Tahmourpour vs. Attorney General of Canada
Tahmourpour vs. Attorney General of Canada 2010 FCA 192
The facts of this case in which the Tribunal found the RCMP responsible for discriminating against Ali Tahmourpour on the basis of race and religion are outlined HERE.
The Attorney General of Canada appealed the Tribunal's Case to Federal Court, where a judge found several errors in law in the Tribunal's reasoning and set the case back to the Tribunal for another hearing by a different member. This is the appeal of the Federal Court's decision.
- Did the Tribunal err when it found that the RCMP had adversely discriminated against Tahmourpour when one of its training officers announced that that Tahmourmour was being allowed to wear religious jewellery contrary to RCMP policy?
- Did the Tribunal err when it accepted a report based on RCMP data that not been properly accepted into evidence?
- Did the Tribunal err when it relied a report based on other data that had been properly accepted into evidence?
- Did the Tribunal err when it concluded that Tahmourpour's poor performance was due, in part, to discriminatory treatment which impaired his ability to perform and to improve?
- Was it reasonable for the Tribunal not to cap the top-up compensatory damages for the complainant?
- The Court of Appeal determined that the evidence supported a finding of adverse discrimination because the announcement resulted in Tahmourpour being treated differently by his troop mates that day and for several days following the incident. It ruled that the Federal Court was wrong to have found that the Tribunal erred in this respect.
- The data in question here was compiled by the RCMP and analyzed in a RCMP report on attrition rates. Tahmourpour had the raw data (contained in the report) analyzed by his own team of experts. The Tribunal did not accept the RCMP report into evidence but did accept the complainant's expert report. The Federal Court ruled that the Tribunal had erred. The Court of Appeal determined that the "Tribunal is entitled to receive and accept any evidence as it sees fit, whether or not that evidence is or would be admissible in a court of law subject only to two exceptions that have no application in this case" (29)
- The data in question here were attrition rates of all racialized and non-racialized students from the year Tahmourpour was expelled permanently from the training program. The Federal Court agreed with the Attorney General that the data should have been limited to students in Tahmourpour's position, i.e. only those who had been expelled by the RCMP from the program and should have excluded those who had left for other reasons. The Court of Appeal disagreed; it ruled that it was reasonable for the Tribunal to include the more inclusive data and to infer that this evidence provided some support for the complainant's claim of discrimination" given the statistical evidence and other evidence in the record [...]". (33)
- The Court of appeal ruled that three facts supported the Tribunal's ruling: 1) the fact that Tahmourpour had approached one of his evaluators to complain that the latter's abusive treatment was adversely affecting his performance, 2) the fact that Tahmourpour testified that he felt isolated, uncomfortable and vulnerable amongst his fellow cadets who made racist remarks that went uncorrected and 3) the fact that an instructor at the Dept testified that Boyer's abusive treatment of cadets targeted mostly, and most severely, racialized cadets, which adversely affected their ability to perform.
- The Tribunal's order was double. The first part ordered compensation for Tahmourpour for lost wages in the period from the termination to the conclusion of the hearing. The second part ordered a top-up compensation for Tahmourpour from the conclusion to the hearing until such time that he accepted or rejected an offer of readmittance. The Federal Court agreed with the Federal Court that the second part of the order was not reasonable