Antropov v. Toronto District School Board, 2010 HRTO 305

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alexander Antropov

Applicant

-and-

Toronto District School Board, Kathy Owen and Donna Fanjoy

Respondents

DECISION

Adjudicator: Kaye Joachim

Date: February 9, 2010

Citation: 2010 HRTO 305

Indexed as: Antropov v. Toronto District School Board

AppearanceS BY

Alexander Antropov, Applicant ) Self-Represented

Toronto District School Board ) Grant Bowers, Counsel

Kathy Owen and Donna Fanjoy )

Respondents )

1The applicant filed a transitional Application on December 31, 2008 under section 53(3) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging that the respondents discriminated against him with respect to employment on the basis of age, ethnic origin, place of origin and citizenship.

2A Case Resolution Conference was held on February 2, 2010. At the commencement of the hearing I raised the fact that the applicant had filed a statement of additional facts and submitted documents relating to events which post-dated the Application. The original complaint was filed with the Ontario Human Rights Commission on March 9, 2006 and related to the applicant’s failure to obtain a position as an occasional teacher or a permanent teacher at that time. The respondents were prepared to address the 2006/07 school year up until October 2006, but not any allegations of discrimination after that year.

3I ruled orally at the hearing that the subject matter of the hearing related only to the 2006/07 school year.

4The transitional provisions of the Code make clear that a transitional application relates only to the subject matter of the complaint filed at the Commission. This coupled with the applicant’s lack of particulars about subsequent applications after February 2006 led me to conclude that it would not be appropriate to include post 2006/07 applications in this proceeding.

5The respondents raised two preliminary issues, the removal of the personal respondents and a request for dismissal on the basis that the applicant had not set out any facts which could establish a breach of the Code. I ruled that I would consider these issues after hearing the evidence.

6The Tribunal’s approach to defer findings on prima facie discrimination recognizes the principle that discrimination is rarely practiced openly and that there will rarely be direct evidence within the applicant’s knowledge and capacity to call to establish discrimination. It is often respondents who have the information to explain why actions were taken, and many a case of discrimination is made out by the respondents’ evidence. An overly robust use of a “no prima facie case” approach will defeat many meritorious applications.

7Further, the Tribunal Rules of Procedure for Section 53(3) and 53(5) Applications grant the Tribunal the authority to determine the order in which issues and evidence will be heard:

Rule 4.2 To ensure the fair, just and highly expeditious resolution of an Application under section 53(3) or section 53(5) of the Code the Tribunal may:

a)determine and direct the order in which issues in a proceeding will be considered and determined;….

e)determine and direct the order in which evidence will be presented; ….

j) question a witness in chief or in cross-examination;

BACKGROUND

8The applicant self-identifies as an ethnic Russian who was born in Russia. At the time of the complaint he was 51 years of age and a landed immigrant.

9The respondent Toronto District School Board (TDSB) is the largest public school board in Canada. The respondent Donna Fanjoy is an Administrator, Recruitment, and Secondary Teaching for the TDSB and was employed by the TDSB during the time of the Application. The respondent Kathy Owen is the Senior Manager, Secondary Staffing for the TDSB at the time.

10The TDSB advertised its 2006 teacher recruitment process on its website. The website welcomed applications for contract teacher and occasional teachers. The applicant testified that he submitted an online application on August 15, 2005 seeking a full-time contract position. The applicant submitted an online application for a full-time position as a secondary school teacher. The application indicated that he had obtained his Masters and PhD in Mathematics from the Moscow State University in the late 1970’s and early 1980’s. He listed his teaching experience as six contract positions in US high schools and the University of Minnesota. The subject he was certified to teach was intermediate and senior mathematics and his application indicated that his certification from the College of Teachers was pending.

11In February 2006 the applicant obtained an Interim Certificate entitling him to teach in the Ontario school system and added that information to his application and asked to be placed on the occasional teachers list.

12On March 2, 2006 the applicant wrote to Kathy Owen, at the Secondary Recruitment Centre, referring to his application to be placed on the list of occasional teachers. In this letter he asked for the reasons why he was not deemed eligible to be added to the list, questioning whether his age, ethnic origin, place of origin or citizenship could be a factor. He identified himself as an ethnic Russian teacher with 18 years of experience.

13On March 6, 2006 the applicant sent an email to the Secondary Recruitment Office asserting that the TDSB had discriminated against him and that he intended to file a human rights complaint.

14The applicant testified that he spoke with Ms. Fanjoy in 2006 about his failure to obtain an interview and she told him something to the effect that there were many applicants and that most successful applicants had qualifications to teach in two subject areas. The applicant testified that he believed that this alleged “two teachable” subject areas was a pretext offered to cover up the underlying discrimination or an unjustified barrier to his being able to gain teaching experience, even on an occasional basis. At the same time, the applicant conceded that he was aware that the respondent TDSB received thousands of applications from minimally qualified applicants and only hired “hundreds.”

15The applicant testified that because his qualifications to teach mathematics were so extensive, there is no other reasonable explanation for why the respondents would not even place him on the occasional teaching list, other than the fact that he was an older Russian worker and had obtained his teaching credentials in Russia.

16With respect to the alleged age discrimination, the applicant testified that he had personal knowledge that students who had not yet graduated were being offered interviews by the TDSB. In his personal experience, graduates are generally significantly younger than him and would have significantly less teaching experience and therefore, the preference for recent graduates over a senior experienced teacher is prima facie evidence of discrimination. Further, such graduates would have an Ontario degree, and not a degree from Russia.

17In hiring or promotion cases, a prima facie case of discrimination is established by proving the following:

• that the complainant was qualified for the particular employment;
• that the complainant was not hired; and
• that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position: 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 v. Peterborough (County) Board of Education (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.) - 1988 CanLII 108 (C.H.R.T.)

18In my view the applicant has established a prima facie case of discrimination on the basis of age or ethnic origin or place of origin. The applicant did not pursue his initial allegation of discrimination on the basis of citizenship and I will not address that aspect any further.

THE APPLICANT WAS QUALIFIED AND APPLIED

19The applicant’s application in August 2005 demonstrated that he held a Masters and PhD in Mathematics and was fluent in English and Russian. His work experience indicated that he had taught mathematics from grades 7 to 12 and college level calculus in the United States for 8 years prior to the application. He also submitted a US equivalency summary that confirmed that his Russian degrees were considered equivalent to a Bachelor’s and Master’s degree in mathematics and a Doctorate in physical and mathematical science. He sent in eleven letters of recommendation commenting on his teaching skills, nine of them with respect to his American experience.

20I note that in August 2005 the applicant did not have a certificate permitting him to teach in Ontario. However, that is the case of students in teachers college as well, and the respondents’ Response confirmed that students in teachers college were granted interviews, on the assumption that by the time came to begin work they would have the requisite interim certificate. Accordingly, he was as eligible for consideration as any student in teachers’ college, assuming that he would subsequently obtain a certificate to permit him to teach. In fact, the applicant did obtain the requisite interim certificate to teach in an Ontario secondary school in February 2006 and advised the TDSB accordingly.

21With respect to his extensive teaching experience and fluency in a second language, I find that the applicant has proven that not only that he was eligible to teach mathematics in secondary school in Ontario, he likely had significantly more teaching experience than many applicants, and certainly more teaching experience than the recent graduates from Ontario who were applying and being interviewed at that time.

THE APPLICANT BELONGED TO A GROUP IDENTIFIED BY A PROHIBITED GROUND

22The applicant’s place of origin and ethnic origin is Russian and his age was 51 at the time.

THE APPLICANT WAS NOT HIRED

23The applicant was not contacted for an interview during the entire 2006/07 recruitment process. The respondents’ website confirmed that they continued accepting applications throughout the year.

24I find that, absent some explanation from the respondents, the applicant has made out a prima facie breach of the Code on the basis of age, ethnic origin and place of origin.

SOMEONE NOT SHARING THE PROHIBITED GROUNDS WAS PREFERRED

25The applicant testified that he was personally aware that new Ontario graduates had been offered interviews during the 2006/07 recruitment year. This was not challenged by the respondents on cross-examination. Recent Ontario graduates are likely not to share the applicant’s ethnic ancestry or his age.

RATIONAL NON-DISCRIMINATORY EXPLANATION

26The applicant agreed that the respondent Ms. Fanjoy told him that the fact that he did not have “two teachable” subject matters was “likely” the reason he was not placed on either the permanent or occasional teaching list or invited for an interview.

27The respondents asserted that this is a rational non-discriminatory explanation that was communicated to the applicant and that they should not have to call any evidence to establish this non-discriminatory explanation.

28The respondents indicated that they did not intend to call any evidence on the basis that they had elicited sufficient information from the applicant to establish their rational non-discriminatory reason.

29In my view, to accept that any non-discriminatory response reported to an applicant, and asserted in pleadings, is sufficient to shift the evidentiary burden back to the applicant to prove that the alleged non-discriminatory rational (unproven by any evidence) is false, would be an insurmountable barrier to establishing discrimination.

30The situation might be different if it was a statutory requirement that every secondary school teacher must have two teachable subjects.

31The respondents relied upon Regulation 298 R.R.O. 1990 s. 19 made under the Education Act, R.S.O. 1990, c. E.2 that provides that a teacher in a secondary school who has only the qualification to teach one subject must teach a minimum of four courses (of six possible in a full time schedule) in that subject. The other two courses may be from the list of “general studies” such as English or history, except by mutual consent.

32This is not a statutory requirement that the respondent could only hire teachers with certification to teach in two subject areas. If it were, then I would not have found, as I did above, that the applicant was “qualified.” Indeed, as I note below, the respondents concede that some candidates with a single teachable subject are hired, interviewed and placed on the occasional hiring list.

33I determined that the pleadings of the respondent, if confirmed by the evidence, could potentially establish a rational non-discriminatory, non-pretextual explanation to the prima facie discrimination and that it would be fair just and expeditious to determine if the evidence supported their pleadings.

34Accordingly, I questioned the personal respondents and am satisfied that their evidence established the following.

35In 2004/2005 the respondents received over 4000 applications for secondary teachings position and hired 302 applicants. In the 2005/06 hiring year, they had received 3000 applications by May 31, 2006. Not every minimally qualified candidate is placed on the list of candidates for contract positions or on the list of occasional teachers.

36Ms. Fanjoy’s job included screening the applications to determine who had the minimal qualifications. She testified that most, but not all of the applicants had the minimal qualifications. She sent their application packages to a retired TDSB second school administrator (a “screener”) who determined which candidates are eligible for interview and which were to be filed for later reference.

37I heard no evidence from the actual person who screened the applicant’s application nor any evidence why that person was not called.

38However, given the numerous applications, I am prepared to accept that the evidence of this person would not have been helpful as it was extremely unlikely that they would remember how they actually assessed an application four years previously.

39Ms. Fanjoy was able to confirm that the screener is required to apply various criteria to the selection process. One of the first, and most important, is the number of subjects a candidate is qualified to teach. The TDSB is reluctant to hire single subject teachers because they are unlikely to be able to bid for a caseload of six courses in more than one subject, or if an occasional teacher, replace a teacher teaching a single subject caseload.

40Secondary school teachers rarely teach six courses in the same subject and secondary schools understandably are concerned that the teacher is certified to teach other subject areas. Accordingly, preference is given to candidates who are qualified to teach more than one subject at the intermediate (grades 9 and 10) and the senior (grades 11 and 12) level. The respondents’ witnesses testified that it was highly unlikely that a candidate qualified in a single subject would be placed on the list of teachers qualified for a permanent position or even on an occasional teaching list, since it is unlikely that an absent teacher would be teaching only one subject.

41The respondents agreed that some faculty students are moved forward to interview prior to graduation, but only those who had at least two secondary teachable subjects (both intermediate and senior).

42The applicant submitted documents demonstrating that two or three applicants had been hired immediately upon graduation. As stated by the respondents, each of them had the qualifications to teach in at least two subject areas.

43The respondents conceded that in certain high priority areas, such as technology studies or French, there is a scarcity of qualified teachers and that candidates in those areas may be interviewed, hired or put on the occasional teachers list with only one teachable subject. However, mathematics was not such a priority area for the TDSB in 2006, to the best of their recollection.

44From July 2006 the applicant became eligible to teach intermediate division Science. The respondents’ evidence was that “two teachable” subjects required the ability to teach both intermediate and senior levels and so even by July 2006 the applicant did not have the certification required to teach senior level science.

45The applicant noted that by July 2006, he had only to take one further certification course in the fall of 2006 and he would have been certified to teach both intermediate and senior classes in both mathematics and science. Thus, he argues, he was in a similar position to student teachers who were interviewed and offered positions, prior to obtaining their certification.

46The difference between the applicant and the student teacher example is that the certification for the graduate would be achieved by August 2006, thus making them certified to teach by the time school started in September 2006.

47On the applicant’s evidence, he would have had to take the senior certification course in the fall of 2006 which would have meant that he would not have been eligible to teach senior science by September 2006.

48The applicant could have obtained that qualification in fall 2006 and applied again in 2007, but due to the expense involved in taking the necessary course to obtain this certification, he did not take it. The applicant subsequently decided to apply for and was accepted into the doctoral program at the Ontario Institute for Studies in Education and therefore is no longer seeking a position as a teacher with the TDSB.

CONCLUSION

49I accept that the respondents have established a rational non-discriminatory, non-pretextual explanation for why the applicant did not obtain an interview, or a place on the list of teachers eligible for full-time employment or on the list of occasional teachers. The TDSB gave preference to applicants who had the capacity to teach two subject areas in intermediate and senior levels.

50The applicant, although qualified, and with years of teaching experience, was only certified to teach mathematics for most of the 2006/07 academic year. Although he became eligible to teach intermediate level science by July 2006, he was still not certified to teach senior level science and was therefore not as attractive a candidate compared with those who were certified to teach in two subject areas. Having regard to the fact that the TDSB received thousands of applications from minimally qualified applicants, it’s not discriminatory to prefer those who are certified in two subject areas.

51While the requirement to have two teachable subjects posed an economic barrier to the applicant in particular, due to the expense associated with taking the final course, I heard no evidence that the requirement to be able to teach two subject areas amounted to a barrier to persons from Russia or older persons.

52The Application is dismissed.