Mountie wins discrimination suit

RCMP discriminated against officer on the basis of marital status: tribunal

The Canadian Human Rights Tribunal has ordered the Royal Canadian Mounted Police to pay one of its officers compensation for the pain and suffering it caused.

The tribunal found the RCMP was guilty of discrimination based on marital status when it refused to promote and relocate Jacqueline Brown because of the accommodation that would be required for her husband, who is also a Mountie.

Brown, an officer working out of a British Columbia detachment, said she was passed over for promotion because of her sex and her marital status. The tribunal threw the sex discrimination claim out because there wasn’t enough evidence to back it up. But the marital status charge stuck.

Brown wrote the corporal’s exam in 1997 and scored in the top 10 per cent. She did not immediately apply for promotion for a variety of reasons. When she did apply she was ranked 47th on the list of candidates and applied for 37 positions, in order of preference. The RCMP chooses candidates primarily by the order they are ranked, which meant she should have received her first choice that none of the 46 ahead of her did not want. That didn’t happen.

She was repeatedly passed over — most notably on her 14th choice, when the position was awarded to a candidate who had ranked 96th in scoring, almost 50 positions below her.

She was given her 17th choice, a promotion in the same detachment she was already working in.

“This is unfathomable,” said Paul Groarke of the tribunal in his decision. “The prerogative of management to deny (her) one of the requested positions was exhausted long before it reached her 17th choice.”

The tribunal found this decision was driven more by costs — relocating an officer costs, on average, $36,000, the RCMP said — and the needs of the force rather than the legitimate concerns of the force’s promotion process.

The RCMP said it was hard to keep staff in the lower mainland area of B.C. — where Brown and her husband worked — because of the high cost of living. But in the tribunal’s eyes, no other mitigating factors applied — higher ranked candidates should get jobs before candidates ranked below them.

Groarke said management is entitled to some discretion in awarding positions, but that prerogative only extends so far and the qualifications of candidates must take precedence over other considerations.

“In my view, this is the positive side of the law of human rights,” he said. “It is not simply that employers are prohibited from discriminating against their employees in awarding promotions, it is also that they are obliged to respect the merit principle.”

While it was reasonable for the RCMP to consider moving costs and the need to accommodate her spouse, it could only take that argument so far, said Groake. “The force of such an argument dissipates as one works one’s way through the list. At some point in the process, it can no longer be sustained.”

The tribunal found it was very clear marital status was the major factor in the decision not to give Brown the promotion and transfer. Therefore the RCMP had breached the Canadian Human Rights Act and she was entitled to a remedy.

The tribunal broached the idea of forcing the RCMP to offer a written apology to Brown. Brown was upset, and took time off work, because she was stressed by the situation surrounding her promotion. The tribunal said that, in essence, this was the biggest factor in the case — Brown was looking to regain her dignity through the human rights complaint.

The tribunal said this is “exactly the kind of case that would seem to call for a corporate apology.” But the Federal Court’s earlier decision in Stevenson v. Canada (Security Intelligence Service) prevented the tribunal from ordering such an apology. (See sidebar below.)

The tribunal ordered the RCMP to provide her with another posting, preferably with the detachment in Saskatoon or Calgary and, as a matter of good faith, provide a position for her husband as well. The tribunal said Brown is entitled to compensation for pain and suffering. She had difficulty testifying and still feels an enormous sense of betrayal. Her emotional, psychological and physical well-being have all been affected by the dispute. She lost confidence and suffered from depression and her marriage and family suffered as a result.

It did not set damages for pain and suffering, waiting to hear from both parties on what the amount should be while retaining jurisdiction.

For more information see:

Brown v. Royal Canadian Mounted Police, 2004 CarswellNat 503, 2004 CHRT 5 (Can. Human Rights Trib.)

Why tribunals can’t order apologies

The case of Stevenson v. Canada (Security Intelligence Service) essentially put an end to the ability of human rights tribunals to order employers to apologize to employees.

In Stevenson, an appeal of a Canadian Human Rights Tribunal decision heard by the Federal Court of Canada Trial Division, the court ruled the tribunal exceeded its jurisdiction by ordering the director of CSIS to write a letter of apology to John Stevenson.

Stevenson was accused by CSIS, and later exonerated, of leaking confidential information.

The court ruled there is no legislative provision that gives the tribunal jurisdiction to extract a coerced apology from individuals or institutions.

The court also cited the case of R. v. Northwest Territories Power Corp. where the Northwest Territories Supreme Court overturned a sentence imposed against the electrical utility which required it to publish a public apology in a form dictated by the sentencing judge.

In that case Justice de Weerdt said such an apology had little value because it is “plainly no more than a reluctant concession to an opponent.” He also said it is “seen by the offender, and no doubt by others, as a form of punishment and not contrition.”

For more information see:

Stevenson v. Canada (Security Intelligence Service), 2003 CarswellNat 919 (Fed. T.D.)

R. v. Northwest Territories Power Corp., 1990 CarswellNWT 5 (N.W.T. S.C.)

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