CHRR Doc. 08-437
Robert Neil Nelson
Complainant
and
Ontario Human Rights Commission
Commission
v.
Lakehead University, Bahram Dadgostar and Jerry Phillips
Respondents
Date of Decision: July 14, 2008
Before: Human Rights Tribunal of Ontario, Kathleen Martin
File No.: HR-1087-06
Appearances by:
Robert Neil Nelson, on his own behalf
Prabhu Rajan, Counsel for the Commission
Fred Bickford, Counsel for the Respondents Lakehead University and Bahram Dadgostar
Robert Edwards, Counsel for the Respondent Jerry Phillips
AGE DISCRIMINATION — EDUCATION — employment for professor denied on the basis of age — DISCRIMINATION — bona fide qualification as reasonable cause for discrimination — EMPLOYMENT — employer investigation of human rights complaint — BURDEN OF PROOF — elements of a prima facie case — EVIDENCE — circumstantial evidence
Summary: The Human Rights Tribunal of Ontario ruled that Lakehead University did not discriminate against Robert Neil Nelson on the basis of age when it decided not to hire him for a faculty position.
In 2002, Dr. Robert Neil Nelson applied for a full-time, tenure track assistant professor position in the Faculty of Business Administration at Lakehead University. Dr. Nelson was 57 at the time. He was interviewed, but another candidate was selected. Subsequently, Dr. Nelson was advised by two professors, one of whom had been a member of the hiring committee, that his age had been a factor in the University's decision.
The University maintained that Dr. Nelson's age was not a factor. Dr. Nelson was not selected because he did not have the stated academic qualifications; the teaching presentation that he gave during the interview process was unsatisfactory; and his research and scholarly activities lacked currency.
Dr. Nelson had a Ph.D. in Education Administration from Michigan University, and had been working as consultant in the private sector. Some years before, he had taught at Lakehead University. Initially, he taught in the Faculty of Education, but moved to a contract position with the School of Business. Subsequently, he moved to the private sector, and his academic qualifications and research record dated back to 1981.
Three applicants were considered by the hiring committee. Candidates, including Dr. Nelson, were interviewed, and each made a teaching presentation. Following this, and after deliberations by the hiring committee, the Dean prepared a document indicating that Dr. Mihai was the preferred candidate and indicating that the Committee "recommends unanimously" that Dr. Mihai be offered the position. Professor Cole who was a member of the Committee resigned from the Committee. She criticized the deliberations and its apparent emphasis on the research abilities of the candidates and stated that the age of Dr. Nelson had been directly considered.
The Dean elected to keep Professor Cole's letter of resignation confidential and the recommendation of the hiring committee was put to a vote of the faculty. Hiring Dr. Mihai was approved.
The Tribunal concluded that age was not a factor in the selection process. Dr. Cole's evidence was that Dr. Nelson's age was referred to by Professor Phillips, who stated that Dr. Nelson would not be tenurable because he would not be able to meet tenure requirements before mandatory retirement. However, this was a mistake as, given his age of 57, there was no impediment to his achieving tenure before age 65. Others denied that age was mentioned or played any role in the assessment of Dr. Nelson.
The Tribunal concluded that the selection process, including the vote, was untainted by consideration of age.
However, the Tribunal found that the Dean did not take the appropriate steps to investigate Dr. Cole's allegations of discrimination. He should have taken Dr. Cole's concerns seriously, and attempted to meet with her or otherwise outline what options were available to her. The Dean's response fell short of being a reasonable response to the allegations of discrimination raised by Dr. Cole, and, as such violated the Code.
The Tribunal concluded that the respondents did not discriminate against Dr. Nelson in the selection process. However, the Dean and the University failed to take reasonable steps to investigate the allegations underlying the complaint contrary to ss. 5(1) and 9 of the Code.
The parties were encouraged to seek a settlement. The Tribunal retained jurisdiction in case the parties cannot agree on remedy.
See also (No. 1) (2007), CHRR Doc. 07-745, 2007 HRTO 6.
CASES CITED
Canada (Attorney General) v. Canada (Human Rights Comm.) and Morris (2005), 55 C.H.R.R. D/1, [2005] F.C.J. No. 731 (QL), 2005 FCA 154: 35
Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.): 39
Laskowska v. Marineland of Canada Ltd. (2005), 53 C.H.R.R. D/262 , 2005 HRTO 30: 92
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: 32
Shakes v. Rex Pak Ltd. (1981), 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001 (Ont. Bd.Inq.): 34
LEGISLATION CITED
Ontario
Human Rights Code, R.S.O. 1990, c. H.19
s. 5: 30
s. 5(1): 90, 111
s. 9: 111
s. 11: 107
INTRODUCTION
1In 2002, Dr. Robert Neil Nelson, the complainant, applied for a full-time, tenure track assistant professor position in the Faculty of Business Administration with the corporate respondent, Lakehead University (the "University"). Dr. Nelson was interviewed for the position, but another candidate was selected. Subsequently, Dr. Nelson was advised by two professors, one of whom had been a member of the hiring committee, that his age had been a factor in the University's decision. Following the receipt of this information, Dr. Nelson contacted the Commission and filed a human rights complaint.
2The complaint alleged that Dr. Nelson's age had been directly raised during the selection process in several ways, not all of which were pursued in the hearing. Additional allegations were identified in the course of the hearing: that the requirement for recent/current research experience had an adverse impact on Dr. Nelson because of his age and that the University and the Dean failed to take reasonable steps to investigate and address allegations of discrimination in the job competition process and furthered and condoned a discriminatory act by proceeding with the vote on the hiring committee's recommended candidate in the face of these allegations.
3The University and the personal respondents, Dr. Dadgostar (the "Dean") and Professor Phillips, deny all allegations and specifically deny that age was a factor in the selection process. They submit Dr. Nelson was not selected for the position because he did not have the stated academic qualifications; the quality of his teaching was unsatisfactory in the teaching presentation that he gave during the interview process; and his research and scholarly activities were deficient and lacking currency. In addition, the respondents argue that the job requirement of current research experience bears no relationship to age. Further, the University and Dean submit that the Dean provided a reasonable and appropriate response to the allegations by offering that Professor Cole, the professor who raised allegations of age bias, meet with the members of the hiring committee to clarify her concerns.
4After a full and complete consideration of the evidence and the parties' submissions, I find the respondents did not discriminate against the complainant, either directly or indirectly, on the basis of his age during the selection process, including in the recommendation to select another candidate. However, I find that the response to the complaint of discrimination was inadequate and that the Dean and the University failed to take reasonable steps to investigate the allegations contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). My reasons follow below.
The Complaint and the Proceeding
5The complaint was referred to the Tribunal on February 8, 2006. The hearing was held in Thunder Bay, Ontario, over a period of 16 days in 2006 and 2007, with final submissions being completed by way of a teleconference call on August 8, 2007.
6I heard from six witnesses in the hearing. Dr. Nelson, and Professors Cameron and Cole testified for the Commission. Professors Phillips and Isotalo, both of whom were on the hiring committee along with Professor Cole, and the Dean testified for the respondents.
7The parties agreed to bifurcate the hearing and, accordingly, I only heard evidence and argument in respect of liability issues.
Preliminary Rulings
8In the course of the hearing, I issued a number of interim rulings and decisions on evidentiary and procedural issues. Two warrant mention.
9On December 8, 2006, the Commission sought to adduce evidence through Professor Cole that a member of the hiring committee had raised the issue of Dr. Nelson's age with another faculty member during the selection process. The respondents objected on the ground that the proposed evidence was hearsay going to a central issue and was highly prejudicial and that they would have no opportunity to cross-examine the maker of the alleged comment. While agreeing the evidence was hearsay, the Commission took the position that the Tribunal has the discretion to admit hearsay evidence and in any event, it was admissible as circumstantial evidence as it corroborated other evidence before the Tribunal. Further, the Commission argued that the faculty member in question was not available to testify because he now resided in British Columbia and the Commission was unable to locate him and, even if his whereabouts were known, he was outside the Tribunal's jurisdiction and his attendance was not compellable.
10I upheld the objection. The proposed evidence is properly characterized as hearsay evidence. Although the Tribunal has the discretion to admit hearsay evidence, the evidence was on a central issue in dispute and there was no indication given that the Commission made any effort to locate or contact the faculty member in question or explored obtaining his evidence in any other manner. In the circumstances, given the importance of the alleged statement to a central issue, even were I to admit the hearsay, I would not be inclined to give it any weight.
11On February 7, 2007, I issued an interim decision on various matters including a request for direction with respect to a summons issued to Helen Eaton in Human Resources at Lakehead University for production of Sharon Cole's personnel file including all curriculum vitae and any application to the Tenure and Promotion Committee. That decision warrants mention because of the subsequent conduct of Professor Cole, when questioned about these documents.
12Counsel for Professor Phillips sought to cross-examine Professor Cole on these documents for the purpose, in part, of undermining her credibility. Professor Cole refused to answer any questions that she believed arose out of the respondents' access to her personnel file, even following my explicit direction to do so. She gave no explanation for her position at first. Only near the end of her testimony did she explain she refused to answer because Commission counsel had not provided her with a copy of the documents when she requested a copy before her testimony, and accordingly, having not seen them previously, would be uncertain of their accuracy. Notwithstanding this explanation, which I do not find satisfactory, her refusal to answer proper questions is one of several factors that negatively affected my assessment of her credibility.
Background to the Complaint
13Lakehead University is located in Thunder Bay, Ontario. Professor Rob Cameron, a professor in the Faculty of Business Administration (the "Faculty") in human resources, one of the discipline groups in the Faculty, announced his intention to retire from the University in the fall of 2002, thus creating a vacancy.
14At that time, the Faculty was about to embark on a new five-year academic plan. Historically, the Faculty had offered two undergraduate degree programs: an Honours Bachelor of Commerce and a Bachelor of Administration. Commencing in September 2003 (the second year of the five-year plan), the Faculty would also offer two graduate programs: a Master of Science in Management and a Master of Management. As a result, the evidence confirms that the Faculty's recruitment program sought candidates with a doctorate degree and placed a greater emphasis on research output and scholarly activities.
15Recruitment in the Faculty is governed by provisions in a collective agreement between the Lakehead University Faculty Association, which represents academic staff and librarians, and the University. In addition, there are written procedures governing the recruitment process for faculty. Without detailing all the procedures, in general, the hiring process involves the following steps:
· establishment of a hiring committee of faculty which determines the duties and responsibilities, as well as desired qualifications of the position;
· advertisement of the position both within and outside of the University;
· establishment of a short list of candidates by the hiring committee;
· interviews of the candidates which include each candidate doing a research presentation and a teaching presentation to the hiring committee and faculty;
· recommendation of a candidate to faculty by the hiring committee; and
· a vote by faculty members on the candidate recommended by the hiring committee.
If the Committee's recommendation is approved, the Dean of the Faculty usually forwards the recommendation to the Vice-President (Academic), who in turn forwards it to the President of the University for final approval.
16Setting aside the Commission's allegations, which are addressed in greater detail below, the filling of the vacancy at issue in this case followed these general procedures. A hiring committee consisting of Professors Phillips, Isotalo and Cole (the "Committee") was established. A vacancy was posted for a tenure track position at the assistant professor level.
17The evidence before me confirms that, by identifying the position as "tenure track", candidates would be assessed against criteria applicable to the granting of tenure established under the collective agreement. These criteria include:
· a doctorate/degree normally considered "terminal" in his/her discipline;
· university teaching;
· contributions in research or other scholarly and creative activities; and,
· discharge of reasonable administrative responsibilities.
However, the evidence also confirms that, notwithstanding the presence of four criteria, the Committee's deliberations focused on the candidates' teaching and research abilities and potential.
18There were four applicants for the position, including Dr. Nelson. One withdrew his application shortly after applying. The three remaining applicants were interviewed. The interviews took place over a period of several months: the first occurred on January 23, 2002; a second interview on March 8, 2002; and Dr. Nelson was interviewed on March 15, 2002.
19Dr. Nelson had a Ph.D. in Education Administration from Michigan University, which included a cognate area of organizational behaviour. At the time of his application, Dr. Nelson was working as a consultant in the private sector.
20Dr. Nelson had previously taught at Lakehead University. Initially he taught in the Faculty of Education in a tenure track position. However, he resigned from the Faculty of Education the day before his tenure hearing to teach in a contract position with the School of Business, the predecessor to the Faculty. At that time, the School offered two undergraduate degrees and a one-year graduate diploma for students with a non-business undergraduate degree. Dr. Nelson worked in the School of Business for two years in a contract position and then took a sabbatical, in part for the stated purpose of upgrading his academic qualifications in business. While he subsequently took some business courses at University of Toronto, Dr. Nelson's career was predomina[n]tly in the private sector. Thus, when he applied for the vacancy, his academic qualifications and research record, with a few minor additions, were essentially the same as in 1981.
21As with the other candidates, Dr. Nelson's interview was a day-long process scheduled on a Friday to allow as many faculty members as were interested to attend. Dr. Nelson's interview included a meeting with the Dean, a meeting with the Vice-President, lunch with faculty, a teaching presentation by Dr. Nelson, a research presentation by Dr. Nelson and a dinner. The various meetings were informal in nature. The critical part of the interview process was the research and teaching presentations. Approximately 10—12 members of the faculty attended the presentations, including the hiring committee.
22On March 19, 2002, the Committee met to consider the candidates. While all three candidates were evaluated, when it came to the deliberations of the Committee, the Committee primarily focused on a comparison of Dr. Nelson with the successful candidate, Dr. Mihai. At the conclusion of the meeting, a recommendation was made to offer Dr. Mihai the position.
23Following the meeting, the Dean prepared a document indicating that the Committee "recommends unanimously" that Dr. Mihai be offered the position. In addition, ballots were made available to faculty members requesting that they indicate their support or opposition to the recommendation and return the completed ballot to the faculty secretary by March 21, 2002.
24On the following day, March 20, 2002, Professor Cole dropped off a letter with the Dean, resigning from the Committee. In her letter, she criticized the deliberations of the Committee and its apparent emphasis on the research abilities of the candidates and stated that the age of Dr. Nelson had been directly considered.
25On March 21, 2002, the ballots were counted. Faculty unanimously approved the recommendation to offer Dr. Mihai the position.
26On March 22, 2002, the Dean responded to Professor Cole's letter without sharing her concerns or his response with anyone, including the other members of the Committee. In his letter, he rejected her representation of what occurred in the Committee and invited her to meet with the Committee to "clarify" her concerns. No meeting was requested by Professor Cole.
27The only other contact between the Dean and Professor Cole in respect of the hiring was in connection with his notes of the March 19, 2002, meeting. In the week following the vote, the Dean prepared a typed copy of his notes from the Committee's deliberations on March 19, 2002, and circulated it to the members of the Committee. Professor Cole sent him a brief response indicating that his notes did not accurately reflect what was discussed in the meeting and that there were several errors — although none were specifically identified. While the Dean did not recall receiving this email, he was equivocal in his testimony, acknowledging that he "may" have received it.
28Approximately 10 days after the ballots had been counted, the recommendation to offer Dr. Mihai the position was forwarded to the Vice-President (Academic) and thereafter to the President of the University. The recommendation was approved and Dr. Mihai was offered the position.
ANALYSIS AND DECISION
The Issues
29The issues before the Tribunal are:
1 Was Dr. Nelson's age, 57 at the time of his interview, a factor in the hiring process contrary to ss. 5 and 9 of the Code?
Did the Dean's handling of the allegations raised by Professor Cole violate ss. 5 and 9 of the Code?
Did the job requirement of recent/current research experience have an adverse impact on Dr. Nelson because of his age contrary to s. 11 of the Code?
General Legal Principles
30Section 5 of the Code provides as follows:
- Every person has a right to equal treatment with respect to employment without discrimination because of. . . age. . .
31I heard extensive submissions on the burden of proof. All parties agreed that the burden of proof is on a complainant to establish a prima facie case of discrimination, although there was some difference of opinion on the test to be employed.
32I accept that the legal test for establishing a prima facie case of discrimination is set out by the Supreme Court of Canada in O'Malley v. Simpsons-Sears Ltd. (1985), 1985 CanLII 18 (SCC), 7 C.H.R.R. D/3102 (S.C.C.). In O'Malley, at § 24782, the Supreme Court of Canada held that a prima facie case 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".
33Once the prima facie case is established, the burden shifts to the respondent to provide a reasonable explanation for the otherwise discriminatory behaviour. If the respondent provides such an explanation, the complainant has the ultimate burden of demonstrating that the alleged discrimination is more probable from the evidence than the actual explanation offered by the respondent.
34In determining what is a prima facie case, counsel for the University and the Dean, relied not on O'Malley, but on Shakes v. Rex Pak Ltd. (1981), 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001 (Ont. Bd.Inq.), a decision which pre-dates O'Malley but which counsel argued is applicable to the type of employment discrimination case before me. In Shakes, in § 8918, the Board of Inquiry set out what must be "usually" proven in an employment complaint:
. . . 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 (i.e., race, colour, etc.) 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. [Emphasis added.]
In relying on this case, the respondents argued that since Dr. Mihai was clearly more qualified than Dr. Nelson, the Commission had failed to establish a prima facie case.
35However, Shakes has not been applied in every employment case. Indeed, it has been recognized as being merely one example of the type of evidence that may, if believed and not satisfactorily explained by the respondents, lead to a finding of a violation of human rights legislation (see, for example, Morris v. Canada (Armed Forces), [2005] F.C.J. No. 731 (QL), 2005 FCA 154 [55 C.H.R.R. D/1]). In articulating the appropriate legal test, the Federal Court of Appeal in Morris stated at § 26 and 27:
. . . O'Malley provides the legal test of a prima facie case of discrimination under the Canadian Human Rights Act. Shakes and Israelie merely illustrate what evidence, if believed and not satisfactorily explained by the respondent, will suffice for the complainant to succeed in some employment contexts.
In other words, the legal definition of a prima facie case does not require the Commission to adduce any particular type of evidence to prove the facts necessary to establish that the complainant was the victim of a discriminatory practice as defined in the Act. Paragraph 7(b) required only that a person was differentiated adversely on a prohibited ground in the course of employment. It is a question of mixed fact and law whether the evidence adduced in any given case is sufficient to prove adverse discrimination on a prohibited ground, if believed and not satisfactorily explained by the respondent.
36While Morris was decided under the federal legislation, I find the principles applicable to a complaint under the Code, particularly in a case such as the present one where there are allegations of direct discrimination. The question is: was sufficient evidence adduced by the complainant and Commission to establish that the complainant was a victim of discrimination on the basis of age in the absence of a response from the respondents.
37The case law is also clear that discrimination need only be one of the factors involved in a hiring decision for there to be a breach of the Code. In addition, it is unnecessary to prove that there was an intention to discriminate to support a finding that the Code has been violated.
1. Was age a factor in the decision not to hire Dr. Nelson?
38The Commission argued that there was evidence of both a direct and circumstantial nature supporting a finding that the selection process was tainted by discrimination. Apart from the Commission's argument about the Dean's conduct in responding to the allegations which is dealt with below, I am not satisfied that there is credible evidence that the selection process was tainted by considerations of age.
A. THE COMMISSION'S ALLEGATIONS OF DIRECT EVIDENCE OF DISCRIMINATION
The Alleged Reference to Age During the Committee's Deliberations
39On March 19, 2002, the hiring committee and the Dean met to consider which candidate should be recommended for the position. I heard evidence from each of the members of the hiring committee and the Dean about the meeting. While there was agreement on some aspects of the meeting, the evidence diverged on two important points: whether Dr. Nelson's age was raised as a factor in the deliberations; and whether the recommendation of Dr. Mihai was unanimous. Credibility of the witnesses was a factor in resolving these disputes. In assessing credibility I have applied the test in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 at 356—57 (B.C.C.A.).
40In assessing the evidence of what happened at the Committee meeting on March 19, 2002, I prefer the evidence of Professors Isotalo and Phillips to that of Professor Cole. Their evidence was that age played no role in the Committee's deliberations. Professor Cole's refusal to answer certain questions, while viewed very seriously by me, is only one of several factors that cause me to find her evidence in respect of that meeting not credible or in "harmony with the preponderance of probabilities".
41With respect to the Dean's evidence, I have given less weight to his account of what occurred in this meeting, including his notes from the meeting, for several reasons. The Dean was the final witness in the hearing, yet was present throughout the hearing, and accordingly had the opportunity to hear the accounts of all other witnesses who attended the meeting. In addition, counsel led the Dean in his evidence often by referencing the evidence that was already given for the purpose of expediting his testimony. While this approach was utilized for a specific reason, it affected the quality of the evidence by making it more confirmatory than original in nature. Further, while the Dean produced notes of the meeting, the evidence is that these notes were prepared after receiving Professor Cole's allegations. The fact that the notes were not a verbatim record of the Committee's discussion reduces the weight I can give them.
42Turning to the evidence, all witnesses agreed that the meeting began with Professor Cole seeking clarification of the criteria to be used in evaluating the candidates. The criteria were clarified as the same criteria for tenure, namely research, teaching and the other factors set out above.
43Thereafter, the members reviewed the merits of each candidate on the basis of their teaching and research.
44Professor Cole testified that, near the end of the meeting, Professor Phillips stated that while it was not appropriate to discuss it, "Dr. Nelson's age would prohibit him from achieving tenure". She further testified that the view was expressed that because Dr. Nelson was not tenurable, he would not be controllable because he would not need to balance or massage his position in the department in order to garner the support of others in the faculty, which one would need to get tenure. She stated that no one challenged this in the meeting and that she did not "challenge it until the next day". She explained the deadline for applying for tenure is five years and that the assumption being made was that Dr. Nelson was too old to meet that deadline since he would be 65 years old (at that time, the age of mandatory retirement at the University) before he could get tenure. Notwithstanding her evidence and the subsequent clarification that the deadline for tenure was six years, Professor Cole agreed that, given Dr. Nelson's age, there was no impediment to him achieving tenure based on his age.
45The evidence of the other members of the hiring committee was completely contrary to the evidence of Dr. Cole on this issue. Both Professors Isotalo and Phillips denied that age was mentioned or played any role in the assessment of Dr. Nelson's candidacy. In fact, both witnesses indicated that they could only recall a discussion of tenure or "tenurability" in the meeting in connection with the discussion of the criteria that occurred at the outset of the meeting and not in respect of a particular candidate. Instead, they described, albeit in somewhat different words, the deliberations as focused on the candidates' teaching and research. Dr. Mihai was viewed as being superior in each respect.
46Notwithstanding the foregoing, Professors Phillips and Isotalo agreed that, in their respective views, Dr. Nelson would be unable to achieve tenure within the six-year period. Professor Phillips took this view because he felt Dr. Nelson had none of the building blocks for tenure in place. In addition to his oral testimony, Professor Phillips' view is expressed in his notes from the presentation stage of the interview process, which include a systematic assessment of the three candidates for the position on all criteria including their research potential. Professor Isotalo expressed the same view in a note to himself following the meeting which states that Dr. Nelson was not "tenurable" because he did not have an active program of research.
47Professors Phillips and Isotalo testified the decision to recommend Dr. Mihai was unanimous. Professor Cole's resignation letter written the next day contradicts this. However, I find that she conducted herself during the meeting such that it was reasonable for those present to conclude she supported the recommendation.
48Professor Cole's evidence in chief did not address what she actually said at the meeting on March 19, 2002, in response to the Dean's request that the members rank the candidates. In cross-examination, she agreed that she "may" have expressed that Dr. Mihai's research was more current and that it had been a long time since Dr. Nelson was in the classroom. She further stated that she indicated that if Dr. Mihai was going to be the candidate then they should make sure Dr. Mihai could work independently since she had no time to mentor her. However, she gave somewhat contradictory evidence when asked about the ranking of candidates. She initially agreed that the Dean asked each of the committee members to list their preferred candidate and their reasons for ranking the candidates; yet later stated that she deemed her opinion unvalued and, when the Dean concluded by asking whether the recommendation of Dr. Mihai should go to faculty, she sat there. Thus, her own evidence confirms she made no express opposition to Dr. Mihai's recommendation.
49The evidence of the other witnesses differed although, ultimately, it was to the same effect. Professor Isotalo testified that, while Professor Cole made a presentation in support of Dr. Nelson's teaching experience and its importance to the faculty, she did not disagree that his research was not as strong and ultimately agreed with the result put forward. Professor Phillips's evidence described her position in a similar fashion. He stated that Professor Cole understood and would go along with their view but stated they would have to mentor Dr. Mihai. Professor Phillips acknowledged that Professor Cole was upset. He stated that they were aware that she had wanted Dr. Nelson to be hired from previous discussions with her.
50The evidence of all witnesses was that the Dean did not voice his views on the suitability of any of the candidates.
51On March 20, 2002, Professor Cole resigned from the hiring committee by memorandum addressed to the Dean. In her memorandum, she criticized the deliberations of the Committee and its apparent emphasis on the research abilities of the candidates and stated that the age of Dr. Nelson had been directly considered. The salient part of her letter provided as follows:
The process that I was exposed to yesterday was flawed, biased and unprofessional. No criteria for evaluation of the candidates had been made available to me prior to the meeting and when I asked what the criteria were, I was told, "The usual criteria". Given that this was my first involvement in the selection process, I naturally assumed that there were pre-existing, properly weighted criteria — when I discovered that there were not, I was embarrassed professionally.
Because the criteria were not weighted relative to the Faculty's primary mission (that i[s], undergraduate teaching), the process was inherently biased and did not allow for the interests of students to be considered as the priority. Instead, criteria that students couldn't care less about became the focal point of discussion, so much so, that one candidate's ability to communicate more effectively than the other's was completely ignored. Is this because one doesn't have to communicate effectively in order to do research?
Finally, one candidate was also evaluated on the assumption that they were not 'tenurable' and hence not 'controllable' because of their age. This person's age was used as a criterion despite the fact that it was not one of the criteria for evaluation and that it is one of the protected grounds under the Ontario Human Rights Code. It is my understanding that inquiries about this candidate's age were made as far back as January, shortly after their application was received by you.
I will not be a participant in a process where there is no way of identifying who really is the best candidate. I made my preference known — my preference was based on what I think is best for the students in this faculty. Clearly that was not the focus of the Committee's decision. Given the circumstances, I cannot support the Committee's recommendation. [Emphasis added.]
52Professor Cole did not copy this letter to the other members of the Committee. Her email to the other two members of her discipline group, Professor Phillips and one other faculty member, advising of her resignation explained she was resigning because she did not believe that she could "serve the Discipline Group's interests as a member of the committee". Professor Phillips testified that he had no recollection of receiving this email.
53On March 22, 2002, the Dean responded to Professor Cole's letter of resignation, without consulting or sharing the content of her letter or his response with the other members of the Committee. In his memorandum, he took issue with Professor Cole's representation of the Committee's deliberations and concluded by suggesting that she could meet with him and the other two members of the Committee to "clarify" her concerns. The text of that letter provided as follows:
In response to your memo dated March 20, 2002, with regret I accept your resignation from the HR/IR Recruitment and Selection Committee. I must say I was perplexed and disturbed by the comments in your memo.
The criteria for hiring are those set out in our Collective Agreement for attaining tenure. They include the ability to teach effectively, the ability to carry out research and scholarly activity, and the ability to discharge reasonable administrative responsibilities. Given your length of employment here and the fact that you are in the HR area, committee members assumed that you are familiar with the criteria, or would seek the information if you had any questions. You may say that the assumption of the committee members regarding your knowledge was not appropriate but the committee's discussion revolved around the criteria set out in the collective agreement.
During our discussion (which, like all personnel matters are confidential), as reflected in the minutes of the meeting, there was an agreement that the chosen candidate was a very effective communicator and that the other candidate's presentation seemed disjointed. Both candidates made reference to their "age" during their presentations, but the only relevance for our discussions was that one candidate had been out of the academic sphere for twenty years while the other is currently involved in university teaching.
It is my understanding and (I believe) the understanding of the other two committee members that your preference was for the candidate chosen by the committee. My notes indicate that all committee members agreed that Dr. Carman Mihai should be recommended for the position.
I would be pleased to meet with you in the presence of the other two members of the committee to clarify your concerns if you should so desire. I fear that both of the other members may take your letter as a personal insult, which would not be good for faculty morale. I haven't shared your letter or its contents with anybody and I have treated it as confidential. [Emphasis added.]
54In evaluating the evidence about the meeting on March 19, 2002, including the subsequent correspondence about the meeting, I prefer the evidence of Professors Phillips and Isotalo to that of Professor Cole. I found Professors Phillips and Isotalo to be credible witnesses. While there were some differences in their respective accounts of what transpired, I find the differences were not significant for purposes of my decision. While Professor Phillips was present during Professor Isotalo's evidence, I am satisfied there were sufficient differences in tone and analysis that he cannot be said to have been parroting Professor Isotalo's testimony nor do I find he tailored his evidence to shore up or rehabilitate Professor Isotalo.
55In comparison, I have a number of serious concerns with respect to the reliability and credibility of Professor Cole's evidence. As noted above, Professor Cole did not present as a forthright witness. Even apart from her refusal to answer questions in the areas referenced above, she expressed annoyance at other questions that she deemed inappropriate. Professor Cole readily acknowledged that she had difficulties with her recall of events suggesting, for example, she had no independent recollection at the time she testified as to what occurred on March 19, 2002. This and other similar admissions about her memory lead me to conclude that her evidence is not reliable.
56Further, Professor Cole's account does not make sense in the circumstances. It seems improbable that Professor Phillips, a long-time faculty member and former President of the Lakehead University Faculty Association, who was described by all witnesses as being very well informed about the tenure process, would say that Dr. Nelson's age would be a bar to him getting tenure when even Professor Cole agreed his age was not a bar to tenure. Finally, I find that Professor Cole's conduct both during and after the meeting was inconsistent with her allegations. She presented in the hearing as someone who readily took issue with perceived injustices and had no fear of persons in a position of authority. As such, I have difficulty accepting that Professor Cole would not protest the alleged statement regarding Dr. Nelson's age if it was made in the meeting, would only raise the allegation with the Dean a day later and would characterize her reasons for resigning from the Committee differently to her colleagues. These inconsistencies in her actions cause me to question the veracity of her allegations.
57What does seem apparent is that Professor Cole was unhappy with the emphasis on the research abilities and potential of the candidates in the Committee's deliberations. This is evident in the second and fourth paragraphs of the extract of her letter of resignation. There does appear to be merit to the respondents' contention that Professor Cole was not entirely supportive of the Faculty's new direction and as a result other considerations were affecting her view of the decision.
58In light of the foregoing, I make the following findings.
59I find that the decision to recommend Dr. Mihai was made by Professors Phillips, Isotalo and Cole. I accept the evidence of Professors Isotalo and Phillips that there was no consideration given to Dr. Nelson's age in the Committee's deliberations. I specifically do not find that the alleged statements attributable to Professor Phillips set out in § 44 above were made. Instead, I find that the Committee decided to recommend Dr. Mihai over Dr. Nelson because of their assessment that she was stronger than Dr. Nelson in the areas of her research and teaching. While I find that Professor Cole was less enthusiastic about the decision and preferred Dr. Nelson's teaching, I find that she nonetheless agreed, if not expressly, then implicitly by not raising any objection, to support the decision to recommend Dr. Mihai. In this respect I note that the recommendation document prepared by the Dean describing the decision as unanimous corroborates this fact since it was unnecessary for the decision to be unanimous and the recommendation could have proceeded forward with a simple majority.
60Further, I find that when deliberating on the issue, the Committee considered such factors as the currency of skills and experience, and in this respect, concerns were expressed regarding Dr. Nelson's research record. Whether the Committee expressly discussed Dr. Nelson's research record and his potential "tenurability" before, during or after the meeting, it is clear that it was a factor in Professors Isotalo's and Phillips' assessment of him.
61However, I do not accept the Commission's submission that the consideration of whether Dr. Nelson was potentially "tenurable" and the linking of the currency of his research background to any subsequent tenure process, can be reasonably construed as "code words" for Dr. Nelson being too old or that the presence of these references otherwise supports an inference that Dr. Nelson was not selected, even in part, because of his age as suggested by the Commission. Based on my findings, the underlying concern with respect to the currency of Dr. Nelson's qualifications was not his age, but rather the absence of a recent or current research program. I do not find that the status of Dr. Nelson's research program was a function of his age, but rather a function of his work experience since he elected to pursue a career in the private sector as opposed to concentrating on academic work in the period preceding his application.
62In making these findings, I have considered the Commission's argument that the Dean implied that age was considered in his letter to Professor Cole about the Committee's deliberations when he stated that ". . . the only relevance for our discussions was that one candidate had been out of the academic sphere for twenty years while the other is currently involved in university teaching". However, I accept the Dean's evidence that in making this statement he was trying to say that the discussion was not about age, but rather about the currency of research and teaching in the candidates' backgrounds. This explanation best accords with the oral evidence.
The Alleged Earlier Inquiries about Dr. Nelson's Age
63As noted in Professor Cole's letter of resignation, she also alleged that it was her understanding that there had been "inquiries about this candidate's age. . . as far back as January". I heard evidence about one alleged inquiry from Professor Rob Cameron as well as from Professor Cole. In addition, Professor Cameron testified about a second inquiry, which he interpreted to be about Dr. Nelson's age. While I accept Professor Cameron's evidence about both inquiries, I do not find that either inquiry suggests that the hiring decision violated the Code.
64Professor Cameron had been a professor in the Faculty at the University since 1976. As referenced earlier in this decision, it was his pending retirement that caused a vacancy to be created for the tenure track position in question in the complaint.
65Professor Cameron testified that sometime during the period January to April 2002, he was at the photocopier in the photocopier room when the Dean came into the room and asked him, "how old is Neil Nelson". He testified that he responded, "Bahram, you cannot ask that question". Professor Cameron stated that the Dean did not reply, turned and left the room. Professor Cameron stated that Professor Cole was also present at the time, although he did not discuss the incident with her until some time later.
66Professor Cameron stated that four or five days later, while he was in the same photocopier room, Professor Phillips came in and asked him a question to the effect of "when did Neil Nelson last work with us" or "when did he leave". Professor Cameron testified that he threw out a couple of dates but indicated that he did not really know. He stated that he construed this conversation to be about age because it came after the conversation with the Dean, although he readily acknowledged in cross-examination that he answered it because he did not see it as inappropriate. He further acknowledged that the question did not refer to age and could be construed differently from how he had originally interpreted it.
67Professor Cole's evidence was not materially different from Professor Cameron's evidence about the Dean's inquiry in the computer [sic] room. Professor Cole stated that she was referring to this inquiry in her letter of resignation when she stated that ". . . inquiries about this candidate's age were made as far back as January". Notwithstanding that the inquiry had been made, she testified that the comment had been dealt with appropriately at the time, and until the day of the Committee's deliberations on March 19, 2002, she did not have any human rights concerns about the hiring process.
68In contrast, the Dean denied that he ever asked Professor Cameron about Dr. Nelson's age. He stated that he would not have had a reason to ask about Dr. Nelson's age and, in fact, he very infrequently spoke to Professor Cameron because Cameron was not his "supporter".
69Professor Phillips testified that he had no recollection of the conversation with Professor Cameron.
70I accept Professor's Cameron's version of each of these conversations. I found Professor Cameron to be a credible witness. He had no vested interest in the outcome of this proceeding. Professor Cameron was measured in his testimony — being careful not to overstate or embellish his recollections and ready to concede points that were arguably adverse to his interests. For example, he readily conceded that he had no clear sense of timing beyond the period specified. I do not find his uncertainty of timing surprising because Professor Cameron was not involved in the hiring process at all and accordingly would have no reason to keep track of the dates. Likewise, in respect of the reported conversation with Professor Phillips, he readily acknowledged that it was ambiguous and indicated that this is why he did not take issue with it.
71With respect to timing, I find that it is more probable than not that the inquiry about Dr. Nelson's age was made in January 2002. While Professor Cameron was unsure of timing, initially placing the event in the period from January to April 2002, while acknowledging in cross-examination that he had no clear sense of timing, Professor Cole testified that it occurred in January. This timing makes sense, given that Dr. Nelson's file was not complete until February 20, 2002. It is likely that once Dr. Nelson's file was complete, there would be less of a need for either the Dean or Professor Phillips to ask questions about his history, given that his file was available for review.
72However, while I accept Professor Cameron's description of what occurred, I do not find that the reported inquiries constitute direct evidence that one of the reasons Dr. Nelson was not selected was his age.
73With respect to the Dean's inquiry, considering all of the circumstances, including the content of the statement, the context, timing and source of the inquiry, I do not find that there is sufficient evidence linking the inquiry directly to the outcome of the selection process such that I can reasonably conclude that Dr. Nelson was not selected for the position because of his age.
74The question was raised in the early part of the selection process before Dr. Nelson was even interviewed. In the process that unfolded, the evidence was clear that the critical part of the selection process consisted of the performance of the candidates during their respective interviews and the Committee's subsequent evaluation of the candidates on the basis of their research and teaching. I heard no credible evidence that Dr. Nelson's age was considered in the critical part of the selection process. In this respect, I note that the author of the inquiry, the Dean, was present during the interviews and the Committee's deliberations, but the evidence of all witnesses, including the Commission's own witness, Professor Cole, was to the effect that the Dean's role was limited to supporting and facilitating the Committee's work until the vote occurred. In sum, while the Dean asked how old Dr. Nelson was, there is no evidence that the age of Dr. Nelson figured in any way in the selection process up to and including the point that the recommendation was put to faculty for a vote.
75While the Commission suggested in argument that the Dean, along with Professors Phillips and Isotalo, were part of a power dynamic and that it strained credibility that the Dean would not have had conversations with at least Professor Phillips about the competition process, I find that this is merely speculative and cannot be reasonably inferred from the evidence, particularly given the consistent evidence of all witnesses on the limited role of the Dean.
76However, I acknowledge that the Dean voted in favour of the recommendation as one member of faculty and that his vote, along with the other votes resulted in the recommendation proceeding forward for approval. However, even considering this fact, I do not find the Dean's query about Dr. Nelson's age occurring several months earlier, without more, taints the outcome of the job selection process.
77With respect to Professor Phillips' comment — "when did Neil Nelson last work with us" or words to that effect — I also do not find that this comment is tantamount to evidence of direct discrimination based on age. There was nothing about the context of the statement that even suggests that it had to do with Dr. Nelson's age. Indeed, even Professor Cameron acknowledged that, taken at its face value, it was innocuous, and I find as much.
B. CIRCUMSTANTIAL EVIDENCE OF DISCRIMINATION
78Apart from the Commission's allegations of direct evidence of discrimination, the Commission argued that when considering all of the circumstances, I should infer that the selection process was tainted by discrimination. In this respect, the Commission and/or complainant argued that Dr. Nelson was clearly qualified for the position. Further, the Commission and/or complainant relied on various aspects of the evidence including the subjective nature of the selection process and the Dean's conduct throughout, including what was alleged to be his differential treatment of the candidates and his actions in not addressing Professor Cole's complaint. I have considered all of the circumstances, and while I do have concerns regarding the reasonableness of the Dean's response to Professor Cole's allegations that are addressed below, I find there is insufficient circumstantial evidence to conclude that the outcome of the selection process was tainted by age.
79The Commission argued that Dr. Nelson met the academic qualifications for the position, an issue strongly disputed by the respondents. I accept that the respondents treated Dr. Nelson as if he met the academic qualifications for the position during the selection process. Apart from Professor Phillips' brief notation that Dr. Nelson's Ph.D. was not in business, there was no evidence that anyone in the faculty or on the Committee expressed a concern about his qualifications in the process. However, I do not find that, in this particular case, this finding alone or in conjunction with other facts leads me to conclude that the process was tainted by discrimination.
80The Commission and the complainant also raised concerns about the subjectivity of the selection process and the lack of "measurables" and formality in the process. I accept that the selection process employed was highly subjective; as Professor Isotalo testified, it was each Committee member's opinion of each candidate on the basis of the criteria. Given the subjectivity of the process, it is important to scrutinize the process carefully for the purpose of determining whether it was tainted by discrimination, but not to judge the adequacy of the hiring procedure.
81In terms of the hiring procedure, it is notable that until Dr. Nelson's submissions in argument, he did not complain about the subjectivity of the process. Dr. Nelson stated that he fully expected the interview to be conducted in the manner in which it was conducted and agreed that he had a full opportunity to present his résumé. Likewise, Professor Cole stated that there was nothing improper about the selection process until the comments were made in the Committee's deliberations. While Professor Isotalo suggested in cross-examination that more structure in the process may be beneficial, it is clear that the interview process was consistent with the Faculty's usual interview procedures.
82In reviewing the evidence about the selection process, including the documentation that does exist, I find that the evidence, while reflecting the subjectivity of the process, does not reflect that age was a factor in that process. I find that the Committee's deliberations were focused on the criteria of teaching and research. While their consideration of the candidates was subjective in nature, I am satisfied that the Committee's conclusion that Dr. Mihai was the superior candidate was based on their assessment of her teaching presentation and her research.
83All the respondents' witnesses testified Dr. Mihai gave a well-organized teaching presentation setting out where her lecture topic fit into the context of the course and that her presentation was superior to that of Dr. Nelson. Professor Cole did not attend Dr. Mihai's teaching presentation. In short, I heard no evidence contradicting the positive portrayal of Dr. Mihai's presentation.
84Further, there was both subjective and objective evidence adduced in respect of Dr. Mihai's research. The evidence reflected that Dr. Mihai was actively involved in a research program and had identified potential funding sources, whereas Dr. Nelson had no plan for funding and grants. As for objective evidence, Dr. Mihai had published recently and had two articles awaiting publication, whereas Dr. Nelson had not done any academic research for a number of years. In an academic context and particularly given the Faculty's new direction, it is not surprising that a candidate with a current research program and pending publications would be viewed more favourably than one without.
85The Commission also argued that the role of the Dean tainted the selection process by his differential consideration of candidates and his handling of Professor Cole's allegations.
86With respect to the former, there was some evidence reflecting differential treatment, although, given the nature of the evidence, I do not find that the evidence supports an inference of discrimination in respect of the selection process. The Dean testified that he went to Dr. Mihai's dinner, but not Dr. Nelson's dinner, which is differential treatment. However, the evidence reflected that the dinner was an informal part of the interview day for the candidates that any member of faculty could attend (similar to the lunch-time meeting). There was no evidence linking attendance at these informal events to the recommendation process.
87The Commission also relied on the Dean soliciting recommendations regarding Dr. Mihai, on the basis that no similar overtures were made in respect of Dr. Nelson. However, I do not find the Commission's characterization of this evidence to be entirely consistent with the evidence in the proceeding. While the Dean admitted making specific inquires regarding Dr. Mihai's pending publications, he testified he did so at the request of the selection committee. In course of such inquiries, the Dean testified that he was advised that Dr. Mihai was an enthusiastic researcher, although he was uncertain of the timing of this inquiry — whether it was before or after the recommendation for the purpose of confirming the content of her curriculum vitae. On the basis of this evidence, I do not find that any reasonable inference of discrimination can be made.
88However, the Dean did receive Professor's Cole's letter of resignation and elected to keep it confidential while the vote proceeded and faculty expressed their views on the recommended candidate. This raises the question of whether this conduct, or absence of conduct, taints the outcome of the selection process. In this respect, there is no dispute the Dean had the authority to stop the vote for good and sufficient reason.
89While I have concerns about the Dean's handling of the allegations that are addressed below, I do not find that his actions or inaction taints the outcome of the selection process. The Committee's recommendation was not tainted by consideration of age. Faculty voted on this recommendation and unanimously approved the recommendation to offer the position to Dr. Mihai. I find that the result of the selection process and the process itself up to and including the vote was untainted by considerations of age. While the Dean could have stopped the process, in light of my finding that the selection process was untainted, I do not find that the Dean's conduct taints a result that otherwise does not offend the Code.
2. Did the Dean's response to the allegations violate the Code?
90It is well established in the Tribunal's jurisprudence that included in the right to employment without discrimination in s. 5(1) is a duty not to condone or further a discriminatory act that has already occurred and a duty on an employer to investigate a complaint of discrimination. The Commission argued that both of these duties had been violated in this case.
91Given my conclusions above, I do not find that the Dean furthered or condoned a discriminatory act, since I have concluded that the decision not to hire Dr. Nelson was untainted by considerations of age. However, I conclude otherwise in respect of the Dean's response to the complaint of discrimination made by Professor Cole.
92The rationale underlying the duty to investigate a complaint of discrimination is to ensure that the rights under the Code are meaningful. As stated in Laskowska v. Marineland of Canada Ltd. (2005), 2005 HRTO 30, 53 C.H.R.R. D/262 at § 53:
It would make the protection under s. 5(1) to a discrimination-free work environment a hollow one if an employer could sit idly when a complaint of discrimination was made and not have to investigate it. If that were so, how could it determine if a discriminatory act occurred or a poisoned work environment existed? The duty to investigate is a "means" by which the employer ensures that it is achieving the Code-mandated "ends" of operating in a discrimination-free environment and providing its employees with a safe work environment.
93The jurisprudence has established that the content of the duty is to take reasonable steps to address allegations of discrimination. (See, for example, Marineland, supra, at § 59.)
94Counsel for the University and the Dean did not dispute that there was a duty to investigate, but argued that, in the circumstances of this complaint, the response of the Dean was measured and appropriate considering all of the circumstances.
95There was no dispute about what the Dean did and I accept his testimony about how he responded in its entirety.
96According to the Dean, he responded directly to Professor Cole by his letter dated March 22, 2002, set out in § 53 above. He indicated that he did not alert the other members of the Committee to Professor's Cole's resignation until the Tuesday or Thursday of the following week. At that time, he reported that she had resigned and had raised concerns about the professionalism of the Committee, but elected not to advise them of her specific allegations with respect to age bias. He stated that he kept it "confidential" because he thought Professor Cole wanted it kept confidential since she had not copied her letter to the members of the Committee.
97The Dean testified that, at some point during the following week, he asked Professor Phillips, who was then involved in three other competition processes, if the age of any candidates had been raised in any of the selection processes that were then occurring. Further, he stated that he informally mentioned during lunch with faculty that they should not bring certain things up like the prohibited grounds in the Code.
98The Dean also testified that he held on to the vote results for 10 days in the event that Professor Cole sought a meeting to review her concerns. After the 10 days, he forwarded the recommendation to the Vice-President (Academic), along with some of the documentation from the process. The recommendation was ultimately approved by the President of the University and Dr. Mihai was offered the position.
99The Dean stated that he had no recollection of any further contact with Professor Cole about this incident. He stated that he may have only seen her once after the March 19, 2002, meeting and the day that she subsequently went off on sick leave in early May. Professor Cole resigned effective August 31, 2002.
100Counsel for the University and Dean provided a number of reasons why the response summarized in § 96 to 99 above was appropriate, including that Professor Cole had ill will and animosity toward the Dean; that she had originally supported the hiring decision and was now resiling from it; that Professor Cole was raising concerns of "tenurability" and controllability that had not been raised in the meeting; that the reference to "inquiries as far back as January" was vague and obviously not to be taken seriously since Professor Cole had not raised them sooner; and that there were administrative reasons supporting the request to meet as opposed to another response since a meeting would be more conducive to considerations of the morale, collegiality and functioning of the faculty. In respect of the latter, counsel argued that to handle it as suggested by the Commission was not suited to the circumstances of the university setting, the faculty and what was then occurring in the university: namely, moving forward as an accredited graduate school.
101I have carefully considered the Dean's conduct in this case and the argument of counsel, but I am not satisfied that the Dean's response was reasonable in the circumstances. Informing counsel's argument appears to be a conclusion that there was no credibility to the allegations raised by Professor Cole. While I have reached that conclusion in this proceeding, that conclusion has come after a very lengthy hearing into the allegations. In any event, I have difficulty in accepting that this is a legitimate explanation for the Dean's response in this case because as the Dean acknowledged, he had "no clue" about some of the allegations made by Professor Cole in her letter of resignation, namely that there had been inquiries made about this candidate's age as far back as January. While I agree with counsel for the University and the Dean that this allegation was vague, I find its vagueness should have resulted in a different response because the result of ignoring the allegation could have been a hiring tainted by discrimination.
102While I appreciate that the Dean sent a response to Professor Cole, the tone of the letter was dismissive of the allegations. Moreover, the Dean's informal inquiry and comments to staff about the Code did not constitute a reasonable investigation into the allegations. In my view, the Dean should have responded in a neutral fashion to Professor Cole and should have attempted to meet with or otherwise communicate to Professor Cole for the purpose of outlining what options were available to her.
103In considering the Dean's response, I note that he did not follow the University's own human rights policy and accordingly, I do not accept the argument that the Dean responded in the way he did because of the unique attributes of a university environment. In this respect, in response to a complaint of discrimination raised informally, the University's policy provides in para. 3.3 that a supervisor, staff or faculty member shall maintain confidentiality, "encourage the complainant to talk with the Harassment and Discrimination Officer" and "notify the Officer immediately of the nature of the complaint without naming the complainant and alleged respondent and to consult with the Officer about any necessary action". The Dean did not comply with any of these steps or take other analogous steps that were responsive to the University's obligations under the Code.
104While the Dean was aware of the University's human rights policy, his evidence was confusing as to whether or not he believed it applied in the situation. His confusion regarding the application of the policy is perhaps not surprising, given that the Dean stated that he had not received any human rights training at the time or even subsequently up to the date he testified.
105In reaching these conclusions about the adequacy of the Dean's response, I am not suggesting that the Dean intended to violate the Code. However, intention is not relevant to a finding of a breach of the Code and the Dean's response, while perhaps well intentioned, fell short of being a reasonable response to the allegations of discrimination raised by Professor Cole. As such, his actions constitute a violation of the Code.
106Further, I find that the University has failed to meet its corporate responsibility under the Code. While the University has a policy, it is clear that the University has not ensured that the Dean was trained in the policy or otherwise trained on how to respond to allegations of discrimination in a hiring situation. The University's failure to do so contributed to the failure to take reasonable steps to address the allegations of discrimination.
3. Did the job requirements have an adverse impact on Dr. Nelson based on age?
107The Commission also argued that the job requirement of a current/recent program of research had an adverse impact on Dr. Nelson because of his age contrary to s. 11 of the Code. In particular, the Commission relied on the evidence of Professor Isotalo who testified that the job vacancies at the University tended to attract recent Ph.D. graduates who generally are under 40 years of age and have an active research program, given that they have recently completed their Ph.D.. As a result, Professor Isotalo suggested that younger candidates with recent Ph.D.s would be at an advantage in a job competition. The Commission relied on this evidence, suggesting that older applicants, such as the complainant, having been away from the university environment for 20 years, would be at a disadvantage. Further, the Commission argued that the pattern of hirings in recent years supported its claim since there were no hirings of faculty over 55 years of age.
108I am not satisfied that the Commission has established a prima facie case of discrimination contrary to s. 11. While it was apparent from the evidence that the Committee assessed candidates on the basis of their research background and specifically viewed current/recent research favourably, I am not satisfied that Dr. Nelson did not meet this "requirement" because of his age. The Commission's entire argument hinges primarily on the opinion evidence of one witness, Professor Isotalo. However, both Professor Isotalo and the other respondent witnesses offered other opinions on the relationship between age and research that undermine the claim under s. 11.
109Professor Isotalo himself qualified his opinion on the relationship between age and a recent or current research program suggesting that it would depend on what part of the private sector a candidate worked in and whether they kept up with their research. In addition, in contrast to Professor Isotalo's opinion, all of the other respondent witnesses disagreed that age and research were negatively correlated and pointed to the fact that the Faculty had offered positions in 2002 and 2003 to candidates who obtained their Ph.D.s around the same time as Dr. Nelson, but who also had recent or current research programs. In the latter cases, the candidates had declined the offers which is notable since it may suggest that the pattern of who accepts positions may not be representative of their qualifications, but instead there may be other factors at play.
110Based on the foregoing evidence, while Dr. Nelson was rejected at least in part because of his research, I do not find that on balance, there is sufficient evidence establishing that age bears the relationship to research which underpins the Commission's argument. Accordingly, I do not find that the Commission has established a breach of s. 11 of the Code.
CONCLUSION
111The respondents did not discriminate against Dr. Nelson in the selection process including in respect of the decision to recommend a different candidate for the assistant professor position in the Faculty. However, the Dean and University failed to take reasonable steps to investigate the allegations underlying the complaint contrary to s. 5(1) and 9 of the Code.
CONTINUATION OF HEARING
112This hearing was bifurcated. The parties are encouraged to have discussions with a view to arriving at a settlement without further adjudication. In the event that the parties are unable to agree on remedy, the hearing will be reconvened by teleconference call to determine how to proceed and whether any outstanding remedial issue should be dealt with by way of teleconference, written or oral hearing.