Abouchar v. Toronto (Metro) School Board (No. 5), 1999 CanLII 35168

Abouchar v. Toronto (Metro) School Board (No. 5)

1999-05-11

Ontario Board of Inquiry

Alfred Abouchar Complainant

and

Ontario Human Rights Commission Commission

v.

Metropolitan Toronto School Board (now Toronto District School Board No. 12) and Conseil des écoles françaises de la communauté urbaine de Toronto (Conseil scolaire public du district centre-sud-ouest no 58) Respondents

Date of Complaint: July 6, 1989 Date of Decision: May 11, 1999 Before: Ontario Board of Inquiry, Katherine Laird Decision No.: 99-004-C

Appearances by: M. Catherine Osborne, Counsel for the Commission Maurice Green, Counsel for the Complainant Brian A. Kelsey and Eric Gillespie, Counsel for the Respondent Metropolitan Toronto School Board John W. May, Counsel for the Respondent Conseil des écoles françaises de la communauté urbaine de Toronto

COSTS — award of costs to respondent where complaint dismissed — complaint is trivial, frivolous, vexatious or made in bad faith — undue hardship experienced by respondent — INTERPRETATION OF STATUTES — definition of "complaint" — JURISDICTION — jurisdiction to award costs

Summary: This is a decision on an application by the Conseil des écoles françaises de la communauté urbaine de Toronto (CÉFCUT) for an order of costs against the Ontario Human Rights Commission in the matter of a complaint filed against it by Alfred Abouchar.

The Board of Inquiry ruled that Alfred Abouchar was not discriminated against by CÉFCUT on the basis of race, ethnic origin or association with the multicultural francophone community. An allegation of reprisal for filing a human rights complaint was also dismissed. However, the Board of Inquiry ruled that CÉFCUT did discriminate against Mr. Abouchar on the basis of place of origin when he was not afforded fair and equal treatment in a job competition in 1988.

Section 41(4) of the Ontario Human Rights Code provides that where a complaint is dismissed and the board of inquiry finds that the complaint was trivial, frivolous, vexatious or made in bad faith, or undue hardship was caused to the person complained against, the board of inquiry may order the Commission to pay costs to the respondent.

The Board of Inquiry finds that the fact that some allegations were dismissed satisfies the pre-condition in s. 41(4) for considering whether an award of costs is appropriate.

The Board finds that none of the dismissed grounds of discrimination could be considered trivial or frivolous. It was appropriate and prudent for the Commission to plead each of the allegations separately, including reprisal. With respect to bad faith, the Board of Inquiry finds that there was nothing in the evidence to suggest that the complaint was based on anything other than Mr. Abouchar's honest belief that he had been a victim of acts of discrimination.

Finally, the Board of Inquiry concludes that the Commission did not cause undue hardship to the respondent CÉFCUT by arguing that there was constructive discrimination, even though this allegation was dismissed, or by failing to obtain expert evidence about the relative qualifications of Mr. Abouchar and the successful candidate in the impugned job competition. An assessment of the relative merits of the two qualified candidates could not answer the question the Board was required to address, namely, was there discrimination in the competition.

The application for costs is dismissed.

[Ed. Note: See also (No. 1) (1995), C.H.R.R. NP/96-106, (No. 2) (1996), C.H.R.R. NP/96-50, (No. 3) (1998), 1998 CanLII 29892 (ON HRT), 31 C.H.R.R. D/411 and (No. 4) (1999), 1999 CanLII 35161 (ON HRT), 35 C.H.R.R. D/175 (Ont. Bd.Inq.).]

CASES CITED

Abouchar v. Toronto (Metro) School Board (No. 3)(1998), 1998 CanLII 29892 (ON HRT), 31 C.H.R.R. D/411 (Ont. Bd.Inq.): 5, 21, 32

Abouchar v. Toronto (Metro) School Board (No. 4)(1999), 1999 CanLII 35161 (ON HRT), 35 C.H.R.R. D/175 (Ont. Bd.Inq.): 6, 23, 34

Barber v. Sears Canada Inc. (No. 4) (1995), 1995 CanLII 18163 (ON HRT), 24 C.H.R.R. D/85 (Ont. Bd.Inq.): 13

Elkas v. Blush Stop Inc. (No. 2) (September 6, 1994), (Ont. Bd.Inq.) [unreported]: 13, 15

Ford Motor Co. of Canada v. Ontario (Human Rights Comm.) (No. 6) (1997), 1997 CanLII 24811 (ON HRT), 28 C.H.R.R. D/275 (Ont. Bd.Inq.): 13, 15

Ontario (Human Rights Comm.) v. Fort Frances (Town) Commissioners of Police (No. 1) (1987), 1987 CanLII 8553 (ON HRT), 8 C.H.R.R. D/3884 (Ont. Bd.Inq.): 13, 15

Toronto (City) Board of Education v. Quereshi (1991), 1991 CanLII 13130 (ON CTGDDC), 42 O.A.C. 258, 14 C.H.R.R. D/243 (Div.Ct.): 25

Toronto (City) Board of Education v. Quereshi (1997), 1997 CanLII 14492 (ON CA), 29 C.H.R.R. D/5 (Ont. C.A.): 25

LEGISLATION CITED

Ontario

Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31: 9

Human Rights Code, R.S.O. 1990, c. H.19

s. 36(1): 17

s. 39(1): 17

s. 41(4): 7, 11, 16, 19, 21

s. 41(4)(b): 26

INTRODUCTION

1This is the fourth and final decision to be released by the Board of Inquiry ("Board") in respect of the human rights complaint filed by Alfred Abouchar in 1989 against Le Conseil des écoles françaises de la communauté urbaine de Toronto ("CÉFCUT"). This decision deals with the application by CÉFCUT for an order of costs against the Ontario Human Rights Commission ("Commission").

2The application of CÉFCUT relies in part on the impact of certain interim rulings of the Board. Accordingly, a brief history of the progress of this complaint before the Board is in order.

3Alfred Abouchar filed his human rights complaint against CÉFCUT on July 6, 1989, alleging discrimination in employment on the basis of race, place of origin and ethnic origin. In April 1994, the Commission referred the complaint to the Board of Inquiry for a hearing, and on May 10, 1994, Michel Picher was appointed by the Minster of Citizenship to hear and decide the complaint, together with a complaint against the Metropolitan Toronto School Board ("Metro Board"). Mr. Picher made several interim rulings in respect of both complaints, including an order on February 8, 1995, amending the complaints to add the allegation that Mr. Abouchar was denied employment because of a previous human rights complaint and because of his association with what was referred to as the "Francophone Multicultural Community". The ordered amendments also added an allegation of constructive discrimination to both complaints. The amendments were made on the motion of the Commission.

4Mr. Picher resigned as the panel hearing this complaint and I was appointed as adjudicator on August 28, 1995. The jurisdiction of the Chair of the Board to re-assign the hearing was unsuccessfully challenged in a judicial review application brought by CÉFCUT and the Metro Board. Following the judicial review, the hearing on the merits commenced in April 1996. At the close of the Commission's case on November 14, 1996, I granted, in part, a motion by CÉFCUT and the Metro Board for early dismissal. I ruled that the Commission had not "put forward evidence to support a prima facie case of constructive discrimination requiring an answer by the respondents" and dismissed the allegation of constructive discrimination that had been added by the February 8, 1995, ruling.

5The decision on the merits of both complaints was released on March 27, 1998 [reported 1998 CanLII 29892 (ON HRT), 31 C.H.R.R. D/411]. The decision summarized the determinations in respect of the complaint against CÉFCUT as follows [D/432, paras. 126–27]:

The complaint against CÉFCUT is dismissed in respect of the allegations of discrimination on the basis of race, ethnic origin and/or association with the multicultural francophone community. The allegation of reprisal is also dismissed.

The complaint against CÉFCUT is upheld in part in respect of the allegation of discrimination on the basis of place of origin. Mr. Abouchar was not afforded fair and equal treatment during the 1988 job competition held by CÉFCUT. The fact that Mr. Abouchar was not a person of Franco-Ontarian heritage was one factor which affected the treatment afforded to him during the competition. However, the selection decision itself was not influenced or tainted by considerations which infringed Mr. Abouchar's rights under the Human Rights Code. The decision to award the assistant superintendent position to another candidate was based solely on an honest and supportable assessment that the successful candidate was more qualified and better able to perform the requirements of the job. [Emphasis in original.]

6On April 23, 1999 [reported 1999 CanLII 35161 (ON HRT), 35 C.H.R.R. D/175], the Board of Inquiry released my decision on remedy which included an order that the Conseil scolaire public du district centre-sud-ouest ("Conseil"), as the successor school board to CÉFCUT, pay Mr. Abouchar general damages for the infringement of his human rights and an award to compensate him for mental anguish suffered as a result of the infringement. I also ordered public interest remedies including an acknowledgement by the Conseil of the infringement of Mr. Abouchar's rights in the CÉFCUT competition.

AUTHORITY OF THE BOARD OF INQUIRY TO ORDER COSTS

7Section 41(4) of the Human Rights Code [R.S.O. 1990, c. H.19] ("Code") gives the Board of Inquiry the authority to order costs in limited circumstances, as follows:

41(4) Where, upon dismissing a complaint, the board of inquiry finds that,

(a) the complaint was trivial, frivolous, vexatious or made in bad faith; or

(b) in the particular circumstances undue hardship was caused to the person complained against,

the board of inquiry may order the Commission to pay to the person complained against such costs as are fixed by the board.

8This provision gives the Board discretion to order costs if, in dismissing a complaint, it finds that the complaint fits within the criteria set out in paras. (a) or (b). In other words, prior to making a decision on whether or not to exercise my discretion to order costs, I must be satisfied that I have dismissed a complaint and that the complaint was trivial, frivolous, vexatious or made in bad faith or that undue hardship was caused to CÉFCUT.

BASIS OF THE COSTS APPLICATION

9CÉFCUT's evidence was that their legal costs amounted to almost $1 million. This sum included the legal fees for representing CÉFCUT in respect of applications made by Mr. Abouchar pursuant to the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, c. F.31, for documents related to the disputed job competitions. Also included was CÉFCUT's portion of certain costs which were shared with the Metro Board, including transcripts, expert advice, and the fees for separate representation for one of the respondents' witnesses, Mr. Lalonde. The school boards agreed to share the cost of separate legal representation for Mr. Lalonde after Mr. Picher ruled that he would not be added as a party but could be added subsequently in appropriate circumstances.

10Alice DuCharme, Secretary-Treasurer of the Conseil, gave evidence on the impact of CÉFCUT's legal costs on the facilities, services and staff of CÉFCUT, and now the Conseil, in its Toronto-area schools. She placed this evidence in the context of government funding reductions and the re-structuring of educational governance and educational funding in this province. She testified that, during the period from 1994 to 1997, CÉFCUT experienced a 30 percent increase in student enrollment and a 10 percent decrease in funding. She estimated that CÉFCUT lost $1.5 million in funding during the period when it was also incurring legal expenses in relation to Mr. Abouchar's human rights complaint. Although it is of course difficult to isolate the precise impact of CÉFCUT's legal costs in the context of reduced funding, I am satisfied that the legal expenses incurred by CÉFCUT in this case contributed to a significant reduction in staff and to other spending constraints.

11In arguing that an award of costs is appropriate, CÉFCUT relied on the fact that the complaint was dismissed in respect of the allegations of discrimination on the basis of race, ethnic origin, association and reprisal. In particular, counsel relied on the dismissal of all the allegations added by amendment of the original complaint (pursuant to the February 8, 1995, ruling), including the early dismissal of the constructive discrimination allegation (pursuant to the November 14, 1996, ruling) and the final dismissal of the allegations of discrimination by association and reprisal. Counsel for CÉFCUT submitted that the dismissal of the amended grounds, and the dismissal of two of the three original grounds of discrimination, was sufficient to trigger the Board's jurisdiction to order costs if the other pre-conditions in s. 41(4) were met.

12CÉFCUT relied on all of the criteria for an order under s. 41(4). Counsel for CÉFCUT argued that the complaint was trivial, frivolous, vexatious and/or made in bad faith, and caused undue hardship to the school board. In particular, counsel argued that the Commission had caused CÉFCUT undue hardship by its failure to obtain, prior to the hearing, an expert opinion on Mr. Abouchar's relative qualifications for the position of Assistant Superintendent. Counsel relied on my finding that the selection committee had based its decision not to offer the position to Mr. Abouchar in large part on the greater management experience of the successful candidate.

THE MEANING OF "DISMISSING A COMPLAINT" IN SECTION 41(4)

13Relying on the decision in Naraine v. Ford Motor Co. of Canada (No. 6)(1997), 1997 CanLII 24811 (ON HRT), 28 C.H.R.R. D/275, the Commission brought a motion for an order that the Board had no jurisdiction to consider costs in a case such as this where the complaint has not been dismissed in its entirety. In response, CÉFCUT submitted that partial dismissal of a complaint has been held to be a sufficient basis for an award of costs in some circumstances: Barber v. Sears Canada Inc. (No. 4)(1995), 1995 CanLII 18163 (ON HRT), 24 C.H.R.R. D/85; Pattison v. Fort Frances (Town) Commissioners of Police (No. 1) (1987), 1987 CanLII 8553 (ON HRT), 8 C.H.R.R. D/3884; Elkas v. Blush Stop Inc. (No. 2) (unreported, September 6, 1994).

14In Barber, an award of costs was ordered although the complaint was upheld in respect of the factual circumstances at the time of filing, but dismissed in respect of the circumstances at the time of the referral to the Board for a hearing. The decision does not inform us as to whether or not the original complaint was amended before referral. The allegation at both points of time was that the complainant had been subjected to discrimination on the basis of handicap.

15In both Pattison and Elkas, costs were ordered in respect of allegations added by amendment of the complaint after the commencement of the hearing. The amendments involved allegations which could have been raised in a "stand alone" complaint. In Pattison, the ground of discrimination (sex) was the same in respect of both the allegations dismissed and the allegations upheld. In Elkas, the amendments added reprisal as a new ground of discrimination. In Naraine, the allegations which were dismissed were based on the same ground of discrimination which was upheld in the other findings of the Board.

16In my view, the difficulty in interpreting the scope of my jurisdiction is in part due to the lack of clarity over the meaning to be assigned to the word "complaint" in the opening paragraph of s. 41(4). Does the word "complaint" refer to the written document, signed by the complainant, investigated by the Commission and referred, in whole or in part, to the Board for a hearing? Or does it refer to the final list of allegations under consideration at the hearing in circumstances where new allegations have been accepted by the Board? Where further grounds of discrimination are added to the issues under consideration at the hearing, are these properly considered to be amendments of the original complaint? Is each "stand alone" allegation more properly considered to be a separate complaint arising out of the same factual circumstances at issue in the original complaint? Is each ground of discrimination (that is, race, sex, handicap and so on) to be considered a separate complaint? Does it matter if there is more than one period of time at issue, and if the factual circumstances in each support a different conclusion on liability?

17In assessing the meaning of the word "complaint" in s. 41(4), consideration should be given to the referral process and the Board's mandate as set out in s. 36(1) and s. 39(1):

Referred to board of inquiry

36(1) Where the Commission does not effect a settlement of the complaint and it appears to the Commission that the procedure is appropriate and the evidence warrants an inquiry, the Commission may refer the subject-matter of the complaint to the board of inquiry. 1994, c. 27, s. 65(12).

Hearing

39(1) The board of inquiry shall hold a hearing,

(a) to determine whether a right of the complainant under this Act has been infringed;

(b) to determine who infringed the right; and

(c) to decide upon an appropriate order under section 41,

and the hearing shall be commenced within thirty days after the date on which the subject-matter of the complaint was referred to the board. 1994, c. 27, s. 65 (15).

18Significantly, it is the "subject-matter of the complaint" which is referred to the Board, not the complaint itself. Further, the mandate of the Board is to determine if "a right" of the complainant has been infringed, not to determine if the specific infringements alleged in the complaint are proven. This is not to suggest that a Board can make findings of discrimination which are outside the scope of the allegations investigated by the Commission. However, it does suggest that the complaint itself should not be viewed as a pleading which limits the jurisdiction of the Board to make findings based on the evidence, assuming the respondent is not prejudiced. I am supported in this view by consideration of the fact that human rights complaints are usually prepared by a Commission intake officer and/or the complainant, and are rarely drafted by a lawyer representing the complainant and never, in my experience, drafted by counsel for the Commission.

19How does this relate to the opening language in s. 41(4) which makes "dismissing a complaint" a condition precedent for the Board's jurisdiction to order costs against the Commission? Given that the Board has jurisdiction to consider and make determinations in respect of allegations that are not part of the initial written complaint, but arise out of the "subject matter" of the complaint, it would be too restrictive an interpretation of s. 41(4) to require a dismissal of all allegations, and all grounds of discrimination, to trigger the authority to consider an application for costs. Minimally, it seems to me that, in circumstances where new allegations have been added on the Commission's motion at the hearing, the dismissal pre-condition is satisfied by a dismissal of either: (i) the allegations in the original complaint, or (ii) the allegations added at the hearing (assuming those allegations could support "stand alone" complaints), without the need for a dismissal of both sets of allegations. In this case, the dismissal of all the allegations added by the February 8, 1995, ruling, specifically reprisal, association and constructive discrimination, would, in my view, satisfy the pre-condition for considering whether an order of costs is otherwise appropriate under s. 41(4).

ANALYSIS OF THE CÉFCUT APPLICATION

20Assuming I am correct in concluding that the dismissal of the allegations added at the hearing is sufficient to support CÉFCUT's application for costs, I must consider next if the evidence supports a finding under either para. (a) or (b). I find that it does not.

21My findings and reasons in the decision on the merits (March 27, 1997) make it clear that this was not a simple case. There was extensive evidence, particularly of a circumstantial nature, and it was necessary to assess the credibility of witnesses and to draw inferences on a balance of probabilities. In cases in which credibility is an issue, and in which circumstantial evidence must be weighed and assessed, it will rarely be appropriate for the Board to exercise its discretion under s. 41(4) to order costs against the Commission on the basis that the complaint was trivial or frivolous. The Commission, in conducting its investigation and analysis, will not always be in a position to accurately assess the credibility of various witnesses who may differ on key points in dispute. In such cases, a hearing before the Board may be the most appropriate forum to assess the credibility of the witnesses.

22In the context of all the evidence, none of the dismissed grounds of discrimination, specifically the allegations of discrimination based on race, ethnic origin, association and reprisal, could be considered to be trivial or frivolous as those terms have been applied in the jurisprudence. In fact, there was considerable overlap in the evidentiary support for each of these grounds. Although I dismissed the specific allegations of discrimination on the basis of race, ethnic origin, association, I did so on the basis that the allegation of place of origin discrimination best captured the fact that Mr. Abouchar was treated differentially because he was not of Franco-Ontarian heritage. It was appropriate and prudent for the Commission to plead each of the allegations separately, including reprisal. Until the respondent witnesses on the selection committee had testified, the Commission was not in a position to be certain that there would not be evidence indicating that Mr. Abouchar's previous human rights complaints were factors in the competition.

23Turning to consideration of the complainant's good or bad faith in making the complaint, and the suggestion that the complaint could be considered vexatious, I refer to my findings in the decision on remedy (April 23, 1999), particularly the reasons given in respect of the mental anguish award in the following passage on p. 13 [D/180, para. 36]:

The reasonableness of Mr. Abouchar's perceptions must be considered in the context of all the evidence. In the March 1998 decision, I concluded that the evidence indicated that, in both competitions, there was opposition to Mr. Abouchar that was difficult to explain on bona fide grounds, given his qualifications and eligibility for the positions. Mr. Abouchar's evidence was that he felt that he was being unfairly rejected. He had no way of knowing if he was attracting opposition for a non-discriminatory reason (for example, because of his views on French-language education, favouring a more bi-lingual system) or if it was because he was seen as a "newcomer" or an "upstart", who was not part of the historical Franco-Ontarian community, and had no business taking on leadership roles. In the end, I concluded, based on the evidence, that improper consideration of his prior human rights complaint, in the Metro Board competition, and of his place of origin, in the CÉFCUT competition, tainted the treatment which he received.

24Although there was some indication in the evidence that Mr. Abouchar had a heightened response to the unequal treatment which he experienced, there was no evidence to suggest that the complaint was based on anything other than his honest belief that he had been the victim of acts of discrimination. The complaint was not brought in bad faith and could not be considered vexatious as that term has been interpreted in the jurisprudence relied on by both counsel. Given this conclusion, it is unnecessary for me to consider the debate in the caselaw as to whether or not irresponsibility on the part of the Commission must be found before an award of costs is appropriate in cases of bad faith on the part of the complainant.

25With respect to the allegation of constructive discrimination, respondent counsel relied on the fact that it was dismissed at the conclusion of the Commission's case, on the basis that it was unsupported by the evidence already led. However, the March 1998 decision makes it clear (pp. 15–17) that it was possible that respondent witnesses would provide evidence of constructive discrimination. It was prudent of the Commission to add constructive discrimination as a separate ground given the decision of the Divisional Court in Board of Education of Toronto (City) v. Quereshi (1991), 1991 CanLII 13130 (ON CTGDDC), 42 O.A.C. 258 [14 C.H.R.R. D/243], since reversed by the Court of Appeal in Toronto Board of Education v. Quereshi, [1997] O.J. No.86 (QL) [reported 1997 CanLII 14492 (ON CA), 29 C.H.R.R. D/5].

26I am of the view that the Commission misjudged its case in leading expert evidence to support an allegation of constructive discrimination on the basis of race and ethnic origin. However, the expert evidence in support of that allegation took at most two and a half days of hearing time, in chief and cross examination As well, the evidence of one of the experts, Mr. Johnson, was of some assistance to me in assessing the fairness of the selection process. The respondents brought a motion for early dismissal immediately after the evidence of Mr. Johnson, and were spared further litigation expense by the early dismissal of the allegation of constructive discrimination. If hardship was caused to the respondent school boards by the Commission in this instance, it was not of so significant a nature as to fall within the "undue hardship" provision of s. 41(4)(b).

27Finally, I would like to address the submission that the Commission caused undue hardship by its failure to obtain expert evidence about the relative qualifications of Mr. Abouchar and the successful candidate. In arguing that the Commission failed to appropriately assess the relative qualifications of these two candidates in [sic], CÉFCUT relied on the Commission's Case Summary. The Case Summary is a document, prepared by a staff investigating officer, to assist the appointed Commissioners in deciding whether or not to refer the complaint to a hearing. The Case Summary indicates that the Commissioners were advised by the investigating officer that the qualifications of these two candidates were "comparable". The officer also notes that the successful candidate had more extensive supervisory experience. Both these assessments were shared by my findings. I concluded that the selection committee relied on the superior supervisory experience of the successful candidate, and not on any prohibited ground of discrimination, in finding that the selection decision was not tainted by discrimination, even though the selection process was discriminatory.

28Respondent counsel argued that the Commission protracted the proceedings by not accepting the assessment of the investigating officer and by instead putting in issue the relative qualifications of the two candidates. The proper approach, in CÉFCUT's submission, would have been for the Commission to obtain an expert opinion on the qualifications. CÉFCUT is satisfied that any expert would have advised the Commission, as CÉFCUT's expert advised the Board, that the supervisory experience of the successful candidate made her the superior applicant.

29Hearing time could have been saved if all parties had acknowledged at the outset that the two candidates were comparable and that both were qualified for the position. The Commission could have acknowledged the value of the successful candidate's superior supervisory experience. CÉFCUT could have acknowledged that Mr. Abouchar had other valuable, although perhaps less traditional experience, which could have been considered favourably by the selection committee. However, such acknowledgements would not necessarily have greatly shortened the hearing. In fact, witnesses on all sides indicated that both candidates were basically qualified for the position: otherwise they would not have both been interviewed.

30Of all the parties, only Mr. Abouchar took the position that his qualifications were significantly superior to those of the successful candidate. The Commission focused its case on the question of whether or not there was discrimination, not on the question of which candidate was the best qualified. CÉFCUT defended the selection of the other candidate by calling very extensive expert evidence to demonstrate that she had followed the usual and accepted career path leading to a position as an Assistant Superintendent. I accepted this evidence and considered it in determining if discrimination was a factor in Mr. Abouchar's failure to win the position. However, there was no evidence to suggest that members of the selection committee, as newly elected trustees, were at all aware of the usual career path followed by persons who become Assistant Superintendents. The evidence of CÉFCUT's expert was not of key relevance to the question which was before the Board. At best, the expert evidence supported the importance of supervisory experience, which the successful candidate had and Mr. Abouchar did not have. I concluded that the selection committee made its decision primarily on the basis of the superior supervisory experience of the other candidate.

31It should be clear that an assessment of the relative merits of the two qualified candidates could not answer the question which the Board was required to address. Even if the successful candidate was accepted from the outset by all parties as having superior qualifications in some respects, the Board would still have to determine if discriminatory factors played a role in the treatment of Mr. Abouchar in the competition and in the selection decision. The relative qualifications of these two candidates had to be considered in determining if discrimination was a factor in Mr. Abouchar's failure to obtain the position, but the question was not "Which candidate was the most qualified?" but rather "Did the selection committee honestly choose the successful candidate because, and only because, they believed her to be the most qualified?"

32A similar point is made in the following passage from the March 27, 1998, decision [D/413, para. 9]:

Depending on the factual circumstances, proof that the complainant was an equivalent or better candidate will not always be essential to the legal burden of proof in a case of employment discrimination. A finding of discrimination will be made out if the Commission can prove on the balance of probabilities that the complainant was treated unequally in the competitions, and that one reason for the unequal treatment was his membership in a group identified by prohibited ground under the Human Rights Code ("Code"). It will be a question of fact in each case as to whether a prohibited ground of discrimination was a factor in the unequal treatment, and further, whether the discriminatory factor contributed to the decision not to hire the complainant. Even a completely unqualified applicant can be discriminated against in a hiring process on the basis of a prohibited ground, but in those circumstances, the discrimination would not likely be a proximate cause for the applicant's lack of success in the competition.

CONCLUSION

33This was a lengthy hearing, but all counsel contributed to the length and cost of the proceedings. Some of the costs for which CÉFCUT was seeking compensation, such as legal fees in respect of representation before the Office of the Information and Privacy Commissioner, or the cost of CÉFCUT's own transcripts, were costs that I would not, in any event, have held to be recoverable. Other costs may have been avoidable. For example, the expense of separate representation for Mr. Lalonde could perhaps have been eliminated if either school board had requested that I reassess Mr. Lalonde's status.

34I noted in the April 23, 1999, decision that Mr. Abouchar should not be penalized in remedy for alleging one or more grounds of discrimination other than the grounds found to have been supported on the evidence. By the same token, given the overlapping nature of the allegations, the Commission should not be penalized in costs for taking all of the allegations forward in the hearing. The dismissed grounds of discrimination were not trivial, frivolous or vexatious and did not add significantly to the length of the hearing or otherwise cause undue hardship to the respondent school board. As well, the fact that the Commission did not obtain expert advice on the relative qualifications of the two candidates did not lengthen the proceedings. The Commission appropriately focused on the question of whether discrimination was a factor, not on the comparative merits of the two candidates.

35For all of these reasons, the application of CÉFCUT for an award of costs is dismissed.