Executive Summary: Key Legal and Evidentiary Issues

• The Applicant alleged he was demoted on the basis of race, colour, and/or disability during a national restructuring program called IRIS, contrary to section 7 of the Canadian Human Rights Act

• The Canadian Human Rights Tribunal found insufficient evidence linking the demotion to any protected ground, as mapping decisions were based on performance, tenure, and geography

• Two White comparator employees in the same district were promoted to higher pay levels under the same restructuring, but their branches met different staffing criteria

• The Applicant's evidence of systemic discrimination was characterized as general and impressionistic, lacking corroborating statistical data

• Procedural fairness claims regarding alleged bias and late disclosure of an investigation report were rejected as unsubstantiated on the record

• Supplementary evidence from Canada Industrial Relations Board proceedings was deemed inadmissible as it was not before the original decision maker

Background and employment history

Christian Jesus Jonathan Jacob Miller, a Black man of African Caribbean descent, worked for the Toronto-Dominion Bank for about eight years. In March 2015, he commenced a full-time Financial Advisor position in Saskatoon. In March 2017, he accepted a promotion to Manager of Customer Service and Sales at the bank's Owen Sound branch, moving from pay level 6 to pay level 7. In October 2017, he received a performance assessment of "D" for developing in his new role.

The IRIS restructuring program

In early 2017, the Respondent approved IRIS, a national restructuring initiative directed at cost savings and profitability. The program sought to eliminate positions said to have become redundant in light of changes in customer banking behaviour, including greater reliance on internet banking, ATMs, and other technology. The program rolled out nationally in the first months of 2018 and affected approximately 961 employees, including 119 employees in MCSS positions. Under the restructuring framework, rural branches with Branch Managers had their MCSS positions eliminated.

The Applicant's demotion and comparator employees

Under IRIS, the Applicant's MCSS position at the Owen Sound branch was eliminated because the branch had a dedicated Branch Manager. In about March or April 2018, the Applicant was mapped into a Financial Advisor role at the Port Elgin branch at pay level 6. His pay was maintained at level 7 for two years, and he received an additional $500 to account for increased travel. Two other employees in the Applicant's district whose MCSS positions were also eliminated were White men. Their branches met minimum staffing requirements to create Manager Financial Services positions as part of the restructuring, and both were promoted into those new positions at pay level 8.

The human rights complaint and Tribunal proceedings

The Applicant filed a human rights complaint dated February 22, 2019. The Canadian Human Rights Commission referred the matter to the Canadian Human Rights Tribunal for inquiry on whether the Applicant's race, colour, and/or disability was a factor, directly or indirectly, in the Respondent's decision to demote him when it implemented IRIS. The Tribunal held a multi-day virtual hearing on March 26-27, 2024, and May 29-31, 2024. The Applicant began the hearing self-represented and later was represented by counsel for portions of his evidence and for cross-examinations and final submissions. On August 1, 2024, the Tribunal dismissed the Applicant's complaint.

The Tribunal's findings

The Tribunal accepted that the Applicant satisfied the first two elements of the prima facie discrimination test—having protected characteristics and experiencing adverse treatment in employment. However, the Tribunal found insufficient evidence that race, colour, and/or disability was a factor in the adverse treatment. The Tribunal accepted the Respondent's evidence about the design and implementation of IRIS, including that it did not track or use employees' protected characteristics, and that performance, tenure, and geography were the relevant factors in mapping displaced employees into vacancies. The Tribunal found that the two employees who were promoted from their eliminated positions into new Manager Financial Services positions at pay level 8 had high performance ratings, lengthy tenure, and strong familiarity with their branches and communities.

The judicial review analysis

On judicial review, the Applicant argued that the Tribunal misapplied section 7 of the CHRA by failing to recognize adverse effect and systemic discrimination. The Court found that the Tribunal set out the correct legal test for prima facie discrimination and understood that discrimination may occur without direct evidence of intent. The Court held that the Applicant's arguments fundamentally challenged how the Tribunal weighed evidence and drew inferences, which does not establish unreasonableness. The Court also rejected procedural fairness claims regarding alleged bias and late disclosure, finding no specific evidence demonstrating how these matters resulted in unfairness or affected the integrity of the proceedings.

Ruling and outcome

The Federal Court dismissed the application for judicial review, finding the Tribunal's decision reasonable and that no breach of procedural fairness occurred. The Court noted that the Applicant has pursued a multiplicity of proceedings in the Federal Court, the Ontario Court of Justice, and at the Canada Industrial Relations Board, all based on essentially the same or similar allegations, which the Court characterized as an abuse of process. The Respondent, the Toronto-Dominion Bank, was the successful party and was awarded costs to be assessed in accordance with column 2 of Tariff B. No exact monetary amount was specified in the judgment.