Appeal, cross‑appeal from order (2003 FC 1373), setting aside Tribunal decision Canadian Armed Forces (CAF) guilty of age discrimination in not promoting soldier—Federal Court held: (1) Tribunal used wrong legal test to determine whether Commission made out prima facie case; (2) CAF not establishing Tribunal’s rejection of its explanation unsupported by evidence—Attorney General cross‑appealing as to (2)—Commission’s appeal allowed; cross‑appeal denied —Soldier joined CAF at 19 as Private, reached rank of Warrant Officer at 37—Completed Master Warrant Officer course when 46 but not rated high enough on National Merit List for promotion—While having positive recommendations, achieving high score on Performance Evaluation Report (PER), rating for “potential” steadily decreased—Soldier submitting “potential” assessment subjective, disadvantages older candidates—As to test for prima facie case of discrimination, Tribunal relied on Ontario Human Rights Commission and O’Malley v. Simpson‑Sears Ltd. et al.,  2 S.C.R. 536 (O’Malley) but also considered Florence Shakes v. Rex Pax Ltd. (1981), 3 C.H.H.R. D/1001 (Ont. Bd. Inq.)—Shakes test modified by Tribunal in Israeli v. Canadian Human Rights Commission (1983), 4 C.H.H.R. D/1616 (C.H.R.T.), wherein no appointment made but employer kept seeking applicants after rejecting qualified complainant—Argued before Tribunal herein Commision not establishing prima facie case as not adducing evidence as to age, qualifications of Warrant Officers promoted during period soldier passed over—Tribunal rejected argument, distinguishing Shakes, Israeli as discrimination here alleged regarding promotion, not hiring—Also found Commission could establish prima facie case without comparative evidence of kind identified in Shakes, if other evidence discrimination was factor in denying complainant employment opportunity—Citing Chander v. Canada (Department of National Health and Welfare),  C.H.R.D. No. 16 (C.H.R.T.) (QL), Tribunal held if evidence shows discrimination a factor in denying employment opportunity, prima facie case made out, irrespective of successful candidates’ qualifications—Tribunal found, if believed, not explained, evidence sufficient to support complaint— Considered non-age‑related explanations for low “potential” scores: extra‑curricular activities directed to post‑military career; weaknesses in French, communication, leadership; unwillingness to accept posting outside southwestern Ontario; non‑deployment on operational missions—Though Tribunal had directed disclosure of relevant documents, CAF not disclosing performance reports of Warrant Officers promoted —This was found to undermine all explanations of soldier’s low “potential” score—Federal Court held Tribunal erred in reliance on Chander for proposition prima facie case could be established in absence of comparative evidence as in that case there were no other candidates with whom to compare complainant—Still, Judge concluded, if comparative evidence had not been available, evidence would have constituted prima facie proof of discrimination—Judge concluded, if prima facie case established, reasonable for Tribunal to reject explanations absent comparative data—Under Canadian Human Rights Act (CHRA), s. 3(1), age is prohibited ground of discrimination—Under s. 7(b), it is discriminatory practice, directly or indirectly, in course of employment, to differentiate adversely on prohibited ground of discrimination—Whether Tribunal selected appropriate test of prima facie case is question of law reviewable on correctness standard—Attorney General’s argument Tribunal must apply Shakes unless no other candidate or comparative information unavailable and, since such information was available, Tribunal erred in not applying Shakes, rejected—In Lincoln v. Bay Ferries Ltd., 2004 FCA 204 (decided after impugned decision rendered) Court holding Shakes, Israeli tests but illustrations of application of guidance provided in O’Malley to establish prima facie discrimination—Legal test remains O’Malley case—Commission need not adduce any particular type of evidence—Question of mixed fact, law whether evidence in case, if believed, not explained proves adverse differentiation on prohibited ground—Flexible legal test for prima facie case better able than more precise tests to advance broad purpose underlying CHRA as discrimination takes on new, subtle forms—Comparative evidence comes in many more forms than that identified in Shakes—To make prima facie case test more precise, detailed in attempt to cover every discriminatory practice would unduly “legalize” decision making, delay complaint resolution, encourage judicial review applications—Preferable to leave kind of evidence necessary up to specialist Tribunal—Variations in fact patterns infinite in employment discrimination—Increasing number, specificity of legal rules may not enhance certainty in administration of law—Whether there was sufficient evidence of prima facie case involves application of legal rule to facts, is therefore question of mixed fact, law, reviewable on unreasonableness simpliciter standard: Canada (Human Rights Commission) v. Canada (Armed Forces),  3 F.C. 653 (T.D.)—CAF suggested Judge erred in indicating Tribunal entitled to draw adverse inference from CAF’s failure to produce PERs of soldiers in competition for promotion—Submitted Commission did not submit PERs should have been disclosed prior to closing argument to Tribunal—PERs contain confidential information, ought not be ordered disclosed until privacy interests considered—But view of Federal Court of Appeal that Tribunal did not draw adverse inference, just performed factual exercise of weighing evidence before it— Attorney General attempting to elevate to level of questions of law what are merely questions of evidence—Tribunal’s decision restored—Canadian Human Rights Act, R.S.C., 1985, c. H‑6, ss. 3(1) (as am. by S.C. 1996, c. 14, s. 2), 4 (as am. by S.C. 1998, c. 9, s. 11), 7(b).
Canada (Attorney General) v. Canada (Human Rights Commission) (A‑588‑03, 2005 FCA 154, Evans J.A., judgment date 3/5/05, 14 pp.)