Abid Rafiq v. Scotia Capital Inc. o/a ScotiaMcLeod and Kevin Fairs, 2010 HRTO 697

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Abid Rafiq

Applicant

-and-

Scotia Capital Inc. o/a ScotiaMcLeod and Kevin Fairs

Respondents

DECISION

Adjudicator: Judith Hinchman

Date: March 30, 2010

Citation: 2010 HRTO 697

Indexed as: Rafiq v. Scotia Capital

AppearanceS BY

Abid Rafiq, Applicant ) Self represented

Scotia Capital Inc. o/a ScotiaMcLeod ) Patricia Taylor,

and Kevin Fairs, Respondents ) Counsel

INTRODUCTION

1This is an Application dated May 5, 2009 made under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The underlying human rights complaint was filed with the Ontario Human Rights Commission in July 2005 (the “Complaint”) and abandoned upon filing this Application with the Tribunal. A hearing on this matter was conducted on January 20, 2010 (the “Hearing”).

2The applicant alleges that the respondents discriminated against him in employment on the basis of race, place of origin, colour, and ethnic origin when he applied for a position with the corporate respondent. In particular, he alleges that the respondents rejected his application due to the grounds listed above.

3At the Hearing, the respondents asked that the name of the corporate respondent be corrected to Scotia Capital Inc. o/a ScotiaMcLeod. I am satisfied that this is the correct legal name of the corporate entity and the style of cause is amended accordingly.

BACKGROUND

4At the relevant time, several times a year the corporate respondent placed ads in the Globe and Mail and other publications such as Workopolis, Investment Executive Journal, and similar publications for various positions including Investment Executives. These were nationwide ads. The applicant submitted an application in response to the following October 2004 Globe and Mail ad:

ScotiaMcLeod is looking for Investment Executives with a commitment to success and a desire to make a difference in their clients’ lives.

We are looking for individuals who have five years of business, sales or financial experience, an entrepreneurial spirit and who have completed the Canadian Securities Course.

Whether you are new to the investment business, or an experienced advisor seeking a place where you can grow your business, ScotiaMcLeod offers unprecedented support and unlimited opportunity.

Applicants were directed to email their resume to personal respondent, Kevin Fairs, Manager of New Advisor Training.

5The applicant submitted his resume on November 29, 2004. By email dated December 16, Mr. Fairs wrote to the applicant:

Thank you for your interest in a career in investment sales with ScotiaMcLeod and for responding to our recent advertisement. We have been fortunate in receiving a considerable number of responses and are in the process of reviewing all resumes forwarded to us.

We have given your resume serious consideration and have concluded that although you may possess many of the attributes necessary for a successful career in sales, we do have candidates who have qualifications more in line with our needs.

We will maintain your resume on file for a period of three months and contact you should a suitable position become available. Once again, thank you for your interest in ScotiaMcLeod.

6Following this, the applicant complained to the corporate respondent’s Office of the President that his application had been rejected for discriminatory reasons. Both Mr. Fairs and Paula Dupuis, Manager of Employee Relations, responded indicating to the applicant that his qualifications did not meet the requirements of the position and that in particular his resume demonstrated no direct sales experience.

7The applicant alleges that the reference to no direct sales experience is a pretext and that because his resume includes non-Canadian experience and also suggests that his ethnic origin is that of someone from Pakistan, his application was “rejected even before the process was complete.”

8He argues that the advertisement did not indicate that direct sales experience was a criteria and he also believes that this was an entry-level position that requires no experience.

9The respondents described the hiring process for this position as follows. This position is demanding and thus turnover is high. Therefore, the corporate respondent frequently places ads to generate applications for a “continuous employment drive” for investment executive recruits who are placed in its various regions nationwide. From these ads as well as from internal candidates and unsolicited applications, the corporate respondent is always accepting applications. During the three years that Mr. Fairs supervised the training of new recruits, he estimates that the corporate respondent hired between 250 and 300 individuals for these positions.

10The process was that Mr. Fairs conducted a preliminary screening to see if certain basic requirements such as completion of the Canadian Securities Course and approximately five years of experience were indicated. If so, then he divided the resumes between the seven regions and sent them to the various regional managers. The regional managers in turn distributed the applications to branch managers who performed a second review. They reviewed the applications in more detail and made a decision as to whether or not to call an applicant for an interview. Not all resumes received at this point resulted in an interview.

11Each new recruit attends an orientation and training “class.” These classes were supervised by Mr. Fairs and occur four or five times a year. Mr. Fairs estimated that in the three-year period he supervised the training program, of the roughly 250 to 300 new hires, 30 to 40% of those were racialised persons. Successful applicants from the October ad that the applicant responded to were placed in the January 2005 class and then sent out to the regions where they were hired.

12With respect to the job qualifications, Mr. Fairs explained that the particular ad in this case, and the ad generally run for this position, requested five years of either business, sales, or financial experience because the successful candidates must be able to run a franchise-type business, prospecting for and building successful relationships with clients. This is not an entry-level position and that is why the ads specified five years of experience. The respondents submitted a job description for this position that is circulated to the various regions to consider when they vet applications. This document corroborates Mr. Fairs’ testimony.

13This particular ad generated quite a bit of interest. Mr. Fairs estimated that 30 applications came in as a result of that ad. Upon receiving the applicant’s resume, Mr. Fairs decided to forward it on to the Ontario region and Scarborough Branch Manager, McGregor Rolph ultimately received it. Mr. Rolph decided that the applicant was not a suitable candidate because his resume did not reflect any direct sales experience.

14Mr. Rolph testified that his Branch employs Investment Executives of many different races and ethnic origins. The respondents submitted a photocopy of the applicant’s application with Mr. Rolph’s handwritten notes that state: “no direct sales experience,” “relatively new to the area – business contacts?”, “this candidate would be better suited to a Bank of Nova Scotia position, do not pursue.”

15Mr. Rolph sent Mr. Fairs an email on December 13, 2004 that stated: “I have read the resume of Abid Rafiq…fwd to me from your office last week. I am very reluctant to pursue this candidate. No direct sales experience….Your views???”

16Mr. Rolph testified that he makes the hiring decisions for his Branch. At the Hearing, Mr. Rolph explained his notations and the email. First, looking at the most recent experience listed on the applicant’s resume – that from 2000 to 2004 – the applicant was employed as a pre-press technician at a label company. Mr. Rolph testified that this was not relevant experience for the position as it was neither sales related nor financial in nature. The two positions prior to that he judged to be more of administrative positions, again with no sales or business experience.

17Mr. Rolph testified that the primary responsibility of this position is to go out and find high net worth individuals in need of financial advice. For this reason he first looks for sales experience. Although he did not feel that the applicant had the necessary qualifications, he nonetheless sent an email to Mr. Fairs just in case Mr. Fairs had seen something else in the resume that he felt was a reason to grant an interview. Mr. Fairs did not.

18Mr. Rolph further testified that based on the resume, he did not know the applicant’s race, although he did assume the ethic origin from the history listed on the resume. This however was not a factor for him. And he stated that more than half the individuals he has hired are racialised persons.

19Mr. Fairs and Mr. Rolph deny that any of the Code protected grounds alleged were considered or factors in the decision not to pursue the applicant’s application further. Specifically they deny that the fact that the applicant listed non-Canadian experience was a factor. Mr. Fairs stated that regardless of where an applicant had gained employment experience, he would look to see if that experience suggested the appropriate ability. He stated that he felt the resume suggested enough skill to put forward to the region. He did not feel it was a strong resume.

20Mr. Fairs could not recall exactly who would have been hired from the October 2004 Globe and Mail ad. As noted earlier, successful candidates may come via one of the several ads that are placed at any one time and as well may be internal candidates or unsolicited applications. Mr. Fairs estimated that of the roughly 30 applications that were received at the time of this ad, approximately 20 individuals were hired. Mr. Rolph concurred that given the number of resumes received from various sources throughout the year, it was difficult to know if an application was in response to a specific ad.

21The respondents did, however, offer the qualifications of two applicants who were hired during the same time period as when the applicant’s resume was received and attended the January 2005 training class as he would have had he been hired. These individuals were not reviewed by or hired to the Scarborough region. The respondents reviewed their qualifications at the Hearing and stated that their resumes were stronger than the applicant’s and although the respondents stated that they did not know the ethnic origin of the two candidates from their resumes, it turned out that both were of non-Canadian ethnic origin. Finally, both candidates listed non-Canadian and specifically Pakistani job experience as the applicant had.

22Mr. Fair testified that the applicant’s resume was not as strong as these two individuals in that both had experience and training with organizations that have good track records in investment relations and that at least one appeared to have taken on a great deal of responsibility in his past jobs.

ANALYSIS AND DECISION

23Section 5 of the Code provides that:

(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, … place of origin, colour, ethnic origin, ….

24Section 9 provides:

No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

25The issues in this matter are:

1. Were any of the applicant’s race, place of origin, colour, or ethnic origin a factor in the hiring process contrary to sections 5 and 9 of the Code?

2. If discrimination occurred, what is the appropriate remedy?

26Following the parties’ submissions at the Hearing, the respondents’ counsel argued that the applicant had failed to establish a prima facie case of discrimination and argued that on that basis this Application ought to be dismissed.

27Respondents’ counsel urge that the test in Shakes v. Rex Pak Limited (1981), 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001 applies to this situation to determine whether or not a prima facie case of discrimination has been established by the applicant. The three-part test in Shakes asks:

1. Was the applicant qualified for the particular employment?

2. Was the applicant not hired; and

3. Was someone no better qualified but lacking the distinguishing feature, which is the gravamen of the human rights complaint (i.e., race, colour, etc.) subsequently hired?

If these elements are proved, the burden of proof shifts to the respondents who then has the evidentiary onus to provide an explanation of events equally consistent with the conclusion that discrimination on the basis prohibited by the Code is not the correct explanation for what occurred.

27In Nelson v. Lakehead University, 2008 HRTO 41, the Tribunal applied the following legal test for establishing a prima facie case of discrimination in the circumstances of this type of employment case. In so doing, it also considered the applicability of the Shakes test. The Tribunal cited O’Malley v. Simpsons-Sears Ltd. (1985) 7 C.H.R.R.D/3102 (S.C.C.), where the Supreme Court of Canada held that a prima facie case is “one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent-employer.” Once a prima facie case is established, the burden shifts to the respondent to provide a reasonable explanation for the otherwise discriminatory behavior. If the respondent provides such an explanation, the complainant has the ultimate burden of demonstrating that the alleged discrimination is more probable from the evidence than the actual explanation offered by the respondent.

28With respect to the Shakes test, the Tribunal in Nelson observed that Shakes has not been applied in every employment case, but has been recognized as being merely one example of the type of evidence that may, if believed and not satisfactorily explained by the respondents, lead to a finding of a violation of human rights legislation. See, for example, Morris v. Canada (Canadian Armed Forces), 2005 FCA 154, [2005] F.C.J. No. 731 (F.C.A.) 154.

29The case law is also clear that discrimination need only be one of the factors involved in a hiring decision for there to be a breach of the Code. In addition, it is unnecessary to prove that there was an intention to discriminate to support a finding that the Code has been violated.

30I adopt the reasoning of Nelson, supra. Thus the question is: Was sufficient evidence adduced by the applicant to establish that he was the victim of discrimination on the basis of race, place of origin, colour, or ethnic origin in the absence of a response from the respondents? In doing so, I find that the questions posed in Shake are useful. Those are, was the applicant qualified for the particular employment? And was someone no better qualified but lacking the distinguishing feature, which is the gravamen of the human rights complaint (i.e., race, place of origin, colour, or ethnic origin) subsequently hired?

16I found both Mr. Fairs and Mr. Rolph to be credible witnesses. Their testimony was corroborated by the job description provided by the corporate respondent that existed at the relevant time. And their explanation of the necessity of sales or equivalent business experience made sense given the nature of the position. As well, the circumstances support that the position sought by the applicant was one that was demanding nature and thus resulted in high turnover. Consequently, the position was frequently advertised in a variety of media. A good number of candidates were sought each year for any of the seven nationwide regions. Added to these facts, because applications were submitted both from internal sources and arrived unsolicited, it was difficult to pinpoint the source for any one candidate’s application. However, it appears that the ads all required the same qualifications as those stated in the October 2004 ad the applicant responded to. Therefore, I accept that while it may not be possible to state that two of the successful candidates applied in response to the same ad, and the respondents admit they were not considered by the same regional branch office, it is safe to assume that they were judged by the same qualifications.

17Was the applicant qualified? Mr. Fairs did not reject the applicant’s application, and he testified that he had some reservations about the applicant’s qualifications. Nonetheless, he passed it along to the region where the actual hiring decisions are made. Mr. Rolph felt the applicant was not qualified and I accept his explanation for that conclusion. Nonetheless just to be sure that he wasn’t missing anything, he expressed his reservations to and double checked with Mr. Fairs. After that he concluded that the applicant was not qualified and thus did not offer an interview.

18Based on my view of Mr Fairs’ and Mr. Rolph’s credibility, I accept their conclusion that the applicant was not qualified for this job. Simply following the Shakes test the analysis would end here. However, mindful of Nelson, I also find that the applicant has not adduced evidence to convince me that race, place of origin, colour, or ethnic origin played any role in this hiring decision. The two respondent witnesses both stated that it was clear on the face of the application that the applicant had non-Canadian experience yet Mr. Fairs forwarded the resume to the region and Mr. Rolph assessed it for a possible interview only being deterred by the lack of relevant experience for the position’s demands. Had the non-Canadian job experience been a factor, there would have been no reason for Mr. Fairs to forward it on and no reason for Mr. Rolph to make the notations he did questioning the strength of sales experience and then send an email to Mr. Fairs for a second opinion. In the circumstances, I find the respondents’ explanations more consistent with the conclusion that none of the alleged factors played a role in their decision.

19Although it is not necessary to consider the third part of the Shakes test, I note that at least two of the 20 recruits hired at that time were more qualified and had also listed some job experience in Pakistan, the discriminatory factor that the applicant alleges. Again while it is clear from the evidence that these two were not considered by the same regional branch, when their resumes came to Mr. Fairs in the first instance, he did not reject them for their non-Canadian and Pakistani job experience. This bolsters Mr. Fairs’ evidence that he was never influenced by that factor when he reviewed applications and that in particular he was not influenced negatively by that factor when first reviewing the applicant’s application.

20On a balance of probabilities, I find that the applicant has not met his burden to establish a prima facie case of discrimination in employment based on the alleged grounds. This Application is thus dismissed.