Lincoln v. Bay Ferries Ltd.
2003 FC 1156, Dawson J.
Applicant bringing application for judicial review from decision of Canadian Human Rights Tribunal (Tribunal) dismissing applicant's complaint Bay Ferries Ltd. (respondent) discriminated against him contrary to Canadian Human Rights Act, s. 7--Tribunal observed applicant must establish prima facie case of discrimination, to which respondent may respond--Tribunal applied three-part test developed in Florence Shakes v. Rex Pak Ltd. (1981), 3 C.H.R.R. D/1001 for determining whether prima facie case of discrimination established by applicant--Tribunal concluded applicant had raised prima facie case of discrimination, neither nor shown explanation given by respondent for decision not to hire applicant subterfuge in order to hide discriminatory actions--Applicant alleged Tribunal erred in law and in fact--Alleged error of law regarding incorrect test applied by Tribunal in order to determine whether applicant established prima facie case of discrimination--Error in fact that Tribunal found: (1) applicant left Canadian National Marine (later Marine Atlantic Inc., and together referred to as Marine Atlantic) in 1995, after working there for five years, because he did not like Marine Atlantic management policy; and (2) Mr. Stevenson (representative of Bay Ferries responsible for interviewing applicants) felt applicant's response on watertight door interview question showed inflexibility, and perhaps resistance to change on safety issue --Whether Tribunal applied wrong test for determination of prima facie case of discrimination--Two tests exist to determine whether prima facie case of discrimination established--First test enunciated in Shakes, supra, second test articulated in Israeli v. Canadian Human Rights Commission and Public Service Commission (1983), 4 C.H.R.R. D/1616--Application of each test considered in Canada (Department of National Health and Welfare) v. Chander (1997), 131 F.T.R. 301 (F.C.T.D.) in which Mr. Justice Muldoon explained: ""Shakes applies to situations where someone other than the complainant is hired. Israeli applies when the employer does not hire the complainant and then continues to look for employees"--No final hearing decision made with respect to any candidate until after applicant interviewed--Tribunal did not err by applying Shakes test--As to alleged errors of fact, evidence not supporting applicant's arguments--Judicial review dismissed --Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 7.