By Canadian Press

Spy service analyst appeals judge’s decision to throw out his discrimination case

Sep 8, 2022 | 1:04 AM

OTTAWA — A Canadian Security Intelligence Service employee is appealing a Federal Court judge’s decision to toss out his discrimination lawsuit against the spy agency.

In a newly filed notice, Sameer Ebadi asks the Federal Court of Appeal to overturn the June decision and allow his claim against CSIS to proceed, saying Justice Henry Brown made errors of fact and law.

In his ruling, Brown said Ebadi should have followed the internal grievance procedures available to him.

Brown said the court therefore lacked jurisdiction to address the statement of claim filed in January 2020 by Ebadi, who uses a pseudonym due to the sensitive nature of his intelligence work. 

Ebadi, a practising Muslim who fled to Canada from a repressive Middle Eastern country, began working as a CSIS analyst in the Prairie region 22 years ago. He is now on long-term disability leave. 

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His claim says he was passed over for promotion despite an excellent work record, and that he suffered bullying, emotional and physical abuse, discrimination and religious persecution from fellow employees. 

Among other things, the claim alleges colleagues would quickly open his office door when he was at prayer, smashing it into his body or head. “They would then feign surprise that Sameer was at prayer, but would laugh outside the door afterwards.”

Ebadi argued that CSIS had a history of protecting harassers from responsibility for their racially or religiously motivated behaviour. 

He said internal CSIS processes could not be trusted to provide him with a fair hearing and to protect him against reprisals for bringing forward concerns.

“I have tried on multiple occasions, with varying levels of CSIS management, to address my well-founded issues of workplace harassment and discrimination,” Ebadi said in an affidavit filed with the Federal Court. 

“With each effort, I was met with resistance and, what is worse, faced increased discriminatory treatment for blowing the whistle on my fellow employees and managers.” 

Lawyers for the government filed a motion to have the case struck out, arguing the terms of Ebadi’s employment are subject to intelligence service procedures. 

The availability of internal resolution processes precludes Ebadi from initiating a civil action for matters that could be subject to a grievance or harassment complaint, they said.

At a hearing in May, counsel for Ebadi asked the judge to reject the government motion, saying CSIS management had created and perpetuated a culture of systemic racism, Islamophobia, harassment and reprisal.

Ebadi also contended that because he was challenging the adequacy of the CSIS grievance and harassment processes themselves, his claim was not barred by a section of the Federal Public Sector Labour Relations Act that could prevent the court from getting involved.

In his decision, Brown said that at no time in his career did Ebadi file a complaint under either the harassment policy or grievance procedure.

“He cannot now litigate in this Court the adequacy of procedures he himself chose never to follow.”

In the notice of appeal, Ebadi says the judgment failed to identify that he had taken informal efforts to resolve harassment complaints with CSIS and that filing a formal complaint was unnecessary.

Ebadi says the judgment also fails to note that he had previously commenced an official harassment complaint and was told that he was “delusional” by CSIS management.

John Kingman Phillips, a lawyer for Ebadi, said in an interview that the lack of a union for CSIS employees like Ebadi means “they’re really left to their own devices, pushing back against what we say is systemic racism and systemic prejudice within the organization.”

“And that, in my view, is unfair and needs to be addressed and considered in whether we allow these matters to proceed in Federal Court.”

During the May hearing, Phillips pointed to remarks CSIS director David Vigneault made at a December 2020 meeting of the federal National Security Transparency Advisory Group.

Vigneault said he had acknowledged publicly and privately to employees “that, yes, systemic racism does exist here, and yes, there is a level of harassment and fear of reprisal within the organization.”

Brown said in his decision that the statement — either alone or in tandem with the rest of the court record — did not constitute an admission that CSIS is systemically racist, or that Ebadi is or was unable to obtain relief by way of grieving or complaining about the matters he alleges.

Further, Brown said, he is not persuaded that the statement by Vigneault supports the notion the court should exercise any residual discretion it might have to accept jurisdiction over Ebadi’s action, notwithstanding the effect of the public sector labour law.

Federal lawyers will have an opportunity to file a response to Ebadi’s notice of appeal.

This report by The Canadian Press was first published Sept. 8, 2022.

Jim Bronskill, The Canadian Press