Administrative law – Decisions of administrative tribunals – Human Rights Commission – Human rights complaints – Discrimination – Race – Judicial review – Standard of review – Reasonableness simpliciter – Evidence
Khiamal v. Canada (Canadian Human Rights Commission),  F.C.J. No. 612, Federal Court, May 12, 2009, Mandamin J.
Khiamal (the “Applicant”) is a man of South Asian descent and worked for Greyhound for 22 years. During the last period of his employment he worked as a lead hand. The lead hand is similar to a foreman position in that it involves supervising other mechanics.
In July 2002, the Applicant applied for a posted position of Night Shift Maintenance Foreman (“Foreman”). He was interviewed by the Maintenance Manager (the “Manager”) and another person. The position was awarded to another candidate who was not a minority and who had significantly less seniority than the Applicant. The Applicant made a complaint to the Canadian Human Rights Tribunal.
The Applicant made several allegations of discriminatory conduct but his primary allegation was that Greyhound refused to hire him as the Foreman because of his race. The Tribunal heard evidence about the Applicant’s performance at his job. The Tribunal concluded that the Applicant showed a prima facie case of discrimination in that the seniority and job performance factors appeared to favour the Applicant. The Tribunal found that Greyhound successfully proved that the Applicant’s race was not the reason for him being rejected for the position.
Greyhound offered various reasons for the decision to choose the other candidate over the Applicant. The Tribunal heard evidence that the Manager was previously a friend of the Applicant’s until their relationship changed when the Manager became the Applicant’s supervisor. The Manager was one of the two people involved in the Applicant’s interview and the Tribunal accepted that the unfairness in the hiring decision was due to pre-existing animosity between the Applicant and the Manager. The Tribunal rejected the allegation that the hiring decision was impacted by the Applicant’s race.
The Applicant sought judicial review of the Tribunal’s decision. The Court considered whether the Tribunal erred in dismissing the Applicant’s complaint. The applicable standard of review was reasonableness because the issues of fact and law were intertwined and could not be easily separated.
The Court examined the evidence before the Tribunal and considered whether the Tribunal acted reasonably in concluding that the animosity between the Manager and the Applicant was the sole reason not to hire the Applicant.
The Applicant argued that the Tribunal ought to have considered whether race was a factor in the tension that developed between him and the Manager. Greyhound argued that the finding of animus is a finding of fact and therefore ought to be granted deference by the Court. The evidence was equivocal as to animus because there was evidence of specific clashes but not of a deteriorating relationship. The Court also noted that the Manager himself did not testify that he was hostile towards the Applicant. The Court concluded that the Tribunal’s conclusion was unreasonable in accepting that the animus was proven.
The Court then considered whether the Tribunal erred in concluding that there was a sufficient non-discriminatory explanation for the hiring decision. The Tribunal did not complete a full analysis of whether the Applicant’s race, national or ethnic origin, or colour was also a factor in the hiring decision in addition to the animus. Given the evidence before the Tribunal, it erred in failing to consider this question in light of the evidence before it.
The application for judicial review was successful. The matter was remitted back to the Tribunal for re-determination. The Court ordered that the re-determination also include a reconsideration of the other allegations of discrimination made by the Applicant.
This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at email@example.com or review his biography at http://www.harpergrey.com.
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