# 2011-047 Careers, Discrimination, Selection Board , Succession Planning in the Canadian Forces

Case Summary

F&R Date: 2012–05–31

The grievor associated his non-selection for a subordinate command appointment or for attendance at the Command and Staff College (CSC) to the application of the Naval Succession Planning Process (NSPP). He argued that the Navy policies and practices to select Officers for "succession planning" are discriminatory on the basis of age due to the factoring in of "years remaining to serve" (YRS). In the grievor's opinion, this policy has allowed the Navy to select younger officers for career progression over older but more experienced and seasoned officers. The grievor requested that the current policy be amended and that his 2008 file be reassessed for promotion to the next rank based on the premise of his selection/completion of CSC and/or a successful Executive Officer (XO) tour.

The initial authority (IA) denied the grievance on the basis that the 2009 selection board had been conducted in accordance with the approved process; the IA added he was satisfied with the professional judgment of the Naval Succession Planning Board (NSPB) members and felt that the grievor had been treated fairly.

Based on the determination that advancement prospects are, by the Navy's admission, dimmer for those of high merit but lower YRS, the Board could only conclude that the process results in less favourable treatment of older officers precisely because they are older. The Board found that the NSPP is discriminatory on the basis of age.

Having found that the process was age-discriminatory, the Board was of the view that there were two approaches to deciding whether the NSPP could be saved as being justified: first, it might be found to be based upon a Bona Fide Occupational Requirement (BFOR) and second, whether or not it is found to be a BFOR, it might be found to impose a reasonable limitation on the grievor's right to be free of age discrimination as contemplated by section 1 of the Canadian Charter of Rights and Freedoms (the Charter).

Dealing first with the BFOR issue, the Board simply found no evidence in this file to support the proposition that an individual requires greater YRS to be able to perform the duties of any particular Navy billet. Secondly, after a thorough analysis based on the detailed guidance provided by the Supreme Court of Canada on the process of determining whether a measure or provision which infringes upon a Charter-guaranteed right can be justified, the Board concluded that the NSPP, a process which is not "prescribed by law" and which infringes on the rights of those affected by it to be dealt with free of discrimination on the basis of age, could not be saved as being a reasonable limit under section 1 of the Charter.

Finally, considering all of the evidence, the Board concluded on a balance of probabilities that a process which was not discriminatory on the basis of age would have resulted in the selection of the grievor in 2009 or at the latest 2010 to a subordinate command/executive development assignment.

The Board recommended to the Chief of the Defence Staff (CDS) that he uphold the grievance.

The Board recommended that all reasonable steps be taken to place the grievor in as near a position as possible to that which he would likely have achieved had he not been the victim of age discrimination, and that his career suffer no further adverse effect of his continually reducing number of YRS.

From a systemic point of view, the Board also recommended that "succession planning" processes in the Canadian Forces be changed in future implementation as may be required to eliminate the indirect age discrimination resulting from the use of YRS as an assessment criterion in determining whether a member will be afforded more favourable career treatment than his peers.

CDS Decision Summary

CDS Decision Date: 2015–09–25

The CDS did not agree with the Committee's findings and recommendations and denied the grievance. The CDS determined that the grievor was treated fairly in accordance with the 2009 Naval Selection Planning Process and he disagreed that he was disadvantaged on the basis of his age. Nonetheless, the CDS found that the grievor has been aggrieved because his availability to undertake an XO position was not properly explored. Despite the situation, the CDS was not prepared to grant a retroactive promotion to the rank of Cdr. The CDS could not conclude that the scoring criteria or method of separating members into YRS bands for XO appointment recommendations disadvantaged the grievor personally at the 2009 NSPB: the grievor was competitive but factors completely unrelated to both his merit and his age led to his non-selection. The CDS disagreed with the Committee that there was evidence to suggest that discrimination played any part in this final decision, although he had some concerns with the explanation provided by the Royal Canadian Navy for the grievor's non-selection.