Complainant had worked for many years on term contracts as customs inspector. He had tried twice to secure permanent position but was turned down both times. Complainant filed unsuccessful complaint with Canadian Human Rights Commission alleging discrimination on basis of race, national or ethnic origin, age, and perceived disability of obesity. Decision was set aside on appeal and remitted for reconsideration, where second tribunal found in complainant’s favour. With respect to Vancouver competition, tribunal found that respondent had been wrongly disqualified. Attorney General for Canada (“AG”) successfully sought judicial review of second tribunal’s decision. Complainant appealed. Appeal dismissed. Judge was correct in finding that issue before tribunal was relatively narrow Tribunal’s findings as to witness credibility were due less deference than credibility findings are usually given, because tribunal based its decision on transcript alone without advantage of hearing witnesses directly, but parties agreed that extensive record would be adequate for purposes of reconsideration. Judge was correct in finding that law and facts before tribunal did not reasonably lead to finding of discrimination. Tribunal’s decision was not supported by record, and tribunal substituted its assessment of complainant’s qualifications for that of selection board’s when it held that complainant had been discriminated against. There was no basis for adverse credibility findings made by tribunal in regards to AG’s witnesses. Tribunal’s decision did not fall within range of defensible outcomes based on facts and law.
Turner v. Canada (Attorney General) (2017), 2017 CarswellNat 17, 2017 FCA 2, M. Nadon J.A., A.F. Scott J.A., and J. Woods J.A. (F.C.A.); affirmed (2015), 2015 CarswellNat 5271, 2015 CarswellNat 9290, 2015 FC 1209, 2015 CF 1209, James W. O’Reilly J. (F.C.).