Michael Warren v. Turtle Island Recycling Corporation and Wayne Craven, 2010 HRTO 829

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Warren

Applicant

-and-

Turtle Island Recycling Corporation and Wayne Craven

Respondents

DECISION

Adjudicator: Sheri D. Price

Date: April 15, 2010

Citation: 2010 HRTO 829

Indexed as: Warren v. Turtle Island Recycling

Appearances BY

)

Michael Warren, Applicant ) On his own behalf

)

)

Turtle Island Recycling Corporation, Respondent ) Allan Kaufman, Counsel

)

)

Wayne Craven, Respondent ) On his own behalf

)

INTRODUCTION

1Mr Warren, the applicant, alleges that the respondents refused to hire him as a driver, in or around the summer of 2008, because of his age and disability. He contends that this constituted discrimination in respect of employment on the basis of prohibited grounds under the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (“the Code”).

2The respondents contend that the decision not to hire the applicant was based on his driving infraction record, the fact that he held an AZ licence, and that he was employed elsewhere at the time, and had nothing to do with his age or disability.

EVIDENCE

3The applicant testified on his own behalf. The personal respondent, Wayne Craven, and Derek Walton were the two individuals involved in the decision not to hire the applicant and testified on behalf of the respondents.

The Interview Process and Communication of the Decision not to Hire

4On July 30, 2008, the applicant called the corporate respondent to inquire about the possibility of getting hired as a driver. He spoke to the personal respondent, who was responsible for accepting and reviewing driver applications on behalf of the corporate respondent and making recommendations to Mr Walton, who had the final say over hiring decisions.

5The personal respondent told the applicant that he could come in for an interview the following day, July 31, 2008, but that he would need to bring his resume, his Commercial Vehicle Operator Record (“CVOR”) and driver’s abstract to the interview. The applicant quickly pulled together the required documents and went in for the interview at the appointed time.

6On July 31, 2008, the applicant handed in the required papers, and they were copied. The applicant also filled out an application with the corporate respondent’s employment agency since the corporate respondent hired drivers only through the agency. The applicant was then taken out for a driving test. Back at the office, the applicant was given a written test on air brakes and an oral interview by the personal respondent. The applicant was one of four or five other drivers interviewed by the respondents that day.

7The applicant testified that, during his oral interview with the personal respondent, he was told what was involved with the job and that the corporate respondent could not hire him at the time because business was slow. The applicant was also told that the corporate respondent had actually sent four drivers home that morning because of lack of work. The applicant testified that he interpreted the personal respondent’s remarks to mean that the respondents were just waiting for an opening to hire him.

8The applicant testified that, during the interview, he volunteered that he was 60 years old because he wanted to be “upfront and honest”. The applicant testified that the personal respondent’s “body language was a little set back” at hearing this and that the personal respondent said that he thought the applicant was about 47 years old. The applicant testified that this made him feel good. The applicant testified that he then told the personal respondent that he had had major heart surgery and that the personal respondent “went quiet”. The applicant went on to assure the personal respondent that he would have no difficulties doing physical labour. The applicant testified that he “got the impression” that if he had not made the comments he did about his age and disability, that he would have started work with the respondent as soon as business picked up.

9The personal respondent testified that he only said the applicant looked like he was in his 40’s because the applicant invited him to guess his age, before telling him he was actually 60. The personal respondent agreed that the applicant was the one who brought up his age and medical condition, and that he did not make any comments about the applicant’s age or disability other than to answer the applicant’s direct question about how old he appeared to be.

10The interview ended. Although there may have been some confusion about who was to call whom following the interview, there was no dispute that the applicant called the personal respondent on one or two occasions during the summer to follow up on the job, and ultimately went to the offices of the respondent on October 8, 2008. The personal respondent was not there, but the receptionist told the applicant the corporate respondent was still hiring drivers.

11The personal respondent returned the applicant’s messages on October 9, 2008. He told the applicant he did not meet the corporate respondent’s criteria and he would not be hired as a driver. The applicant protested that he was an AZ driver and physically strong. He asked what criteria the personal respondent was referring to and whether the decision not to hire him was because of his age. The applicant testified the personal respondent said, “Has a great deal to do with it.”

12By contrast, the personal respondent acknowledged that the applicant asked him during the October 2008 telephone conversation whether the decision not to hire him was because of his age, but testified that he replied that the applicant’s age was not an issue. He testified that he was “pretty positive” he did not tell the applicant that his age had a great deal to do with the decision. He testified that he talked to a lot of people in the course of doing his job, and he would never have provided someone with a discriminatory reason for not hiring them. He also testified that the applicant’s age was not a concern for the respondents.

The Selection Process

13The personal respondent testified that the employment agency the corporate respondent uses sent 10 or 15 drivers over per week for road tests and interviews. That is how most drivers came to be interviewed, unlike the applicant who contacted the corporate respondent directly.

14When drivers went in for road tests, the corporate respondent’s practice was to take a copy of the drivers’ paperwork (CVOR, etc.), give them a road test and then the personal respondent would talk to them about the job for a few minutes. His practice was to tell drivers that the agency would contact them if they were needed. He did not contact drivers directly. He kept the drivers’ road tests and other paperwork in a binder in his office and when a driver was required, he would select the most recent half dozen or so applications and review them with his superior, Mr Walton. If someone met the criteria and the corporate respondent wanted to engage him or her, the employment agency would be notified and it would then contact the driver and offer him or her a job.

15The personal respondent testified that the applicant’s application was among a “pile” of six or seven applications which he reviewed and discussed with Mr Walton for about 15 minutes in total, probably during the month of August 2008. They spent a minute or two looking at each application. Both men testified that the final decision about whether to accept or reject an application was Mr Walton’s, but the personal respondent made recommendations about the applications to Mr Walton.

16As far as the applicant was concerned, the personal respondent recommended against hiring the applicant for a number of reasons, none of which had anything to do with his age or disability. The main reasons for rejecting the applicant were to do with his CVOR. The personal respondent testified that at least one page of the applicant’s CVOR was missing and he concluded, rightly or wrongly, that the applicant had brought in an incomplete CVOR. (The applicant testified that if it was incomplete, it was because the respondent had miscopied it.) The personal respondent was concerned that the missing page might contain additional infractions which could be relevant to the applicant’s suitability as a driver.

17The part of the CVOR the respondent did have indicated that the applicant had “air infractions”. The corporate respondent’s trucks had air-assisted breaks. The personal respondent testified that this put up a “big red flag” for him as the corporate respondent’s safety coordinator. Although Mr Walton could not specifically remember the discussion about the applicant, he agreed that the infractions would have been a significant concern because it could have caused insurance problems similar to ones the corporate respondent had had in the past. The personal respondent testified that he had a “book full” of drivers with completely “clean” CVOR’s and that, with so much choice, it was not necessary to select a candidate with infractions on his record.

18In addition, according to the applicant’s resume, the applicant was employed elsewhere at the time he applied to work for the corporate respondent. The personal respondent testified that, as a general rule, and out of a sense of compassion, he prefers to offer work to people who are unemployed over those who already have a job somewhere else.

19Another factor which went into the decision not to hire the applicant was that the applicant was an AZ driver. Although the AZ licence encompasses a DZ licence, and AZ drivers would therefore meet and exceed the minimum licensing requirements for the job, the corporate respondent preferred to hire drivers with only the DZ license. Mr Walton and the personal respondent were of the opinion that DZ drivers were more accustomed to physically hard work than AZ drivers. This was important because their drivers were required to spend roughly one hour loading garbage for every hour spent driving. Also, it was easier for the company to retain DZ drivers since AZ drivers could typically make more money in the market than DZ drivers. The personal respondent testified that he did not notice during the interview that the applicant had an AZ licence.

20The personal respondent testified that Mr Walton agreed with his recommendation not to hire the applicant and there was no further consideration of the applicant’s candidacy after that. Both the personal respondent and Mr Walton denied considering either the applicant’s age or his medical condition or history when deciding not to offer him a job through the agency.

ANALYSIS AND DECISION

21The issue in this case is whether the applicant’s age or disability was a factor in the respondents’ decision not to hire him. The applicant alleges that he was specifically told his age had a great deal to do with the decision not to hire him. The personal respondent denies this and maintains the decision was based on legitimate non-discriminatory reasons. I must determine which of the two competing versions is in greater “harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.” Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (B.C.C.A.).

22Having considered all of the evidence, I am satisfied that the decision not to hire the applicant was based not on his age or disability, but rather on non-discriminatory reasons.

23The respondents’ evidence regarding the process and criteria used to evaluate drivers, including the applicant, was uncontradicted, internally consistent, consistent with the preponderance of evidence (including documentary evidence (the applicant’s CVOR)), and thoroughly plausible. I accept it as credible. The evidence established that the personal respondent and Mr Walton spent only a few minutes reviewing the applicant’s application as part of a “pile” of applications. The applicant’s application was passed over primarily because of his incomplete CVOR and the corresponding concern that he might have driving infractions in addition to the air infraction listed on the part of the CVOR the respondent did have. Since the corporate respondent’s trucks have air brakes, this was a particular concern. In addition, the corporate respondent decided not to hire the applicant because he was an AZ driver and not a DZ driver and because his résumé indicated that he was employed elsewhere at the time.

24Although the applicant contended that he was not at fault for the infraction on his CVOR, the fairness of the respondents’ decision to hold that infraction against the applicant is not an issue under the Code since it has nothing to do with the applicant’s age or disability or other prohibited grounds under the Code. Similarly, the fact that the respondents differentiated among drivers on the basis of the type of license they held and whether they already had jobs does not give rise to an issue under the Code. “Discrimination” or differential treatment on those bases is not prohibited by the Code.

25The applicant rested his case primarily on the alleged fact that, during his telephone conversation with the personal respondent on October 9, 2008, he was told that his age had a “great deal” to do with the decision not to hire him. The applicant testified that his interview with the personal respondent also showed that the respondents were unwilling to hire him because of age and/or disability. However, the applicant’s conclusions in this regard were highly impressionistic and without any solid foundation. Even if accepted as true, the fact that the personal respondent might have sat back when the applicant told him he was 60 years old and did not reply to the applicant’s unsolicited remarks about his medical history do not appreciably assist in proving on a balance of probabilities that either the applicant’s age or disability was a factor in the decision not to hire him.

26Moreover, there is some inconsistency in the applicant’s evidence that the personal respondent reacted in a discriminatory fashion upon hearing about his age and disability and his evidence that he left the interview confident that he was to be hired by the respondents. Specifically, although the personal respondent told him at the outset of the interview that business was too slow to hire him, the applicant testified that he left the interview with the understanding that he had a firm offer of employment once business picked up. His testimony as to that understanding is somewhat at odds with the signals he testified he got from the personal respondent about his age and medical condition.

27Potentially the strongest evidence in the applicant’s favour is his contention that during his October 2008 telephone conversation with the personal respondent, he was told that his age “had a great deal to do” with the decision not to hire him. The applicant was adamant about this. The personal respondent testified that he was “pretty positive” that he did not make that comment, adding that he would not say something like that - something which he recognized as overtly discriminatory - to a job applicant.

28The personal respondent’s choice of words and the manner in which he said that he was “pretty positive” that he did not make the alleged comment is troubling. It suggested some lack of certainty about whether he told the applicant his age was a factor in the respondents’ decision. It would not have been surprising if the personal respondent had been uncertain about less significant details regarding his conversations with the applicant. However, in my view, it should not have been difficult for the personal respondent to give an unequivocal answer about whether he told the applicant that his age was a factor in the decision not to hire him.

29I have thought carefully about this. Ultimately, however, the mere fact that the personal respondent chose the words “pretty positive” on one occasion during his testimony to describe his level of certainty that he did not tell the applicant that his age had a great deal to do with the respondent’s decision is not a sufficient basis upon which to find that he did make the comment, when considered alongside the other evidence.

30Considering the evidence in its totality, the personal respondent’s version of events that he did not make the comment is more plausible and in greater harmony with the preponderance of the probabilities in this case than the applicant’s version. The evidence established that there were ample non-discriminatory reasons for the respondents’ decision to prefer a candidate other than the applicant. Mr Walton’s evidence was consistent with the personal respondent’s account that neither the applicant’s age nor disability were ever discussed or considered when the decision was made not to hire him. Finally, according to the personal respondent, he realized that telling the applicant that his age was a factor in the hiring decision would have been discriminatory. It would therefore not have made any sense for the personal respondent to have told the applicant that his age had a great deal to do with the decision not to hire him, particularly since, as I have found, it did not have anything to do with it.

ORDER

31The evidence did not establish that the respondents’ decision to hire the applicant was based on age or disability. Accordingly, the Application is dismissed.