Van der Linde v. J.A. Wilson Display Ltd., 1982 CanLII 4872

Van der Linde v. J.A. Wilson Display Ltd.

1982-01-04

Ontario Board of Inquiry

ONTARIO

CHRR Doc. 82-022

Henk Van Der Linde Complainant

v.

J.A. Wilson Display Ltd. Respondent

Date: January 4. 1982

Place: London, Ontario

Before: Ontario Board of Inquiry, Ian A. Hunter

Appearances by: Robert Reuter, Counsel for Henk Van Der Linde and the Ontario Human Rights Commission

H. James Marin, Counsel for J.A. Wilson Display Ltd.

AGE DISCRIMINATION — employment denied — EVIDENCE — credibility of witness — REMEDIES — employment practices to be monitored — apology

Summary: The Board of Inquiry rules that Mr. Van Der Linde was discriminated against because of his age when he was refused employment by J.A. Wilson Display Ltd. Mr. Van Der Linde provided a resume, which stated his age as 63, when he applied for the position of production planner. The Board accepts Mr. Van Der Linde's testimony that he was told by a representative of Wilson Display that a more junior person was wanted, since he could only be around for two years.

Weighing the credibility of the witnesses, the Board accepts Mr. Van Der Linde's evidence and awards him general damages of $1500 dollars.

DECISION

(1) Preliminary

1On March 4, 1980, I was appointed a Board of Inquiry by The Honourable Robert Elgie, Minister of Labour, to hear and decide the complaint of Mr. Henk Van Der Linde that he was denied employment by J.A. Wilson Display Ltd. because of his age contrary to s. 4 of the Ontario Human Rights Code. Hearings were held in Toronto, Ontario on October 6 and December 1, 1981.

(2) The Facts

2The complainant, Henk Van Der Linde, was born in The Hague, Holland on November 29, 1915. When he applied for a job as production planner at the respondent company (on August 14, 1979) he was 63 years old.

Mr. Van Der Linde first became aware of a job opening at Wilson Display through an Employer's Order (Exhibit No. 11) placed by Mr. Eric Hunt, the production supervisor at Wilson, Display, through Ms. Penny Dunn, a supervisor in the Order Control Unit of the Canada Manpower Centre in Mississauga. The Order was placed on June 20, 1979. The relevant parts of that Order are as follows:

Title: Production Planner

Salary: Negotiable depending on exp. 200–250 week

Start: Perm. full time 8–430

Requirements: At least two years' experience in production planning necessary, experience in machine shop

Familiar with sheet metal products

Able to read drawings

Semi-computerized system

Able to work with minimum supervision

To do production planning and scheduling for mfg. company of store equipment.

3The name and address of the employer was given, and applicants were instructed to phone Mr. Hunt first.

4In conformity with these instructions, Mr. Van Der Linde telephoned and made an appointment for the following Tuesday, August 14, at 2 p.m.

5On that date, Mr. Van Der Linde attended at Wilson Display. In the lobby, he completed the front page of an Application for Employment, a company form (Exhibit No. 5) which requested certain personal particulars but no information concerning an applicant's age. The interior sections of the form, dealing with past employment history and particular skills and qualifications, were only partially completed but twice contained the notation: "See my enclosed resumé." The resumé (Exhibit No. 7) consisted of five closely typewritten pages which began with personal information and then outlined, in what might fairly be called exhaustive detail, the complainant's past employment history. The fifth line on the front page of the resumé revealed Mr. Van Der Linde's date of birth and, hence, his age. Mr. Van Der Linde gave Mr. Hunt a copy of his resumé along with the application form.

Counsel for the respondent repeatedly emphasized that the Company's application form did not inquire as to the applicant's age. This is true. Nor did Mr. Hunt. But from the time Mr. Hunt obtained the application form and the resumé from Mr. Van Der Linde, the Company. was in a position to know the complainant's age.

6Mr. Van Der Linde described his interview with Mr. Hunt as pleasant, reasonably detailed, and lasting, he thought, about half an hour. Mr. Hunt testified that the interview was much shorter (three or four minutes) but there is certain common ground in both men's recollections:

(a) Mr. Hunt was initially shown, and then took away with him, Mr. Van Der Linde's application form and resumé;

(b) Mr. Hunt took these documents to the office of his supervisor, Mr. Don Wilson, the Vice-President of Operations for the Company;

(c) At the time he first spoke to Mr. Wilson, Mr. Hunt regarded Mr. Van Der Linde as, at very least, qualified for the Production Planner's job.

7Mr. Van Der Linde testified that Mr. Hunt told him that he was more than qualified for the job and that after he had had an opportunity to discuss it with Mr. Wilson, he would phone Mr. Van Der Linde on the following Friday. When Mr. Van Der Linde left, he felt confident that he had the job.

8Mr. Hunt's testimony concerning Mr. Van Der Linde's qualifications, and his perception of them at the initial interview, was confusing. At times, he denied that he was particularly impressed by the complainant's qualifications. At other times he indicated that the complainant was over-qualified and, in fact, was better qualified than he (i.e., Mr. Hunt) himself. In any event, it is clear that he regarded Mr. Van Der Linde as having relevant job experience and that he met at least the minimum requirements for the position as Production Planner. On the issue of Mr. Hunt's attitude to Mr. Van Der Linde's qualifications, it is interesting to note the complainant's version is borne out by Mr. Hunt's supervisor, Mr. Wilson, who testified that Mr. Hunt was overly impressed with the complainant's qualifications.

9Mr. Hunt and Mr. Wilson were jointly to make the decision as to who would be hired for the Production Planning job, although Mr. Wilson retained final authority. Yet both men gave conflicting evidence as to why Mr. Van Der Linde was not suitable: the gist of Mr. Hunt's evidence was that Van Der Linde was over-qualified; the gist of Mr. Wilson's evidence was that Mr. Van Der Linde's past experience was totally irrelevant to the position and that he was under-qualified.

10From (a) the qualifications specified in the original Work Order given by the Company to Canada Manpower; and (b) the review of the complainant's work history, as outlined in his resumé and elaborated upon in examination and cross-examination, I entertain no doubt that he was qualified for the position as Production Planner at Wilson Display and that the reason for his rejection was unrelated to qualifications. This conclusion is buttressed by the fact, admitted to by both Mr. Hunt and Mr. Wilson, that the person who eventually became the Production Planner, an employee named Tarsem Chand, had no relevant prior experience and had to receive on-the-job training and to be sent to attend courses on Production Planning at Humber Community College.

11To return to the narrative of events: the following Friday, August 17, Mr. Van Der Linde again spoke to Mr. Hunt. In his examination-in-chief he testified that he went over to Wilson Display to speak with Mr. Hunt on that date. In his complaint form, he says that he called Mr. Hunt and spoke with him by telephone. Under cross-examination, Mr. Van Der Linde testified that he was not sure whether the August 17th conversation was by phone or in person; he went on to explain that in the two years since this occurrence he had a stroke which, to some extent, had impaired his memory for certain details. In reading the transcripts, analyzing the evidence, and coming to my decision, I have cautioned myself on the frailties of human memory, particularly where diminished by a stroke. Nevertheless, I regard the question of whether Mr. Van Der Linde saw Mr. Hunt in person, or instead spoke with him by phone, on August 17, as unimportant.

12The crucial matter is the explanation Mr. Hunt gave Mr. Van Der Linde for his failure to obtain the job. On this point, I am satisfied that Mr. Van Der Linde's memory is clear. His testimony was unequivocal, it was unshaken by cross-examination, and it is consistent with what he originally told the human rights officers (as contained in the body of the Complaint Form) and his own actions immediately thereafter.

13Mr. Van Der Linde testified: "Mr. Hunt told me briefly that they might as well look for a junior person and that in two years' time they had to look for someone else anyway ..." (Transcript: Examination-in-chief; p. 27). Under cross-examination, Mr. Van Der Linde testified:

Q. You remember the use of the word "junior"?

A. Very well.

Q. Because in two years the Company would have to look for someone new?

A. That is correct.

Q. You specifically recall this?

A. Yes.

Q. You specifically recall he told you that in the lobby on that Friday?

A. I know that Mr. Hunt told me it. The place I don't remember if it was particularly the lobby. I do not recall (Transcript: p. 47–48).

14And on his original complaint to the Ontario Human Rights Commission, more than two years before the hearing, he said: "He then told me that the Company would rather have someone junior because in two years, the Company would have to look for someone new."

15Further corroboration is contained on the face of Exhibit 4; some handwritten notes which Mr. Van Der Linde made at the time of his conversation with Mr. Hunt on a Canada Manpower form. These notes read: "Now wants junior ... only two years." Also the form bears the telephone number of Mr. Hall at Canada Manpower and then another notation: "Human Rights, 400 University, 965–6841", which corresponds to Mr. Van Der Linde's recollection of the sequence of events; namely, after he learned from Mr. Hunt that he would not be hired, he notified Canada Manpower and they advised him to phone the Ontario Human Rights Commission and gave him the appropriate telephone number.

16At this point, I find that the Commission has made out a prima facie case of discrimination. They have satisfied me, on a balance of probabilities, (a) that Mr. Van Der Linde applied for the job of Production Planner at Wilson Display; (b) that he was suitably qualified for that job; and (c) that he was refused that job. Mr. Van Der Linde testified that he was told by Mr. Hunt that the reason f or that refusal was his age. At this point there is an evidentiary onus upon the respondent to come forward with an explanation equally consistent with no discrimination as with discrimination. If the respondent does so, the complaint must fail for the ultimate burden of proof is on the Commission. What is the respondent's explanation?

17Mr. Hunt denied mentioning Mr. Van Der Linde's age on August 17. He testified that they had a very brief telephone conversation in which he told Mr. Van Der Linde "... that the job was filled and that the Company had other intentions, that we were not hiring a person from outside, we were making changes in the plant. There were changes in the plant and we would not be hiring anybody and we would be hiring someone from within." (Transcript p. 225). Mr. Hunt acknowledged that he might have used the word "junior" when talking to Mr. Van Der Linde on the first occasion (August 14) but not on the second occasion (August 17).

18I prefer Mr. Van Der Linde's account of the August 17 meeting. Mr. Hunt alternately denied that he was particularly impressed by Mr. Van Der Linde's qualifications and, at other times, stated that he was too qualified for the Production Planning job. He was evasive about the use of the word "junior" and its meaning to him (at one point testifying that it meant anyone younger than himself (p. 227) then, on cross-examination, unconvincingly attempting to redefine it in terms of the employment position held (p. 255)). I carefully observed the demeanour of Mr. Van Der Linde and Mr. Hunt in giving their evidence: where there is a conflict in their testimony, I prefer Mr. Van Der Linde's evidence.

19There were three "outside" applicants for the Production Planner job – the complainant, a Mr. R.J. Gilmour, and a third applicant who remained unidentified. The Company decided none was satisfactory. Sometime after Mr. Van Der Linde's initial interview (August 14) and the second conversation with Mr. Hunt (August 17), the respondent's explanation is that Mr. Wilson and Mr. Hunt decided to elevate an internal employee, Tarsem Chand, to the Production Planning position. Thus, on August 17, 1979 the job was no longer available.

20The respondents admit that before the August 17, 1979 conversation they were aware of the complainant's age. Mr. Wilson testified that he noticed Van Der Linde's date of birth on the resumé "... it could have been that day, it could have been the next, it could have been on the next week ..." (Transcript p. 187) but, in any event, after he had made the decision not to hire Van Der Linde and communicated that decision to Mr. Hunt by writing "None" on the box on Van Der Linde's application form which says "Possible positions." Mr. Wilson concedes that when he noticed Van Der Linde's age he pointed this out to Mr. Hunt. Mr. Hunt testified that, after Mr. Wilson had seen the resumé, he said to him "Did you see this guy's age?" Both men testified that age had nothing to do with their decision not to hire which, they affirm, was based on their prior decision not to hire any outside applicants but to elevate Mr. Chand instead.

21Is the respondent's explanation credible? I have concluded that it is not for the following reasons:

22(a) Conflicting versions: Mr. Wilson testified that when he first received the application form and resumé from Mr. Hunt, he perused it quickly and decided that Mr. Van Der Linde was totally unqualified. In fact, he was shocked that Mr. Hunt apparently regarded Mr. Van Der Linde as particularly well qualified (see p. 186) and he wrote "none" on the application form to diminish Mr. Hunt's ardour and then gave the application form back to him. He wanted Mr. Hunt to tell Mr. Van Der Linde that there was no job for him; Mr. Wilson thought Mr. Van Der Linde was still waiting in the lobby. Mr. Wilson testified that he then kept the resumé on his desk to look at later and only subsequently noticed Mr. Van Der Linde's age. Precisely when this occurred, Mr. Wilson is not sure.

23Mr. Hunt, however, testifies that he was not particularly impressed by Van Der Linde's qualifications. He admitted that he had relevant work experience and was qualified, but stated that left to his own devices he would not have hired the complainant. Also, in Mr. Hunt's version, he and Mr. Wilson had virtually no conversation at the time when the application form and resumé were first given to Mr. Wilson. It was only some time later that he discussed the matter with Mr. Wilson and the latter indicated that Van Der Linde was unsuitable for the job.

24(b) Inherent improbability: Mr. Van Der Linde's qualifications, as outlined in his resumé, are impressive. Mr. Hunt, who had interviewed Van Der Linde, testified that he was certainly qualified. Mr. Wilson's production supervisor had just brought in an impressive resumé from a clearly qualified applicant. Mr. Hunt, according to Mr. Wilson, was extremely impressed with the applicant's qualifications. I regard it as inherently improbable that Mr. Wilson would simply reject such an applicant, sight unseen, and write none across his application form.

25(c) Internal inconsistency: If Mr. Wilson's explanation is believed, Van Der Linde's application was rejected because he lacked relevant qualifications. Not only do I find this contrary to the evidence (in particular Van Der Linde's past employment with companies in similar businesses, such as Success Display Limited and Wing's Success Limited), but I find it difficult then to understand why Tarsem Chand, who Mr. Hunt and Mr. Wilson admit lacked any qualifications, was then hired.

26The Production Planner before Mr. Van Der Linde applied, one Alan Aimer, lacked qualifications; the man hired as Production Planner after Mr. Van Der Linde applied, Tarsem Chand, lacked qualifications. Mr. Van Der Linde, who had extensive related past experience on at least some of the specifics sought in the Company's Work Order, is rejected in between and the ostensible explanation is that he is unqualified. I cannot accept it.

27(d) Timing: The respondent's explanation is that sometime after Mr. Van Der Linde's application (August 14) but before his second conversation with Mr. Hunt (August 17) the Company changed its plans and decided to fill the Production Planning position internally. Yet, it is significant that the Company did not cancel the Work Order. In fact, there was evidence of a telephone call between the respondent and Canada Manpower on August 29, 1979 during which the respondent indicated that the Work Order was still open and they had not made any decision (Transcript p. 175). The Work Order was not cancelled until September 19, 1979 when the Company advised Canada Manpower that they had changed their plans and no longer needed anyone.

28For all of the foregoing reasons, I do not believe the respondent's explanation of the sequence of events leading to Mr. Van Der Linde's refusal.

29In Regina v. Bushnell Communications Limited (1975) 1973 CanLII 475 (ON HCJ), 1 O.R. (2d) 442 the Ontario High Court of Justice held that a prohibited ground of discrimination need not be the only reason, or even the paramount reason, for a refusal of employment. It is sufficient if the prohibited ground "... was present to the mind of the employer in his decision to dismiss, either as a main reason or one incidental to it, or as one of many reasons regardless of priority ..." In upholding the decision, the Ontario Court of Appeal held that the prohibited ground "... must be a proximate cause for dismissal, but it may be present with other proximate causes." (1973) 1974 CanLII 559 (ON CA), 4 O.R. (2d) 288 at 290.

30In the instant case, the testis whether or not the Commission has established, on the balance of probabilities, that the complainant's age was an operative factor in the respondent's decision not to hire him. On the evidence presented, and for the reasons set out above, I find that age was an operative factor and, moreover, that this was communicated to the complainant by Mr. Hunt in their conversation of August 17, 1979. Accordingly, the Commission has proved a violation of section 4(1)(b) of the Code.

(3) The Remedy

31Both counsel made submissions as to the appropriate order should this Board conclude that the complainant was discriminated against because of his age. Mr. Reuter submitted that the Board should make an order (a) "for a measure of general damages for loss or injury for the failure to properly and fairly consider this application for employment without regard to age"; (b) for a letter of apology; (c) a requirement that the respondent post Ontario Human Rights Code cards, and (d) that all future employment vacancies be monitored by the Commission for a period of two years.

32Mr. Marin agreed that if compensation was to be awarded, it should be calculated in a manner similar to general damages. He suggested that the amount should not exceed $1000. He strenuously resisted the other terms of the Order proposed by Mr. Reuter.

33Section 19 confers very broad authority on a Board of Inquiry which finds that a party has contravened the Code: "... to do any act or thing that, in the opinion of the Board, constitutes full compliance with such provision and to rectify any injury caused to any person or to make compensation therefor." In exercising this authority in the instant case, I have considered the submissions of counsel, the trend of general damage awards in comparable employment discrimination cases in this province, and the particular facts of this case, including the possibility (acknowledged by Mr. Reuter) that, absent considerations of age, Mr. Van Der Linde might still not have been hired for the job or might not have worked out to the employer's satisfaction for some other reason. Keeping these factors in mind, and acknowledging that quantification is more art than science, I have concluded that the appropriate award in this case is $1500 and the respondent is ordered to pay that sum forthwith to Mr. Van Der Linde, the money to be forwarded in trust to the Ontario Human Rights Commission.

34The posting of Ontario Human Rights Code cards is a valuable reminder to employers of their statutory obligations and to employees of their rights and remedies. I therefore order Wilson Display Limited to post not fewer than two copies of the Code card in some convenient location, visible to employees, at their business premises.

35In my opinion, a legally coerced apology would only be a mockery and I decline to make such an order.

36I accept Mr. Marin's view that every Ontario employer is legally obliged to comply with the Code and that it is therefore impertinent to require employers to submit future employment vacancies to Commission "monitoring." No employer should be presumed to discriminate; the presumption of innocence has a place in human rights law as well as in criminal law. Nor does a past violation strip an individual or a company of the benefit of that presumption.

ORDER

This matter coming on for hearing on October 6, 1981 and December 1, 1981 before this Board of Inquiry, pursuant to the appointment of Robert Elgie, Minister of Labour, dated March 4, 1980, in the presence of counsel for the Ontario Human Rights Commission and the complainant, Mr. Henk Van Der Linde, and counsel for the respondent, J.A. Wilson Display Limited, upon hearing all the evidence adduced by the parties and what was alleged by the parties, and upon finding that the respondent contravened the Act:

(1) It is hereby ordered that the respondent forthwith pay the sum of One Thousand Five Hundred Dollars ($1500) to Mr. Henk Van Der Linde, the money to be forwarded to the Ontario Human Rights Commission in trust for Mr. Van Der Linde.

(2) And it is hereby ordered that the respondent post not fewer than two copies of the Ontario Human Rights Code in their business premises.