Deane v. Ontario (Community Safety and Correctional Services), 2011 HRTO 1863

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anna Deane

Applicant

• and-

Her Majesty in right of Ontario, as represented by the Ministry of Community Safety and Correctional Services, Oscar Mosquera and Stephen Waldie

Respondents

decision

Adjudicator: Brian Cook

Date: October 18, 2011

Citation: 2011 HRTO 1863

Indexed as: Deane v. Ontario (Community Safety and Correctional Services)

APPEARANCES / wRITTEN SUBMISSIONS

Anna Deane, Applicant ) Self-represented

Ministry of Community Safety ) and Correctional Services, ) Oscar Mosquera and Stephen Waldie, ) Respondents ) Jinan Kubursi, ) Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges discrimination in employment on the basis of age.

2The applicant was a member of the Ontario Public Service. She started her employment in 1989. In 2000, she started a series of secondments within the Ministry of the Attorney General and never returned to her “home” position, which was a Senior Client Representative in the office of the Ontario Public Guardian and Trustee.

3In 2006, the applicant started another secondment position with the Program Development Section of the Public Safety Division of the Ministry of Community and Safety and Correctional Services. The secondment was initially for the period from January 2006 to July 2006. The secondment was extended on three occasions and ultimately to December 31, 2009. The applicant retired effective January 1, 2010.

4In May 2008 the personal respondent Oscar Mosquera became the Manager of the Program Development Section. He reported to the personal respondent Stephen Waldie. Mr. Waldie was the Director of the External Relations Branch.

5In 2008, the position that the applicant had been filling on a secondment basis was posted as a permanent position. The applicant applied for the position but was not selected.

6Throughout her employment, the applicant was a member of the Association of Management, Administrative and Professional Crown Employees of Ontario (“AMAPCEO”). Under the terms of the collective agreement the applicant was eligible to retire and take an unreduced pension as of March 2009, when she turned 60 years of age. As noted, the applicant retired on January 1, 2010.

7The applicant alleges that she experienced harassment and discrimination on the basis of age and that she was forced into retirement against her wishes.

8The respondents deny that the applicant experienced harassment and discrimination. The respondents submit that the applicant was not forced to retire and that the option of returning to her “home” position in the Ministry of the Attorney General was always available to her.

The hearing

9The hearing took place on July 27, 28 and 29, 2011. The applicant was self-represented. Ms. Kubursi represented the respondents.

10At the outset of the hearing, the parties indicated that they were interested in exploring settlement options. In accordance with Rule 15A of the Tribunal’s Rules of Procedure and the mediation/adjudication agreement signed by the parties, I facilitated some settlement discussion. When it became apparent that settlement was not likely to occur, the hearing proceeded. The possibility of settlement was briefly revisited later in the hearing but with the same result.

11The applicant confirmed that she is seeking financial damages. In particular, she seeks lost wages for the period from December 31, 2009 to the date of her 65^th birthday, when she states she would have retired, plus pension contributions and benefits. She also seeks financial compensation for injury to dignity, feelings and self-respect.

12In these circumstances, the parties agreed that the hearing would be divided into two parts, or bifurcated. In particular, it was agreed that evidence regarding how to calculate the value of lost pension entitlement and how to factor in the pension payments already received in respect of lost wages would be complex and would likely require additional evidence about the operation of the pension plan.

13It was agreed that the first part of the hearing would concern whether the applicant experienced discrimination and/or harassment contrary to the Code. If I found that the applicant did experience discrimination and/or harassment contrary to the Code, the hearing would reconvene to hear evidence and submissions on the applicant’s entitlement to damages. This Decision therefore addresses only whether the applicant experienced discrimination and/or harassment contrary to the Code.

14Prior to the hearing, the applicant had identified two friends as witnesses. At the hearing, she confirmed that their evidence would pertain to the injury to dignity, feelings and self-respect. Shortly before the hearing, she asked that she be allowed to also call her spouse as a witness. At the hearing, she clarified that he too would provide evidence about how the alleged discrimination and harassment affected her. Since it was agreed that the hearing would be divided into two parts, and since the applicant’s witnesses and proposed witness were relevant only to the second part, it was not necessary to hear from the applicant’s witnesses or proposed witness at the first stage of the proceedings.

15The applicant was asked how she would like to present her evidence. I indicated that she could either present her evidence directly or she could present it by answering questions that I put to her. She chose the second option and Ms. Kubursi confirmed that she had no objection to proceeding in this way. After my questioning was concluded, the applicant offered some additional testimony in respect to a few matters not covered by my questions. Ms. Kubursi then cross-examined the applicant.

16The personal respondents were present and provided their evidence in chief through questioning by Ms. Kubursi and through cross-examination by the applicant and questions from me. I also heard evidence, in the same manner, from Rick Raghubir. Mr. Raghubir was an Acting Manager of a unit and, like Mr. Mosquera, reported to Mr. Waldie.

17On the third day of hearing, I heard the submissions of the parties. The applicant provided a brief overview of her view of the case. Ms. Kubursi made more extensive submissions. The applicant indicated that she was surprised by the extent of the respondent’s submissions as she had not realized that final submissions could be so comprehensive. With Ms. Kubursi’s consent, I invited the applicant to make her final reply submissions in writing. These submissions were received within the time frame agreed to.

18At the outset of her submissions at the hearing, Ms. Kubursi provided a seven page document that set out a chronology of the case. In her final written submissions, the applicant objected to this document on the grounds that it had not been disclosed in advance. On this point, the chronology was not submitted as evidence and has not been entered as an exhibit. My understanding is that it was prepared as part of the respondents’ submissions and I have accepted it on that basis.

Personal Respondents

19Shortly before the hearing, both parties filed Requests for Order During Proceedings regarding the personal respondents. The respondents asked that the personal respondents be removed as personal respondents. The corporate respondent confirmed that there was no issue of liability and that if any liability was attached to the personal respondents, the corporate respondent would fully accept that liability. The applicant opposed removing the personal respondents.

20I determined that I wanted to hear the evidence before deciding this issue. Having heard the evidence and in light of my conclusions, and in light of the fact that the corporate respondent has assumed full liability, it is not now necessary to deal with this issue.

21When the applicant first filed the Application, in addition to Mr. Mosquera and Mr. Waldie, the applicant also identified the Manager of the applicant’s home position in the Ministry of the Attorney General as a personal respondent. At the hearing, the applicant confirmed that she was content to remove that person as a personal respondent. However, she asked that Mr. Raghubir be added as a personal respondent.

22At the hearing, I determined that it was not appropriate to add Mr. Raghubir as a personal respondent. The reasons for this were first that Mr. Raghubir’s involvement in the circumstances giving rise to the Application were limited and the allegation against him consists of one remark and his involvement in the interview process. Even if the allegations against him were true, they would be unlikely to result in a finding of personal liability. Secondly, the Request to add Mr. Raghubir as a personal respondent arose only shortly before the hearing.

Request for Data

23Shortly before the hearing, the applicant filed another Request for Order During Proceedings, asking the respondent to release information concerning the number of staff and number of managers in the External Relations Branch and parts of the Public Safety Division “that have been recruited/promoted (temporarily, seconded or permanent) for each year since 2006, that are younger than age 40 and those that are older than age 40.”

24Although the respondents opposed this Request on the grounds that it was too broad, they did provide some information about staff in External Relations Branch.

25At the hearing, the applicant renewed her Request for the data. I denied the Request. I agreed with the respondent that the Request was too broad. Also, I was concerned that the data alone would not provide a clear picture without further testimony, which could significantly expand the hearing in ways that are not directly relevant to the allegations made out in the Application. I also noted that the Request for the additional data had arisen late in the process.

Background Facts

26The applicant was a member of a pension plan. A feature of the plan is that a person who reaches age 60 and who has at least 20 years of service is eligible to retire with an unreduced pension. The employee is not required to retire at age 60. If the employee continues to work and contribute to the pension plan, the value of her eventual pension benefit will continue to increase. The calculation of the pension benefit that is paid on retirement is based in part on the five highest paying years of the retiree’s employment. If a person retires and receives a pension, the person can no longer be employed in a job that is associated with the pension plan. However, the person can work in any other employment without any impact on the person’s pension benefit.

27In this case, the applicant was eligible to retire with an unreduced pension on March 1, 2009.

28The secondment process is another thing that is central to the circumstances that gave rise to this Application. Secondment is a common feature of the Ontario Public Service and provides benefit to the employer and employees. It allows an employee the opportunity to work in a different job and gain new skills and experience. The employee may then return to his or her home position with an increased skill set, or if circumstances permit, and if the employee prefers the secondment position, the employee may apply for the position on a permanent basis if an opening comes up. It allows managers to fill positions on a temporary basis without the requirement of a formal posting and without having to commit to a long-term employment arrangement.

29Most secondments are for specific time periods, generally eighteen months or less, but they can be renewed or extended. At the end of the secondment period, and if the secondment is not extended, the employee can either apply for a different secondment or return to her home position. A return to the home position typically requires the manager of the home position unit to give notice to the employee who is temporarily filling the employee’s home position. This results in a ripple effect if that person was also on secondment as that person would then return to his or her home position, displacing someone else.

30In addition to these complexities, the secondment process is subject to the provisions of the relevant collective agreements. The provisions of the AMAPCEO collective agreement are not the same as the Ontario Public Service Employees’ Union (“OPSEU”) collective agreement. In the Program Development Section that Mr. Mosquera managed, there were employees in both unions. Even under the AMAPCEO agreement, different rules apply depending on a number of different factors.

31Mr. Waldie became Director of the External Relations Branch in 2008. He was involved in the recruitment process that led to Mr. Mosquera becoming the applicant’s manager in May 2008. Mr. Waldie testified that when he became Director, he was concerned about the number of seconded employees in the Program Development Section. He discussed this concern with Mr. Mosquera. Mr. Mosquera testified that he wanted to regularize the employee population within the unit because there were so many people in seconded and contract positions. There is no dispute that he told the staff in the department that he was concerned about this issue shortly after he started in the section.

The Program Development Section

32The primary function of the Program Development Section is the administration of a grant program to groups who establish public safety initiatives. The Section is comprised of Community Safety Analysts and Grant Officers. The staffing model includes six Community Safety Analysts, three Grant Officers and one clerk. The applicant was a Community Safety Analyst. Mr. Mosquera testified that in May 2008, there was one extra Community Safety Analyst position because the person who had been the Acting Manager prior to his arrival returned to her position as a Community Safety Analyst.

33According to the Organizational Chart provided at the hearing, in May 2008, there were fourteen employees associated with the Program Development Section under Mr. Mosquera. Of these, three were on secondment with other departments. Three, including the applicant, were in the Section on secondment from other departments. Three were “unclassified contract” employees. Five were classified staff, meaning that they were employed in their “home” position. Three of the Community Safety Analyst positions were filled by people on secondment.

The events giving rise to the Application

34As noted, the applicant’s first secondment with the Program Development Section was for the period January 30, 2006 to July 14, 2006. According to the secondment agreement, the purpose was to “assist with workload pressures due to staff member being away on leave or absence.” This secondment was extended to October 31, 2006. The applicant then went on a different secondment with a different department until March 30, 2007. She then returned to the Program Development Section on another secondment for the period April 2007 to October 2007. This was extended to September 2008.

35At the time Mr. Mosquera started as Manager in May 2008, the applicant had approximately four months left in the secondment.

36When he started, Mr. Mosquera held one-on-one conversations with each of the people working in the department. The applicant and Mr. Mosquera agree that during Mr. Mosquera’s conversation with the applicant, her possible retirement came up. As noted, the applicant was eligible to retire with an unreduced pension as of March 15, 2009. Mr. Mosquera testified that the applicant brought it up. The applicant testified that Mr. Mosquera brought it up.

37The applicant and Mr. Mosquera also agree that the subject of the applicant’s potential retirement also came up at a staff meeting that occurred around the same time as the one-on-one conversation. According to the applicant, she announced at the staff meeting that she had the opportunity to retire as of March 15, 2009 but that she had not decided if she was going to retire then. According to Mr. Mosquera, the applicant announced at the staff meeting that she intended to retire. He recalled that the other staff clapped and congratulated the applicant on her pending retirement.

38The applicant testified that at the same staff meeting, Mr. Mosquera indicated that he had a problem with the fact that there were so many people on secondment. She felt that this set the stage for his interaction with her. She felt that he targeted her as a person who was going to retire. This would solve some of his problems as it would eliminate the extra Community Safety Analyst position and reduce the number of people working on a secondment basis.

39The applicant testified that on several occasions Mr. Mosquera initiated conversations about the advantages of retirement. A feature of the pension plan is that an eligible person can retire with an unreduced pension and then obtain other employment without affecting the pension benefit (provided that the new employment is not employment associated with the pension plan). The applicant testified that because of this, Mr. Mosquera told her she would be “foolish” not to retire as she could then work for a different government or other employer and also receive her pension.

40On one occasion when Mr. Mosquera was speaking to the applicant about retirement options, he called two acquaintances who had retired. He called them on his speakerphone in the presence of the applicant. According to the applicant, Mr. Mosquera initiated the conversation about retirement and also initiated the speaker phone conversations. The applicant recalled that one of the individuals was not particularly forthcoming but the second person provided considerable information about her own retirement.

41Mr. Mosquera does not agree that he initiated the conversation about retirement but he does agree that he called the two acquaintances on the speakerphone. He testified that he did this because it was clear that the applicant had questions about retirement and he wanted to help her by connecting her with his acquaintances. Mr. Mosquera testified that he often tries to help people to make such connections. As an example, he recalled that he recently connected a person who was having vision problems with someone who had undergone laser eye surgery. He believes that the connection he tried to make between the applicant and his retired acquaintances was of a similar nature. He testified that at the time the applicant appeared to be engaged in the conversation and did not seem at all uncomfortable.

42The applicant testified that during one of her conversations with Mr. Mosquera, she told him that she did not feel that she could retire because she had some debts. She testified that he gave her financial advice and specifically mentioned the advantages of a line of credit. She testified that she took this as more pressure to retire. Mr. Mosquera testified that he does not recall this conversation and that he would not normally offer financial advice to employees.

The recruitment process

43In early September 2008, Mr. Mosquera initiated a process to turn one of the Community Safety Analyst positions into a position that would be filled by a permanent employee, rather than filled by someone on secondment. The Recruitment Centre with the Ministry of Government Services managed the process. The Centre assigned a consultant who then managed the recruitment process.

44The position was posted on October 3, 2008 with a closing date of October 20, 2008. The applicant submitted her application on October 20, 2008.

45The applicant testified that in the interim, Mr. Mosquera actively discouraged her from applying. For example, he told her that there were young people likely to apply and that their expertise would “blow you away”. Mr. Mosquera did not recall saying this but did agree that he wanted the applicant to be aware of the competition.

46The applicant testified that after she submitted her application, Mr. Mosquera asked her if she was sure she wanted to go ahead. She told him that she did. Mr. Mosquera did not dispute this in his testimony.

47There were approximately 300 applications submitted for the posted Community Safety Analyst position. Among these were all three of the Analysts who were at the time doing the job on a seconded basis. Mr. Mosquera personally reviewed all the applications and prepared a spreadsheet to establish a rating system based only on the paper application. The applicant scored the highest, followed by the other two Analysts were doing the job on a secondment basis.

Extension of the applicant’s secondment to March 15, 2009

48In September 2008, at the same time that the recruitment process was under way, the applicant’s secondment was extended from September 2008 to March 15, 2009. Mr. Mosquera testified that the significance of the March 2009 date was that the applicant was eligible for retirement with an unreduced pension as of that date. His impression was that she intended to retire at that time and that he was therefore acting appropriately in ensuring that she could continue in her job up to the time of her retirement. Mr. Mosquera sent an email about the secondment extension on September 17, 2008, copied to the applicant. By return email to Mr. Mosquera she said “I’m OK with the extension date of March 15, 2009.”

49Mr. Mosquera’s emails about the extension included some discussion with the administrators responsible for approving the extension about the implications of the extension in respect of the collective agreement. It provides that in some circumstances, if a person has been in a secondment for 24 consecutive months, the person is deemed to be in the position on a permanent rather than a seconded basis without having to go through a competition. The administrator advised him that the “cut off date” in the applicant’s case would be March 31, 2009 but that this could be “questionable” and that it would be “safer” to make the extension to February 28.

50Mr. Mosquera testified that the administrator was actually wrong about her interpretation of the collective agreement and that in fact the applicant would not have become permanent because that provision did not apply to her circumstances. However, it appears that at the time, Mr. Mosquera’s understanding was that if the secondment was extended beyond March 2009, the applicant could become permanent.

51The significance of all of this from the applicant’s perspective is that it is evidence of Mr. Mosquera’s campaign to force her into retirement. The respondents submit that instead it shows that Mr. Mosquera was doing what he could to accommodate the applicant’s plans, which, at that point, he understood, featured retirement in March 2009.

The interview process

52The top eleven candidates were offered a job interview and ten people were interviewed. The interviews all took place on one day in December 2008. Mr. Mosquera and Mr. Raghubir conducted the interviews. As noted earlier, Mr. Raghubir was a Manager of another department and so was at the same level as Mr. Mosquera. They both reported to Mr. Waldie. Mr. Mosquera identified Mr. Raghubir as a work colleague that he is friendly with. He asked him to help with the interviews because he knew that Mr. Raghubir had some time available.

53The applicant’s perception is that Mr. Mosquera asked his friend to help with the interviews so as to ensure the result he wanted. In her experience, it is unusual for interviews to be conducted by only two people. Mr. Mosquera and Mr. Waldie testified that it is common for interviews to be conducted by two people, although interviews for more senior positions may involve more people. On this point, noting their extensive management experience, I see no reason to doubt this testimony.

54The applicant agrees that the form of the interview process was appropriate, including the questions and tasks assigned to the interviewees. However, she believes that Mr. Rughubir, and especially Mr. Mosquera, did not rate her performance in the interview fairly.

55The record in this case includes the (redacted) interview notes of Mr. Mosquera and Mr. Rughubir in respect of all the candidates who were interviewed. In regard to the applicant’s interview notes, she interprets the results as showing that Mr. Mosquera underscored the results and that he failed to take fulsome notes in some of the sections although she also feels that Mr. Rughubir also did not take full notes in all sections.

56Mr. Mosquera testified that the applicant did reasonably well during the interview. Mr. Rughubir testified that the applicant’s performance during the interview was “stellar”. He felt that she did really well but that some of the other candidates had “tremendous experience” and that they were rated higher in the interview than the applicant, although he noted that she still did better than some of the external candidates who were more experienced.

57The successful candidate was one of the other people who had been doing the job on a secondment basis. The applicant noted that this person is a “younger” person, although she had been in the Section for three years and had been doing the Analyst job for two years.

58The applicant came fourth in the interview process. Mr. Mosquera ultimately hired the top three interviewees. The top candidate was hired immediately after the process. Two other positions came available a short time afterwards and Mr. Mosquera was able to fill them without going through another recruitment process. All of the top three candidates are younger workers.

Discussions with Mr. Rughubir about a possible job

59After the successful candidate was selected, Mr. Mosquera met with the applicant to discuss the results of the process. She felt that this discussion revealed his bias against her. During this discussion, Mr. Mosquera told the applicant that it was possible that Mr. Rughubir had an opening coming up and suggested that she talk to him about it.

60The applicant did talk to Mr. Rughubir. He told her that he had ambitious plans for his unit but that nothing had been settled. The applicant testified that Mr. Rughubir discussed a possible position with her but told her that she wouldn’t want the job because it would be too stressful. She believes that this was based on her age and is an example of the discrimination she experienced. In the end, as a result of cut backs and freezes, Mr. Rughubir’s plans were not possible and there was no opening in his department. Mr. Rughubir testified that he does not recall telling the applicant that the job would be too stressful for her.

The grievance and workplace discrimination and harassment complaint

61On March 3, 2009, the applicant filed a grievance. It was denied by Mr. Mosquera on the grounds that it was filed one day late. The grievance complaint concerned “an unfair competition” that was “based on ageism and a systemic barrier.” The grievance was not pursued further by the union.

62The complaint about ageism triggered concerns for Mr. Mosquera in terms of the employer’s “Workplace Discrimination & Harassment Prevention Policy” (“WDHP”). The record in this case includes a copy of this comprehensive policy and also a Manager’s Guide in respect of the policy.

63Mr. Mosquera discussed his concerns with Mr. Waldie who agreed that the grievance complaint seemed to raise issues relevant to the WDHP. The policy and the Manager’s Guide contemplate that in most cases, the employee’s manager will, at least initially, deal with complaints. However, in the circumstances, Mr. Waldie decided that it would be preferable for someone else to deal with the matter. He talked to the Assistant Deputy Minister, who asked R.J. Prime, PhD, to conduct preliminary fact finding. Dr. Prime was a Director of another department. He was thus at the same level as Mr. Waldie. Dr. Prime and Mr. Waldie reported to the same Assistant Deputy Minister.

64Dr. Prime met with the applicant (in the presence of her union representative) on April 6, 2009 and met with Mr. Mosquera on April 16, 2009. He prepared a report that is dated May 15, 2009. The applicant testified that Dr. Prime told her that he would prepare a draft report and that she and Mr. Mosquera would have a chance to comment on it prior to the final report. However, she did not see a draft report. Mr. Waldie testified that he did see a draft report but that it was essentially the same as the final report. Mr. Waldie indicated that Dr. Prime may not have had time to share a draft report with the applicant as he himself was preparing for his own imminent retirement.

65Dr. Prime’s findings were summarized as follows:

1. It is entirely appropriate that a manager bring some permanency to positions within the Branch and, in fact, there some Corporate encouragement to do so.
2. The discussions and advice about retirement – especially the telephone calls to his colleagues, while given with good intentions, were not necessary, especially without instigation from the Complainant.
3. The posting of the job soon after the Complainant publicly announced her intention to retire was completely co-incidental, since the competition process was begun much earlier (July 18, 2008) than the posting date in October.
4. The competition attracted more than 300 applicants. The Complainant was one of ten selected for an interview. She was provided feedback on the results of the competition. While she felt that some of her answers were not properly recorded, she did not have any complaints about the competition process.

66Dr. Prime’s conclusions were as follows:

The allegation of discrimination because of age is not supported.

Given the circumstances of the situation, it would seem to be reasonable that an effort be made to provide the Complainant with a similar position to that which she has occupied. This would have to be limited to the period from the end of her current secondment to December 2009, which is her expressed retirement date. Sending her back to her home position of 9 years ago will have the following impact:

• The person in her home position will be displaced.
• The manager of that position will have a returning employee to re-train for only a short period of practical employment; after which she will have to recruit a new employee who will then need to be retrained.
• The Ministry will be perceived to be uncaring towards an employee who has been a contributing member of the Branch for more than 3 years and a member of the OPS for 20 years.

Extension of the secondment to December 31, 2009

67On May 21, 2009, shortly after she received a copy of Dr. Prime’s report, the applicant sent a letter of resignation to Mr. Mosquera. She testified that she did this because she was feeling unwell and quite depressed. On May 22, 2009, Mr. Waldie contacted the applicant and told her that he was trying to arrange for her to stay in her position until December 31, 2009. The applicant thanked him for this and rescinded her resignation.

68It is apparent from the Report that Dr. Prime was under the clear understanding that the applicant intended to retire as of December 31, 2009. Based on that, he recommended that something be done to avoid the applicant having to go back to her home position in the Ministry of the Attorney General prior to her retirement date.

69Mr. Waldie testified that on the basis of Dr. Prime’s report, he understood that the applicant wanted to stay in the Community Safety Analyst job until December 31, 2009. He agreed, however, that he did not confirm this directly with the applicant. He arranged for a secondment covering the period from June 1, 2009 to December 31, 2009. The secondment agreement included the following provision:

There will be no extension of this assignment. Anna Deane will retire from the Ontario Public Service on January 1, 2010.

70The applicant signed the secondment agreement on June 16, 2009.

71The applicant testified that she did not tell Dr. Prime, or anyone else, that she intended to retire on December 31, 2009. Initially in her testimony, she indicated that there was no significance to that date. However, on further questioning, she agreed that working to that date allowed her to maximize the value of her pension benefit, which is based in part on the five highest paying years of the retiree’s employment. At the same time, she pointed out that her pension benefit would have been greater if she had not retired in December 2009.

72The applicant was not at work for much of the period between March 2009, when she filed the grievance that triggered Dr. Prime’s involvement, and December 31, 2009 when she eventually did retire. She took some vacation time in March and then went off work on the direction of her doctor in early May. She testified that a significant reason for her going off work was the stress she was experiencing at work.

73She testified that in these circumstances, she only signed the June 2009 secondment agreement under duress. She clarified that at the time, it seemed that it was the best she could do in difficult circumstances.

74On October 2, 2009, the applicant sent an email to Mr. Waldie. She told him that while she did have the option to retire, “at the moment, I have no intention of retiring at the end of December 2009. As a result I am requesting that the retirement clause be removed from my Secondment Agreement.”

75Mr. Waldie replied by email that he would draft a new agreement removing the retirement clause. The new agreement also stipulated that there would be no extension of the assignment but stated that she would be returning to her home position in the Ministry of the Attorney General on January 1, 2010.

76In December, as the end of the secondment agreement was approaching, Mr. Mosquera was in email correspondence with various people, including the applicant, and in particular with the Manager of the applicant’s home position. This correspondence concerned the applicant’s pending return to her home position as of January 1, 2010.

77On December 28, 2009, the applicant sent a letter advising that she intended to retire effective December 31, 2009. The letter indicates that she made this decision because she had come to realize that “the thought of returning to [her home position] to a position I left over 10 years ago is the basis for my continued illness.”

78The applicant testified that she felt that she was forced to retire as of December 31, 2009. She could not face the prospect of returning to her home position because of the reduction of salary and because of having to be retrained. In effect, she would have suffered a demotion and, in consultation with her doctor, family and friends, she determined that it would be better for her and her health to take the retirement option.

The general legal test

79The issue in this case is whether the applicant experienced discrimination and/or harassment in employment contrary to section 5 of the Code:

5. (1) 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.

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

80The applicant alleges that she experienced discrimination and harassment in employment because of age.

81The allegations of discrimination include allegations of general age discrimination, allegations that she was forced into retirement because of a “poisoned environment”, and allegations that the hiring process was not fair. She also alleges that she was subject to harassment because of age. In addition, she alleges that her complaints about discrimination were not properly investigated.

82The analysis that generally applies to this sort of case requires the applicant to first establish that there is a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent. See Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.).

83If the applicant establishes a prima facie case of discrimination, the onus shifts to the respondent who must provide a credible and rational explanation demonstrating that its actions were not discriminatory.

Discrimination on the basis of age

84Not all instances of differential treatment constitute discrimination under the Code and it is not necessarily discriminatory to treat an employee differently when the employee has announced a retirement date. For example, if an employee informs her manager that she is going to retire in six months, it is very reasonable and appropriate for the manager to take that information into account when planning for the future. Similarly, a manager might deny the employee access to a training program on the grounds that it will produce little benefit since the employee is going to retire. These are examples of differential treatment because of retirement status which, at least on their own, would not be discriminatory.

85It is not necessarily discriminatory to treat an employee differently because of retirement status. See Law v. Thames Valley District School Board, 2011 HRTO 953. However, there is a clear connection between age and retirement since only older workers are eligible for retirement and receipt of a pension. Discrimination may arise when an assumption is made that because of the employee’s age the employee is likely to retire imminently. Treating an employee as if the employee is going to retire imminently when the employee is not going to retire imminently can infringe a person’s Code-protected rights because the basis for the treatment is the employee’s age.

86Similarly, encouraging an older employee to take advantage of retirement options might result in discrimination because the message could be that the older employee is no longer valued as an employee. Of course merely providing information about retirement options is not discriminatory, especially if the information is provided at the request of the employee.

87Discrimination can also arise as a result of comments which suggest that because of age the person may not have the required energy and that the person should accordingly consider retirement as an option. For example, in Riddell v. IBM Canada, 2009 HRTO 1454, the Tribunal said that comments such as “these new young hires are really good, they pick up new technology very quickly, learn quickly, are very smart and just amazing”, when made at the time that a severance package was offered could, if true, “raise an inference that age was a factor in presenting the severance offer or that the respondent used age to pressure the complainant into accepting the offer.” (In Riddell the Tribunal found that the comments were not in fact made.)

The applicant’s general allegations of age discrimination

88The applicant’s general allegations of age discrimination are that she was identified as a person who was going to retire and that all the management decisions affecting her were premised on the assumption that she was going to retire.

89The respondents submit that the applicant was conflicted about whether and when to retire, that she communicated different intentions at different times, and that as her intentions changed, steps were taken, as much as possible, to accommodate the applicant’s plans. The respondents submit that the discussion between Mr. Mosquera and the applicant about retirement options arose only at the instigation of the applicant and that Mr. Mosquera was only providing information about options.

90The applicant says that although she may have said that she was considering her retirement options she never formally said that she was actually going to retire until the letters she sent at the end, and that these were sent under duress. She submits that she should not have been treated differently until she formally communicated a retirement date.

91In my view, the evidence establishes that, apart from the retirement letters sent near the end, the applicant did not formally indicate that she intended to retire at any specific time. However, I also find that the evidence establishes that the applicant did cause people to understand that she was seriously considering retirement at various points.

92There is no dispute that it was common knowledge that the applicant had the option to retire with an unreduced pension as of March 2009. The applicant testified that she herself identified this fact in a staff meeting that occurred shortly after Mr. Mosquera arrived as manager. However, while Mr. Mosquera took from the meeting that the applicant had formed an intention to retire, he agreed that she did not actually announce that she was going to retire as of March 2009.

93I accept that if the applicant had formally communicated her intention to retire as of March 2009, it would have solved some of the personnel issues that Mr. Mosquera had identified as areas of concern. At the least, it would have resolved the fact that the section had one extra Analyst. It would also have reduced the number of people doing the job on a secondment basis.

94The applicant alleges that Mr. Mosquera also had a personal motivation in wanting her gone from the department so that she could be replaced with a lower paid younger person. She claims that as a manager, Mr. Mosquera was eligible for a salary bonus if he was able to reduce the section’s budget. Replacing a senior higher paid employee with a younger lower paid employee would reduce the budget. However, the applicant provided no evidence in support of this theory. Moreover, from the evidence provided by the respondents, it is not clear that the overall salary budget ultimately was significantly different in any event.

95On the basis of Mr. Mosquera’s testimony, it appears that he was quite aware that the applicant had not definitively decided when she was going to retire. He was aware that she had the option to retire imminently and that she was thinking about exercising that option. However, he was also aware that she was not sure that she wanted to retire imminently. For example, in a September 18, 2008 email sent to a manager in the applicant’s home position ministry, responding to the question of whether the applicant was going to retire in March 2009, Mr. Mosquera advised “although she mentioned it, I do not know if she will retire.”

96In my view, the evidence establishes that Mr. Mosquera did on occasion say things to the applicant that were intended to make sure that she understood the benefits of taking retirement as soon as she was eligible to do so. In his testimony, he agreed that he had conversations with the applicant about the advantages of retirement although he says that the applicant always initiated these discussions. There is no dispute that he called the two retired acquaintances on the speakerphone and it appears that the only purpose of these calls was to allow them to explain the advantages of retirement to the applicant.

97In my view, the applicant, as the recipient of this information, reasonably understood that Mr. Mosquera was encouraging her to retire. It appears to me that the call to the acquaintances went beyond a desire only to provide the applicant with neutral information about retirement. In my view, the purpose of the calls was to encourage the applicant to retire.

98While the applicant may have continued to send somewhat mixed messages about her intentions regarding retirement, the fact that she submitted an application for the Community Safety Analyst position in October 2008 when it was posted was a message that she did not intend to retire imminently. By that time, her secondment had been extended to March 2009 so there was no reason to compete for the permanent position if she intended to retire by March 2009.

99The applicant testified that Mr. Mosquera asked her about her application and asked her to confirm that she really wanted to apply for the job. Mr. Mosquera did not dispute that he asked her this. The applicant testified that Mr. Mosquera encouraged her to withdraw because other younger applicants had significant experience and implied that she would not be able to compete successfully. Mr. Mosquera testified that he did not recall saying this, but he did agree that he wanted her to understand that the process would be very competitive.

100As it turned out, the process was very competitive. Mr. Rughubir testified about the very high qualifications of the people who were interviewed. He indicated however, that the applicant did better than some of the external candidates who had very significant relevant experience.

101In my view, the conversation in which Mr. Mosquera asked the applicant to confirm that she wanted to apply for the permanent position could only be taken by the applicant as discouragement about her applying and encouragement that she should retire.

102It appears that at certain times the applicant was leaning in favour of imminent retirement but that she then changed her mind. The effect on the applicant of the various conversations about retirement – no matter how well intentioned they were on Mr. Mosquera’s part – must be assessed in the context of this uncertainty.

103I find that the combined effect of the various discussions about the advantages of retirement and the difficulty the applicant might experience in the interview process was that the applicant felt that she was being encouraged to retire.

104I conclude that in the period from May 2008 to October 2008, the applicant was treated differently in employment because she was an older person who was eligible for retirement. The differential treatment consisted of comments that encouraged the applicant to retire. I find that this constitutes discrimination on the grounds of age contrary to section 5 of the Code.

105The applicant submits that Mr. Rughubir’s alleged comment that the applicant might not want to apply for a position because it would be too stressful was discriminatory. Mr. Rughubir testified that he does recall saying that to the applicant. The alleged remark arose in a conversation about Mr. Rughubir’s thoughts about the future of his section and could not have been in reference to an actual existing job position. In the context of this conversation, I conclude that if the alleged remark was made, it was not discriminatory.

The job posting process

106The applicant alleges that the decision to post the permanent Community Safety Analyst job was discriminatory. I find that the applicant has not proved this. In my view, the respondents have demonstrated a full non-discriminatory reason for the posting. In particular, Mr. Waldie and Mr. Mosquera had both identified the fact that half of the people doing the job were on secondment, along with a general concern that a large number of people in the section were there on secondment. Mr. Waldie and Mr. Mosquera testified about the unpredictability and instability that results from having too many people on secondment, especially if the secondments are not short-term in nature. Mr. Waldie testified that he directed Mr. Mosquera to deal with this situation when he hired Mr. Mosquera into the Manager position. In my view, the evidence establishes that the decision to post the permanent Analyst position was made in response to these factors and was not a means of targeting the applicant as she alleges.

The interview process

107In human rights cases, proof that a hiring process was tainted by discrimination can be established if there is credible evidence of direct discrimination. For example, evidence of discriminatory questions or comments during the process.

108In this case, there is no evidence of direct discrimination. The applicant does not allege that the form of the interview process was discriminatory and she does not take issue with the questions or tasks assigned during the interview process.

109She does allege that the interview panel, consisting of Mr. Mosquera and Mr. Rughubir, was biased against her. In particular, she asserts that Mr. Mosquera did not fairly rate her response to various questions. She alleges that during her debrief with Mr. Mosquera after the interview, he misconstrued some of her answers. He indicated that she seemed nervous during the interview when she was not.

110In effect, the applicant alleges that there is circumstantial evidence of discrimination.

111To establish evidence of a prima facie case of discrimination in respect of allegations that circumstantial evidence establishes that a hiring process was not fair because of age discrimination, the applicant must generally establish:

• a. That the applicant was qualified for the particular employment;
• b. That the applicant was not hired; and
• c. That a considerably younger employee who was no better qualified obtained the position.

Clennon v. Toronto East General Hospital 2009 HRTO 1242.

112In this case, there is no dispute that the applicant was qualified for the position of Community Safety Analyst. Not only had she been successfully doing the job for some years, she also came first on Mr. Mosquera’s paper review of the 300 applications.

113The applicant came fourth in the interview process. The top three candidates were ultimately hired and they all were younger workers.

114However, to succeed on this aspect of the Application, the applicant must also prove that the successful candidates were no better qualified than the applicant. In the absence of evidence of direct discrimination, it can be very difficult for an applicant to prove such an allegation. In part, this is because it is not the function of this Tribunal to determine who should have been hired in an interview process. This is particularly so when, as in this case, the job in question involves specialized skill sets and experience. To succeed, an applicant must generally be able to point to evidence that shows what are the specialized skill sets and experience relevant to the job, and evidence to clearly show that the applicant was better qualified when compared to the successful candidates. I was not presented with such evidence.

115In White v. Queen’s University, 2010 HRTO 640, the Tribunal discussed the difficulty of establishing proof of discrimination on the basis of only circumstantial evidence in the following terms (at paragraph 27):

It is not necessary for the respondent to demonstrate that it was correct in reaching its [hiring] decision, only that it was reasonable. An unreasonable decision is likely to attract greater scrutiny for discrimination. In contrast, it is difficult to imagine circumstances in which a reasonable hiring decision would be found to be discriminatory absent direct evidence of discrimination.

116In this case, there is no evidence to suggest that the hiring decisions were unreasonable. I conclude that the applicant has not proved that the hiring decisions in her case were discriminatory.

Harassment and poisoned environment

117The applicant alleges that the cumulative effect of the discrimination she experienced created a poisoned work environment so that she could not possibly have continued working and had no option but to retire.

118The human rights concept of a poisoned or toxic work environment arises in cases where the discrimination or harassment is of such a nature that the employee cannot continue to work in the environment.

119In this case it is important to keep in mind that the applicant did not have the option to continue working as a Community Safety Analyst. The reason for this was not the discriminatory encouragement to retire and differential treatment because of age that she experienced, but was instead because of the secondment system and the fact that she was not successful in the hiring process. I have found that the applicant has not proved discrimination in respect of the hiring process.

120The choice that the applicant had was to return to her home position or apply for some other position or secondment within the Ontario Public Service, or to retire. There is nothing to suggest that the applicant would have experienced age-based discrimination in the home position, and the applicant has made no such allegation.

121Accordingly, there is no basis for me to conclude that the applicant had no choice but to retire or that her decision not to return to her original position related to the Code.

The WDHP process

122The applicant alleges that the fact finding investigation conducted by Dr. Prime was inadequate and unfair. It was inadequate because it did not properly address her concerns and it was unfair because she was not given the opportunity to review a draft report before the final report was delivered to the Deputy Minister.

123The rationale underlying the duty to investigate a complaint of discrimination is to ensure that the rights under the Code are meaningful. As stated in Laskowska v. Marineland of Canada Ltd. (2005), 2005 HRTO 30, 53 C.H.R.R. D/262 at para. 53:

It would make the protection under s. 5(1) to a discrimination-free work environment a hollow one if an employer could sit idly when a complaint of discrimination was made and not have to investigate it. If that were so, how could it determine if a discriminatory act occurred or a poisoned work environment existed? The duty to investigate is a “means” by which the employer ensures that it is achieving the Code-mandated “ends” of operating in a discrimination-free environment and providing its employees with a safe work environment.

124The jurisprudence has established that in order to satisfy the duty to investigate, the respondent must take reasonable steps to address allegations of discrimination. See Nelson v. Lakehead University, 2008 HRTO 41.

125Indicia of what are reasonable steps were discussed in Abdallah v. Thames Valley District School Board, 2008 HRTO 230 at paragraph 87:

• (i) the response must be prompt;
• (ii) there must be corporate awareness that the conduct complained of is prohibited;
• (iii) the matter must be dealt with seriously;
• (iv) there must be a complaint mechanism in place;
• (v) the respondent must act so as to provide a healthy environment;
• (vi) the respondent must communicate its actions to the complainant.

126In my view, in this case, the respondents met the duty to investigate. Dr. Prime was asked to conduct the preliminary fact finding investigation soon after the applicant’s grievance raised her allegations of ageism. Dr. Prime interviewed those directly involved and produced a thoughtful report. Dr. Prime recognized that the applicant had ended up in a difficult and unfortunate situation after a lengthy and successful career in the public service. He recommended that steps be taken to reduce the applicant’s difficulty by at the least allowing her to remain in her position and at the current rate of pay to December 2009 so that her pension would be paid on the basis of five years at her highest salary level.

127It appears to me that it is more probable than not that Dr. Prime understood, on the basis of his conversation with the applicant, that her intention at that time was in fact to retire at the end of December 2009. In his report he indicated that December 2009 was the applicant’s “expressed retirement date.”

128On the basis of the report and because of the recommendations in it, Mr. Waldie sent the applicant a new secondment agreement. It included the provision that the secondment would not be extended beyond December 2009 because the applicant was going to retire at that time. I note that he did this despite the fact that the applicant had submitted her letter or resignation. He advised her that she could withdraw the resignation because he had been working on an extension of the secondment. When the applicant received the secondment agreement she did raise a concern about the agreement but not about the provision that she would retire at the end of December 2009. It therefore appears that she did communicate that she intended to retire at the end of December 2009, although some months later, she changed her mind.

129Dr. Prime found that the allegation of discrimination because of age was not supported. I have found that one aspect of the allegation of age discrimination is supported. The fact that I have come to a different conclusion does not mean that Dr. Prime’s report amounts to a failure to conduct an appropriate investigation. My conclusion was reached following a three day hearing in which I heard sworn testimony. The duty to accommodate does not require a respondent to mirror a hearing at this Tribunal or to come to the same result as the Tribunal. The requirement is to seriously consider and respond in a reasonable way. In my view, although Dr. Prime incorrectly concluded there was no discrimination in the circumstances, the respondents did consider the applicant’s complaint seriously and reasonably. They met the procedural duty to investigate.

130The applicant testified that Dr. Prime told her that she would have a chance to review a draft of the report and to make comments before he submitted his final report. Such a process would have improved the overall investigation process, but, in my view, a failure to provide the applicant with the opportunity to review a draft report does not mean that the process was not reasonable.

131The applicant had union representation with her when Dr. Prime interviewed her and so presumably was aware of her rights under the collective agreement if she was dissatisfied with the results of the report.

Conclusion and Next Steps

132As noted, it was agreed at the outset of the hearing that the hearing would be bifurcated and that the first part of the hearing would concern whether the applicant experienced discrimination and/or harassment contrary to the Code. If I found that the applicant did experience discrimination and/or harassment contrary to the Code, the hearing would reconvene to hear evidence and submissions on the applicant’s entitlement to damages.

133I have now concluded that the applicant was treated differently in employment because she was an older person who was eligible for retirement. The differential treatment consisted of comments that encouraged the applicant to retire and this constitutes discrimination on the grounds of age contrary to section 5 of the Code.

134I have found that the applicant has not proved the other allegations of age discrimination.

135In these circumstances, the applicant may be entitled to financial compensation for injury to dignity, feelings and self-respect. She is not entitled to reinstatement, compensation for lost wages, or adjustment to her pension because these are not damages that flow from the allegations that I have found the applicant has proved.

[136] The Tribunal will schedule a one-day hearing to hear evidence and submissions regarding the damages that the applicant is entitled to for injury to dignity, feelings and self-respect in respect of the differential treatment that she experienced and that consisted of comments that encouraged the applicant to retire, contrary to section 5 of the Code.

Dated at Toronto, this 18^th day of October, 2011.

”signed by”______

Brian Cook

Vice-chair