HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Clara Azeez

Applicant

-and-

Her Majesty the Queen in right of Ontario

as represented by the Ministry of the Attorney General

and David Medeiros

Respondents

DECISION

Adjudicator: Mark Hart

Date: September 22, 2010

Citation: 2010 HRTO 1919

Indexed as : Azeez v. Ontario (Attorney General)

APPEARANCES BY

Clara Azeez, Applicant ) Gary Bennett, Counsel

Her Majesty the Queen in right of Ontario ) Omar Shahab, Counsel

as represented by the Ministry of the )

Attorney General and David Medeiros, )

Respondents )

[1] These are Applications made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the Code) dated February 25, 2009. The underlying complaints were filed with the Ontario Human Rights Commission (the “Commission”) on May 2, 2007 and December 14, 2007.

[2] The applicant alleges that she experienced discrimination because of her race and colour in respect of her employment contrary to sections 5 and 9 of the Code, relating to a competition for a Group Leader position that was held in April 2007. The applicant also alleges that she experienced reprisal contrary to sections 8 and 9 of the Code arising out of certain comments alleged to have been made by her manager on November 2, 2007.

Preliminary Matters

[4] At the commencement of the hearing, I addressed matters relating to a settlement that had been concluded in a parallel grievance process and the proper scope of the allegations before me in this proceeding. After hearing submissions from the parties, I issued the following oral ruling:

1. At the commencement of the hearing, I raised issues regarding certain minutes of settlement that had been entered into by the parties in relation to a grievance arbitration hearing and regarding the proper scope of the Applications before me.

2. With regard to the minutes of settlement, all parties are in agreement that this settlement and the release contained therein expressly were not intended by the parties to preclude the applicant from continuing with this proceeding. Accordingly, I am satisfied that it is not an abuse of process for this matter to proceed.

3. With regard to the proper scope of the Applications, the applicant wishes to address in this proceeding two subsequent competitions for the group leader position, one of which occurred in November 2007 as a direct result of the settlement of her grievance and a second which occurred sometime in 2008.

4. The Tribunal’s jurisdiction in respect of transition applications is set out in s. 53 of the Code, and is restricted to the subject-matter of the complaint as filed with the Commission. In this case, the applicant filed a complaint with the Commission in May 2007 which raised an allegation of racial discrimination in relation to a competition for a group leader position held in April 2007. No amendment of that complaint to encompass the two later competitions was sought or obtained from the Commission prior to transferring the matter to this Tribunal as a transition application.

5. The applicant relies upon certain language set out in the reply filed by her counsel with the Commission in response to the respondents’ answer to her complaint. This document makes reference to the applicant experiencing a glass ceiling at her workplace and that she has been subjected to a poisoned work environment in relation to being overlooked for supervisory positions because of her race and colour. On this basis, applicant’s counsel submits that the discrimination alleged is ongoing, and properly should encompass the latter two competitions.

6. While there is no doubt that this language appears in the reply document, it is not sufficient to make this broad allegation part of the subject-matter of the complaint so as to come within my jurisdiction. Further, it also is not sufficient to make a broad allegation of this nature, without being supported by specific acts or omissions by the respondent which are alleged to form the basis for the systemic discrimination alleged. I appreciate that the reply document was prepared and filed prior even to the November 2007 competition, and so this explains why there is no reference to the two later competitions in this document. However, I have no evidence before me to indicate that a specific allegation of racial discrimination in relation to these later two competitions was raised before the Commission, that any amendment was sought to include these later two competitions in the complaint, or that the respondents were put on notice that these two later competitions were at issue. In these circumstances, I find that I do not have jurisdiction to consider the November 2007 or the 2008 group leader competitions in the context of this proceeding.

7. As a result, the only issues before me relate to the applicant’s allegation of racial discrimination in relation to the April 2007 group leader job competition and her allegation of reprisal in relation to her discussion with Mr. Medeiros in November 2007.

The Group Leader Job Competition in April 2007

[5] The applicant self-identifies as an African-Canadian, Black woman. She started working with the Ministry as a temporary worker in the 1970’s. She became a permanent full-time employee with the Ministry on March 7, 1988 as an Accounts Representative in the Toronto Region, and began working in with the Brampton Family Court on October 23, 1996 as a Clerk. The applicant appears to have performed her job duties well, and was involved in training other employees and with projects to clear the court backlog. There appears to be no dispute that, at the time of the competition in April 2007, the applicant had the longest seniority among staff at the Brampton court. For a certain period of time, the applicant also had performed Group Leader duties on an acting or temporary basis.

[6] At the end of February 2007, the Group Leader for the Brampton Family Court got another job and resigned her position. A temporary Group Leader was brought in from the Court at 311 Jarvis Street in Toronto. This individual was identified by the applicant as a Black woman. The applicant appears to have been involved to some degree in providing training to the temporary Group Leader on tasks performed at the Brampton Family Court office.

[7] A competition for a permanent Group Leader for the Brampton Family Court was held in April 2007. At the same time, the competition also involved hiring two permanent Group Leaders for the Brampton Criminal Court. Applications for the Group Leader positions were received and evaluated for the purpose of selecting those candidates who would be granted an interview. The applicant was one of the candidates who was granted an interview. In accordance with Ministry practice, the evaluation scores from the initial candidate screening did not form part of the interview evaluation process.

[8] Candidates were interviewed in the latter part of April 2007. The interviews were conducted by a panel of three management representatives using a standard set of six interview questions. With each question, the interview panel had a set of criteria that they used to evaluate the candidates. In addition, each candidate was asked to complete and present a written test that involved describing how they would train a new employee.

[9] Candidates were evaluated solely on the basis of how they performed in the interview. The marks accorded to the candidates by each of the members of the interview panel were tabulated in order to determine the successful candidate. Points were awarded to each candidate separately by each of the interview panel members, and the evidence before me was that these marks were recorded while the interview was ongoing and were not discussed among the panel members prior to being awarded to each candidate.

[10] The successful candidate was a temporary employee at the Brampton Family Court who had worked there for only 8 months, although she previously had worked as an Office Manager for a doctor’s office for some 12 years. This candidate received an overall total score of 510 marks from the interview. This candidate was identified in this proceeding as a White woman. In contrast, the applicant received an overall total score from the interview of 290 marks, placing her 8^th among the 9 candidates interviewed.

The Interview Process

[11] As stated above, the interview consisted of 6 standard questions as well as a written test. Each candidate also was given a score from 1 to 5 on the basis of their communication skills as displayed in the interview.

[12] At the hearing in this matter, I heard from one of the interview panel members, who reviewed the answers given at the interview by the successful candidate and by the applicant and provided evidence regarding the explanation for the differences in the scores given to these two candidates. I propose to review each of the interview questions and provide a brief summary of the explanation provided for the difference in scores.

[13] The first question asked was as follows:

In this position you will be required to deal effectively and tactfully with various stakeholders including the judiciary, police, lawyers, agencies and staff.

Tell us about a time when you were involved in a conflict at work? What actions did you take to resolve the conflict? What was the outcome? What would you have done differently?

[14] There were 30 points awarded for this question on the basis of six criteria each ranked on a scale of 1 to 5. The criteria used were as follows:

Identified an appropriate situation, was open

Clearly explained the conflict

Listened to both sides, evaluated fairly to get the right solution

Maintained professionalism, understood behaviour that was adding to problem

Had a logical systematic approach to resolve

Demonstrated some learning from the experience

[16] In the applicant’s response to this question, she described a situation involving a student working in the office who had not completed some filing properly. At the time of the incident, the applicant openly made a comment that kids today needed to be “kicked” to get their work done properly. She stated that this turned out to be a big deal for the office and the office manager, and indicated that she almost lost her job. She stated that now she had learned not to make any comments to hurt anyone’s feelings.

[17] The panellist testified that she didn’t feel that the situation identified by the applicant was strong. The question asked for a conflict, and the panellist felt that the response was more of a one-sided conflict. It didn’t describe an individual listening to two sides, where the student would have responded, so it was a one-sided situation. The panellist also didn’t think that it was a professional situation or example. The panellist states that it didn’t seem to her that the question being asked had been answered. It wasn’t two people having a difference of opinion; it was one person’s point of view. So the panellist felt that the answer was weak. This panellist awarded Ms. Azeez 18 points out of 30, while the other two panellists awarded her 15 and 14 points (this latter panellist actually awarded the applicant 11 points, but gave her a zero on three of the criteria whereas 1 point should have been awarded at the bottom of the scale).

[18] The second question asked was as follows:

The courts are often having to deal with new legislative changes that impact on court procedures and processes.

Tell us about a past work experience when you had to use your analytical skills to address a situation or a change in procedure at work and then had to train others on these changes. What did you do? What was the outcome? What did you learn from the experience?

[19] There were 25 points awarded for this question on the basis of five criteria each ranked on a scale of 1 to 5. The criteria used were as follows:

Identified an appropriate situation

Clearly explained the challenges e.g. deadlines, new court forms, employee’s attitude

Demonstrated a systematic approach to planning, organizing and training others

Executed according to plan with good results; looked for feedback, did follow-up

Recognized how to improve next time

[20] The successful candidate described an experience from her time as an Office Manager in a doctor’s office, where she was required to deal with a legislative change instituted by the Ministry of Health. The panellist testified that although this example came from a different area, it was still an appropriate situation. The successful candidate clearly explained the challenges she had and deadlines pertaining to the forms and procedures, not only for her position but also for the staff involved. As a result, it was felt that she was describing the situation more from a leadership role. The successful candidate had plans in place, she had written out and used her plans, and she followed up with the plans that she put in place and requested feedback as well. She indicated how it was important to get feedback and support from staff, and she indicated that she had re-written some of the procedures that she had put in place as a result. She said that this experience would help her with the next situation she had to deal with, and she was very comfortable with the situation and the changes they had put in place. The panellist awarded the successful candidate 25 out of 25 points, while the other two panellists awarded her 24 and 23 points.

[21] The applicant’s response dealt with a situation where years ago, out of province matters were done by one person, which eventually created problems because there was no-one to backfill. She had indicated how she took the manual home to study and made her own notes, and had other staff members use her notes. The panellist states that this didn’t really explain to her the challenges that the candidate would have in great detail, and it didn’t explain any deadlines or new forms that were used or implemented. In addition, although the applicant explained the training of others by giving her notes to other staff, she could have gotten additional marks if she had indicated that she had explained the procedures to others. The applicant’s answer also did not address that she had received feedback from other staff. With feedback, there could have been upgrades to her notes or manual and she would have known if her notes were clear or useful to others, or just to her. Finally, the applicant did not explain the importance of what she could have done better for next time. The panellist awarded the applicant 15 out of 25 points for this question, while the other two panellists awarded her 18 and 15 points.

[22] The third question asked was as follows:

In this position you will often have to work under pressure and with tight deadlines.

Tell us about a stressful work-related situation you have had in the past. What made it stressful? How did you deal with the stress? What were the results? What would you do if faced with a similar situation?

[23] There were 15 points awarded for this question on the basis of three criteria each ranked on a scale of 1 to 5. The criteria used were as follows:

Identified an appropriate situation

Demonstrates a calm purposeful approach to deal with stress

Demonstrated learning, realized ability to cope with stress

[24] The successful candidate identified a situation involving an overload of work at the court and how to deal with it, which was an appropriate situation. She discussed changes in the office environment and duties, and individual requests from judges that may require different styles in response. She discussed that putting training sessions in place were vital to the situation. She discussed her ability to cope with the stress, including remaining calm and being able to complete the task at hand. She explained that the results achieved were satisfactory to her, and that she would do the same thing again with the next situation. This panellist awarded the successful candidate 15 out of 15 points, while the other panellists awarded 15 and 13 points.

[25] The applicant described her everyday work, which always required meeting deadlines, and how she dealt with work priorities, for example by keeping her own log for ex parte motions and by using a time agenda book that she had. She also said that she was able to multi-task. The panellist states that the actual question had to do with pressures, deadlines and stressful situations, whereas the applicant’s answer described her day to day work. The applicant didn’t fully describe the stresses of various aspects of her work, and didn’t indicate what her coping mechanisms would have been. The panellist felt that the answer could have been elaborated a little bit more in terms of how she was stressed by her work. This panellist awarded the applicant 9 out of 15 points, while the other panellists awarded her 12 and 11 points.

[26] The fourth question asked was as follows:

The Group Leader will have to demonstrate good leadership skills in this position to successfully guide and direct staff to work as part of a team.

Please give us an example from your past experience where you have demonstrated your leadership skills. Tell us why you were successful? What did you learn from this experience?

[27] There were 30 points awarded for this question on the basis of six criteria each ranked on a scale of 1 to 5. The criteria used were as follows:

Clearly has had experience leading

Understood the use of good communication skills

Understood how to motivate employees

Treated everyone fairly, honesty important

Always willing to listen to others

Like the challenge of leading people, feel comfortable in the role

[28] The successful candidate clearly explained and gave examples demonstrating good leadership skills, given her past experience of being an Office Manager with part-time staff and indicating the leadership skills and roles she had. Her leadership responsibilities included interviewing potential employees and taking the lead on them coming in to their role. She stated that she showed them respect, was helpful to staff with any situations or problems they had, and communicated that she was available to assist them. The panellist stated that the successful candidate demonstrated good communication skills in this answer. The successful candidate stated that she treated everyone fairly, and made them feel important. She would inform the manager if there were performance issues. She explained the proper tone that she would take with staff, and that she always listened to them to hear their stories. She said that she did not have a problem and was not stressed as a leader, and was comfortable in that role. The panellist expressed that the successful candidate expressed how she dealt with the challenges of being in a leadership role, and understood how to deal with and approach people. The panellist gave the successful candidate 30 out of 30 points, while the other two panellists awarded her 29 and 28 points.

[29] The applicant explained that she performed the group leader job while her former group leader was away on maternity leave. She indicated that she was fair to everyone, but the panellist states that the applicant just stated that and didn’t go into details. The applicant ensured that supplies were available to staff, noted when someone was off sick and checked their desks for ex parte motions, and said that she never put herself before staff. In making these statements, the panellist noted that the applicant didn’t go into depth by stating why she would do certain things. The panellist stated that the applicant’s answer would have been improved if she had given examples of what she was doing and the purpose. For example, she mentioned that if someone was off sick, she would check their desk, but did not talk about how she would divide up work or assess whether it could wait. She talked about not putting herself before staff, but didn’t elaborate on what she meant by that. The panellist stated that if the applicant had provided more details in her answer, it would have supported a higher mark. The applicant didn’t really explain the challenges of being in a leadership role, or how she would have communicated to the staff or provided motivation for staff. The panellist gave the applicant a score of 15 out of 30, while the other two panellists gave her scores of 21 and 20.

[30] The fifth question asked was as follows:

FRANK is a stats program that we use for the Ontario Court of Justice court system.

What experience have you had using this or similar court systems? How have you functioned when the system is down? What have you learned from this kind of experience?

[31] There were 30 points awarded for this question on the basis of six criteria each ranked on a scale of 1 to 5. The criteria used were as follows:

Clearly identified that they had experience with mainframes

Identified they have had experience with computer failure / problems

Demonstrated systematic approach to deal with computer failures

Executed a solution according to plan

Always looking for better backup plans

Demonstrated some learning from the experience

[32] The successful candidate stated that she used FRANK every day for answering phone questions and assisting clients at the counter. If there was a failure with the system, she would provide the individual with what information was available and provide any additional information the next day. She recognized the importance of meeting important timelines, and ensuring that she had enough printed off the system for that day. She emphasized the importance of understanding that she could complete some jobs without entering the data into the system. She said that she would check with IT to see how long the system was going to be down. If she was able to find out more information about the system failure, this would assist her in determining what she would have to do for the clients and to see what solutions she could come up with for the counter. She stated that she would work on other files while the system was down, that there were other ways to do the work, and she would catch up in the long run.

[33] The panellist stated that the successful candidate demonstrated the experience of having an actual failure of the system, how to work around it and how to accomplish the job and assist clients, for example by giving the court date and then going back later to enter this information into the system. She talked about doing things manually in order to assist the clientele, and executing a plan to accomplish this. The panellist gave the successful candidate 30 marks out of 30, and the other two panellists awarded her 26 and 27 points.

[35] The sixth question asked was a very general, open-ended question as follows:

Can you tell us why you have applied for this position and why you think you are the best candidate?

[36] This question was marked out of 15 points. There was a large list of potential responses that the interview panel was looking for.

[37] The panellist states that it was the successful candidate’s passion that came across. If she didn’t have an answer, she was honest about it and explained that she would find the answer. She said that she would put 100% of her effort into the position, and that she was comfortable dealing with judges and the public. She said that when needed, she would be able to stand up to employees or look to her supervisor for help. She explained that she likes to work with people and assist people, and is someone who enjoys challenges and dealing with stressful situations. The panellist states that she knows that the successful candidate went into much more depth, but she can’t recall the wording from her interview notes. The panellist awarded the successful candidate 13 out of 15 points, and the other panellists awarded 10 and 10 points.

[38] The applicant identified her experience, that she had worked in all different duties, had trained other people, and was one of the most qualified and knowledgeable in the office. She stated that she learned from her own mistakes, and knew how to deal with angry people. Her approach was to do the work first, and complain later. The panellist states that the applicant’s answer was very brief, and it was the brevity of the response that caused her to mark her at a lower level. The panellist stated that she didn’t feel that the applicant’s response was as strong as it could have been. The panellist awarded the applicant a score of 8 out of 15 points, while the other panellists awarded 6 and 8 points.

[39] At the conclusion of the interview, the panellists awarded a general score out of 5 points for communication skills. The panellist states that the successful candidate was very clear, concise and confident, had a very professional demeanour, was very knowledgeable when speaking, and obviously was very prepared for the interview. The panellist states that she found that the applicant wasn’t as concise, that her demeanour, while professional, wasn’t the same as the successful candidate’s, and she wasn’t as prepared. The successful candidate was awarded 5, 5 and 5 points for communication skills by the three panellists, whereas the applicant was awarded 4, 2 and 2 points.

[40] Finally, the interview included the preparation and presentation of a written assignment that involved describing how the candidate would train a new employee. The actual written assignments completed by the successful candidate and by the applicant were introduced into evidence.

[41] The written assignment completed by the successful candidate indicates that she prepared herself before the actual new employee was present before her. She set out things she had to do for the employee and the things that she would have to arrange. She described what she would cover in her initial meeting with the new employee, including introducing herself, giving background information, introducing the new employee to others, showing where the new employee could place belongings, showing the new employee around the office and other important areas, providing the new employee with information and documents, and making the new employee aware of the ability to write down questions and ask questions. The successful candidate went into the next day after that, again making necessary arrangements and explaining the things that needed to be done. She referenced other training by video and making arrangements for training at the counter. At the end of day two, she said she would check in to find out how things were going and see if there were any other questions that needed to be answered, and would leave the new employee with individual training.

[42] The successful candidate gave detail as to what she wanted to assist the staff member to do. She prepared herself prior to the staff member coming to the building. She did an overview of what was required, not only for the position but to get into the building, including security passes, orientation and making arrangements for specific areas the new employee had to go to. So the panellist was impressed that the successful candidate was thinking about that and preparing herself before the new employee even got there. The panellist also noted that the successful candidate would be following up with the new employee, and be able to answer any questions that the individual may have. The panellist also stated that in presenting this assignment to the panel, the successful candidate was very comfortable and very professional in her delivery. The panellist awarded the successful candidate 30 out of 30 points for this assignment, and the other two panellists also awarded 30 and 30 points.

[43] The applicant’s presentation indicated that she would introduce herself and would show the new employee around, and would provide the new employee with a training manual to become familiar with it and assign this individual work duties. The applicant indicated that she would observe the new employee over the next two weeks, and tell this individual not to hesitate to come to her if needed. After two weeks of observation, the trainee would be assigned a password.

[44] The panellist expressed concern that the applicant didn’t prepare herself prior to the trainee arriving to the position and didn’t plan for the individual. The panellist also expressed concern that the applicant didn’t indicate that she would touch base with the new employee, but rather asked this individual to go to her. The panellist states that the applicant’s presentation was very brief, and she just read the assignment as it was outlined. The panellist states that to score more marks, the applicant could have given the panel more detail about orientation, indicated that assistance would be provided not only through the training manual but also other manuals in office, or provided more assistance directly herself or indicated the staff person being shadowed by the new employee was responsible for providing assistance. The panellist awarded the applicant 12 marks out of 30, while the other two panellists awarded 11 and 10 marks.

Evidence re Reprisal Allegation

[45] The personal respondent sent a letter to the applicant dated November 1, 2007 stating that he was writing in follow up to the WDHP complaint the applicant had filed in late June 2007. WDHP stands for Workplace Discrimination and Harassment Prevention policy, which is the Ontario government’s internal anti-discrimination policy and which provides for a complaint investigation process. The personal respondent’s letter stated that he would like to meet with the applicant to inform her of the outcome of the investigation, and scheduled a meeting for the following Monday, November 5, 2007.

[46] On November 2, 2007, the applicant spoke with the personal respondent’s secretary and said that she did not want to meet with him without her lawyer being present. The personal respondent subsequently spoke directly with the applicant by phone, at which time the applicant stated that she had not filed a WDHP complaint. It was clear to me from the evidence that the applicant misunderstood that the personal respondent wanted to meet with her to discuss the external complaint she had filed with the Ontario Human Rights Commission and at the time she did not recall having filed an internal WDHP complaint.

[47] From the documents introduced into evidence before me, it is clear that the applicant filed an internal WDHP complaint on June 25, 2007 in which she raised largely the same allegation about the Group Leader competition as she has raised in this proceeding. Some confusion may have been caused by the fact that there appear to have been a group of complaints from a number of staff members that were raised and investigated at about the same time.

[48] In any event, the personal respondent states that after hearing that the applicant did not believe she had filed a WDHP complaint, he wanted to make sure that she had done so and asked if he could meet with her late in the afternoon on November 2, 2007 to clarify the letter he had sent to her. The personal respondent and the applicant did meet that afternoon, and a lengthy discussion ensued. While the personal respondent and the applicant disagree about many aspects of what was discussed in this meeting, I will focus only on the applicant’s evidence as it relates to her allegation of reprisal.

[49] In her reprisal complaint as filed with the Commission, the applicant alleged that during the November 2, 2007 meeting, the personal respondent “asked me to withdraw my human rights complaint” and “tried to scare and intimidate me into dropping or withdrawing my human rights complaint”.

[50] These allegations do not accord with the applicant’s evidence as it came out at the hearing. There was no evidence that the personal respondent asked the applicant to withdraw her human rights complaint, nor was there any evidence that he tried to scare or intimidate the applicant into doing so. At its highest, the applicant’s evidence indicates that she felt some pressure to agree to meet with the personal respondent as her manager, and that the personal respondent said, “As a Christian, you are supposed to forgive and forget”. The applicant states that in response, she said that it was too late and that she had already filed her complaint. The personal respondent denies making this statement.

ANALYSIS AND DECISION

The Group Leader Competition

[51] As in many cases of racial discrimination, there is no direct evidence before me that the applicant’s race or colour was a factor in the respondent’s decision not to award her the Group Leader position. Rather, this is a case reliant upon circumstantial evidence, where I am being asked to infer that the applicant’s race or colour was a factor.

[52] The three part test for circumstantial evidence cases is well-established in the Tribunal’s jurisprudence and recently has been stated in [Wedley v. Northview Co-operative Homes Inc., 2008 HRTO 13](https://www.minicounsel.ca/hrto/2008/13), 65 C.C.E.L.(3d) 292 at paras. [51-52](https://www.minicounsel.ca/hrto/2008/13). The application of this test involves the following three steps:

the initial evidentiary burden rests with the applicant to establish, on a balance of probabilities, a prima facie case that she was discriminated against with respect to her employment on the basis of the prohibited ground of race or colour;
upon the presentation of a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that the impugned conduct or decision did not involve a discriminatory consideration;
if the respondent is able to rebut the prima facie case, the burden returns to the applicant to establish, again on the balance of probabilities, that the respondent’s explanation is erroneous or a pretext masking the discriminatory ground.

[53] As observed in the Wedley decision, the ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent, see [Lannin v. Ontario (Ministry of the Solicitor General) (1993), 1993 CanLII 16448 (ON HRT)](https://www.minicounsel.ca/hrto/1993/16448), 26 C.H.R.R. D/58 (Ont. Bd. Inq.).

[54] I will proceed to apply this three step test to the evidence in this case.

[55] In my view, the applicant has established a prima facie case of discrimination, at least to the extent of requiring the respondent to come forward with some explanation for its actions. The applicant is Black woman who is a very long-serving employee of the Brampton Family Court, who was familiar with the job duties and who had actually performed the Group Leader role in an acting capacity. In contrast, the successful candidate is a White woman who at the time had been working at the Brampton court on a temporary basis for only a very short period of time. In the absence of some explanation from the respondent as to why the successful candidate was selected over the applicant, I find that this evidence alone is capable of supporting an inference of racial discrimination.

[56] The respondent has, of course, provided an explanation for why it chose the successful candidate. It relies upon its structured interview process and the detailed notes and assessments made by the individual panel members. As a result, having heard and received this evidence regarding the interview process, I need to determine whether it is more likely than not that race and colour was a factor in the respondent’s decision.

[57] Much of the criticism directed by applicant’s counsel towards the interview process involved a critique of the selection criteria. It was posited that an interview process is an imperfect way to determine the best candidate, and that it would be better to be able to assess each person as they were actually doing the job. It also was posited that greater weight should have been accorded in the selection process to the applicant’s experience and the fact that she had actually performed the Group Leader job. While such critiques may have some merit in a general sense, they do not assist the applicant in proving that her race or colour were a factor in the selection process, which is the only issue before me. The use of a structured interview process asking the kinds of skills and experience-based questions asked by the respondent is quite common, and alone is not a basis sufficient to support an allegation of racial discrimination.

[58] In final argument, I asked applicant’s counsel what inference I was being asked to draw in this case. The response was that I am being asked to infer that the “fix was in” and that the interview panel had pre-determined that the successful candidate would win the competition and then marked accordingly, and that this was done at least in part because of race and colour.

[59] There is no evidence to support such an inference in my view. The interview documents show that the three panellists kept careful notes of the answers given by the successful candidate and the applicant, scored these answers differently across different criteria, and the panellist who testified gave credible reasons for the higher marks awarded to the successful candidate. To take the two most striking examples, the applicant’s answer to the first question in my view was clearly not responsive to the question asked and revealed some rather inappropriate conduct on her part and was thus deserving of the lower marks that she received, and the written assignment completed by the successful candidate was clearly more thorough and superior to that completed by the applicant. While one might quibble with the disparity in marks awarded for some of the other questions, it is not my role to determine what marks I would have awarded had I been one of the interview panellists. Rather, my role is simply to assess whether the respondent has provided a credible, non-discriminatory explanation for its selection of the successful candidate. I find that it has.

[60] There also was some suggestion by the applicant that the interview questions had been provided to the successful candidate in advance. There was no actual evidence presented to support this allegation, but merely the applicant’s belief that this had occurred.

[61] Notwithstanding the inference I was invited by the applicant to draw, I did consider whether racial discrimination occurred in the interview process in a more subtle manner. Racial discrimination can sometimes manifest itself even in an unconscious way through a person’s response or reaction to a White person or to a racialized person. In an interview process, this unconscious reaction is sometimes referred to as the “halo effect” or the corresponding “devil effect”, whereby the interviewer has an initial reaction to a candidate which then gets reflected across the marks awarded without any real differentiation among what are supposed to be distinct criteria. For example, in the marks awarded to the successful candidate and the applicant by the panellist who testified before me, I noted a tendency for her to give the same mark across all of the various criteria for each of the questions, without seeming to differentiate between the various criteria being assessed. I hasten to note that this, in itself, is not proof of racial discrimination, but just an observation that this panellist appears to have been basing her numerical assessment of these candidates more on an overall impression of their answers to the questions rather than from a strict application of the individual criteria.

[62] However, I did not detect the same pattern in the marks awarded by the other two panellists, who seemed to be addressing themselves to the individual criteria to be applied for each question. Nonetheless, their overall assessment of the successful candidate as compared to the applicant conforms to the overall assessment of these candidates made by the panellist who testified before me. Accordingly, I do not find any sufficient basis in the evidence before me to detect that racial discrimination, even in this more subtle sense, was operating in the job competition for the Group Leader position.

[63] As a result, I find that the applicant has not satisfied me that she experienced discrimination in the Group Leader job competition because of her race or colour, and accordingly this allegation is dismissed.

Reprisal Allegation

[64] Section 8 of the Code provides in its relevant part that “every person has a right to claim and enforce his or her rights under this Act [and] to institute and participate in proceedings under this Act . . ., without reprisal or threat of reprisal for so doing”.

[65] Even if I were to accept the applicant’s evidence regarding her meeting with the personal respondent in its totality, there is simply no basis to support a finding of reprisal or threat of reprisal in violation of section 8.

[66] At most, the personal respondent said that, as a Christian, the applicant should forgive and forget. The applicant interpreted this as meaning that she should withdraw or drop the human rights complaint she had filed with the Commission. That, however, is not what the personal respondent said, according to the applicant’s evidence. Nor on her evidence did the personal respondent take any reprisal action against her for proceeding with her complaint, nor did she provide any evidence that he threatened to take any reprisal action against her. In fact, the evidence before me from both the personal respondent and the applicant is that they have continued to work together in a professional and amicable manner over the past three years.

[67] Accordingly, I find that there is no basis to support the applicant’s allegation that she experienced reprisal in violation of the Code.

[68] For all of these reasons, the Application is dismissed.

Dated at Toronto, this 22^nd day of September, 2010.

“Signed By”

Mark Hart

Vice-chair

Azeez v. Ontario (Attorney General), 2010 HRTO 1919

Case Summary