Schiff v. Ridout & Maybee LLP, 2010 HRTO 2282

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jack Schiff

Applicant

-and-

Ridout & Maybee LLP, David Heller and Kenneth Hanna

Respondents

DECISION

Adjudicator: Brian Cook

Date: November 17, 2010

Citation: 2010 HRTO 2282

Indexed as: Schiff v. Ridout & Maybee

APPEARANCES BY

Jack Schiff, Applicant ) Self-represented

Ridout & Maybee LLP, David Heller and )

Kenneth Hanna, Respondents ) Angela Rae, Counsel

ii

1This is an Application filed under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the respondents discriminated against him on the ground of age when he was not hired for a summer student position in 2008. The applicant is a mature law student who was 53 years of age in the summer of 2008. The corporate respondent is a law firm and the personal respondents are partners of the law firm.

2The Application was heard on September 1, 2010. I heard evidence from the applicant and the two personal respondents.

Procedural issue

3On August 23, 2010, the applicant filed a number of Requests for Order During Proceedings. One of these was identified as a “request for sanctions”. In that Request, the applicant referred to matters that were discussed during a mediation session at the Tribunal. The respondents objected on the grounds that the mediation was conducted in confidence and with the expectation that anything said during the session was “without prejudice”. The applicant advised that he referred to the mediation to demonstrate his view that the respondents have treated him with bad faith.

4After hearing the submissions of the parties, I ruled that no one would be permitted to refer to anything that occurred during the mediation session at the Tribunal. As the respondents point out, the Tribunal’s standard Notice of Mediation makes clear that all matters disclosed during mediation are confidential and may not be raised before the Tribunal or in another proceeding, except with the permission of the person who gave the information. The standard Tribunal Mediation Agreement, signed by the parties in this case, makes the same stipulation. The applicant’s Request for Order During Proceedings was not marked as an exhibit and neither was “Appendix A” of the respondent’s response, dealing with the Request for Order During Proceedings.

Background

5The applicant provided testimony about his history. As a young man he achieved a PhD in science and did post-doctoral work concurrently with an MBA program. He decided to change careers and attended the first year of law school at the University of Toronto in 1994. He had applied for a Green Card to allow him to work in the United States and this was approved while he was completing the first year of law school. He was able to secure employment with a law firm in California that specializes in patent law. He went on to become a licensed Patent Agent in the US. In 1999 he started to do some private consulting in conjunction with his employment with the law firm and subsequently was hired as General Counsel to a pharmaceutical company.

6In 2007, the applicant decided to move back to Toronto. He started his law studies again at the University of Toronto Faculty of Law, and entered second year in the fall of 2007. He only arrived in Toronto a short time before the start of school. Soon after starting, he found out that the Law Society of Upper Canada (“LSUC”) sponsors a summer employment program for law students who are between their second and third year.

7In September of each school year, the LSUC obtains information from law firms which are interested in having a summer student for the following summer. The firms provide information about their practice and the types of work that the student would typically do. Students then indicate the firms with which they would like to work. The firms then receive the applications from the students who have expressed an interest in working for them and draw up a short list. There is then a job fair event in October at which the students who have made it to the short list have brief interviews with representatives of the firms. This results in a smaller short list who are invited for a second interview with the firm.

8Under the LSUC rules regarding the programs, firms are not permitted to make an offer of employment for the summer positions until 5:00 on a specified date, which in 2008 was November 7. Those job offers are open until 5:00 the next day. At that time, the firms can make a second round of offers. Those offers are to be open for a “reasonable” period of time.

9For the large majority of students who are employed by a firm as part of the LSUC summer student program, the process is fully complete by the end of the second day. The firms know who will be working for them in the summer and the students know where they will be working.

10The personal respondents testified that the LSUC summer program is an important part of their firm’s recruitment process. They typically offer articling positions to people who have been summer students. There is a general expectation that successful articling students will be offered employment at the end of their articles. The firm typically employs two summer students each summer. Kenneth Hanna, one of the personal respondents, is responsible for co-ordinating the summer student recruitment at the firm. The firm has approximately 25 lawyers, and about half of them are partners.

11The applicant participated in the LSUC summer student process in 2007. He testified that he initially applied to about twenty firms and he was invited to meet seven of them at the job fair. Four of the seven invited him to a second interview. He was also pursuing an opportunity with another law firm outside of the LSUC process.

12One of the four firms who invited him for a second interview was the corporate respondent. Mr. Hanna testified that he was quite impressed with the applicant’s credentials. In advance of the second round of interviews, he circulated the applicant’s resume to others in the firm. This generated positive feedback including “seems like a stellar candidate” and “Whoa!! Sign this guy up!!”

13The applicant testified that his second round interviews went well. He was particularly impressed with the corporate respondent’s representatives and had already identified it as one of the leading patent law firms in Toronto. They were clearly impressed with his qualifications and there was discussion about ways in which he could attract work to the firm through his US connections and qualifications as a Patent Agent. He testified that the only thing that troubled him about this interview was that he gained the impression that one of the partners was being forced to retire. He was concerned about this since he would be starting employment towards the end of his career and did not want to end up in a firm where he would be forced out after only a few years because of an early retirement policy. He did not ask the corporate respondent’s representatives if there was in fact a retirement policy at the firm.

14The personal respondents testified that the firm does not have a mandatory retirement policy with respect to any of the employees, including the associate lawyers who are not partners. The applicant asked the respondents to disclose the partnership contracts. The respondents refused to make this disclosure, arguing that the agreements were not relevant since the applicant had applied for a summer student job and not for employment as a partner. The applicant submitted that this evidence was important as it would demonstrate a pattern of age discrimination. I ruled that the respondents were not required to disclose the partnership contracts. Their disclosure would involve disclosure of a private commercial contract involving people who are not parties to the Application and would not be directly relevant to the issue in the Application.

15The 2008 dates when firms would make the first and second offers to potential summer students were November 7 and 8. The applicant had previously arranged to be in the US at that time as it was during reading week. He testified that he told the firms which gave him a second interview about this and advised them that if they wanted to make him an offer, it would have to be on the understanding that he would not be able to reply immediately.

16The applicant was offered a position by two of the firms that interviewed him during the second round of interviews. The offers were made on November 7 by telephone and went to his voice mail. One of the firms was the corporate respondent. The applicant preserved the offer from the corporate respondent, which was communicated by Mr. Hanna. The applicant produced a recording of the voice mail message and a transcript of the message:

It’s Ken Hanna calling from Ridout & Maybee. I just wanted to call and make an offer to you under the Law Society guidelines for a summer position in 2008. Now, I understand from our discussions that you are not going to be making a decision immediately, and I respect and I appreciate that. You know our position is that we don’t really consider you to be a student. So when you get back into town, please give me a call, and we can discuss how that’s perceived, and if you think that Ridout is a place you’d maybe like to spend your future at, that would be great, and we can discuss any details we need to work out. Have a great day, and I’ll talk to you soon. Bye bye.

17The firm also made offers to two other law students on the November 7 and 8 dates. These offers were accepted and written confirmation of the offers was sent to these two other students on November 9, 2007.

18There was discussion at the hearing about the exact meaning and intention of Mr. Hanna’s phone message. The applicant testified that he considered that it was an open-ended offer of summer employment. The respondents testified that it was not an open-ended offer. Mr. Hanna said that the purpose of the offer was to make a clear offer to the applicant under the LSUC program. Under the LSUC rules, since the offer was made on November 7, the first day that offers could be made, it was an offer that was open for only 24 hours. Therefore, the applicant did not accept the offer under the LSUC guidelines. Mr. Hanna agreed that the message indicates he understood that the applicant would not be responding within 24 hours and that the applicant was invited to call when he got back to Toronto to discuss an employment relationship between the applicant and the firm.

19The applicant testified that he was having trouble with his voice mail system and was not able to access this message until he got back to Toronto on November 11. However, he did not contact anyone at the corporate respondent until November 16, when he had contact with Mr. Hanna. According to the applicant, Mr. Hanna contacted him on November 16 and invited him for lunch. Mr. Hanna testified that the applicant contacted him, although Mr. Hanna agreed that he did invite the applicant to lunch after the applicant contacted him.

20The applicant testified that he called the second firm that had offered him employment in the summer program and asked them to leave their offer open but they withdrew their offer on November 16, the same day he had contact with Mr. Hanna.

21The lunch meeting took place on November 23, 2007 and involved the applicant, Mr. Hanna, and David Heller, the other personal respondent. Mr. Heller is the partner that deals primarily with pharmaceutical patents, which is the area of the applicant’s expertise. All the witnesses agreed that the lunch lasted about an hour and a quarter.

22The applicant testified that Mr. Hanna seemed very enthusiastic during the meeting and seemed to be “in recruitment mode”. Mr. Heller was more reserved. The applicant testified that they discussed many things pertaining to the law and to business opportunities. The respondents understood that he had the capacity to do high-level work and that they would be able to bill his hours to clients, something that does not usually happen with summer students.

23The personal respondents testified that during the lunch the applicant did not appear to be clearly interested in working for the firm. They testified that it was clear that he was only interested in doing high-level legal work that was not consistent with the type of work they needed from a student. Mr. Heller explained that some of things that the applicant wanted to do, such as patent portfolio management, are usually only done when a lawyer has established a long-term relationship with a client. However, he agreed that the applicant had the qualifications to do this sort of work. The personal respondents testified that the applicant indicated that he intended to continue with his consulting work in the US. They were concerned about this in terms of potential conflicts and insurance issues. The personal respondents testified that the applicant was clear that he was entertaining offers of employment from other firms, and that he wanted to see which firm would make him the best offer, although salary was not discussed. They testified that the applicant indicated that he was only interested in part-time work and then he said that he was not sure that he would necessarily stay in Toronto for the summer. Mr. Heller testified that the lunch experience was “bizarre” because the applicant seemed very vague about his intentions and did not appear to be actually interested in working for the firm.

24The applicant testified that his recollection of what exactly was discussed during the lunch is a bit hazy. He was not sure if he disclosed that he was entertaining other offers, although he was continuing to pursue an arrangement with another firm that had expressed some interest in hiring him outside the LSUC summer student program. He agreed that he might have indicated that he would prefer to work only four days a week, but felt that the respondents could not have reasonably inferred that he would only accept part-time work. He could not recall indicating that he might not be in Toronto for the summer, but agreed that it is possible that he could have mentioned that he might return to California.

25The personal respondents testified that after the lunch meeting, they both agreed that the meeting had been a waste of time and that based on the applicant’s presentation, they were no longer interested in offering him employment. In cross-examination, Mr. Heller was asked if there had been a job opening for the applicant before the lunch. He answered “not necessarily” since the firm had already made two offers of summer employment that had been accepted. Mr. Hanna testified that he was taken aback by the applicant’s presentation at lunch, which struck him as arrogant. It appeared that the applicant was setting terms of his potential employment but had not yet committed to working for the firm.

26There is no dispute that subsequent to the lunch meeting, the next contact between the applicant and the respondents was on March 4, 2008, over three months later.

27The applicant testified that he understood that the respondents had made an open job offer to him and that there was no need to respond right away. In the interim, he did have an interview with the other firm he had been pursuing but did not hear back from them. He then had some health issues and returned to California for some period.

28He testified that in late February, he contacted the other firm that he had been pursuing and they confirmed they were not interested in hiring him. He then contacted Mr. Hanna on March 4. He testified that Mr. Hanna seemed surprised to hear from him. Mr. Hanna indicated that there had been some changes at the firm and that they had changed location but that it was likely that something could still be worked out. After about a week, he tried to follow-up with Mr. Hanna, but he was out of town so he contacted Mr. Heller.

29Mr. Hanna testified that he did not say to the applicant that something could still be worked out, because he and Mr. Heller had agreed after the lunch meeting that they were not interested in hiring the applicant. However, he agreed that he told the applicant that he would talk to others and get back to him. He testified that he did not want to be rude or hurtful to the applicant and so did not simply say no right away. He talked to Mr. Heller who agreed that the firm would not offer the applicant any position. He was then out of town, and asked Mr. Heller to deal with the matter. On March 13, 2008, Mr. Heller left a voice message for the applicant. The applicant produced a recording of this message:

It’s David Heller returning your call. Since we had lunch a couple of months back, there’s been some personnel changes here at the office, and so what we’re looking for now is a much more junior person for the summer. So it doesn’t look like it will work out this summer between yourself and our firm. But because of your fantastic qualifications, you shouldn’t have trouble finding a position out there. So that’s all, have a great summer and I’m sure we’ll be talking again in the future. Thanks, bye.

30It is the reference to a “much more junior person” in this message that primarily leads the applicant to conclude that he experienced discrimination on the basis of age. In his view, the clear inference is that the firm wanted a much younger person. He concedes that it is possible that what Mr. Heller meant was that the firm did not need someone with his level of expertise, but he does not think that this was the true meaning.

31Mr. Heller testified that his reference to “junior person” was not reflective of the applicant’s age. He testified that the firm had recently terminated the employment of a first year associate lawyer and so there was a need to have someone doing more basic-level legal work. From the lunch meeting, he knew that the applicant was not interested in doing that kind of work.

32The applicant testified that by March it was too late to organize alternate summer employment. As a result, he lost income that he otherwise would have had and also delayed his career path.

Conclusions

33Section 5(1) of the Code provides:

5.(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

34The applicant alleges that the respondents discriminated against him because of his age.

35The applicant points to the telephone message that was left by Mr. Heller on March 13, 2008 as direct evidence of discrimination. In particular, he notes that in the message Mr. Heller stated that they were looking for “a much more junior person” and indicated that this was the reason why they would not be offering him a position. The applicant concludes that the respondents were looking for much younger person and takes the telephone message as a direct admission that this was the case.

36The respondents submit that this was not the meaning of the telephone message. According to the respondents, the reference to “a much more junior person” was that the firm needed someone to do basic level work as compared to the applicant’s level of work.

37On this point, I accept the evidence of the respondents. I accept that the firm had recently terminated the employment of a junior-level lawyer and had a need to find someone to do the sort of work that a first year associate would typically do. Therefore, the reference to a “more junior person” was a reference to the level of work that was expected and not a reference to the age of the person they were looking for.

38The applicant alleges that even if I accept the respondents’ interpretation of the phone message, the message still demonstrates “ageism” because implicit in the message is that a person with his experience would not wish to do basic-level legal work. This is ageism because people with his level of experience will generally be older than most newly graduated lawyers and an assumption that he would not be prepared to do basic-level legal work betrays a stereotype about experienced people. Perpetuation of this stereotype makes it difficult for older, experienced people to find employment and thus results in differential treatment and discrimination.

39In this case, I find that the evidence establishes that, at least up to approximately March 2008, when he realized that he might not get a summer position at all, the applicant was very clearly, and understandably, interested in work that would allow him to use his considerable knowledge and experience and he was not interested in basic-level work. In my view, this was what the applicant was communicating at the time of the lunch meeting with Mr. Heller and Mr. Hanna. This is clear from his own evidence about what was discussed at the lunch meeting as he agreed that the discussion was about the many positive things that he could bring to the firm based on his ability to do high-level work, his contacts and experience. There was no discussion about him possibly doing basic-level work. To the extent that the respondents assumed that the applicant was not interested in doing basic-level work, it seems clear that the assumption was based on the applicant’s presentation and not on stereotypical assumptions based on the applicant’s age.

40There is no dispute that the applicant had significant and valuable experience. This was clear to the respondents at the time of the applicant’s initial contact with the firm, formed the basis for the positive feedback from lawyers in the firm about the prospect of his working for the firm, and then led to the offer of potential employment that extended in the phone message from Mr. Hanna. This, plus the fact that the individuals at the firm had met the applicant means that the fact he was an “older” job applicant was accordingly well known.

41Of course there was no reason why the applicant would be interested in basic-level work, at least up to the point when it became clear that he was not likely to get summer employment that would allow him to do the sort of high-level work that he was capable of doing. From his evidence, it seems clear that he was trying to secure the most advantageous position that he could. He testified that he initially had two offers arising out of the LSUC summer student placement process and was also negotiating with another firm outside of that process. Unfortunately, in the end, he was not offered any position and by then it was too late to find any employment although I accept that by that point, he would have been prepared to accept even a position that would allow him to do only basic-level work.

42It is very possible that by the time the applicant followed up with the respondents following the lunch meeting, he might have been prepared to accept a summer position doing only basic-level work as this would have been better than nothing. However, he was not offered such work by the respondents based on the applicant’s presentation at the lunch meeting, which was that he was only interested in high-level work.

43The respondents testified that after the lunch meeting they were no longer interested in offering the applicant any kind of employment based on his presentation during the lunch. The applicant testified that while he had some concern about Mr. Heller’s demeanour during the lunch, he was left with the understanding that he had an open offer of employment. This was his explanation for why he did not follow-up with the respondents from the time of the lunch meeting in November 2007 until March 2008.

44Even if the applicant left the lunch meeting with the impression that he had an offer of employment, I do not understand how the applicant could have surmised that this offer would remain open for over three months with no follow-up or any confirmation of the offer or confirmation of the terms of the offer.

45The applicant notes that when he did follow-up with Mr. Hanna in March 2008, Mr. Hanna told him that although there had been some changes at the firm, something could still probably work out, and he would get back to him. Mr. Hanna testified that he was taken aback to get a call from the applicant without any contact for the previous three months and did not want to be rude or unkind by telling him outright that he would not be offered employment. I found Mr. Hanna’s explanation of this point to be genuine and I accept that he told the applicant that he would get back to him as a way of avoiding or at least postponing a possibly unpleasant conversation. I also accept that the intent of Mr. Heller’s phone message was to offer the applicant a more positive explanation for the fact that he would not be hired than Mr. Hanna and Mr. Heller’s actual assessment which was that he was not an appropriate candidate based on his demeanour at the lunch meeting.

46In an alternative argument, the applicant submits that if the respondents really did change their minds about offering him employment as a result of the lunch meeting, the reason for this was that, as a result of meeting him for the first time, Mr. Heller realized that the applicant was older and decided that he did not want him working in his department for this discriminatory reason. While this is possible, I find that it is not probable because, as noted earlier, the fact that the applicant was older would have been apparent from the applicant’s resume and history.

47In summary, I find that the reason that the respondents were initially interested in offering the applicant a summer position was his extensive experience and knowledge in a specialized area of law. The reasons that he was not ultimately offered employment included the delay in following up after the initial meetings, his presentation at the lunch meeting, and the lack of any contact for over three months after the lunch meeting. I find that the applicant has not established that he experienced unequal treatment based on his age. For these reasons, I must dismiss the Application.