Toronto (City) Board of Education v. Quereshi (No. 3)
1989-08-04
Ontario Board of Inquiry
CHRR Doc. 90-107
Muhammad Saleem Quereshi Complainant
v.
Central High School of Commerce and Board of Education of the City of Toronto Respondents
Date of Complaint: November 12, 1982 Date of Decision: August 4, 1989 Before: Ontario Board of Inquiry, Ed Ratushny Comm. Decision No.: 309C
RACE, COLOUR AND PLACE OF ORIGIN — RELIGION AND CREED — DISCRIMINATION — indirect discrimination — intent not required — employment denied to Muslim teacher despite qualifications — EVIDENCE — credibility of witness — incomplete because of delay
Summary: The Board of Inquiry finds that Muhammed Saleem Quereshi was discriminated against because of his place of origin and his ethnicity when he was denied a teaching position at Central High School of Commerce.
Dr. Quereshi has four degrees, including a Bachelor of Education and a Doctor of Philosophy in Science. In 1982 he applied for a position as a teacher of mathematics and science at the Central High School of Commerce in Toronto. The position was awarded to a less qualified white woman of British ancestry.
The Board of Inquiry finds that there was no intentional discrimination against Dr. Quereshi. However, considering all of the evidence, the Board finds that the interviewers failed to give due consideration to Dr. Quereshi's qualifications. The only available explanation for this is that the interviewers did not take into account cultural differences arising out of Dr. Quereshi's place of origin and ethnicity.
The Board of Inquiry will reconvene to hear submissions regarding an appropriate award.
[See also (1987), 1987 CanLII 8495 (ON HRT), 9 C.H.R.R. D/4527 and (1989), 1989 CanLII 9078 (ON HRT), 12 C.H.R.R. D/393 for preliminary motions on this complaint.]
Legislation Cited
Ontario
Human Rights Code, 1981, S.O. 1981, c. 53: 5
1This has been a long and difficult hearing which first convened on February 25, 1987 and last heard evidence on January 20, 1989. Prior and subsequent to the latter date, a number of interim motions were argued, some by conference telephone calls, and ruled upon. It was agreed by all counsel that the presentation of evidence and argument as to an appropriate order, if necessary, would be postponed until this decision was rendered. In scheduling these hearings, considerable difficulty was encountered in attempting to find days on which all three counsel as well as the Board were available, so that the presentation of evidence was interrupted on a number of occasions. In these circumstances, counsel agreed to present argument by way of written submissions.
2The complainant, Dr. Quereshi, is a Canadian citizen, originally from Pakistan. He holds the following university degrees:
Bachelor of Education (Dalhousie University);
Bachelor of Science — Honours (University of Karachi, Pakistan);
Master of Science (same);
Master of Science (University of Kent, United Kingdom);
Doctor of Philosophy (York University).
Since January 1980 he worked as a long-term supply teacher for the Scarborough and North York Boards of Education. He received his Ontario Teaching Certificate in September of 1981. Throughout this period and previously, he had been attempting to find permanent employment as a high school teacher in Metropolitan Toronto, but without success.
3In early October 1982 he responded to a newspaper advertisement. On October 5 he was interviewed for a position with the Central High School of Commerce. He was called for a second set of interviews on October 7 and was subsequently informed that another person had been hired.
4Dr. Quereshi subsequently learned that the successful candidate was a white English woman who did not have an Ontario Teaching Certificate. In his view, her qualifications and teaching experience were inferior to his. Moreover, she had not participated in the first set of interviews on October 5 but was permitted to be interviewed for the first (and only) time on October 7. The successful candidate was identified only as "Margaret." Unfortunately, she became ill soon after her selection and has not been able to teach. This hearing was informed that she was unable to testify because she has been confined to bed for some time.
5Dr. Quereshi's complaint alleges discrimination on a number of grounds prohibited by the Ontario Human Rights Code, 1981, S.O. 1981, c. 53. However, on the evidence presented, only three need be addressed. These are: (1) Creed; (2) Sex; and (3) Place of Origin and Ethnic Origin.
6The only evidence relevant to discrimination based on creed relates to an interview of Dr. Quereshi by one of the vice-principals, Mr. Peter Stille. During his testimony-in-chief, Dr. Quereshi stated that towards the end of the interview he asked Mr. Stille whether it would be possible to modify the timetable to permit him to have his spare period next to his lunch on Fridays. He is a Muslim who wished to offer Friday prayers regularly at the mosque. According to Dr. Quereshi, Mr. Stille informed him that was not possible since the timetable was already in place. (The interviews took place well into the school term.)
7Dr. Quereshi testified that he told Mr. Stille that he would take the position in any event but would prefer a possible timetable change if that could be done in future. He testified that he would have fulfilled his religious customs in the following manner:
I would have asked the Muslim students in the school to join me in one of the vacant rooms and offered a congregation. We require at least four or five people available and it becomes exactly the same thing as you do in the mosque. We are permitted to do that so I would have taken that course.
However, when giving reply evidence, Dr. Quereshi took a completely contrary position:
I am obliged to offer the Friday afternoon congregation with the people. Now, that prayer has to be done in an assembly, when [a] large number of people are there together. I cannot ask for a small place.
He went on to distinguish personal prayer which he offered five times daily from Friday prayer with a congregation which he then claimed he would have to forego completely if he accepted the position.
8In view of this blatant contradiction, the evidence of Mr. Stille on this issue is much more credible. He stated that he responded to Dr. Quereshi's request by indicating that he was not aware, at the time of the interview, of when the classes in question were to be taught or whether there would be time to visit the mosque. He continued:
It was something we could look at. What we did do, though, was to continue talking about it and the resolution that I felt we came to was that if Dr. Quereshi was offered the position, that we would provide room in the school, or space in the school, for him to conduct his prayers. The other recollection I had about that was that, again, that would be a good thing for the school.
There clearly is no basis to substantiate the allegation of discrimination based on creed.
9The complaint of Dr. Quereshi does refer to sex as one of the alleged grounds of discrimination. However, at a very early stage of these proceedings, his counsel specified that the grounds relied upon would be race, creed, ethnic origin, and place of origin. Sex was not mentioned. Neither counsel for Dr. Quereshi nor for the Commission made any submissions in relation to discrimination based on sex. Nevertheless, in his written reply to the submissions to the respondents, counsel for Dr. Quereshi raised for the first time in argument the allegation of discrimination based on sex. The argument was based on evidence which suggested that one of the interviewers demonstrated a clear bias in favour of female candidates. While some evidence of that nature clearly does exist, the manner in which this argument was raised would make it extremely unfair for this Board of Inquiry to give any consideration to it.
10This leaves for consideration the allegation of discrimination based on place of origin and ethnic origin. The evidence relied upon to support this ground relates to the assessment given by the last two interviewers to Dr. Quereshi in comparison to Margaret. As a result of cultural characteristics attributable to his place of origin and ethnic origin, it is alleged that due weight was not attributed to the substance of his interviews as opposed to the weight given to the more effuse style of Margaret, whose place of origin was Great Britain. It is alleged that the outgoing personality which she exhibited at her last interview was permitted to override all objective criteria which, otherwise, would have pointed to Dr. Quereshi as the successful candidate.
11The law is clear that discrimination will be established as long as one of the motivating factors in refusing to hire Dr. Quereshi was a prohibited ground of discrimination. It need not be the only factor. Moreover, in human rights cases the presence of such a motivating factor often will be inferred from circumstantial evidence, since discrimination is seldom practised openly. Indeed, discrimination may occur in contravention of the Ontario Human Rights Code even where it is unintentional. In other words, even though those acting on behalf of the respondents may have been acting in good faith and without any ill will towards Dr. Quereshi, it is possible that a prohibited motivating factor was present in the decision not to hire him. If that is a reasonable inference from the circumstances established by the evidence, a contravention of the Code will be established.
12Essentially, the Commission and Dr. Quereshi allege that cultural characteristics stemming from his place of origin and ethnic origin were a motivating factor in selecting the successful candidate, Margaret, over Dr. Quereshi. If so, a contravention of the Code will be established. As counsel for the respondents has pointed out:
The mere fact that a person, who could be identified by a prohibited ground, was interviewed and not offered a position and that another person, who could not be so identified by a prohibited ground, was subsequently interviewed and was offered the position is not sufficient, in the absence of other evidence, to establish that the unsuccessful candidate was the victim of racial discrimination.
Therefore, it is necessary to examine the evidence to determine whether, on balance, it is a reasonable inference that the alleged cultural differences between Dr. Quereshi and Margaret were, indeed, present and played a material role or affected the decision not to hire him.
13There were considerable differences in the recollection of the facts by various witnesses. In addition, there were inconsistencies in the testimony of some of the witnesses called on behalf of the respondents as well as in the testimony of Dr. Quereshi. Many of these differences and inconsistencies are on marginal issues or are explainable simply as the diminishing of memory after some five to seven years. However, the salient facts in relation to the central issues are relatively straightforward.
14A number of circumstances exist which point away from the conclusion that discrimination in hiring would have occurred at the Central High School of Commerce. To begin with, approximately 15 percent of the teaching staff are of a visible minority. Secondly, one of the three members of the team which conducted the first set of interviews was Mohan Anand. Mr. Anand was born in India and his religion is Hindu. There are similarities in the backgrounds of him and Dr. Quereshi. Thirdly, Margaret was not the first successful candidate, who was a Black man from either the West Indies or Ghana. She was selected only after he was rejected following a check on his references.
15Finally, there were two individuals most directly responsible for hiring Margaret rather than Dr. Quereshi. They were the same individuals who had recommended Mr. Anand's promotion to Assistant Head and then Head of the Mathematics Department. Mr. Peter Stille was the most important witness called on behalf of the respondents. During his teaching career he has had extensive experience in dealing with race relations in the schools. He has always worked in what the Board of Education designates as "inner city" schools with a rich multicultural mix. As a guidance counsellor and vice-principal, he was frequently involved in matters of racial and cultural conflict. As far back as 1969, he was the staff sponsor involved in establishing the Black Student Organization which was the first established in the City of Toronto. At another school, he was the first chairperson of a race relations committee. He was also one of the founding teachers in the Multi-School Project which brought together groups of students of different races and cultures from a variety of school and socio-economic areas of the city.
16Indeed, there is nothing in the evidence to suggest any intention to discriminate against Dr. Quereshi on the part of Messrs. Anand, Shenton, and Ms. Hayes, who conducted the first set of interviews, or on the part of Messrs. Stille and Tyson, who conducted the last set of interviews, or on the part of Mr. Harvey, who as principal had the ultimate responsibility for hiring. On the contrary, the general impression which was left by those involved in the hiring process was of dedicated and conscientious teachers who wanted only to do the best thing for the students and for the school.
17Nevertheless, these general observations cannot be permitted to overwhelm the task at hand which is to examine the specific complaint of Dr. Quereshi on the basis of the specific facts which were presented. In other words, a finding of discrimination in hiring may occur even though members of other minority groups on even other Moslems who originated in Pakistan were hired. For example, it is possible that the qualifications of such candidates are not given due weight and, therefore, that they face more stringent standards than other candidates. Similarly, the good character and motives of those involved in the hiring process do not rule out the possibility of unintentional discrimination through a failure to take into account significant cultural differences. What is clear at the outset, however, is that there is no evidence of intentional discrimination.
18Dr. Quereshi was born in Delhi, India in 1941 and attended high school in Karachi, Pakistan. He was an excellent student with a particular aptitude for physics, chemistry, and mathematics. He was also involved in a number of extracurricular activities. He received his B.Sc. (Honours) degree in 1963 and his M.Sc. in 1964 from Karachi University with concentrations in chemistry, physics, and mathematics. Following graduation, he became a lecturer in a college affiliated with Karachi University for two years, teaching physical chemistry to senior secondary and B.Sc. classes. In 1966, he travelled to England and, supported by a bursary from the International Tin Research Council, completed another M.Sc. degree at Kent University in Canterbury in 1968. While studying, he also taught students at the undergraduate level in inorganic chemistry.
19In 1968, he received a National Research Council scholarship at York University in Toronto and immigrated to Canada. In 1971, he received his Ph.D. and was awarded a post-doctoral fellowship at St. Francis Xavier University in Nova Scotia. Over the next three years he lectured, taught undergraduate courses, supervised laboratories, and conducted research. He became a Canadian citizen in 1974.
20From the time he was a student in Pakistan, Dr. Quereshi had aspired to be a high school or college teacher. He had been impressed by the status and example of his own teachers and preferred this level of teaching to that of a university since it allows the teacher to concentrate on teaching without the obligation of research and publication. He had applied to the Toronto Board of Education while still at York University and again while at St. Francis Xavier. However, he learned that a Canadian teaching certificate or Canadian training in education was required. As a result, he enrolled in the Faculty of Education at Dalhousie University and received his Bachelor of Education degree in 1976.
21He wished to teach in Toronto and continuously made applications to the Toronto Board of Education from 1976 to 1980. In 1977, he obtained his temporary letter of standing for teaching in Ontario and moved to Toronto but was unable to obtain a position as a teacher, so he took a position as a medical representative briefing pharmacies, hospitals, and doctors about the properties of the drugs which they were prescribing. In January of 1980, he finally obtained a position as a night school teacher and ceased to be a medical representative. This led to day teaching as a supply teacher, and in 1981 his letter of standing was replaced by an Ontario Teacher's Certificate.
22As a witness, Dr. Quereshi was subjected to rigorous cross-examination on all aspects of his qualifications, understanding of teaching, and credibility. Every reasonable avenue of potential attack was pursued. This is not to suggest that he was treated unfairly by counsel for the respondents but to underline that his character was subjected to intense scrutiny during these hearings. The attacks on his credibility were successful in establishing a number of inconsistencies in his testimony. He was also shown to have exaggerated aspects of his testimony which were favourable to him.
23Nevertheless, taking his entire testimony into account, he impressed this Board of Inquiry as a highly qualified and dedicated teacher. It was obvious that he has seriously studied and contemplated almost every aspect of the role of a teacher, including methodology and the motivation of students. He was also sensitive to special issues arising out of inner city schools such as the Central High School of Commerce, and the special problems related by female students studying mathematics.
24The Central High School of Commerce is located in an area of Toronto that is a longstanding immigrant reception area. In 1982, it had a student population of approximately 1600 students with a teaching staff complement of approximately 85. Approximately 75 percent of the students are female. The nationalities and ethnicity of the students are diverse and represent from 50 to 60 nations.
25At the beginning of September 1982, student enrolment at Central Commerce was greater than had been projected and an additional position was authorized. An advertisement appeared in the Toronto Globe & Mail of October 5, 1982 for a "Teacher of Mathematics with Science." The principal, Mr. E. Roy Harvey, was not available at the time, so the task of conducting interviews on behalf of the principal was delegated to the two vice-principals, Mr. Peter Stille and Mr. Jack Tyson. While the evidence was not completely clear and consistent, the interview process on October 5 was structured as follows. Each candidate would be subjected to a first interview by Mohan Anand, Head of the Mathematics Department, Joan Hayes, Assistant Head of Mathematics, and William Shenton, Head of Science. The second interview would be conducted by Vice-Principal Stille.
26The first interview was to determine the candidates' experience, teaching methodology, ability to handle specific teaching situations, and suitability to teach math and science at the grade nine general level. Six questions were prepared in advance by the interviewers, all candidates were asked the same questions, and each interview lasted approximately thirty minutes. The second interview was to determine how candidates would fit in at Central Commerce as well as fit into the system of the Board as a whole (since the low seniority of the successful candidate could result in a transfer to another school).
27Following both sets of interviews on October 5, all four interviewers met to discuss the candidates. The respondents took the position that there was no need to rank the candidates since the Black man from either the West Indies or Ghana was the first choice of three of the four interviewers. He will be referred to as "George." Ms. Hayes had selected a woman as her first choice, Dr. Quereshi as her second choice, and George as her third choice. Counsel for the respondents conceded that Dr. Quereshi was considered to be well qualified and to exhibit the qualities that the interview team looked for in a teacher.
28Mr. Stille reported to his principal, Mr. Harvey, that the interviewers were recommending George as being the clear first choice. The next day, Mr. Harvey checked George's references and learned that he had failed to fulfill his teaching contract with the Board on a previous occasion. As a result, he was not selected. Since the other candidates had not been ranked and new applications had been received, Mr. Harvey decided that the interview process should be repeated. Dr. Quereshi and one other candidate who had been interviewed on October 5 were invited to return for further interviews on October 7.
29The interviews on October 7 were conducted in the same manner as those on October 5 with two exceptions. Ms. Hayes was not present for all of the first interviews on October 7 since she was teaching a night school class and Mr. Tyson joined Mr. Stille for the second interviews. The same questions were asked. The next day Ms. Hayes and Messrs. Anand, Shenton, and Tyson met to discuss the results of the interviews.
30At this meeting, the three interviewers for the first interviews on October 7 did rank the candidates. Mr. Anand ranked Dr. Quereshi first, Mr. Shenton selected a new applicant (i.e., one who was not interviewed on October 5) first, and Ms. Hayes ranked as first, the person whom she had selected on October 5, even though that candidate had not been invited back for the second set of interviews on October 7! All of the other interviewers believed that only those who were interviewed on October 7 were still in the running. The ultimately successful candidate, Margaret, was not ranked first by any of these three interviewers. However, she made a very strong impression upon both Mr. Stille and Mr. Tyson at her second interview on October 7. While the evidence was incomplete, counsel for Dr. Quereshi demonstrated that it was sufficient to establish that if the ranking of candidates had been weighted numerically, Dr. Quereshi would have emerged as the top candidate of the first interview team on October 7.
31Following the meeting of interviewers on October 8, the references of Dr. Quereshi, Margaret, and Mr. Shenton's first choice were checked. Dr. Quereshi's references proved to be adequate. However, Margaret received a glowing recommendation from Mr. Creighton who was then the principal of another Toronto Board High School where Margaret had recently taught, presumably, as a supply teacher. Mr. Creighton urged Mr. Stille to hire Margaret. His opinion was highly regarded since he was well known to Mr. Stille and had preceded Mr. Stille as a vice-principal at Central Commerce. This reinforced the decision of Messrs. Stille and Tyson to recommend Margaret to Mr. Harvey, and she was hired.
32Counsel for Dr. Quereshi advanced the theory that Margaret had been recommended by Mr. Creighton even before she was interviewed. Dr. Quereshi testified that prior to his interview he was asked whether he had an Ontario Teacher's Certificate or a letter of standing, as he had been on dozens of earlier occasions when he had sought interviews. Margaret had only a letter of eligibility. Mr. Stille testified that neither he nor the secretary who was receiving applications knew whether this was sufficient to let her teach, but decided to interview her anyway and determine her eligibility later. The respondents deny that Dr. Quereshi would have been asked about the Certificate or letter but did not call as a witness the secretary responsible for receiving applications. When combined with the circumstance that there was pressure to make an appointment immediately, it is certainly suspicious that a candidate would be interviewed without first establishing her eligibility. It is also suspicious that both Mr. Tyson and Mr. Stille would be so impressed with Margaret's interview when none of the other three who had interviewed her considered her to be a first choice. However, in the absence of something more concrete, this theory is merely speculative and contrary to the evidence presented by the respondents.
33The evidence as to what transpired after Dr. Quereshi was informed that he was not selected is contradictory. The best reconstruction of events possible on the facts presented is as follows. In late October, Dr. Quereshi telephoned Mr. Harvey, asked him to specify one criterion on which the successful candidate was superior, and suggested that discrimination was the reason for his rejection. Mr. Harvey invited him to meet with him and his vice-principals to discuss the matter. On November 2, on his way to Mr. Harvey's office, Dr. Quereshi encountered Mr. Anand, who spoke to him in Urdu. Mr. Anand likely expressed regret that Dr. Quereshi was not hired, told him that he was impressed by him, and implied that the successful candidate was not a thriving success. Dr. Quereshi interpreted this conversation to indicate that he had been the victim of discrimination.
34In the meeting which followed, Mr. Harvey attempted to reassure Dr. Quereshi that he was not the victim of discrimination. Dr. Quereshi was impressed by the integrity of Mr. Harvey and the vice-principals and assured them that he did not consider them to be racist or to have discriminated against him. However, he was persistent in attempting to isolate the qualities of the successful candidate which were perceived to be superior to his own. Mr. Stille attempted to articulate these but was inhibited by their highly subjective nature. Dr. Quereshi's persistence led to Mr. Stille becoming angry. After the meeting, Dr. Quereshi concluded that the lack of objectivity in the interview process must have been motivated by racial discrimination.
35In the end, very little turns on what transpired at this meeting, or the inferences which Dr. Quereshi drew from it. Intentional discrimination already has been ruled out. The possible presence of unintentional discrimination will have to be determined by an objective assessment of the hiring process and the respective qualifications of Dr. Quereshi and Margaret.
36The Toronto Board of Education, with the assistance of the Ontario Human Rights Commission, had developed and implemented both a Race Relations and an Affirmative Action Policy prior to the events in question. In addition, the Board has codified positions with a view to eliminating the possibility of discrimination in hiring. Apparently, these Guidelines were adopted by the Board of Education in August 1981, more than a year before Dr. Quereshi's application to Central Commerce. However, they were not actually implemented at Central Commerce until the spring of 1983. Failure to comply with these Guidelines does not per se constitute discrimination. Nevertheless, they do provide a useful objective standard by which to assess the hiring process adopted by Central Commerce in relation to the position in question. Their central role is to provide objective standards and procedures for hiring, in order to reduce the potential for arbitrariness in which discrimination may thrive. In other words, the Guidelines reflect sound hiring practices which will tend to reduce the risk of discriminating against certain applicants. The failure to adopt such practices may be a factor supporting an inference of discrimination.
37There is no doubt that the hiring process in question was seriously flawed. If this was a labour grievance arbitration the job competition would have to be repeated. The confusion amongst the interviewers as to who was being considered and who had been eliminated was significant. Some candidates were interviewed once and others twice. One interviewer was not present for all of the interviews. The following standards contained in the Guidelines were not met:
Ӣ Relevant criteria and qualifications should be established in advance.
Ӣ They should be made available in advance and in writing to the prospective candidates.
Ӣ Factor(s) not included in the published criteria must not become the deciding factor(s) in the final decision.
No criteria existed, but merely a series of questions, many of which were "open-ended." An objective hiring process would not only establish criteria but would also assign points in relation to each criterion so that the points could be totalled and the candidates compared on an objective basis. All documents used in the rating process would be retained. Here, the interviewers did not even retain the papers on which they listed their ratings of the top three candidates following the October 7 interviews. It was not even clear how the decision was actually taken. There was talk of a "consensus" in relation to the selection of George. However, the predominant view of the first three interviewers on October 7 appears to have been overridden by the two vice-principals the following day.
38In sum, the hiring process was not fair and objective. It provided fertile ground for discriminatory factors to come into play. The issue of whether or not Dr. Quereshi's place of origin and ethnic origin were a motivating factor in the selection of Margaret requires an examination of their respective qualifications.
39Neither Margaret nor Dr. Quereshi had a perfect match between their specific teaching qualification and that of a teacher of "mathematics with science." Margaret's qualification was for chemistry with mathematics. Dr. Quereshi was qualified for all sciences. There is little to choose between them in this respect since both were capable of teaching in the areas for which they were not formally qualified and a principal has the authority to appoint them to do so.
40There is no question that Dr. Quereshi's academic qualifications are far superior to those of Margaret. Indeed, Dr. Quereshi must belong to a rather elite category in this respect. Both have a B.Sc. (Honours) but Dr. Quereshi also has two M.Sc. degrees and a Ph.D. degree. Dr. Quereshi also had greater experience as a teaching assistant and lecturer at the following universities: Karachi, Kent, York and St. Francis Xavier. Margaret's experience in this respect was much more limited. The respondents attempted to downplay the significance of academic qualifications for a high school teacher. However, it was conceded that teachers do receive increased remuneration for enhancing their academic qualifications. Moreover, Dr. Quereshi's impressive academic achievements are bound to enrich any school at which he teaches as well as to provide a positive role model, particularly for inner city students. Finally, one of the specific questions asked by Mr. Stille at the second interview was: "What are your academic qualifications and experience?"
41In terms of teacher training, Dr. Quereshi, again, was clearly superior. Margaret had a graduate certificate in education from the University of Leeds in England. Dr. Quereshi had a Bachelor of Education degree from Dalhousie University in Canada.
42Margaret had not had significant teaching experience at the high school level since 1962 in England. She had taught at a grammar School from 1960 to 1962. Dr. Quereshi taught high school students in Pakistan from 1964 to 1966. Shortly before her application to Central Commerce she taught at another Board of Education high school, presumably as a supply teacher. Although Margaret was not available as a witness, it would have been possible to call Mr. Creighton, the principal of that school who had given her such a high recommendation. However, he was not called and the reasonable inference is that her experience as a supply teacher was insignificant. Mr. Stille conceded on cross-examination that it was no more than three or four weeks. In contrast, Dr. Quereshi worked almost continuously as a long term, night, summer, and supply teacher in the Toronto area for almost three years immediately prior to his application to Central Commerce. His high school teaching experience clearly was superior to that of Margaret, who had taught in a high school for no more than three or four weeks in the twenty years prior to her appointment at Central Commerce.
43Another of the questions asked by Mr. Stille at the second interview was: "What are your extra curricular interests?" Dr. Quereshi testified that he informed him of his many extracurricular achievements as a student — as president of the school, in the debating society, in the literary society, in the science society, and as a student editor. He indicated that he might be able to coach the hockey team (presumably field hockey) or the cricket team. These particular sports interests might be of much greater attraction to an inner city school than ice hockey, football, or baseball. He offered to assist the science club at the school by helping to prepare students for science fairs or exhibitions or to assist in outside visits. The evidence does not support a comparable potential contribution to the school by Margaret.
44It is clear that by all objective criteria, Dr. Quereshi's qualifications were superior to those of Margaret. It was pointed out earlier that the most favoured candidate by those who conducted the first interviews on October 7 appeared to be Dr. Quereshi. Although Margaret's name did appear on all three of the lists, she was not rated first by any of the three interviewers. What, then, was there about her interview with Messrs. Stille and Tyson which caused them to rate her first?
45Counsel for the respondents summarizes the answer to this question in the following way:
Mr. Stille was particularly impressed with her interview that:
[a] her answers to questions demonstrated an enthusiasm, understanding and excitement about teaching and the process of teaching as it pertained to this particular position;
[b] her knowledge of the teaching techniques that would motivate general level students was dead on;
[c] her experience with her own children, who were learning disabled, demonstrated that she could relate to a general level classroom;
[d] she had nine years teaching experience involving a broad range of subjects which included recent experience at the University of Toronto and at Forest Hill Collegiate High School; and
[e] she had extensive teacher qualifications in the following subjects: mathematics, intermediate and senior division science and senior division chemistry.
There is no question that Messrs. Stille and Tyson felt that she was the best person for the job, the school, and the system. The question is whether their assessment withstands objective scrutiny.
46For the reasons already given, it is clear that Dr. Quereshi's qualifications were superior in relation to items [d] and [e]. Item [c] is difficult to assess and, quite frankly, it suggests a rationalization. A parallel argument would be that Dr. Quereshi would be able to relate to an inner city school because he had actually experienced the problems associated with immigrating to Canada, including the necessity of dealing with the personal problems of his own children.
47The only real criteria on which Margaret could be considered to have been a superior candidate to Dr. Quereshi were her enthusiasm and excitement about teaching and her potential to motivate students. In the evidence of Mr. Stille these qualities tend to merge. The words "style," "spark," and "potential" were also used to describe the superior qualities which Margaret displayed during her interview with Messrs. Stille and Tyson.
48How does Dr. Quereshi rate in terms of enthusiasm, spark, and potential to motivate students? After many hours of testimony and gruelling cross-examination, there is no doubt that Dr. Quereshi is extremely enthusiastic about teaching and has great potential to motivate students, particularly in an inner city school. As indicated earlier, he impressed this Board of Inquiry as a highly qualified and dedicated teacher. It was obvious that he has seriously studied and contemplated almost every aspect of the role of a teacher including communication, methodology, and the motivation of students. He was also sensitive to special issues arising out of inner city schools such as Central Commerce and the special problems related to female students studying mathematics.
49In the absence of testimony from Margaret, the irresistible conclusion is that any differences between them related to style rather than substance. Mr. Stille was cross-examined extensively on the perceived qualities which would render Margaret a better choice. He repeatedly relied upon highly subjective impressions which amounted to a "gut feeling" that Margaret would prove to be a better teacher. It is understandable that even a sensitive and dedicated person such as Mr. Stille could fail to appreciate the depth of Dr. Quereshi's qualities. His command of the English language is flawed and it is likely that Margaret was more articulate and expressive in oral communication. Nevertheless, Dr. Quereshi was able to communicate, effectively, a knowledge and appreciation of the importance of motivating disadvantaged students and the methodology necessary to achieve that goal, in spite of difficulties with grammar.
50His problems with grammar certainly did not inhibit his demand as a supply teacher during the three years prior to his application at Central Commerce. While one witness testified that complaints were made about his teaching, there was no direct evidence that these had ever been brought to his attention. Dr. Quereshi denied that he ever had been informed of such complaints and this allegation must be discounted.
51Dr. Quereshi, who had lived in England as well as in Pakistan and Canada, was asked directly about cultural differences in communication between himself and a person of British origin:
There are very, very different perceptions about the person . . . So from the very childhood, you are told, in Pakistan, think before you open your mouth. As a child who is thinking, is looked at [as] a person who is very intelligent. A person who is continuously talking, he is told you know, this guy is a stupid person. And, so, you are trained from the very beginning to remain silent most of the time . . . You have to be very precise about the occasion and the time and the place. We are trained to do those things . . . So, if he says his answer very precisely, very completely, in few words, people are surprised. If there is a record, and they will listen to this, and they listen to their own question in their mind, they will realize that the answer has been given. But if their perception is that there should be some more, some more, some more to explain what the person is saying, then they will say, here, that this person doesn't know how to communicate. So within half an hour, you can give your message only ten percent, or in half an hour, you [may] only speak for ten minutes and you can give the complete answer. It is the perception of the person who is expecting that makes that answer no answer at all, no communications at all, and there is a difference. All the young people from the Oriental, East India or from Pakistan or from China, most of them are very quiet people.
This passage is seriously flawed grammatically. Nevertheless, if one listens carefully, it makes a very important point and it makes it effectively. It also provides a convincing inference as to why the superior qualifications of Dr. Quereshi were ignored following the final interviews by Messrs. Stille and Tyson. This evidence of cultural differences in communication was not challenged by the respondents.
52While this conclusion is not entirely free from doubt, this Board of Inquiry finds, on a balance of probabilities, that the second interviewers on October 7 failed to give due consideration to Dr. Quereshi's qualifications and that the only available explanation is their failure to take into account cultural differences arising out of Dr. Quereshi's place of origin and ethnic origin. As indicated earlier, this finding of a contravention of the Code is based upon non-intentional discrimination and does not suggest any malice or ill will towards Dr. Quereshi on the part of representatives of the respondents.
53This hearing will be reconvened to hear submissions as to the appropriate order which should be made in light of this determination. Of course, it would be highly desirable if all counsel could meet in advance and reach a consensus as to the terms of such an order in all of the circumstances.