Barnet Kiyaga v. City of Windsor and Vincenza Mihalo, 2010 HRTO 1516

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Barnet Kiyaga Applicant

• and-

City of Windsor and Vincenza Mihalo Respondents

DECISION

Adjudicator: Laverne Jacobs Date: July 14, 2010 Citation: 2010 HRTO 1516 Indexed as: Kiyaga v. Windsor (City)

APPEARANCES BY

Barnet Kiyaga, Applicant ) Self-represented City of Windsor and Vincenza Mihalo, Respondents ) Patrick Brode, Counsel

1This is an Application under s. 53(5) of the Ontario Human Rights Code R.S.O. 1990 c. H. 19, as amended (the “Code”). The complaint underlying this Application was filed at the Ontario Human Rights Commission (the "Commission") on May 2, 2005. The applicant, Barnet Kiyaga, filed this Application with the Human Rights Tribunal of Ontario (the "Tribunal") on January 7, 2009.

2The applicant applied for a position of Provincial Offences Officer for the City of Windsor (the “City”) and alleged he was not hired due to discrimination on the grounds of colour, ethnic origin, place of origin and race. The applicant was self-represented. At the hearing, he did not call any witnesses but gave sworn testimony on his own behalf and was cross-examined.

3The respondents are the City and Vincenza Mihalo, who held the position of Executive Director of Human Resources for the City of Windsor at the relevant time. The respondents deny all allegations of discrimination under the Code. At the hearing, the respondents called two witnesses: Sandra Taziker and Marisa Connelly.

SUMMARY OF EVIDENCE AND FINDINGS

The Applicant’s Evidence

4The applicant testified that he applied for the position of Provincial Offences Officer on three occasions and was unsuccessful each time. He stated that the current Application deals with the third application which was made in 2005. As with his previous applications, the applicant was called to write a test after submitting his resume. He wrote the test on April 15, 2005 and received a grade of 29/50 or 58% on the test. He was not invited to continue to the next step of the recruitment process, which would have been an interview.

5The grade the applicant received as well as information as to the required passing grade were indicated on a black-and-white photocopy of his marked test. This document records the passing grade as 60%. In cross-examination, the applicant stated he could not remember if he had received study materials from the City or if he had gone through any study materials in preparation for the exam. He also stated that he came to Canada in 1986.

6The applicant argued that the City tampered with the answers he wrote to the April 15, 2005 test and did so because of his colour, race, ethnic origin and/or place of origin. He further alleged that the City was able to determine his colour, ethnic origin, place of origin and race from his name and the information on his curriculum vitae. He believed the City modified his test results so that he obtained a failing grade after it established his race and ethnic origin. The respondents denied all allegations.

7As for the manner in which the City allegedly modified the applicant’s test results, he referred to the black and white photocopy of the marked results on his test. The cover page of the test indicates that it is for the Provincial Offences Officer-Pool (Temp. On-Call). Below this, the cover page has a place for an applicant’s name, telephone number and the date on which the test is being written. This is followed by a set of five directions and informational points. Included among these points is that the passing grade for the test 60%. On the first page after the cover page, the test is entitled "Provincial Offences Officer-Test, Version 1, Corporate Services Licensing and Enforcement Department".

8The test comprises 30 true or false questions for which the applicant is to circle either true or false. This is followed by a 20 spelling questions in which the applicant is to identify which words are misspelled from a list of 20 words and provide the correct spelling of the misspelled word on a line beside it. At issue in this case are the true and false questions. The photocopy shows that for 13 of the questions, both true and false are circled with an “x” beside either true or false. The applicant argued that, in the cases where there are double circles, the City circled a second answer while marking the test and then scored him with zero for the question because both true and false were selected. He submitted that if marked properly, the test would have resulted in a passing grade and would have allowed him to move to the next stage of the recruitment process, which was an interview.

9The applicant stated that he had heard from friends who worked for the City that the City was known not to hire visible minorities. He would not provide the identity of these friends when asked on cross-examination.

10The applicant relied on two documents. The first is a record of contact which purportedly gives the results of an interview with a racialized employee at the City who held the position of provincial offences officer in or around 2005. The applicant stated that this document came from the Commission during its investigation of his file. Counsel for the respondents objected to the Tribunal considering this document on the basis that it was hearsay and its contents could not be verified. I am of the opinion that this document is of little relevance to the main issue of whether the City discriminated against this applicant. The document reflects the notes of an unidentified third party’s conversation with the person on whose comments the applicant seeks to rely. The markings on the document do not indicate where it came from. Consequently, I have accorded no weight to it in my analysis.

11The second document submitted is a letter of June 20, 2005 addressed to the applicant from the Commission’s mediation office. All that it indicates is that the applicant should have received with this letter an answer to his complaint from the respondents and that he is required to reply by July 15, 2005. The answer document was neither attached nor independently submitted. I find that this document bears no relevance to the main issue in this case and have attributed no weight to it in my analysis.

The Respondents’ Evidence

Ms. Taziker

12Ms. Taziker testified that she is the Manager of Compliance and Parking Enforcement in the Licensing and Enforcement Department of the City. At the time of the hearing, she had held this position for just over six years. Ms. Taziker stated that she oversees the entire parking enforcement operation, including supervising all provincial offences officers. She testified that full-time provincial offences officers are hired very rarely, only when one retires or transfers. She stated that it has been 16 years since a full time provincial offences officer was hired.

13The 2005 request for applicants arose to replenish the pool of temporary provincial offences officers. She stated that this temporary pool is used to bring in individuals to replace those who are off temporarily for vacations, etc. With respect to how her staff was involved in the 2005 hiring process, Ms. Taziker indicated that her department sent a requisition to human resources indicating how many officers they were able to hire. She stated that human resources handles most of the recruitment but that her department updates and amends the test questions and provides human resources with the correct answers to the tests. She stated that her department also reviews the set of study materials that human resources has on file to see if it needs to be updated and will update it as necessary. Ms. Taziker stated that she had compared the answers with the applicant’s test responses and that the individual who marked the test had not made any mistakes.

14She testified that twenty to forty individuals usually come for the test at any given test date. Once the test is written, the Human Resources Department informs her department of how many individuals have passed the test. She testified that even applicants who scored 60% would not be guaranteed an interview. Twenty-six individuals took the April 15, 2005 test written by the applicant and of that group, sixteen were interviewed and five were ultimately hired. Of the five hired, two were visible minorities.

Ms. Connelly

15Ms. Marisa Connelly is Recruitment Coordinator for the Human Resources Department of the City. She was directly involved in the hiring of provincial offences officers. The individual respondent, Ms. Mihalo, was not directly involved in the process. Ms. Connelly testified that the tests of April 15, 2005 were the standard test for the position and that a grade of 60% was required to pass. She testified that the employee who marked the exam marked in red pen. When true or false questions were incorrect, this employee “took the liberty” of going one step further and circling the correct answer. This employee also added an ‘x’ beside the answer. The employee was not called to testify. However, two additional original tests that were marked in the same manner from the same date were produced by the respondents as well as the answers to the test.

16Ms. Connelly stated that her department received information that five provincial offences officers would be hired. She testified that her department’s practice is to call all applicants and ask them to pick up a set of study materials after a particular date. The test is then scheduled for one week after that date. The rationale was to allow all applicants the same amount of time to review the study materials. She testified that this standard practice was followed in relation to the 2005 recruitment in question.

17Ms. Connelly testified that six individuals did not achieve 60% on the test. Ms. Connelly confirmed that sixteen applicants were interviewed and five applicants were hired.

ANALYSIS

18In Ontario (Human Rights Commission) v. Simpsons Sears Ltd. 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 (“O’Malley”), a unanimous Supreme Court of Canada clarified the burden of proof in discrimination cases. The onus is on the applicant to show a prima facie case of discrimination which 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.” See O’Malley at para. 28. Once a prima facie case has been set out, the burden shifts to the respondent to provide a reasonable explanation for the otherwise discriminatory behaviour. If the respondent is successful in providing a reasonable explanation the ultimate burden shifts back to the applicant to demonstrate that the explanation is pretexual and that one factor for the impugned action was a protected ground. (See O’Malley, ibid.; Jagit v. IN TECH Risk Management, 2009 HRTO 770.

19The first step in the analysis is therefore to see whether the applicant in this case has established a prima facie case of discrimination. In cases that deal with discrimination in hiring, an applicant will establish a prima facie case by demonstrating the following three items:

a) that the applicant was qualified for the particular employment;

b) that the applicant was not hired; and

c) that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position (see Shakes v. Rex Pak Ltd. (1981), 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001 at para 8919; Abouchar v. Metropolitan Toronto School Board (1998), 31 C.H.R.R. D/4111996] O.H.R.B.I.D. No. 21; Offierski (1980), 1980 CanLII 3898 (ON HRT), 1 C.H.R.R. D/33 at para. 269; Basi v. Canadian National Railway Co., (1988), 1988 CanLII 108 (CHRT), 9 C.H.R.R. D/5029 (C.H.R.T.)).

20In my opinion, having considered the evidence and arguments, I am not convinced that the applicant has established a prima facie case of discrimination. My reasons are as follows.

DID THE APPLICANT MEET THE QUALIFYING CRITERIA FOR THE POSITION SOUGHT?

21As noted above, Ms. Taziker testified that she was involved in creating the examination and its answers. She stated that she had reviewed the test responses and that the individual who marked the test had not made any mistakes in doing so. This version of what happened was corroborated and furthered by Ms. Connelly from the human resources department. She stated that the employee who marked the exam circled the incorrect answer in the true/false section and placed an ‘x’ beside the answer. The testimony of both of these witnesses is further supported by two additional tests which show the same correction pattern. Although I would have preferred to have heard testimony from the individual who actually marked the tests, I am satisfied that the two additional tests indicate a general marking pattern. All three tests were marked in red pen. If the answer was incorrect, the correct answer to the true false question was circled by the test marker in red, and the test marker also placed an ‘x’ beside the incorrect answer.

22Moreover, having reviewed the applicant’s exam against the answer guide, it is clear that his score did not meet 60%. He received 17/30 on the true/false section and 12/20 on the spelling section for a total of 29/50 or 58%. This is as noted by the employee who marked the exam. If one follows the methodology of marking by the employee who graded the exam, the same result obtains. I have therefore not found error or “tampering”, as the applicant alleges, in the marking of his test.

23The applicant has not established on a balance of probabilities that he was qualified for the position. As the applicant has not established a prima facie case of discrimination, this Application cannot succeed.

24The Application is dismissed.