Complaint of Discrimination in Hiring Process Dismissed

OUTCOME: Dismissed

Canadian Human Rights Tribunal Tribunal canadien des droits de la personne Citation: 2026 CHRT 34 Date: April 8, 2026 File No. : HR-DP-2985-24 Between: [NAME_1] Complainant - and - Canadian Human Rights Commission Commission - and - [NAME_2] (Shíshálh) Respondent Decision Member: [NAME_3] \o "1-3" \h \z \u I. OVERVIEW PAGEREF _Toc226456178 \h 1 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320036003400350036003100370038000000 II.

DECISION PAGEREF _Toc226456179 \h 2 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320036003400350036003100370039000000 III. THE LEGISLATION PAGEREF _Toc226456180 \h 2 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320036003400350036003100380030000000 IV. FACTUAL

BACKGROUND PAGEREF _Toc226456181 \h 3 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320036003400350036003100380031000000 V. LEGAL ISSUES PAGEREF _Toc226456182 \h 4 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320036003400350036003100380032000000 VI.

REASONS AND ANALYSIS PAGEREF _Toc226456183 \h 5 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320036003400350036003100380033000000 A. Legal Framework PAGEREF _Toc226456184 \h 5 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320036003400350036003100380034000000 B. Has the complainant established a prima facie case of discrimination? PAGEREF _Toc226456185 \h 6 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320036003400350036003100380035000000 (i) One or more prohibited ground PAGEREF _Toc226456186 \h 6 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320036003400350036003100380036000000 (ii) Adverse differential treatment PAGEREF _Toc226456187 \h 6 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320036003400350036003100380037000000 (iii) Connection between the adverse differentiation and the prohibited grounds PAGEREF _Toc226456188 \h 6 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320036003400350036003100380038000000 VII.

ORDER PAGEREF _Toc226456189 \h 9 08D0C9EA79F9BACE118C8200AA004BA90B02000000080000000E0000005F0054006F0063003200320036003400350036003100380039000000 I. OVERVIEW [ 1 ] The complainant, [NAME_1], is an indigenous woman and a registered member of the respondent, [NAME_2]. She applied for a job as a Health Manager with the respondent. She was not the successful candidate, and the job was awarded to another applicant. [ 2 ] The complainant alleges that the respondent discriminated against her in respect of the job competition on the basis of sex, race, national or ethnic origin, contrary to section 7 of the Canadian Human Rights Act ,   R.S.C., 1985, c. H-6 (the “Act”). She says the respondent treated her differently and continued a pattern of refusing to employ her because she is an outspoken and educated indigenous woman who “conveys a strong voice for those that have not yet found theirs”. [ 3 ] Additionally, the complainant alleges that the [NAME_4] Manager did not respond to the complainant’s requests for further details about the job posting. This required her to contact the [NAME_4] assistant to get the information. [ 4 ] Finally, the complainant says she was not told by the [NAME_4] Manager that she was not the successful candidate, as other candidates who were members of the [NAME_2] were. Instead, she was contacted outside of regular working hours by a [NAME_4] employee who was not part of the interview panel, and informed that she was not the successful candidate. [ 5 ] The respondent denies all allegations of discriminatory conduct and seeks to have the complaint dismissed. It states that there was no differential treatment of the complainant, either on the grounds she has identified or any other protected ground under the Act. [ 6 ] The respondent says the complainant has been employed by the [NAME_2] in the past. She had the opportunity to apply for the role of Health Manager and did so. The complainant was one of several candidates selected to be interviewed. She attended an interview conducted by a panel of three, following which her candidacy did not proceed. [ 7 ] The interview panel asked all interviewees the same 15 questions and used a rubric to assess the candidates. Following the interviews, those candidates that scored between 10 and 18 were considered further. The complainant scored 7.5 and her candidacy did not proceed to the next stage for further consideration. Once a hiring decision was made, the complainant was contacted by a member of the [NAME_4] department to inform her that she was not the successful candidate for the role. The respondent states that the fact that the complainant is an indigenous woman played no role in her not being successful in the job competition. [ 8 ] Although the Canadian Human Rights Commission was a party to the proceeding and acts in the public interest, it did not participate in the hearing.

II.

DECISION [ 9 ] For the reasons that follow, I find that the complaint is not substantiated. [ 10 ] I am not satisfied that the complainant has established, on a balance of probabilities, that the identified, protected grounds of sex, race or national or ethnic origin were a factor in her unsuccessful application for the role of Health Manager with the respondent [NAME_2].

III. THE LEGISLATION [ 11 ] Section 7 of the Act reads as follows: 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. [ 12 ] Sections 3(1) and 3.1 of the Act reads as follows: 3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, gender identity or expression, marital status, family status, genetic characteristics, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered. 3.1 For greater certainty, a discriminatory practice includes a practice based on one or more prohibited grounds of discrimination or on the effect of a combination of prohibited grounds.

IV. FACTUAL

BACKGROUND [ 13 ] The complainant described herself as a university-educated indigenous woman and advocate. She has a Bachelor of Social Work (“BSW”) and, at the time of the hearing, was a Master of Social Work candidate. At the time she applied for the job as Health Manager, in addition to the BSW, she had equivalent and relevant experience, having worked as a manager within the National Inquiry into Missing and Murdered Indigenous Women and Girls inquiry. [ 14 ] She believed that she was unfairly treated when her pre-interview queries to the [NAME_4] Manager went unanswered. She also questioned why she had been informed of the result of the competition by someone other than the [NAME_4] Manager. [ 15 ] The complainant questioned why a non-indigenous person had been hired when the respondent has a stated commitment to hiring indigenous candidates. She has a history of advocacy within the community and believes the members of the hiring panel did not assess her qualifications and experience in an unbiased way. [ 16 ] The respondent indicated that candidates are usually given the job posting and not the job description. While the respondent witnesses could not confirm how many applicants they had for the Health Manager role, some applicants were screened out. At least three members of the [NAME_2] were interviewed by a panel of three, two of whom are themselves members of [NAME_2]. [ 17 ] The job involved overseeing a large budget and diverse staff, partnering with outside agencies and groups and rebuilding the team and programs after a period of turmoil and turnover. The interview panel was looking for someone who could restore relationships with funders and could oversee and manage program development, rebuilding team morale and budget development. [ 18 ] All those interviewed by the panel were asked the same 15 questions and their responses were evaluated using a standardized rubric. The panel members concurred on the scores given and moved to further consider those candidates who had scored between 10 and 18. The panel did not move forward with the complainant’s candidacy because her score was not high enough. [ 19 ] The respondent witnesses, who were part of the interview panel, said they had been impressed by the successful candidate’s qualifications. She had over 20 years of experience in health care and had worked in management roles in the sector as a lead nurse and charge nurse in both acute and community care settings.

V. LEGAL ISSUES [ 20 ] The question in this case is whether [NAME_2] discriminated against [NAME_1], contrary to section 7 of the Act, on the basis of her sex, race, or national or ethnic origin, protected grounds under section 3 of the Act, during the job application process or by failing to hire her for the role of Health Manager. If a discriminatory practice is established, the next step would be to determine the appropriate remedy under section 53 of the Act. [ 21 ] Accordingly, the issues to be determined with respect to the complainant’s allegation of discriminatory treatment are:

1) Has the complainant established a prima facie case of discrimination? a. Does the complainant have a characteristic or characteristics protected under the Act? b. Did she experience differential treatment resulting in an adverse impact on her with respect to employment? c. Were the protected characteristics a factor in the differential treatment leading to the adverse impact? 2) If [NAME_1] has established a prima facie case of discrimination, did the respondent establish a valid justification or defence for the discriminatory practice? VI.

REASONS AND ANALYSIS A. Legal Framework [ 22 ] Under section 7 of the Act, it is a discriminatory practice to, directly or indirectly, refuse to employ an individual on a prohibited ground of discrimination. Sex, race and national or ethnic origin are prohibited grounds of discrimination under section 3 of the Act. [ 23 ] The initial onus of establishing a prima facie case of discrimination on a balance of probabilities lies with the complainant ( [NAME_5]) v. [COMPANY_5] ., 2015 SCC 39 at para 65 [“ [NAME_5]” ]; Moore v. British Columbia (Education) , [2012] SCC 61 at para 33)) . To do so, [NAME_1] must prove:

1) That she is identified by a prohibited ground of discrimination – in her case, sex, race and national or ethnic origin;

2) That she experienced adverse differential treatment – in her case, that she was not hired for the position of Health Manager; and 3) That there was a connection between her sex, race or national or ethnic origin and the respondent’s failure to hire her. [ 24 ] To establish discrimination, the prohibited ground does not need to be the sole or primary cause of a respondent’s refusal to employ a person. However, a complainant has the onus of proving a connection between the prohibited ground and the respondent’s impugned conduct ( [NAME_5] at paras 43–52). [ 25 ] In determining whether discrimination occurred, the Tribunal considers the evidence of all parties. A respondent can present evidence to refute an allegation of prima facie discrimination, put forward a defence to justify the discrimination, or do both ( [NAME_5] at paras 64, 67, 81). [ 26 ] If a complainant establishes a prima facie infringement of section 7 of the Act , the onus will shift to the respondent to prove, on a balance of probabilities, that there is a bona fide justification for the discrimination within the meaning of section 15(1) (a) or 15 (b) and that further accommodating the needs of the complainant would impose undue hardship on the respondent, considering health, safety and cost in accordance with section 15(2) of the Act . B. Has the complainant established a prima facie case of discrimination? (i) One or more prohibited ground [ 27 ] The complainant self-identifies as an indigenous woman and the respondent does not contest that the grounds of sex, race and national or ethnic origin are engaged. (ii) Adverse differential treatment [ 28 ] There is also no dispute that the complainant was not hired for the role following the competition for the Health Manager position. (iii) Connection between the adverse differentiation and the prohibited grounds [ 29 ] In my view, the complainant has failed to establish a connection between the prohibited grounds and the respondent’s conduct. This includes both the way the application process unfolded and the respondent’s decision to award the role to another candidate [ 30 ] Even if I were persuaded that a prima facie case had been established, I find that the respondent has provided a non-discriminatory explanation for its conduct that is reasonable and not a pretext for discriminatory behaviour. [ 31 ] The complainant’s allegations of discrimination can be grouped into two categories: firstly, pre-interview and post-interview interactions with respondent staff and secondly, the respondent’s decision to hire another candidate. I will deal with them in turn. a) Pre-Interview and Post-Interview Interactions. [ 32 ] The complainant alleges that the [NAME_4] Manager did not respond to her requests for additional information about the role, leaving her to follow up with the latter’s assistant. She also alleges that she received the news that she had not been hired from a [NAME_4] staff member who was not part of the panel, rather than the [NAME_4] Manager. [ 33 ] Firstly, there is no evidence that other candidates sought and received the information. The respondent’s witness confirmed that the job posting is provided to the parties, and the job description is usually not provided. Secondly, even if other candidates received communication about the results of the job competition from the [NAME_4] Manager, there is no evidence of differential treatment connected to the prohibited grounds raised by the complainant. The complainant herself confirmed that other indigenous female candidates had been contacted by the [NAME_4] Manager directly. b) Failure to Hire [ 34 ] Although the test established in Shakes v. Rex Pak Ltd. , (1982), 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001, at paragraph 8918 (Ontario Board of Inquiry) [“ Shakes ”] is no longer used to establish a prima facie case in hiring matters, the framework it provides can still offer some guidance in certain circumstances. [ 35 ] The relevant factors in Shakes are whether the complainant was qualified for the employment, whether they were not selected, and whether the successful candidate was no better qualified but lacked the distinguishing feature forming the basis of the complaint. [ 36 ] This Tribunal in [NAME_6] v [NAME_6] of Odanak Council , 2017 CHRT 4 [ “ [NAME_6] ” ] , outlined the test set out in Shakes and stated that it would be helpful in determining whether the prohibited ground of discrimination was a factor in the alleged adverse treatment. In doing so, it cautioned that “the test developed in Shakes serve(s) only as a guide and should not be applied in a rigid or arbitrary manner” and urged that “the circumstances of each case must be examined in order to determine whether the application of any of these criteria, in whole or in part, is appropriate” ( [NAME_6] at para 48). [ 37 ] In [NAME_6] the Tribunal found that the person who obtained the position was no better qualified and was, in the Tribunal’s view, less qualified than the complainant. The evidence does not support that conclusion in this case. [ 38 ] The complainant argued that, despite being an educated and highly qualified member of the community with relevant and equivalent skills, she was overlooked in favour of a female non-indigenous candidate. [ 39 ] In doing so, she appears to concede that her gender by itself was not the defining characteristic that she relied on to establish discrimination. In fact, the evidence showed that all applicants selected for an interview for the role were female. [ 40 ] In addition, a number of the candidates interviewed, some of whom were called to give evidence by the complainant, were indigenous women. Again, this suggests that the opportunity to compete for the position was not denied to candidates based on their indigeneity. It is also not in dispute that the interview panel was composed of three women and included indigenous representation on it. [ 41 ] Most relevant in this context is that the documentary evidence included information about the qualifications of the successful applicant. She was a member of a regulated health profession, who had worked as a lead nurse and charge nurse in both acute care and community health settings. She also had 20 years of experience in the health care sector and 5 years of management experience. These qualifications were clearly more relevant to the role of Health Manager than the complainant’s education and experience in social work, activism and advocacy. [ 42 ] In light of the above, I am not persuaded that the complainant has established a connection between the adverse impact and the prohibited grounds she has raised.

Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination. c) If [NAME_1] has established a prima facie case of discrimination, did the respondent establish a valid justification or defence for the discriminatory practice? [ 43 ] Because a prima facie case of discrimination has not been made out, the complaint is disposed of on that basis.

VII.

ORDER [ 44 ] For the reasons outlined above, I must dismiss this complaint. Signed by [NAME_7] Tribunal Member Hamilton, Ontario April 8, 2026 Canadian Human Rights Tribunal Parties of Record File No. : HR-DP-2985-24 Style of Cause: [NAME_1] v. [NAME_2] (Shíshálh) Decision of the Tribunal Dated: April 8, 2026 Date and Place of Hearing: February 18, 19 and 20, 2025 Heard virtually Appearances: [NAME_1] , Self-represented [NAME_8] , for the Respondent