Citation: 2024 CHRT 109

Date: October 11, 2024

File No.: T2467/2420

Between:

Barbara Saldanha

Complainant

- and -

Canadian Human Rights Commission

Commission

- and -

Statistics Canada

Respondent

Decision

Member: Jennifer Khurana

I. OVERVIEW

[1] Barbara Saldanha, the Complainant, worked for Statistics Canada, the Respondent, from January 2004 until April 2017 as an interviewer employed by Statistical Survey Operations (SSO). Ms. Saldanha self-identifies as a visible minority of South Asian origin. After initially working in a Regional Office, Ms. Saldanha joined the Canadian Health Measures Survey (CHMS or ‘Survey’) in 2007 as a field interviewer. The CHMS was a mobile team of interviewers that conducted health interviews and surveys across Canada. Ms. Saldanha loved her work with the CHMS and things were going well when she began to report to a new Senior Interviewer (SI). Ms. Saldanha was then removed from the CHMS team and returned to her home region in 2016 following a decision to start using bilingual interviewers only on the Survey.

[2] Ms. Saldanha alleges that she experienced adverse differential treatment in employment on the grounds of race, colour and national and ethnic origin and that she was treated unjustly and unfairly compared to her white colleagues, contrary to sections 7(a) and (b) of the Canadian Human Rights Act (“the Act”). In particular, Ms. Saldanha alleges that she was unfairly targeted with respect to the application of various policies, that she was subject to discriminatory and inappropriate behaviour by her supervisor, and that when the CHMS switched to a bilingual team, her removal was a pretext for discrimination. Finally, Ms. Saldanha alleges Statistics Canada retaliated against her for filing a human rights complaint when she was not selected in a selection process for positions in her home region, effectively terminating her employment with Statistics Canada.

[3] Statistics Canada denies the allegations and says that Ms. Saldanha is a frustrated employee who did not get along with her supervisor and assumed that all managerial decisions she did not like targeted her personally. It argues that interpersonal conflicts in a traveling team of colleagues who spend a lot of time together are bound to occur, but that none of these challenges had any link to discrimination or a protected characteristic under the Act. It says that running the CHMS involved significant planning, time and resources, and that operational decisions had to be made, including changes to the staffing structure. None of those decisions had to do with Ms. Saldanha’s race, colour or ethnicity. Statistics Canada also denies that the non-renewal of Ms. Saldanha’s term employment was orchestrated in retaliation for her human rights complaint. It says there is no evidence to support Ms. Saldanha’s claim that anyone involved in the selection process knew about her human rights complaint.

[4] The Commission is a party to the proceedings and acts in the public interest. It did not participate at the hearing.

[5] Ms. Saldanha is an intelligent, articulate woman who represented herself admirably throughout these proceedings. My findings do not take away from her skills and experience as an interviewer, which were recognised by her employer given the length of her employment and the evidence I heard about her performance. But on the evidence before me and the law I am bound to apply, I do not find that she has met the test for discrimination or retaliation under the Act.

II. DECISION

[6] Ms. Saldanha’s complaint is dismissed. She has not established that it was more likely than not that Statistics Canada subjected her to adverse differentiation at least in part due to her race, colour or national and/or ethnic origin, nor that she was retaliated against for filing a human rights complaint. Ms. Saldanha is not entitled to any remedy under the Act.

III. CONTEXT

A. The Structure of the SSO and the CHMS

[7] The SSO is a distinct organization responsible for carrying out the collection of survey data for statistical programs throughout Canada. It plays a supporting role for Statistics Canada but is listed as a separate agency under Schedule V of the Financial Administration Act.

[8] Within the SSO, there are two levels of employees: interviewers and SIs. SIs are responsible for day-to-day supervision of other interviewers, including training, assignment of work, performance evaluation and approval of leave requests. All SSO interviewers are paid on an hourly basis and have fluctuating workload levels, depending on the nature of assignments available. Collective agreements govern terms of employment for SSO interviewers. The SI reports to the Data Collection Manager (DCM), who reports to the Regional Program Manager, who ultimately reports to the Director for the Central Region, who in turn reports to the Director General for the Collection and Regional Services Branch.

[9] The CHMS was launched in 2007 and aims to collect important health information about Canadians to determine relationships between disease risk factors and health status. It is an example of one of many surveys to which SSO interviewers could be assigned. The CHMS includes two components: 1) the collection of direct health measures by medical experts (e.g. blood tests, weight); and 2) a household survey which collects information on how Canadians feel about their overall health. This case only relates to work performed in the second category, namely the collection of survey responses.

[10] The CHMS was staffed with existing, qualified SSO interviewers who would travel from one site to the next along with medical experts. SSO employees across Canada could respond to Expressions of Interest to indicate their desire to be considered for an assignment on the CHMS team. Over the years Expressions of Interest were solicited when additional team members were required, and criteria were adjusted to reflect the organisation’s operational needs. Accepting an assignment with the CHMS did not impact an interviewer’s substantive position or their existing terms of employment.

B. Ms. Saldanha’s work with Statistics Canada from 2003 until 2007

[11] Ms. Saldanha was hired in December 2003 to work as a Core Field Interviewer for the Toronto Regional Office in Scarborough, Ontario. She was initially trained to conduct a survey of housing spending but also worked on other assignments, sometimes taking on multiple surveys at a time. She conducted in-person interviews as well as telephone interviews and received a linguistic allowance because she could do interviews in multiple languages, including Hindi, Urdu and Arabic. Ms. Saldanha did not conduct any interviews in French. She enjoyed the work, received positive performance appraisals, and did not have any issues in the workplace.

C. The CHMS project: 2007-2009

[12] The CHMS went live on January 2, 2007 and was managed by the Collection Planning Division (CPMD) in Ottawa. The CHMS initially required interviewers to be bilingual and to meet the federal government language test level of “BBC”. Ms. Saldanha applied to be an interviewer after seeing an Expression of Interest but did not meet the language requirements. She continued working on various contracts through the Toronto Regional Office in Scarborough.

[13] Ms. Saldanha joined the CHMS during Cycle 1 of the project in the fall of 2007 when the CHMS waived the language requirement.

D. Ms. Saldanha’s grievances

[14] Ms. Saldanha filed a number of grievances regarding issues related to this complaint.

[15] On April 24, 2013, Ms. Saldanha grieved her removal from the CHMS team following a verbal dispute with her colleague in February 2013. On April 17, 2016, the Complainant grieved Statistics Canada’s decision not to renew her assignment to the CHMS team on the grounds that she was not bilingual. Ms. Saldanha grieved the Employer’s decision to not conduct a selection process and not to evaluate her language skills. She also grieved the use of what she believed was an expired and outdated qualifying list of candidates.

[16] On June 10, 2016, after she filed her human rights complaint, Ms. Saldanha filed a grievance alleging that she had experienced adverse differential treatment based on her race due to discriminatory intent and motive on the part of the SI on the CHMS team. On November 14, 2016, the Complainant filed a grievance alleging adverse differential treatment and lack of work assignments. She also requested that she be granted indeterminate status. On May 30, 2017, Ms. Saldanha grieved the non-renewal of her term contract and requested that she be immediately reinstated.

IV. PROCEDURAL AND EVIDENTIARY ISSUES

A. Conduct of the hearing

[17] At the outset of the hearing, I proposed asking Ms. Saldanha open-ended questions and allowing her to provide any additional evidence that was not addressed by my questions. The parties consented to my proposal. I also told the parties to intervene at any time if they had concerns about any of my questions. They did not raise any concerns with respect to my questions during Ms. Saldanha’s evidence or any time during the hearing.

[18] I did not require opening statements from the parties but gave them the opportunity to make a brief statement if they wished. I also asked for input about the issues in dispute and how I characterised them. I suggested that given that Ms. Saldanha made a number of allegations in her SOP, we structure these in three buckets: 1) allegations related to Ms. Doucette; 2) allegations regarding changes to the CHMS; and 3) allegations of retaliation related to the 2017 hiring process. The parties agreed. Ms. Saldanha confirmed that she was not alleging that she was terminated on the basis of a protected ground, but rather only that filing of her human rights complaint was a factor in her contract not being renewed in 2017.

[19] Ms. Saldanha intended to call three witnesses at the hearing, namely Ayesha Alagaratnam, Maria Lopez and Lynn Minor, all of whom were interviewers with the CHMS. Ms. Minor was summonsed to appear but did not testify. Statistics Canada called five witnesses, namely Catherine Puopolo, Marlene Mathon, Maryse Doucette, Geoff Bowlby and Karla Collins.

B. Ms. Minor’s request to be an interested party

[20] Ms. Saldanha intended to call Lynn Minor as a witness at the hearing. She submitted a summary of Ms. Minor’s proposed evidence in keeping with the Tribunal’s direction to the parties to submit detailed will-say statements in advance of the hearing. Shortly before the start of this hearing, Ms. Minor contacted the Tribunal and expressed concerns about testifying.

[21] When Ms. Minor appeared at the hearing, she said that Ms. Saldanha’s proceeding was being used to create a false narrative about the CHMS being converted to a bilingual programme and that there was a conflict between information being addressed in Ms. Saldanha’s case and another proceeding. She was prepared to read out her written statement but did not want to testify. I told Ms. Minor that the purpose of her being called as a witness was to hear her oral evidence, that Ms. Saldanha would ask her questions, and that Statistics Canada would have the opportunity to cross-examine her. I denied her request to speak to Statistics Canada’s legal counsel and representative. Ms. Minor later wrote to the Tribunal and said she needed to consult legal counsel as I had been dismissive of her concerns. Ms. Minor also made a request that the decision to issue her summons be reconsidered.

[22] I sought submissions from the parties about how to proceed. Statistics Canada advised they would object to an adjournment request, and to the admissibility of Ms. Minor’s written statement. Ms. Saldanha did not want to wait for Ms. Minor to seek legal counsel, nor did she want to seek an adjournment to try and have the summons enforced and chose to proceed without Ms. Minor’s oral evidence.

C. Ms. Minor’s request to be added as an interested party

[23] After her brief appearance at the hearing, Ms. Minor filed a motion to be added as an interested party to the proceedings and asked for the opportunity to submit a personal impact statement because she wanted the Tribunal to know about the negative experience she had while working for Statistics Canada, and that the issue is one of abuse of women in vulnerable and low-paying positions. Among other things, in her motion Ms. Minor referred to an alleged conflict related to the Respondent’s decision to transition the CHMS to the Regional office.

[24] The Tribunal has the jurisdiction to allow any interested party to intervene in regard to a complaint (section 50(1) of the Act and Rule 27(3) of the Tribunal’s Rules of Procedure). The onus is on the interested party applicant to demonstrate how their expertise will be of assistance in the determination of the issues. Interested party status will not be granted if it does not add significantly to the legal positions of the parties representing a similar viewpoint. The Tribunal must also take into account its responsibility under s.48.9(1) of the Act to conduct proceedings expeditiously and informally in determining the extent of an interested party’s participation. Adding an interested party can be disruptive of Tribunal proceedings and is not warranted simply because the moving party is interested in the outcome of a case or has a personal interest in the proceedings.

[25] The applicant for interested party status must show that:

a) its expertise will be of assistance to the Tribunal;

b) its involvement will add to the legal positions of the other parties; and

c) the proceeding will have an impact on the moving party’s interests.

Walden et al. v Attorney General of Canada, 2011 CHRT 19 at para. 23 [Walden].

[26] The Tribunal has held that a person or organization could be granted interested person status if they are impacted by the proceedings and could provide assistance to the Tribunal in determining the issues in dispute, and if the assistance adds a different perspective to the positions taken by the other parties, and furthers the Tribunal’s determination of the matter (First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 11 at para.3).

[27] Both Ms. Saldanha and Statistics Canada opposed Ms. Minor’s request. Both were concerned about the timing of this request, the delays that would result and the prejudice that would flow from Ms. Minor’s participation at this late stage in the proceeding. Statistics Canada argued that Ms. Minor does not offer any unique expertise that would enhance the Tribunal’s decision-making process. The parties also agreed that Ms. Minor could have given evidence and shared the facts outlined in her motion by testifying.

[28] After hearing from the parties on the request I issued an oral ruling dismissing the request. Although I had already ruled on the motion, Ms. Minor later sent the Tribunal a communication withdrawing documents she sent to the Tribunal without legal counsel, namely her motion to be added as an interested party, her request for reconsideration of the Tribunal’s issuance of a summons, the ‘impact statement’ she submitted, and any other correspondence she sent in after July 9, 2021.

[29] I did not find that granting Ms. Minor interested party status would have offered any particular expertise to the Tribunal or assisted me in my task, namely, to determine whether Statistics Canada infringed Ms. Saldanha’s rights under the Act and if so, the appropriate remedy for such infringement. I also found that the timing of her proposed addition as an interested party would prejudice and disrupt the rights of the parties. The Tribunal does not grant interested party status to an individual simply because they are personally interested in what is happening in the Tribunal’s proceedings. That status is not interchangeable with being a witness for one of the parties. This is Ms. Saldanha’s complaint and Ms. Minor could have testified if she wanted to be heard on evidence relevant to Ms. Saldanha’s complaint.

[30] Statistics Canada objected to the admissibility of Ms. Minor’s written statement in light of the fact that they could not cross-examine the witness. After hearing from the parties on this issue, I admitted Ms. Minor’s statement, but told the parties that I would hear submissions on the weight, if any, to be given to the statement as Ms. Minor’s evidence could not be challenged. I address this below with regard to my findings specific to each allegation.

D. Language of the proceeding

[31] The hearing was conducted in English. Statistics Canada called one witness, Ms. Doucette, who testified in French. The Tribunal arranged simultaneous interpretation which was available to all participants and observers who wished to use it.

E. Terminology

[32] Ms. Saldanha’s allegations are based on race, national or ethnic origin, and/or colour. I will refer to them collectively as “protected characteristics.” I am referring to individuals in this decision who are not Caucasian as racialized. I will refer to individuals who are Caucasian as White.

V. ISSUES

[33] I must determine the following issues:

1. Has Ms. Saldanha established a prima facie case of discrimination under section 7 of the Act because Statistics Canada subjected her to adverse differential treatment, at least in part due to her race, colour or national or ethnic origin?

a) If yes, has Statistics Canada established a valid justification for its otherwise discriminatory actions?

b) If Statistics Canada cannot establish a justification, what remedies should be awarded that flow from the discrimination?

2. Did Statistics Canada retaliate against Ms. Saldanha for filing a human rights complaint contrary to s. 14.1 of the Act by requiring her to compete for a position and ultimately not selecting her? If yes, what remedies should flow from the retaliation?

VI. REASONS AND ANALYSIS

A. Legal Framework

(i) Discrimination under s.7 of the Act

[34] Ms. Saldanha alleges discrimination in relation to employment based on race, colour or national and ethnic origin, contrary to section 7 of the Act. There are two parts to proving discrimination in the employment context.

[35] The complainant has the onus of proving the existence of a prima facie case. The use of the expression “prima facie discrimination” must not be seen as a relaxation of the complainant’s obligation to satisfy the Tribunal in accordance with the standard of proof on a balance of probabilities, which they must still meet (Québec (C.D.P.D.J) v. Bombardier Inc., 2015 SCC 39, at para 65 [Bombardier].

[36] To establish a prima facie case, the complainant has to prove that it is more likely than not that they meet all three parts of this test: 1) they had a characteristic protected from discrimination under the Act; 2) they experienced an adverse impact with respect to employment; and 3) the protected characteristic was a factor in the adverse impact (Moore v. B.C. (Education) 2012 SCC 61, at para 33).

[37] The protected characteristic does not have to be the only factor in the adverse treatment and no causal connection is required (see, for example, First Nations Child and Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada), 2016 CHRT 2 [FNCFCSC] at par. 25).

[38] In determining whether discrimination occurred, the Tribunal may consider the evidence of all parties. The respondent can present evidence to refute an allegation of prima facie discrimination, put forward a defence justifying the conduct under s.15 of the Act, or do both (see Bombardier at paras 64, 67, 81; Emmett v. Canada Revenue Agency, 2018 CHRT 23 at paras 61, 63-67).

[39] If the complainant establishes a prima facie case of discrimination, the respondent must justify its decision or conduct based on the exemptions set out in the Act or developed by the courts (Bombardier, supra, at para 37).

[40] Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices (Radek v. Henderson Development (Canada) Ltd. (2005 BCHRT 302 at para 482)). In determining whether an inference of racial discrimination is more probable than the explanation offered by the respondent, the Tribunal must be mindful of the nature of racial discrimination as it is understood today and that it will often be the product of learned attitudes and biases and often operates on an unconscious level (Shaw v. Phipps, 2010 ONSC 3884 at para 75). In a case where direct evidence of discrimination is absent, “it becomes necessary ... to infer discrimination from the conduct of the individual or individuals whose conduct is at issue. ... The conduct alleged to be discriminatory must be analyzed and scrutinized in the context of the situation in which it arises” (Basi v. Canadian National Railway Company, 1988 CanLII 108 (CHRT) at pages 10-16 [Basi]).

B. Retaliation

[41] Retaliation complaints are founded on the fact that a previous human rights complaint was filed, rather than on prohibited ground of discrimination (Iron v. Canoe Lake Cree First Nation, 2024 CHRT 81 at para 18). To make out a case of retaliation, the Complainant must show that:

a) they previously filed a human rights complaint under the Act;

b) they suffered an adverse impact;

c) filing the complaint was a factor in this adverse impact.

(First Nations Child & Family Caring Society of Canada et al. v. Attorney General of Canada (for the Minister of Indian and Northern Affairs Canada) 2015 CHRT 14, at paras 4 and 5)

[42] Proof of intention to retaliate is also not necessary, and the Tribunal may rely on a complainant’s reasonable perception that the act was retaliation for filing a human rights complaint (see Millbrook First Nation v. Tabor, 2016 FC 894 at paras 63-64). A respondent may present evidence to refute the allegation of prima facie retaliation, although their explanation must be reasonable and not a pretext.

VII. FINDINGS OF CREDIBILITY

[43] Much of this case turns on my findings of fact with regard to the alleged incidents and on my assessments of credibility. In some instances, witnesses presented starkly divergent accounts of what happened, and, where it was necessary to resolve a conflict in the evidence, I have set out my reasons below.

[44] In assessing credibility and reliability in this case, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354. When making credibility findings, I have tried to determine which account of the facts in relation to each issue is “in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable” in the circumstances.

[45] I have considered the following factors in assessing whether a witness’s testimony is in “harmony with the preponderance of the probabilities”:

• The internal consistency or inconsistency of evidence;

• The witness’s ability and/or capacity to apprehend and recollect;

• The witness’s opportunity and/or inclination to tailor evidence;

• The witness’s opportunity and/or inclination to embellish evidence;

• The existence of corroborative and/or confirmatory evidence;

• The motives of the witnesses and/or their relationship with the parties; and

• The failure to call or produce material evidence.

(see McWilliam v. Toronto Police Services Board, 2020 HRTO 574 (CanLII),at para 50, citing Shah v. George Brown College, 2009 HRTO 920 at paras 12‑14; Staniforth v. C.J. Liquid Waste Haulage Ltd., 2009 HRTO 717 at paras 35-36).

A. Issue 1: Has Ms. Saldanha established a prima facie case of discrimination under section 7 of the Act?

(i) Does Ms. Saldanha qualify for protection from discrimination because she has a protected characteristic?

[46] Yes. There is no dispute that Ms. Saldanha has a characteristic protected under the Act. The respondent did not argue that Ms. Saldanha does not fall with the ambit of the protections of the Act.

(ii) Did Ms. Saldanha suffer an adverse impact with respect to employment?

(iii) Was Ms. Saldanha’s race, colour or national and/or ethnic origin a factor in the adverse treatment?

[47] Ms. Saldanha has failed to meet the requirements of the second and/or third parts of the prima facie test for all the incidents or conduct she alleges were discriminatory. In some cases, I do not find that she has established that she suffered an adverse impact or adverse differential treatment. For those incidents where Ms. Saldanha has satisfied this part of the test, I do not find that she established a link with a protected characteristic. I have set out my findings below under each alleged incident of discrimination in analysing the second and third parts of the test.

[48] I have organised Ms. Saldanha’s allegations of discrimination into two broad categories. First, Ms. Saldanha makes several claims of adverse differential treatment while she was working with the CHMS and Ms. Doucette was her supervisor. She alleges that Ms. Doucette discriminated against racialized interviewers and gave preference to her White, Francophone colleagues. Second, Ms. Saldanha alleges that the CHMS was changed to a bilingual programme as a way to get rid of her, at least in part due to a protected characteristic.

B. ALLEGATIONS OF DISCRIMINATION WHILE ON THE CHMS TEAM

[49] For two years Ms. Saldanha enjoyed what she described as a dream job. Interviewers would travel across Canada, spending six weeks at a time interviewing Canadians in person. The team dynamic was a positive one and they would socialise at the hotel, have BBQs, and spend time together on weekends, sharing meals and traveling together. The interviewers enjoyed the benefits of travel reward programs and were even permitted to use their government rental vehicles to travel outside city limits to places like Banff. According to Ms. Saldanha the whole dynamic changed when the team began to report to Ms. Doucette who created a culture of exclusion. The team was no longer a cohesive unit.

[50] Witnesses for both parties testified about a number of challenges in the group. The following examples are indicative of the nature of problems I heard about: interviewers feeling excluded because they weren’t invited to social events; the holding of a “fake goodbye dinner”; interviewers gossiping about one another; the organization of poker games; interviewers receiving late night calls from a colleague needing to be picked up after a night of partying; interviewers who felt management was playing favourites; ‘rowdy’ behaviour and conversations about interviewers’ sex lives; interviewers claiming they did not receive new official Statistics Canada jackets; and interviewers allegedly abusing government policy on the use of rental vehicles and per diems.

[51] Statistics Canada argues that interpersonal relationships were strained in the CHMS team as would be expected in any diverse team working under unique conditions, but that the reasons for these tensions were entirely unrelated to discrimination.

[52] I agree. As set out below, I have no difficulty finding that Ms. Doucette and Ms. Saldanha disliked each other and that the team was replete with division and unhealthy group dynamics. But I am not persuaded that these challenges or any behaviour on the part of Ms. Doucette was connected to a protected characteristic. There were a number of reasons for the antipathy between Ms. Saldanha and Ms. Doucette, but the evidence does not support an inference as to a link to Ms. Saldanha’s race, colour or ethnicity.

[53] It is not my task to make findings on general allegations of unfairness, nor to pass judgment on the professionalism or conduct of federal public servants whose salaries are paid by taxpayers and who were purportedly conducting important surveys on the health of Canadians while traveling around Canada. It is neither my task to judge the managerial skills of Ms. Doucette or the DCM to whom she reported, or more broadly, the governance and management of the CHMS in the absence of a nexus with the Act. My focus is only on whether Ms. Saldanha experienced adverse differential treatment while working with the CHMS at least in part because of a protected characteristic.

[54] Marlene Mathon was the Assistant Chief of Health Surveys from 2011 to 2016. She managed the administration of the CHMS team, including their per diem and travel requests. The DCM reported to Ms. Mathon and Ms. Mathon in turn reported to Maureen Charron, the Chief of Health Surveys. Ms. Mathon described the traveling CHMS group as a “dysfunctional family.” She was aware that there was discord and favoritism in the group and that the DCM, Ms. Arrowsmith, had her clique. Some interviewers “partied” and liked to drink, and others did not. Ms. Mathon testified that she had been working with the DCM to correct some of the problematic behaviour in the group.

[55] I acknowledge that an individual can suffer exclusion from an employment activity or group social event at least in part because of a protected characteristic. The dynamic is further complicated by the fact that lines between the workday and interviewers’ off time were blurred because they were on the road together for weeks on end. I also acknowledge that it can be difficult to parse out culture and language from other factors involved in workplace dynamics to determine why a manager or supervisor has their “favourites.”

[56] But I am not persuaded that Ms. Saldana’s experiences as part of the group and the divisions among interviewers were caused by discriminatory conduct on the part of Ms. Doucette.

[57] Ms. Lopez, another interviewer on the team who had previously worked with Ms. Doucette, described being thrown into a “pit of snakes” when she joined the Survey. People were awful to one another. Ms. Lopez described those who were not close to Ms. Doucette as the “left-overs” or “rejects”, a group that included Ms. Saldanha and Ms. Alagaratnam, as well as white interviewers. The “left-overs” were tolerated but not invited to social outings and largely consisted of people who did not like to go out drinking. Ms. Doucette also acknowledged in her evidence that she had challenging relationships with Ms. Saldanha, Ms. Minor, Ms. Lopez and another interviewer, Ms. Gresham.

[58] I also find that Ms. Saldanha herself contributed to these fraught dynamics and to divisions in the group. Ms. Doucette testified that when she joined the CHMS, Ms. Saldanha told her that she would have a hard time integrating in the team as she was French‑speaking. Ms. Lopez also told Ms. Doucette that Ms. Saldanha called Ms. Doucette “White Trash” and spoke badly about the management of the team. Ms. Doucette also reported the comments to the DCM because she thought Ms. Saldanha was having a negative impact on the morale and functioning of the CHMS and addressed this with Ms. Saldanha. According to Ms. Doucette, Ms. Saldanha denied making the comments but continued disrespecting her authority and also had conflicts with a few of the other interviewers.

[59] Ms. Doucette acknowledged in her evidence that Ms. Saldanha achieved positive response rates as an interviewer. She generally gave Ms. Saldanha positive performance evaluations but said that the problem was Ms. Saldanha’s attitude. She wrote that “she must work on her relationships with supervisors and colleagues in order to improve her role on the CHMS team” and that Ms. Saldanha “does not accept constructive criticism which makes communication very difficult.” She also testified that she received a number of complaints from Survey respondents who said they did not like Ms. Saldanha’s approach or found her intimidating. She also received complaints from hotel managers at some sites because hotel staff found Ms. Saldanha’s requests demanding. Ms. Doucette testified that it was obvious Ms. Saldanha detested her, did not want to listen to her feedback and would refuse to admit her mistakes. Ms. Doucette maintains she was the one who was mistreated by Ms. Saldanha, starting with how she was greeted when she joined the CHMS.

[60] Several members of the CHMS team, including Ms. Saldanha, filed a workplace complaint against Ms. Doucette in March 2016. The complaint alleges, among other things, harassment and unfair and preferential treatment of team members. I agree with Statistics Canada that the group complaint does not substantiate Ms. Saldanha’s claim that Ms. Doucette targeted racialized interviewers. Had discrimination been a concern on the part of Ms. Saldanha, it would be reasonable to expect that there would be some mention of this in what is otherwise a quite detailed and extensive complaint. Yet the only mention of racial discrimination in the whole seven-page complaint relates to an incident involving Ms. Alagaratnam, who alleged that Ms. Doucette was racist when she accompanied her on an on interview and offered to conduct it in her place when the survey respondent initially refused to participate. None of the other allegations in the group complaint mention discrimination or a protected characteristic.

[61] Ms. Alagaratnam testified that she initially enjoyed working on the CHMS and traveling across Canada, but that she was subject to demeaning, belittling discriminatory treatment by Ms. Doucette and that the DCM would not do or say anything to stop this behaviour. Ms. Alagaratnam said Ms. Doucette created a toxic environment and she thought she was being observed more closely than others because she had a different skin colour and was not Francophone.

[62] Ms. Doucette testified that she believed she had a very positive relationship with Ms. Alagaratnam until she started reading the materials related to this complaint. Ms. Alagaratnam never raised any concerns with her or told her that she felt she was being treated differently compared to the rest of the team. She found Ms. Alagaratnam a hard-working interviewer and had nothing negative to say about her performance. Ms. Doucette also testified that Ms. Alagaratnam had complained to her that Ms. Saldanha would ask her to do things for her, and that she told her that she was not Ms. Saldanha’s lapdog. When asked about the incident mentioned in the group complaint, Ms. Doucette testified that after the survey respondent declined to participate in the survey, she offered to conduct the interview herself as this was a technique used to try to improve response rates. She denied that this had anything to do with race and says that this was standard practice and a commonly used technique.

[63] I accept Ms. Doucette’s evidence about Ms. Alagaratnam and that she had a legitimate non-discriminatory reason to act as she did in the observation. In her evidence about the unhealthy dynamics in the team, Ms. Doucette referred to Ms. Saldanha, Ms. Minor, Ms. Lopez and another interviewer she had problems with, but at no point raised Ms. Alagaratnam as a problem or as someone who impacted the group dynamics in a negative way. While Ms. Alagaratnam testified that she felt mistreated by Ms. Doucette because she was not White, she has not provided more than her own suspicions about what she believed Ms. Doucette thought about her. Throughout her evidence describing divisions in the group, Ms. Alagaratnam did not say these tensions were due to race or colour or ethnicity, but rather mentioned linguistic tensions between Anglophones and Francophones, and the fact that some interviewers liked to socialise and go drinking, whereas others kept to themselves and preferred to focus on work. Ms. Alagaratnam also testified that she complained about Ms. Doucette to Ms. Mathon but did not mention race or another discriminatory ground. In my view, Ms. Alagaratnam’s evidence does not support Ms. Saldanha’s allegations about Ms. Doucette creating divisions and problems at least in part because of discrimination.

[64] In sum, I accept Statistics Canada’s submission that interpersonal issues in the CHMS team were distinct from discrimination. I acknowledge that there is often no direct evidence to support allegations of racial discrimination, and that I must evaluate the alleged discriminatory conduct in the context of the situation in which it arises. But in my view, Ms. Saldanha has not presented more than her subjective belief and speculation to support her allegations of discrimination in the team. I cannot draw an inference that race or another protected characteristic was a factor in how the CHMS team operated in the absence of any material facts that are capable of supporting such a claim. Ms. Saldanha has failed to establish a link between the group dynamics and Ms. Doucette’s alleged discriminatory attitude.

C. Allegations of discriminatory comments

[65] Neither Ms. Saldanha nor Ms. Alagaratnam testified that Ms. Doucette made discriminatory comments to them or in their presence. Ms. Saldanha did testify that she once saw Ms. Doucette making a face when describing a Black interviewer.

[66] Ms. Lopez’s evidence about Ms. Doucette stands in stark contrast to that of Ms. Saldanha and Ms. Alagaratnam. According to Ms. Lopez, Ms. Doucette made a number of discriminatory comments and displayed an openly discriminatory attitude. For example, when the Survey was in Regina, the fridge in Ms. Lopez’s room broke and Ms. Doucette told her she wanted nothing to do with the manager of the hotel, because “it’s that Black woman.” According to Ms. Lopez, Ms. Doucette would openly admit that she had dislikes of certain cultures and ethnic groups. When asked if she heard Ms. Doucette make discriminatory comments about Ms. Saldanha, Ms. Lopez responded that she thought she may have, but she could not pinpoint any. She said she did hear Ms. Doucette make a comment that Ms. Saldanha and Ms. Alagaratnam were “penny pinchers” who did not waste a lot of money, that they were never well-dressed, and that is the way ‘they are’ or ‘it is in their culture’.

[67] Ms. Lopez also testified about an incident involving Ginette, another interviewer, who she allegedly heard making comments about Quebec’s “loi sur la laïcité”, and who said that “if they are not happy to follow our rules, they can go back to their countries.” According to Ms. Lopez, when she raised concerns about Ginette’s comments to Ms. Doucette, she was told not to bother about the incident and that “it’s just Ginette, she does not understand things.”

[68] At the end of her evidence, Ms. Lopez testified that she felt it was her duty to speak up when she sees discrimination. She also said that you could not have an SI saying things like “I finally got my all-White bilingual dream team.” In cross-examination, Ms. Lopez was asked why she did not mention this comment earlier in her evidence when explicitly asked about any discriminatory comments Ms. Doucette may have made, and why it would not be the first comment that came to mind. She said she misunderstood the question and thought she was being asked about comments made about Ms. Saldanha or Ms. Alagaratnam. Ms. Lopez also said that by the time Ms. Doucette made the “dream team” comment, Ms. Saldanha had already left the team.

[69] Ms. Doucette strongly denied making any of these comments or making a face about anyone. She also denied ever having referenced her desire for an “all-White dream team” or that she had informal discussions with Ms. Lopez about Ms. Saldanha or any other topic, except when Ms. Lopez came to her to say that Ms. Saldanha had called Ms. Doucette “White trash.” According to Ms. Doucette, Ms. Lopez was one of the four interviewers who wanted her gone and had it in for her and she was not someone she would talk to more than necessary.

[70] Ms. Doucette also testified that she spoke with both Ginette and Ms. Lopez about the incident and that Ginette had a different account of what happened. Ginette said she was speaking to a friend at a table, Ms. Lopez heard her say the word “Muslim” and proceeded to come over and intervene, such that the discussion got heated. Ms. Doucette ultimately decided not to discipline either woman but reported the incident to her supervisor, and it ended there.

[71] In the face of such divergent evidence about allegedly discriminatory comments and conduct, I prefer Ms. Doucette’s. I cannot reconcile the gravity of the comments Ms. Lopez said she heard, on several occasions, with the fact that she did not raise these concerns or mention them to anyone. Ms. Lopez’s evidence was direct and candid, and she testified about these incidents without hesitation. But in my view, it is not in keeping with the rest of Ms. Lopez’s evidence that she would simply keep quiet about such egregious comments and conduct. I have difficulty accepting that someone as articulate and engaged as Ms. Lopez, who, by her own account, would speak up when something was wrong or unfair or unjust, would not have raised concerns about discrimination on the part of Ms. Doucette. For example, Ms. Lopez did not hesitate to intervene and report Ginette making allegedly discriminatory comments at a breakfast table, even though she was not a party to that conversation. She also reported the ‘White Trash” comments to Ms. Doucette. She was the human rights contact person for the union and also testified that she followed up on behalf of the group complaint against Ms. Doucette when the interviewers did not receive a timely response. An email confirmed this and her communication on behalf of the group of interviewers.

[72] In my view, it is implausible that Ms. Lopez would not have reported any of the allegedly discriminatory comments made by Ms. Doucette, or that word would not have gotten around to Ms. Saldanha or others, particularly given the amount of inter-group discussion there was about all manner of things, from preferred hotel rooms to rental vehicles to invitations to social events. I do not believe that a group of interviewers who took the time to file a seven-page single-spaced group complaint that included concerns about the availability of new navy-blue Statistic Canada jackets, would omit mention of blatantly discriminatory comments.

[73] I have also considered that both Ms. Lopez and Ms. Doucette acknowledged that they did not like one another. To a large extent, preferring Ms. Lopez’s account also means accepting that Ms. Doucette would confide or share her thoughts about any number of things with Ms. Lopez, including what she thought about Ms. Saldanha. In my view, it is not credible that Ms. Doucette would feel comfortable speaking with Ms. Lopez in that way given the past they both acknowledged they had and their mutual disdain for one another. Ms. Lopez acknowledged that she was removed from the CHMS team in September 2016 for having made unprofessional comments about management. It is clear that there was significant tension between Ms. Doucette and Ms. Lopez.

[74] I found Ms. Doucette’s evidence straightforward, forthright, and credible. When asked why the Complainant’s witness would say she made discriminatory comments if it were not true, Ms. Doucette responded that she knows the people involved and that their accounts amount to a web of lies. She candidly said it would take nothing away from her life were Ms. Saldanha to be successful in this proceeding and receive a financial award, but that she believes for Ms. Saldanha to get a real sum of money, she needed to invent a number of allegations. Ms. Doucette was open about the fact that she did not care for Ms. Saldanha, Ms. Lopez and Ms. Minor, and that there were some interviewers she did not befriend or have good relationships with. I accept her evidence that she would not willingly speak to Ms. Lopez, share her views with her or otherwise confide in her.

[75] Finally, I have considered that Ms. Mathon and Ms. Puopolo, the Regional Program Manager for the Central Region, testified that neither Ms. Saldanha, nor any other interviewer, brought concerns about discrimination to their attention. Ms. Puopolo met with the interviewers when she travelled to sites. She also attended a training as they were preparing to take over the CHMS at the end of 2013. The interviewers were not a group that was afraid to speak out about issues that bothered them, or that would hold back from complaining about problems they believed were occurring in the CHMS team. The absence of any mention of discrimination is telling and does not support a finding that Ms. Doucette made those comments, as alleged by Ms. Lopez, nor of discrimination more broadly within the group as alleged by Ms. Saldanha.

[76] Finally, although Ms. Saldanha wanted to rely on Ms. Minor’s statement, I give it no weight. Ms. Minor makes serious allegations about Ms. Doucette but did not testify. The Tribunal did not hear her oral evidence, nor did the Respondent have the opportunity to test it. In addition, as the Respondent argues, Ms. Minor makes allegations about Ms. Doucette that were not made in the presence of Ms. Saldanha and are not included in Ms. Saldanha’s allegations as having contributed to her experience on the CHMS. The written statement is of limited value in light of the allegations before me. Further, I accept Statistics Canada’s argument that putting weight on Ms. Minor’s unsworn statement, which includes allegations that Ms. Doucette made explicitly discriminatory comments, without affording the Respondent the opportunity to cross-examine Ms. Minor and test that evidence and her credibility is unfair.

D. Allegations of more severe discipline

[77] Ms. Saldanha alleges that she was more harshly disciplined following an incident involving a former colleague, Stephanie Senecal. According to Ms. Saldanha, Ms. Doucette used the incident to have her removed from the CHMS.

[78] In or around February 2013 at a hotel in Calgary, Ms. Senecal and Ms. Saldanha got into a heated exchange in an elevator after breakfast. Both women were yelling and exchanged profanities. According to Ms. Doucette, the argument started over the topic of goat cheese. Ms. Saldanha disputes this and says she had a history with Ms. Senecal, who confronted her, wanting to know if she had complained about her to Ms. Charron, the Chief of Surveys. According to Ms. Saldanha, Ms. Senecal said: “I know it’s you who complained, you are a bitch”, and Ms. Saldanha responded: “You are the bigger bitch.”

[79] Both Ms. Doucette and Ms. Lopez testified that they heard the two women arguing in raised voices. Ms. Doucette said that she heard foul language, including “you fucking bitch” and “you whore.” She reported the incident to the DCM, who told her to document what happened and send the account to Ms. Charron. The Director for the Central Region sent both Ms. Saldanha and Ms. Senecal a letter advising them that their behaviour had been unprofessional.

[80] Regardless of the cause of the conflict, or the specifics of the profanities uttered, there is no dispute that both Ms. Saldanha and Ms. Senecal used foul and inappropriate language. Both received the same letter and both were removed from the Survey. There is also no dispute that Ms. Saldanha sent a letter to the Director in Ottawa following the incident, taking full responsibility for her part in the inappropriate behaviour, and explaining that she believed the situation resulted from an accumulation of stressful events.

[81] While Ms. Saldanha does not deny what occurred with Ms. Senecal and her part in it, she alleges that management’s response to the incident shows that she was subject to more severe discipline than Ms. Senecal, who she says regularly engaged in inappropriate conduct like calling other interviewers and asking them to pick her up in town after a night of partying. Ms. Saldanha also claims the incident was just a pretext for Ms. Doucette to get rid of her.

[82] I do not find the evidence supports Ms. Saldanha’s claims of more severe discipline nor that she has established a connection to a protected characteristic. While I heard evidence from both Ms. Saldanha and Respondent witnesses about Ms. Senecal blurring the lines of social life and acceptable professional behaviour, I do not find the discipline Ms. Saldanha received to be disproportionate to her conduct, even if it was the first such serious incident in her case. It was reasonable for the Director to give both women the identical letter in the circumstances, and Ms. Saldanha’s claims that she was treated more harshly because of a protected characteristic are speculative.

[83] Further, I do not find that Ms. Doucette had a role to play in determining what discipline should flow from the incident. Ms. Mathon testified that Ms. Doucette did not have anything to do with the disciplinary decision. Rather, Ms. Doucette reported the incident to her superior and the Director for Central Region issued the letter and made the final decision. I accept Ms. Doucette’s evidence that she had no idea what action was going to be taken and that she was surprised by how serious the consequences were, namely the removal of both women from the Survey.

[84] Finally, although both Ms. Saldanha and Ms. Senecal were removed following that cycle of the Survey, Ms. Saldanha was allowed to return in April 2015 after a period in 2014 when Statistics Canada decided to use bilingual interviewers when the Survey moved to several consecutive bilingual sites. This weakens Ms. Saldanha’s claim about the discriminatory nature of the disciplinary action taken, or even about the supposed influence Ms. Doucette had on her fate with the Survey. Ms. Senecal, on the other hand, was not brought back to the Survey and was placed elsewhere by Statistics Canada.

E. Hotel room assignment

[85] Ms. Saldanha alleges that when she arrived at the Pembroke site in January 2016, Ms. Doucette deliberately assigned her a room in the basement of the hotel, whereas the other interviewers had rooms on the third floor. Ms. Saldanha alleges this incident is another example of Ms. Doucette’s preferential treatment of White interviewers and her discriminatory conduct.

[86] According to Ms. Saldanha, she went to complain at the front desk but was told they were following Ms. Doucette’s instructions not to allow room changes and that they would have to wait and speak to the DCM, Ms. Arrowsmith. Ms. Saldanha stayed with Ms. Alagaratnam that night because she could not travel down the stairs with heavy suitcases to her assigned basement room. According to Ms. Saldanha, another interviewer was allowed to change her room without getting Ms. Doucette’s permission to do so.

[87] Ms. Doucette denied having chosen the rooms, which were assigned by the hotel, and said that in nine years working with the Survey, she did not get involved in selecting rooms for interviewers. She recalled that upon her arrival at the hotel, she went to inspect the room assigned to Ms. Saldanha, which was 5 steps down the stairs from the main level. She found it clean and acceptable. The DCM had advised that Ms. Saldanha was not permitted to change rooms and that she would have to wait until the following morning to make any changes. According to Ms. Doucette, Ms. Saldanha refused to go to her room. She eventually learned that the hotel did agree to change Ms. Saldanha’s room for her though she was not sure when. Another interviewer, Tracy Hamim, who is White, also had a room on the basement level and did not change rooms.

[88] Ms. Mathon testified that generally speaking, hotel staff assigned rooms randomly. According to the administration guide, interviewers were not permitted to change rooms other than for emergencies such as a flood or other extenuating circumstances to avoid hotel staff receiving multiple requests based on personal preference such as an interviewer complaining that a colleague had a better room than they did. Ms. Mathon referred to an email dated November 9, 2013, from CPMD to a hotel for a reservation. Among other things, the email states that “[t]he team is aware that any issue must be brought to my or [the DCM’s] attention, and not directly to your staff.” Ms. Mathon explained that this rule existed to avoid multiple requests being directed to hotel staff over minor issues or preferences.

[89] Ms. Saldanha has not made out a case of discrimination. Even if I accept that she suffered adverse treatment by having to spend a night in a room on the basement level of a hotel, she has provided no evidence to support a connection to a protected characteristic other than her own suspicions. A White interviewer had a room in the basement as well. Ms. Saldanha eventually changed rooms, and any claim that she was assigned the room by Ms. Doucette is at odds with the Respondent’s evidence, which I prefer on this point. Ms. Mathon, Ms. Doucette and Ms. Puopolo all testified that hotel arrangements were handled at the DCM level and above, and room assignments were made by hotel staff, which I accept. The email Ms. Mathon referenced also mentioned the policy regarding room assignments.

F. Allegations about travel policies, and rental vehicles

[90] Ms. Saldanha makes several allegations that Statistics Canada applied its rules and policies regarding travel in a discriminatory way that favoured Ms. Doucette her friends.

Use of rental cars and personal vehicles

[91] Ms. Saldanha alleges that the rules about the use of government vehicles were not applied in a fair and consistent way. First, she alleges that when the Survey was at the Windsor site, management prohibited interviewers from using rental vehicles beyond city limits because they suspected she and Ms. Alagaratnam were using their vehicles to travel home. Second, Ms. Saldanha alleges that she was unfairly prohibited from leaving her personal vehicle at the Orillia site, whereas other White interviewers were allowed to do so.

[92] Ms. Alagaratnam and Ms. Lopez also testified that the Windsor site was the first time they were required to provide their keys and mileage and were told they could not use their government-rented vehicles for personal use.

[93] Ms. Mathon testified management had been advised that some interviewers were thinking of going to Detroit while in Windsor, though she could not recall who she had heard that from or if in writing or orally. Ms. Mathon explained that travel to the United States was not permitted with a government vehicle.

[94] Ms. Doucette’s evidence was that Ms. Lopez told her that Ms. Saldanha was intending to take the rental car for a 12-hour trip, which she then reported to her supervisor. Ms. Charron, the Chief of Health Surveys, instructed Ms. Doucette to record the mileage on the team’s rental vehicles that weekend to ensure interviewers were not using rental vehicles for improper use. Ms. Doucette did so for all CHMS staff, including herself and the DCM.

[95] These changes about the use of government rentals were added to the CHMS administrative guide. All interviewers received a printout of the guidelines, effective March 25, 2013. Going forward, they were only permitted to make reasonable use of government rental vehicles to buy groceries and do some personal shopping as long as this was within the city limits of the Survey site.

[96] In my view, Ms. Saldanha has not established a prima facie case with regard to the allegations about the Windsor site, or more generally about the application of policies regarding the use of vehicles, including personal vehicles. Ms. Saldanha acknowledged that an email was sent to the entire team reminding them of the policy about not using rental vehicles beyond city limits. I accept that while the Windsor site may have been the first and only site where keys were taken and mileage recorded, those measures were implemented in response to concerns that interviewers were planning to travel to Detroit given its proximity to Windsor.

[97] Statistics Canada’s actions in recalling the fact that interviewers were prohibited from using cars rented in the name of the Crown to travel to the United States was not only reasonable in light of concerns that this could happen but was arguably a requirement from an employer accountable for the stewardship of public funds and resources. Travel to the U.S. was clearly prohibited, and in my view, Ms. Saldanha’s claims that she and Ms. Alagaratnam were being targeted because of a prohibited ground are purely speculative. I accept that the employer received information that caused concern about possible travel to the United States, and it acted on it, as it should have.

[98] Ms. Saldanha argues that I should discount Ms. Mathon’s evidence because she could not remember or pinpoint what information they were given that interviewers were thinking of traveling to the United States from Windsor. She alleges that Ms. Mathon fabricated evidence to mislead and shift focus away from what the real purpose of the directives were. I accept Ms. Mathon’s evidence which was credible and straight-forward. Ms. Saldanha has made a bald allegation about Ms. Mathon deliberately lying or fabricating evidence which I do not accept.

[99] I also do not find that Ms. Saldanha has made out a prima facie case of discrimination regarding the parking of personal vehicles. While she alleges that other interviewers were allowed to park their personal cars at sites while she was not allowed to do so, I accept Ms. Mathon’s evidence that no interviewers were allowed to park their personal vehicles at hotels. She provided a clear rationale for this rule, namely that hotels had asked Statistics Canada to limit the number of vehicles parked in the lot to ensure there was room for other guests. Further, three other interviewers were told that they could not keep their vehicles on site, and not just Ms. Saldanha.

(i) Travel allowances

[100] Ms. Saldanha alleges that another interviewer, Ginette Dennie, requested to work in her hometown while still being on travel status and maintaining a hotel room that Ms. Saldanha saw her using, in violation of the applicable travel directive and the CMHS Administration Guide. Ms. Saldanha alleges that Ginette, who is White, was allowed to break the rules, whereas she was removed from travel status when working in Toronto in early 2009.

[101] Ms. Lopez also testified about this alleged irregularity and said that Ms. Doucette allowed Ginette to stay with the group and gave her a hotel room and a vehicle, even though she was in her home community, contrary to the travel directive. Ms. Lopez also said that she saw other interviewers, including Ms. Doucette, coming and going with rental cars on unauthorized home visits while claiming per diem on travel status. Ms. Lopez reported this irregularity to the DCM at the time and another superior, eventually wrote to the Office of the Chief Statistician and filed a complaint with the Public Service Integrity Commission.

[102] Ms. Puopolo testified that all requests for private accommodation and home visits were approved at the Assistant Director level. Ms. Doucette’s evidence on this point was that Ginette made the arrangement directly with the DCM at the time and that it was not her decision.

[103] It is not the Tribunal’s task to determine whether the CHMS was properly managed, or to determine whether Ginette or other interviewers acted in violation of government policy while working on the CHMS. Ms. Saldanha bears the onus of establishing that it was more likely than not that any adverse impact she experienced because of the uneven application of policy was due at least in part to a protected characteristic. She has not done so, and any such connection is speculative and is based on Ms. Saldanha’s subjective belief.

(ii) Breakfast Receipts

[104] When the Survey was at the Windsor site, interviewers were permitted to claim their breakfast expenses. Ms. Saldanha alleges that despite having submitted all her receipts, Ms. Doucette prevented her from being reimbursed for the 25 breakfasts she had at the site.

[105] Ms. Saldanha introduced a copy of her VISA statement in support of her position that she did indeed go to the restaurant and paid for her breakfasts. She also relies on an email dated April 18, 2013, from Ms. Doucette to Ms. Charron. In the email Ms. Doucette asks Ms. Charron if she wants her to go and sit at the Cora’s restaurant between 7 and 8 a.m. to see if Ms. Saldanha is really going to the restaurant, or “just picking up receipts of others when she goes by there.” The email goes on to suggest that Ms. Saldanha is eating at the hotel, while also claiming reimbursement for a month of breakfasts. Ms. Doucette asks Ms. Charron whether she should “take more pictures in the morning.”

[106] Ms. Doucette testified that she was not involved in the decision to deny the claims but would compile the receipts and send them along with the expense claim, as was the regular process. She never took photos of Ms. Saldanha but had heard that other interviewers had photographed Ms. Saldanha’s car in the parking lot, ostensibly to show that Ms. Saldanha was not leaving the hotel in the morning to eat breakfast as she claimed. According to Ms. Doucette, Ms. Saldanha would watch what the other interviewers would do, and so she was getting a taste of her own medicine.

[107] The Respondent relies on an email from the travel analyst to Ms. Saldanha dated April 30, 2013 which states as follows:

“Hi Barbara, I didn’t hear back from you, so for now, we will process your claim without the Cora’s breakfasts but we will include the Tim Horton’s one. That way at least you will not be penalized for the rest of your claim.

Have a good day!”

[108] I do not find Ms. Saldanha has made out a prima facie case of discrimination. While she was not reimbursed for the breakfasts, she admitted at the hearing that she did not follow up or provide the credit card statements as requested by the travel analyst. I also do not accept that Ms. Doucette was behind the decision not to reimburse her, even though she had been communicating with Ms. Charron about going to check on Ms. Saldanha.

[109] Ms. Saldanha did not get reimbursed because she did not comply with the requirement to submit the requisite documentation, as all interviewers were required to do. The onus was on her to do so, and I do not find any connection with a protected characteristic. Her employer is responsible and accountable to taxpayers for the disbursement of public funds, and it is not discrimination to ask her to comply with the relevant policy and to submit the requisite documentation in order to be reimbursed.

G. DISTRIBUTION OF WORK AND THE SWITCH TO A BILINGUAL CHMS

[110] In addition to her allegations of discrimination involving Ms. Doucette, Ms. Saldanha makes several allegations of discrimination related to how work was distributed, how the CHMS was staffed and about Statistics Canada’s decision to move to a bilingual team. She also alleges that Ms. Doucette was behind many of these decisions that impacted her.

[111] Statistics Canada argues that all assignments and decisions about the CHMS were workload-driven and based on operational requirements. Interviewers like Ms. Saldanha had no guarantee of hours, and the renewal and status of term employees’ contracts was subject to the availability of work. Decisions were made by senior management and not by Ms. Doucette. The duration of the CHMS was not set, and staffing was done on a rolling basis to reflect current needs as they arose.

[112] Ms. Saldanha has not established that any staffing decisions, even if informed by input from Ms. Doucette, were discriminatory. While some witnesses agreed that Ms. Doucette could have input on a decision, she did not have final authority. Ms. Saldanha’s claims that Ms. Doucette was behind any number of staffing decisions, including overall decisions about the management of the CHMS, are entirely based on her own suspicion. It is not even that one SI would yield the kind of influence Ms. Saldanha claims, particularly in a Survey that was managed either from Ottawa or within the Region, and which involved multiples layers of management and decision-making.

(i) The move to a fully bilingual team

[113] Between 2007 and 2016, the CHMS comprised both unilingual and bilingual interviewers. When the Survey moved to French-speaking sites, unilingual interviewers were sent back to their home regions and additional interviewers who had the requisite language skills were brought in to replace them.

[114] Statistics Canada decided to move to a bilingual interviewer team to work on both bilingual and unilingual sites in 2015. As a result, all four unilingual interviewers, including Ms. Saldanha, were reassigned back to their home regions. Ms. Saldanha’s assignment with the CHMS was not renewed past April 4, 2016 and she returned to Scarborough to carry out the remainder of her contract, which was further extended from April 2016 to April 2017.

[115] Ms. Saldanha alleges that the shift to a bilingual team was a continuation of Ms. Doucette’s various attempts to remove her from the Survey, and that she and Ms. Alagaratnam were replaced by unilingual White interviewers. According to Ms. Saldanha, the need for French was just used as a pretext and Statistics Canada continued to hire unilingual interviewers. Ms. Saldanha also takes issue with the fact that management used an existing list of bilingual interviewers to staff the positions instead of opening up a competitive process. She further alleges that she had been learning French, which her employer knew about, yet she was never offered French testing or training, whereas White interviewers were.

[116] Statistics Canada submits that it made the switch to a bilingual team because it was cheaper and more efficient to do so and was in the best interests of the organisation as a whole. It submits that its operational decisions have no connection to a protected characteristic.

[117] I agree. Ms. Saldanha may disagree with the decision to move to a bilingual team and with the way the change was announced and staffed, but her suspicions and subjective belief that these decisions were due in part to her ethnicity, race or colour are not sufficient to establish discrimination under the Act. In my view, there is no evidentiary basis to support a claim that a protected characteristic of Ms. Saldanha factored into the Respondent’s decisions to change the way the Survey was run.

[118] Geoff Bowlby was the Director General for the Collection and Regional Services Branch from 2014 to 2019 and was responsible for overseeing the regional offices of Statistics Canada where survey data collection for the department takes place. Mr. Bowlby testified that in or around the middle of 2015, the Director for the Central Region recommended moving the CHMS to a fully bilingual interview team after consultation with the assistant Director and Regional Program Manager. Mr. Bowlby ultimately approved the decision because moving unilingual interviewers in and out of the Survey when there was a need for French-speaking interviewers required an outlay of significant time and expense. An October 2015 email exchange between Mr. Bowlby and Gary Dillon, the Director for Central Regional responsible for CHMS, confirmed that they would be replacing the Anglophone interviewers for the April 2016 collection in Montreal and would continue with a team of fully bilingual interviewers going forward. Mr. Dillon notes in that email that the affected individuals would be replaced and would not be coming back to the team.

[119] Ms. Saldanha was not singled out in this decision, and both White and racialized interviewers were impacted. Further, while Ms. Doucette was candid in her testimony about preferring a bilingual interviewer team because of the amount of work and training it involved to onboard bilingual staff each time the survey moved to French-speaking sites, I do not accept that Ms. Doucette was behind this decision or that it was a pretext to target Ms. Saldanha personally to get her off the CHMS. Simply put, this decision was well above Ms. Doucette’s pay grade.

[120] Although Ms. Saldanha alleges that the Respondent used an expired qualifying list of interviewers to staff the bilingual vacancies in contravention of the SSO Employee Handbook, she has not established any basis to link that decision to a protected characteristic. Statistics Canada submits that it chose to use an existing list of interviewers with the requisite language skills and that in any event, the list did not have a specific timeframe for its validity.

[121] After the switch to bilingual interviewers, unilingual interviewers were occasionally assigned to the CHMS on a temporary basis when there was a need for specific language abilities or specialised skills. Ms. Saldanha alleges that the fact that she was not assigned back to the CHMS on a temporary basis was discriminatory and that Ms. Doucette had input into the selection of the interviewers.

[122] I find Ms. Saldanha’s claims purely speculative. Ms. Puopolo testified about the temporary assignments and explained that at the time there was no need to reassign Ms. Saldanha to the CHMS based on her skillset. There were a number of cases that required certain third language fluencies such as Mandarin, Cantonese, Italian, and Russian, and work was given to interviewers with those language skills. While Ms. Saldanha speaks Hindi, the CHMS sample did not require that language profile at that time.

[123] Beyond the fact that Ms. Saldanha has not established a link to a protected characteristic, I also find Ms. Saldanha’s claims that Ms. Doucette was behind the staffing decisions to be baseless. I accept Ms. Doucette’s evidence that she had nothing to do with the recruitment of the new bilingual interviewers and was not involved in the Toronto regional office decision-making.

(ii) French language testing and training

[124] Ms. Saldanha also alleges that she should have been offered language testing and training far earlier on. She relies on an email dated October 27, 2015 that shows that members of senior management were aware of her French training and efforts to improve her French language skills. She alleges that preventing her from being tested and trained was part of Ms. Doucette’s plan to keep her out of the CHMS and out of a bilingual position.

[125] The Respondent submits that it was not required to offer language testing or training but that in any event, any decision not to test or offer training to Ms. Saldanha had no connection to a protected characteristic.

[126] I agree. Ms. Saldanha has not supported her claims about why she was not offered language testing with anything more than her own beliefs or speculation and Statistics Canada has provided a reasonable explanation for its decision. Ms. Puopolo testified that language training was never considered for Ms. Saldanha because it was not required in the Scarborough regional office where she worked which was not a designated bilingual area. Ms. Saldanha was eventually offered bilingual testing as a result of the settlement of a grievance she filed after the CHMS moved to a fully bilingual team. Ms. Saldanha was tested by the DCM in February 2017 and scored 72/160, well below the pass mark of 120-129/160, and therefore failed to qualify for a bilingual position. Ms. Puopolo spoke with Ms. Saldanha about the results of her evaluation and offered a re-test that could be arranged at the Toronto office at a date and time convenient to Ms. Saldanha. Ms. Saldanha never followed up to do the retest. With respect to Ms. Saldanha’s claim that other interviewers were offered testing whereas she was not, Ms. Puopolo testified that Ms. Minor was offered testing as the result of an agreement settling a grievance, but Ms. Minor did not participate and did not make a request for language training.

(iii) Indeterminate status

[127] Ms. Saldanha alleges that Statistics Canada’s decision not to make her indeterminate was discriminatory. She says she made the request on many occasions, both on her own and through her union representative and that the employer never made her indeterminate, despite her far exceeding 3 years of continuous employment and having positive performance appraisals.

[128] The Respondent relies on a term extension letter dated March 29, 2016 that Ms. Saldanha signed and accepted from SSO, which states that “nothing in this letter should be construed as an ongoing appointment, nor should you anticipate continuing employment at the expiration of this offer.”

[129] Ms. Saldanha takes the position that she should have been able to continue with the Survey until its completion. She argues she should have been granted indeterminate status, which would have avoided the need for the yearly term assignments. Ms. Saldanha admitted in cross-examination that she signed several contracts and admitted that every term had to be renewed. Despite being a term employee, she takes the position that she was guaranteed employment for the duration of the CHMS, as long as there were no performance issues.

[130] At the hearing, Ms. Saldanha testified she knew the majority of people who had been made indeterminate, and that they are Caucasian. She did acknowledge that an interviewer who is of Asian descent was made indeterminate. Ms. Puopolo testified that decisions about granting of indeterminate status were made by head office. Determinations about indeterminate status were made on the basis of workloads, performance, years of service, and how decisions may affect other interviewers’ schedules. Ms. Puopolo also testified that two interviewers were made indeterminate in the Scarborough region, one who was White, and one racialized. When asked why Ms. Saldanha was not granted indeterminate status, Ms. Puopolo explained that it is possible that at the time the CHMS was managed by Ottawa, which may be the reason why she was not considered for indeterminate status for Central Region.

[131] Ms. Saldanha has not supported her allegations of discrimination with evidence. As I have already set out above, this Tribunal is not a general reviewing body for government staffing and processes. While the Respondent’s process and its approvals are complex to decipher, I have not been presented with evidence to support an inference that a protected characteristic was a factor in the decision not to make Ms. Saldanha indeterminate.

[132] The Act is not catch-all legislation to address perceived error with the way government staffing is conducted or programs are managed Even if there are lessons to be learned with the way the CHMS was managed, or with the conduct and professionalism of the public servants involved – the Tribunal is not a body to deal with general allegations of unfairness or injustice unless there is a connection to a protected characteristic. Ms. Saldanha has not established that link and all of her allegations regarding the CHMS team, its staffing and the way interviewers were hired are dismissed. I accept the Respondent’s evidence that it made decisions to promote operational efficiency, and that while it is unfortunate that these decisions had a negative effect on Ms. Saldanha and other interviewers, including Ms. Doucette at times, Ms. Saldanha’s claims that this was due to her race, colour or ethnicity are speculative.

H. Did Statistics Canada retaliate against Ms. Saldanha through its 2017 selection process or by failing to continue her employment?

[133] No. Ms. Saldanha has not established that the filing of her human rights complaint in 2016 was a factor in Statistics Canada’s decision to run a selection process in 2017, nor in its decision not to retain her for a position in Scarborough. The Respondent’s selection process was fair, objective, and did not involve individuals who were even aware of Ms. Saldanha’s human rights complaint.

[134] Ms. Saldanha was offered a position in Scarborough for a term assignment from April 2016 to April 2017 after the CHMS moved to a bilingual team. At that time, there were four interviewers in the Scarborough office, all of whom were in term positions. In February 2017, Ms. Saldanha was advised that based on current and forecasted workloads in Scarborough, there was only enough work for two interviewers. Statistics Canada decided to launch a selection process to decide which interviewers to retain. Ms. Saldanha participated in a competition along with the three other local interviewers but was not one of the two top candidates.

[135] Ms. Saldanha alleges that she was forced to apply and compete for a job she had already been working in since 2003. She claims she was deliberately targeted because the timing of the recruitment process coincided with the end of her term in April 2017. She alleges that she was not selected and her employment with Statistics Canada was terminated as direct retaliation for having filed a complaint with the Commission in May 2016.

[136] Statistics Canada’s position is that the decision to reduce the number of interviewers in Scarborough was unrelated to Ms. Saldanha’s May 2016 human rights complaint and that senior management decided to reduce the number of interviewers on staff nationwide due to an overall decline in workload.

[137] Ms. Puopolo testified that there was not enough work to sustain four interviewers in Scarborough. She referred to contemporaneous notes of her calculations and forecasts from December 2016 about the distribution of work which had informed the decision to only retain two interviewers. She explained that had Statistics Canada kept four interviewers, each individual would only have received an average of 10 hours of work per week, whereas under their collective agreement, interviewers were not eligible for benefits under 13 hours per week. Overall, it would also have cost more to retain four interviewers rather than two. I accept the Respondent’s explanation and that the decision made was based on operational requirements. Ms. Saldanha’s claims that she was deliberately targeted or that the number of positions was reduced because of her human rights complaint is not supported by the evidence.

[138] Further, I accept that Ms. Puopolo was not aware of Ms. Saldanha’s human rights complaint when she reached the conclusion to reduce the number of interviewers, and only learned of it in 2019, a few weeks before she retired. The Director ultimately made the decision to run a competition after consulting with input from head office, human resources, the region, and the assistant Director. Ms. Saldanha has not established any link between that decision-making process and her human rights complaint.

[139] I also do not accept that Ms. Saldanha’s complaint was a factor in her not being selected at the end of the selection process. Ms. Saldanha and three other candidates, two of whom were racialized, participated in the competition. Ms. Puopolo was involved in the coordination of the staffing process but was not on the selection board. Ms. Saldanha was not successful because she did not score as well as the two individuals who were ultimately selected, both of whom are racialized.

[140] Karla Collins worked as a Human Resources advisor supporting staffing in the Central region at the relevant time. She testified that Ms. Puopolo asked her to create assessment tools and a rating guide as part of a selection process that was being launched because there was not enough work in the region for four interviewers. Ms. Collins was on the selection board with two other individuals to conduct interviews, none of whom had previous knowledge of the candidates or the Scarborough location. In addition, the panel was not provided with any information about any of the candidates prior to the interview. After the interviews were completed, Ms. Collins sent Ms. Puopolo and the Assistant Director of Operations a summary of the scores for the four candidates for each of the four questions corresponding to mandatory SSO competencies. Ms. Saldanha scored 28 out of 40. Ms. Collins only learned about Ms. Saldanha’s human rights complaint when she was contacted in connection with the hearing of this complaint.

[141] Ms. Saldanha also alleges that by requiring her to participate in a competition that may have resulted in her working with a manager she had problems with in the past, the Respondent was going against her doctor’s orders, which is also evidence of retaliation. Ms. Puopolo testified that the selection process would not have changed the duty to accommodate Ms. Saldanha if that requirement was still on file. Ms. Saldanha has presented no evidence to link this allegation to the filing of her human rights claim.

[142] I am not persuaded that the circumstances of the 2017 hiring process were connected, even in part, to the filing of Ms. Saldanha’s human rights complaint. Her employer reduced the number of positions in the region based on workload, which it was entitled to do, and ran a selection process which the evidence shows was fair and objective. Those involved did not know Ms. Saldanha or have knowledge of her human rights complaint. Ms. Saldanha provided no evidence to counter the respondent’s evidence and to support her allegations of reprisal. She was not successful because she did not do as well as the other candidates in the competition. That is not retaliation, but rather is the nature of a competition.

VIII. CONDUCT OF THE PARTIES AND OF COUNSEL

[143] Finally, I would like to commend Ms. Saldanha and counsel for Statistics Canada for their cooperative, respectful, and collegial approach from the very beginning of these proceedings. Human rights issues are challenging to litigate, and by their very nature touch at the heart of an individual’s dignity and fundamental rights and freedoms.

[144] Parties are also required to be respectful and courteous of each other and of the Tribunal process. It is the job of the presiding member to ensure that the parties respect these rules and that the process remain fair. But decision-makers cannot do this alone, and the parties and counsel have an important role to play so that the process feels fair and accessible to all, regardless of the end result or outcome.

[145] As adjudicators and decision-makers, we must often intervene and provide direction when parties or their representatives demonstrate incivility. But we do not comment often enough when all those involved in a legal proceeding are cooperative and professional, despite their differences. Counsel for the Respondent were commendable in their approach in this file. They offered to assist in preparing a joint book of documents, providing hard copies of materials to the Complainant, and responded to concerns in a proportionate and fair way at the hearing. This also made the process more efficient. They chose their battles wisely and did not make mountains out of molehills.

[146] For her part, Ms. Saldanha, a self-represented litigant, was prepared, respectful of Tribunal orders and directions and conducted herself commendably throughout the process. Ms. Saldanha also made reasonable and reasoned requests. All parties participated remotely during the pandemic, at a time that was difficult for so many Canadians, and as the Tribunal and myself as presiding Member attempted to balance these demands. Their approach and conduct made what was a challenging time far more bearable.

[147] I thank both parties and counsel for their collegiality and patience with the Tribunal in these matters.

Signed by

Jennifer Khurana

Tribunal Member

Ottawa, Ontario

October 11, 2024

Canadian Human Rights Tribunal

Parties of Record

Tribunal File: T2467/2420

Style of Cause: Barbara Saldanha v. Statistics Canada

Decision of the Tribunal Dated: October 11, 2024

Date and Place of Hearing: Videoconference

July 12, 13, 14, 15, 16 2021

Appearances:

Barbara Saldanha , for herself

No one appearing , for the Canadian Human Rights Commission

Abigail Martinez , Alexandra Pullano and Sarah Jiwan, for the Respondent