Sauve v. Ininew Friendship Centre, 2010 HRTO 720

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ronald Sauve

Applicant

-and-

Ininew Friendship Centre

Respondent

CASE RESOLUTION CONFERENCE DECISION

Adjudicator: David Shannon

Date: April 1, 2010

Citation: 2010 HRTO 720

Indexed as: Sauve v. Ininew Friendship Centre

Appearances

Ronald Sauve, Applicant ) On his own behalf

Ininew Friendship Centre, Respondent ) Susan T. McGrath, Counsel

1These are two Applications arising from similar facts, the first filed November 11, 2008 under section 53(3) and the second filed May 14, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”). Both allege discrimination in employment on the basis of race. The underlying human rights complaints were filed with the Ontario Human Rights Commission on May 25, 2005 and July 26, 2006 and abandoned upon filing the Applications with the Tribunal.

2The applicant believes that the respondent’s decision not to hire him for the positions of Director, and later Prime Worker and then Special Needs Counselor was discrimination due to the fact he is not an Aboriginal person. I find that the respondent did not breach the Code. My reasons for this finding follow.

Background and Facts

3The applicant commenced working for the respondent in 1998 as a part-time (relief) child and youth worker. In 2001 the applicant asserts he was hired by the respondent as a permanent part-time special needs worker at the Mee-Quam Youth Residence, which was a program run by the respondent under a contract between the respondent and the Ministry of Child and Youth Services.

4The respondent states the applicant was hired as a relief worker with on a casual/on call basis on or about 1997. He was promoted to Special Needs Counselor in 2003 on a part-time basis for 25 hours per week in accordance with a funding agreement from the Ministry of Public Safety and Security. His hours were later increased to 30 hours per week.

5The respondent also indicates that Mee-Quam Youth Residence had originally had an eighth full time position that was cut back by funding decreases and was filled primarily by relief workers with management responsible for two twelve hour shifts. These shifts covered by management were given to the applicant by the former Director, Rod Parker. The applicant indicated that this was to be a permanent arrangement, but the respondent submitted that should funding for an eighth full time worker have become available the applicant was to lose the additional 24 hours every second week. I accept the respondent’s version of these facts.

6Ms. Turmel was hired as Director in favour of the applicant. She is of aboriginal heritage, speaks Cree and has worked extensively with aboriginal groups and organizations.

7The applicant and Ms Turmel met on June 29, 2006 to discuss his work. He expressed concerns about his ability to deliver the aboriginal component of his program within the allotted 30 hours per week and wanted his hours increased to 40 hours per week. Ms Turmel advised him that she had applied for additional funding for a 40 hour per week position but the application had not yet been granted. The applicant stated that he could not work less than 40 hours per week and walked out of the meeting. He returned shortly after with his resignation letter effective July 13, 2006. The applicant announced that he was taking his vacation until July 13, 2009 and would be in on that day to clean out his office. He returned on July 11 to clean out his office.

8The applicant later applied for the Prime Worker position when it became available, and was granted an interview. The position was filled by Roger Archibald who had worked for Mee-Quam in that position previously from 1990-1994. He had experience in the position of Prime Worker, was of aboriginal descent, and spoke Cree.

9The applicant then applied for his old position as a Special Needs Counselor when he was not successful in obtaining the Prime Worker position. Again, he was granted an interview. The position was filled by Claude Lachance, a recent graduate with a social service diploma with Native Specialty. Mr. Lachance is of Métis descent and identifies as such. He had a strong recommendation from the Kapuskasing Indian Friendship Center about his willingness and aptitude to learn the native culture. He had some knowledge of Cree, having completed a course in Introduction to the Cree Language.

10All job positions, other than urgently needed relief workers, were always posted internally at Ininew Friendship Center and Mee-Quam for 3 days prior to posting in the local newspaper. The respondent indicated that posting locally only, did reduce the pool of available candidates, but past experience with hiring from outside the community was not successful, as the candidate would accept the position, and then cancel at the last moment or, in one case, just did not show up.

11All job positions advertised at the Friendship Center, Mee-Quam and the local newspaper are to indicate that knowledge of the Cree language is either an asset or is preferred. The advertisement for Prime Worker indicated that knowledge of the Cree language was preferred and that for Relief Youth Worker, it was an asset.

12When the applicant was not successful in the above job competitions he wrote asking the respondent to keep his resume on file, and consider him for future positions. The applicant also claims that denial of the jobs has caused him emotional pain and hurt feelings which affected his ability to work. A doctor’s note was provided which supported claim of emotional distress. My reasons are as follows.

Analysis

13Section 5(1) of the Code states:

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.

All aspects of the employment process, from advertising, and the hiring process are encompassed under s. 5.

14Notwithstanding the fact that the Code protects against discrimination based on race, it does allow for special programs targeted at alleviating group disadvantage. It states at section 14:

14(1) A right under Part I is not infringed by the implementation of a special program designed to relieve hardship or economic disadvantage or to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity or that is likely to contribute to the elimination of the infringement of rights under Part

Section 14 is intended to protect affirmative action and promote substantive equality: Broadley v. Steel Co. of Canada Inc. (1991), 1991 CanLII 13128 (ON HRT), 15 C.H.R.R. D/408, Blainey v. Ontario Hockey Assn. (1987), 1987 CanLII 8494 (ON HRT), 9 CH.R.R. D/4549. The respondent argued that the services of the Ininew Friendship Centre and its programmes, particularly those that held the positions for which the applicant was unsuccessful, were special programmes within s.14(1) of the Code. Based on the evidence and submissions of the applicant and respondent I find that a hiring preference for aboriginal persons by the respondents constitutes a special program within the meaning of s. 14(1) of the Code.

15The respondent is an aboriginal based non-governmental organization providing services to aboriginal persons of all ages. The Ininew Policy Manual, in paragraph 2.2, provides that every effort will be made to recruit Aboriginal candidates for all positions that become available in order to fulfill its commitment to providing positive role models to the community and to the training and development of Aboriginal people. The respondent submits that this preference to hire Aboriginal Workers is intended to assist aboriginal persons achieve equal opportunity.

16Also, the respondent submits that within a Cree-speaking friendship center such as Ininew, the ability to be able to communicate with the people it serves, particularly the elders who have limited or no fluency in English or French, is necessary to maintain its mandate, and promote aboriginal culture, language and traditions. I agree.

17All successful candidates either spoke Cree at a functional or fluent level and self identified as either Metis or Aboriginal. The applicant was not of aboriginal heritage, did not speak Cree, Ojibway or Oji-Cree, and neither practiced nor had a profound knowledge of aboriginal customs, norms and traditions. He simply asserted that a preference for hiring aboriginal persons was discriminatory notwithstanding the respondent`s mandate and services. I do not accept his argument.

18The applicant also had no administrative or management experience nor administrative or management educational qualifications. He was enrolled in the Bachelor of Psychology program at Laurentian University without completion. His work with Mee-Quam was either casual or part-time without administrative or management functions.

19The applicant did not have the education or language and cultural experience equal to the successful candidates for the positions to which he applied. I therefore, conclude that the respondent did not discriminate against the applicant based on race.

20The Applications are dismissed.