Loss of Opportunity – PF Case

Human Rights: Damages: Lost Opportunity: Prima Facie Case

Test for a Prima Facie Case for Lost Opportunity

The original test for proving a prima facie case in a case asserting a remedy due to the denial of an opportunity to be hired or promoted came from a 1981 decision. 1

The conditions to be met, as then established, to make out a prima facie case were as follows:

  1. the applicant proves that he or she possesses the necessary qualifications for the position; and
  2. that needless to say, he or she was not hired for or promoted to the position; and
  3. the person who was hired for the position who was no better qualified than the complainant, but lacked the attribute on which the complainant based their human rights complaint. 2

This test was subsequently modified to reflect a fact situation in which the employer did not make an immediate hiring decision but continued to look for other candidates after rejecting the complainant who had met the qualifications for the vacancy. 3 A prima facia case was then made out as the employer continued to seek applicants with the complainant’s qualifications. It was determined that it was not necessary to show that a person no better qualified, yet lacking the distinctive feature, had been then hired.

Both these cases involved hiring as opposed to the denial of a promotion, which should not be a relevant distinction.

The critical issue which followed these cases was whether the above proposition in Shakes conclusively defined the test in this context. The case below is significant as it concluded that this was not the test. The Federal Court of Appeal in “Morris” ultimately determined that these two cases do not set out a mandatory test, but rather as merely “guide posts”. The applicant need not introduce evidence of the comparative qualifications of the successful candidate. This case reflects the law today.

Morris Tribunal

This issue of the denial of a promotion due to age was considered by the federal tribunal in 2001. 4 The issue raised was what evidence would be required to satisfy the prima facie test to prove the allegation that the complainant had been denied a promotion due to his age.

The essence of the case presented by Morris was that despite the very favourable recommendations that had received and his high score tests on his PER, his scores on his “potential” rating steadily decreased. This latter ranking was subjective and was one which disadvantaged older candidates.

It was determined that the qualifications of the successfully promoted persons in past years were not necessary for the applicant to create a prima facie case. As long as the evidence shows that such adverse treatment was a factor in denying the promotion, such a case had been made out and the burden to call affirmative evidence was put to the employer.

A complicating factor in the Tribunal decision in Morris was that the employer had not made disclosure to the applicant of comparable scores of the successful applicants on certain test scores on which the applicant had shown low scores. 5 This failure to make disclosure of the PERs material caused the Tribunal to discount the explanation offered by the employer in its defence and hence found in favour of Morris at the first level.

The tribunal referenced Singh v Statistics Canada for support for the proposition that while Shakes and Israeli are of assistance, they do not identify the elements of a prima facie case in every employment case. Referencing Singh:

In the Tribunal’s view both the Shakes and the Israeli tests serve as useful guides, and will be appropriate for direct application in many hiring or promotion cases. Neither test should, however, be automatically applied in a rigid or arbitrary fashion in every hiring or promotion case: rather the circumstances of each case should be considered to determine if the application of either of the tests, in whole or in part, is appropriate. Ultimately, the question will be whether the complainant has satisfied the O’Malley test, that is: if accepted, is the evidence before the Tribunal complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent?

The evidence had shown that Morris had not been promoted in each year in question, and that a minimum of one Warrant Officer had been promoted to Master Warrant Officer and that in 1993, at least sixteen Warrant Officers had been promoted. The tribunal stated that it was not necessary to know whether those promoted Warrant Officers were in fact qualified or of the same age as Morris in order to establish a prima facie case. As long as the evidence shows adverse treatment was a factor in the denial of the promotion, regardless of the skills and characteristics of the other candidates, a prima facie case is shown.

The authority for this proposition was a 1995 tribunal case in which there were no other candidates. .6

Federal Court First Review

The tribunal decision was set aside, 7 holding that comparative evidence of the qualifications of the successful candidate was required. 8

The employer then had successfully argued that the Shakes test required the Commission to show that a person younger and no better qualified than Morris had been given the promotion. This evidence was not before the tribunal. Simpson, J. stated:

In contrast, in this case, there were other candidates who were promoted and whose qualifications could be compared with those of the Complainant (the “Comparison Evidence”). Accordingly, it is my view that Comparison Evidence was required to establish a prima facie case of discrimination under section 7(b) of the Act.

Simpson, J. also decided that should she be wrong on the above issue, the employer had failed to show that the tribunal’s rejection of its explanation to defend the prima facie case was unwarranted. That is, she would have concluded that the evidence shown by the applicant was sufficient to shift the burden by showing a prima facie case.

Federal Court of Appeal

This decision was again appealed 9 which, in May of 2005, set aside the decision of Simpson J. and restored the award of the Tribunal. In effect, the Court of Appeal determined that Shakes and Israeli cases are but sign posts of what type of evidence may prove a prima facie case and are not cemented mandatory touch stones:

A “flexible legal test of a prima facie case is better able than more precise tests to advance the broad purpose underlying the Canadian Human Rights Act, namely, the elimination in the federal legislative sphere of discrimination from employment…”.

The FCA then determined that the evidence required to show a prima facie is one within the scope of the discretion of the specialized tribunal and not one to be reviewed by the court:

              …O’Malley provides the legal test of a prima facie case of discrimination under the Canadian Human Rights Act. Shakes and Israeli merely illustrate what evidence, if believed and not satisfactorily explained by the respondent, will suffice for the complainant to succeed in some employment contexts.

In other words, the legal definition of a prima facie case does not require the Commission to adduce any particular type of evidence to prove the facts necessary to establish that the complainant was the victim of a discriminatory practice as defined in the Act. Paragraph 7(b) requires only that a person was differentiated adversely on a prohibited ground in the course of employment. It is a question of mixed fact and law whether the evidence adduced in any given case is sufficient to prove adverse differentiation on a prohibited ground, if believed and not satisfactorily explained by the respondent.

This remains the generally accepted test of adverse treatment due to a human rights issue resulting in the loss of a promotion or denial of employment. 10

The synthesis of the case law today is as follows: 11

With respect to the Shakes test, the Tribunal in Nelson observed that Shakes has not been applied in every employment case, but has been recognized as being merely one example of the type of evidence that may, if believed and not satisfactorily explained by the respondents, lead to a finding of a violation of human rights legislation. See, for example, Morris v. Canada (Canadian Armed Forces), 2005 FCA 154 (CanLII), [2005] F.C.J. No. 731 (F.C.A.) 154.

Ironically, prior to the above FCA decision, the federal tribunal had come to the conclusion in a 1998 decision. As noted above, this decision was cited in the original tribunal decision. 12

Anecdotal Review

This issue and the above case were referenced in a case involving questions which were asked to those persons seeking membership in the B.C. Law Society which were inquisitive  of certain mental disorders, such being schizophrenia, paranoia, or a mood disorder described as a major affective illness, bipolar mood disorder, or manic depressive illness. The tribunal found the asking of such a question was a Code violation. 13

An early decision of the B.C. tribunal 14 considered the right of the employer to ask a candidate questions relating to the any past serious illness, injury or condition or had this person received compensation for such an injury. One might question why such questions would be asked, if the intended use of the answers was benign, as suggested and even accepted in the decision. The asking of such questions was found not to be adverse effect discrimination and no violation was found. This cannot be the law today, even absent a statutory provision as exists in Ontario.

Often a question may be put to a job applicant which addresses what is seemingly a neutral job requirement may produce a discriminatory result. For example, a question about loyalty to one’s country may result in an answer which reveals the religious code of the applicant as being opposed to the war effort in Afghanistan. 15 Similarly a question such as “are you prepared to work weekends” which mandates an exception based on religious grounds would be similarly offensive.

The Ontario code specifically deals with this issue by defining that the rights of the applicant in this context are infringed. 16

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Footnotes

  1. Shakes v Rex Pak Ltd. racial discrimination
  2. That is the person selected lacks the distinguishing human rights related feature, see 2012 decision of Kartuzova v HMA Pharmacy
  3. Israeli v Canadian Human Rights Commission 1983 4 CHRR D/1616; aff’d )
  4.   Morris v Canadian Armed Forces (Hajdis)
  5. referenced as “PER”
  6. Chander v. Department of National Health and Welfare [1995] at page 10, aff’d in Federal Court; The reliance on this decision was later set aside as in Chander there were no alternate candidates 
  7. in Federal Court, styled Canada (Attorney General) v Canada (Human Rights Commission)
  8. It was also held that the negative inference drawn by the Tribunal on the failure of the employer to produce relevant evidence could not be used to get past the gateway of a prima facie case.
  9. Federal Court of Appeal
  10. July 2008 Nelson v Lakehead; March 2010 Rafiz v Scotia Capital;
  11. from Rafiz
  12.   The Canadian Human Rights Tribunal in Singh v Statistics Canada (1998); affirmed Canada (A.G.) v. Singh (April 14, 2000) 
  13. Gichuru v Law Society of B.C.
  14. Then known as B.C. Council of Human Rights’ in Dhaliwal v Westcoast Cellufibre 
  15. Cybulski v Canadian Corp of Commissioners
  16. S. 11(1) Ontario Human Rights Code. The employer may show that the issue is nonetheless a reasonable and bona fide job requirement.