Case # 2010-047

Discrimination, Selection Board , Selection Boards

Case Summary

F&R Date: 2011–08–31

The grievor claimed a lack of rigour and of transparency in the the selection process for applicants interested in the Canadian Forces Command and Staff course. According to the grievor, the selection of proposed applicants was left to the discretion of the regiment., without any consideration given to the promotion lists issued by the career managers. He alleged that several evaluation criteria for the selection of applicants were based on age, which is discriminatory. In terms of redress, he requested that the promotion list be the priority and that consideration be given to the potential for advancement based on the years of service remaining until the compulsory retirement age instead of the years of service completed. . He also requested a promotion to the rank of lieutenant-colonel (LCol) retroactive to summer 2006.

An analyst of the Director General Canadian Forces Grievance Authority (DGCFGA) concluded that there was nothing to support the grievor’s allegation that the regiment’s list had taken precedence over the choice of the Selection Committee as the instructions to members of this Committee are exhaustive and clearly explain the selection process. The analyst added that, according to the Convening Order of the Director General Military Careers (DGMC), age is not a factor to be considered, and the final decision is made by the Selection Committee and not the regiments.

After having examined the summary released by the DGCFGA staff, the grievor indicated that the analysis did not adequately respond to his allegations of discrimation based on age.

According to the Board, the summary does not provide a thorough enough analysis of the management tools and criteria considered by the Regimental Committee and the career manager in order to establish which applicants had the most potential to meet the future needs of the Canadian Forces (CF). The Board therefore examined the tools used and noted that, even if there may be numerous competent applicants, priority is given to those who have enough service time to achieve command positions and/or senior ranks.

Regarding the allegation about the lack of transparency in the selection process of applicants, the Board noted that the file contains very little information on the criteria considered by the Regimental Committee in order to determine the rank which the grievor should hold on the list submitted to the Selection Committee. Despite requests, the CF did not provide any documents that might explain the decision-making process of the Regimental Committee and of the career manager, how the criteria were rated, and the importance given to the remaining years of service before attaining 35 years of service. Furthermore, despite the steps taken by the Board staff, apparently there is no record of the discussions and decisions taken by the Regimental Committee and the career manager during the selection process of potential applicants for the Canadian Forces Command and Staff course.

The Board stressed that there were no doubts regarding the good faith and professionalism of the career manager and of the Regiment’s officers who made up the Regimental Committee that year. However, the Board believed that the process used to make a decision about a very important career phase of the grievor was, and may still be, a problem from a legal standpoint. In this case, the grievor was not informed of the criteria taken into consideration during the evaluation process of applicants, how those criteria were used, or the importance given to each criterion. Based on the Federal Court decision in the Zimmerman case, the Board found that the selection process of applicants interested in the Canadian Forces Command and Staff course for the year in question revealed an important lack of transparency that had an impact on its fairness and that the Regimental Committee’s recommendation stemmed from an unfair process, nullifying the grievor’s ranking.

Regarding the allegations of discrimation based on age, the Board believed that there is a serious problem with the way the CF considers substitution variables linked to age in order to make important career decisions, in particular regarding professional training. The reason cited by the CF for using the years of service is as follows : there is reportedly statistical evidence showing that members of the CF generally tend to retire when they reach 35 years of service. The Board expressed its concern about the fact that the number of years remaining before reaching 35 years of service or the number of years remaining before the compulsory retirement age is used as a selection criterion, even though there is no link to the operational needs.

The Board found that certain elements of evidence thus suggest that the Regimental Committee had complete discretionary power concerning the applicants to include in the recommendation list. Given the lack of transparency, it was impossible for the Board to ascertain the importance given to the skills and qualifications of applicants, even though the evidence reveals that age and years of service were a very important criterion.

Under the law, an individual cannot be the subject of discrimination based on age. The Board emphasized that it had adopted the position of Canadian courts today which increasingly believe that legal provisions and policies on compulsory retirement age have no raison d'être and that they constitute a form of discrimination which cannot be justified under section 1 of the Canadian Chart of Rights and Freedoms. Nevertheless, despite its stance on the subject and its concerns about the selection process, in this case, it was impossible for the Board to conclude, on a balance of probabilities, that the grievor’s age was the reason that he was the last on the list of applicants.

According to the Board, the grievor suffered harm because of the lack of transparency in the selection process; however, given the numerous variables at issue and the career information in the file, the Board could not conclude that the grievor would necessarily have been promoted to the rank of LCol if he had attended the course that year.

The Board recommended that the Chief of the Defence Staff (CDS) partially allow the grievance by permitting the grievor to attend the Canadian Forces Command and Staff course.

The Board also made a recommendation of a systemic nature, namely, that, in the context of a selection process for courses, the grievor’s regiment and the Selection Committees should put in place an evaluation system that respects the legal requirements for equity and transparency.

CDS Decision Summary

CDS Decision Date: 2012–03–12

The CDS cannot agree with the conclusions and the recommendations of the Board to partially uphold the grievance. The CDS disagrees with the Board’s conclusions that the absence of any explanation for the grievor’s position on the regimental list and the lack of transparency in the selection process for the CFCS course call the equity of the process into question, as well as the validity of the Regimental Senate’s recommendation emanating therefrom. The CDS also disagrees with the Board’s conclusion that giving consideration to the number of years of service remaining before reaching 35 constituted discrimination. According to the CDS, all the stakeholders in the candidate selection process for the CFCS course had necessarily followed the items that should guide their deliberations, in particular complying with the criteria established by the Army Succession Plan and the convening order of the DGMC, and they performed their duties. The CDS is of the opinion that the selection committee has fulfilled its role and was able to draw up the final list of candidates for the course in question.

At the same time, the CDS agrees with the Board’s systemic recommendation to make the candidate selection process more transparent. He has therefore requested that the Commander of the Canadian Army ensure that the greatest transparency possible be evidenced in the selection of candidates for the CFCS course and that the Regimental sponsors and the Infantry Career Manager give a full debriefing to each of the candidates.