Cybulski v. Canadian Corps of Commissionaires, Ottawa Division, 2014 HRTO 312

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tyler Cybulski

Applicant

-and-

Canadian Corps of Commissionaires, Ottawa Division

Respondent

DECISION

Adjudicator: Paul Aterman

Date: March 10, 2014

Citation: 2014 HRTO 312

Indexed as: Cybulski v. Canadian Corps of Commissionaires, Ottawa Division

APPEARANCES

Tyler Cybulski, Applicant

Self-represented

Canadian Corps of Commissionaires, Ottawa Division, Respondent

David Law, Counsel

Introduction

1Certain departments of the Government of Canada are mandated to deal with matters of national security. To discharge that mandate, to protect the identities of their employees and the contractors who enter their premises, and to safeguard the secrecy of the information they deal with on a daily basis these departments restrict access to their facilities. They require employees and contractors to have a security clearance at the Top Secret level before they can be allowed on to their premises.

2The respondent Canadian Corps of Commissionaires, Ottawa Division (the “Commissionaires”) is a not for profit corporation that provides security services to a range of public and private sector clients. Among its customers are departments of the Government of Canada that require the respondent’s employees to have a Top Secret clearance.

3To fulfil this demand the respondent identifies employees whom it sees as potentially suitable candidates to acquire a Top Secret clearance. If the employees are interested in working at Top Secret job sites, the respondent then screens them though an interview. If an employee passes the interview the respondent recommends that employee to the customer department for consideration. Only then does the department start a lengthy, detailed and expensive background check to see if it will grant a Top Secret clearance. The respondent plays no role in the process of granting security clearances at any level. All it does is recommend certain employees that it thinks may be suitable to apply for a Top Secret clearance.

4The applicant self-identifies as belonging to the Roman Catholic faith. He was an employee of the respondent. On being asked, he expressed an interest in obtaining a Top Secret clearance. At the interview stage he was asked by the respondent’s employees what he thought about Canada’s military involvement in overseas conflicts. He replied that he cannot support any military engagement by Canada’s armed forces as his religious beliefs are that violence and armed conflict are wrong. The interview did not last much longer and the applicant was not recommended to be considered for a Top Secret clearance.

5He filed this Application, alleging discrimination with respect to employment because of creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Reprisal is also alleged. The applicant seeks damages because he maintains that not only were the respondent’s actions discriminatory in failing him at the interview stage, they also cost him lost income, then, now and in the future.

6I do not accept that the outcome of this interview had any impact on the applicant’s income, nor that the respondent engaged in any form of reprisal, but I do find that the way the interview was conducted was discriminatory. The reasoning in support of these conclusions is set out below.

background

7This Application was heard on October 15, 16 and December 16 of 2013. At the conclusion of the first day of hearing I ordered a partial publication ban on the proceedings. The reasons for doing so are set out in Interim Decision 2013 HRTO 1773, and the order continues in effect. Accordingly, in this Decision I refer to the federal government department in question as the “customer department” and I do not identify the respondent’s employees who worked there.

8The areas of dispute between the parties are less about what took place and more about how the facts are to be interpreted and how the law is to be applied to those facts. Although most of the evidence was not in dispute, where credibility is at issue I have applied the principles set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 DLR 354 (BCCA) at p. 356-57. In that excerpt the court emphasises that an assessment of credibility depends on more than just deciding whether a witness gave the appearance of telling the truth when testifying. Its analysis on this issue is summarised in the following sentence:

In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.

9The respondent called one witness, Mr. Jim Britton, who is the respondent’s Manager of Employee Relations, and the applicant testified on his own behalf.

10I first provide an overview of the applicant’s work history with the respondent, and then outline the requirements of the customer department. After that I set out what took place before, during and after the applicant’s interview, and finally I deal with the applicant’s religious beliefs.

The Applicant’s Work History with the Respondent

11The applicant was hired by the respondent on January 6, 2011, after having undergone a week long orientation and training session in December of 2010 along with 20-30 other new recruits. As conditions of employment he was required to obtain a security clearance at the Secret level and an Ontario licence as a security guard, both of which he did.

12He was not asked about his religion at the time of hiring, but says that it was obvious from his resume that he is Catholic, as it lists the schools he attended as Catholic schools.

13When he started work the applicant was put on what is called the “spares list”. This meant that he was assigned to work at various sites in Ottawa without being attached to a specific location. He was still waiting for his security clearance and was sent to locations where a Secret clearance was not required. After about 3 months he was assigned to a Department of National Defence (“DND”) location, but had to work in the external guard house, as he still had not received his security clearance.

14The applicant eventually obtained his clearance and began to work in the main building. He remained there until he was moved to another site run by Library and Archives Canada in October of 2011. He worked there until January of 2012, when he had to stop because his provincial security guard licence had expired. He renewed his licence in mid-January of 2012, and returned to work but was put back on the spares list. The applicant states that he was getting fewer job assignments from the respondent, and began a job with another employer on a part-time basis in February of 2012. This turned into full-time employment in May of 2012.

15In May of 2012 the respondent sent him a letter noting that he had not worked for a considerable period of time even though he had a contractual obligation to work a minimum of 16 hours every two weeks. The letter asked him to indicate whether he intended to return to work or resign.

16He resigned on June 6, 2012. His letter of resignation complains about how the respondent dealt with him when he raised concerns about the conduct of a fellow employee. It also complains about how the respondent assigned him work. The letter makes no mention of any of the issues raised in this Application.

The Requirements of the Customer Department

17Following a career in Canada’s armed forces in positions which required him to hold a Top Secret security clearance, Mr. Britton joined the respondent as Manager of Employee Relations. In that capacity he deals with a broad range of employee and labour relations issues. One of his tasks is to oversee the respondent’s recruiting and staffing processes, including the process used to identify employees as possible candidates for Top Secret clearance.

18Mr. Britton testified that, of its own initiative, the respondent tries to identify such candidates on an ongoing basis. This is because the demand for Commissionaires with a Top Secret clearance is variable, and only a minority of candidates that it recommends to customer departments actually succeed in obtaining the clearance. About 60% of the employees that the respondent initially interviews to determine their suitability do not pass the interview stage. Of the remaining employees who are recommended to customer departments, only about one third succeed in being granted Top Secret clearance.

19Although the respondent conducts the initial interviews of its employees, it is the customer departments that set at least some of the criteria the respondent uses to assess candidates at the interview stage. The selection criteria vary from department to department in order to reflect their particular mandates, but in all cases the respondent will screen out employees who have a history of criminal activity, drug or alcohol dependencies, or associations with persons who are connected to criminal organisations.

20Mr. Britton testified that in this case the customer department communicated its criteria to the respondent’s site supervisor, who is the respondent’s senior employee assigned to that department. The site supervisor in turn provided the criteria to the respondent’s dispatcher. The dispatcher is an employee whose primary task is to assign employees to the over 200 sites serviced by the respondent. The dispatcher is also responsible for assisting in the briefing of new recruits during their orientation sessions.

21The dispatcher drafted speaking notes that would aid him in giving a presentation to new employees, including the applicant, about the possibility of working at the customer department. The notes include the customer department’s criteria, and read as follows:

1. What we are looking for in each individual are the following qualities:

a. Loyalty

b. Trustworthy

e. Honesty and Truthful

d. Lawful

e. Respectful

f. Professionalism

g. Integrity and

h. Team Player

2. Shifts are Based on a 28 Day Rotation:

2 on- 2 off,

3 on-2 off,

2 on-3 off

This is on a 14 Day Period

We are on 2 weeks days (14 days) and 2 weeks nights (14 days).

a. Schooling at any level at this time will not be considered while working on Shift.

b. Computer Skills

3. Salary: Starting at: $16.98. After 1st Incentive: $17.49 and 2^nd incentive: $18.13

4. a. Background

b. Financial Problems

e. Part of any Group

d. Clubs Gangs etc…

e. Drugs etc...

f. Various questions

5. Security Clearance Process: 5 Steps

6. Question Period

22Mr. Britton testified that when it came time for the respondent to interview those employees who had expressed an interest in working at the customer department, it was the customer department that set the interview questions. These were used by the respondent’s site supervisor and the second member of the interview panel, a now former employee of the respondent.

23Due to the nature of his former employment with the armed forces, Mr. Britton is familiar with the kind of work done by the customer department. The intelligence which it gathers is used by Canadian personnel who are deployed overseas in dangerous situations. Lives can be put at risk if personnel are not given all the information that they need to discharge their mission, or if that information has in some way been compromised.

24Mr. Britton explained why loyalty is so important to the customer department. The respondent’s employees at the customer site are not simply deployed to watch the outside of the premises. Rather, they do such things as patrol areas of the premises that require Top Secret clearance to enter. They are on the lookout for information (such as files) that may have been left in plain sight contrary to policy governing the safeguarding of information. They know who works in the facility, and could also learn where these employees and their families live.

25A Commissionaire who is not loyal or who is susceptible to pressure, coercion or blackmail could give up information that could in turn be used to compromise the mission of the customer department and/or the security of its employees. The applicant did not challenge this description of the sensitivity of the work done by Commissionaires assigned to the customer department. I accept Mr. Britton’s evidence on this point.

The Applicant’s Interview

The Events Leading to the Interview and the Interview Itself

26During the applicant’s orientation in December of 2010, he and other new recruits were given a presentation by the dispatcher on the possibility of working at sites requiring a Top Secret clearance. He explained that the respondent would only consider Canadian citizens and employees who had been in Canada for more than ten years. He also explained that employees who had a criminal past, past drug use or any “skeletons in the closet” would not be considered. The dispatcher said that the respondent was not looking for employees to volunteer, but rather that it would approach employees who might fit these criteria and would ask them if they wished to be considered for such positions.

27Some days later the applicant was taken aside by the dispatcher and told that he had been identified as a potential candidate. The applicant told him that he was interested in the position and that there was nothing about his past that would disqualify him, based on the criteria the dispatcher had outlined in his earlier presentation.

28In February of 2011 the applicant received a telephone call from the dispatcher telling him to call one of the respondent’s employees at the customer department so that an interview could be arranged. He did so, and then did his own research on the mandate of the customer department. Before coming to the interview he understood that it works in support of the protection of Canada’s security, its defence and foreign policies.

29The applicant went to the customer department on March 9, 2011. He was taken into a room where he watched a short video that described the department and its mandate. He was then taken to another room where he was interviewed by the respondent’s site supervisor and a now former employee of the respondent.

30The applicant recalls being told that the first question was an opinion question. He was instructed to answer it as honestly and openly as he could. He was then asked “What is your position on Canada’s involvement overseas?” He cannot recollect his answer verbatim but states that he told the panel that he is religious, that he is a Catholic and that he thinks it not morally right to engage in armed conflict.

31He was asked if he wanted to elaborate on his answer but responded by saying that he could not elaborate on it. The applicant states that at this point one member of the panel turned to the other and asked him if he wanted to continue. The questioner was shaking his head either to signify that he disapproved of the answer or did not want the interview to continue, or both. The other member of the panel then shook his head, also signifying “no”.

32The applicant was then asked two further questions: whether he belonged to any clubs, associations or groups and whether he was pursuing or planning to pursue any studies. He answered “no” to both questions. The applicant was asked to leave the room and for between 15-20 minutes he waited in the room where he had watched the video. He was then taken back into the interview room and told that he would not continue any further in the process.

33He asked if this was because of his answer to the first question, and was told by the panel members that they could not tell him why he had failed the interview. To this the applicant said “Don’t bullshit me” and again asked if the answer he had given about his religious beliefs was the reason, as that was his only substantive answer. Eventually he was told by a panel member that his answer could put into question his loyalty to Canada and that he could not be employed at the customer department if he did not support the government’s policy on the overseas involvement of the armed forces.

34The applicant was then told by a panel member not to talk to anyone about the interview, the interview concluded and the applicant left the site. He had arranged for his girlfriend to pick him up, and when she arrived he wrote down the question that led to him failing the interview.

35Despite the fact that a partial publication ban was intended to enable the respondent to present a full defence to the allegations, the respondent called neither member of the interview panel to explain what happened during the interview or how the panel interpreted the applicant’s answer. The only evidence it called was from Mr. Britton. He testified that the question regarding the applicant’s views on Canada’s overseas involvement was a valid question for the interviewers to put, because it is a question which speaks to the nature of the customer department’s mandate. Mr. Britton then went on to comment on the answer given by the applicant. He said:

His answer speaks to the question of loyalty. If you are not loyal then you may present a risk – you may be seen as a sympathetic supporter of the enemies of the client’s mission. If you do not support the client’s mission, what do you support?

36This answer expresses Mr. Britton’s view of why the interview panel decided to curtail the interview. While I accept that Mr. Britton has considerable expertise in the operational requirements of the respondent’s clients, particularly with respect to questions of security, he was not present at the interview and does not know what the panel was thinking. He admitted as much in cross-examination. As his evidence about what motivated the interview panel is not based on any first-hand knowledge and is simply an expression of opinion, I give it no weight.

37I find that the interview took place as the applicant described it. His testimony was consistent with the events as he originally described them in his Application, and his account is internally consistent. It went unchallenged.

Events Following the Interview

38The applicant states that he made no internal complaint about the interview because he had been told not to talk to anyone about the process. He maintains that he eventually filed this Application, almost exactly a year later, after he had done research on what is a human rights violation and after he had come to appreciate what he had lost in terms of job opportunities by not obtaining a Top Secret clearance. In addition he contacted various politicians and media outlets to draw their attention to his allegation of discrimination.

39The applicant continued to work for the respondent after the interview. After he complained about the conduct of a fellow employee he was moved from the Department of National Defence site to another site, which he regards as unfair. He also regards as unfair the way in which his hours of work were allocated after that transfer. The applicant did not raise either of these issues through the respondent’s complaints process. The applicant effectively ended the employment relationship, first by not responding to offers of work from the respondent and then by resigning.

The Applicant’s Religious Beliefs

40The applicant states that he belongs to the Roman Catholic faith. He was confirmed and his education was in the Catholic school system. While he has attended several churches in the past, he does not do so now. He studies the Bible on his own.

41In cross-examination the applicant was challenged as to the nature of his beliefs. He acknowledged that he is familiar with the Catholic doctrine on just war, namely that waging war can be justified in order to prevent or stop a greater evil, but explained that he does not agree with the position of the Catholic Church on this question. The applicant maintains that his disagreement with church doctrine on this issue does not mean that he is not a Catholic.

the positions of the parties

42The applicant argues that the respondent discriminated against him by concluding that his views on Canada’s overseas involvement indicate that he would pose a risk to the customer department. By equating his religious convictions with other indicators of questionable loyalty and trustworthiness, such as loyalty to another state or affiliations with criminal organisations it discriminated against him on the basis of creed. The applicant puts it this way:

It is clear that this interview process discriminates only based on speculation, not facts or past history. I have been wrongfully branded a security threat, not because of my past history, my lifestyle, or a radical view, but because I have been accused of a perceived thought crime due to my religion and resulting morals and values. Simply stating that I was a Catholic who did not believe in war has branded me a security threat and resulted in my career and name being severely tarnished.

43The applicant maintains that this discrimination was humiliating and distressing. In addition he argues that it caused him a significant economic loss because he will never obtain a Top Secret clearance and thus, he states, “I will never have the opportunity to thrive and reach my full professional capabilities”.

44The respondent denies any discrimination. It makes two arguments. First it maintains that the applicant cannot claim that he was discriminated against as a Roman Catholic, because the only expression he made of his religious beliefs was an objection to Canada’s military involvement overseas. This perspective, says the respondent, is at odds with the Roman Catholic doctrine on just war, and the applicant himself acknowledges that this is so. The respondent argues that the applicant cannot assert discrimination on the basis of creed if the only expression of his religion that is alleged to attract a discriminatory response is a statement that is at odds with the core doctrine of the religion that he professes. According to the respondent the inconsistency of the applicant’s response with Roman Catholic doctrine makes the applicant’s statement an expression of political belief rather than religious belief. Expressions of political belief are not protected by the Code.

45The respondent’s second argument is that the applicant’s account, if accepted, does not amount to a prima facie case of discrimination. It argues that the answer given by the applicant to the question about his views on Canada’s overseas involvement was sufficient for the respondent to conclude that he could satisfy the job criterion of loyalty. What matters, argues the respondent, is that the applicant made it clear that he cannot support Canada’s mission overseas. What motivates that lack of support – whether it is the applicant’s creed or his political beliefs or some other reason – is immaterial. In other words, it was evident from the applicant’s response that there was no point in continuing the interview, and that was not a discriminatory decision.

analysis

46Discrimination on the basis of creed is prohibited by the Code. The relevant subsection reads:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

47The question that was posed to the applicant – “What is your position on Canada’s involvement overseas?” - is neutral on its face. In other words there is nothing obviously discriminatory about it.

48However, the Code is drafted to address situations where an apparently neutral job requirement (in this case the criterion of loyalty that the question is addressing) produces a discriminatory result. The Code states:

11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.

49Whether the job requirement of loyalty is reasonable and bona fide in this case does not need to be determined because the respondent did not raise the defence that is available to it under s. 11. Rather, it limited its case to arguing that the applicant did not make out a prima facie case of discrimination.

50Because the respondent did not put forward a statutory defence, the issues that I need to determine are: whether the applicant’s answer to the interview question about Canada’s overseas involvement was an expression of creed; if so, whether it was a factor in the decision to disqualify him; and whether there was any reprisal against the applicant for asserting his human rights.

Was the Applicant’s Answer an Expression of Creed?

51The respondent argues that the applicant’s answer was not an expression of creed because it was inconsistent with Roman Catholic doctrine. This amounts to an invitation to the Tribunal to parse and pronounce on questions of theology. The Tribunal has no authority to do this.

52In Syndicat Northcrest v. Amselem, 2004 SCC 47 the Supreme Court of Canada explained the role of adjudicative bodies in deciding the genuineness of a religious belief. First, the majority concluded that a person asserting a religious belief does not need to demonstrate the conformity of that belief with established religious doctrine (see para. 46).

53The majority then goes on to set out how adjudicative bodies should approach arguments about the genuineness of a claimed religious conviction. The focus is on the sincerity of the individual’s subjective belief. This is a question of fact. As the majority explains at paras 53:

Assessment of sincerity is a question of fact that can be based on several non-exhaustive criteria, including the credibility of a claimant’s testimony (see Woehrling, supra, at p. 394), as well as an analysis of whether the alleged belief is consistent with his or her other current religious practices. It is important to underscore, however, that it is inappropriate for courts rigorously to study and focus on the past practices of claimants in order to determine whether their current beliefs are sincerely held. Over the course of a lifetime, individuals change and so can their beliefs. Religious beliefs, by their very nature, are fluid and rarely static. A person’s connection to or relationship with the divine or with the subject or object of his or her spiritual faith, or his or her perceptions of religious obligation emanating from such a relationship, may well change and evolve over time. Because of the vacillating nature of religious belief, a court’s inquiry into sincerity, if anything, should focus not on past practice or past belief but on a person’s belief at the time of the alleged interference with his or her religious freedom.

54The majority (at para. 56) sets out a two-part test for establishing the sincerity of a claimed religious belief:

Thus, at the first stage of a religious freedom analysis, an individual advancing an issue premised upon a freedom of religion claim must show the court that (1) he or she has a practice or belief, having a nexus with religion, which calls for a particular line of conduct, either by being objectively or subjectively obligatory or customary, or by, in general, subjectively engendering a personal connection with the divine or with the subject or object of an individual’s spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials; and (2) he or she is sincere in his or her belief. Only then will freedom of religion be triggered.

55Applying these principles to this case, what I have to determine is not the consistency of the applicant’s beliefs with Roman Catholic doctrine, but rather whether the views expressed in his answer were an expression of religious belief and, if so, whether that belief was sincerely held.

What Did the Applicant Say?

56The evidence about what the applicant said when asked his views on Canada’s overseas involvement is uncontradicted. He told the panel that his religious beliefs are that war and killing are wrong and that this belief led him to conclude that he could not support Canada’s foreign military engagement. The applicant made the nexus between his religious beliefs and his answer explicit, as he linked his answer to his religious faith and only to his religious faith, not to any other belief system or ideology or to any other consideration. As such, what he communicated to the interview panel was a clear expression of his religious belief.

Is His Belief Sincerely Held?

57At two points during the hearing the respondent attempted to show that the applicant’s beliefs were not sincerely held.

58First, the respondent suggested to the applicant during cross-examination that he furnished the answer about his religious beliefs in order to deliberately lay the groundwork for a later complaint about discrimination. I assume from this that the respondent wants me to draw the inference that the applicant does not really hold the religious beliefs he professes, but is only saying so in order to pursue this Application. In support of this the respondent appeared to rely on the fact that after the applicant gave his answer to the initial question, he was invited to expand on his answer but refused to do so.

59The applicant denied that he had gone into the interview with the intent of manufacturing a claim of discrimination. I believe him to be telling the truth because there is no evidence to support a theory that he knew in advance that he would be asked a question about Canada’s involvement overseas. In addition, there is no evidence that at the point he was asked to elaborate on his answer that he understood that what he had just said would be fatal to his success in the interview. The interviewers did not indicate to him that they did not understand what he had just told them. They also did not explain why they might want him to elaborate on his answer.

60Later, at the conclusion of the applicant’s evidence the respondent argued that the Application should be dismissed as having no reasonable prospect of success. As part of that argument the respondent contended that I should find that the applicant’s religious beliefs are insincere because he was willing to work at the site of the customer department, despite being opposed to the department’s support of Canada’s international military engagements. The applicant’s willingness to sacrifice his ethical principles for a small hourly wage increase demonstrates how insincerely those principles are held. Although the respondent did not renew this argument at the conclusion of the hearing, I think I should address it.

61The applicant explained why he did not think that working at the customer department would have put him in conflict with his conviction that war is wrong in all circumstances. He draws a distinction between his privately held views and any outward expression of those views that would have made it impossible to do his job as a Commissionaire. In cross-examination he stated:

I was comfortable doing the duties entrusted to me, knowing that I would not be taking part in any other way in what I objected to…this was a chance to earn more and move up to a place that I wanted to be.

62The respondent asked him whether he understood that his answer gave the respondent a basis for concluding that he would not meet the requirement of loyalty. The applicant’s response was:

I don’t understand that my answer was a reason for them to reject me. I am serious about my beliefs and they are important to me. I don’t feel any compulsion to work against the client’s interests. I object to what the client does but I don’t understand that based on the answer I gave that the client would be concerned.

63There is no evidence to suggest that the applicant did not sincerely hold this view of the relationship between his beliefs and the demands of the job of a Commissionaire at the customer department. Moreover, it is consistent with his later conduct in accepting an assignment to work as a Commissionaire at DND, a department largely if not completely focused on preparing for military activity, including engagement overseas. In relation to the applicant’s views on the morality of war, there is nothing I can see that distinguishes the mandate and activities of DND from those of the customer department. Yet the respondent did not challenge the applicant on why he accepted an assignment to work at that department.

64Cross-examination did not expose any internal contradictions in the applicant’s logic and there is also no extrinsic evidence to support a conclusion that the applicant was insincere in explaining his thinking. In light of this I accept that the applicant sincerely believed that he could have both maintained his principles and done his duty had he ever been assigned to work at the customer department.

65The instances relied on by the respondent do not support a finding that the applicant is insincere in holding his religious beliefs. I find that the applicant sincerely holds religious views, and that these views include a belief that war is not justifiable. As a result I conclude that his answer to the interview question was an expression of creed within the meaning of the Code.

Was Creed a Factor in the Decision to Disqualify the Applicant?

66In order to find discrimination I have to be satisfied that the applicant is a member of a Code-protected group, that he was subject to adverse treatment and that his creed was a factor in that adverse treatment (see Peel Law Association v. Pieters, 2013 ONCA 396 (“Peel”) at para. 126).

67As I explain above, I have determined that the applicant has a sincerely held religious belief. Further, it is not contested that the applicant was subjected to adverse treatment in that his answer to the interview question led to him being disqualified from any further consideration in the respondent’s screening process and the customer department’s consideration for security clearance. What remains at issue is whether his creed was a factor in the decision to disqualify him.

68The applicant asserts that his statement that he does not support Canada’s military involvement overseas cannot be separated from his explanation as to why he holds that opinion. As they are inextricably linked, the decision of the interview panel to disqualify him based on his answer was a decision in which his creed was a factor. The respondent argues the opposite: once the applicant made it clear that he did not support overseas military engagement, the interview was effectively over. Why the applicant takes that position is immaterial.

69It may well be the case that the respondent could have demonstrated its position on a balance of probabilities, but it did not call any evidence to do so.

70In Peel the Court of Appeal explains the distinction between the evidential burden on a respondent in rebutting a prima facie case of discrimination, and the burden of proof which a respondent carries when putting forward a statutory defence under the Code. Where a respondent does not put forward a statutory defence, the respondent may, but is not obliged to call evidence to show its action is not discriminatory. Whether it does so or not is a tactical decision. The Court of Appeal explains at paras. 72-73:

…The question whether a prohibited ground is a factor in the adverse treatment is a difficult one for the applicant. Respondents are uniquely positioned to know why they refused an application for a job or asked a person for identification. In race cases especially, the outcome depends on the respondents’ state of mind, which cannot be directly observed and must almost always be inferred from circumstantial evidence. The respondents’ evidence is often essential to accurately determining what happened and what the reasons for a decision or action were.

In discrimination cases as in medical malpractice cases, the law, while maintaining the burden of proof on the applicant, provides respondents with good reason to call evidence. Relatively “little affirmative evidence” is required before the inference of discrimination is permitted. And the standard of proof requires only that the inference be more probable than not. Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing.

71Echoing the language of the Court of Appeal above, in this case the respondent was uniquely positioned to know why the applicant was disqualified during the interview. Bearing in mind that the applicant needs to advance “relatively little affirmative evidence” in such cases, and in the absence of any evidence to the contrary I find that his creed was a factor in the decision not to allow him to progress any further in the respondent’s selection process. The question that produced his statement about his religious beliefs was the only question he was asked that required a substantive answer. The other questions – whether he belonged to any groups or associations and whether he intended to pursue academic studies – were yes/no questions.

72The fact that the applicant was asked to elaborate on his answer (although he declined to do so) suggests that there was something about the content of his answer that concerned the panel. Once he explained that he did not support Canada’s overseas engagement, the rest of the content of the applicant’s answer only had to do with his religious belief. In my view the fact that the panel then invited the applicant to explain his answer undermines the respondent’s argument that the panel only cared about whether the applicant did or did not support Canada’s overseas engagement, and not why. If the panel really did not care about the applicant’s underlying motivation, then why did it bother to ask him to elaborate?

73Further, when the applicant pressed the panel as to why he was disqualified he was told it was because of this answer. The applicant’s uncontradicted evidence is that the panel did not explain its thinking any further than that. For example, it did not differentiate between the applicant’s refusal to support Canada’s overseas engagement and his underlying reasons for taking that position. Perhaps the panel did have such a distinction in mind, but it is not for me to speculate along those lines, it is for the respondent to show that is so. Again echoing the language of the Court of Appeal, in this case the respondent had a tactical choice and it opted not to explain its thinking. The applicant’s evidence about how the interview proceeded – which was not challenged – suggests, on a balance of probabilities, that creed was a factor in the decision to disqualify him from the selection process. For these reasons I conclude that the respondent’s decision was discriminatory.

Was There Any Reprisal?

74In filing his Application the applicant also alleged reprisal. He led no evidence of reprisal at the hearing. Following the interview the applicant made no complaint to the respondent about his treatment. The Application was filed well after he had left the respondent’s employment and the respondent only became aware of the applicant’s concerns when it received the Application. This timing, which shows that the respondent was unaware of any allegations of a breach of the applicant’s human rights while he remained an employee, indicates that no reprisal occurred. This allegation is dismissed.

what is the appropriate remedy?

75Section 45.2(1) of the Code provides that:

… the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

3. An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.

76In his Application the applicant seeks monetary compensation of $1.2 million for “lost career opportunities and pain and suffering, as well as an order from the Tribunal that the respondent is to avoid posing “discriminatory opinion questions” in future selection processes.

No Loss of Income

77The applicant argued that his disqualification from the respondent’s selection process amounted to a denial of a Top Secret security clearance and a loss of the increased salary that goes with it. He maintained that he would now never be granted a Top Secret clearance and this has had the impact of reducing his income over the course of his career. He did not quantify what he believes this loss to be.

78I do not accept that the applicant has suffered any loss of past, present or future income as a result of the respondent’s actions.

79First, after the interview the applicant continued to work for the respondent at the same rate of pay as before the interview. He did so until he changed jobs of his own accord.

80Second, disqualification of the applicant at the interview led to the loss of an opportunity to be put in a pool of candidates that in turn would be considered for a position that paid slightly more than the applicant’s position. To have obtained that position he would first have had to succeeded in the respondent’s process and then been cleared by the Government of Canada.

81In Ravi DeSouza v. 1469328 Ontario Inc., 2008 HRTO 23, the Tribunal reviewed two approaches to assessing compensation for lost opportunity, without endorsing either:

In cases of the loss of opportunity to be considered for employment, the Tribunal must compensate for the lost opportunity to compete for a position in a non-discriminatory fashion, while taking into account the fact that the applicant might not have obtained the position in any event (even absent any discrimination). In the federal jurisdiction, it has been suggested that if there is a serious possibility that the individual would have obtained the position, then there is loss that is capable of giving rise to an award of damages. The assessment of the amount of damages requires an assessment of the likelihood that the person would have obtained the position in any event (per Marceau J.A. in Canada (Attorney General) v. Morgan, 1991 CanLII 13184 (FCA), [1992] 2 F.C. 401 [21 C.H.R.R. D/87] (C.A.); Chopra v. Canada (Attorney General) (No. 2), 2007 FCA 268, [2007] F.C.J. No. 1134 (QL) [reported 61 C.H.R.R. D/248] (C.A.).

Another approach is to assess, on a balance of probabilities, whether the complainant would have obtained the position. If not, then no special damages would flow. If so, then lost wages resulting from the lost employment would flow.

82Even applying the lesser test in this case, the applicant has not shown that, but for his answer to the interview question, there is a serious possibility that he would have obtained a Top Secret clearance.

83The unchallenged evidence of Mr. Britton is that 60% of interviewees do not succeed at the first stage. Thereafter, only about a third of the remaining 40% obtain a Top Secret clearance. Moreover, the actual granting of a Top Secret clearance is beyond the respondent’s control in any event, and there was no evidence before me as to how the applicant might have been assessed by the Government of Canada had he been recommended for consideration by the respondent. I find that the applicant’s claim is too remote to support a finding of any loss of income.

Compensation for Injury to Dignity, Feelings and Self-Respect

84In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal noted at paragraphs 53-54 that:

… injury to dignity, feelings, and self-respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.

…Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.

85I accept the applicant’s evidence that he found his disqualification from the interview process to be humiliating and demeaning. As he expressed it, he felt hurt to be treated in the same manner as an interviewee who would be disqualified because the panel was concerned about the interviewee’s association with a criminal organisation, such as a biker gang, or a perceived loyalty to a foreign state. His religious beliefs were put on a par with persons whose loyalty to Canada is suspect. In the absence of any explanation of the respondent’s conduct, I find that it was degrading to the applicant.

86At the same time, there is no evidence that the respondent’s conduct had any lasting effect on the applicant.

87In Qureshi v. G4S Security Services, 2009 HRTO 409 the Tribunal awarded compensation of $5,000 for injury to dignity in a case where the applicant was disqualified from a recruiting process on the basis of creed. In that case the respondent’s conduct was characterised as insensitive and inflexible. The panel noted that the respondent made remarks about the applicant’s religion that were offensive, although they were not intended to hurt the applicant.

88In Tearne v. Windsor (City), 2011 HRTO 2294 the applicant was awarded compensation of $10,000 when he was disqualified from an employment process, but - unlike the facts here - in that case a conditional offer of employment had actually been extended to the applicant and then withdrawn for age-discriminatory reasons.

89In Kartuzova v. HMA Pharmacy Ltd., 2012 HRTO 328 the Tribunal found that the applicant was asked improper Code-related questions during a job interview. The Tribunal reviewed the amounts of compensation awarded in other similar cases. These range from $1,500 (Callaghan v. 1059711 Ontario Inc., 2012 HRTO 233) to $15,000 (Ontario Human Rights Commission v. Motsewetsho, 2003 HRTO 21), although damages at the higher end of the scale also involved sexual advances and sexual touching during the interview process. In Kartuzova the Tribunal made an award of $4,000. In Reiss v. CCH Canadian Ltd., 2013 HRTO 764 the Tribunal awarded $5,000 as compensation for an age-related disqualification of a job candidate.

90These cases provide useful guidance, although they deal with job selection processes that would result in the candidate either being offered a job or not. In this case the tainted interview was at least one step removed from the actual granting of the position. The applicant was not as close to his goal of a promotion as the applicants in the cases cited above. I further note that in this case there is no evidence that the respondent’s conduct was coloured by any malice toward the applicant. Having considered these decisions of the Tribunal, I am also mindful that awards of compensation should not be set so low as to amount to a licence fee for discrimination. I determine that in these circumstances an appropriate award for injury to dignity, feelings and self-respect is $5,000.

Non-Monetary Remedy

91Both before and after I issued a partial publication ban the respondent made clear that it was reluctant to call either member of the interview panel as a witness because it was concerned about the impact this could have on the current positions these individuals hold, which require Top Secret clearance. The respondent’s reticence stems from the fact that the applicant sought to publicise his case, including by contacting media outlets.

92As a result I did not hear their evidence, with the result that the applicant has succeeded in proving discrimination. However, having heard the limited evidence that I did, I am not satisfied that the respondent does not understand its Code obligations. Based on Mr. Britton’s testimony about how the respondent applies its complaints process and its harassment policy (which incorporates prohibitions on discrimination under the Code) I have no basis to conclude that the respondent does not take those obligations seriously. Accordingly, I do not see a need to issue any other order to promote compliance with the Code.

order

93The Application is allowed in part. The allegation of discrimination contrary to section 5 of the Code is allowed and the allegation of reprisal is dismissed.

94The respondent is to pay the applicant $5,000 as compensation for injury to dignity, feelings and self-respect within 30 days of the date of this Decision.

95Post-judgment interest is payable on any of the above amounts not paid to the applicant within 30 days of the date of this Decision, in accordance with the Court of Justice Act, R.S.O. 1990, c. C.43.

96The terms of the publication ban ordered in Interim Decision 2013 HRTO 1773 continue in effect.