Human Rights Office

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Human Rights Office

Turner v. Canada Border Services Agency, 2014 CHRT 10 (CanLII)

Leading up to the 2014 case there were a number of important decisions which need to be outlined briefly.

Turner v. Canada Border Services Agency, 2010 CHRT 15 (CanLII)

In this decision Mr. Turner’s complaint was dismissed. In this case, although a prima facie case of discrimination was established on the prohibited grounds of age, race, national or ethnic origin, and colour, the Tribunal held that the employer had provided a reasonable explanation for Mr. Turner’s failure in job competitions.

Turner v. Canada (Attorney General), 2011 FC 767 (CanLII)

Mr. Turner’s application for judicial review is dismissed.

Turner v. Canada (Attorney General), 2012 FCA 159 (CanLII)

In this decision the Federal Court of Appeal overturned the Federal Court’s ruling and held that the tribunal had failed in examining whether Mr. Turner’s failure at the job competitions was due to perceived disability on the basis of weight. In addition, the Court of Appeal held that the Tribunal erred in failing to consider Mr. Turner’s intersecting or compounding grounds of discrimination. As a result of this decision this case was returned to the Tribunal for redetermination.

Summary: Turner v. Canada Border Services Agency, 2014 CHRT 10 (CanLII)

In this case, Mr. Turner alleges that the Canada Border Services Agency (CBSA) engaged in a discriminatory practice on the grounds of age, race, national or ethnic origin, colour and perceived disability in a matter related to employment. In 2003, Mr. Turner applied for two jobs with the CBSA (Victoria Competition 7003 and Vancouver Competition 1002). In relation to the Victoria job competition Mr. Turner was declared not qualified. In relation to the Vancouver job competition, Mr. Turner was declared ineligible following a first interview in the other process (i.e. Victoria). The first competition Mr. Turner applied for was based in Vancouver. This competition was for a Customs Inspector. Prior to applying for this position Mr. Turner had been working as a seasonal customs inspector. Mr. Turner had always received positive written performance reviews from his supervisor. In addition to the regular job requirements for this position there was a provision which stated “applicants who have been interviewed for this position since January 1, 2002 will not be eligible for this process” (para 5).  Because Mr. Turner had not interviewed for a customs inspector position in Vancouver, he thought he would be eligible for this competition. After the first interview, as part of the Vancouver competition, one of the members of the interview panel recognized Mr. Turner as having been unsuccessful in a previous customs inspector competition. Mr. Turner was subsequently disqualified from the competition because he was deemed ineligible because of the eligibility restrictions included in the posting. For this particular competition, Mr. Turner was the only candidate disqualified based on the eligibility restrictions.  In relation to the second competition (Victoria), Mr. Turner qualified for the competition but failed to pass the interview portion of the competition. The interview for this competition took place in December of 2003.  Prior to this interview, Mr. Turner’s supervisor sent an email to a number of members of the Canada Customs Revenue Agency management group outlining many of Mr. Turner’s perceived failings.  This email was sent out in October of 2003, approximately two months prior to Mr. Turner’s interview for the Victoria competition.  The email said things like Mr. Turner “sometimes shies away from the harder tasks, or knows the right procedure (a difficult task) to take but ask to supt [sic] hoping the supt [sic] will use their discretion and go the easier way. It was also pointed out how other inspectors had complained that he had left cash outs for others to do instead of doing them on his shift” (para 9). No other candidate was subject to such an email. Also problematic in this competition was the panel’s refusal to consider Mr. Turner’s positive employment record as a Customs Inspector. In this case it was determined that the CBSA discriminated against Mr. Turner  contrary to s. 7 and s. 10 of the Canadian Human Rights Act in relation to age, race and perceived disability of obesity.

Question to be Determined:

1. Did the respondent, the Canada Border Service Agency, discriminate against Mr. Turner contrary to s. 7 and s. 10 of the Canadian Human Rights Act (CHRA) in relation to age, race and perceived disability of obesity?

Findings:

1. Did the respondent, the Canada Border Service Agency, discriminate against Mr. Turner contrary to s. 7 and s. 10 of the Canadian Human Rights Act (CHRA) in relation to age, race and perceived disability of obesity?

YES

Reasoning:

1. In this case it was determined that Mr. Turner’s superintendents separately subjected him to discriminatory practices, in matters related to employment, on the ground of age, race and perceived disability of obesity. In particular, attention was paid to the way in which grounds of discrimination can intersect and compound. Relying on previous decisions it was stated:

Radek alerts a tribunal to be aware of the effect of compound discrimination in order to avoid relying on a single axis analysis. In that regard I am mindful that Mr. Turner’s complaint of discrimination is based on several grounds of discrimination, and that s. 3.1 of the CHRA specifically provides that a discriminatory practice includes a practice based on the effect of a combination of prohibited grounds, raising the likelihood that a primary ground of discrimination may be synergistically intersectional with, and compounded by, other less obvious grounds of discrimination (para 244).

I conclude that Mr. Turner’s complaint contains intersectional grounds of discrimination and that compounding discrimination did occur, and is a factor in my determination that the Respondent engaged in a discriminatory practice against Mr. Turner (para 245).

Vancouver Competition 1002:    

I conclude that the eligibility restriction was flawed by a latent ambiguity. It has two meanings - one broad, the other narrow. In its broad meaning, the restriction would   apply to applicants who had been interviewed anywhere in British Columbia and the Yukon since January 1, 2002, or for that matter anywhere in Canada, for the position of a PM-02 Customs Inspector. In its narrow or literal meaning the restriction would apply to applicants who had been interviewed in Vancouver since January 1, 2002, for the position as a PM-02 Customs Inspector, Vancouver International Airport District, Metro Vancouver District, Pacific Highway District (para 220).

I note that it was clearly established in cross-examination of Mr. Tarnawski that no other applicant for employment in the Vancouver Job Opportunity was subjected to the treatment meted out to Mr. Turner: he was the only candidate screened out on the basis of the eligibility restriction, even though a consistent application of that restriction would have screened out other candidates as well; and he was the only candidate to receive a post-interview letter stating that he had been disqualified (para 230).

Victoria Competition 7003:

I am persuaded by the argument of Mr. Champ, Counsel for Mr.Turner, that the Victoria superintendents perceived Mr. Turner to be lazy and dishonest, based on their stereotypical assessment of Mr. Turner who was older, obese, and black. On a balancing of probabilities Mr. Klassen’s two e-mails circulated to all the superintendents, including Mr. Baird and Catherine Pringle, establish this racist attitude of the Victoria   superintendents. No other candidate was the subject of a similar e-mail (para 213).  

Remedy:

Turner v. Canada Border Services Agency, 2015 CHRT 10 (CanLII)

In this case the following orders were made: compensation for lost wages; compensation for pain and suffering; compensation related to the fact that the discriminatory practices were engaged in willfully.

1. Pursuant to Section 53(2)(c): I order that the Respondent shall compensate the Complainant in the amount of $280,867.88 for wages that he was deprived of as a result of the Respondent’s discriminatory practice. Gross-up for Income Tax Liability: I direct the Respondent to pay the Complainant an additional amount sufficient to cover any additional tax liability resulting from this Order for compensation.

2. Pursuant to Section 53(2)(e): I order that the Respondent shall compensate the Complainant in the amount of $15,000.00 for pain and suffering that the Complainant experienced as a result of the Respondents discriminatory practice.

3. Pursuant to Section 53(3): By reason of my finding that the Respondent engaged in the discriminatory practice willfully, the Respondent shall compensate the Complainant in the amount of $15,000.00.

4. Each amount of compensation shall bear simple interest calculated as directed in my March 7, 2014 decision (para 21).