Board of Inquiry Decision under the ONTARIO HUMAN RIGHTS CODE, 1981
Paul Szabo
Complainant
v.
Atlas Employees Welland Credit Union
Respondent
April, 1985
November 9, 1987
Before:
D.J. Baum
Comm. Decision No.:
322
Appearances by:
J.R. Bush, Counsel for Paul Szabo
M. Fleishman, Counsel for the Ontario Human Rights Commission
D.M. MacFarlane, Counsel for Atlas Employees Welland Credit Union
FAMILY STATUS — employer policy prohibiting nepotism
Summary: The Board of Inquiry finds that the respondent credit union violated the Ontario Human Rights Code when it refused to consider Paul Szabo's application for the position of Loan Officer because his father was an employee of the Atlas Steel Company and a member of the Supervisory Committee of the credit union.
It is the employees of the Atlas Steel Company who form the membership of the credit union. Paul Szabo's father, William Szabo, was an employee of this company. William Szabo also held an elected position with the credit union as a volunteer.
The credit union has a policy guideline prohibiting the employment of relatives, including those in a parent-child relationship. On the basis of this guideline, the credit union refused to consider the application of Paul Szabo for the position of Loan Officer because of his father's involvement with the credit union.
The Ontario Human Rights Code prohibits discrimination on the basis of family status except where "an employer grants or withholds employment . . . to a person who is the spouse, child, or parent of the employer or an employee." The Board of Inquiry finds that there is no basis for concluding that a member of the credit union or a member of the Supervisory Committee stands in the position of employer with the credit union or in the position of employee of the credit union. It is clear that William Szabo was in a position of influence and he attempted to use his influence on behalf of his son. However, he was not in the position of an employer, nor was he an employee.
For this reason, the Board of Inquiry finds that Paul Szabo has been discriminated against contrary to the Ontario Human Rights Code.
The Board of Inquiry orders the respondent credit union to cease discriminating on the basis of family status, and to pay to Paul Szabo $625 in compensation for lost wages, $1,137.46 in compensation for expenses incurred because of the discrimination, interest at the rate of 10 percent on this award from the time of service of the complaint, and the legal fees of the complainant from the date of appointment of the Board of Inquiry.
1The complaint, filed by Paul Szabo, alleges that the respondent refused to consider his application for employment as a loan officer by reason of his family status, contrary to sections 4(1) and 8 of the Ontario Human Rights Code:
4.(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, age, record of offences, marital status, family status or handicap.
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part. [Emphasis added]
Section 9(d) of the Code defines family status to mean "the status of being in a parent and child relationship."
2At one level the facts and the law seem quite clear: The complainant was qualified for the advertised position which is described in the next section of this decision. He was not considered for the position because his father, William Szabo, was (a) an employee of the Atlas Steel Company, and (b) a member of the Supervisory Committee of the respondent. A personnel guideline in effect for more than thirty years prohibited the respondent from employing relatives, including those in a parent-child relationship.
3It is the position of the Commission that the issue relevant to the complaint is narrow, and the result beyond question: The complainant was denied the opportunity for employment because of his relationship with his father, because of his family status. The only defence available to the respondent is contained in section 23(d) of the Code:
- The right under section 4 to equal treatment with respect to employment is not infringed where,
(d) an employer grants or withholds employment or advancement in employment to a person who is the spouse, child or parent of the employer or an employee.
4To the Commission, the only issue in dispute is whether the respondent or the complainant's father can be considered either the potential employer or employee of the complainant.
5In the result, the Commission asks for an order prohibiting the implementation of the questioned rule. Through counsel, however, the complainant asks for general and special damages, including counsel fees on a solicitor-client basis.
6The respondent has a significantly broader view of the issue: The guideline questioned is in wide use by credit unions throughout Ontario and the rest of Canada. It is designed to prevent conflicts of interest in institutions that have closed memberships, and where the members, by law and in fact, both own and control the institutions.
7This potential for conflict, argues the respondent, is not a theoretical matter. Recent examples demonstrate how the conflict has resulted not only in damage, but even bankruptcy of at least one Ontario credit union. And, more to the point, the very relationship prohibited by the guideline and challenged by the Commission gave rise to abuse on the facts in this complaint.
8The Commission asked that I not consider the matters raised by the respondent as outlined above. There is no bona fide occupational defence available for discrimination on the basis of family status. That defence, set out in section 23(b) of the Code is limited to the delineated subjects, namely, age, sex, record of offences or marital status. The defences to discrimination on the basis of family status are limited to those provided in section 23(d) of the Code.
9Further, the Commission stated that efforts to call upon section 10(1)(a) of the Code are misplaced. It is true that section 10(1)(a) is concerned with bona fide qualifications. However, it is also true that [this] section centres on an infringement that is not discrimination on a prohibited ground under Part I of the Code, but "that [would result] in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination . . ."
10On its face, there can be no dispute with the Commission's interpretation of the Code. The complaint alleges a specific ground of discrimination within the meaning of section 4 in Part I of the Code. It follows that the use of section 10(1)(a) is misplaced.
11Section 23(b) simply does not apply to family status discrimination. It is section 23(d) which provides the defences to charges of discrimination in employment on the basis of family status. Does this then mean that I am not to consider evidence going to potential conflict, the genesis for the respondent's guideline rule, in the operations of the respondent, or more broadly the operations of credit unions?
12In one sense, the Commission is correct: section 38 of the Code defines the role of a board of inquiry. I am to determine whether a right of the complainant under the Code has been infringed; who infringed that right; and an appropriate order under section 40. It is not my responsibility to judge what is necessary or desirable in its business practices for the respondent specifically or credit unions generally.
13However, having said this, it is entirely appropriate to consider the nature of the respondent for the purpose of determining whether William Szabo would either have been an employer or an employee of his son, Paul, within the meaning of the defence set out in section 23(d) of the Code. It is clear that the respondent invokes section 23(d) in defence of its actions.
14Accordingly, I will deal first with the nature of the discriminatory act. Next, I will describe the respondent credit union with a view toward determining the status of William Szabo. Finally, I will address what remedy, if any, should be applied within the meaning of section 40.
Discrimination: Section 4(1) of the Code
15On February 14, 15 and 18, 1985, the respondent placed the following advertisement in newspapers in the cities of Welland, St. Catharines and Niagara Falls:
Senior Mortgage and Loan Officer
An industrial based Credit Union located in Welland and with assets of $18 million requires an experienced mortgage and loan officer to manage approximately 1,400 personal loans and residential mortgage accounts.
The successful candidates will have:
Ӣ a minimum of 5 to 7 years experience in a high profile lending environment
”¢ proficient communication skills — verbal and written
Ӣ proven performance in marketing, portfolio development and delinquency control
Ӣ knowledge of financial planning as relative to his/her areas of responsibility
Ӣ the knowledge required to work with minimal supervision
Ӣ strong interpersonal skills
The compensation package includes an attractive salary and a full range of company paid benefits.
Interested individuals are invited to submit their detailed resume by March 8, 1985 in confidence to:
BOX 114C – THE EVENING TRIBUNE 228 EAST MAIN STREET, WELLAND, L3B 3W8
16The full advertisement is quoted for two reasons:
It was the only direct contact the complainant had with the respondent.
On its face, the advertisement does not disclose the identity of the employer.
17The complainant states that he had not discussed the job opening with his father. I find this difficult to accept. As will be described shortly, William Szabo was well aware of the fact that his son intended to submit his application, and, in that regard he certainly attempted whatever powers of suasion he possessed to get his son the job.
18Robert Watson, manager of the respondent, testified:
He [William Szabo] casually let it be known to me in a quick lean into my office that his son is currently a lender at another institution, and that he may be sending an application in for the [advertised] position . . . [T]hat first conversation [with William Szabo] just sank in a bit. I didn't respond to it.
19In any event, the complainant, then 33 years old, a resident of Welland, married and with two children, responded to the advertisement by letter enclosing a résumé which indicated that he had successfully completed a three-year business administration course at Mohawk College, Hamilton, in 1973, and that he had the following work experience:
1974–1977 — Assistant Manager, Canadian Acceptance Corporation Realty Ltd., Niagara Falls, Ontario
1977–1983 — Loans/Mortgage Officer, Guaranty Trust, Welland, Ontario
March 1984 to the date of his application — Consumer Loan and Mortgage Officer, National Bank of Canada, St. Catharines, Ontario
Nothing was said in the résumé concerning the complainant's loan limits, that is the amount of money the complainant was able to loan either without further authorization, or on the basis of stated borrower collateral. Nor was any description offered concerning the nature of the duties incident to the jobs held. However, the résumé did list as references the managers of the then most current jobs held.
20The résumé reached the office of the respondent on or about February 18 or 19, 1987 [sic]. It was read by Mr. Watson, Manager, and as such a full-time employee of the respondent. I note in this regard that Mr. Watson had at the time in question been Manager of the respondent for about four years. [Before becoming Manager, Mr. Watson had held management jobs with financial institutions for nine years, and junior positions with financial institutions for seven years.]
21Within a week following receipt of the application William Szabo, on of three members of the respondent's Supervisory Committee, about which more will be said shortly, visited, albeit briefly, Mr. Watson's office. Mr. Watson testified:
. . . [W]hen Bill [Szabo] came in the second time, it would have been between the time of the issuance of the first newspaper ad [for the job], and the time of [the respondent's] board meeting which was the 25th [of February]. I was fully aware of the policy [of the respondent against hiring family members] at the time, and when Bill came into the office he said, "Bob, my son is going to apply for this job." He said, "Give him all the consideration that you can." Now, you can take that however you will, but my comment to him right away was, "Bil . . ." thank God I had an out, because I didn't like this kind of pressure, but I said to him, "Bill, we've got a policy."
Q. . . . What kind of pressure didn't you like?
A. Oh, if you can imagine, you've got one of your employers giving you a form of indirect pressure to make a decision his way, not the democratic decision decided by others. That's probably the worst part of my job, when that kind of nonsense happens.
22The policy mentioned by Mr. Watson is set out in a Guide Manual of Personnel Policies. For our purposes the relevant portions are paragraphs 1, and 3 to 5 of Article 1.B, which is titled, "Selection for Employment":
The Board of Directors may approve any additions of staff upon written recommendation by the Manager.
The Credit Union shall not hire any member of the immediate family of employees.
The Credit Union shall not hire a member of the immediate family of any employee of the Atlas Steel Company.
Immediate family shall be defined as father, mother, sister, brother, daughter or son.
- Individuals within the immediate family of the board of directors, supervisory committee or credit committee shall not be eligible for employment with the Credit Union. However, an employee's tenure of employment shall not be affected if subsequent to becoming an employee, a member of his family is elected or appointed to the board of directors or said committee.
23The policy embodied in the Guide Manual had been in force since about 1951, a period of more than thirty years. It was a policy that had not been publicized to employees or members of the respondent. It was not a policy that formed a part of the by-laws of the respondent. Yet, it was a policy that had been applied as recently as three to four months before the complainant applied for the questioned position. At that time, the daughter of the then president of the respondent, John Haydu, sought a job with the respondent as a clerk. She was turned down because her father was President of the respondent and an employee of Atlas Steel Company. In the result, it must be said that the policy, even though not publicized, had formed part of the way the respondent operated from 1951.
24When William Szabo spoke with Mr. Watson concerning the employment of his son, the policy was noted. Mr. Watson told him:
"Bill, look, we've got a policy here. The only way that I can technically consider Paul [the complainant] as a candidate for this job, is to have the Board [of Directors of the respondent] change the policy." Now it [the meeting of the Board of Directors of February 25th] was that night, or the next night, I remember that now, because I had not had it [the question of changing the policy against employment of family members] on the agenda to bring it up. I, that night went downstairs to the Board meeting with my usual information and recommendations package. It's a set of documents that sets out what I'm going to be recommending. And, we got to this certain point in the meeting, and I said, "Now there is something here that none of you, none of the Board, nor Bill, nor any of the other committee members are aware of." And, I said, "That is that we have had a candidate, an individual apply for this job, who has the qualifications, and if we are going to consider him at all for this job, you are going to have to consider the policy . . ."
And it was put exactly that way, with Bill in attendance. There were no exclusions at all. And, then, of course, the meeting continued.
25Though not a member of the Board of Directors, William Szabo spoke concerning his son. He urged the Board to waive the policy, or failing that, he offered to resign his position as a member of the Supervisory Committee. He did this on condition that the Board would allow his son to be considered. Mr. Watson believed that the resignation would have been tendered if the complainant were considered. In the result, however, the Board decided unanimously to continue the policy set out above. The net effect of this ruling was to preclude consideration of the complainant not only because his father was a member of the Supervisory Committee of the respondent, but also because he was an employee of the Atlas Steel Company.
26The decision of the Board of Directors of the respondent was never communicated to the complainant. Indeed, the complainant never received any communication from the respondent, including even an acknowledgment of receipt of his application for employment. Mr. Watson said it was his assumption and that of the Board of Directors that William Szabo probably would have spoken with his son about the decision of the Board of Directors, and the effect of the policy. Indeed, that is precisely what happened.
27The Board of Directors meeting, as noted, took place on February 25th. Following that meeting and with the approval of the Board, Mr. Watson began the selection process for the advertised position of senior mortgage and loan officer. The incumbent, Robert Steed, had tendered his resignation effective April 1985. It was important for the newly appointed person to effect a smooth transition. Though more will be said later, it will suffice at this point to note that the respondent is a relatively small credit union employing only five full-time persons, including clerical staff.
28By the deadline of March 8, 1985, there were about fifty applications for the position. Mr. Watson, in a paper review only of the applications, cut the number to about fifteen. Then in a further review, he cut the list of applicants to eight. Mr. Watson said that the complainant, but for the respondent's policy against hiring family members, would have been on the list of eight.
29The eight were then interviewed by Mr. Watson along with a member of the Board of Directors. The list was cut to four. At that point, Credit Union Central, an Ontario credit union for credit unions which has both regulatory and service functions, was called upon to interview the remaining four candidates and then come forward with a recommendation. In the result, three of the four candidates appeared for the scheduled interviews. Credit Union Central recommended Don Wiltshire for the position, and that recommendation was approved at a salary of $31,000 per annum.
30Thus far, the facts compel this conclusion: The complainant certainly was discriminated against on the basis of family status within the meaning of section 4(1) of the Human Rights Code. He was denied the opportunity of consideration for employment as senior mortgage and loan officer with the respondent.
Section 23(d) Defence
31But, what of the defence under section 23(d) of the Code? Can it be said that the discrimination was permitted because William Szabo, the complainant's father, would either have been his son's employer, or that he was an employee of the respondent?
32The answers to these questions can only be found by examining the nature of the respondent as a credit union, the position of William Szabo as a member of the Supervisory Committee, and the relationship of the respondent to the Atlas Steel Company of which William Szabo was an employee.
33Expert evidence concerning the nature of credit unions came from Gerry Gillam, Director of Legal and Governmental Affairs and Administration of Credit Union Central. Before proceeding further, however, a few words should be said about Credit Union Central and its relationship to credit unions in Ontario. Credit unions in Ontario constitute a $7.7 billion system of about 813 credit unions, including the caisses populaires. Seven hundred ninety-six of these credit unions are members of the Credit Union Central, which, as noted before, performs certain regulatory and service functions within the meaning and limits allowed by The Credit Unions and Caisses Populaires Act, R.S.O. 1980, c. 102, as amended [the Credit Unions Act]. Among the regulatory functions are those relating to the protection of deposit and loan monies, as well as certain auditing functions. Included in the service functions are those relating to the interpretation and proposals for the revision of the Credit Unions Act.
34Credit unions are unlike most financial institutions, said Mr. Gillam. These are the characteristics that distinguish credit unions, and, in a sense, bear upon the questioned relationship between the respondent, William Szabo, and his son, if he had been considered for the advertised position:
- Credit union membership within the meaning of section 27(1) of the Credit Unions Act is limited to those persons or related persons having a common bond of association. Only those who fall within the bond of association may be served by the credit union. That bond of association for the purpose of the respondent consists primarily of employees and their families of the Atlas Steel Company in Welland.
Secondarily, it consists of employees of the respondent and certain designated members of the union which represents the employees of the Atlas Steel Company in Welland.
Yet, having said this, the Credit Unions Act calls for the separate incorporation of the credit union. It is in no way controlled by the entity serving as its bond of association. In this case, that entity would be the Atlas Steel Company in Welland. The respondent stands as a separate entity from the steel company both in law and in fact.
- The credit is a non-profit organization. This is not to deny the possibility of generating surpluses. However, should such surpluses be generated, they are to be used for the benefit of the membership. The implementation of this principle, as applied to the respondent, means that many of the functions of governance of the credit union are carried out on a volunteer, non-paying basis. William Szabo, for example, as a member of the very important Supervisory Committee which will be described shortly, acted as a volunteer, and he received no compensation. The same is true of other members of the Supervisory Committee, the Credit Committee and the Board of Directors.
Yet, to say that they are volunteers and they are not paid is not to diminish their very real and important responsibilities. These are responsibilities that are defined in the first instance by the Credit Unions Act, and secondarily by the by-laws of the credit union. The Act imposes upon the elected members an obligation, by way of example, of regular attendance, and it provides for their replacement should there be more than three absences from regular meetings.
- Credit unions are democratically controlled. Each member of the credit union has one vote, regardless of his or her deposits or loans. There are no shareholders as such. The members elect the board of directors who set the policies of the credit union and control management through reporting and hiring procedures. The members also elect members to two committees, the Supervisory Committee, and the Credit Committee, which the Credit Unions Act require. The functions of the Credit Committee relate to loan criteria and approvals. The functions of the Supervisory Committee are largely those of an oversight nature. Section 55(1) of the Credit Unions Act defines them as follows:
The supervisory committee shall examine the books of the credit union, confirm the cash instruments, property and securities of the credit union and confirm the deposits of the members and perform such other duties as are prescribed by this Act, the regulations and the by-laws of the credit union.
Should the Supervisory Committee find either a misappropriation or misdirection of assets as provided for in the Credit Unions Act, its powers are sweeping. There is a reporting function to the appropriate regulatory authorities. Beyond that, the Supervisory Committee may suspend officers, directors and employees pending its call of a general meeting of the members of the credit union [section 56(3) of the Credit Unions Act].
35At several points in his testimony, Mr. Watson referred to William Szabo as his employer. Indeed, he referred to the membership generally as his employer. The policy against hiring family members was structured to avoid the pressure, perceived or actual, incident to the operation of the credit union. The need for this is substantial because the credit union already is a kind of family. People know one another. This comes through the bond of association; most of the credit union members are employees of the Atlas Steel Company in Welland. And, it comes in part because the membership is relatively small in number. At the time of the hearing, the respondent had about 4,600 members. Mr. Watson said membership had increased only 3 percent over the past few years. He added that the membership would probably top out at about five thousand.
36In such a setting, each member of the credit union, having the power of a vote, also has a certain measure of influence. And, certainly a member of either the credit committee or the Supervisory Committee or the Board of Directors has somewhat greater power: that person is a member of the credit union and has the power of office.
37Still, having said this, there simply is no basis in law for concluding that a member of the credit union generally, or William Szabo, as a member of the Supervisory Committee in particular stands in the position of employer or employee. The employer is the legal entity, the respondent in this matter known as the Atlas Employees Welland Credit Union. It is that organization which sought the questioned application for employment. William Szabo was in a position of some influence as a member of the Supervisory Committee. It is clear that he sought to use that influence in favour of his son. But, influence, alone, is not enough to transform Mr. Szabo into an employer. Indeed, it should be noted that the attempt to influence was neutralized effectively by Mr. Watson when the matter was placed before the respondent's Board of Directors on February 25th.
38Nor was William Szabo an employee of the respondent. Rather, he held an elected position of considerable responsibility. It was a position without pay, albeit there were specific statutory duties assigned to the role of the Supervisory Committee. If anything, the facts dictate that Mr. Szabo held an elected office in a democratically run organization.
39His full-time employment as an employee was that as a machinist for the Atlas Steel Company in Welland, a job that he held for more than twenty years.
40In the result, the finding must be that the defences of section 23(d) of the Human Rights Code do not apply to the respondent, and, accordingly, there is the finding of unlawful discrimination within the meaning of sections 4(1) and 8 of the Human Rights Code for the reasons already stated. To reach these findings one does not have to become involved in matters of construction. On their face, the facts, themselves, dictate the conclusions reached.
41I hasten to add that the conclusions reached are not based on any finding of intent to discriminate in violation on the part of the respondent, an intent which was rooted in a rule of more than thirty years duration. The complaint charged, however, does not require a finding of intent to discriminate as to the prohibited classification of family status. The act of discrimination, unless saved by section 23(d), is condemned.
42In Mark v. Porcupine General Hospital (1985), 1984 CanLII 5081 (ON HRT), 6 C.H.R.R. D/2538, Professor Cumming dealt with a charge of discrimination on the basis of marital status within the meaning of section 23(b) of the Human Rights Code. The complainant was hired as a housekeeper by the supervisor of the hospital's maintenance and housekeeping department. Her husband was employed in the same department as a maintenance worker. At the time of hire, the supervisor was not aware of the hospital's policy against employing husbands and wives in the same department. As a result, the complainant was discharged. Section 23(d) was one of the defences raised. Professor Cumming, however, found that the defence was misplaced. The reason was that the individual had already been hired. Section 23(d) relates to hiring or withholding employment. In this regard, Professor Cumming noted that if the supervisor had been aware of the policy at the time of the application for employment and had he refused to hire because of that policy, section 23(d) could have been used as a complete defence. Section 23(d), he said, is a clear enunciation of a public policy [at para. 21048]:
of non-interference in respect of nepotism by some employers in hiring, and non-interference in respect of the opposite position of some other employers in arbitrarily excluding one spouse from consideration for employment when the other spouse is an existing employee. Preference for a spouse, or arbitrary exclusions of consideration of a spouse, for employment or advancement, is left to the unfettered discretion of the employer.
43Professor Cumming could not give section 23(d) a meaning that it did not have. He could not remedy the oversight on the part of the person who hired the complainant without regard to the hospital's own rule against such employment. He stated [at para. 21050]:
One might describe this [the hiring] as an innocent slip-up in the administration of the hospital. However, it must be emphasized, [that the complainant] was herself entirely an innocent party. Once she became an employee, she is entitled to the full protection of the Code. The respondents cannot excuse themselves from a transgression of the Code on the basis that they inadvertently or haplessly got themselves into a position from which they could only extricate themselves by a breach of the Code. A breach of the Code is a breach of the Code. However, the circumstances of the breach of the Code are appropriate in considering remedies. [Emphasis added.]
44Similarly, I cannot give section 23(d) a meaning that its language does not permit. William Szabo was neither an employer nor an employee within the meaning of that section. Nor can I take the classification of "family status" and give it the same meaning as marital status, thereby allowing for the defenses of section 23(b) relating to bona fide occupational requirement. I can, however, consider the circumstances of the breach in determining the appropriate remedies.
Remedies, Including Damages
45As stated before, counsel for the complainant seeks damages both special and general. In this regard, the Commission indicates that it is supportive of the request. The specific items of damages sought include the following:
- The complainant seeks the difference in salary for a period of one year between what the complainant earned as a Loan Officer for Victoria and Grey National Trust Company's office in Hamilton, Ontario, a position which he began on May 29, 1985, and what he would have earned if he had been awarded the challenged position of Senior Loan Officer with the respondent. There is the assumption of a start date of employment with the respondent of April 22, 1985.
Relying on answers to hypothetical questions put to Mr. Watson, Manager of respondent, complainant counsel drew the response that if the complainant had been hired for the challenged position he would have received a starting salary between $27,000 and $28,500. The complainant's starting salary with Victoria and Grey Trust Company was $25,500. Donald Wiltshire, the successful candidate, received a starting salary from the respondent of $31,000. Complainant's counsel leaves open what that starting salary would have been with the respondent. He suggests that it could have been from $27,000 to $31,000.
Next, the complainant seeks the cost of increased mileage for the trips between his home in Welland and the Hamilton office from May 29, 1985 to November 15, 1985, at which time he was transferred to the St. Catharines office of Victoria and Grey Trust Company. The round-trip travel each day between Welland and Hamilton was 184 kilometers. Over a period of 119 days, the total is 21,666 kilometers. Using rates under the Administration of Justice Act, this would result in a cost of $4,549.86. Under the Courts of Justice Act and the Rules of Civil Procedure, the cost would be 24Ӽ a kilometer for a total of $5,199.84.
General damages in the amount of $3,000 are requested under authority of section 40(1)(b) on the ground that the violation was engaged in wilfully and caused mental anguish.
Legal expenses are claimed from the date when counsel was retained by the complainant, about a year after the complainant filed his complaint with the Commission. Expenses are requested on a solicitor-client basis.
Finally, interest on items 1 to 3 is claimed from the date of the act of discrimination which complainant counsel sets as February 25, 1985.
As complainant counsel readily concedes a central problem in quantifying items 1 and 2 is the assumption that the complainant would have received the contested position. It is clear that Mr. Watson placed the complainant among the eight most qualified candidates. He did this on the basis of the complainant's submitted résumé.
56The eight most qualified candidates were interviewed by Mr. Watson and a member of the Board of Directors. That list was cut to four. They were scheduled for interview by a representative of Credit Union Central. Three of the four candidates appeared for the scheduled interviews. Mr. Wiltshire was recommended to receive the position, and that choice was affirmed by the Board of Directors with a start date of April 22, 1985.
57Considerable evidence was led by the respondent comparing the qualifications of Mr. Wiltshire with those of the complainant. This much seems clear from the evidence: the advertised position as Senior Loan Officer in this rather small credit union called for the need to make strong and independent judgments. A key determiner of that capacity was the candidate's independent loan authority with his/her existing employer.
58At the time that he applied for the position, the complainant had no independent loan authority. Mr. Wiltshire, however, a loan officer with Guaranty Trust Company, had independent loan authority of $10,000 unsecured; $12,500 for automobile loans; $50,000 for fully secured loans; and $75,000 for conventional mortgages. Further, Mr. Wiltshire worked in a somewhat more competitive environment in the Toronto area. Indeed, at one point in time he was in charge of two loan offices in that area. Finally, though he had only a high school education, and he did not hold a three-year business administration certificate as did the complainant, Mr. Wiltshire had four years more experience as a loan officer. This was reflected in his salary at the time of application of $29,000 per annum as compared to the complainant's salary of $25,000 per annum.
59The probability is that Mr. Wiltshire would have been selected for the advertised even if the complainant had been interviewed. Note, however, that I said probability. I did not say certainty. Indeed, Mr. Watson whose testimony was quite candid, stated:
I would have had to interview Paul [the complainant] to decide whether he would go on further. There were key things that I would have wanted to have asked him. I had a list of three pages of questions that I had asked all of the [interviewed] candidates, the same questions. But there were some specific things that I was interested in. Most important to me was performance. I wanted someone who has got a good track record.
There was no testimony concerning the other two candidates who were in the final cut of scheduled interviews with the representative of Credit Union Central. We do not know how they would have compared to the complainant.
60In the result, I am left with the conclusion that that which the complainant was denied as a result of the respondent's violation of the Human Rights Code was the opportunity to be considered as an applicant. If he had been considered, there is no reason to believe that he would not have ranked among the final four contenders. He would have had a one in four chance of succeeding, even though the probability is that he would not have won out against Mr. Wiltshire.
61Accordingly, bearing in mind the remedial nature of the Human Rights Code and the difficulty of proof, I believe that the complainant should receive one-fourth of the amounts that would have been awarded to him if he had been awarded the contested position:
Ӣ For the difference in income, as set out in item 1 above, I order that $625.00 be paid.
Ӣ For the extra mileage resulting from travel between Welland and Hamilton, as set out in item 2 above, I order that $1,136.46 be paid.
62I come now to item 3, a request for interest on the monies ordered paid as to items 1 and 2. The request was for payment to be made from the date of discrimination. I think this is an inappropriate baseline. Rather, "the commencement date for interest is the time of service of the complaint upon the respondents." [Mark v. Porcupine General Hospital, supra, at para. 21056.] While no evidence was given as to the rate of interest, taking judicial notice of the Bank of Canada rates during the relevant period, I find that interest should be paid at 10 percent from the time of service of the complaint.
63There is the matter of general damages. Professor Cumming said in Cameron v. Nel-Gor Castle Nursing Home and Marlene Nelson (1984), 1984 CanLII 5045 (ON HRT), 5 C.H.R.R. D/2170 at para. 18359:
An inherent, but separate component of the general damage award should reflect the loss of the human right of equality of opportunity in employment. This is based upon the recognition that, independent of the actual monetary or personal losses suffered by the complainant whose human rights are infringed, the very human right which has been contravened itself has intrinsic value. The loss of this right is itself an independent injury which a complainant suffers.
An award for general damages is appropriate in this matter. Yet, given all the circumstances, I cannot say that there was a real loss of dignity, self-respect, emotional upset, psychological damage or mental anguish.
There was, however, loss of the right to freedom from discrimination on the prohibited ground of "family status." Within the meaning of section 41(b) of the Code, on its face, the policy of discrimination was wilful. It is my view that an award of $500 on the above-stated basis will suffice.
64Finally, complainant counsel has asked for legal costs on a solicitor-client basis from the time when counsel was retained. In this regard, counsel was not specific as to that time. He did indicate, however, that he entered upon the matter at a point well in advance of the issuance of the complaint. This was done, according to complainant counsel, "when it seemed to be taking quite some time to proceed to this stage." The complainant filed his complaint with Human Rights Commission in St. Catharines on April 10, 1985.
65Initially, therefore, complainant counsel was retained to help expedite the proceeding vis-a-vis the Commission. There is absolutely no evidence that the respondent did anything other than cooperate throughout these proceedings. I fail to see, therefore, why the respondent should be burdened by costs incident to the operations of the Commission in moving this matter forward.
66Yet, once the Board of Inquiry was named, it is clear that complainant counsel performed an independent and useful function in representing the interests of the complainant in these proceedings. Accordingly, I will award costs on a party-to-party basis from the date when the Board of Inquiry was named in this proceeding.
67I will leave it to the parties to quantify those items for which criteria relating to damages have been indicated but where the precise amounts have not been calculated. Should the parties fail to reach agreement as to such items, I will retain jurisdiction.
Order
68This Board of Inquiry has found that the respondent, the Atlas Employee Welland Credit Union, is in breach of subsection 4(1) and section 8 of the Ontario Human Rights Code, 1981, S.O. 1981, c. 53, in respect of the complainant, Paul Szabo. For the reasons given above this Board of Inquiry orders the following:
The respondent is prohibited from discriminating in employment on the basis of family status. In this regard, the exceptions set out in section 23(d) of the Human Rights Code remain available to the respondent. However, it is understood that neither employees of Atlas Steel Company nor members of respondent Board of Directors, or its Credit Committee or its Supervisory Committee are to be considered employees or employers within the meaning of section 23(d) of the Human Rights Code.
The respondent shall pay to the complainant as damages for lost wages the sum of $625.00.
The respondent shall pay to the complainant as damages for the cost of travel the sum of $1,137.46.
The respondent shall pay to the complainant interest on items 1 and 2, supra, in the amount of 10 percent from the time of service of the complaint in this matter.
The respondent shall pay the legal fees of the complainant on a party-to-party basis from the date of the appointment of this Board of Inquiry.
This Board of Inquiry will remain seized of the matter should any dispute arise concerning the implementation of this order.
It is so ordered.