Ontario Board of Inquiry
Dena Potocnik and Ontario Human Rights Commission Complainants
v.
City of Thunder Bay Respondent
Before: Ontario Board of Inquiry, Lorne Slotnick
Decision No.: 96-029-I
Appearances by: Stephen Wojciechowski, Counsel for the Commission Dena Potocnik, on her own behalf Allan McKitrick, Counsel for the Respondent
PROCEDURE — adjudicating case with no reasonable chance of success as abuse of process — EVIDENCE — sufficient evidence to establish prima facie case of discrimination — BURDEN OF PROOF — elements of a prima facie case — INTERPRETATION OF STATUTES — definition of "requirement, qualification or factor" — SYSTEMIC DISCRIMINATION — pattern of conduct discriminatory on the basis of gender — SEX DISCRIMINATION — promotion to municipal administrator denied
Summary: This is a decision on a motion by the City of Thunder Bay to dismiss the complaint of Dena Potocnik for lack of evidence.
Ms. Potocnik alleges that she was discriminated against because of her sex when she was denied the jobs of Treasurer and, subsequently, Deputy Treasurer. Ms. Potocnik also alleges that there is systemic discrimination against women in the hiring and employment practices of the City for financial management positions.
Ms. Potocnik has been employed by the City of Thunder Bay since 1983. She is currently a Management Studies Analyst in the City's municipally operated telephone company. She is a businesswoman and teacher. She has a Bachelor of Business Administration and is a Chartered Accountant. When she applied for the positions of Treasurer and Deputy Treasurer in 1988 she was the Accounting Supervisor — Revenue in the City's Telephone Department.
Considering the test that it should apply when dealing with a motion to dismiss for lack of evidence, the Board of Inquiry finds that if there is enough evidence, which , if believed, would support a finding that the Code was violated, the inquiry should proceed and the motion should be dismissed.
Applying this test, the Board of Inquiry dismisses two parts of Ms. Potocnik's complaint. It dismisses the allegation that there was sex discrimination in the competition for the Treasurer's position in 1988. It finds that despite inviting applications, the City simply appointed Paul Milligan who had been the Deputy Treasurer for more than fifteen years. While Mr. Milligan did not have the education and professional credentials that Ms. Potocnik has, the Board of Inquiry finds that there was no evidence that gender was a factor in Ms. Potocnik's being refused this position.
The Board of Inquiry also dismisses Ms. Potocnik's allegation that there is systemic discrimination against women in the hiring and employment practices of the City for financial management positions. Having considered a mass of evidence, the Board of Inquiry finds no evidence of a pattern and practice of sex discrimination.
The Board of Inquiry finds, however, that there is sufficient evidence to require an answer from the City to the allegation of sex discrimination in hiring for the Deputy Treasurer's position.
The motion to dismiss is granted with respect to the allegation regarding the Treasurer's position, and with respect to the allegation of systemic discrimination.
[Ed. Note: See also related decisions (No. 1) (1995), 1995 CanLII 18171 (ON HRT), 29 C.H.R.R. D/325, (No. 2) (1996), C.H.R.R. NP/96-85 and (No. 4) (1997), 1997 CanLII 24839 (ON HRT), 29 C.H.R.R. D/343.]
Cases Cited
Canadian National Railway Co. v. Canada (Human Rights Comm.) and Action travail des femmes, 1987 CanLII 109 (SCC), [1987] 1 S.C.R. 1114, 8 C.H.R.R. D/4210: 16, 37
Lasani v. Ontario (Ministry of Community and Social Services) (No. 2) (1993), 1993 CanLII 16433 (ON HRT), 21 C.H.R.R. D/415 (Ont. Bd.Inq.): 14
Ontario (Human Rights Comm.) and O'Malley v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, 7 C.H.R.R. D/3102: 10
Potocnik v. Thunder Bay (City) (No. 1)(1995), 1995 CanLII 18171 (ON HRT), 29 C.H.R.R. D/325 (Ont. Bd.Inq.): 5, 57
Potocnik v. Thunder Bay (City) (No. 2) (1996), C.H.R.R. NP/96-85 (Ont. Bd.Inq.): 1
Shakes v. Rex Pak Ltd. (1981), 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001 (Ont. Bd.Inq.): 15
Legislation Cited
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 11: 4, 34, 38
s. 11(1): 36
s. 41(4): 19
Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 23(1): 18
1This is a decision on a motion by the City of Thunder Bay to dismiss the complaint. The motion came at the close of the Ontario Human Rights Commission's case, after twenty-two days of hearings. In a previous interim decision (dated June 5, 1996 [C.H.R.R. NP/96-85]), I ruled that the motion could be heard without forcing the City to elect first whether it would call evidence.
2This motion was heard June 24–26, 1996, in Thunder Bay. The City's argument is that the Commission and the complainant have presented so little evidence to support the complaint that there is no case to answer and the proceeding ought to be terminated. In other words, the City contends that there is no prima facie case. In addition, the City argues that it would be an abuse of process to continue the hearing when there is no reasonable chance of the complaint succeeding.
THE COMPLAINT
3The complaint was filed in October 1988, by Dena Potocnik. Ms. Potocnik has been employed by the City of Thunder Bay since 1983, and is currently a Management Studies Analyst in Thunder Bay's municipally operated telephone company. She has a background as a businesswoman, a teacher, and acquired her designation as a Chartered Accountant in 1983. She also holds a Bachelor of Business Administration.
4Ms. Potocnik applied for the positions of City Treasurer and Deputy Treasurer in 1988, and was denied both positions. In both cases, men were hired. The complaint is that in denying these promotions to Ms. Potocnik, the City violated the Human Rights Code [S.O. 1981, c. 53, now R.S.O. 1990, c. H.19] by discriminating against her because she is a woman. The complaint alleges direct discrimination against Ms. Potocnik, and also alleges constructive discrimination (also known as adverse effect, or systemic, discrimination) contrary to what is now s. 11 of the Code. The systemic argument is that if Ms. Potocnik lacked sufficient experience to qualify for the Treasurer's and Deputy Treasurer's jobs, it was because the City did not offer opportunities for advancement to women in financial managerial jobs, and because the City's hiring practices tend to perpetuate historical "career pathing" of men.
THE HEARING
5After a hearing on preliminary matters in September 1995, I ordered the disclosure of documents related to numerous job competitions conducted by the City (interim decision dated October 27, 1995 [1995 CanLII 18171 (ON HRT), 29 C.H.R.R. D/325]). Exhibits filed by the Commission at the hearing, mainly City documents I ordered disclosed, run to more than 2,000 pages, consisting largely of personnel files, interview notes, résumés and other documents related to more than twenty job competitions. These competitions span the period from 1983 to 1995, some from well before the complaint arose, and some from well after, but all relevant, I have ruled, to the allegation of systemic discrimination.
6In addition to filing this large number of documents, the Commission also called fifteen witnesses, who gave evidence during twenty-two hearing days. They included Paul Milligan, the man who was appointed Treasurer in 1988 and who then chose another man as Deputy Treasurer. Mr. Milligan has been present throughout the hearing as the City's adviser, but was nevertheless called as a witness by the Commission, as were several others who would normally be expected to be City witnesses. As a result, in determining whether a prima facie case has been made out, I have more information before me than would normally be the case. A good deal of that evidence is not favourable to the Commission's case.
DECISION ON THE MOTION
7I believe I have the jurisdiction to dismiss part of the complaint while allowing the hearing to proceed on other parts of the case, on issues where a prima facie case has been established. Neither the Commission nor the City disagreed on this point.
8For the reasons below, I have decided to dismiss the complaint as it relates to direct discrimination for the Treasurer's job. I am also dismissing the systemic complaint with respect to both the Treasurer's and Deputy Treasurer's positions. However, I have found there is sufficient evidence to continue the hearing as it relates to direct discrimination for the Deputy Treasurer's job.
9Given that the hearing will be continuing, albeit on a scaled-down complaint, I feel it is important not to give one party, the City, in this case, the advantage of having my detailed thoughts on the evidence before it presents its case. Therefore, the comments below will be brief and I will give no reasons for my rejection of the motion as it relates to the Deputy Treasurer position.
TEST TO BE APPLIED ON A MOTION TO DISMISS
10The test for determining whether a prima facie case has been made out in a human rights case can be found in the Supreme Court of Canada ruling in O'Malley v. Simpsons-Sears Ltd. (1985), 1985 CanLII 18 (SCC), 7 C.H.R.R. D/3102 at [D/3108] para. 24782:
The complainant in proceedings before human rights tribunals must show a prima facie case of discrimination. A prima facie case in this context is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer.
11Judicial decisions in this area emphasize that the question is not the quality or weight of the evidence, but the quantity. If there is enough evidence, which, if believed, would support a finding that the Human Rights Code was violated, I should dismiss the motion.
12In assessing whether there is enough evidence for the City to have to answer, I have also considered the fact that many cases of discrimination under the Code are decided in favour of the complainant on the basis of circumstantial rather than direct evidence, and that the law is clear that discriminatory attitudes may be only one of many factors in a decision — for example, not to hire or promote — in order to support a finding that the Code has been violated.
13Having said that, I must add that there still must be some evidence that demands a response from the City. It is not enough, in my mind, for the Commission to simply establish that the complainant was qualified, that she was a member of a group that has historically been the target of discrimination, and that she did not get the job. Otherwise, every woman who applied for a job for which she was qualified, but who was unsuccessful, would have a prima facie case of discrimination under the Code. I would assume that in most hiring and promotion competitions, particularly for desirable jobs, there are many qualified applicants, some of whom are likely to be members of groups that have historically faced discrimination. There is no reason to subject every job competition to scrutiny under the Code unless some additional evidence is present that can lead to an inference of discriminatory action in the absence of an explanation from the employer.
14This reasoning applies equally to allegations of direct and systemic discrimination. As the Board of Inquiry said in the case of Lasani v. Ontario (Ministry of Community and Social Services) (No. 2)(1993), 1993 CanLII 16433 (ON HRT), 21 C.H.R.R. D/415 at [D/421] para. 49:
In cases such as the one before me, where the Commission alleges systematic [sic] discrimination, the relationship between the allegedly unfair result and the prohibited ground must still be proven. Commonly, this is done by an admixture of evidence concerning the attitudes of supervisors, incidents which have occurred, etc. and analysis of the statistical pattern in the place of employment. This was the mode of analysis approved by the Supreme Court of Canada in C.N.R. v. Canada (Canadian Human Rights Commission) [(1987), 1987 CanLII 109 (SCC), 8 C.H.R.R. D/4210]. It may be, however, that such a case may be proven by the mere implausibility that a pattern of exclusion could be generated by anything other than discrimination. That would be the case, for example, in a business enterprise which employed no women among its 5,000 staff, even if management were innocent of making any prejudiced comments and purported to hire entirely on the basis of merit, such a ratio of non-representation properly documented and shown to be statistically relevant, would go a long way toward proving the relationship to the prohibited ground.
15The Board in that case went on to quote the case of Shakes v. Rex Pak Ltd.(1981), 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001, setting out the manner in which a case is proved in the employment context [D/1002, para. 8918]:
In an employment complaint, the Commission usually establishes a prima facie case by proving (a) that the complainant was qualified for the particular employment; (b) that the complainant was not hired; and (c) that someone no better qualified, but lacking the distinguishing feature which is the gravamen of the human rights complaint ... subsequently obtained the position. If these elements are proved, there is an evidentiary onus on the respondent to provide an explanation of events equally consistent with the conclusion that discrimination on the basis prohibited by the Code is not the correct explanation for what occurred.
16In simple terms, there must be something that would make a reasonable person say that the employer has some explaining to do. And it must bear some relation to the matters in issue in the case. For example in the C.N.R. case cited above, the evidence indicated serious problems with attitudes toward women in the workplace. However, one objectionable remark unconnected to any hiring decision may not be enough to make a prima facie case of discrimination. This is not a question of weighing the evidence, but simply of making a sensible determination of whether there is enough evidence that a respondent can reasonably be expected to have to answer.
17In assessing whether a prima facie case has been made out, I have looked at the evidence as favourably as possible from the point of view of the Commission and Ms. Potocnik. For example, a major issue in this case is whether Ms. Potocnik was qualified for the disputed positions, but because there is enough evidence which, if believed, would establish her qualifications, I have assumed for the purposes of this motion that she did meet the qualifications. On other issues, however, the Commission presented undisputed evidence that was damaging to its own position, and this evidence must also be included in my assessment of whether there is a prima facie case.
ABUSE OF PROCESS
18The City has also raised an abuse of process argument. Counsel points to s. 23(1) of the Statutory Powers Procedure Act [R.S.O. 1990, c. S.22]:
23(1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.
The City says that to allow a hearing to continue where there is no reasonable chance of success is an abuse of process, and that the section cited above give this Board the power to terminate the proceedings in such a situation.
19The City cites the cost implications of continuing a hearing when there is no reasonable chance of success, and points to the quite restricted circumstances in the Human Rights Code under which costs can be claimed against the Commission (see s. 41(4)) where a complaint is dismissed. In this particular case, the City has estimated that twenty more hearing days will be necessary to fully answer all aspects of the complaint.
20I agree that this Board has the power to cut short a hearing that has no reasonable chance of success. But the question of whether the case has any reasonable chance of success is really, for all practical purposes in this situation, the same as the issue of whether the Commission has put forward a prima facie case. The City appeared to be suggesting that even if there is a prima facie case I should dismiss the complaint anyway because it has no reasonable chance of success, and I disagree with this suggestion. This would entail assessing the weight of the evidence before all evidence has been led, which would not be proper.
THE TREASURER POSITION
21Dena Potocnik applied for the job of Treasurer in May 1988. The position had become vacant because of a retirement. The Treasurer's job is at the highest level of the municipal public service, responsible for the planning, direction and co-ordination of all financial activities of the City. The City of Thunder Bay has an annual budget of over $200 million.
22The Treasurer's job was advertised externally, and thirteen people applied, including two internal applicants, Ms. Potocnik and Paul Milligan. Mr. Milligan was eventually appointed Treasurer. With the exception of Ms. Potocnik and one other woman, all the applicants were men.
23The City customarily prepared descriptions for its jobs, and the one for the Treasurer position runs to five pages with forty-eight major tasks outlined. Qualifications for the job are stated as "a Master's Degree in Business Administration and/or a professional accounting designation; together with 10 years experience in municipal financial management, or an equivalent combination of education, training and experience".
24Despite the external advertising, it appears that no applicants, internal or external, were interviewed. Mr. Milligan, who had been appointed Acting Treasurer when the previous Treasurer retired, was simply confirmed as Treasurer in June 1988 without any job competition.
25At the time she applied for this job, Ms. Potocnik had her accounting designation and was working for the City as the Accounting Supervisor — Revenue in the Telephone Department. During her three years as an articling student from 1980–83, she had worked on the audit of the City of Thunder Bay and other northwestern Ontario municipalities. Starting in 1983, she held a series of short-term jobs with the City as assistant tax supervisor, administrative assistant to the Deputy Treasurer and accounts payable clerk. In late 1984, she began her first permanent position with the City, as an inventory clerk. In 1986, she was promoted to the Accounting Supervisor position she held when she applied for the Treasurer's job two years later. This was the first senior job she had held with the City. In the City's salary groupings of non-union positions in use at the time, the Treasurer was eight steps up from the job Ms. Potocnik held in 1988, with a pay rate about 75 percent higher.
26When he was appointed Treasurer, Mr. Milligan had been Deputy Treasurer for fifteen and one-half years. Part of the Deputy Treasurer's job was to fill in when the Treasurer was absent. Mr. Milligan has neither an accounting designation nor a masters in business administration, and stated quite candidly in his letter of application that "I articled as a student in accounts with a firm of chartered accountants for six years in an effort to obtain the professional designation, Chartered Accountant. I completed all of the educational, practical and examination requirements in order to qualify to write the uniform final examination. Unfortunately, I was unsuccessful in passing these exams."
27The phrase, "or an equivalent combination of education, training and experience", was added to the statement of qualifications in the job description just before applications were solicited. There was much evidence during the hearing about these so-called equivalency statements, their impact, and their presence in some job descriptions and absence in others. I will have some comments on this issue below. However, Ms. Potocnik stated she believes that when the equivalency statement was inserted in the Treasurer's job description in May 1988, it was for the sole purpose of enabling Mr. Milligan to qualify for the job. Without the equivalency statement, Mr. Milligan would be out of the running under the strict terms of the qualification statement, since he had no accounting designation or masters of business administration.
28For the purpose of this motion, I am assuming that the equivalency statement was added in order to enable Mr. Milligan to be hired. There is certainly room in the evidence for an inference that the Treasurer's chair was reserved for Mr. Milligan once the previous Treasurer retired, and that despite the posting and advertising of the position, the City intended to appoint Mr. Milligan all along. There is some evidence, from Christine Bates of the City's human resources department, that City Council opposed advertising the position because Mr. Milligan had already been Deputy Treasurer for so long.
29However, in twenty-two days of evidence, I heard nothing that suggests in any way that gender was a factor in the decision to appoint Mr. Milligan as Treasurer. It is not surprising that when the top person in a department retires, that the second-in-command for fifteen years has the inside track for the promotion, particularly when the only other internal candidate has far less municipal experience.
30The only evidence that could possibly suggest an inference that Ms. Potocnik's sex was a factor in her being refused the job is the large body of evidence related to numerous other job competitions, which, according to the Commission, suggests that women were not given opportunities in lower level positions that would give them the background and experience to qualify for Treasurer. I will deal with this evidence below when discussing the systemic complaint.
31Even assuming Ms. Potocnik was qualified for the job, it is clear on the evidence that Mr. Milligan fit more closely the qualifications the City set out in the job description. In these circumstances, the fact that a man was appointed instead of a woman is not enough in itself to raise a prima facie case of discrimination.
32The City could have called in suitable candidates in [sic] for interviews and conducted a competition, but it did not. Instead, the City's actions certainly allow me to infer that the "competition" was rigged and that Mr. Milligan's appointment was sealed before the job was even posted. But even looking at the evidence in this most favourable light from the complainant's point of view does not give Ms. Potocnik a prima facie case of discrimination in the absence of any evidence that the sex of Mr. Milligan or Ms. Potocnik played any part in the City's actions.
33In summary, I find that the Commission has not presented a prima facie case of direct discrimination based on gender in relation [to] the Treasurer's job. Therefore, I dismiss the complaint as it relates to direct discrimination in the filling of this position.
THE SYSTEMIC COMPLAINT (RE: TREASURER AND DEPUTY TREASURER POSITIONS)
34The complaint of systemic or constructive discrimination under what is now s. 11 of the Human Rights Code can be summarized as follows: in its hiring and promotion practices for financial managerial jobs, the City of Thunder Bay does not offer equal opportunities to women, so that when women apply for senior jobs such as Treasurer and Deputy Treasurer, they do not have the required experience in financial management, and are thus unable to advance to these senior jobs.
35In leading evidence about a large number of job competitions held from 1983 to 1994, the Commission and Ms. Potocnik aimed to show that qualified women candidates were overlooked in hiring and promotion decisions in favour of men who were not as qualified; that some men were "career-pathed", or promoted far faster than would normally be expected; that in some cases, men were appointed to positions when they did not meet the posted qualifications; and that these actions have resulted in almost no women holding financial managerial positions with the City.
36Section 11(1) of the Code reads as follows:
11(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
37The Supreme Court of Canada, in the C.N.R. case, supra, had these comments on the nature of constructive or systemic discrimination [D/4227, para. 33249]:
... systemic discrimination in an employment context is discrimination that results from the simple operation of established procedures of recruitment, hiring and promotion, none of which is necessarily designed to promote discrimination. The discrimination is then reinforced by the very exclusion of the disadvantaged group because the exclusion fosters the belief, both within and outside the group, that the exclusion is the result of "natural" forces ... To combat systemic discrimination, it is essential to create a climate in which both negative practices and negative attitudes can be challenged and discouraged.
In that case, the Supreme Court and the federal human rights Tribunal were ruling on a situation where only 0.7 percent of blue collar jobs were held by women at a time when, the Court said, 13 percent of blue collar workers in Canada were women. Evidence at the Tribunal clearly showed widely held and firmly entrenched discriminatory attitudes within the organization that discouraged women from applying for such jobs and ensured they were not hired if they did apply.
38In the present case, the Commission argued that the key indicator of a discriminatory system is the results produced, and indeed s. 11 talks explicitly of results, using the phrase "results in the exclusion, restriction or preference of a group of persons ..." In assessing whether a prima facie case of discrimination has been made out at this point in the hearing, I have looked closely at the evidence of the results for women of the City's hiring practices. This evidence will be discussed below.
39However, in order for there to be a violation of the Code under s. 11, those results must flow from a "requirement, qualification or factor". In some cases, this is relatively easy to pinpoint. For example, a height requirement for a job may result in restricting opportunities for certain identifiable groups, or an educational qualification may have the same result. In other situations, the results may flow from a "factor" that is far less explicit but nevertheless present. For example, a hiring and promotion philosophy that regards, even unconsciously, members of certain groups as better "team players" or "our kind of person" would violate s. 11. In many cases, the only evidence of such a factor may be the results produced, but for a human rights complaint to succeed in the employment context, the results must still be the product of some "requirement, qualification or factor" for which the employer is responsible. The results cannot be merely the result of external forces. For example, if a group of jobs legitimately required an engineering degree and 95 percent of the students graduating from engineering schools were male, it might be difficult to make out a prima facie case of systemic discrimination against an employer whose hiring for those jobs was 90 percent male.
40Thus, in assessing whether the Commission and Ms. Potocnik have presented enough evidence to make out a prima facie case of discrimination, I have looked at the evidence of results, and also at the evidence that might disclose a requirement, qualification or factor that would produce those results.
Results of the City's Hiring Practices
41With respect to the question of the results of the City's hiring practices as they affect women in what Ms. Potocnik called financial managerial positions, there are three main pieces of evidence: a listing of the City's non-union staff; an employment equity report produced by the Treasurer in 1986; and Ms. Potocnik's own evidence about hiring and promotion in financial managerial positions. There was no evidence presented on the hiring of women into financial managerial positions, or any other types of jobs, by other municipalities. Nor was there any evidence about participation of women in the work force in Thunder Bay.
42The City of Thunder Bay has approximately 2,000 full-time and 800 part-time employees. A listing of current (March 1996) non-union staff was produced by a witness called by the Commission, Christine Bates, who is currently the City's Manager of Compensation and Benefits. The status of women among this group is relevant since Ms. Potocnik's systemic complaint revolves around hiring practices that exclude women from senior jobs. The non-union jobs are divided into several salary groups. Excluding the least senior groups (which consist mainly of secretaries, presumably excluded from union status based on confidentiality rather than managerial status) there are 244 managerial positions in the City, of which ninety-four or 38.5 percent are held by women.
43In the most senior and highest paid group (including positions such as Treasurer, now known as General Manager, Finance), two out of seven positions (28.6 percent) are held by women. In the next highest group (which includes the Deputy Treasurer, now known as Manager, Accounting), seven of thirty-two positions (21.9 percent) are held by women. The next group has thirteen of thirty-two (40.6 percent) of positions held by women; the following group, eighteen of fifty-one (35.3 percent). In the two least senior managerial groups, twenty-six of seventy (37.1 percent) and twenty-eight of fifty-two (53.8 percent) of positions are held by women.
44These figures are not divided into the category central to Ms. Potocnik's complaint, financial managerial jobs. In fact, as discussed below, this is a category that she has defined herself.
45The 1985–86 Employment Equity Progress Report was prepared by Ms. Bates when she was first employed by the City as an employment equity officer. It discusses all employment with the City, not just managerial or financial positions. The report found that while the City's work force was about equally divided between men and women, women tended to be concentrated in part-time jobs, and in traditional fields such as secretarial, clerical and social service jobs, while men also worked in such traditional fields as the skilled trades. The report identifies some problems such as gender-specific job titles, and makes some mild recommendations on how to ensure that there are no barriers to women in applying for and being hired into a wider range of jobs. It also says that "equivalency statements", such as the one added to the job description for the Treasurer job prior to the 1988 hiring, should be used more often, except in jobs where the specified educational requirement is truly part of the qualifications and cannot be met through equivalent experience.
46The report outlines the male-female breakdown in non-union positions as of December 1986. (Unlike the list referred to above, this tally would include secretaries lumped into the same group as managers.) In the non-union group, there were 162 males and 123 (43.2 percent) females. Among full-time employees in this group, the tally was 157–98, or 38.4 percent female. The report also breaks down male-female employment by occupational category (e.g. professional, managerial, supervisory, etc.) but it is impossible to match this categorization with Ms. Potocnik's category of financial managerial jobs. For example, Ms. Bates said she did not know whether many jobs in Ms. Potocnik's category would have been classed as professional or managerial.
47Ms. Bates gave a substantial amount of evidence about the report, but I did not find the report useful in any meaningful way in determining whether a prima facie case of systemic discrimination had been established. Even looking at the report in a light favourable to the complainant, it does not identify any systemic flaws in the City's hiring and promotion practices that can be linked in any definite way to the job competitions for Treasurer and Deputy Treasurer.
48Finally, with respect to evidence of results, Ms. Potocnik relies on her contention that women are clearly not considered for financial managerial positions. At the start of her testimony, she stated that there are currently nineteen financial managerial positions with the City, and that she is the only woman in that group. She also said she had counted fifty-three job openings since 1983 in financial managerial positions, of which seven had been filled by women, herself and two other women. She later produced a flow chart listing fifty-seven openings since 1983, of which seven (12.3 percent) were filled by women.
49As mentioned above, Ms. Potocnik's category of financial managerial jobs is not one used by the City. The category itself was challenged by counsel for the City, who argued correctly, I believe, that categories can be created or gerrymandered to suit the purpose of the person trying to make the case. It is clear to me that Ms. Potocnik defined the borders of the financial managerial category in a manner that minimized the number of jobs held by women. Otherwise, she would not have left out positions such as General Manager, Telephone and Information Systems, the top position in the telephone department, which the evidence indicates requires financial managerial skills and which is held by a woman. Nor would she have included such jobs as Budget and Offices Services Co-ordinator, which has no accounting functions, but which was given to a man. In addition, Ms. Potocnik conceded that she did not check the job descriptions and qualifications for a large number of senior jobs to see whether they required accounting skills.
50In fact, on cross-examination of Ms. Potocnik, the boundaries of this job category shifted numerous times, to the point that, based on her own evidence, there is really no way I can view her statistics as valid. The most favourable conclusion I can put on this evidence is that men appear to be in a majority, possibly a substantial majority, in positions which require an accounting designation (Chartered Accountant, Certified General Accountant, or Certified Management Accountant) or equivalent experience.
51Looking at the evidence of hiring results in their most favourable light from the point of view of the complaint, it appears to me that there are few enough women in certain jobs that questions can be raised as to whether there is constructive discrimination. We must look, then, at whether the evidence discloses any requirement, qualification or factor that may be causing these results.
"Requirement, Qualification or Factor"
52Since there is no evidence of any "requirement" or "qualification" imposed on jobs such as Treasurer or Deputy Treasurer that resulted in preference for male candidates, the discussion below will focus on whether there is a "factor" that results in discrimination against women.
53There was much evidence during the hearing on the so-called equivalency clause — the clause in the job qualifications that allowed applicants with an "equivalent combination of education, training and experience" to apply for jobs for which they would otherwise not meet the strict educational requirements. Ms. Potocnik stated flatly at one point that this clause discriminates against women.
54Ms. Potocnik's view of the equivalency clause is patently wrong. The employment equity report, referred to above, urged greater use of the equivalency clause where possible, in order to open up jobs to a wider range of applicants, including women and minority groups. Clearly, that is exactly what the clause has done. There was evidence that many women were hired or promoted into jobs for which they would not have qualified on the strict application of the educational requirements without the equivalency clause. There was also evidence indicating that in at least some job competitions there was a higher than average percentage of women applicants where the equivalency clause was included. In addition, there was some evidence that there are more male than female accountants than women, so that any job requiring an accounting designation would be opened up to more women if it added an equivalency clause. In some individual situations, an equivalency clause could benefit a man — Mr. Milligan in the Treasurer job is a good example — but overall, the City's policy of inserting the equivalency clause into as many jobs as possible is a policy that clearly benefits groups that have historically suffered discrimination. It is worth noting that Ms. Potocnik conceded that she, like Mr. Milligan, needed the equivalency clause to qualify for the Treasurer job, since she did not have ten years of experience in municipal financial management in 1988.
55Despite Ms. Potocnik's contention, there is no evidence that the equivalency clause constitutes a requirement, qualification or factor that has the effect of discriminating against women.
56This brings me to the large body of evidence surrounding numerous job competitions and whether that evidence discloses any "factors" from which I could infer a prima facie case of systemic discrimination.
57Most of this evidence was in the form of hundreds of documents dated from 1983 to 1994 which I ordered disclosed last October. In my interim decision dated October 27, 1995, supra, I ruled, over the objections of the City, that evidence from job competitions both before and after the impugned hiring decisions in 1988 was relevant to a complaint of systemic discrimination. In ordering this disclosure, I gave the Commission everything it requested to enable it to make its case on systemic discrimination. The Commission, for reasons unknown to me, did not investigate earlier the allegations of systemic discrimination as it is empowered to do, for example, through its search powers. The investigation occurred only after this Board was appointed and the documents disclosed. Now, with those documents before the hearing, I do not believe a reasonable person would look at the evidence as a whole and say that the systemic portion of the complaint should continue. There is simply not enough of a pattern or factor affecting hiring of women to constitute a prima facie case of discrimination.
58I have reached this conclusion for the following reasons:
591. Ms. Potocnik argues that there were many instances where men were appointed to positions when they did not meet the qualifications set out in the job posting. The truth of this is apparent from looking at the results of some job competitions. The appointments of Tim Commisso to the position of Manager of Budgets and Planning in 1985 and the appointment of Doug Strahan to the position of Accounting Supervisor — Financial in the telecommunications department in 1984 are but two examples where it certainly can be inferred that men were appointed to positions for which they were strictly speaking not qualified. The rapid rise of Robert Colquhoun is also notable and can be questioned. But the evidence is that women as well as men benefited from this occasionally loose application of the stated qualifications for jobs. There is nothing wrong with the City bending its own rules in order to offer jobs or promotions to some individuals, as long as this practice does not violate the Code by discriminating against a certain groups [sic] either directly or by creating more hidden barriers. The evidence is that women were advanced at least as often as men when the City took a loose approach to the qualifications. Ms. Potocnik herself was the beneficiary of this practice in 1986, when she was appointed to the position of Accounting Supervisor — Revenue, a position which demanded an accounting designation and three years experience "in a senior accounting position"; at the time, Ms. Potocnik could rely only on her service as a student in an accounting firm and less than a year as assistant tax supervisor. Ms. Potocnik conceded that at least two women in senior positions, Sharon Hacio, the head of the telephone division, and Catherine Peterson, the Manager of Revenue, would not be in the positions they are had the qualifications for those jobs been applied strictly. I might add that there was also evidence that in some cases where the qualifications were applied loosely, there was a definite reason, for example, that emphasis on a certain skill within a job was required at a certain point, and a candidate who would not qualify otherwise was particularly strong in the needed area. For example, the choice of Mr. Strahan mentioned above was explained by more than one witness as a result of his experience and understanding of computer systems, which was a priority in the job at the time. In summary, there is no pattern in the loose application of the posted qualifications that would lead me to regard this as a factor resulting in systemic discrimination.
602. Hiring and promotion decisions were made by a variety of people, including women. This in itself does not prove anything, but is one ingredient in assessing whether a prima facie case has been established. If one of the typical characteristics of a systemically discriminatory hiring system is that it is operated by a self-perpetuating group, that characteristic was not present here. On the evidence presented by the Commission, women such as Barbara Mason and Christine Bates from the City's human resources department, two women who unquestionably believed in advancing the status of women at the City, had a substantial influence over writing job descriptions, in creating short lists of applicants and in hiring and promotion decisions. Ms. Bates, for example, testified that she helped Ms. Potocnik with her résumé and coached her on interview questions, and then later was part of an interview panel for a job where Ms. Potocnik was an applicant. Many of the hiring decisions most strongly questioned by Ms. Potocnik appear to have been made by either John Dunn or John O'Brien, and while these decisions may be impugned on an individual basis, the actions of two men, who, in the larger picture had only a minor role in hiring policy, do not provide the foundation for a complaint of systemic discrimination.
613. The evidence shows that the City's hiring process was quite sophisticated and, on its face, gender-neutral. This is not to say that hiring decisions are never subject to the whims and prejudice of those making the decisions. But, as a system, the City's hiring process does not disclose any problems on its face. Each position had a detailed job description with a listing of qualifications. Applicants were screened by the human resources department, and interviewers used a form to evaluate the candidates, which included allocations of points on such criteria as experience, education, desire for the job, tact in dealing with the public, etc. It appears that job interviews were generally conducted by at least two people, each of which did his or her own scoring. Interviewers also had a detailed form for checking references for new hires. The City had an elaborate policy manual that included, among other things, instructions to interviewers on being sensitive to human rights concerns in questioning. Again, none of this proves that any individual hiring or promotion decision was not tainted by discriminatory considerations; nor does it answer the question of whether the City followed its own policies in all cases. But it is relevant to the question of whether a prima facie case of systemic discrimination has been established. The City also had an employment equity policy which stated that where the two final candidates for hiring or promotion are equal, the individual from a "target group" (for example, women), should be selected. The only hiring decision where there was any evidence that this policy played a role in decision-making was in the Deputy Treasurer competition, so I have no comments regarding employment equity at this point.
624. Many of the hiring and promotion decisions cited by Ms. Potocnik as evidence of preference given to men involve the awarding of jobs to men who do not have accounting designations even though some women applicants, including herself, have accounting designations. Looking at the evidence as a whole, it appears that credentials such as an accounting designation were only one of many factors in the City's assessment of job applicants, despite Ms. Potocnik's heavy emphasis on education. Furthermore, it appears in many cases that the City was more interested in actual experience than in education. This would tend to create a disadvantage for Ms. Potocnik, who has a high level of educational credentials and generally a lower level of experience than many others who aspired to senior positions. If there is any "factor" that is common to many of the hiring decisions in which Ms. Potocnik was unsuccessful, it is this. But the City is entitled to emphasize experience over education if it wishes, as long as this does not create barriers for certain groups. Does this emphasis on actual experience over education effectively discriminate against women? Logically, it might, given the assumption that, on average, women have spent less time in the work force than men. But the small amount of evidence on this point is mixed. Obviously long years of experience helped Mr. Milligan become Treasurer, but experience has also helped women such as Sharon Hacio, Catherine Peterson, Susan Lehtonen and Wendy Huber, all of whom are in traditionally male-oriented management positions after long years of service and without impressive educational credentials. In at least one case, a woman with no post-secondary degrees won a senior job (Manager Revenue) against a male Chartered Accountant. On the evidence, there is no way to find that the City's practice in this area put any particular group at a disadvantage. Related to this issue is Ms. Potocnik's contention that Mr. Milligan was not qualified for the Treasurer job, even with the equivalency clause present, since, as she put it, there is no equivalent to an accounting designation. However, the City is entitled to decide it will accept equivalency to any type of educational credentials, again, so long as it does not result in discriminatory practices.
635. Direct evidence of sexist attitudes was very limited. Barbara Mason, who worked in the City's human resources department from 1978 to 1991, first as a recruitment officer and then as employment services co-ordinator, testified about some of the difficulties she experienced as a woman, including feeling excluded from informal morning meetings of the men in the department; allocation of smaller and less private office space to her and Ms. Bates while the men in her department received better offices; and difficulties being taken seriously by some of the politicians. However, when asked about the attitudes surrounding hiring and promotions at the City and whether gender was an issue, Ms. Mason, who was intimately involved in hiring decisions, said gender was not a consideration and that "the general atmosphere was to hire the best person for the job wherever possible" Taking her evidence as a whole, it is insufficient to establish a prima facie case of systemic discrimination. Ms. Potocnik cited a couple of what she herself called minor incidents of remarks that certainly suggest sexist attitudes by managers, but these are not enough to support a systemic complaint, particularly when the managers concerned were not involved in most of the hiring decisions being questioned. There was no other evidence of discriminatory attitudes, even though the evidence covered twelve years.
646. Ms. Potocnik's history of job applications with the City raises some questions. In some of the competitions cited below, there is no evidence of how many applicants there were, and who was given an interview. In any event, it is clear that in any competition, many men and many women applicants were not interviewed. Following are some brief comments about jobs for which Ms. Potocnik applied:
(a) In 1983, she applied as an external candidate for the job of Accounting and Administrative Co-ordinator, she was not interviewed but concedes that the man who was appointed, John Dunn, was more qualified than she was. Mr. Dunn still holds virtually the same job now, having lost out to Ms. Hacio in his only application for a promotion.
(b) Also in 1983, Ms. Potocnik applied for the position of Office and Budget Co-ordinator, Homes for the Aged, but was not interviewed; she concedes that the man who got the job, Veli Kraft, was more qualified than she was.
(c) The same year she also applied for the Tax Collector position and was not interviewed; she concedes that the man who got the job, Sam Federico, was more qualified than she was.
(d) Also in 1983, she applied for a position of Accounting Supervisor in the Telecommunications department; she was not interviewed, and a man, Peter Kelos, was given the job by Mr. Dunn. Ms. Potocnik, who was still an external candidate at the time, questions whether Mr. Kelos, who was also external but who had previously been with the City, had the qualifications. However, the evidence of Mr. Dunn and Mr. Kelos, who is no longer with the City, indicated that he was hired on the strength of his experience in the computer field.
(e) Ms. Potocnik then applied for a job as Tax Supervisor, and was not interviewed; a man was hired, but only after the City first offered the job to a woman who turned it down. However, she was called in to work as an Assistant Tax Supervisor temporarily, her first job with the City.
(f) When unemployed again in 1984, she applied for the position of Manager — Budgets and Planning; she was not interviewed, and Mr. Kelos was promoted, this time by Don MacLeod, the City's Chief Administrative Officer. There were forty-three applications for this position, and the seven from internal candidates were all from men. Ms. Potocnik has raised questions about Mr. Kelos's qualifications that, if believed, make the hiring questionable in the absence of an explanation from the City.
(g) Ms. Potocnik was subsequently called in for the temporary jobs of administrative assistant to the deputy treasurer and accounts payable clerk before being appointed to her first permanent job, as Inventory Clerk, in October 1984.
(h) In 1984 she applied for Accounting Supervisor — Financial as an internal candidate. She was interviewed, but the job went to Mr. Strahan, as mentioned above.
(i) The same year, she applied for the Financial Analyst position. She was not given an interview, which she strongly questions. The job was given by Mr. O'Brien to Tom Mustapic, an external candidate. On the evidence presented so far, this competition raises some questions.
(j) Also in 1984, she applied unsuccessfully for two clerical positions, both of which were given to women.
(k) In 1985, she unsuccessfully applied for the job of Corporate Development Officer, for which she was not interviewed. There were thirty-nine applicants, of which twelve were internal, including two women. Mr. Mustapic was given a promotion. Ms. Potocnik does not question his qualifications, but does question why she was not interviewed.
(l) Also in 1985, she applied again for Manager of Budgets and Planning, and she was interviewed. There were seventy-two applicants, about a dozen of whom were women. Tim Commisso, one of four internal applicants, was given the job. Ms. Potocnik has raised questions about his hiring that have not yet been explained by the City.
(m) In 1986, Ms. Potocnik successfully applied for the position of Accounting Supervisor — Revenue (Utilities Department), the job she led (although the title changed) until 1994.
(n) In 1988 she applied unsuccessfully for Treasurer and Deputy Treasurer, the subject of this complaint.
(o) When Bill Young was appointed Deputy Treasurer in 1988, there was a competition for his old job of Capital and Revenue Control Supervisor. This was held before Ms. Potocnik filed the human rights complaint. She did not apply for this job, testifying that she preferred her job at the time to this one. A woman, Petra Kapush, won the competition. Included in the list of applicants was Mr. Mustapic.
(p) Later in 1988, after filing the complaint, Ms. Potocnik applied again for Manager of Budgets and Planning. She was interviewed, but was unsuccessful. A woman, Susan Soldan, was appointed.
(q) Ms. Potocnik's next application was in 1994, when she successfully applied for the position of Management Studies Analyst. Among the applicants were Mr. [Strahan] and Gary Donadel — whose original hiring in 1985 was questioned by Ms. Potocnik. In 1994, when they applied for this position, these three candidates were in parallel jobs.
65There was substantial evidence on each of these job competitions and the successful applicants. In many cases, as noted above, there is certainly evidence that the men chosen have no greater qualifications than Ms. Potocnik, and in some cases, lower qualifications. But I find it difficult to view the pre-1986 unsuccessful applications as laying the basis for a systemic complaint when they were followed with the appointment in February 1986, of Ms. Potocnik to the position of Accounting Supervisor — Revenue, a management position less than a year and a half after she began her first permanent job with the City. As noted above, Ms. Potocnik did not meet the strict qualifications for this job. Despite some questions about individual hiring that might call for answers, there is not enough in Ms. Potocnik's application history to say there is a prima facie case of systemic discrimination.
667. Ms. Potocnik's assertions that men were given breaks and "career-pathed" does not stand up to scrutiny. Looking at the evidence as a whole, there is substantial indication that many women were given the same breaks. Furthermore, many of the men who Ms. Potocnik portrays as favourites have had, on the face of the evidence, quite unenviable career paths.
67For example, Doug Strahan, who was hired for the position of Accounting Supervisor — Financial in 1984 with arguably lower qualifications than Ms. Potocnik. But he has not been promoted since then, despite having applied for four jobs. In three of the four cases, the jobs he applied for were given to women, including Ms. Potocnik's 1994 appointment to Management Studies Analyst.
68There are other examples: Kevin Burns, who was appointed to the position of Accounting Supervisor — Rates and Tariffs in 1984 (a job Ms. Potocnik said she would have applied for had she known it was open) received his first promotion nearly twelve years later, in March 1996. Tom Mustapic, hired in 1984 as Financial Analyst in one of the hiring decisions that raises perhaps the most questions, lost out to a woman in 1988 when he applied for the job of Capital and Revenue Control Supervisor. Gary Donadel, appointed Accounting Supervisor — Continuing Property Records in 1985, later lost out to Ms. Potocnik when he applied in 1994 for the Management Studies Analyst job. Still others have been demoted over the past few years. In contrast, some men have risen in the Civic hierarchy quite quickly. But the evidence indicates that there are women who have done so also.
69In summary, when I examine the masses of documents and my notes of twenty-two hearing days, there really is no pattern that can be reasonably inferred. Counsel for the Commission said an examination of the evidence reveals that "something is going on here", by which he meant that there is a pattern of women being overlooked and men getting better opportunities. I cannot agree that this interpretation can be reasonably put on this evidence taken as a whole. If something is going on, it seems to be a normal hiring process, with its mysterious combination of guesswork, office politics, lucky breaks for some people, unlucky breaks for others, gut instincts, good judgment and poor judgment. Add to that the possible biases and prejudices of some of the decision-makers, which may in fact taint some of the individual hiring or promotion decisions but which do not present in these circumstances a prima facie case of constructive or systemic discrimination as outlined in the Code.
70There is simply not enough sufficient evidence of systemic discrimination to demand a reply from the City, and I therefore dismiss this portion of the complaint.
DEPUTY TREASURER POSITION
71I find that a prima facie case of discrimination has been made out with respect to the City's denial of the Deputy Treasurer's job to Ms. Potocnik. Given that the hearing will continue on this issue, I will not give reasons at this time for my dismissal of this portion of the City's motion.
CONCLUSION
72The motion to dismiss is granted with respect to the complaint of direct discrimination for the Treasurer job and the systemic complaint. The hearing will continue as scheduled, but only with respect to the issue of direct discrimination in the awarding of the Deputy Treasurer position.