Edward Ozog v. The Caldwell Partners International Inc., Elizabeth Zucchiatti, and Ralph Chauvin, 2010 HRTO 1986

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Edward Ozog

Applicant

-and-

The Caldwell Partners International Inc.,

Elizabeth Zucchiatti, and Ralph Chauvin

Respondents

DECISION

Adjudicator: Brian Sheehan

Date: September 29, 2010

Citation: 2010 HRTO 1986

Indexed as: Ozog v. Caldwell Partners International

APPEARANCES

Edward Ozog, Applicant ) Hal Rolph, Counsel

The Caldwell Partners International, Inc ) Robb Macpherson, Counsel

Elizabeth Zucchiatti, Ralph Chauvin, )

Respondents )

INTRODUCTION

1This Application was filed on June 25, 2009 under section 53(5) of the Human Rights Code R.S.O. 1990 c.H.19, as amended (the “Code”).

2The applicant alleges that he was discriminated by the respondents in relation to employment on the basis of his sexual orientation and marital status contrary to sections 5 and 11 of the Code. It is further alleged that, contrary to section 8 of the Code, he was subjected to reprisals by the corporate respondent, The Caldwell Partners International Inc. (“Caldwell”).

3This Decision addresses the Request of the respondents that the Tribunal should issue the following orders:

(a) An order dismissing the Application for failure to disclose a prima facie case;

(b) An order striking out certain aspects of the Application and the Statement of Additional Facts on the basis they constitute an expansion of the subject matter contrary to the Tribunal’s Rules of Procedure; and,

(c) An order striking out certain portions of the Statement of Additional Facts as being outside the jurisdiction of the Tribunal.

THE FACTUAL BACKGROUND

4Caldwell is an executive search firm with offices in Toronto, Calgary, Vancouver and Montréal.

5The respondent Ralph Chauvin was a Search Partner at Caldwell until his retirement on April 27, 2007.

6The respondent Elizabeth Zucchiatti was a Researcher at Caldwell at the time of the events that gave rise to this Application.

7In the early part of 2005 Caldwell was retained by Bridgepoint Health regarding an executive search for a Vice President-People and Leadership Development position.

8Bridgepoint Health is a hospital located in Toronto which, in 2002, evolved out of the former Riverdale Hospital. The strategic plan for Bridgepoint Health was to transform itself from primarily a palliative care institution into a multi-facetted health care provider serving individuals experiencing complex chronic disease issues.

9Further to its strategic plan, Bridgepoint Health had decided to create a new human resources position, Vice-President, People and Leadership Development. The focus of the executive search for that position rested on candidates who had been involved with significant transformational change of an organization or institution. More specifically, the targeted group was identified as large-scale private sector organizations that had undergone significant transformational change such as banks, insurance companies and major companies in the hospitality industry. Healthcare was not identified as one of the targeted industries.

10In early May 2005, as part of the recruitment process for the position, Caldwell arranged for the placement of an ad in the Globe and Mail. The applicant responded to that ad and formally applied for the position.

11The applicant is a Certified Human Resources Professional (CHRP) who as of 2005 had over 20 years of experience in the human resources management field. At that point in time, he was the Chief Human Resources Officer for the Kingston General Hospital responsible for the full breadth of human resources services and strategies. Previously, he held the position of Head of Human Resources for the North York General Hospital.

12After attempting to directly contact the applicant, Ms. Zucchiatti left him a voicemail message acknowledging receipt of his application. Subsequently, the applicant and Ms. Zucchiatti left with each other a series of telephone messages without ever successfully connecting.

13On June 6, 2005, Ms. Zucchiatti forwarded a letter to the applicant by email thanking him for his interest in the Bridgepoint Health position but informing him that while his experience satisfied “some of the requirements” for the position, Caldwell had “identified other individuals whose backgrounds correspond more closely to our client’s specifications.”

14Having served for nearly a decade and half as the head human resources officer for hospitals that were considerably larger, in terms of the number of employees and operational budgets, than Bridgepoint Health, the applicant could not understand why his application did not warrant further consideration. In his view, he clearly met or exceeded all of the position’s advertised requirements.

15On June 7, 2005 the applicant responded to Ms. Zucchiatti’s email expressing that he was “astonished”, given his qualifications, that he was not at least interviewed, if in fact not short-listed, for the position. In the course of that email, the applicant raised the issue as to whether his sexual orientation had played a role in the respondent’s decision not to further act upon his application. In particular, the applicant outlined his views on this point as follows:

My second point concerns your sinister phrase “individuals whose backgrounds correspond more closely to our client’s specifications”. This, in my painful personal experience, is simply code for “we don't take kindly to your kind ‘round here”. It is hardly unknown for an executive search firm to deliberately (on behalf of a client) or systematically (with the same outcome) favour a certain candidate profile from an “old boys” (old girls) network while filtering out, or failing to give due consideration to those individuals who don't quite “fit” (as it were) the corporate culture. This would also not be the first time that I, as an openly gay man and the only “out” senior HR executive working in an Ontario Hospital, have bumped into this same glass ceiling that effectively excludes any realistic possibility of employment as a senior executive in the various religious affiliated hospitals of this province. I am not saying that my sexual orientation and same-sex lifestyle is a factor in this case, but given the near perfect alignment of my qualifications and healthcare work experience with your publicly advertised expectations, you had better be prepared to prove that your selection process was objective, transparent and free of all systematic bias should, as I suspect, your final candidate be someone not particularly distinguished in the healthcare field or less qualified and experienced than I am in general. (I know my peer group) Denying someone access to work on grounds prohibited by the Ontario Human Rights Code is a very serious matter. Denying access even to a pool of qualified candidates to be interviewed is inexcusable.

16On June 8, 2005, Mr. Chauvin responded to the applicant's email. In his response Mr. Chauvin indicated that the focus of the executive search was to identify those executives who had designed, and led, transitional change in an organization. Mr. Chauvin further indicated that the search had been able to attract the attention of executives who been involved with such transitional change in $10 billion corporations.

17The applicant responded by email the same day suggesting, Mr. Chauvin, by referring to, seeking, and attracting individuals with experience in $10 billion corporations, had displayed “a profound ignorance of the Canadian healthcare industry”. The applicant suggested that there was no healthcare organization in Canada that came close to having an annual budget of $10 billion; therefore the candidate pool targeted by the respondents did not exist. The applicant in the course of that email again made reference to the potentiality of filing a complaint with the Ontario Human Rights Commission.

18The respondents asserted no facts were pleaded suggesting that either Mr. Chauvin or Ms. Zucchiatti, had any knowledge of the applicant prior to the submission of his application for the Bridgepoint Health position; or that they had any knowledge, or reason to perceive the nature, of the applicant’s sexual orientation or marital status, prior to his initial email of June 7, 2005.

19After meeting with the Bridgepoint Health CEO, a shortlist of 10 candidates was developed by Mr. Chauvin to be interviewed by the Bridgepoint Executive Search team. The list was furthered narrowed to six individuals. The interviewing of those candidates took place in late June 2005. The successful candidate, however, was not interviewed until August 2005. The applicant asserted that the evidence suggested that the initial short-listed group of candidates put forward by Caldwell were rejected by the Bridgepoint Executive Search team. It was asserted that only then did Mr. Chauvin put forward the successful candidate as a person that should be interviewed by Bridgepoint Health.

20Of the candidates that Mr. Chauvin initially interviewed for the position only one had previously worked extensively in the healthcare sector. None of the candidates who advanced to the interview stage with Bridgepoint Health were from the healthcare sector. The successful candidate’s employment background was in the insurance field.

The Pleadings

21The applicant filed a complaint, on June 29, 2005, with the Ontario Human Rights Commission alleging that the decision to not put his name forward for an interview with Bridgepoint Health constituted discrimination on the basis of his sexual orientation and marital status.

22On June 25, 2009, the Application under section 53(5) of the Code was filed with the Tribunal alleging not only discrimination in employment on the basis of sexual orientation and marital status but additionally it asserted that the applicant had been subjected to a reprisal by the corporate respondent Caldwell contrary to section 8 of the Code.

23On April 22, 2010 the applicant filed a Statement of Additional Facts. In that statement the applicant suggested that in addition to his sexual orientation, and marital status, the following additional factors may have played a role in the respondents’ decision not to grant him an interview for the position in question: his family history, his Polish ancestry, his ethnic sounding last name, his working-class background, and his gender.

The Decision

24The Tribunal’s framework of analysis with respect to the issue as to whether there is a prima facie case was reviewed in Jagait v. IN TECH Risk Management, 2009 HRTO 770:

18The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent: see Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.), at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.

19It is well-established that the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the employer may have knowledge of facts or possess evidence of discrimination that is not accessible to an employee whose employment is terminated, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions. On the other hand, where the applicant has failed to establish a prima facie case, it is neither legally correct nor, in my view, fair, just and expeditious to shift the burden to the respondent to provide a non-discriminatory reason for its actions. [emphasis added]

25As part of a review as to whether a prima facie case has been established the applicant’s allegations are presumed to be true and the question becomes whether the respondents’ behavior (as alleged by the applicant) could constitute discrimination under the Code.

26Turning to the allegations of the applicant it is a trite, but important point, to emphasize, that this Tribunal does not have overarching jurisdiction to decide whether the acts or omissions of a respondent were fair, appropriate or correct. The overriding issue before the Tribunal in this case is not whether the respondents conducted an appropriate executive search for the Bridgepoint Health Vice President-People and Leadership Development position. They may have, or may not have. The overriding issue is also not whether the applicant was a qualified and/or worthy candidate for that position. He may have been, or may not have been. For this Tribunal, the overriding issue is whether there is a basis to make a finding that the respondents’ acts or omissions violated the Code. There has to be evidence suggesting that the decision-making of the respondents was discriminatory in nature, and that that discriminatory behavior was, in some way, related to a prohibited ground set out in the Code.

27There exists no factual basis whatsoever to suggest that the respondents’ decision not to give further consideration to the applicant's candidacy for the position in question was in any way related to his sexual orientation or marital status or any other prohibited ground under the Code. No evidence was offered by the applicant to suggest, that prior to Ms. Zucchiatti’s email of June 6, 2005 advising him that he was not being considered for the position, that the respondents had any direct knowledge of his sexual orientation or any reason to perceive his sexual orientation or martial status. Absent awareness, or a perception, of the applicant’s sexual orientation, the respondents’ decision to reject his candidacy for the position is insulated from being tainted by any improper consideration of the applicant’s sexual orientation or marital status.

28The applicant, however, asserted that the respondent’s lack of awareness of his sexual orientation did not apply to all relevant aspects of the respondents’ decision-making. In this regard, a particular thrust of the applicant’s submissions at the hearing focused on the suggestion that the initial short-listed group of candidates was rejected by the Bridgepoint Health Executive Search team. Subsequent to this rejection, it was submitted that Mr. Chauvin put forward for consideration additional individuals, including the successful candidate, who had initially applied for the position but had not been included in the original short-listed group of candidates. It was submitted at that particular point in time the respondents were well aware of the applicant's sexual orientation and the decision not to put his candidacy forward at that juncture constituted discriminatory behavior by the respondents.

29The respondents had already rejected the applicant’s candidacy on the basis that his qualifications did not match the focus of their search. It is difficult to appreciate how the fact that the applicant had advised the respondents as to his sexual orientation somehow would suggest to the respondents that his qualifications were now a better match for the position. The fact that the applicant’s sexual orientation had been disclosed would not have rendered him a more viable candidate for the position in question. Further to this point, the successful candidate’s background was generally in keeping with the criteria the respondents had utilized throughout the recruitment process. Accordingly, the respondents’ approach, regarding the nature of the qualifications they were seeking, remained consistent throughout the recruitment process.

30Accordingly, it is my view, even if all the evidence submitted on behalf of the applicant was accepted as true, there still would not be a basis for a finding of direct discriminatory behaviour by the respondents in violation of section 5 of the Code.

31As to the suggestion that the decision-making of the respondents constituted “systematic discrimination”, there were no facts pleaded, which if accepted as true, that would suggest that the recruitment process utilized by the respondents resulted in the exclusion, restriction or preference of a particular group of persons identified by a prohibited ground of discrimination. Accordingly, there is not the necessary factual basis for a finding of section 11 of the Code.

32The reprisal allegation, which was set out in the Application, suggested that the respondent Caldwell had failed to contact the applicant regarding any job search subsequent to his filing his OHRC complaint. No further particulars were provided in support of that allegation. In my view, given the lack of supporting particulars the allegation that the respondent Caldwell took retaliatory action against the applicant fails to satisfy the test of setting out a prima facie violation of section 8 of the Code. Additionally, I would note, there were no facts pleaded which, even if true, would support a finding that the respondent Caldwell intended to take retaliatory action against the applicant. As suggested in Jones v. Amway of Canada Ltd., 2001 CanLII 26217 (O.H.R.T.) there must be evidence that the respondent intended to retaliate against the applicant for there to be a finding of section 8 of the Code. No such evidence was pleaded in this case.

33In conclusion, the Application fails to make out a prima facie case that the respondents violated Section 5, 8, or 11 of the Code. Based on that determination, it is not necessary to consider the respondents’ alternative request that aspects of the Application and the applicant’s Statement of Additional Facts be struck on the basis of an expansion of grounds argument, or on jurisdictional grounds.

34In light of the above, this Application is dismissed.