The FCA Finds Racial Discrimination By The RCMP In Tahmourpour v. Canada (AG)

Iranian-born Canadian Ali Tahmourpour has finally found success with respect to his discrimination complaint at the Federal Court of Appeal (2010 FCA 192). Last week, a panel of three justices decided that, ten years ago, Tahmourpour was dismissed from the Royal Canadian Mounted Police (“RCMP”) as a result of of racial and religious discrimination. Tahmourpour will now be permitted to re-enroll in the RCMP and will also receive substantial damages, including lost salary commensurate with potential promotions, pain and suffering and special compensation.

Background

In July of 1999, Ali Tahmourpour began training at the RCMP Training Academy in Regina, Saskatchewan. Shortly after, Tahmourpour allegedly suffered discrimination after requesting to wear a religious pendant during physical education (where no jewelery was allowed).  His leader, Sergeant Hebert, in a derogatory manner, announced to the class that Tahmourpour was an exception to this rule and would be allowed to wear the necklace.  In addition, a Corporal Boyer allegedly discriminated against him based on ethnic origin by commenting on Tahmourpour’s Persian signature style, and was verbally abusive and hostile towards Tahmourpour.

A performance evaluation was conducted on September 8, 1999 outlining communication deficiencies, which Tahmourpour attributed to discriminatory treatment he received during training.   An incident where Tahmourpour’s pistol was improperly cleaned was also referenced in the evaluation, which Tahmourpour challenged, citing that Corporal Boyer’s assessment was flawed due to the Corporal’s prejudice against Tahmourpour’s ethnicity and religion.

Shortly after, Tahmourpour’s training contract was terminated. In December of 2009, a recommendation was made that he not be permitted to re-enrol in RCMP training.

Procedural History

In 2001, Tahmourpour filed a complaint with the Canadian Human Rights Commission against the RCMP, alleging violations of sections 7 and 14 of the Canadian Human Rights Act. (“CHRA”)

The relevant sections of the CHRA state:

7.  It is a discriminatory practice, directly or indirectly,
(a)    to refuse to employ or continue to employ any individual, or
(b)   in the course of employment, to differentiate adversely in relation to an employee
on a prohibited ground of discrimination.

15. It is a discriminatory practice,
(a)    in matters related to employment,
to harass an individual on a prohibited ground of discrimination.

Tahmourpour’s complaint resulted in a hearing before the Canadian Human Rights Tribunal (”CHRT”) in 2007. The Tribunal concluded that he had experienced adverse discrimination, and ordered that the RCMP take remedial action. On appeal to the Federal Court for judicial review, the court set aside the order of the CHRT, referring the complaint back to the CHRT for a re-hearing. The case at hand dealt with Tahmourpour’s appeal of that judgment.

The Federal Court of Appeal Disagrees with the Federal Court

At the Federal Court (2009 FC 1009), Zinn J. found that the complaint rested on Tahmourpour’s feelings, stating that, “A finding of discrimination must require more than just a complainant’s own perception that he has been identified as different.” Tahmourpour contended the Federal Court judge erred in coming to this conclusion, citing multiple reasons in his submission.  For this post, I focus on two.

1)      The FCA Held That The Federal Court Used the Improper Standard of Review

Tahmourpour argued that the judge erred by relying on Dunsmuir v. New Brunswick, 2008 SCC 9 as authority for the proposition that the standard of review for CHRT decisions is reasonableness for findings of fact, and correctness for questions of law. Sharlow J.A., writing for an unanimous Federal Court of Appeal, disagreed, stating that most elements of a CHRT decision (including questions of law) are judged on the standard of reasonableness – Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63.  Though it was not explicitly written in her reasons, Sharlow J.A. in fact reconciled her decision with Dunsmuir, which supports the proposition that a flexible and pragmatic approach may be taken with questions relating to the appropriate standard of review.

The court also reiterated that the role of the court, where a judge has not chosen the correct standard of review, is to consider an application de novo. (Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226).

2)      The FCA Confirmed The Test For Adverse Differential Treatment

This ground of appeal stemmed from Tahmourpour’s assertion that he suffered adverse discrimination  from a  remark made about his religious pendant during physical education training. Tahmourpour claimed differential treatment occurred then, as well as for days after the incident. The court was tasked with considering how “adverse discrimination” is established. At the Federal Court, Zinn J. held that, absent evidence that Tahmourpour was treated differently as a result of the announcement, no adverse differential treatment could be established. Zinn J.’s conclusion was based on an understanding that the complaint was substantiated solely by Tahmourpour’s perception he had been treated differently. Sharlow J.A. disagreed, stating that a contextual approach was required to determinations of adverse discrimination.

The contextual approach set down by Sharlow J.A. requires a claimant’s perception of differential treatment to be considered in light of the factual context. These contextual factors are considered and compared to the claimant’s subjective perception of differential treatment. The judge took into account:

1. The RCMP Dress and Hygiene Instructions
2. The fact the announcement was made at the first training session
3. The fact it resulted in Mr. Tahmourpour being immediately singled out from the other cadets
4. The fact it resulted in Mr. Tahmourpour being questioned, uncomfortably, over a couple of days, about his religious practices
5. A RCMP Sergeant admission that it would have been better to publicly inform cadets about the rule and exceptions without mentioning any names.

After adopting this contextual approach, Sharlow J.A. stated, “I conclude that it was reasonable for the Tribunal to conclude, as it did, that Mr. Tahmourpour’s complaint about Sergeant Hebert’s announcement was substantiated. I would allow the appeal on this issue.”

By the court’s own admission, this ground of appeal was “minor” in comparison to the rest of Tahmourpour’s complaint. On its own, this ground would not have justified a remedy apart from altering the RCMP training protocol. However, regardless of the relatively unimportant status of this ground of appeal in the entire decision, I am concerned this specific issue may leave the public confused as to the rules surrounding human rights complaints. While it was appropriate for the judge to use a contextual approach, the decision does not outline if each factor should be weighted equally, or what might be done in the case of conflicting contextual factors.

In complaints like the ones in question, it would be useful to have a more in-depth, clear description outlining the ideal use of a contextual approach. In my opinion, the factor where Tahmourpour stated he was singled out and questioned by fellow cadets would, ideally, be weighted more heavily.

But, what if a contextual factor is unsubstantiated?

I am left wondering what the appropriate action is if one of the contextual factors in the analysis lacks supporting evidence, as it did in this case.  By his own admission at the CHRT, Tahmourpour was unable to present evidence from fellow trainees that he was treated differently after the fact (Factor number 4, see above).  While the CHRT decision explored the possibility that Tahmourpour may have been questioned about his religion by other cadets, no evidence apart from his own testimony was presented that he was made uncomfortable by fellow trainees. Does that mean this factor was (and should be) weighted less heavily?  Or, did the court consider his lone testimony sufficient? It would be helpful to have guidance in matters such as these.

Conclusion

The Federal Court of Appeal should have provided a more in-depth account of their reasoning with respect to adopting a contextual approach to allegations of adverse differential treatment. No doubt this is due to their opinion that the incident in question was not a significant ground of appeal. However, the rest of the reasoning’s made a clear case as to why Tahmourpour did receive discriminatory treatment and will act as a convincing warning to employers in stereotypically “tough” professions to tread carefully when it comes to characteristics such as race and religion.