canada v. uzoaba
T-1206-94
Attorney General of Canada (Applicant)
v.
Julius H. E. Uzoaba and Canadian Human Rights Commission (Respondents)
Indexed as: Canada (Attorney General) v. Uzoaba (T.D.)
Trial Division, Rothstein J."Ottawa, April 21, 1995.
Human rights " Judicial review of HRT decision performance appraisal, employment references taking into account convicts' racist attitudes, and placing racially motivated petition on personnel file discriminatory practices " HRT ordering reinstatement at higher level under CHRA, s. 53(2)(b) " CSC not liable for convicts' racist beliefs but for discrimination by management in relying on racially motivated acts, statements or petitions " Sufficient if discrimination a basis for employer's decision " If conflict between CHRA, s. 53(2)(b) and Public Service Employment Act, CHRA paramount.
Public Service " Selection process " Merit principle " Under CHRA, s. 53(2)(b) HRT may order provision of rights, opportunities, privileges, on first reasonable occasion, as were denied discrimination victim " HRT ordering reinstatement of complainant at higher level, after finding employer guilty of discriminatory practices " Government's right to promote according to merit under PSEA not overriding CHRA " CHRA paramount " As some evidence upon which HRT could base decision, Court lacking jurisdiction.
Penitentiaries " CSC manager taking convicts' racist attitudes into account in complainant's performance appraisal " Placing racially motivated petition on personnel file " HRT correctly finding discriminatory practices, not for convicts' racist beliefs, but because management's reliance on racially motivated conduct itself discrimination.
This was an application for judicial review of a Human Rights Tribunal's decision that Correctional Service Canada (CSC) had contravened the Canadian Human Rights Act (CHRA). The complainant's 1980 performance appraisal referred to a relatively large number of inmates' transfer requests for removal from his caseload due to a language difficulty, mannerisms or attitude. Several prisoners were "bikers" who were known to be racists. The Tribunal held that such unquestioning acceptance of the inmates' views of the complainant's performance, knowing that at least some of those views were tainted by racism, amounted to racial discrimination by CSC. It held that this discrimination was perpetuated in employment references containing negative comments based upon the inmates' actions. Placing a prisoners' petition which was at least partially motivated by racism, on respondent's personnel file, and then exacting an agreement that he not work with inmates in exchange for removing it, was also found to be a discriminatory practice. The Attorney General argued that CSC should not be held liable for the conduct of inmates and that CSC's actions were motivated by legitimate, not discriminatory, reasons.
The Tribunal ordered CSC to reinstate the complainant at a higher level than the position he had held when his rights were violated. CHRA, paragraph 53(2)(b) permits a Tribunal to order that the victim of a discriminatory practice be provided, on the first reasonable occasion, such rights, opportunities or privileges as were denied him due to the practice. The Attorney General argued that a Human Rights Tribunal cannot overrule the scheme established by the Public Service Employment Act (PSEA) whereby promotions are to be based on merit.
Held, the application should be dismissed.
The Tribunal did not err in finding the employer liable for discrimination in respect of the complainant's performance appraisal. Based on the supervisor's own admission, it was not unreasonable to conclude that inmates' views, based on racial attitudes, were considered in the performance appraisal, and that this was discrimination based on race. There was also evidence before the Tribunal that the inmate petition was motivated at least in part by racism of some of the convicts. The Tribunal did not err in concluding that attaching such a petition to an employee's file, which could then be used for disciplinary or removal purposes and which was used as a bargaining tool with the employee, was discrimination.
CSC was not liable because of the convicts' racist beliefs or actions. But when management, in its dealings with an employee, relies on acts, statements or petitions of prisoners which are racially motivated, it is itself discriminating against the employee. Even if the complainant's difficulties with the inmates went beyond those associated with race, it is sufficient that discrimination is a basis for the employer's decision.
Even if the power of a Human Rights Tribunal to order a promotion in the Public Service indirectly conflicts with the PSEA, the provisions of the CHRA must prevail. Any other conclusion would minimize the rights in the CHRA and enfeeble their proper impact. If the CHRA was not paramount, the jurisdiction of a Tribunal to order reinstatement at a higher level would apply to non-government federal positions where the Act is applicable, but not to government positions, an anomaly not envisaged by Parliament.
The principles of mitigation, remoteness and foreseeability apply to an award of damages, but in terms of reinstatement, the question is one of sufficiency of evidence. As there was some evidence upon which the HRT could base its decision that the complainant should be reinstated at the higher level, the matter was beyond the Court's jurisdiction.
statutes and regulations judicially considered
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 53(2)(b), 54(2).
Public Service Employment Act, R.S.C., 1985, c. P-33, s. 41.
cases judicially considered
applied:
Action Travail des Femmes v. Canadian National Railway Co., [1987] 1 S.C.R. 1114; (1987), 40 D.L.R. (4th) 193; 27 Admin. L.R. 172; 87 CLLC 17,022; 76 N.R. 161; Kelso v. The Queen, [1981] 1 S.C.R. 199; (1981), 120 D.L.R. (3d) 1; 35 N.R. 19.
referred to:
Marylou Bueckert v. Base-Fort Patrol Ltd. (1982), 3 C.H.R.R. D/804 (Bd. of Inquiry); Holden v. Canadian National Railway (1990), 14 C.H.R.R. D/12; 91 CLLC 17,028; 112 N.R. 395 (F.C.A.); Canada (Attorney General) v. Morgan, [1992] 2 F.C. 401; (1991), 85 D.L.R. (4th) 473; 92 CLLC 17,002; 135 N.R. 27 (C.A.).
APPLICATION for judicial review of a Human Rights Tribunal decision that Correctional Service Canada was guilty of discriminatory practices contrary to the Canadian Human Rights Act by taking account of convicts' racist attitudes in an employee's performance appraisal and employment references and in placing a prisoners' petition against the employee on his personnel file (Uzoaba v. Canada (Correctional Services), [1994] C.H.R.D. No. 7 (QL)). Application dismissed.
counsel:
Ian McCowan for applicant.
Andrew J. Raven and David Yazbeck for respondent Julius Uzoaba.
Peter Engelmann and Michael Gottheil for respondent Canadian Human Rights Commission.
solicitors:
Deputy Attorney General of Canada for applicant.
Raven, Jewitt & Allen, Ottawa, for respondent Julius Uzoaba.
Caroline Engelmann & Gottheil, Ottawa, for respondent Canadian Human Rights Commission.
The following are the reasons for order delivered orally in English by
Rothstein J.: This is an application for judicial review of a decision of a Human Rights Tribunal (Tribunal) dated April 28, 1994 [[1994] C.H.R.D. No. 7 (QL)]. The Tribunal found that Dr. Julius Uzoaba's rights under the Canadian Human Rights Act, R.S.C., 1985, c. H-6 (Act) had been contravened. Amongst other things, the Tribunal ordered that Correctional Service Canada, the employer, at the first reasonable opportunity, offer Dr. Uzoaba a position at the WP-5 level without inmate contact.
The Attorney General, in this application before me, submits that the Tribunal's decision should be set aside and that the matter be remitted to the Tribunal with direction that Dr. Uzoaba's complaint be dismissed. The Attorney General says the Tribunal erred in finding Correctional Service Canada violated the Act. Further, the Attorney General says that even if there had been a violation of the Act, the Tribunal erred by ordering Correctional Service Canada to reinstate Dr. Uzoaba at the WP-5 level which would constitute a promotion from the WP-3 classification officer position he held at the time his rights were violated.
The Attorney General essentially makes two submissions in respect of liability. The first is that Correctional Service Canada should not be held liable for the actions of inmates at a prison. The second is that the actions taken by Correctional Service Canada were motivated by legitimate as opposed to discriminatory reasons.
The discriminatory acts of Correctional Service Canada found by the Tribunal and to which counsel made reference involved:
(1) A performance appraisal of Dr. Uzoaba which took into account racist attitudes of prisoners.
(2) Employment references by Dr. Uzoaba's superior which took into account racist attitudes of prisoners.
(3) The placing of a prisoners' petition against Dr. Uzoaba, which was motivated in part by racism, on Dr. Uzoaba's personnel file, which could then be used for disciplinary or removal purposes and which was used to require Dr. Uzoaba to sign a memorandum acknowledging that he would not work with inmates in exchange for taking the petition off his personnel file.
Counsel for the Attorney General acknowledges that third parties can be a source of discrimination by employers such as in customer preference cases. See for example, Marylou Bueckert v. Base-Fort Patrol Ltd. (1982), 3 C.H.R.R. D/804 (Bd. of Inquiry). But he says that extension of the third party input principle to prisons is improper. He does, however, concede that if prison management discriminated against an employee by acceding to the racist demands or actions of inmates, this would constitute a violation of the Act by the employer.
At pages 157 and 158 of its decision, the Tribunal states:
Similarly, in this case, Mr. Markowski's unquestioning acceptance of the inmates' views of Dr. Uzoaba's performance, knowing as he did that at least some of these views were tainted by racism, amounts to racial discrimination by CSC.
This discrimination was perpetuated when Mr. Markowski provided employment references containing negative comments based upon the inmates' actions.
Similarly, Mr. Trono's actions, following on the receipt of the inmate petition, also constitute discrimination against Dr. Uzoaba by reason of his race and colour.
In my view, there was evidence before the Tribunal that permitted such conclusions. In Dr. Uzoaba's performance appraisal for 1980, his supervisor, Mr. Markowski, in giving reasons why he found there was room for improvement in Dr. Uzoaba's ability to work successfully with inmates, states:
Over the past year a relatively large number of inmates have made official requests for removal from Mr. Uzoaba's caseload due either to a language difficulty, mannerisms or attitude.
According to the Tribunal, there was some evidence that Dr. Uzoaba had a problem in relating to inmates that was not racially related. Even if those difficulties explain the reference in the performance appraisal to "attitude" this is not a possible explanation for the references to language difficulties and mannerisms.
Several prisoners were "bikers" who were known to be racists. Dr. Uzoaba was advised not to allow prisoners to repair his automobile because it was feared they would damage the automobile because of racist attitudes they held towards Dr. Uzoaba. Mr. Markowski acknowledged that he gave credence to prisoners' feedback regarding Dr. Uzoaba and their transfer requests, some of which he admitted were motivated by racism, in his consideration of Dr. Uzoaba's performance appraisal. It was therefore not unreasonable for the Tribunal to conclude that inmates' views, based on racial attitudes, were considered in Dr. Uzoaba's performance appraisal and that this amounted to discrimination by the employer based on race.
Having concluded that the Tribunal was not in error in finding the employer liable for discrimination in respect of the performance appraisal of Dr. Uzoaba, I do not find it necessary to deal with the matter of employment references or the inmate petition. Suffice it to say that there was evidence before the Tribunal that the inmate petition was motivated, at least in part, by the racism of some prisoners. The Tribunal did not err in concluding that to attach such a petition to an employee's file, which could then be used for disciplinary or removal purposes, and was used as bargaining tool with the employee, constitutes discrimination by the employer.
The findings and evidence to which I have referred are not to the effect that Correctional Service Canada is liable because of the racist beliefs or actions of prisoners. They do, however, indicate that when management, in its dealings with an employee, relies on acts, statements or petitions of prisoners which are racially motivated, it is itself discriminating against the employee, contrary to the Act.
Counsel for the Attorney General says there was evidence of Dr. Uzoaba having difficulties with inmates beyond those associated with race and that the actions of Correctional Service Canada were with regard to this information. The simple answer, as pointed out by counsel for the Canadian Human Rights Commission, is that it is sufficient that discrimination is a basis for the employer's decision. See Holden v. Canadian National Railway (1990), 14 C.H.R.R. D/12 (F.C.A.), at pages D/14 and D/15. As noted, there was evidence before the Tribunal that discrimination was a basis for the employer's actions at least with respect to the performance appraisal and the petition. That is sufficient to put the employer in violation of the Act.
I turn now to whether it was proper for the Tribunal to order Correctional Service Canada to reinstate Dr. Uzoaba to a WP-5 position which, in effect, constitutes a promotion from the WP-3 classification officer position he held.
Counsel for the Attorney General argues that the Public Service Employment Act, R.S.C., 1985, c. P[ib]-33, establishes a scheme whereby promotions are to be based on merit. He says the scheme for promotion is elaborately set forth in the Public Service Employment Act and that this cannot be overruled by a Human Rights Tribunal. He says the jurisdiction of the Tribunal is limited to referring the matter back to Correctional Service Canada, in order for it to request an exclusion under section 41 of the Public Service Employment Act, making a declaration that Dr. Uzoaba was entitled to a WP-5 position or perhaps ordering that Dr. Uzoaba be entitled to compete for a WP-5 position.
When there is a conflict between the Act and another Act of Parliament, the question is which is paramount. The relevant provision of the Act at issue here is paragraph 53(2)(b) which provides:
53. . . .
(2) If, at the conclusion of its inquiry, a Tribunal finds that the complaint to which the inquiry relates is substantiated, it may, subject to subsection (4) and section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in that order any of the following terms that it considers appropriate:
. . .
(b) that the person make available to the victim of the discriminatory practice, on the first reasonable occasion, such rights, opportunities or privileges as, in the opinion of the Tribunal, are being or were denied the victim as a result of the practice;
The relevant provision of the Tribunal's order in this case tracks the words of paragraph 53(2)(b) and provides [at page 180]:
2. That the respondent, at the first reasonable opportunity, offer Dr. Uzoaba a position at the WP-5 level, without inmate contact;
On its face, the Tribunal's order appears to fall squarely within the jurisdiction of a Tribunal under paragraph 53(2)(b) of the Act.
The law is clear and counsel for the Attorney General agrees that in the case of a direct conflict, the Act will apply. However, he argues the conflict here is not direct. It is not clear to me how this argument assists counsel. Indeed, counsel for Dr. Uzoaba submits there is no real conflict between the Act and the Public Service Employment Act. He says that the promotion on merit provisions of the Public Service Employment Act apply in the normal, day-to-day administration of the Public Service and that the Act does not purport to displace the Public Service Employment Act in that respect. In practical terms I agree with this submission.
However, even if the power of a Human Rights Tribunal to order a promotion in the Public Service conflicts with the Public Service Employment Act, I am satisfied that the provisions of the Act must prevail.
In Action Travail des Femmes v. Canadian National Railway Co., [1987] 1 S.C.R. 1114 (the Action Travail des Femmes case), Chief Justice Dickson stated at pages 1135 and 1136:
The first comprehensive judicial statement of the correct attitude towards the interpretation of human rights legislation can be found in Insurance Corporation of British Columbia v. Heerspink, [1982] 2 S.C.R. 145, at p. 158, where Lamer J. emphasized that a human rights code "is not to be treated as another ordinary law of general application. It should be recognized for what it is, a fundamental law". This principle of interpretation was further articulated by McIntyre J., for a unanimous Court, in Winnipeg School Division No. 1 v. Craton, [1985] 2 S.C.R. 150, at p. 156:
Human rights legislation is of a special nature and declares public policy regarding matters of general concern. It is not constitutional in nature in the sense that it may not be altered, amended, or repealed by the Legislature. It is, however, of such nature that it may not be altered, amended, or repealed, nor may exceptions be created to its provisions, save by clear legislative pronouncement.
The emphasis upon the "special nature" of human rights enactments was a strong indication of the Court's general attitude to the interpretation of such legislation.
I think this principle of paramountcy must apply in this case to enable a Human Rights Tribunal to order a promotion which it has found has been denied for reasons of discrimination, contrary to the Act. In other words, the jurisdiction of the Public Service Commission and the process respecting promotions within the Public Service must give way in those rare exceptions where promotions have been denied based on discriminatory reasons and where a Tribunal, acting within its jurisdiction under the Act, orders a promotion in order to remedy the results of discriminatory action taken by the employer. In this respect, I adopt the approach of Dickson J., as he then was, in Kelso v. The Queen, [1981] 1 S.C.R. 199 where he stated at page 207:
No one is challenging the general right of the Government to allocate resources and manpower as it sees fit. But this right is not unlimited. It must be exercised according to law. The government's right to allocate resources cannot override a statute such as the Canadian Human Rights Act, S.C. 1976-77, c. 33, or a regulation such as the Exclusion Order.
As counsel for Dr. Uzoaba pointed out, it would be easy, and correct, in this case, to paraphrase Dickson J. with the words: "No one is challenging the general right of the Government to promote according to the merit principle. But this right is not unlimited. It must be exercised according to law. The government's right to promote according to merit cannot override a statute such as the Canadian Human Rights Act."
Any other conclusion would, as put by Chief Justice Dickson in Action Travail des Femmes, minimize the rights contained in the Act and enfeeble their proper impact. See page 1134.
Further, as counsel for the Human Rights Commission pointed out, if the Act was not paramount in a case such as this, the jurisdiction of a Tribunal to order reinstatement at a higher level would apply to non-government federal positions where the Act is applicable but not to government positions. Such an anomaly could not have been envisaged by Parliament.
It is important to note the Act provides in a case such as this for relief to be granted "on the first reasonable occasion." That indeed is what the Tribunal provided for in its order. While an order of reinstatement at a higher level is an extraordinary remedy, it is, in my view, recognized by the Act, provided the order is circumscribed by the limitation "on the first reasonable occasion" and by other limitations in the Act. See for example subsection 54(2).
Counsel for the Attorney General argues that the principles of mitigation, remoteness and foreseeability preclude the reinstatement of Dr. Uzoaba at this late date to a WP-5 level position. Clearly, these are principles which apply to an award of damages and were taken into account by the Tribunal in that context. But in terms of reinstatement, the question is one of the sufficiency of evidence. If Dr. Uzoaba had been reinstated at a higher position in the absence of evidence showing the promotion was reasonably foreseeable then the Tribunal would have erred. But that is not the case here. There was some evidence indicating a serious possibility Dr. Uzoaba would have attained the level of WP-5 by the time of the Tribunal's decision. For the "serious possibility" test, see Canada (Attorney General) v. Morgan, [1992] 2 F.C. 401 (C.A.), at page 411 per Marceau J.A.
At page 171, the Tribunal stated:
In the January 1980 performance appraisal prepared by Mr. Markowski, Mr. Markowski confirmed that Dr. Uzoaba could expect a promotion within one to two years if he were able to rectify the weakness identified in the appraisal. While it inevitably involves a certain amount of crystal ball gazing, the Tribunal is satisfied that, had Dr. Uzoaba remained working within CSC, in an environment less tainted by racial discrimination and racial harassment, he could reasonably have anticipated a promotion to the WP-4 level within approximately three years. The evidence suggests that positions at that level would have likely been more suited to someone with Dr. Uzoaba's particular skill set, and the Tribunal is satisfied that, without the stresses of constant inmate contact, Dr. Uzoaba would have likely succeeded in that position, enjoying further promotion at some future date. We are, therefore, satisfied that it would be appropriate to reinstate Dr. Uzoaba at the WP-5 level.
There was evidence before the Tribunal of the promotion of some of Dr. Uzoaba's colleagues and the reference, in his performance appraisal of 1980, that he would be ready for advancement to the WP-4 level within one to two years given a rectification of certain weaknesses. The Tribunal concluded it was reasonable to anticipate that he would have advanced to the WP-4 level in three years and that over the next ten to twelve years in an environment less tainted by racism, advancement to the WP-5 level was a reasonable likelihood. While stronger evidence might have been desirable, there was some evidence upon which the Tribunal could base its decision that Dr. Uzoaba should be reinstated at the WP-5 level. That puts the matter beyond the reach of this Court.
This application for judicial review is dismissed.