Commission
canadlenne des
droits de la personne

human rights
Vi commission

 

investigation Report PROTECTEQ

 

 

I CompIain'tinformation-

Compiainent: Paui Ritchie Date Referred to investigation:
August 15, 2012

Respondentg?s): Canadian Armed Forces Date investigation Completed:
December 4, 2014

File Numberis): 20111882
Date Accepted: January 23, 2012

Sectionis) of the Act: 7, 10 14

Reievont Grounwsi: Sexual Orientation

 

Purpose

This investigation report is not a decision of the Canadian Human Rights Commission (the
Commission). The purpose of this report is to assist Commission members to determine

whether:
a) a conciliator should be appointed to attempt to resolve the complaint and/or;
b) further inquiry by a tribunal is warranted or;
c) the compiaint should be dismissed.

The Commission members do not determine whether discrimination has actuaiiy occurred,
but whether a compiaint requires further inquiry by the Canadian Human Rights Tribunal. in
determining whether or not to refer a complaint for further inquiry, the-Commission
members take into consideration all of the circumstances of the complaint.

When making a decision, the Commission members may also consider the foiiowing
circumstances:

a) What measures have been taken by theparties to resolve the issues
which give rise to the compiaint?

b) What are the positions of the parties with respect to an appropriate
remedy to the complaint, if the parties do take a position? What
remedies may he availabie to the parties?

c) How is the public interest engaged by this complaint?

The Canadian Human Rights Tribunai is a separate agency from the Canadian Human Rights
Commission and is comparable to a court. it is the Tribunai that decides if discrimination
under the Canadian. Human Rights Act has occurred. The Tribunai conducts a fair and
impartiai hearing in which it considers and weighs ail the evidence introduced by all parties
before issuing its written decision, setting forth its reasons and the remedy, if applicahie.

N.B.: THIS REPORT iS NOT A DOCUMENT Ann is NOT FOR
CETOH PARTIESTO 

     

Signature;

<an in

Hei?n Gillespie Date: December 11, 2014

Page 2 of 22

 

The Compfoint

 

 

 

1. At issue in this complaint is whether the respondent treated the complainant in an
adverse differential manner during his employment (March 2009 to February 2011)
because of his sexual orientation with the effect of termination of his employment
with the respondent. Specifically, the complainant alleged he was denied support
from the Officer training staff, directed to attend a Court Marshall where he had no
official duty, denied leave, denied an employment opportunity, failed a course and
denied training, denied redress and support during a Training Review Board hearing 
to determine his status, sent for medical appointments in order to find him unfit for
working, and generaily treated with less respect than his peers.

2. Also at issue in this complaint is whether the complainant was subject to harassment
because of his sexual orientation. Specifically, the complainant alleges that the
Commanding Officer referred to him as "a faggot?. The complainant also alleges
that comments related to jokes about women and "gay bashing? while spoken by his
peers, were tolerated by the instructors during his Officer training. The Complainant
says that he was subject to harassment when he was assigned different duties, such
as Duty Lockup.

3. The complainant alleged there was a policy complaint under Section 10 in his
complaint form, but indicated that other than the complaints as set out, there was
no allegation regarding a discriminatory practice or policy. Therefore, the policy
complaint under Section 10 is not investigated.

 

The Investigation Process

 

 

 

investigation of Alleged Adverse Differential Treatment in Employment
A. Steps in the investigation
Step 1:

The investigation will examine whether there is support for the complainant?s
allegation of adverse differential treatment by considering:

i. in relation to the conduct complained of, whether the complainant was
treated in a different manner as compared to other employees;

ii. whether this treatment involved negative consequences for the
complainant;

whether the complainant was treated differently based on his sexual
orientation. 

Step 2:
Depending on the investigator?s findings, the investigation may also consider:

i. whether the respondent can provide a reasonable explanation for its
actions that is not a pretext for discrimination on a prohibited ground.

Page 3 of 22

Investigation of Alleged Failure to Provide Harassment-Free Work Environment

A.

Steps in the investigation
Step 1:

The investigation will examine whether there is support for the complainant?s
allegation of harassment by considering:

i. whether the conduct alleged to be harassing occurred;

ii. whether the conduct was persistent or repetitious or, in the case of a
single incident, the incident was very serious;

whether the conduct was unwelcome;
iv. whether the conduct was linked to sexual orientation; and

v. whether the conduct detrimentaily affected the work environment or led
to adverse job-related consequences for the complainant.

Step 2:

Depending upon the investigator?s findings in Step 1, the investigation may also
consider:

i. whether the complainant notified the respondent of the harassment;

ii. if not, whether the respondent was aware, or should have been aware of
the harassment; and

whether the respondent took appropriate action to deal with the
harassment and to prevent the conduct from continuing.

The investigator interviewed the following people:

6 the complainant;

a Captain Luciano Carosielli, School Commandant for the respondent in 2010 and
2012 at its Naval Engineering School in Halifax;

a Lt. Kyle Sexton, Divisional Officer for the respondent at its Naval Engineering
Schooh

- Lt. Cdr. Andrew Sergeant, Divisional Officer for the respondent at its Naval
Engineering School:

a Lt. Joseph Chaput, instructor and the complainant?s assisting officer, later
Divisional Officer for the respondent at its Naval Engineering School;

0 Sean Kavanaugh, instructor;

0 it. lan Rector, Naval Training Officer for the respondent at its Naval Engineering
School from 2010 to 2012;
it. Alexi Vichnevetski, instructor at the reSpondent?s Naval Engineering School;
Lt. Rachel Baergen, peer in Officer Training;

a Lt. Cdr. Daniel Croucher, Engineering and Technical Training Officer at the
respondent's Naval Engineering School until June 2009.

The investigator reviewed the parties? positions and all documentary evidence
submitted during the course of the investigation.

Page 4 of 22

 

Background to Complaint

 

 

 

6. The complainantjoined the respondent in 2007 and passed basic training and
enrolled to become a Naval Combat Systems Engineer in August 2008. He 
completed Basic Military Officer Qualification on December 10, 2008 and was posted
to the respondent?s Canadian Naval Engineering School Officer Training Division in
British Columbia. The complainant has a computer science degree from Dalhousie
University and was directed into the Naval Engineering School, combat division for
further training. Following his successful completion of the Naval Environmental
Training Program he was enrolled in the Naval Engineering indoctrination course in
March 2009 at the respondent?s Naval Engineering School in Halifax. The
complainant was released from service at his own request in 2012.

7. The respondent is the armed forces for Canada, employing approximately 70,000 full
time people and 40,000 reservists. it is managed by the Armed Forces Council.

8. This complaint was subject to a Section 41 decision dated July 31, 2013, where
the Commission decided to deal with the complaint because "the complainant ought
not be required to exhaust the respondent?s internal process?.

 

The investigation

 

 

Investigation of Alleged Adverse Differential Treatment in Emniovment

9. The complaint alleges that he was not provided the same support as his peers while
he was at the Naval Engineering School from March 2009 to February 2011 when:

a. During his attendance at Naval Engineering indoctrination course in 2009, he
did not receive pre-boards, he was not placed on medical leave and still
required to write his exams, and the School Commandant did not follow the
Training Review Board?s recommendation; A

b. he was directed to attend a Court Martial where he had no official duty and
subsequently denied a "short day? leave, left off as note of appreciation and
denied annual leave;

c. he was denied an employment opportunity in 2010 aboard the i-liViCS Ville de
Quebec;

d. the respondent failed him on the EM/Antenna NCSEAC Serial 1001 course;

e. he was denied redress and support during Training Review Board Hearing to
determine his status in 2011;

l. he was sent for medical appointments in order to find him unfit for working.

A. 2009 Naval Engineering indoctrination iNEll Officer training
Step 1:

i. Was the complainant treated in a different manner as compared to other
employees? 
Background

10.The NEE is a course designed as indoctrination prior to beginning specialized subject
matter course work that would qualify members in their specific trade. it is broken
into three stages: the ashore phase consisting of classroom work (March 30-April
17, 2009); the afloat phase served aboard a ship (April 20 May 29, 2009),- and the

Page 5 onZ
assessment phase (June 1-lune S, 2009) that included an oral examination known as
Oral'Boards. 

11.The complainant alleges that during the April to June 2009 training at the Naval
Engineering School, Officer Training he was denied pre-boards, he was not
placed on medical leave and was required to complete the assessment phase in June
2009 that he failed. Subsequently the respondent?s ?training Review Board provided
a decision on July 30, 2009 that recommended the complainant be sent on another
course (re-coursed). The complainant alleges that he was required-to take his oral
examination in August as the Commander directed him to take another 
Qualification Board prior to August 31, 2009 and did not send him on another
course.

Pre?Boards

12. Pre-Boards are a form of practice in advance of the final Oral Boards (exams) that
members must successfully complete. Pre?Boards are organized by instructors and
are in front of a panel of three people comprised of subject experts and other
instructors.

13.The witnesses indicate that students/members are usually given 1 or 2 opportunities
at Pre?Boards prior to their final oral examination as a form of practice.

14.The complainant alleges that he missed the review week May 25-29, 2009 due to
medical reasons and on May 27, 2009, spent the afternoon at Clothing Stores to get
his uniform refitted. The complainant alleges that he had no Pro-Boards as did all his
classmates.

15. Minutes from the Training Review Board in 2009 were reviewed by the investigator
and it was noted that the complainant did not receive Pro-Boards.

Conclusion

lathe evidence supports that the complainant was treated in a different manner from
other students when he was not provided with the opportunity for Pre~Boards in
May 2009.

Medical Leave or call tostop training

17.The complainant alleges that when he had medical issues in May and June 2009, the
respondent denied him medical leave and insisted that he complete the training.

18. Divisional Notes are notes kept by either the instructor and/or the Divisional Officer,
identifying the positive and negative issues affecting the member?s candidacy in the
N55.

19. Both parties provided Divisional Notes dated May 27th, and 29?hindicating the
complainant suffered from headaches or had trouble with his eyes and was excused
from class based on medical chits he provided. Divisional Notes dated tune 3rd,
and Ethindicate the complainant had pain in his eyes and was excused to deal with it.

20.The complainant provided a medical note dated August 6, 2009, that indicated he is
it reading and computer for 10 minutes at a time with 2-3 minute break between
sessions for no more than two hours per day?.

Conclusion

21.The medical notes do not indicate that the complainant should cease training. it
appears that the complainant was excused from class when he provided the medical

Page 6 onZ
chits. As such, itdoes not appear that he was not treated in amanner different from
other students.

Failure to Follow Training Review Board (TRB) Recommendation July 30, 2009

22A Training Review Board (TRB) is held when a student fails a required course or fails
tomeet training standards established by the respondent. The TRB comprises
people not directly involved in the student?s training/education, makes a
recommendation to the student?s Commanding Officer (CO). The complainant?s CO
was i. A. S. Page. 

23.The complainant provided the conclusion dated July 30, 2009, that states the
complainant "was greatly affected by a lack of studying mainly caused by his ongoing
medical issue.? The TRB recommended that the complainant "be re-coursed on the
Naval Engineering Indoctrination course following the rectification of his medical
condition.?

24.The complainant provided the School Commandant?s recommendation that states:
"the recommendations of the Board are not supported. he recommendation is
signed byi.A. S. Page, Commander/Commandant and dated August 10, 2009.

25.The witnesses said that generally, TRB recommendations are followed by the School
Commandant, unless there is a strong reason to not follow the recommendations.
Further, the witnesses stated that only a School Commandant or Commander equal
to/or superior in rank to the Chair of the TRB could overrule the recommendation.

Conclusion

26.The complainant was treated in a manner different from other students when the
School Commandant did not support the recommendations of the TRB.

Summary of conclusions re 2009 NH training

27. The evidence supports that the complainant was treated in a manner different from
other students when he was not provided with the opportunity for Pre-Boards in
May 2009. it appears the complainant was treated in a manner different from other
students when the School Commandant did not support the recommendations of
the TRB. Therefore, the analysis into these allegations will continue.

28.The evidence does not support that the respondent treated the complainant in a
manner different from other students when italiowed him time off and when it
noted that he limit his study time.

ii. Did this treatment involve negative consequences for the complainant?

29.The complainant alleges that he failed his Oral Boards as a result of not having Pre?
Boards. Further, the complainant says that his medical condition reduced the
amount of time he had to study and this affected his ability to pass the 

30.'i'he complainant alleges that when the recommendations were not followed,
he was required to have his Oral Board exam in August 2009 and did not pass.

31.The respondent agrees that the complainant failed the Oral Boards in June and again
in August 2009.

Conclusion

32.The complainant was negatively impacted in that he iailedthe Oral Boards in June
and again in August 2009.

 Page 7 of 22
Was the complainant treated differently based on his sexual orientation?

33.The complainant alleges that he was treated differently during the course
because he is gay.

34. The witnesses deny knowing the complainant is gay. The witnesses says that his 
treatment was based on normal practice and process.

Conclusion

35. it is not possible to either confirm or deny a link between the complainant?s
differential treatment and his sexual orientation. Therefore, the analysis will
continue.

53.93.:

i. Can the respondent provide a reasonable explanation for its actions that is not
a pretext for discrimination on a prohibited ground?

36.The School. Commandant?s recommendation cited in paragraph #23further states:
"Given the complainant completed all but the Qualification Board associated with the
course, there is no requirement to wait a full year to progress his training. As
such, the complainant is directed to challenge another Quali?cation Board prior
to 31 August 2009. Additionally, Officer Training Division is directed to provide
training supports, keeping within the complainant?s Medical Limitations.?

37. Lt. (Navy) Andrew Sargeant says that he was the Divisional Officer at the time and
responsible for all administrative matters associated with the students/members
enrolled in the courses. Lt. Sargeant says that he discussed the option of completing
the Oral Board with the complainant and in his recollection, it was a mutual decision.
Lt. Sergeant says that the complainant had passed all the tosts and examinations and
only had to retry the final Oral Board. Success would mean that the complainant
would be able to stay with his current class. Further, Lt. Sargeant says that the
medical notes did not suggest an acute condition or one that prevented the
complainant from completing the Oral Board. -

38.The complainant acknowledges that he received two Pro-Boards in August 2009,
prior to the Oral Board. The complainant did not respond to Lt. Sargeant?s
statement that the decision to try the Oral Boards in August was a mutual decision.

39. Both parties provided documentation dated September 10, 2009 that the
complainant was re?coursed in 2010.

Conclusions

40.'l'he evidence supports that the respondent has provided a reasonable explanation
for its actions, in that the complainant had passed all the tests and examinations
associated with NEI and had not passed the final Oral Board. it seems a reasonable
explanation that given the opportunity to have practice in two Pro?Boards and retry
the final oral examination would benefit the complainant.

41.The evidence supports that when the complainant failed his second Oral Board in
August 2009, he was re-coursed, as per the Training Review Board?s
recommendation.

Page 8 onZ
3. Court Martial attendance, denial of short-day leave, name not on note of
appreciation and denial of leave 

Step 1:

i. Was the complainant treated in a different manner as compared to other
employees?

Court Martial attendance

42.The complainant alleges that while he was in Officer Training (OT), he was told to
attend a Court Martial for two weeks starting September 28, 20399 in which he had
no official duty. Further the complainant says the Court Martial was conducted in
French and he has no knowledge of French.

43.The complainant says that the OT Division was no longer his unit and therefore, no
longer his chain of command. The complainant states that at the time he had
officially signed in with the ship, HMCS Charlottetown.

44. The respondent says that military personnel are expected to perform the tasks and
functions assigned to them by their Chain of Command. The reSpondent says the
complainant was designated as an ?Escort?.

45. Documents provided by the complainant do not identify French literacy as necessary
for the role of escort. The documents do identify that other roles, such as court
orderlies required French comprehension.

46. Lt. Andrew Sergeant says that a request was made to his unit to provide an escort for
the Court Martial. Lt. Sargeant says that the complainant was assigned to the 
Charlottetown for more practical experience, not training per se and that the
complainant had been assigned there as opposed to sitting around the school
waiting to be re?coursed. Lt. Sergeant says that he did not have any other personnel
available for the Court Martial and the roie?of escort did not require-speaking
French.

47. it. Sergeant states that when students are assigned to a ship for training or practical
experience NES retains administrative approval and oversight for the student,
including assignment for other duties such as a Court Martial.

48.The complainant provided an email dated September 11, 2009 where the request
was made for "1 escort ?Junr?or Rank Officer - preferably at the rank of the accused
(ll/Sit) (OT DIV ifpossible)?and an email dated September 22, 2009 where the
complainant?s name is listed as the escort and an additional eight names were
assigned roles (for a total of 9 employees assigned to the Court Martial).

49.The complainant agrees that he had been assigned to the HMCS Charlottetown for
extra practical experience, not training per se.

Conclusion

50.The evidence supports that the complainant was selected to be an escort at a Court
Martial and although it appears he is the only person from the Officer Training
Division (OT there were eight other people assigned to the Court Martial.
Therefore, it does not appear that he was treated differently from other employees.
Therefore, questions ii, and Step 2 need not be addressed.

Denial of short-day leave and name left off note of appreciation

Page 9 of 22
51.The complainant alleges that subsequent to the end of his duty at the Court Martial,
on October 9, 2009, he was denied the "short day? leave provided to others who
were assigned to the Court Martial. The complainant says that this is a normal
practice, where people are provided a short day leave. The complainant provided an
email where other people attending the Court Martial were given a "short day?.

52.The complainant alleges that all people serving at the Court Martial were granted a
?short day leave? in accordance with the respondent's practice. The complainant
alleges that Cdr. D. Croucher, the Commanding Officer of NES removed his
name from the email granting him a short day leave, and removed hisnarne in the
letter of appreciation sent out to the higher authority.

53.The complainant provided a series of emails dated October 9, 2009 where the
Deputy Commandant, Donat Perron granted leave to 8 people. While two of the
I names mentioned in the September 22, 2009 email were not provided with the short
day leave, seven people in total were granted short day leave.

54.The respondent did not have a response to why the complainant?s name was not
listed on the note of appreciation.

Conclusion

55.The evidence identifies that the complainant was not allotted short day leave and it
appears that the complainant's name was not on a note of appreciation. it appears
that the complainant was treated in a manner different from other employees.
Therefore, the analysis will continue.

ii. Did the treatment involve negative consequences for the complainant?

56.The complainant alleges that he was not given the short day, extra leave that he
would have appreciated.

S7.The complainant alleges that by not being listed on the note of appreciation, the
respondent?s managers only noted negative things about him, never positive notes.

Conclusion

58.7he complainant did not get the short day leave, nor was his name listed on the note
of appreciation.

Was the complainant treated differently because he was gay?
59. Lt. Sergeant says that the granting of short day leave is discretionary.

60. Lt. Cdr. Daniel Croucher says that the only person to grant the short day leave is Cdr.
Page. However, Lt. Cdr. Croucher says it is still up to the Divisional Officer to
determine if the short day is warranted or not. Further, Lt. Cdr. Croucher? says that
while his division provided support for the Court Martial, he would not have been
involved in the selection of people, nor granting the short day leave.

Conciusion

61.There does not appear to be a link to the complainant?s sexual orientation.
However, in the interests of fairness, the analysis will continue.

Step 2

l. Can the respondent provide a reasonable explanation for its actions that is not
a pretext for discrimination because the complainant is gay?

10

Page 10 of 22
62. Lt. Sergeant says that there could have been a number of reasons for the denial of
the short day leave for instance, it would not be practical if HMCS Charlottetown
was leaving port the next day, or the complainant was not performing in his studies
or training to the standard required, he would not necessarily be granted extra
leave. Further, Lt. Sargeant says that attending a Court Martial as escort is not a
hard duty and would not merit the extra short day.

63.The email cited in paragraph #48 indicates that one other person in addition to the
complainant was not granted short day leave for duty at the court martial.

64.The respondent provided its Policy on "Short Leave?. it indicates that short leave is
to "reward exemplary work? or "compensate, in part, for long hours worked during
during extended periods of operations/training or working on normal days of rest. 

65.The complainant did not indicate that he had to work weekends during the Court
Martial.

66.The respondent says that providing notes of appreciation to its employees is
discretionary and based on exemplary behaviour by the employee.

Conclusion

67. it would appear that the respondent's Policy on "Short Leave? is a reasonable
explanation for not granting the complainant the short day.

68. it does not appear that the complainant?s name was not listed on the note of
appreciation because he is gay.

Denial of annual leave after Court Martial in 2009

69.l'he complainant alleges that he was first approved annual leave by Lt. Sergeant,
then denied leave by Lt. Cdr. Croucher and told to get approval from the Captain or
his designate on the HMCS Charlottetown.

70. Lt. Sergeant states that it is a shared responsibility and approval as referred to in
paragraph #47, in that he consults with the ship about issues such as approving
requested leave, particularly when the ship is in port (Halifalen the instance of the
complainant requesting annual leave, while he was working on the ship, it. Sergeant
says that the complainant would have to get the approval of both the school 
and the ship?s Captain or designate. I

71.The complainant provided an email dated September 24, 2009 from Lt. Sergeant
reminding the complainant to use his leave of 20 full days before March 2010.

72. in his complaint form, the complainant said that he was denied annual leave.
However, the complainant says that he was granted annual leave as requested but
spent extra time getting approval from both the school (NES) and the ship?s Captain
or designate.

Conclusion

73.The complainant was not denied annual leave although he had to spend extra time
getting approval from both the school (NES) and the ship?s Captain or designate. it
does not appear that the complainant was treated in a manner different from other
employees when he was asked to do this. Therefore, questions ii, and Step 2 need 7
not be addressed.

Summary of Conclusions with regard to the Court Martial



-'Page 11 of 22
74. The evidence supports that the complainant was not treated in a manner different
from other employees when he was selected to he an escort for the Court Martial.

75.The evidence supports that although the complainant was treated in a manner
different from other employees when he was-denied the short day leave and did not
receive mention on the note of appreciation, it would appear that the respondent?s
Policy on Short Leave is a reasonable explanation for not granting the complainant
the short day and it does not appear that the complainant was not'listed on the note
of appreciation because he is gay.

76.The complainant was not denied annual leave although he had to spend extra time
getting approval from both the school (NES) and the ship's Captain or designate. it
does not appear that the complainant was treated in a manner different from other
employees when he was asked to do this.

C. Denial of employment opportunity in the summer of 2010
Step 1;
i. Was the complainant treated in a different manner as compared to other
employees?

77.The complainant alleges that he was denied posting to i-liViCS Ville de Quebec in the
summer of 2010.The complainant alleges that it. Marc Larabie offered him a
position on Ville de Quebec. The complainant alleges Petty Officer
MacDonald refused to consider posting him to the ship.

78.The complainant alleges that other students were offered postings during the
summer of 2010.

79.The respondent has no record of the complainant being denied a posting on a ship in
the summer of 2010.

80. Lt. Cdr. Croucher says that PC) MacDonald did not have the authority to post or deny
a posting to the complainant.

81.The witnesses all agreed that NES students are posted to ships for practical
expedence. 

Conclusion

82.There was no evidence provided by either party to suggest that the complainant was
denied a posting. However, if it was true, the complainant would have been treated
in a manner different from other students as the parties agree that NES students are
posted to ships for practical experience. 

ii. Did the treatment have negative consequences for the complainant?

83.The complainant says that he was required to stay at NES and do menial tasks and
was not provided an opportunity for practical experience during the break between
his courses.

84.The respondent says that its Chain of Command can direct students and its
employees to do tasks as it deems.

Conclusion

85.The complainant did not gain further practical experience.

12

Page 12 of 22
Was the complainant treated differently because he was gay? 

86. The complainant alleges that other students were encouraged to seek employment
opportunities on ships and were posted to those ships, while he was not.

87.The complainant alleges that he was the only gay student at NES at the time and the
only person denied the opportunity of a posting on the HMCS Ville de Quebec.

88.The witnesses state that no one at NES asks students if they are gay.

89. Lt. Chaput says that it is a personal choice to for people to identify if they are gay. Lt.
Chaput says that there were certainly gay people in classes before and after the
complainant, but cannot recall if there were people who were gay in the
complainant?s class.

Conclusion

90. One can neither link nor deny a link to the complainant being gay when he was not
posted to the HMCS Ville de Quebec.

Step 2

i. Can the respondent provide a reasonable explanation for its actions that
is not a pretext far discrimination because the complainant is gay?

91. Lt. Cdr. Croucher says that appointments to ships are dependent on availability, and
usually the Divisional Officer (Lt. Andrew Sergeant) and the instructors evaluate
students and the opportunity for learning and the time period for the posting.
Further, Lt. Cdr. Croucher says that 4-6 weeks gap in training is usually spent doing
work around the school, some of it menial.

92. Lt. Cdr. Croucher says students were not encouraged to find placements during 
and there is no set plan for placements outside of the required placements for the
school courses. Further, Lt. Cdr. Croucher says that they encourage students to
interact with crews on ships, informally and tour any-ships in the Halifax area.

93. Lt. Cdr. Croucher says that posting of students on ships is challenging given the
number of students as there are 5 divisions seeking postings and a limited number of
ships available. Lt. Cdr. Croucher says that there were about 50 students enrolled in
his division at NES at the time.

94. the parties provided documents that the complainant completed his re-course of
the NEI July 14, 2010 and started his Naval Combat Systems Engineering Academic
Course (NCSEAC 1001) September 6, 2010.?This would allow a gap of approximately
6 weeks.

95.'ihe complainant provided an email dated July 8, 2010 from Lt. Marc Larabie from
the HMSC Ville de Quebec that says "You should request a ship that is not in DWP or
Refit in order to progress your 000 qualification. We can?t do that at this time since
we don?t have a ship. Further, a series of emails dated July 16, 2010 between the
complainant and Lt. Larabie, discuss the complainant dropping in to the ship and Lt.
Larabie providing directions.

Conclusions

13

Page 13 onZ
96.The evidence provided identifies that the complainant completed his re?course
July 14, 2010. The evidence supports that the complainant was between courses at
NES. 

97.The evidence does not identify that the respondent denied the complainant a
posting on the HMCS Ville de Quebec.

'98.The respondent?s explanation that posting students to ships (or placements) are
managed within the context of the school program appears to be a reasonable
explanation that is not a pretext for discrimination because the complainant is gay.

0. Failure on EMZAntenna NCSEAC Serial 1001 Course
Background

99. in order to quality as a Naval Combat Systems Engineer in the respondent?s Navy
division, one must take specialized courses and pass examinations that quality the
person in his/her trade.

100. Courses are marked according to the standards in the respondent?s Qualifications
Standards and Plans (QSP).

101. The QSP marking scheme is weighted 30% for assignments and 70% tests (with two
tests noted). A passing grade is 60%. 

Step 1:

i. Was the complainant treated in a different manner as compared to other
employees?

102. The complainant alleges that the respondent failed him on an EM/Antenna NCSEAC
Serial 1001 Course that he started in September 2010. Further, the compiainant
says that he was the only person to fail the course.

103. The complainant alleges that the respondent used an incorrect marking scheme for
the Eivi/Antenna NCSEAC Serial 1001 Course and his mark was the only one to be
significantly impe cted.

104. The respondent agrees that the complainant was given a failing mark on the
EM/Antenna Serial 1001 Course and that he (complainant) was the only
person to fail this course during this time period. Further, the respondent says that
the complainant?s mark was the only one to be significantly impacted by the use of
the QSP marking scheme.

105. The respondent agrees that the instructor handed out a marking scheme at the
beginning of the class that did not conform to the standard normally used in its
QSP. .

106. Both parties agree that the instructor erred by administering two tests and one
exam rather than just the two tests specified in the QSP.

107. The respondent says that its practice in errors of due process is ?to always err in
favour of the student?. According to the respondent?s Initial Authority in the
complainant?s grevance, if the unofficial school policy were applied as a course of
action, the complainant would have passed the course.

108. The investigator reviewed the initial Authority decision regarding the
complainant?s gr evance provided by the parties.

M-

Poge 14 onZ
Conclusion

109. The evidence supports that as a result of the grievance process, it was determined
that while the Qualification and Standard Plan (QSP) was applied, an incorrect
marking scheme was handed out at the beginning of the course. Consequently,
when the QSP was applied, the complainant failed the ENE/Antenna NCSEAC Serial
1001 course.

110. The evidence supports that all his peers were subject to the same marking scheme.

111. The evidence appears to support that the respondent?s practice to err on behaitt oi
the student was not applied to the complainant?s case. in this, the complainant
was treated differently. Therefore, the analysis will continue.

ii. Did this treatment have negative consequences for the complainant?

112. The complainant was subject to a Training Review Board in February 2011 that
recommended he be removed from NCS Engineering training.

113. The complainant grieved the matter of his removal from NCS Engineering training.
The complainant alleges that he resigned from the respondent?s employment in
2012, prior to the respondent?s Initial Authority rendering a decision.

Conclusion

114. The treatment had significant negative consequences for the complainant as he
was removed from NCS Engineering training.

115. The complainant requested that he be. released from the respondent in 2012.
Was the complainant treated di?erently based on his sexual orientation?
116. The complainant alleges that he was treated differently because he is gay.

117. The witnesses deny knowing the complainant?s sexual orientation at the time oi
the incidents.

118. The respondent says that the complainant?s sexual orientation had nothing to do
with the manner in which he was treated when it did not apply its practice to err
on behalf of the student.

Conclusion

119. While there does not appear to be a link to the complainant being gay, the
respondent did not apply its practice to err on behalf of the student. Therefore, in
the interests of fairness the analysis will continue.

Step 2:

i. Can the respondent provide a reasonable explanation for its actions that is not
a pretext for discrimination on a prohibited ground?

120. The respondent says that the difference in handout and marking schemes was not
discovered when the course was completed in January 2011, nor during the
Training Review Board held in February 2011. The respondent says that the
complainant raised the issue of the different marking schemes in August 2011 and
subsequently in his grievance filed September 15, 2011.

121. The respondent provided documentation that the complainant was provided with
the opportunity to write supplemental examinations when he failed courses.

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Page 15 of 22
122. Both parties provided documentation that the complainant was recommended re-
assignment to a non-technical officer occupation.

123. Lt. Alexi Vichnevetski says that he taught electronics and electronic warfare at the
respondent?s Naval Engineering School in 2010 and 2011. Lt. Vichnevetski says
that the complainant failed three courses, had the lowest marks among the
students and that he did not participate in class.

124. The respondent provided a "Student Military Assessment record sheet? dated
ianuary 17, 2011, where it is noted that the complainant refused to go to the
board when asked by Lt. Vichnevetski and was assigned zero for the category and
overall given 3 out of 10.

125. Sean Kavanaugh says that he taught the Antenna Theory course as well as four or
five other courses. Mr. Kavanaugh says that the complainant did well in his
assignments, but failed the tests. Mr. Kavanaugh says that the complainant was
given opportunities to re-write his tests that he subsequently failed.

126. The witnesses state that the complainant was offered academic assistance many
times and did not avail himself of the extra help.

127. Divisional notes provided by both parties were reviewed by the investigator.
Conclusion

128. The evidence supports that the difference in the marking scheme handed out and
the QSP was identified approximately 6 months after the course ended.

129. The evidence supports that the respondent at the time, provided the complainant
with opportunities to re-write examinations after failure and that it determined
that another occupation would be more suitable for the complainant. Therefore, it
appears that the respondent acted in a reasonable manner that is not a pretext for
discrimination because the complainant is gay.

E. Training Review Board 2011
Step 1:

i. Was the complainant treated in a different manner as compared to other
employees? 

130. The complainant alleges that the Divisional information provided to the Training
Review Board hearing was "tainted, flawed, inaccurate and in some instances not
true.? The complainant alleges that the TRB hearing in February 2, 2011 was not
held according to the respondent?s practices and policies, specifically when it. Cdr.
Meade delayed the complainant?s appearance and ability to speak to the Board.
Further, the complainant alleges that Lt. Cdr. Meade subsequently told the
complainant to "stop speaking? and that the complainant should only respond to
questions from the Board.

131. The parties provided the TRB Process and i?rocedure that states "the trainee must
have the opportunity to address the board.?

132. The complainant alleges that he was not allowed redress during this Training
Review Board and further, that he was not provided with support.

133. The complainant says his first TRB in 2009 gave him lots of time to ask questions,
address the board and otherwise establish his issues with the courses.

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Page 16 of22
134. tt. .loseph Chaput was the Assisting Officer assigned to assist the complainant with.
his TRB in February 2011. Lt. Chaput says that he spent a significant amount of
time with the complainant and Lt. Rector getting the documents ready to the
satisfaction of the complainant. Lt. Chaput attended the TRB with the
complainant.

135. Lt. Chaput says that members are allowed to address the board and that it may be
5 to 10 minutes or up to 20 minutes if the board has questions or doesn?t have all
the information. 

136. Both parties provided the minutes of the Training Review Board in February 2011
and subsequent grievance filed.

137. The TRB minutes reflect that the complainant was able to state his issues as
reflected under "Member's Concerns?.

138. The complainant provided the grievance documents and decision from the
respondent's Initial Authority that support his allegation that there were
inaccuracies in the notes provided to the TRB. These inaccuracies included
incorrect dates, lack of written warnings to re-write tests, incorrect statements and
contradictory statements.

Conclusions
139. The evidence supports that the complainant was allowed to address the TRB.

140. The evidence supports that the complainant was assigned an Assisting Officer and
further, that time was spent with the complainant preparing the documents prior
to the TRB.

141. The evidence does support that there were inaccuracies in the notes provided to
the TRB and in this, the complainant was treated in a manner different from other
employees. Therefore, the analysis will continue.

ii. Did this treatment have negative consequences for the complainant?

142. The complainant alleges that because there were inaccuracies in the notes for the
TRB, its recommendations were flawed.

143. The complainant alleges that this resulted in his removal from the NCS Engineer
. program and he resigned from the respondent.

144. The respondent does not dispute that the treatment had negative consequences
for the complainant. However, the respondent says the complainant was provided-
with the choice to be re?assigned to a non-technical officer occupation.

Conclusion

'145. The treatment had negative consequences for the complainant in that he was
removed from training in his preferred trade with the respondent.

Was the complainant treated differently based on his sexual orientation?

146. The complainant alleges that the inaccuracies in the notes presented to the TRB in
2011, were intended to remove him from training because he is gay.

147. The respondent acknowledges that there were inaccuracies in the notes presented
to the TRB but deny that it was because the complainant is gay.

Conclusion

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Page 17 of 22

148. The evidence does not link nor deny a link to the complainant being gay.

Therefore, in the interest of fairness, the analysis wili proceed.

Step 2:

Can the respondent provide a reasonable expianation for its actions that is not
a pretext for discrimination on a prohibited ground?

149. The respondent says that the complainant was supposed to be managed within a

four?stage Student Review Process consisting of an initial Warning, Final Warning,
Progress Review Board and Training Review Board. The respondent says that this
shouldhave been completed on a weekly basis such that all academic incidents
within the week, starting on Friday and ending on the following Thursday wouid be
recorded per subject on one Warning Sheet.

150. The respondent agrees with the compiainant when it did not apply its four?stage

8

Student Review Process in four separate examples:

when the compiainant failed the EM/Antenna Theory Course test #2 on
December 10, 2010 and was issued a final warning on January 5, 2011. As the
final examination was December 17, 2010, it was not timely;

when the complainant failed the Radar Theory Course testtil on November 22,
2010 and was issued an Initial Warning on January 21, 2011;

when the complainant failed the Radar Theory Course test #2 on January 11,
2011, and was issued a Final Warning on January 21, 2011;

when the complainant failed the EM/Antenna Theory Course testitl on October
29, 2010, the initial Warning was not signed nor dated and the second version
was dated December 14, 2010.

151. The respondent agrees with the complainant that an initial Warning dated

September 13, 2010 was for failing the Fiuid Power test not the Antenna
Theory Course #1 as written.

152. The respondent agrees with the complainant that divisionai notes disciosed to the

TRB were inaccurate when:

it referred to medicai notes on October 18, 2010 as dealing with an specialist
and tinted glasses, rather than the sick parade note that the complainant was at
the hospital that day for treatment of a sinus infection;

Sean Kavanaugh noted that the EM/Antenna Theory Course commenced on
September 10, 2010, when it actually commenced on September 22, 2010;

when Mr. Kavanaugh stated the supplementai exam was written on January 19,

2011 but it was actualiy written on ianuary 20, 2011;

when Mr. Kavanaugh stated that the date set for the suppiementai exam was
January 4, 2011, but it was actuaily January 5, 2011.

153. The respondent agrees with the complainant that the incorrect marking scheme

was handed out for EM/Antenna Theory Course (dealt with under section in this
report).

154. Both parties provided documents related to the matters cited in paragraphs #149

to #153.

Conclusion

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Page 18 onZ
155. The respondent has provided a reasonable explanation in that there were
inaccuracies in the report to the T38. However, the inaccuracies as presented by
the parties do not appear to be a pretext for discrimination because of the
complainant?s sexual orientation.

F. Medical issues

Step 1:

5. Was the complainant treated in a different manner as compared to other
employees? -

156. The complainant alleges that the respondent tried to have him identified as having
medical limitations on October 28, 2010 when he had been diagnosed with a
chronic sinus infection.

157. The complainant provided his "Employment Limitations for Return to Work? dated
October 18, 2010 indicating modified duties for 7 days.

158. The complainant alleged that he was provided with tinted corrective glasses and
that the glasses were referred to as "sunglasses" by his teachers and this was a
medical limitation.

159. Lt. Joseph Chaput says that tinted glasses are normally not accepted in the
classroom setting, as students may be sleeping or otherwise not paying attention
to the instructor. Lt. Chaput says that the complainant was allowed to wear the
glasses in class.

160. The complainant alleges that medical notes were altered when his Divisional
Officer, 1t. Sexton, added information to the notes. 

161. The respondent says that it provides its members with medical care to ensure they
recover entirely and return to work both mentally and physically healthy.

162. The complainant provided a copy of the medical note dated February 3, 2011
where he was excused from duty for 2 days and February 7, 2011 where the note
says?awaiting specialist?s report?. It appears that Lt. Sexton has written in a box
entitled ?S?ldditional details? comments that the complainant saw the doctor about
a sleep issue and that the issue affects the member?s sleep.

163. Lt. Sexton says that he would only write in additional notes if the member had told
him information relating to the medical issue and its potential impact on the
member, such as his/her ability to study.

164. The complainant provided medical notes outside the time of this complaint, March
14, 2009 to February 2011.

165. The investigator reviewed the respondent?s Policy on "Selected Medical Conditions
for Employment Limitations.?

Conclusion

166. The evidence supports that the complainant was allowed to wear prescription
glasses in class.

167. The evidence supports that the complainant was excused from duty when he
provided medical notes.

168. The evidence does not support that the respondent attempted to have the
complainant identified as having medical limitations.

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Page 19 of22
169. The evidence does not support that the respondent treated the complainant in a
manner different from employees. Therefore, questions ii, and Step 2 need not
be addressed.

Investigation of Alleged Failure to Provide Harassment-Free Environment

A. 2009-2010 incidents
Step 1:

i. Did the conduct alleged to be harassing occur?

170. The complainant alleges that there were many incidents and the training staff
created an unwelcoming environment for him because he was gay.

171. The complainant cites an incident on October 9, 2009, where the Commanding
Officer (CO), L. Cdr. D.P. Croucher of his unit made a comment, "This should shut
the faggot up.?The complainant says that he overheard the comment made to it.
Andrew Sergeant, when tt. Sargeant went in to get the complainant's leave
approved.

172. The respondent says that it is a non-corroborated incident that was never reported
to them at the time.

173. it. Cdr. Croucher denies making the comment.

174. Lt. Sergeant says that he "absolutely did not hear L. Cdr. Croucher make that
comment? in reference to the complainant or anyone else. Lt. Sergeant says that
he himself is gay and he and his husband are welcome at all events hosted by the
respondent, including having a personal friendship with t. Cdr. Croucher.

175. The complainant alleges that ?gay bashing" is often used for comic relief in his
Division among the other trainees and that such comments were not frowned
upon by the training staff.

176. Rachel Baergen, a student at the respondent?s Naval Engineering School at the
time says that she overheard Lt. Joseph Chaput sayi"certai_n people are just not
made for the military? and followed the comment by referring to the complainant.

177. Lt. Chaput says that although the complainant felt singled out, he never was. He
was not doing well in the courses and never made friends easily. tt. Chaput says
that he did warn the complainant that he should re?consider his employment with
the respondent as he (complainant) was not meeting the respondent?s standards.

178. The witnesses indicate that gay bashing is not tolerated.
Conclusion

179. The witnesses do not agree that the conduct alleged to be harassing occurred.
Therefore, the analysis will continue.

ii. Was the conduct persistent or repetitious or, in the case of a single incident,
was the incident very serious? and,

180. The complainant did not provide any other examples.

181. The comments allegedly made by Lt. Cdr. Croucher were not corroborated by
witnesses.

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Page 20 on2
182. The complainant says that he did not report the comment allegedly made by Lt.
Cdr. Croucher because he considered it to he a "one-o f? comment.

Conclusion

183. The conduct as reported in a single incident is not very serious. Therefore, since
the conduct was neither persistent nor repetitious, nor very serious, questions 
iv, and Step 2 need not be addressed.

8. Duty Lockug
Step 1:

i. Did the conduct alleged to be harassing occur?

184. The complainant alleges that he was subject to many months of harassment,
retaliation and humiliation from Feb 7, 2011 onwards while he was designated as
?ersonnel Awaiting Training (PAT). -

185. The complainant alleges that he was required to do "duty lockup" on Thursday
April 21, 2011 prior to the Easter long weekend to replace a person leaving early
for New Brunswick. The complainant says that he and one other person, Rachel
Baergen, were ordered to do it and normally there would only he one person.

186. According to witnesses, duty lockup is usually performed by one person and
involves making sure the windows and doors are locked after everyone leaves at
the end of the day. It also involves walking around the outside of the building as a
check.

187. This example of alleged harassment is not within the timelines of the complaint (to
February 2011). However, it is the only specific example provided by the
complainant.

188. in an email dated April 21, 2011, the complainant wrote that shortly after PO
MacDonald informed the class that they would be granted "sliders" for the day
starting at noon (granted the rest of the day off), he {complainant} and Lt. Baergen
were informed they had duty lockup.

189. The respondent states that military personnel are expected to perform the tasks
and functions assigned to them by their Chain of Command.

190. The witnesses indicate that lockup and other duties were sometimes
so that other students could leave early. According to witnesses, extra duty could
be viewed as punishment, or staying late to allow other people to leave, meant the
other students had earned the right to leave early.

191. Rachel Baergen says that she agreed with the complainant that they were treated
differently from other employees. tt. Baergen says that she is gay.

Conclusion

192. The complainant and Rachel Baergen were assigned to "duty lockup?, a task
normally given to one person. As such, the conduct alleged to be harassing,
occurred.

ii. Was the conduct persistent or repetitious or, in the case of a single incident,
was the incident very serious?

193. The complainant alleges that this order was an example of the type of harassment
he suffered.

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Page 21 of22
194. the complainant says that neither he nor Rachel Baergen could leave the base
early for the long weekend. 

195. The respondent states that the decision to have the complainant on "duty lockup?
is not related to a prohibited ground.

Conclusion

196. The conduct is a single incident and is not very serious. Therefore, questions iv,
and Step 2 need not be addressed.

 

Summary

 

 

 

197. As to the allegations of adverse differential treatment:

0 With regard to the matter of the Naval Engineering indoctrination 
course in 2009, the evidence supports that the respondent provided a
reasonable explanation for its actions, in that the complainant had passed all
the tests and examinations associated with NEI and had not passed the final
Oral Board. It is a reasonable explanation that given the opportunity to have
practice in two Pre-Boards and retry the final oral examination would benefit
the complainant. Further, the evidence supports that when the complainant
failed his second Oral Board in August 2009, he was re-coursed, as per the
Training Review Board?s recommendation;

9 With regard to the complainant?s allegations with his attendance at the Court
Martial, the evidence supports that the complainant was not treated in a
manner different from other employees when he was assigned as an Escort
for the Court Martial. With regard to the denial of short day leave and being
left off the note of appreciation, while the complainant was treated in a
manner different from other employees, the reSpondent?s Policy on Short
Leave is a reasonable explanation for not granting the short day and it does
not appear the complainant was not listed on the note of appreciation
because he is gay. With regard to the allegation of denial of leave, the
complainant was approved for annual leave, although he had to spend extra
time getting approval from both the school (NES) and the ship?s Captain or
designate. it does not appear that the complainant was treated in a manner
different from other employees when he was asked to do this;

0 With regard to the denial of an employment opportunity in the summer of
2010, the evidence does not identify that the respondent denied the
complainant a posting on the HMCS Ville de Quebec. Further the respondent
provided a reasonable explanation when it says that posting students to ships
are managed within the context of the school program.

a With regard to the complainant being failed on the Emil/Antenna NCSEAC -
Serial 1001 course, while the evidence supports that all his peers were subject
to the same marking scheme as designated by the respondent?s Qualifications
Standards and Plans (QSP), it does not appear that the respondent adhered to
its practice to "err on the side of the student?. However, the evidence
supports that the respondent provided a reasonable explanation for its
actions that is not a pretext for discrimination based on the complainant?s
sexual orientation when the error was not discovered for approximately 6
months after the course ended and the complainant was provided with
opportunities to re-write examinations after failure and the respondent
offered the complainant another occupation;

 

22

Page 22 of 2.2

a With regard to the Training Review Board (TRB) in 2011, the evidence
supports that the complainant was provided with time to address the TRB and
was provided with an Assisting Officer. However, the respondent treated the
complainant in a manner different from other employees when notes
provided to the TRB were inaccurate and the respondent failed to follow its
own processes for its four-stage Student Review Process. However, the
respondent provided a reasonable explanation that the inaccuracies do not
appear to be a pretext for discrimination because of the complainant?s sexual
orientation;

a With regard to the complainant?s medical issues, the evidence supports that
medical care was provided to the complainant in a manner that was not
different from other employees.

198. As to the allegations of harassment:

0 With regard to the allegations of harassing comments, the single incident
alleged by the complainant to have occurred, is not very serious;

a" With regard to the assignment to duty lockup, the singled incident, while it
occurred is not very serious.

 

What measures have been taken by the parties to resolve the issues which give rise
to this complaint?

 

 

199. The complainant filed a grievance with the respondent.

200. The parties did not participate in mediation as the complainant declined the offer
from the respondent.

 

What are the positions of the parties with respect to on appropriate remedy to the
complaint, if the parties do take position?

 

 

 

201. The complainant wants compensation that would properly reflect his salary,
benefits, and contribution to pension that a 21-year service with the respondent
would bring. The complainant declines to name a dollar figure, but notes that he
would also request compensation for pain and suffering and humiliation.

202. The respondent wants the case dismissed.

 

 

 

Recommendation

 

203. it is recommended, pursuant to subparagraph of the Canadian Human
Rights Act, that the Commission dismiss the complaint because:

0 Having regard to all the circumstances of the complaint, further inquiry is not
warranted.