HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Errol Platt
Applicant
-and-
Toronto District School Board
Respondent
DECISION
Adjudicator: Dale Hewat
Indexed As: Platt v. Toronto District School Board
AppearanceS
Errol Platt, Applicant ) Self-represented
Toronto District School Board, Respondent ) Wendy Lopez, Counsel
Introduction
1This is an Application filed March 11, 2009 under section 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) with respect to a human rights claim filed in May, 2006. The applicant, Errol Platt alleges that he has been subject to discrimination in employment on the basis of age. The applicant is currently a teacher with the respondent, the Toronto District School Board (the “TDSB”). He claims that he has been subject to differential treatment on the basis of age because he was not considered for a promotion to a position of a secondary school vice-principal in the TDSB despite qualifying and remaining on the TDSB Vice-Principal (Secondary) Promotion List (the “Promotion List”) pool of candidates for the period between November 30, 2001 and August 31, 2006. Based on his analysis of TDSB Promotion List data and the process for promotion, the applicant asserts that younger teachers advance to positions of Vice-Principal at a faster rate than older teachers: those being over 50 year’s old. The applicant claims that the TDSB Promotion process is systemically flawed resulting in differential treatment of the group of older teachers, of which he is a member. The applicant acknowledges that he does not have any direct evidence of age discrimination against him personally.
2The respondent has brought a motion to dismiss this Application on the basis that there is no evidence of individual discrimination or any reliable circumstantial evidence of discrimination before the Tribunal. Alternatively, the respondent submits that even if I find that the statistical information pertaining to the Promotion List is reliable, the applicant still fails to establish a prima facie case of discrimination as statistical evidence alone is not sufficient to meet the Tribunal’s threshold for a prima facie case of individual discrimination.
Decision
3The Application is dismissed. What follows are my reasons.
Background and Scope of Case
4This matter involved a number of preliminary rulings including defining the scope of the case and the type of evidence that would be led. In a Case Assessment Direction, dated March 12, 2010, I ruled that the evidence regarding the applicant’s claim of discrimination and any remedy that flowed would be limited to one year prior to the filing of the original complaint but that I would consider statistical data and analysis of the Promotion List for the period between November 30, 2001 and August 31, 2006 as relevant background information. In that Case Assessment Direction, I also confirmed that as an individual, the applicant cannot bring a claim of systemic discrimination on behalf of others on the Promotion List and that in proving his case, the applicant would need to link the statistical information to something in his actual hiring process that adversely impacted him on the basis of age.
5Following a further day of hearing on March 31, 2010, I issued a second Case Assessment Direction, dated April 29, 2010, which confirmed that the applicant did not have any direct evidence to show that any individual at the TDSB discriminated against him on the basis of age. The applicant also re-affirmed that he would be relying on the TDSB Promotion List data and the analysis of the information to establish age discrimination. In this Case Assessment Direction I ruled that depending on the outcome of the parties’ submissions with respect to the TDSB Promotion List data, additional TDSB witnesses may be required depending on whether the statistical data points to a prima facie case of discrimination on the basis of age.
The TDSB Promotion Process
6Chuck Hay, the Executive Officer for Employee Services for the TDSB testified about the Principal/Vice-Principal Selection, Promotion and Transfer Process. During the applicant’s tenure, there were two successive policies in place dealing with Selection, Promotion and Transfer.
7It should be noted that the applicant does not take issue with the TDSB process for placement on the Promotion List; rather, his claim of discrimination relates to how he was treated once he was on the Promotion List both as a candidate for promotion and the fact that he was not promoted to a Vice-Principal position during the period he remained on List. Nevertheless, it is important as background for this Decision to highlight the process for placement on the Promotion List in addition to the Promotion Process itself.
8In 1999 the TDSB adopted the Selection Promotion and Placement Process (“Selection/Promotion Process 1”) that involved a resume screening process, followed by an interview process and then placement on the respective Promotion List. The resume screening process consisted of Resume Highlights and a Screening Process meeting. Once a candidate was successful at the resume screening process stage, he or she proceeded to the Interview Stage. If a candidate was successful at this stage, he or she was placed on one of four respective Promotion Lists (Vice-Principal Elementary, Vice-Principal Secondary, Principal Elementary, and Principal Secondary). At the time of Selection/Promotion Process l, a selected candidate was allowed to remain on the Promotion List for three years.
9As part of the planning process, Transfer and Placement binders were prepared for each TDSB school trustee and supervisory officer which contained a copy of the Promotion List, candidate information and resume highlights, transfer and placement request forms from each of the current Principals and Vice-Principals requesting transfer, and the timelines for the Transfer and Placement Process. When most openings were known, the Executive Officer – Human Resources would convene meetings of school superintendents to draft plans for transfers of current principals and vice-principals and for promotions and placements of candidates on the Promotion Lists. The draft plans involved various levels of consultation with trustees, parent representatives, school superintendents and Principals to determine what type of qualifications and experience a particular school required having consideration of a school’s profile and unique needs, if any.
10In June 2003, the TDSB adopted a new selection process (“Selection/Promotion Process ll”), most of which contained the same components as Process l, but made some changes to the Screening and Interview Process with the addition of a selection process rubric and a transition process for candidates on the Promotion List under Selection l to remain on the Promotion List under Process ll. Mr. Hay also mentioned that the TDSB had created an Employment Equity Office which monitored and examined any disadvantaged groups and provided training and hiring practices involving issues of employment equity.
11Mr. Hay testified that in terms of filling vacancies, each Superintendent of Education with a school vacancy would speak about the school profile and provide any other information that would be helpful in identifying the candidate with the best skill set for an individual school’s needs. For example, Mr. Hay explained that in a French-Immersion, Special Education or Technical school, the desire of the Superintendent would be to find a candidate with a background and skill set in one of these specialities so that the needs of a school are best met.
12According to the TDSB, the Selection/Promotion process is open and transparent, noting that the policies and procedures are available to all TDSB employees in hard copy and electronically. Each school year there are at least two meetings to review the transfer and placement process for all the candidates on the Promotion List. There is no ranking of candidates on the Promotion List and the age of candidates is not known to anyone in the Selection/Promotion process. It was not disputed that there are more candidates in the Promotion List pool than actually get promoted.
13Candidates at any point in time may speak to their Superintendent of Education to seek feedback or suggestions on how to best position themselves for promotion. While the applicant agreed that the placement process does not discourage feedback and admitted that he had sought feedback in the past, he believed that, in reality, the placement process is not open and does discourage feedback. In that regard, he claimed that the meetings about candidate selection are held in private and that there is no input from the candidates. He did agree, however, that as noted in the Placement policy that feedback is available both at the screening process and interview process stage at the request of a candidate. The applicant testified that he did not seek feedback after he was not promoted to a Vice-Principal position in the spring or fall of 2005 or the spring of 2006. He explained that it was his perception that it was “an unwritten rule” to not to ask for feedback to understand why a promotion did not occur. He also claimed that his competence and suitability were never questioned by anyone at the TDSB during the period that he was on the Promotion List.
14In terms of the applicant’s tenure on the TDSB Promotion List, he was added to the Board’s Promotion List for Secondary Vice-Principals in November 2001. On June 14, 2004, the applicant was notified in writing that he was granted an extension under the new Selection/Promotion Process and was to remain on the Promotion List for Vice-Principal, Secondary until August 31, 2006.
15The applicant testified that in early July 2006 he was contacted by the Principal of Richview Collegiate and told that he would be interviewed for the Vice-Principal position at that school. The applicant also met with a former Vice-Principal of Richview who gave him more information about the school, including the fact that it was a French immersion school. The applicant was never contacted for an interview and later that summer decided to file a human rights complaint because he believed that he was not contacted due to his age. The applicant never asked why he was not selected for this promotion. He was not told any specific Vice-Principal qualifications for Richview Collegiate other than familiarizing himself with Richview’s school’s profile document on the TDSB website.
16The applicant’s tenure on the Promotion List ended in August 2006 and he has not re-applied for the Selection/Promotion Process since that time.
The TDSB Data and Analysis
17The parties agreed to review the TDSB data finalized on June 30, 2010 with respect to the rate of promotion of all Vice-Principal candidates on the Promotion List between 2001 and 2007. The applicant’s theory was that the analysis of the data showed that those candidates under the age of 39 had a higher rate of promotion to Vice-Principal than those candidates over the age of 50.
18Both parties had statisticians review the TDSB data to determine the rate of promotion and to provide opinions with respect to the applicant’s allegation of age discrimination. Each of the statisticians provided a report to the Tribunal and testified as an expert witness. Amanda Lafontaine testified on behalf of the applicant. She established that she had a bachelor’s degree in science, math and statistics and a master’s degree in statistics. She currently works in Toronto as a Senior Statistical Analyst for the survey-based marketing research firm Ipsos-Reid. Her previous work has included working as a statistician in the area of market research, loyalty programs and public affairs. As well she has had some experience in employment diversity analysis but no specific training in determining discrimination or in age discrimination.
19The respondent called Dr. Mark Killingsworth, a Professor of Economics at Rutgers University in New Brunswick, New Jersey, and a Research Fellow at the Institute for the Study of Labour. In his past experience he has been a consultant on employment discrimination issues to Princeton University, the U.S. Department of Justice, and the Chinese University in Hong Kong. He has served as an expert witness on affirmative action litigation and litigation involving allegations of discrimination both in the United States and Canada. He has also published numerous articles relating to statistical analyses of various labour markets.
20In her report, Ms. Lafontaine concluded that “there is a link between age and the placement of candidates into the Vice-Principal role during the period of the study and that the older group was far less likely than the younger group to be placed”. Ms. Lafontaine explained that she began her analysis of the Vice-Principal candidates by reducing the initial TDSB list to exclude those for whom there was no date of birth and those who were off the list prior to November 1, 2001. The remaining 161 individuals who were on the list at some point during the period of November 1, 2001 and August 2006 was the group that she examined.
21Ms. Lafontaine stated that her analysis tracked each of the 161 candidates based upon their age as of March 1 of the school year for each of the five school years noted in the Application, as well as for the following year. This “age” data was used to determine the promotion rates between the years 2001 and the school year 2006-2007. During her testimony, Ms. Lafontaine stated that she had assumed that the TDSB data that was provided represented a neutral group in the sense that every candidate on the Promotion List had an equal chance for promotion based on the fact that they qualified for promotion. By focussing on the rate of promotion solely based on age, Ms. Lafontaine applied a single variant rather than a multi-variant analysis. She did not consider the TDSB’s hiring and promotion process as part of her study.
22Ms. Lafontaine also examined the data on a school year basis versus an analysis done by semesters. In her testimony she explained that she chose to look at the data by year because the TDSB data provided was listings of candidates per year. She also believed that the sample by year was large enough to identify a pattern whereas examining the group of promotion candidates by semester would be too small a sample to identify a pattern of promotion.
23Three different techniques were used by Ms. Lafontaine to analyze the “age data” and to test for significance in differences in the promotion rates between the younger group and the older group in the pool (39 and under vs. 50 and over). The first analysis was an Adverse Impact Report evaluating promotion rates according to the “four-fifths rule”. In defining the “four-fifths rule” Ms. Lafontaine stated “A selection rate for any race, sex or ethnic group which is less than four-fifths or eighty percent of the rate of the group with the highest rate will generally be regarded by Federal enforcement agencies as evidence of adverse impact”. In each of the school years in question, Ms. Lafontaine found that “older” candidates (those over age 50) were selected at a rate less than 80% or 4/5ths of the rate of “younger” candidates that were selected for promotion.
24The second methodology that Ms. Lafontaine used was the “Fisher’s Exact Test” which is a test of statistical significance used to determine the probability of a particular outcome: in this case the rate of promotion, and whether this outcome could have occurred solely as a result of chance. This test is designed for situations in which the number of events (promotions) and objects (candidates for promotion) are small. Based on her analysis of the data using the Fisher’s Exact Test, Ms. Lafontaine concluded that there is a relationship between age and rate of promotion and that those who fall into the under 39 age group have a statistically significantly higher likelihood of being promoted than those who are over age 50.
25As an additional analysis, Ms. Lafontaine looked at the mean age of those who were promoted versus non-promoted per year and concluded that the mean age of those “not promoted” is significantly greater than those who “were promoted”. According to her report, the mean age for those promoted between 2001 and 2007 ranged between the ages of 40.66 to 45.3 while the mean age of those not promoted during that same time period ranged from ages 44.85 to 49.22.
26In her cross-examination, Ms. Lafontaine was asked if the rate of promotion could be influenced by factors other than age and she agreed that technically the rate of promotion could change if other factors were present. She also noted that if other factors were considered, the analysis of the data would not be of a neutral sample of candidates. Ms. Lafontaine also agreed that if, for example, special education training was a necessary qualification for a particular promotion to Vice-Principal, that a candidate on the Promotion List without such training could have a different chance at being granted the promotion. However, Ms. Lafontaine reiterated that she completed her analysis of the TDSB data based solely on the question asked of her by the applicant which was whether there was any statistical difference between the rate of promotion of candidates from the Promotion List based on age, assuming all candidates were equally ready for promotion if they were on the Promotion List. While she agreed, on cross-examination, that an individual’s chances of promotion might increase if the Promotion List was examined by semester because a candidate might be considered more than once for a promotion in any given year, Ms. Lafontaine restated that she was not asked to review the candidates’ promotion chances by semester. She did state that if the applicant had provided more detailed information about the number of opportunities for promotion per year, her analysis may have been done differently.
27A number of inconsistencies in her statistical analyses were pointed out to Ms. Lafontaine during her cross-examination, and she agreed that her chart of candidates was probably not accurate. When asked about whether her conclusions could be relied upon, Ms. Lafontaine answered “No” but qualified her answer by stating that she would want to revisit the numbers and determine which years would be affected by correcting any inconsistencies. Beginning with the number of candidates in the pool that she examined, Ms. Lafontaine agreed that she had miscalculated at least five individual candidates. For example, she did not take into account that some of the candidates in the pool had deferred their promotion placement opportunity in a particular year, and, therefore, would not have been considered for promotion during their deferral period. Instead, Ms Lafontaine included those candidates who had deferred promotion placement as continuing to have one opportunity for promotion in that time period. Ms. Lafontaine also didn’t consider whether someone voluntarily left the pool of candidates on the Promotion List. In addition, Ms. Lafontaine admitted to making a number of typographical errors in her report which if corrected may have resulted in different findings.
28In terms of the number of opportunities or chances for promotion in any given year, Ms. Lafontaine’s analysis did not take into account that the Promotion List was not static, in the sense that candidates moved on and off the list within each year for various reasons and that a candidate may be considered more than once for a promotion in each semester. She also agreed that in some cases, even though a candidate might have been promoted to Vice-Principal in November, she continued to count that candidate as part of the pool for the applicable school year. Ms. Lafontaine admitted that had she removed such candidates from the pool, the sample of promotion opportunities would have been smaller and the statistical result might change.
29With respect to the methodology used in her analysis, in cross-examination, Ms. Lafontaine disagreed that the four-fifths rule is not a statistical concept. She did agree that she is not an expert in the use of the rule or adverse impact analysis and that she had not studied it in University or applied the rule in her current work. She also admitted that the four fifths rule is not a measure of statistical significance but rather it is a measure of relationship patterns and that she would not draw conclusions solely from an adverse impact analysis solely based on the four fifths rule test.
30In Dr. Killingsworth’s evaluation of Ms. Lafontaine’s data analysis, he first differed in the interpretation and application of the four-fifths rule. Dr. Killingsworth noted that the four-fifths rule is used in the United States and that it is well-established that the rule is neither a statistical concept nor legal definition, but rather it is simply a rule of thumb. According to his report, the rule of four-fifths first appeared in the U.S. Government’s Uniform Guidelines on Employee Selection Procedures in the context of a larger discussion of “adverse impact” in employee selection. Furthermore, he explained that historically the rule was intended as a percentage number that field investigators with little or no formal training in statistics could use to flag disparities for further scrutiny. In paragraph eight of his evaluation, Dr. Killingsworth notes the following about drawing conclusions based on the four-fifths rule:
The 4/5th rule of thumb speaks only to the question of adverse impact and is not intended to resolve the ultimate question of unlawful discrimination. Regardless of the amount of difference in selection rates, unlawful discrimination may be present, and may be demonstrated through appropriate evidence. The 4/5ths rule merely establishes a numerical basis for drawing an initial inference and for requiring additional information.
31In addition to the Ms. Lafontaine’s tabulations based on the four-fifth’s rule, for which Dr. Killingsworth did not attribute any statistical significance, he also submitted that Ms. Lafontaine’s application of the Fisher’s Exact Test was flawed, and therefore the results were not meaningful. Dr. Killingsworth explained that during a given academic year, some individuals are in the pool of candidates for promotion for only the first semester, others for only the second semester, and still others for both semesters. Thus, in any year, some individuals have more opportunity to be promoted than do others. Furthermore, he noted that if there is an especially large number of promotions in one semester relative to the other, persons who are present only during that semester may have a greater opportunity to be promoted than they would have if they had been present only during the other semester of the same academic year. From Dr. Killingsworth’s perspective, Ms. Lafontaine combined the data for the fall and spring semesters of each academic year so that every candidate was afforded one opportunity for promotion, when in fact some were given more than one chance to be a candidate for promotion in one or both semesters.
32Dr. Killingsworth’s report also explained that the Fisher’s Exact Test as used by Ms. Lafontaine assumes that each promotion during a given academic year may be viewed as a random drawing with equal likelihood from all of the candidates who have not been promoted and does not take into account any differences in qualifications among the younger and older candidates or the specific qualification needs of individual schools. As a result, Dr. Killingsworth concluded that, given the way in which Ms. Lafontaine construed the data, her application of the Fisher’s Exact Test to the data cannot be expected to give any meaningful results. Even re-running Ms. Lafontaine’s data by semester, Dr. Killingsworth did not find statistically significant differences in the promotion rate in ten out of twelve semesters. He did find a higher rate of promotion for the younger group of candidates versus those over age 50 in the spring semesters of 2003-2004 and 2005-2006. He also found that the difference in promotion rate for workers age 40-49 versus workers under the age of 40 was not statistically significant in eleven out of the twelve semesters he examined with the lone exception of the spring of 2001-2002. While Dr. Killingsworth agreed that if all applicants were equal, then data that demonstrated a statistical significance would be evidence or discrimination. However, he also stated that any age differences in promotion, whether statistically significant or not, tell only about whether younger teachers enjoy better promotion rates and do not take into account any selection characteristics or qualifications criteria for different Vice-Principal positions within the TDSB.
33With respect to Ms. Lafontaine’s mean age test, Dr. Killingsworth stated that her report did not provide sufficient information for him to evaluate her results. For example, he noted that there is no explanation of how she calculated the candidates’ ages since they might they might turn a year older within any academic year. Additionally he posed the question “would someone not promoted in the fall semester but promoted in the spring semester appear twice (once as a promoted person and once as a non-promoted person)?” From Dr. Killingsworth’s perspective, the mean age test did not have background documentation to support the methodology used and, therefore, the application of the mean age test was also unreliable.
34In his conclusions, Dr. Killingsworth disagreed with Ms. Lafontaine’s assertion that the statistical evidence supported the applicant’s claim of discrimination in the process. Even assuming for argument’s sake that Ms. Lafontaine’s analyses have no flaws and that her results are statistically significant, Dr. Killingsworth argued that her analyses only showed that there is a difference in promotion rate for older and younger candidates and not whether the rate of promotion is as a result of age-related discrimination. In that regard, he noted that Ms. Lafontaine’s analyses did not offer any useful evidence concerning discrimination because they did not control for any factors other than age, such as years of service, prior experience, specialized training; that in his opinion might explain the difference, by age, in rates of promotion to Vice-Principal within the TDSB.
Submissions
35In its Request to dismiss this Application, the respondent argues that there is no evidence before the Tribunal to adjudicate as the applicant has not provided any direct evidence of individual discrimination or provided any reliable circumstantial evidence. In the alternative, the respondent argues that, even if the statistical evidence provided by the applicant is found to be reliable, the applicant has failed to set out a prima facie case of discrimination.
36In an individual case of discrimination the onus is on the applicant to establish a prima facie case of discrimination. In Ontario (Human Rights Comm.) v. Simpson-Sears Ltd.(1985), 7 C.H.R.R.D/3102 (S.C.C.) at paragraph 28, the Supreme Court of Canada explained that a prima facie case is one which covers the allegations made and, if it is believed, is complete and sufficient to justify a finding in the applicant’s favour in absence of an answer from the respondent. It is also well established that the threshold for showing a prima facie case of discrimination is not high and that where an applicant fails to establish a prima facie case, it is neither legally correct nor fair, just and expeditious to proceed with the application and to require the respondent to bear the onus of making out a reasonable defence. See Jagait v. IN TECH Risk Management, 2009 HRTO 779.
37The applicant claims that he has shown that the TDSB placement process is systemically discriminatory and has resulted in age discrimination against older candidates on the Promotion List, of which he was a member. While agreeing that he had no evidence of individual discrimination, the applicant asserts that he has shown that there is systemic age discrimination within the TDSB placement process based on the statistical evidence provided by Ms. Lafontaine. In addition, the applicant states that through the course of this hearing it was shown how the TDSB placement policy is systemically discriminatory on the basis that it is a subjective, informal, and unmonitored process with no interaction with a candidate, in terms of an interview, for example, once an individual is placed on the Promotion List. The applicant further states that the TDSB has not shown a willingness to monitor or analyze the results of the placement process during the five years that he was on the Promotion List even when he raised his concern about age discrimination in 2003 to the Human Rights Officer of the TDSB or when he approached his Superintendent and Chair of the TDSB in 2005.
38The applicant also argues that the Tribunal should not take into account the fact that Ms. Lafontaine based her evaluation using single academic years rather than semesters. He claims that in this Application the review of the TDSB data was to be done by school year commencing in the 2001 and ending in 2006 and that that had been the “tacit” agreement between the parties of how they would analyze the data. He also claims that the respondent’s critique or Ms. Lafontaine’s evidence using the semester approach was only revealed in September 2010, when the respondent presented, for the first time, data broken down by semesters. Alternatively, the applicant states that notwithstanding the small semester samples, the data for the spring semester of 2005/2006 revealed discrimination on the base of age.
39It is the applicant’s contention that the term “equal” in the context of this case means that once a candidate is on the Promotion List, he or she is ready to be promoted to a Vice-Principal position and that no candidate is superior to another. Since the candidates are not ranked on the Promotion List, unlike candidates in the former Scarborough School Board, the applicant insists that this represents a clear indication that all candidates are equal once placed on the Promotion List. In this regard, the applicant claims that Dr. Killingsworth incorrectly suggested that other factors are taken into account when promoting a candidate to Vice-Principal. Furthermore, the applicant states that although there was conjecture by the respondent that each school sets out its own selection criteria, there is no evidence to support the respondent’s position.
Conclusion
40Having reviewed all of the evidence and testimony, I find that I cannot rely on the evaluation of the TDSB data and evidence presented by Ms. Lafontaine and I instead prefer the evidence and evaluation provided by Dr. Killingsworth. Most significant is the fact that Ms. Lafontaine admitted that given the errors and inconsistencies in her analyses, the report she prepared was not correct and the conclusions that she reached could not be relied upon. In addition, although Ms. Lafontaine has extensive experience as a statistician, she did not have specific experience in analyzing evidence to determine adverse impact and age discrimination.
41The evidence of Dr. Killingsworth was more compelling for a variety of reasons. Dr. Killingsworth concluded that even if one ignores all of the defects in Ms. Lafontaine’s report and even if one assumes that all of her results are statistically significant at conventional level tests used by economists, the statistical evidence would still not support a claim of age discrimination. Although it was agreed by the parties that all candidates on the Promotion List were deemed ready to be considered for a promotion to Vice-Principal, I agree with Dr. Killingsworth’s observation that by only using the factor of age to evaluate the TDSB data, other relevant factors were missed that might explain a difference in rate of promotion. In other words, I agree with Dr. Killingsworth that each candidate on the Promotion List possesses different skill sets, experience and qualifications, and that those factors are required to be taken into account by the respondent when filling vacancies since each school has different needs and expertise depending on its school profile.
42Ms. Lafontaine’s analyses assumed that the candidates on the Promotion List were equal because they are ready to be promoted. The applicant also submitted that because the TDSB policy for Selection, Promotion and Placement of School Principals and Vice-Principals specifies that candidates will not be ranked, this is a further indication that all candidates have an equal chance for promotion and that there are no other factors or considerations that would place one candidate ahead of the others. Further, the applicant concluded that the respondent did not provide any evidence to show otherwise.
43I do not agree with the applicant’s submissions regarding equality of the candidates in the pool for promotion. The respondent presented evidence, which was not disputed by the applicant, that each candidate possesses different qualifications, experience and professional development. Documentary evidence of the TDSB Selection, Promotion and Transfer Process was also presented and it was agreed that this policy is readily available on the TDSB internal and external website and is provided to all candidates who attend Transfer/Promotion Information meetings. Sections of the policy were highlighted in evidence which show that as part of the promotion process, candidates on the Promotion List are still required to submit a form that summarizes personal and professional information for each candidate including administrative and program strengths and interest, resume highlights, and an indication of preferences for geographic/community and type of school that he or she is seeking. As a result, while all candidates on the Promotion List are ready for promotion, it is evident they are all unique in terms of individual skills, qualifications and experience, and, therefore, each candidate’s administrative strengths, resume and school preferences are reviewed as part of the process to match a candidate to an individual school’s particular needs and profile.
44Mr. Hay also testified about how candidates who have a background, for example, in French, Special Education, or Computer training may be more qualified to address the needs of a French Immersion, Extended French, Special Education or Technical school. While reiterating that she was not asked to look at criteria other than age, Ms. Lafontaine also agreed that if other factors had been taken into consideration, the pool of candidates that she was analyzing would not have been neutral. As a result, she commented that the statistical analysis and conclusions might have been different since a candidate without specific qualifications might not have the same chance at a promotion.
45Ms. Lafontaine also did not consider or apply any of the considerations of the TDSB Selection, Promotion and Transfer Process in her analyses of the data, thus her conclusions only represent one factor out of many that could affect a candidate’s chance of being selected for promotion. What makes more sense is that in assessing candidates who are on the Promotion List, the respondent takes into account qualifications, experience and professional development in order to ensure that the hiring process promotes the most qualified candidate available for a particular vacancy.
46I also do not find that there was a “tacit” agreement between the parties that the TDSB data would only be reviewed based on a yearly analysis and not by semesters. While the Application concerned the applicant’s yearly tenure on the Promotion List and reference was made to reviewing the rate of promotions for the school years beginning in 2001 through to 2006, there were no stipulations or restrictions made about how the data could be reviewed. In terms of examining what actually happened with promotion opportunities or chances for promotion each year, the evidence provided by the respondent was more useful because it demonstrated that the pool of candidates on the Promotion List was constantly changing and that within a school year a candidate might be considered for promotion more than one time. Thus, what actually occurred in terms of the number of promotional opportunities each school year was in fact very different than the number of opportunities counted by Ms. Lafontaine in her report. For this reason, I also conclude that the report prepared by Ms. Lafontaine did not represent an accurate picture of the experience of the candidates on the Promotion List between the school years 2001 and 2006.
47The applicant has also not established a prima facie case that that the respondent’s Hiring and Promotion Process was systemically flawed. The evidence did not show, as alleged by the applicant, that the respondent’s Policy and Promotion Process was “informal”, “discretionary” and “subjective”, resulting in a pattern of discrimination against a group. Instead, what was presented by the respondent were documents that outlined sophisticated and detailed policies with respect to both applying for the Promotion List and the Hiring and Promotion Process once a candidate is in the pool for promotion. The evidence of Mr. Hay also established that the respondent has reviewed and monitored its hiring policies with respect to employment equity.
48What is also significant in terms of transparency of the hiring and promotion process is that teachers have full access to the respondent’s policies and have opportunities to seek feedback with respect to promotion opportunities at any point in the hiring process. Meetings occur between Superintendents and School Principals and School Trustees without Promotion candidates being present, and such meetings occur depending on the existence of vacancies throughout a school year and are an important part of the first stage of the hiring process where consideration of candidates’ qualifications and needs of a particular school are canvassed. Candidates are also afforded the opportunity to provide additional information, which may be considered, with respect to specific qualifications, professional development, plus preferences for schools, community and geographic location.
49Based on my review of the evidence and the findings, I conclude that the applicant has not met the test for establishing a prima facie case of discrimination on the basis of age. The respondent’s motion to dismiss this Application is upheld. Accordingly, this Application is dismissed.
Dated at Toronto, 12th day of October, 2011.
”signed by”______________
Dale Hewat
Member