The Mounties Always Get Their Man

Getting Rid of Them Is Not So Easy

Take the Case of Ali Tahmourpour for instance. Here is the story as taken from the Federal Court of Canada Decision in Canada (Attorney General) v. Tahmourpour, 2009 FC 1009, rendered on October 6, 2009 by The Honourable Mr. Justice Zinn.

The Introduction to the decisions reads as follows:

Ali Tahmourpour was accepted as a cadet in the Royal Canadian Mounted Police (the RCMP). He commenced his training at the RCMP training facility (the Depot) in Regina, Saskatchewan, on July 12, 1999. His cadet contract was terminated by the RCMP on October 20, 1999, prior to the completion of the training program, and the RCMP decided that he would not be accepted for re-enrolment in the training program.

Mr. Tahmourpour lodged a complaint with the Canadian Human Rights Commission. He claimed that he was discriminated against and harassed by the RCMP during the training program, and that the decisions of the RCMP to terminate his training and prevent his re-enrolment were discriminatory on the basis of his national or ethnic origin and his religion contrary to sections 7 and 14 of the Canadian Human Rights Act, R.S.C. 1985, c. H-6.

His complaint dealt with the Employment provision of the CHRA:

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.

And the Harassment provision of the CHRA:

14. (1) It is a discriminatory practice,
(a) in the provision of goods, services, facilities or accommodation customarily available to the general public,
(b) in the provision of commercial premises or residential accommodation, or
(c) in matters related to employment, to harass an individual on a prohibited ground of discrimination.

His complaint was upheld by the Canadian Human Rights Tribunal as follows:

The complaint was referred to the Canadian Human Rights Tribunal for a hearing which commenced on August 13, 2007, and lasted for 20 days. In Tahmourpour v. Canada (Royal Canadian Mounted Police), 2008 CHRT 10 (CanLII), 2008 CHRT 10, the Tribunal upheld the complaint and issued numerous remedial orders.

And now a little background on the case:Mr. Tahmourpour is an Iranian-born Muslim. He came to Canada when he was a teenager. He professes to having had a long-standing desire to become a police officer. He got his opportunity when at age 26 he was accepted as a cadet in the RCMP training program.

RCMP cadet training is a 22 week period of instruction at the Depot. Each cadet signs a training agreement and is provided with a handbook and other documents outlining the assessment procedures in place. The cadet training agreement contains specific provisions with respect to the termination of the agreement and provides, in relevant part, that the agreement may be terminated if the cadet “does not meet set standards of performance." It further provides that the cadet is required to meet all the training requirements as set out in the cadet training handbook in order to continue with the training program.

The RCMP has a rigorous method of assessing problem solving, called CAPRA, since that is perceived the glue to police work. TO that they have 5 rating categories:

P – Professional
S – Superior
NI – Needs Improvement
U – Unacceptable
N/O – Not Observed

Here's how the ratings are used to wash out unsuccessful cadets:

A cadet fails training if he or she receives two U ratings in the same competency during one assessment period, with no improvement shown, or a total of two U ratings across the CAPRA components, or within the same CAPRA component. If a cadet receives two U ratings in the same competency, and he or she is recommended for termination, the cadet’s file is reviewed before termination is effected.

There were 19 feedback incidents presented to the Tribunal for Cadet Tahmourpour. They were between NI and U. This was followed by more internal reviews and feedback to the Cadet. There were none that indicated He Got It, or was Going To Get It. Finally, in October, 1999 after a lengthy process, including allowing the Cadet to respond to file documents about an internal request for his termination, he was in fact terminated.

The penultimate straw was his failure to respond in the communicated time frame to a request for a letter from him to defend not being terminated at that time.

The ultimate straw was his reaction to the termination, which was unusual to say the least.

This should have been the end, but 18 months later Mr. Tahmourpour filed a CHRC complaint for discrimination. Needless to say in his complaint, Mr. Tahmourpour was a hardened recruit, able to spit nails and shoot the eyes out of a snake, a tribute to the Force, except for the meanies who were holding him back because of their prejudice.

But, who you gonna believe. Well, if you are the CHRT (or any HRC/HRT for that matter), the VICTIM, of course. I mean Complainant.

The Tribunal found as follows with details outlined in the Decision:

The Tribunal, after hearing the evidence, summarized Mr. Tahmourpour’s allegations of discrimination and harassment to be five-fold, as follows:
(i) Mr. Tahmourpour was subjected to discriminatory remarks, hostile treatment and verbal abuse by his instructors at the Depot;
(ii) Mr. Tahmourpour’s performance at the Depot was improperly evaluated; (iii) Mr. Tahmourpour’s training contract was terminated on the basis of false pretences;
(iv) Mr. Tahmourpour was improperly designated as being ineligible for re-enrolment in the Cadet Training Program at the Depot; and
(v) Mr. Tahmourpour was the victim of harassment on the basis of a prohibited ground of discrimination while at the Depot.

And so to fix the poor man's situation they made the following orders:

The Tribunal ordered the following as a remedy for the discriminatory actions of the RCMP:
(a) The RCMP was to offer Mr. Tahmourpour the opportunity to re-enrol in the Cadet Training Program and his program will be based on a fair assessment of the areas where training is required;
(b) He shall be paid the lost salary and benefits for the first 2 years and 12 weeks of work as an RCMP officer after graduating from the Depot, discounted by 8%;
(c) He shall be paid the difference between the average industrial full-time wage for persons of his age in Canada and the salary he would have earned as an officer in the RCMP until the time he accepts or rejects re-enrolment in the training program;
(d) He shall be paid the average amount of overtime paid to other constables who graduated from the Depot in 1999, discounted by 8%;
(e) All compensation must reflect a promotion to Corporal after 7 years;
(f) $9,000.00 for pain and suffering caused by the discriminatory conduct of the RCMP;
(g) $12,000.00 as special compensation under section 53(3) of the Act;
(h) $9,500.00 in compensation for expenses incurred in minimizing his losses; and
(i) Interest and reimbursement of legal expenses incurred.

It appears that this was all done with a straight face, but Surprise Surprise, the RCMP did not take this lying down, and appealed the Decision, resulting in this Actual Court Decision.

The Applicant in this Case, the Attorney General on behalf of the RCMP raised a number of issues in their Appeal:

(i) Test Used in Making Findings of Direct Discrimination. Whether the Tribunal erred in applying the wrong test for direct discrimination in making a finding of direct discrimination by Sergeant Hébert.
(ii) Expert Evidence. Whether the Tribunal erred in law in failing to allow the RCMP to adduce expert evidence regarding the attrition rate of visible minorities at Depot. Whether the Tribunal erred in law in relying upon statistical data contained in the report of the respondent’s expert which merely repeated the data contained in the report of the applicant that was not in evidence.
(iii) Ignoring Evidence. Whether the Tribunal erred in ignoring relevant evidence or in misapprehending evidence in making its findings of direct discrimination by Corporal Boyer.
(iv) Remedial Orders. Whether the Tribunal erred in finding that there was a serious possibility that discrimination caused the loss of the training opportunity, erred in its assessment of Mr. Tahmourpour’s potential success and erred in its calculation of the financial award.

The Judge, being a brighter bulb than your CHRT yobbos, concluded:

I have come to the conclusion that the Tribunal erred in law and that some of its findings were unreasonable. The decision will be set aside.

The AG had submitted an important statement relative to all HRC/HRT cases The question at bar was whether certain actions were discriminatory practices, in other words adverse differentiation or were just differentiation:

The applicant submits that the Tribunal erred in law in holding that a complainant’s own perception of differential treatment is sufficient to find there was discrimination, or, as it is defined in the Act, adverse differential treatment of Mr. Tahmourpour because of his religion.

This is, in my opinion, a significant statement, made all the more so, by the Judge's finding in its favour.

The judge dealt with faulty Expert Evidence gathering by the Tribunal again in favour of the AG after a lengthy discourse on the flaws in the work of the Tribunal. No surprise there.

The AG on behalf of the RCMP argued that evidence put before the Tribunal was ignored or not given credence in the case. The judge found as follows:

The difficulty with this analysis is that there is no evidentiary foundation at all for the conclusion that his performance was affected by the treatment he received. As noted, he did not make that claim, nor did anyone else. No doubt, there may be situations where discrimination does impact performance; but it is not a universal rule. Unless there is evidence that a complainant would have performed better but for the discrimination, there is no basis, other than mere speculation, on which such a finding can be made.
In this one respect, I find that the Tribunal improperly considered the evidence. It discounted entirely the evidence of performance difficulties, which it had otherwise accepted based on the evidence of Corporal Bradley, because it speculated that while an accurate assessment of his performance, his performance had been negatively impacted by the treatment he received.

As to the remedies from the Tribunal, the learned judge had this to say:

In this case, the Tribunal made no assessment of any cut-off period, nor did it engage in any analysis as to whether the period could reasonably extend to the date of its decision, which was some eight and one-half years after the termination of his cadet contract.
In failing to engage in that analysis the Tribunal erred in law. The damages awarded under the Act cannot run forever and, as the Court of Appeal observed in Morgan, “common sense requires that some limits be placed upon liability for the consequences flowing from an act [of discrimination].”

His final Summary is as follows:

I find that the Tribunal:
(i) erred in applying the wrong test for direct discrimination in making a finding of direct discrimination by Sergeant Hébert;
(ii) erred in law in relying upon statistical data contained in the report of the respondent’s expert which merely repeated the data contained in the report of the applicant that was not in evidence;
(iii) erred in concluding without evidence and only on the basis of speculation, that Mr. Tahmourpour’s performance was affected by the discriminatory treatment he received at Depot; and
(iv) erred in awarding lost wages to the date of reinstatement in a training program having engaged in no analysis as to whether that period could reasonably extend to that date.

And in conclusion:

For the foregoing reasons, the Tribunal’s decision is set aside. The applicant is entitled to its costs of this application.

As the CBC noted online this morning:

The RCMP have won the latest round in a 10-year battle over a cadet's complaint of discrimination based on ethnic background.

Is it over? Who knows. Will other victims of HRCs/HRTs use the finding of Justice Zinn and the submitted and agreed point of the AG repeated here in their own defence?

The applicant submits that the Tribunal erred in law in holding that a complainant’s own perception of differential treatment is sufficient to find there was discrimination, or, as it is defined in the Act, adverse differential treatment of Mr. Tahmourpour because of his religion.

Only time will tell.