada. Her to Burns reads as follows: On a positive note, my colleague and successor at M.B.. Telehealth is now interested. He would be excellent. Masters, PMP, bi-lingual, worked in the health at FNIHB in Ottawa, great technical and operational experience and has worked in the health care end of things for years so very comfortable with clinicians. I have hired him three times already and would do so again in a heartbeat. Hope you will give him serious consideration. [10] The next day, June 22 nd, a second individual by the name of Roberta Hildebrand provided Vigneault s name to one of the employment agencies. Upon hearing of Vigneault s intent, Burns evidence is that he told Coss to follow the normal process and to bring the candidate forward. [11] That agency contacted Vigneault June 22 nd by which began: Good evening Robert Roberta has passed your name to me regarding the position of program director for telehealth. Should you wish to pursue this excellent opportunity, I would appreciate receiving you CV for consideration as soon

5 Page: 5 as possible... [12] Coss interviewed Vigneault by phone. Vigneault was then interviewed a second time by telephone with Burns. Burns asked the technical questions. Burns was satisfied that Vigneault was best qualified for the job. Burns was aware of Vigneault before hiring him but had never met him. He did not know Vigneault s race nor ethnicity. [13] The Applicant filed a complaint with the Prince Edward Island Human Rights Commission on May 2, 2006, alleging that Infoway discriminated against him in the matter of employment on the basis of race, national/ethnic origin in the selection process and, systemically discriminated against him and against those who are noncaucasian/visible minorities. [14] The matter went before a Human Rights panel April 2, 3 and 4, There were four witnesses who gave evidence; The Applicant, Burns, Charbonneau and Coss. [15] Burns gave in-depth evidence comparing the qualifications of the Applicant and Vigneault. The panel accepted Burns evidence and dismissed the Applicant s complaint. Standard of Review [16] In an application for judicial review, the focus is on the process, not the result. It is, in that way, very different from an appeal. In Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, the Supreme Court of Canada sets out the applicable standards of review as being either correctness or reasonableness. Reasonableness is a deferential standard. The Court states at para. 47:...A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [17] In a review on a correctness standard, the Court will show no deference to the adjudicative tribunal but rather will undertake its own analysis. If the Court disagrees with the tribunals analysis the Court will substitute its opinion for that of the tribunal (Dunsmuir, para. 50).

6 Page: 6 [18] Where the question is one of fact, discretion or policy, deference will usually automatically apply. The same standard applies to the review of questions where the legal and factual issues are intertwined and cannot be readily separated. Deference will usually result where the tribunal is interpreting its own statute or statutes closely connected to its function and with which it has a particular familiarity. Deference may also be warranted where the administrative tribunal has developed a particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context (Dunsmuir, paras. 53 and 54). [19] The correctness standard applies to constitutional questions, questions of jurisdiction or vires and questions of general law that are both of central importance to the legal system as a whole and outside the adjudicator s specialized area of expertise. [20] In Dunsmuir, the Court provided an analytical framework with which to determine the correct standard. The Court stated at para. 62: In summary, the process of judicial review involves two steps. First, courts ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category of question. Second, where the first inquiry proves unfruitful, courts must proceed to an analysis of the factors making it possible to identify the proper standard of review. [21] In this Province, the Court has considered the proper standard of review to apply in human rights cases, (Ayangma v. French School Board, 2005 PESCAD 18 [ Ayangma 2005"] and Ayangma v. Prince Edward Island Eastern School Board, 2008 PESCAD 10 [ Ayangma 2008"]). In Ayangma 2008, the Court stated as follows: 14 The decision in Dunsmuir also confirms that issues of law of general application, not within the special expertise of a tribunal, are to be reviewed by a court on a standard of correctness. Questions of mixed fact and law where the question of law cannot be easily extricated from the factual issues are to be reviewed on the standard of reasonableness. See: Dunsmuir at paras. 51, 53 and As we have stated, it has been well settled by previous jurisprudence, in addition to this division's decision in Ayangma v. French School Board, that the standard of review on questions of law in the context of human rights legislation is correctness. See: Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 at paras. 25, 45; Sangha v. MacKenzie Valley Land and Water Board 2007 FC 856; [2007] F.C.J. No (F.C.) at para. 20.

7 Page: 7 Therefore, as the standard of review to be applied by a reviewing court to the decision of a human rights tribunal on questions of law has been determined and applied in previous jurisprudence in this court and in the Supreme Court of Canada, the same standard should be applied in this case. 17 We respectfully disagree with the applications judge that all the issues which arise on a review of the Panel's decision were ones of mixed fact and law which should have been reviewed on a standard of reasonableness. The decision as to whether the appellant was entitled to compensation for loss of income as well as the determination of the appropriate quantum of such compensation, raised questions or principles of law of general application which were discrete from the related questions of fact. The issues arising from these legal principles should have been reviewed by the applications judge on the standard of correctness. 18 The nature of these questions brought into issue principles which involved an understanding of concepts of general law. A human rights tribunal would not be considered to have any special expertise, greater than that of a court, to decide these legal issues. Where these issues arise, we will assess the Panel's decision in relation to them on the standard of correctness. On the other hand, the application of the proper legal principles by the Panel to the facts of the complainant's case engages issues of mixed fact and law which, as the applications judge determined, should be reviewed on the standard of reasonableness simpliciter. Where these issues arise, the role of this court is to consider whether the applications judge made a palpable and overriding error in his review of the Panel's decision. [22] Infoway takes the position that Ayangma 2005 and Ayangma 2008 now must be read in light of Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 (Mowat). In Mowat, the issue was whether or not the Canadian Human Rights Commission Tribunal made a reviewable error when they were awarded legal costs to the complainant. Supreme Court of Canada reaffirmed Dunsmuir and stated at para. 25: The question of costs is one of law located within the core function and expertise of the Tribunal relating to the interpretation and the application of its enabling statute (Dunsmuir, at para. 54). Although the respondent submitted that a human rights tribunal has no particular expertise in costs, care should be taken not to return to the formalism of the earlier decisions that attributed "a jurisdiction-limiting label, such as 'statutory interpretation' or 'human rights', to what is in reality a function assigned and properly exercised under the enabling legislation" by a tribunal (Council of Canadians with Disabilities v. VIA Rail Canada Inc., 2007 SCC 15, [2007] 1 S.C.R. 650, at para. 96, per Abella J.). The inquiry of what costs were incurred by the complainant as a result of a discriminatory practice is inextricably intertwined with the Tribunal's mandate and expertise to make

8 Page: 8 factual findings relating to discrimination (see Lévis (City) v. Fraternité des policiers de Lévis Inc., 2007 SCC 14, [2007] 1 S.C.R. 591, at para. 112, per Abella J., Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 76, per LeBel J.). As an administrative body that makes such factual findings on a routine basis, the Tribunal is well positioned to consider questions relating to appropriate compensation under s. 53(2). In addition, a decision as to whether a particular tribunal will grant a particular type of compensation - in this case, legal costs - can hardly be said to be a question of central importance for the Canadian legal system and outside the specialized expertise of the adjudicator. Compensation is frequently awarded in various circumstances and under many schemes. It cannot be said that a decision on whether to grant legal costs as an element of that compensation and about their amount would subvert the legal system, even if a reviewing court found it to be in error. [23] In Hawkes v. Prince Edward Island Human Rights Commission 2013 PECA 3, decided three weeks after this case was argued, the Court states as follows: 42 I do not agree with the determination of the applications judge that a finding of discrimination is always to be reviewed on the standard of reasonableness. That is an incomplete and consequently inaccurate summary. The direction of this court is contained in Ayangma v. Prince Edward Island Eastern School Board, 2008 PESCAD 10 ("Ayangma 2008"). That case followed the earlier decision in Ayangma v. French School Board, 2005 PESCAD 18 ("Ayangma 2005"), as to the standard of review to be applied on review of a decision of a human rights commission. The two Ayangma decisions advise that when there are issues involving questions of mixed fact and law that are not inextricably connected: (i) clear identification of issues and their classification as issues of law, fact, or mixed fact and law is essential for a proper determination and application of standard of review to administrative tribunals; and (ii) when dealing with a human rights tribunal issues of law must be decided correctly and issues of fact must meet the test of reasonableness. Ayangma 2008 assessed the effect of the Supreme Court of Canada directions in Dunsmuir v. New Brunswick, 2008 SCC 9, on these principles, and concluded that regarding extricable issues of general law the Ayangma 2005 directions continue to apply. [My Emphasis] 43 Post-Dunsmuir Supreme Court of Canada jurisprudence has further addressed the continuing uncertainty about the standard of review when the issue is a human rights tribunal's interpretation of its home statute or a statute closely connected with its function (Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, at para (the "Mowat" decision): Traditionally, reviewing courts have not shown deference to human rights tribunals in respect of their interpretation of laws, even of their own enabling statutes, even though they have extended deference to administrative bodies in many other fields. The rationale for not showing deference to human rights tribunals was that in the courts' view, the tribunals' level of comparative expertise remained

9 Page: 9 weak and the regimes that they administered were not particularly complex. But recent developments in the law since Dunsmuir, and their emphasis on deference, even in respect to many questions of law, call for discussion of whether all decisions on questions of law rendered by human rights tribunals and similar bodies "should be swept under the standard of correctness." The Mowat decision acknowledges there is a degree of tension between some policies underpinning the present system of judicial review when it applies to decisions of human rights tribunals; and advises that the nature of the tribunals lies at the root of those problems. While generally administrative tribunals are entitled to deference when interpreting their home statute or legal rules closely connected with them, general questions of law that are both of central importance to the legal system as a whole and outside the adjudicator's specialized area of expertise remain subject to review on the correctness standard in order to safeguard a basic consistency in the fundamental legal order. It is the nature of the "home statute" administered by human rights tribunals that makes the task of resolving the tension particularly delicate. A key part of human rights legislation consists of laws often of very broad import designed to combat discrimination; but at the same time, not all questions of general law entrusted to such tribunals rise to the level of central importance to the legal system or fall outside the adjudicator's specialized area of expertise. Proper distinctions ought to be drawn "(Mowat, at para ). The directions in Mowat provide a model for analysis, but do not purport to provide a summary rule to be applied to all questions of law. In the circumstances, this matter of importance should be reserved to be addressed in an appropriate case. [Emphasis in original] The Question [24] While the Applicant has couched his grounds as questions of law they are, save one, most certainly not. The issue of stare decisis, while not being overly complex, is a question of law. I am prepared to deal with this issue on the standard of correctness. [25] The remaining grounds for judicial review deal exclusively with credibility, facts, and inferences drawn therefrom. It is quite clear that reasonableness is the standard of review on these issues (Attis v. New Brunswick School District No. 15 [1996] 1 S.C.R. 825, para , Dunsmuir, supra, Mowatt, supra, para 19-25, Ayangma 2008, supra). Ground 1 Stare decisis [26] The Applicant writes in his factum that: The failure to infer discrimination after finding that the hiring process used

10 Page: 10 by the Respondent was manifestly flawed, unfair and that it lacked transparency and that its recruiting practices were very poor and there was an uneven application of the selection criteria does raise the issue of why stare decisis law principle was not applied in that present case. [27] The Applicant s argument seems to be based on a 2005 decision of Prince Edward Island Human Rights panel in Ayangma v. Eastern School Board, 2005 CanLII (PE HRC) a decision, he writes, not disturbed on judicial review or appeal. He quotes from para. 83 of that panel s decision as follows.... the fact that Mr. Valois, a young white applicant, was alerted to apply indicated that the Respondent's hiring procedure is not applied equally or consistently. This leads to a selection process which may result in discrimination. [28] The Applicant argues that adjudicator Nicholson was bound by the doctrine of stare decisis to follow the earlier panel and make a finding of discrimination based on a flawed hiring process. However, the Supreme Court of Canada stated in Domtar Inc. v. Quebec (Commission d appel en matière de lésions professionelles), [1993] 2 S.C.R. 756, that members of an administrative tribunal are not bound by any stare decisis rule to follow other administrative tribunals (para. 91). [29] That the matter was not disturbed on judicial review or appeal does not advance the Applicant s argument. That particular issue wasn t dealt with on judicial review or appeal. The Court on the judicial review and the Court of Appeal both reviewed the panel s findings on the discrimination issue on the reasonableness standard. They did not deal with the specific issue with which the Applicant is concerned. Even if they had, the reasonableness standard issue is not concerned with correctness but with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. (Dunsmuir, supra, para.47). [30] In any event, the panel in that case did not set down an immutable principle of law that a flawed hiring practice inevitably results in a finding of discrimination. All the panel said was that it, may result in discrimination. It is but one factor to take into consideration. Adjudicator Nicholson did take that factor into consideration along with all the other evidence, and in that sense, she did follow the Human Rights Panel s decision in Ayangma v. Eastern School Board, supra. Ground 2 [31] The second ground upon which the Applicant bases his application is, in his words:

11 Page: 11 The panel erred in law and misinterpreted the law related to discrimination/systemic discrimination in the employment here when she concluded on the facts of this case that neither discrimination nor systemic discrimination was established in the present case. [32] Under this ground, the Applicant argues that Infoway did not meet the onus of rebutting the prima facie case because Infoway did not prove that the successful candidate was better qualified. That, says the Applicant, required a fair and objective comparative analysis of the Applicant and the successful candidate s qualifications. He argues that once the panel found the hiring process was, neither transparent nor consistent and that each interviewee was asked different questions, that should have, as a matter of law, ended the inquiry with a finding of discrimination. [33] A hiring process that is neither transparent nor consistent is a fact from which a panel may, not must, infer discrimination (Ayangma v. Eastern School Board, 2005 Canlii PEHRC, para 83; Ayangma v. Prince Edward Island (Human Rights Commission) 2004 PESCAD 23, para. 41). The function of a human rights panel is to determine, on all the evidence, whether the complainant was discriminated against on any of the prohibited grounds. The fact that the hiring process was flawed and not transparent, in the absence of any other evidence, may well have justified the inference which the Applicant seeks. However, there was other evidence. Adjudicator Nicholson found the evidence of Burns to be credible. She accepted his evidence that in comparing the two candidates, the successful candidate was more qualified. She found, as a fact, that the Applicant was not hired because he did not have the necessary qualifications for the job. She made that finding being well aware of the fact that the hiring process was flawed. She accepted as credible, Burns explanation as to what was done and why it was done. The Applicant may disagree with her finding of credibility but her finding was reasonable under the circumstances. Ground 3 [34] The third ground upon which the Applicant grounds his application, as written by him, is as follows: The panel erred in law and made both incorrect and unreasonable decisions, overlooked several pieces of relevant evidence, in arriving at her findings of fact and in deciding without regard for the material before her that neither discrimination nor systemic discrimination was established in the present case. [35] Under this general heading the Applicant argues that the panel failed to infer

12 Page: 12 unconscious discrimination from what the Applicant calls, subjective factors, being: (a) flawed interviewing process; (b) the age factor; ( c) unequal application of criteria; and (d) reliance on unadvertised qualifications. [36] David Watt, in his book, Watts Manual of Criminal Evidence, 2011 Carswell at p. 104, provides as good a definition of inference as I have seen when he writes: An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the proceedings. It is a conclusion that may, not must be drawn in the circumstances. It does not change the allocation of the burden of proof, nor alter the standard of proof to be met by any party. [37] The Applicant cites several paragraphs from the Commission s submission to the panel on this point. Burns admitted on cross-examination that he took into account the age of one of the Applicants (neither the Applicant nor the successful candidate). The Commission wrote and the Applicant adopts the following statement: John Burns admitted on cross examination that he took into account a subjective factor (age) in deciding not to hire Mr. Hill. To his credit, he also admitted that he may have taken into account subjective factors in the candidacy of Mr. Ayangma. It is open to the Panel to infer that one of those subjective factors in Mr. Ayangma s candidacy was his national or ethnic origin and race. [38] Such an inference would be a trifle thin in my view. In any event, the Commission s brief on this point was before the panel. The panel was well aware of the argument. There is no obligation on the panel as a matter of law to draw the inference which the Applicant wants. The failure to draw the inference that the Applicant wants, was reasonable. [39] The Applicant also relies on the Commission s submission that; Mr. Burns indicated that Mr. Ayangma could not establish credibility with him, while Ms. Coss indicated that she considered Ayangma to be a credible candidate. They are both in the same room. [40] I am not sure what inference the Applicant wishes to be drawn from that statement but the fact is that Burns was assessing the technical aspect of the job and Coss the soft skills. Coss knew nothing of the technical side. There is no logical rational inference that can be drawn from that fact that would advance a case of discrimination. [41] The Applicant then accuses Infoway of relying on unpublished qualifications

13 Page: 13 and therefore, the panel s findings wherein she accepted the evidence of Burns that the Applicant, did not have the necessary experience with large budget projects that they were seeking is unreasonable and cannot stand. [42] The evidence is quite clear that the job was advertised in several newspapers. However, the Applicant did not see those ads before he applied. There is also evidence that a much more detailed position profile was published online and was given to the employment agencies. That position profile included such things as: Specific Requirements: The ideal candidate will have a minimum of years of progressive experience in program management/leadership, project management (development) of large complex business/systems integration projects, national scope, ideally both in the private and public sectors, and various other leadership roles. Work experience might have been gained in large complex organization, professional services, consulting firm, etc., where exposure to health sector was gained Managing a large mission critical, multi-million project (50 million dollars+), budget program initiatives Have had exposure to projects and programs that involve large scale enterprise, wide change management/business transformation/process reengineering initiatives and their related communication strategies key to such endeavours. [43] The qualifications were published. It is just that they were not all included in the newspaper ads. [44] Finally, having reviewed the Applicant s factum and listened to his arguments in court, it is abundantly obvious to me that where the Applicant says there is no evidence, what he really means is there is no evidence that the Applicant finds credible. In fact, there is evidence that the panel found credible. The bottom line is that the Applicant does not agree with the panel s assessment on credibility. He is, however, unable to show me that the panel s assessment of credibility is unreasonable. Ground 4 - Credibility [45] In the Applicant s factum, he adds a fourth and fifth ground which were not in his application for judicial review. The fourth is, in his own words, Did the panel

14 Page: 14 make an erroneous finding of credibility? The applicant argues that, There is no evidence before the panel which could either support or corroborate Mr. John Burns testimony that Mr. Vigneault was initially referred by the Hutchinson Group recruiting firm before Dr. Sarah Muttitt had in fact referred him and recommended him to Mr. John Burns and puts the employer to strict proof thereof. [46] The Applicant repeats on many occasions over the course of his factum that he, Puts the employer to strict proof thereof. These words are utterly meaningless. They may have come from some book on pleadings but they mean nothing in the context of this review. [47] The difficulty with the Applicant s argument is that the panel accepted the viva voce evidence of Burns that, he didn t want Vigneault contacted because he didn t want to be seen as having poached Vigneault away from Manitoba Health. Burns then said that once it became clear that Vigneault was interested and going to leave Manitoba Health in any event, he would not be seen as a poacher and the matter would proceed in due course. There were two references given. The first by Dr. Sarah Muttitt who made the reference directly to Infoway and the second by Roberta Hildebrand to the Hutchinson Group. The Applicant makes much of the fact that Hutchinson s initial to Vigneault stated: Roberta has passed your name to me regarding the position of program director of Tele Health. [48] The Applicant infers from this that this is the first time that Hutchinson Group had heard of Vigneault. The panel did not draw the same inference, nor would I. It seems to me that the opening sentence in that was simply an ice-breaker. It does not, as the Applicant suggests, contradict the evidence of Burns. [49] The panel was alive to all of the issues which the Applicant raises. It is simply a matter that the Applicant would have drawn different inferences than the panel. The documentary evidence referred to by the Applicant do not contradict Burns viva voce evidence. Issue 5 - Systemic Discrimination [50] Here the Applicant argues that: The only issue here is therefore whether there was some evidence from which the panel could have reasonably reached a conclusion that there was discrimination considering the flawed and inconsistencies found in the hiring practices used by the employer to fill a position of program director.

15 Page: 15 [51] The Supreme Court of Canada in C.N.R. v. Canada (Human Rights Commission) S.C.R (SCC), made reference at para. 34 to the Abella Report on Equality Employment. They state as follows: Although Judge Abella chose not to offer a precise definition of systemic discrimination the essentials may be gleaned from the following reports found at p.2 of the Abella Report: Discrimination... means practices or attitudes that have, whether by design or impact, the affect of limiting an individual s or a group s right to opportunities generally available because of attributed rather than actual characteristics... it is not a question of whether this discrimination is motivated by an intentional desire to obstruct someone s potential or whether it is the accidental by-product of innocently motivated practices or systems. If the barrier is affecting certain groups in a disproportionate negative way, it is a signal that the practices that lead to this adverse impact may be discriminatory. That is why it is important to look at the results of the system... In other words, systemic discrimination in an employment context is a discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. [52] In that case, the Court found as an uncontradicted fact that the hiring and promotion policies of C.N. and the enormous problems faced by the tiny minority of women in the blue collar work force, amounted to systemic denial of women s equal employment opportunities. There was evidence in that case of the abhorrent attitudes of male personnel at C.N. At para. 5, the Court states as follows: The attitudes of male personnel at CN towards women were reviewed extensively in the Report. Examples follow: 1. "Women are generally disruptive to the work-force." 2. "Women aren't tough enough to handle supervisory jobs. They fail miserably under pressure."

16 Page: "The best jobs for women are coach cleaners -- That's second nature to them." 4. "One big problem adding women to train crews would be policing the morals in the cabooses." 5. Work in the yards is too physically demanding. The weather is too harsh." 6. "Women cannot do the physical aspects of a CN conductor's job. There's too much handling of drunks, transients and undesirables." 7. "Women have no drive, no ambition, no initiative." 8. "A woman can't combine a career and family responsibilities." 9. "The 'old boy network' for promotions is very strong at CN. This naturally inhibits women's advancement." 10. "My department is all male -- they don't want a woman snooping around." 11. "Railroading is a man's sport -- there's no room for women." 12. "Unless I'm forced, I won't take a woman." In National Capital Alliance and Race Relations v. Dept. of Health and Welfare (1997) CanLII 1433 (chart), a three-person panel utilized expert evidence to assist them in a finding of whether or not there was systemic discrimination. The expert evidence was not a simple matter of comparing the percentage of a particular group in the population versus the percentage of a particular group that has worked with a particular employer. The experts first had to ascertain the number of workers who were qualified to work for that employer. [53] A panel can only make decisions on the evidence before it. In this case, Adjudicator Nicholson had no expert evidence available to her. There was certainly nothing like the evidence adduced in C.N.R. v. Canada (Human Rights Commission), supra. The evidence before the Adjudicator Nicholson was that Infoway had a policy that they would not discriminate, the first person hired by Burns was black, and that person, (at least as of August 2012) is still with Infoway. There are several individuals who are visible minorities who held positions of authority at Infoway in 2005, including the CEO of the company, the coordinator of the CEO s office, the group director of Project Quality and Risk Assurance, and the director of Corporate

17 Page: 17 Communications. The senior financial specialist, (project finance director of Business Intelligence) and document management coordinator, were identified as being black. Charbonneau gave evidence that there were visible minorities employed with her in the Montreal office. Infoway moved the Applicant along the hiring process knowing he was black. Of the 18 people who applied, only four had a first interview and, of that four, only three, including the Applicant, had a second interview. This was evidence that the panel accepted. [54] Infoway was asked to provide evidence of percentages of visible minorities employed in 2005 to the panel, post hearing. It did so and that information showed that 19 of a total of 96 of the employees (20 percent) were members of the visible minorities. The Applicant takes issue with that last fact now. He did not take issue with it at the time it was filed. He did not ask for the hearing to be reopened on the issue. We, therefore, do not have the benefit of an examination or cross-examination. [55] The Applicant points out that four of the individuals were hired after his interview in June He, therefore, points out that this really represents only about 14 to 15.6 percent of the workforce, not 20 percent. The Applicant believes this is a crucial error. However, the fact remains that they were asked to supply information for the year 2005, the year in which the Applicant applied for his job. The fact is that, in 2005, 19 of 96 employees (20 percent) were visible minorities. The Applicant then makes the argument (for the first time before this Court) that of the 19, 11 are no longer with Infoway. The unfairness of the timing of this attack is obvious. Firstly, the panel did not hear this argument. Secondly, Infoway did not have an opportunity to respond to explain why those employees are no longer with the company. The reason one employee is not with the company is obvious, as that employee is deceased. There may or may not be valid reasons why the other ones are not with the company. Thirdly, if that was an issue, then Infoway ought to have had the opportunity to show whether or not, in 2006 and subsequent years, the percentage of its minorities went up, down, or remained the same. In the circumstances, I cannot find that the panel s decision with respect to this issue was unreasonable. Conclusion [56] The Applicant has parsed the evidence before the human rights panel in great detail in his quest to have this decision quashed. This, however, is not an appeal. This is a judicial review. On a judicial review it is the process which is important. The Applicant believes that the hiring process was so fundamentally flawed that it amounted to discrimination. The panel, however, considered the hiring process and acknowledged its flaws. The panel also considered all of the other information and accepted the evidence of Burns. The panel found Burns to be forthright and

18 Page: 18 consistent and his evidence reasonable and credible. Her findings are reasonable and I would therefore dismiss the application. April 29, 2013 J.