'It's always harder to prove institutional and individual racism, especially when it's not in your face'
The Canadian Human Rights Tribunal has dismissed a complaint by a worker who alleged racial discrimination during his participation in the Correctional Training Program (CTP) run by Correctional Service Canada (CSC).
The worker, a Black man of Zambian origin, claimed that he faced differential treatment due to his race, colour, or ethnic origin, ultimately leading to his release from the program just before completion.
“There could be a case where someone who's a visible minority who might feel they are targeted because of their race, while it could be more attached to a personality - it's harder to prove than physical attributes, where there could be more empirical evidence,” says Christopher Achkar, an employment lawyer and principal of Achkar Law in Toronto and Ottawa.
“It’s always harder to prove institutional racism and individual racism, especially when it's not in your face.”
The worker applied for a job as a correctional officer with CSC in 2014 and was required to complete the three components of the CTP – online learning, pre-session learning and workbook assignments, and on-site class learning and testing at the CSC National Training Academy in Regina. The worker was the only Black recruit in his training session, which ran from April 2 to June 25.
The CTP allowed recruits two re-test credits following a failure on any initial test. If the recruit passed the re-evaluation, they could continue, but failing a test a second time would result in release from the CTP. In addition, failing any three tests would invoke a “three strikes” policy that resulted in immediate release from the program. Failure of certain tests or assessment weren’t counted as a “strike.”
Conditional offer of employment
The worker successfully completed the online learning and pre-session assignments and received a conditional offer of employment pending completion of the on-site testing in Regina.
On April 23, the worker failed a self-defence theory exam. He attended a remedial session five days later and passed the re-test. On June 12, he failed the initial qualification for a pistol test. He attended a remedial session and passed, but it counted as his second strike.
The worker didn’t raise any concerns about how the tests were administered. He also failed a few other assessments and passed the re-tests, but these weren’t counted as strikes under the re-test policy.
On May 6, the worker and his fellow recruits were required to hand in a self-study homework assignment. However, the worker hadn’t completed it and asked for more time. The instructor made a note in his performance evaluation. No other recruits were singled out for not completing the homework, so the worker met with another trainer and the manager of the learning centre. The manager said not to worry about what other recruits had done and to concentrate on his own work.
After this incident, the worker felt that the atmosphere changed for him and other trainers gave him negative and inaccurate performance evaluations. He avoided dealing with the instructor who had made the note and he felt she set out to campaign for his release from the program.
Worker felt singled out
On another occasion at the gun range, another instructor called him over and asked if he was taking photos. He said no and suggested she ask the other recruits, two of whom had been previously written up for taking photos and inappropriate conduct. Once again, he felt singled out.
On June 13, the worker presented a sick leave form just before an exam because he wanted to go to the medical clinic. The instructor said he was trying to buy time because he was worried about the test and denied the sick leave request. The worker wrote the test and passed it.
On June 18, the worker scored one of the lowest scores of all the recruits in a dry practice qualification test for shotguns. His difficulties were described in his performance appraisal, but the worker disagreed that he did poorly. The next day, he took the qualification test and he had the same instructor who had asked him about taking photos and denied his sick leave request. He failed the test and the instructor noted various faults such as missing directions, having to be told to listen to commands, and leaving the safety off. It was his third strike under the re-test policy, so CSC released the worker from the CTP.
The worker was escorted by security officers to pack his belongings. Two other recruits from the worker’s group also failed and were escorted out.
The worker filed a human rights complaint alleging discrimination in employment based on race, colour, or ethnic origin. He said he was singled out and treated more harshly than the white recruits in the STP.
Discrimination test under human rights
The Canadian Human Rights Tribunal noted that the worker had to prove three elements of prima facie discrimination – he had a characteristic protected under the Canadian Human Rights Act, he experienced an adverse impact in employment, and the protected characteristic was a factor in the adverse impact.
The tribunal had concerns about the worker’s credibility due to his avoidance of questions and not acknowledging certain facts such as his poor performance in the shotgun test. He also introduced new versions of events at the hearing, which further hurt is credibility, according to the tribunal.
Ultimately, the tribunal found no evidence to support the worker’s discrimination claims. It found that his removal from the CTP was solely based on his failure to meet the required standards during the training. His performance in several evaluations, including firearms and self-defence assessments, was cited as the reason for his dismissal, not his race or ethnicity, and the worker himself acknowledged legitimately failing the tests that counted as the first two strikes. The tribunal also found that the grading system and procedures followed by CSC were applied uniformly to all recruits.
“I think CSC made sure there was nothing that allowed for a hint of discrimination,” says Ackhar. “There was nothing that they couldn’t substantiate with their documents and notes during the training - they did a good job in terms of gathering everything they needed to.”
“This made the CSC's position that much easier to defend, saying none of these issues were actually raised before,” he adds. “Had he raised them before he was released, the way they handled the worker would have been potentially different, they would have been careful about his release and done more due diligence - once allegations are made, employers generally should proceed more carefully.”
No evidence linking employer’s actions to racial bias
The tribunal emphasized that, while racial discrimination can often manifest in subtle, unconscious ways, there was insufficient evidence to link CSC’s actions to racial bias. In several instances, the tribunal found the worker’s testimony less credible compared to that of CSC witnesses. As a result, although the worker had a protected characteristic and suffered an adverse impact, he failed to show that they were linked.
The nature of racial discrimination can often make it harder to prove than discrimination based on other grounds, says Achkar.
“Someone who’s experienced it and feels it may unfortunately not be enough unless it can be proven,” he says. “One would have to look at everyone who was hired and how they compare with that person - and if they beat them in factors other than race, then it will be next to impossible to prove racial discrimination.”
The tribunal concluded that the worker failed to establish a prima facie case of discrimination and dismissed his complaint.
Documentation needed
The case is a good example of how important documentation of employer decisions and processes is, especially when someone makes a discrimination allegation, says Achkar.
“There must be written documentation after every verbal communication, because sometimes what people communicate is not what’s heard on the other side,” he says. “When it comes to proceeding all the way to litigation, evidence must be collected carefully along the way.”
“I think smaller employers would have a harder time dealing with litigation all the way through,” he adds. “If employers can avoid these issues from the get-go and quash any insinuation that a termination is motivated by discrimination, or negotiate and avoid going all the way through, it will help – you can’t collect legal fees from the Canadian Human Rights Tribunal, even if you’re successful.”
Achkar also suggests robust diversity, equity, and inclusion initiatives to show that an employer cares about people's differences and upholds its policies equally for everyone.
“Such initiatives happening in parallel could always help in giving people a sense of safety in their own place, and they might think twice about legal action as it may be harder to prove there’s a discriminatory environment.”
See Banda v. Correctional Service Canada, 2024 CHRT 89.
