HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Paul Whillans Applicant
-and-
Ministry of Community Safety and Correctional Services Respondent
DECISION
Adjudicator: Leslie Reaume
Indexed as: Whillans v. Ontario (Community Safety and Correctional Services)
APPEARANCES
Paul Whillans, ) On his own behalf Applicant ) )
Ministry of Community ) William Robinson, Safety and ) Counsel Correctional Services, ) Respondent )
1This Decision arises from an Application filed by Paul Whillans against the Ministry of Community Safety and Correctional Services alleging discrimination in the context of a job competition on the basis of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The competition was conducted for two identical positions and involved three phases which each candidate had to pass: the initial screening of resumes; an assignment; and an interview. The applicant passed the resume screening stage and was offered an opportunity to complete the assignment. The applicant failed to advance beyond the assignment phase to the interview. He alleges that his failure to advance to the interview stage and ultimately secure the position was due to discrimination on the basis of his age.
3The respondent denies the applicant’s allegations and argues that the applicant’s performance on the assignment prevented him from advancing in the competition.
Procedural Issues
4The pre-hearing phase involved a Request for Order from the respondent seeking the removal of Dr. Guzzo, the manager in charge of the competition, as an individual respondent to this Application. The Tribunal rendered an Interim Decision removing Dr. Guzzo as a respondent on October 15, 2009.
5In addition, the parties participated in a pre-hearing conference call to deal with the respondent’s objections over certain witnesses the applicant proposed to call. That issue was deferred and ultimately resolved when the applicant determined that it would not be necessary to call one of the witnesses in question and the Tribunal declined to hear from the second. The second proposed witness was one of the successful candidates in the competition, referred to in this Decision as P.D. The decision of the Tribunal not to hear from P.D. was based on the fact that the witness herself could not shed light on the competition process since that knowledge was almost exclusively within the knowledge of Dr. Guzzo. In addition, her testimony was not necessary for the purpose of comparing her qualifications with the applicant’s should that become necessary at some point in the hearing process.
6A hearing was held November 17 and 18, 2010, and March 14, 2011 in North Bay, Ontario. At the outset of the hearing the applicant requested permission to tape record the hearing. The request was denied on the basis that the applicant intended to use the recording for other potential proceedings against the respondent. I indicated to the applicant my concern that under those circumstances, the recording might cause the witnesses for the respondent to feel intimidated, although it was clear to me that the applicant did not intend for this to be the case.
7The parties agreed to defer submissions in relation to the appropriate remedy until a finding of liability was determined.
Witnesses
8The Tribunal heard oral evidence from the applicant as well as Dr. Guzzo and Barbara Morin. Dr. Guzzo was in charge of the competition. Barbara Morin is a recruitment specialist with the Northern Recruitment Centre whose role was to assist Dr. Guzzo in developing the competition.
Agreed Facts
9At the commencement of the hearing, the parties indicated their agreement to the following facts:
On March 2, 2009, the Ministry posted Job ID: 14812, a job vacancy for the Strategic and Operational Initiatives Branch of the Ministry. The Ministry sought to hire two Program Effectiveness Analysts (“PEC 19”).
Dr. Guzzo is the Acting Manager of Program Effectiveness, Statistics & Applied Research in the Strategic and Operational Initiatives Branch of the Ministry and has held this position since 2004. In that capacity, Dr. Guzzo was responsible for the hiring of the two Program Effectiveness Analysts.
On March 9, 2009 the applicant saw a job advertisement on the Ontario Public Services website for two Program Effectiveness Analysts at the Ministry of Community Safety and Correctional Services in North Bay. The job posting closed on March 16, 2009.
In total, the Ministry received 110 applications for these two positions. The resumes were received by the Northern Recruitment Centre, and provided to Dr. Guzzo. The resumes were then screened by Dr. Guzzo. The applicant passed this stage of the screening.
From the pool of 110 applicants, the respondent identified 15 people as meeting the selection criteria. Each of those 15 applicants was invited to complete the “evaluation framework” assignment as a screening tool. The question was sent to the 15 candidates on behalf of the Ministry by email at 4:00 p.m. Friday, April 17, 2009. The applicants were given until Monday, April 20 at 4:00 p.m. to complete the assignment and return it to the Ministry. In total, 13 assignments were received by the Ministry, and each of them was scored by Dr. Guzzo.
A benchmark of 70 percent was used to determine who would be interviewed. There were 6 candidates who obtained high-enough results on the assignment to secure an interview.
The applicant did not meet this threshold. In total, the applicant scored 41 percent on his evaluation framework assignment.
10From the evidence it is possible to identify further facts which were not in dispute:
The competition proceeded in three parts: the screening of applications; an assignment; and an interview.
Each part of the recruitment process was “non-cumulative”. In other words, each candidate had to pass the threshold for each stage in the process and their scores from the previous stage were not carried forward. The sole basis for moving forward to the interview was the candidate’s score on the assignment.
Dr. Guzzo conducted the screening of the applications, designed the parameters for the assignment and graded the assignment.
The only stage in the process at which there was a selection board was the interview stage. Dr. Guzzo sat on the board with two other members.
11The respondents do not dispute that the applicant likely possessed many of the skills required for the position. The same is true, in their view, for the other 14 individuals who were screened into the assignment phase of the competition.
Burden of Proof
12The Code prohibits discrimination in relation to employment on the basis of age including the context of a job competition. Discrimination is not defined in the Code, however, it has been consistently defined by the Tribunal and the Courts in the statutory context to mean adverse treatment on the basis of a prohibited ground (Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (S.C.C.), [1985] 2 S.C.R. 536; Andrews v. Law Society of British Columbia, 1989 CanLII 2 (S.C.C.), [1989] 1 S.C.R. 143). In this case, the adverse treatment or disadvantage is the failure to advance in the competition and ultimately secure the position. The question is whether that disadvantage is connected in any way to the applicant’s age.
13The applicant was successful at the first stage of the recruitment process. He did not advance beyond that stage. The parties agree that the onus is on the applicant to establish, on the balance of probabilities, that there is a connection between the prohibited ground of age and his failure to advance in the competition. In addition, in order to secure a remedy which would involve treating the applicant as if he would have been the successful candidate, he also has the onus of proving that it is more likely than not that he would have been hired at the conclusion of the interview process. The applicant is not required to prove that age is the sole factor in his failure to advance in the competition. It is sufficient that he prove that age was one factor.
14The respondent was ably represented by counsel. The applicant was unrepresented throughout the hearing, although in my view he did a very good job of conducting his own testimony, the cross-examination of the respondent’s two witnesses, and presenting his theory of the case in his final submissions. I did, however, take time to explain to the applicant the legal elements involved in a human rights analysis to ensure that he understood the necessity to call evidence in relation to these principles
Decision
15For the following reasons, I have concluded that although the competition was flawed and there is evidence that the internal candidates who were ultimately successful in the competition were advantaged during the assignment phase, there is insufficient evidence to establish that age was a factor in the applicant’s failure to advance from the assignment phase to the interview. I have considered the applicant’s evidence both from the individual perspective (was the applicant’s age a factor?) and the systemic perspective (did some aspect of the assignment disproportionately disadvantage people over a certain age?). Given these findings, I have found it unnecessary to consider whether it is more likely than not that, if he had advanced, the applicant would have been hired and, as a result, I have not conducted an extensive review of the evidence in relation to this issue.
Applicant’s Evidence
16The applicant testified that the positions that were the subject of the competition involved work that he had done for the respondent in the past. He testified that between 1982 and 1995 he had progressed through various positions of increasing authority with the respondent. He described his career as an evaluation specialist in the 1980’s and the 1990’s as illustrious. There was no evidence to the contrary. The applicant left the respondent in 1995 to embark on other career opportunities. He was in the process of winding up a previous job in early March 2009 when he saw the respondent’s advertisement for the two PEC 19 positions.
17The applicant applied for the positions. He testified that the first contact he had from the respondent after he filed his application occurred late Sunday, April 19, 2009 when he returned from a weekend out of town. At that time he reviewed the email inviting him to participate in the assignment phase of the competition. The email had been sent to him at 4 p.m. Friday, April 17, 2009. On that day, the applicant had been at Correctional Services writing an assignment for another position. He testified that he left directly from there for the weekend and consequently did not have notice of the assignment until Sunday evening when he returned home. The assignment was to be completed by the next day, Monday, April 20, 2009 at 4 p.m.
18The applicant candidly acknowledged that because of the limited time he was not able to produce his best work in relation to what he described as a “massive” assignment. He did, however, make the assumption that everyone else was “in the same boat” and, as a result, he felt that his assignment would be competitive. The applicant testified that after he sent the assignment in to meet the deadline, he immediately regretted having done so and sent an email asking for an extension to make revisions. The applicant testified that he did not receive a response and he was unable to locate a copy of the email. Dr. Guzzo testified that she could not recall receiving a request for an extension from the applicant, however, she had granted one extension to another candidate and could see no reason why she would have refused the applicant’s request.
19The applicant testified that he waited until mid-May and then inquired about the status of the positions, at which time he was informed that he had not been invited to the interview. At this stage, the applicant’s contact was with Ms. Morin at the Northern Recruitment Centre.
20The applicant exchanged correspondence with Ms. Morin and her staff and did raise a concern with them that he may have experienced discrimination because of his age. He felt that it was possible his history and experience had not been properly valued or that it had been treated by the respondent as if it was dated. Eventually a conference call took place during which the applicant, Ms. Morin and Dr. Guzzo spoke about the competition. Neither Ms. Morin nor Dr. Guzzo would address the allegations of age discrimination except to say that in their view age was not a factor. The applicant described the debrief as providing him with very little useful feedback.
21The applicant testified that he had a significant concern about the assignment because it was, in his words, “the exact topic” of a master’s thesis authored by a student at the University of Saskatchewan and published nine months prior to the job posting. The applicant was able to get a copy of the 142 page thesis just before the assignment was due, however, he alleges that having based the assignment on a recent thesis, Dr. Guzzo provided an advantage to younger candidates who were more recent graduates and would have had more ready access to the thesis than the general public.
22The applicant testified about the process which he employed to acquire a copy of the thesis. When he initially “googled” the assignment topic he did not get a link to the thesis. However, just prior to submitting the completed assignment he tried again, this time googling Dr. Steven Warmuth and the assignment topic. The applicant testified that Dr. Warmuth was well known in the corrections community and had at one time been Dr. Guzzo’s supervisor. In his view, the general public would have been disadvantaged in accessing the thesis unless they had been young enough to be a recent graduate in the subject area.
23The applicant testified that his understanding about the connection between the thesis and Dr. Guzzo’s competition evolved over time. He testified that he was able to find out that the thesis was conducted partly under the supervision of Dr. Guzzo and that the top-ranking candidate in the competition, P.D., was acknowledged for her assistance with the thesis. He testified that he assumed that others in the competition might also know about the thesis including one candidate who also happened to work with Dr. Warmuth as his thesis advisor. In his view, it defied credulity that in a small masters program the candidates would not be aware of each other’s work. The applicant also testified that the second successful candidate, G.W., would be in a position to know about the thesis because he was working for the Ministry of Community Services. He also speculated that another candidate who worked in corrections in Saskatchewan may have also had knowledge of the thesis.
24Apart from the subject matter of the assignment, which in the applicant’s view was inappropriately tied to the internal work of Dr. Guzzo’s department, the applicant testified that it was unfair that there was no control for when a person would receive the assignment. The applicant felt he was disadvantaged by what he regarded as a serious flaw in the process because he picked the assignment up within hours of the due date.
25The applicant testified that he conducted his own statistical analysis of the candidates who participated in the assignment. He used the resumes that were disclosed to him in the hearing process to create a rough calculation of their ages. In his view, there was a high correlation between age and doing less well on the assignment. He testified to his belief that his own analysis supported a finding that the younger you were the more likely you were to have access to the critical information that lead to a higher score on the assignment. In his view the only logical reason for a negative correlation between the assignment and age is that younger people would tend to have easier access to or knowledge about the thesis. He testified that this contaminated the validity of the assignment – there was no other logical reason why there should be a negative correlation between age and grades on the assignment.
26The age of the candidates who moved on to the assignment phase was not known to any of the parties. In order to create his own analysis, the applicant testified that he made certain assumptions about age based on factors such as the date when a person graduated and the number of years of work experience.
27The respondent objected to the introduction of a chart created by the applicant which demonstrated his belief about the likely age of each of the candidates. I permitted the applicant to admit the chart and provide a full explanation of his methodology and findings in order to determine whether, in fact, the exercise was purely speculative or reliable.
28During cross-examination the applicant acknowledged that in calculating the age of the candidates in the assignment phase of the competition, he made an assumption that people had not tailored their resumes specifically for the competition and he did not take into account life experiences which may have caused someone to start their education or career at a later stage in their life. As he had done throughout his testimony, the applicant candidly admitted that he could be wrong about the ages he had assigned to the candidates but that he had done his best with the information he had available to him.
Respondent’s Evidence: Barbara Morin
29Barbara Morin testified that she worked as a recruitment consultant with the Ministry of Government Services Northern Recruitment Centre and that her role was to assist hiring managers like Dr. Guzzo in filling their vacancies.
30She conducted an engagement meeting with Dr. Guzzo where they discussed the nature of the position, the skills and knowledge required, the pool of candidates they would be seeking, and the best targeted approach to the recruitment process. Ms. Morin testified that they considered a posting strategy, barriers to recruitment, and elements of the position which were bona fide occupational requirements as opposed to irrelevant considerations.
31Ms. Morin testified that she played a role in facilitating the determination of the selection criteria as well as posting the job ad and collecting resumes, however she was not involved in the evaluation of the resumes or the marking of the assignment.
32Ms. Morin had no role in the development of the assignment and was unable to say with any certainty when the decision was made to conduct the assignment phase. She testified that it was possible that it was decided after the review of the resumes.
33Ms. Morin understood that the purpose of the assignment was that there were 15 candidates who had passed the initial screening and that Dr. Guzzo was going to use the assignment to further assess the technical skills of the candidates and narrow the field.
34With respect to the distribution of the assignment, Ms. Morin testified that this was initially her role, however, she had to be away from the office when the assignment needed to be sent out and as a result Dr. Guzzo’s staff took over this task.
35There was a discrepancy between the testimony of Ms. Morin and the applicant about the timing of the receipt of the assignment. Ms. Morin testified that she was involved in the debriefing meeting with Dr. Guzzo and the applicant which took place by telephone. She took notes during the meeting. She testified that “Paul confessed that he did see the email” and she recalled writing it down because she believed that he was admitting to seeing the email on the Friday afternoon rather than the Sunday evening. She testified that the applicant had made mention of the fact that there was not a lot of time to complete the assignment and as a result, when she heard him say that he had seen the assignment on Friday, she felt it was important enough to record.
36On this point the applicant testified that Ms. Morin may have misunderstood him. He testified that what he actually said was that he was at “Corrections” that Friday working on an assignment for another position but that he left for the weekend without receiving the notice of the assignment for the PEC 19 positions.
37I have resolved this issue in the applicant’s favour. I was impressed with his candour at a number of points during his testimony including the admissions he made about the quality of his assignment and his assessment of the ages of the candidates in the assignment phase. He testified that during the debrief he was simply in search of some answers about why he had not advanced in the competition. The applicant was adamant that he would never have said that he received the assignment on the Friday because it was not true, although he could understand why Ms. Morin might have confused what he was saying. In my view, the applicant’s explanation of the potential for confusion over this issue is credible.
38During her cross-examination, Ms. Morin admitted that it was her role to advise Dr. Guzzo on best practices in the hiring process. She testified that the position of PEC 19 was located in a group that ranges from PEC 13 (or 14) to PEC 21, and that there are specialized skills and knowledge required for the position.
39She testified that it was her understanding that the competition was open to the public rather than internal because they were looking at a search area big enough to produce three candidates for the two positions available and potential future needs. Ms. Morin testified that she and Dr. Guzzo agreed that there was not a big enough pool internally to produce three candidates.
40Ms. Morin was questioned by the applicant on the best practices associated with the kind of assignment produced by Dr. Guzzo. Ms. Morin was asked specifically about the fact that the materials designed to assist managers with recruitment suggest that they should not test candidates on their knowledge of internal operational matters. Ms. Morin responded that knowing what she now knows about the assignment, she would have asked Dr. Guzzo if she expected someone from the outside to be able to answer the question. She was not, however, aware of the existence of the thesis until the applicant raised his concern after the competition about the potential relationship between the thesis and the assignment.
41Ms. Morin was asked if she would have advised Dr. Guzzo to abandon or rethink the assignment question if she had been aware of the possibility of insider knowledge and a similarity between the thesis and the assignment question. Ms. Morin responded that if she thought the assignment contained a similar scenario she would have suggested using something else.
Respondent’s Evidence: Dr. Guzzo
42Dr. Guzzo confirmed that she was attempting to fill two PEC 19 positions and that she chose to open the competition to the public because it was her sense that the Ontario Public Service was limited with respect to research and evaluation candidates with the specific technical skills she required. She also confirmed that these were not entry level positions but rather the second most senior positions in her unit.
43Dr. Guzzo testified that she had 110 candidates at the resume screening stage and the purpose of the assignment was to help further narrow the pool. It was developed, according to Dr. Guzzo, to evaluate a potential candidate’s ability to demonstrate the selection criteria.
44Dr. Guzzo testified that she personally knew some of the candidates in the competition. One of the successful candidates, P.D., was working in her unit. A second successful candidate, G.W., had previously worked in her unit while she was the manager. A third candidate was known to her because she was the student of a leading criminology expert and Dr. Guzzo had read a number of her research papers. Dr. Guzzo also knew the applicant because he applied to another position as a business analyst and was invited to the interview stage for that position in April 2009.
45She testified that once the 110 resumes were narrowed to 15 candidates she had to make a decision to either interview all 15 or narrow the field further. She chose to implement the assignment. She wanted the assignment completed over a short period of time (three days) and preferably over a weekend when she assumed people were not working. Dr. Guzzo candidly admitted that she regretted the timing of the assignment and if she was to do it again she would give advance notice to the candidates.
46With respect to the actual assignment, Dr. Guzzo testified that the assignment question provided the candidates with background information regarding the service delivery model used in corrections. She testified that the best practices that serve as the foundation of that model are based on key principles that are widely known within Canadian criminology course work and are commonly used in corrections. She testified that the applicant would not have been disadvantaged because he had several years of experience in corrections which would have assisted him in developing an appropriate evaluation framework.
47Dr. Guzzo admitted that the internal candidates may have had an advantage, however she testified that it was still possible for someone without their knowledge to do well on the assignment. There were three people other than the two successful candidates who did well enough on the assignment to be screened into the interview stage. At the interview stage, the candidates were assessed by a panel which included Dr. Guzzo and two other members. The scores from the previous stages were not cumulative and therefore, theoretically, any of the five candidates at the interview stage could have been successful.
48Dr. Guzzo denied that the successful candidate who was working within her unit, P.D., ever worked on the thesis itself. She testified that P.D. extracted data from an offender tracking information system and gave the data to the researcher who ultimately wrote the thesis. Dr. Guzzo did admit that P.D. would have some knowledge of the methodology of the thesis and, as a result of her work, knowledge of the data available to solve the problem in the assignment.
49The applicant was able to make a number of points through the cross-examination of Dr. Guzzo. Dr. Guzzo testified that she had established an assignment with a limited timeframe in order to ensure that every candidate had equal time and equal access to information. And yet she admitted that one candidate received an extension, that others had knowledge of the delivery model that was the subject of the assignment, and that she evaluated the model in part on knowledge of the data that would be used to answer the assignment question and which P.D. was very familiar with. Dr. Guzzo did not deny that P.D. had an advantage or that people working in corrections would be advantaged in general. However, the point being made by the applicant is not that the internal candidates had a general advantage because they were immersed in the world of corrections, but that they had a specific advantage at the assignment phase because the assignment question was based on work they had actually done or were doing while they were being supervised by Dr. Guzzo.
50Dr. Guzzo testified that the two positions that were the subject of the competition were the second most senior positions in the unit and would have been too senior for recent graduates. She also acknowledged that given the senior nature of the position it would likely require a degree, and yet P.D. had some university credits as compared to the applicant who held a master’s degree. Dr. Guzzo’s explanation for advancing a candidate through the process who did not have a degree was that she did not discriminate on the basis of credentials and that people with relevant experience can also be successful.
51In addition, the documentary evidence was of little assistance in supporting Dr. Guzzo’s testimony that the competition was fair. During the process of reviewing the material that she had retained from the competition, Dr. Guzzo admitted that at the time of her testimony she was not able to correlate the scores of the candidates with the selection criteria she had developed at the commencement of the process.
Conclusions
52While the evidence supports a finding that the internal candidates were advantaged at the assignment phase of the recruitment process, my role is to determine whether there is evidence of age discrimination.
53The applicant makes three essential arguments to support his allegation that age was a factor in his failure to advance in the competition and ultimately secure the position:
Despite the fact that he had a long and successful career with the Ministry, including work which was substantially the same, in his view, as the position posted, his experience was devalued because it was not recent. In support of this he relies on the representations made by the respondents and the admission by Dr. Guzzo that his experience may have been perceived as dated and this may have affected Dr. Guzzo’s evaluation of his work at the assignment phase;
The assignment was based on a thesis which was available in the public domain, however it would have been known and understood to be available to younger, more recent graduates. His own statistical analysis, based as it is on assumptions about the ages of the candidates in the assignment phase, suggests a negative correlation between age and doing well on the assignment; and
The process was inherently flawed, lacking in objective standards, which is the kind of circumstance where discrimination tends to flourish.
54With respect to the first point, the applicant passed the first stage of the screening, although I take his point that he was rated lower than he would have expected on the resume screening given his experience. He wondered if this was the result of an attitude that his experience was dated and he was concerned that this attitude may have persisted through the assignment phase.
55Dr. Guzzo did testify about the possibility that the applicant’s experience was dated. She did not give any indication that this was a barrier of any kind to the applicant’s progression in the competition - she simply had a question about what his experience would have been up to 1995 and how it would relate to the work being done today. She also testified that when she was grading the assignments she did not review the resumes again or factor in the experience of the candidates in evaluating their work. Had the applicant not succeeded in being screened into the competition, I may have attached more weight to the issue of his experience being dated.
56In my view, the most likely explanation for the low scoring at the resume stage is that there was an unfortunate mix up in the competition process. The applicant applied for a number of positions including one which was not as senior as the PEC 19 positions. Dr. Guzzo was also managing that competition. The resume for the more junior position contained far less detail than the resume submitted for the PEC 19 positions. Somehow those resumes were switched and the applicant was evaluated on the basis of a resume in PEC 19 competition which contained far less information than he had intended to present. Having considered the evidence on this point, I find that there is insufficient evidence that the applicant failed to advance in the competition because of the view that his experience was dated.
57With respect to the applicant’s second point, the existence of the thesis and its connection to the assignment, I agree with the respondent that even if the applicant could demonstrate that students and recent graduates in the field of criminology would have an advantage in obtaining the thesis, there is no evidence to establish the age of that graduate level demographic. More importantly, the strongest evidence that age was not a factor in the acquisition of the thesis is the fact that the applicant was able to obtain it himself using a simple Google search and his own knowledge of corrections. Using that knowledge he was able to make a connection between the assignment question and Dr. Warmuth, a researcher who was well known in the field.
58With respect to the applicant’s analysis of the correlation between age and doing poorly on the assignment, his findings suggested that the four lowest scores on the assignment were people in their 40’s and 50’s. I agree with the respondent, however, that there were too many assumptions underlying the calculation of the ages of the candidates for the applicant’s conclusions to be reliable. In addition, even if I accepted that the ages were more or less correct, I have already indicated that I do not accept the applicant’s explanation for that correlation, namely that a younger demographic would have had access to the thesis and therefore an advantage in answering the assignment question.
59I note here that there was no evidence that any of the candidates who scored well enough to pass on to the interview stage actually had access to the thesis. I did accept, however, that the applicant was making a reasonable assumption that given her work on the data underlying the thesis, P.D. would have that knowledge. This was later confirmed by the testimony of Dr. Guzzo. Similarly, there was no evidence that those people who did not do well on the assignment did not have access to the thesis. The applicant himself acquired the thesis and, with more time, he assumes that he would have been able to incorporate the insights from the thesis into his assignment for a better grade. And yet this runs directly counter to his assertion that access to the thesis and therefore doing well on the assignment was restricted by age.
60In my view, there are two important factors which explain why the applicant failed to advance at the assignment stage of the competition: the nature of the question and the timing of the assignment.
61Dr. Guzzo testified that she regretted the manner in which candidates were advised about the timeframe for the assignment. The applicant was clearly disadvantaged by the decision to send the assignment out at 4:00 on a Friday without any controls for ensuring that people received the message and had equal time to prepare their response. The result was that the applicant rushed to produce what he candidly acknowledged was not his best work.
62Dr. Guzzo did not deny that the internal candidates who were ultimately successful were advantaged by the assignment question. The applicant argued that the competition was lacking in objective standards and that this is precisely the kind of environment in which discrimination can flourish. However, after a careful review of the evidence and testimony of the witnesses, I am unable to conclude on the balance of probabilities that there is sufficient evidence to establish that age was a factor in the applicant’s failure to advance to the interview stage of the competition.
63For all of those reasons, the Application is dismissed.
Dated at Toronto, this 1st day of September, 2011.
”signed by”______________
Leslie Reaume
Vice-chair