Ogunyankin v. Queen’s University, 2011 HRTO 1910

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kofoworola Ogunyankin Applicant

-and-

Queen’s University Respondent

DECISION

Adjudicator: Mark Hart Date: October 21, 2011 Citation: 2011 HRTO 1910 Indexed as: Ogunyankin v. Queen’s University

APPEARANCES BY

Kofoworola Ogunyankin, Applicant ) Sandra Barton, Trevor Guy ) and Kelly Henriques, Counsel

Queen’s University, Respondent ) Andrea Risk and ) Ashley Brown, Counsel

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) dated June 25, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on August 22, 2007.

2The applicant’s complaint alleges that he experienced discrimination in respect of employment because of his race, colour, place of origin or ethnic origin and/or his sex contrary to ss. 5(1) and 9 of the Code, arising out of the respondent University’s decision to deny him promotion to the rank of associate professor which was ultimately confirmed on March 19, 2007, and in relation to a performance appraisal dated May 21, 2007.

3The hearing in this matter was held in Kingston on January 18, 19 and 20, 2011, and continued by teleconference on March 21, 2011, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53 applications proceed in an expeditious manner. In accordance with my directions, the parties filed complete statements of evidence for all of their witnesses and conducted supplementary examination of their own witnesses and cross-examination of opposing witnesses at the hearing.

4In all, I heard from the applicant and eight respondent witnesses, namely:

a) Dr. Hoshiar Abdollah, a professor and cardiologist in the Division of Cardiology at the respondent University, former Chair of the Division, and a member of the Department of Medicine’s Promotion Committee at the relevant time;

b) Dr. Gerald Adams, an assistant professor in the Division of Cardiology and former Chair;

c) Dr. John Dixon, Associate Vice-Principal (Academic & International) at the time of the applicant’s promotion application;

d) Dr. Karen Hitchcock, Principal and Vice-Chancellor of the respondent University at the relevant time;

e) Dr. Robert Hudson, a professor and endocrinologist in the Department of Medicine at the respondent University and Chair of the Promotion Committee at the relevant time;

f) Dr. John Jeffrey, Associate Dean, Clinical in the Faculty of Health Sciences at the relevant time;

g) Dr. John McCans, Head of the Department of Medicine at the relevant time; and

h) Dr. Tony Sanfilippo, professor and cardiologist in the Division of Cardiology.

5Following the hearing of evidence in this matter and on consent of the parties, the parties filed final argument by way of written submissions, with reply submissions filed on behalf of the applicant on April 29, 2011.

Review of Evidence

The parties

6The respondent University has several faculties, including the Faculty of Health Sciences. Within the Faculty of Health Sciences, there are three schools, one of which is the School of Medicine. With the School of Medicine, there are 22 departments, one of which is the Department of Medicine. Within the Department of Medicine, there are 12 divisions including the Division of Cardiology, which is the division in which the applicant worked at the times relevant to this Application.

7The applicant is a Nigerian-born physician with a specialty in cardiology and additional expertise in the field of echocardiography. The applicant self-identifies as a Black man.

8The applicant grew up in Nigeria and completed his Bachelor of Medicine and Surgery at the University of Lagos in 1985. After completing his first medical internship and serving as a medical officer in Nigeria, the applicant emigrated to the United Kingdom in 1987, where he completed his residency training and became a fellow in cardiology. In 1992, the applicant re-located to the United States where he was required to repeat two years of residency training. In 1994, the applicant became a fellow in cardiology at the State University of New York and then transferred to become a fellow in cardiology at U.C.L.A. the following year where he completed a three year program. In 1997, the applicant was accepted into a fourth year fellowship program at Tufts University where he gained expertise in advanced echocardiography.

9In 1998, the applicant received a visiting assistant professorship in the cardiology division at the West Los Angeles Veteran Administration / U.C.L.A. medical center. From 1998 to 2001, the applicant was employed as an assistant professor of Clinical Medicine at Columbia University and also worked as an attending staff cardiologist and served as the director of echocardiography at Bassett Healthcare in Cooperstown, New York.

Recruitment of the applicant to Queen’s University

10In 2000, the Division of Cardiology at the respondent University was looking to hire an additional echocardiography specialist to assist with work distribution and to undertake research. The applicant was actively recruited by the respondent University to fill this position. He was provisionally offered an academic appointment to the position of assistant professor with responsibilities in the Division of Cardiology in September 2000, which the applicant accepted. This offer was subject to the University’s approval and contingent on approval by Immigration Canada and the applicant’s ability to secure licensure with the Province of Ontario.

11The licensure required by the applicant was in the form of a certificate of registration authorizing academic practice to be issued by the College of Physicians and Surgeons of Ontario (“CPSO”). On December 7, 2000, the applicant received the required licensure from the CPSO on the condition that he practise medicine only in a clinical teaching unit that was formally affiliated with the Division of Cardiology and only to the extent required by the teaching or research requirements of his appointment. The certificate to practise was stated to expire in five years, with the expectation that within that time the applicant either would be promoted to the rank of associate professor or would obtain certification by examination by the Royal College of Physicians and Surgeons of Canada (“RCPSC”).

12By letter dated January 3, 2001, the applicant was formally offered the position as assistant professor in the Division of Cardiology for a three-year term to commence on or about March 1, 2001, and to end on June 30, 2004, subject to renewal on recommendation by the Head of the Department of Medicine and the Dean of Health Sciences. The applicant’s duties were stated to include a combination of teaching, clinical service and service to the broader University community. In addition, it was stated that the applicant was expected to maintain a research / scholarly profile, with a clear expectation that he become involved in research activities that would lead to presentation of material nationally and internationally and the publication of relevant studies in peer reviewed journals.

13This offer was accepted by the applicant on January 8, 2001, and he was issued an employment authorization visa by Immigration Canada active as of May 8, 2001. The applicant commenced his duties in the assistant professor position on May 14, 2001.

The applicant’s research program

14During the initial period of his employment, in addition to his clinical and teaching duties, the applicant was allocated 20% of his time as “protected time” to engage in research and scholarly activities. This allocation of protected time was increased to 50% as of July 1, 2003. It is a matter of dispute between the parties as to whether the applicant actually received this amount of protected time.

15Following his initial appointment, the applicant set about modernizing the respondent University’s echocardiography laboratory and initiated several research projects.

16The principal research project initiated by the applicant was referred to in the evidence as a hypertension study related to diastolic function. In September 2001, the applicant applied to the Heart and Stroke Foundation of Ontario (“HSFO”) for funding, which was denied. The applicant modified his proposal in accordance with the criticisms offered by the HSFO reviewers, and re-submitted a revised application for funding in September 2002, which also was denied. Ultimately, in November 2003, the applicant was successful in obtaining initial funding of $70,100 for this study from Pfizer, a drug company. Additional funding of $25,000 for this study was provided by Pfizer in January 2006. As of September 2006, this study had resulted in the publication of five abstracts and the preparation of a manuscript that had been submitted to the American Heart Journal which was under revision.

17The applicant also embarked upon a research project in relation to criteria used to evaluate left ventricle filling pressure. This project was funded by the initial start-up grant of $35,000 given to the applicant by the respondent University. As of September 2006, this study had resulted in the publication of three abstracts. The applicant also had submitted manuscripts arising from this study to two journals, which declined to accept them for publication. Ultimately, a manuscript was accepted for publication by the journal Echocardiography, and was scheduled for publication in November 2006.

18A third research project initiated by the applicant related to the comparison of two different modalities for displaying the result of tissue Doppler imaging. This research project was funded from the Pfizer grants received by the applicant. As of September 2006, the applicant had submitted two manuscripts resulting from this study, both of which were declined for publication. A similar study by other researchers was subsequently published, and the applicant had a letter published in response to this study. As of September 2006, the applicant was in the process of re-formatting a manuscript for submission, which he planned to complete within the next six months.

19A fourth research project related to patients with biventricular pacemakers. This project was funded by a SEAMO grant award of $10,000 and by funding provided by one of the applicant’s colleagues. Initial abstracts arising from this study were submitted but not accepted for publication. One abstract from this study ultimately was published in 2005. The applicant suspended this research project due to the very small number of patients enrolled in the study and other technical issues.

20The fifth research track pursued by the applicant involved collaboration with an associate professor, Dr. Melo, who was cross-appointed to both the Departments of Physiology and Medicine. Dr. Melo was the principal investigator for this research track, which related to the accurate characterization of cardiac function after genetic or molecular interventions. This research study involved testing on lab animals, and the applicant was responsible for echocardiographic imaging of these animals. The applicant was identified as a collaborator in three grant applications initiated by Dr. Melo to the HSFO and the Canadian Institutes of Health Research (“CIHR”), which resulted in total funding of approximately $730,000. The applicant was identified as a co-investigator in a grant application to HSFO submitted by Dr. Melo in August 2005, which resulted in further funding of approximately $850,000. As of September 2006, Dr. Melo had submitted a further grant application to CIHR for approximately $760,000 in which the applicant also was identified as a co-investigator. As of September 2006, this research project had resulted in the preparation of two manuscripts, one of which had been submitted for publication and was under revision.

The applicant’s re-appointment and subsequent events

21By letter dated December 12, 2003, the applicant was offered re-appointment for a five-year term as an assistant professor in the Division of Cardiology from July 1, 2004 to June 30, 2009, contingent upon him continuing to meet the terms of his licensure by the CPSO. This letter noted the valuable clinical and educational contributions the applicant was providing in the area of echocardiography. However, given the critical requirement for the continuation of the applicant’s licensure, the importance of focusing on his scholarly activity in order to prepare for advancement through the ranks was emphasized. In particular, it was stated that wherever possible, the applicant should strive to publish promptly significant findings that he and his colleagues may discover and whenever possible in the leading journals in the applicant’s field. This offer was accepted by the applicant.

22The applicant received a letter dated December 10, 2004 from the RCPSC indicating that in order to sit for his examination in internal medicine, the applicant would first need to complete six months of residency training. This was not palatable to the applicant, as he already had completed residency training in the United Kingdom and further residency training in the United States. The applicant accordingly communicated to the Head of the Department of Medicine, Dr. McCans, that he had no intention of undergoing any further residency training.

23As the original five-year period of licensure by the CPSO was due to expire in the relatively near future, the respondent University sought and obtained on the applicant’s behalf a two-year extension from the CPSO. By letter dated March 24, 2005, the CPSO confirmed this extension to May 10, 2008, by which time the applicant was required either to obtain certification by examination from the RCPSC (which the applicant was not prepared to do due to the residency requirement) or obtain promotion to the rank of associate professor. As a result, the only means by which the applicant would be able to maintain his licensure with the CPSO was to obtain promotion to the rank of associate professor by May 10, 2008.

24A meeting with the applicant was held on February 18, 2005, attended by Dr. McCans as Head of the Department of Medicine, Dr. Abdollah as Chair of the Division of Cardiology, and Dr. Hudson as Chair of the Promotion Committee. At this meeting, the University’s promotions policy was reviewed with the applicant. Under the promotions policy, in order to obtain promotion to the rank of associate professor, a candidate needed to demonstrate “high quality” research and scholarship and “very good” teaching. A candidate’s contributions to administrative and professional service also would be considered. The status of the applicant’s research projects was reviewed at this meeting. The notes of this meeting indicate that the applicant was encouraged to both publish the work he had completed to date and to pursue opportunities for research funding from peer-reviewed agencies, such as the HSFO. The notes indicate that the need for these two activities to proceed simultaneously was emphasized.

25A further meeting with the applicant was held on May 10, 2006, attended by Dr. McCans and Dr. G. Adams, who had succeeded Dr. Abdollah as Chair of the Division of Cardiology. At this meeting, the applicant expressed his intention to submit an application for promotion to the rank of associate professor to be effective July 1, 2007. The status of the applicant’s research program was reviewed. The notes record that Dr. McCans emphasized the need for peer-reviewed publications as well as peer-reviewed funding in order to ensure a successful application for promotion. The promotion review process was outlined once again.

The applicant’s application for promotion

Proceedings of Promotion Committee

26The applicant submitted his promotion dossier on September 1, 2006. In accordance with the promotion policy, the applicant met with Dr. Hudson as Chair of the Promotion Committee on September 8, 2006, to review his suggested list of references. In his promotion dossier, the applicant had provided five external referees and three internal referees, which exceeded the policy requirements. At the September 8, 2006 meeting, Dr. Hudson raised adding Dr. G. Adams as Chair of the Division of Cardiology as an additional referee. Dr. Hudson states in his evidence that this was raised because it is a standard expectation that candidates for promotion will include the Chair of their Division as a referee. This is supported by the documentary evidence before me regarding other candidates for promotion to the rank of associate professor in the Department of Medicine. The applicant’s evidence, which is not disputed, is that he raised a concern at this meeting that Dr. G. Adams held the rank of assistant professor (the same rank as the applicant) and therefore was ineligible to be a referee under the promotions policy. Dr. Hudson concedes this, but takes the position that, as the applicant agreed to the inclusion of Dr. G. Adams as an additional referee, there was no breach of the policy. The minutes of this meeting record that the discussion of the applicant’s referees “resulted in agreement” that Dr. G. Adams would be added to the list. The applicant disputes that he agreed to add Dr. G. Adams as a referee, stating that he felt that he was not in a position to object when this request was made by Dr. Hudson as Chair of the Promotion Committee.

27The Promotion Committee held its first meeting to consider the candidates on October 23, 2006. At this meeting, the promotion policy and materials from the promotion dossiers submitted by the candidates were distributed to the committee members. Full copies of the candidates’ promotion dossiers were available for review by the members. Dr. Hudson’s evidence is that two members of the committee would be assigned to review each candidate’s full promotion dossier.

28The committee met again the following day, on October 24, 2006. At this meeting, the applicant’s application for promotion was discussed. By the time of this meeting, some but not all of the applicant’s referees had provided letters of reference to the committee. It was initially moved, seconded and carried at this meeting that the applicant’s application for promotion be conditionally approved, pending receipt of at least one additional favourable letter of reference from an external referee.

29A discussion then ensued in which concern was expressed that review of the applicant’s application for promotion revealed marginal productivity in terms of research and scholarly work since his arrival at the respondent University in 2001. Specifically, note was made that his peer-reviewed publications as first author included two letters and one article. It was noted that two other manuscripts had been submitted as lead author, one of which was under revision, and that one manuscript had resulted from the applicant’s collaboration with Dr. Melo which had been submitted and was under revision.

30It also is recorded in the minutes of this meeting that the applicant’s reference letters from both undergraduate and postgraduate students were not considered by the committee to be strong overall. While the applicant’s qualities and abilities as a teacher / educator were deemed good, note was made that he did not meet the promotion criteria in the “very good” category.

31In conclusion, the committee unanimously agreed that a decision regarding the applicant’s application for promotion would not be made until the three requisite external reference letters were available along with the assessment of Dr. G. Adams as Chair of the Division of Cardiology. It was agreed that letters of reference would be requested by October 30, 2006, at which time the committee would meet again to consider the applicant’s application. As a result, the initial motion for conditional acceptance of the applicant’s application for promotion was withdrawn.

32In accordance with the committee’s direction, referees who had not yet responded to provide letters of reference on the applicant’s behalf were contacted and asked again to provide a reference by no later than October 30, 2006. As a result, two further letters from external referees were received.

33In addition, a letter dated October 28, 2006, was provided by Dr. G. Adams. This letter states that since the time of his original appointment in 2001, the applicant had 40 to 50% of his time protected for research. Dr. G. Adams notes that the applicant’s published works consisted of one scientific paper, seven abstracts and two letters to the editor, and that the applicant had presented two abstracts at a recent conference and had three manuscripts submitted but not accepted for publication. Dr. G. Adams notes that the applicant’s research had been largely industry-funded, and that he had also collaborated with Dr. Melo on a number of externally-funded projects. Dr. G. Adams then expressed his view that, although the applicant had worked diligently on his research and his published work was of acceptable quality, “the paucity of published output has limited the impact of his efforts on the practice of Cardiology, nationally and internationally” and that he would have expected more productivity from an individual with 40 to 50% protected research time. Dr. G. Adams stated his opinion that the applicant’s performance in the area of research fell below the standard necessary for promotion to associate professor. Dr. G. Adams further stated that the applicant had not distinguished himself in the areas of clinical care and teaching to the extent that the Promotion Committee should consider his performance exceptional.

34The committee met again on October 30, 2006, to consider the applicant’s application and the reference letters received by the committee were distributed. The minutes from this meeting record that it was the unanimous opinion of the committee that the applicant did not meet the criteria for promotion as there was not sufficient evidence that he was a “very good” teacher and there was not sufficient evidence of “high quality” research and scholarly work.

35Concern was expressed specifically that the applicant’s research productivity had been at a substandard level. Note was made that an individual who had received 40 to 50% protected time for a five-year period was expected to be more productive as evidenced by peer-reviewed publications and grants from peer-reviewed agencies.

36It also was the unanimous opinion of the committee that as an educator / teacher, the applicant did not meet the criteria in the “very good” or “exceptional” category. The minutes of this meeting record that reference letters received from both undergraduate and postgraduate students were not considered to be strong overall.

37The minutes of this meeting record the committee as acknowledging that all external referees had recommended the applicant’s promotion to the rank of associate professor. However, concern was expressed that several referees had either counted or reflected on the quality of peer-reviewed publications that had evolved in conjunction with the applicant’s period of post-graduate training. Note was also made that one of the applicant’s external referees had referred to him as a “friend”, which was not regarded as meeting the requirement for a referee to be arm’s length.

38As a result, it was moved, seconded and carried that the applicant be denied promotion to the rank of associate professor.

39In accordance with the promotion policy, a summary of the deficiencies in the applicant’s application was forwarded to him by letter from Dr. Hudson dated October 31, 2006, and the applicant was invited to submit a written statement to the committee within 10 working days. The applicant was advised that the committee was not able to recommend promotion for two reasons. First, as an individual with 40 to 50% protected time to conduct research, it was felt that the applicant’s productivity as evidenced by peer-reviewed publications was limited. Furthermore, it was indicated that the applicant’s research grants from peer-reviewed agencies also was limited. Second, it was indicated that the committee’s review of the applicant’s reference letters was that his teaching / education, although good, was not in the very good or exceptional category.

40The applicant responded to Dr. Hudson by letter dated November 9, 2006. The applicant first took issue with the matter of his protected time in light of his clinical and teaching responsibilities. He stated that in the first three years of his employment, he did not receive any more than the standard 20% protected time for research. He stated that as a result of changes made to his clinical and teaching responsibilities in late 2003 and early 2004, he had approximately 35% protected time in the last two years. He stated that the intent to give him up to 50% protected time was only discussed within the past two years, but this had not proven to be feasible.

41The applicant next noted the lack of echocardiographic infrastructure, which delayed his research and contributed to the denial of funding by the HSFO for his hypertension study. Nonetheless, he noted that this research study had generated five abstracts within the preceding 10 months and a positive review of the first manuscript from the project. The applicant also outlined his research activity, emphasizing his collaboration with Dr. Melo.

42With regard to his teaching, the applicant took issue with the committee’s characterization of his student reference letters. He stated that the consistency of his student evaluations represented concrete evidence of his teaching excellence. He also stated that it was puzzling that Dr. G. Adams’ letter did not reference the applicant’s contributions to the cardiology training program, for which Dr. G. Adams had written the applicant a commendation letter.

43Finally, the applicant took issue with Dr. G. Adams’ reference letter, which he stated was at odds with the positive evaluations of all of his other referees.

44The Promotion Committee met again to further consider the applicant’s application on November 16, 2006. A copy of the applicant’s written statement dated November 9, 2006 was distributed. The minutes of this meeting record the consensus of the committee that the applicant’s promotion file had not been strengthened with the addition of his written statement and supporting documents, which included the HSFO reviews of his requests for funding. Note was made that the HSFO reviews revealed that the applicant’s research proposal was not feasible for numerous reasons and concern regarding research infrastructure was not the sole cause of the unfavourable reviews. The minutes record that committee members agreed that it was the responsibility of a principal investigator to take into account the feasibility of a research proposal prior to making application for peer-reviewed funding.

45While the committee acknowledged that the applicant had provided information regarding his protected time that was not in keeping with that provided by Dr. G. Adams, all committee members agreed that the percentage of protected time an individual receives does not result in a modification of the “high quality” descriptors identified in the promotions policy.

46The committee also discussed the reference letters received from undergraduate and postgraduate students and the applicant’s teaching dossier. The minutes record that overall, the applicant’s teaching evaluations and student reference letters were not considered to be representative of a “very good teacher” rating, as described in the promotions policy. Note was made that one former student had declined to provide a reference and another did not respond to repeated requests.

47The committee’s conclusion was that the applicant’s promotion file did not provide evidence that he was a “very good teacher” or that his research and scholarly work were of “high quality”. However, as two committee members were not able to attend the meeting, a decision was made to contact these two members to request that they review the material available at the meeting before the committee re-convened the following week.

48On November 23, 2006, the committee met for a fifth and final time in relation to the applicant’s promotion application. In discussion at the meeting, it was again expressed that the applicant did not meet the requirements under the policy for promotion to the rank of associate professor. Accordingly, it was moved, seconded and unanimously carried that the applicant not be recommended for promotion to the rank of associate professor commencing July 1, 2007.

Review by Department Head

49By letter dated November 23, 2006, the Promotion Committee advised Dr. McCans as Head of the Department of Medicine of its decision not to recommend the applicant for promotion.

50By letter dated November 24, 2006, Dr. McCans wrote to the applicant to advise that he had received the committee’s recommendation and had reviewed the applicant’s promotion file, dossier, letters of reference and committee proceedings. In accordance with the promotions policy, Dr. McCans informed the applicant that a negative conclusion was emerging in conjunction with his promotion application. Dr. McCans expressed his concern that the documentation did not provide evidence that the applicant was a “very good teacher” or that his research and scholarly work were of “high quality”. The applicant was afforded 10 working days to provide a written statement to Dr. McCans, to provide clarification or to comment on substantive or procedural matters.

51The applicant chose not to respond to this invitation from Dr. McCans and did not provide any further written statement.

Review by Associate Dean (Clinical)

52The next level of review was conducted by Dr. Jeffrey, the Associate Dean (Clinical) for the Faculty of Health Sciences.

53Dr. Jeffrey reviewed the applicant’s promotion file and concurred with the conclusions of the Promotion Committee and Dr. McCans that there were deficiencies, particularly in the areas of research and teaching, such that the applicant was not meritorious for promotion at that time.

54As a result, Dr. Jeffrey wrote a letter to the applicant dated January 10, 2007 outlining the deficiencies that he perceived in the applicant’s promotion file. Dr. Jeffrey expressed his understanding that within his subspecialty of expertise in echocardiography, the applicant had been recruited to the respondent University primarily in the role of clinical researcher. Dr. Jeffrey noted that in this role, the applicant had managed to garner a modest amount of external funding, with the majority of funding coming in collaboration within initiatives predominantly led by investigators in the Department of Physiology. Dr. Jeffrey noted that in this same period of time, the applicant had one article published in a peer-reviewed journal, while recognizing that three other articles had been submitted recently, two of which required revision. While Dr. Jeffrey noted that the applicant’s research profile in the past year was most certainly a positive one, he indicated that it was a profile that would need to be maintained over two or three years in order to warrant promotion on the basis of scholarly research.

55In the area of teaching, Dr. Jeffrey noted that the letters on the applicant’s behalf from students were very strong, but that some of the objective evaluations of the applicant’s teaching were not consistently above the 80th percentile.

56In accordance with the promotions policy, Dr. Jeffrey afforded the applicant seven working days to provide a written statement to identify issues from his perspective which may help Dr. Jeffrey in continuing to assess the file. Dr. Jeffrey also offered to meet with the applicant at his request.

57The applicant met with Dr. Jeffrey on January 15, 2007, following which he wrote a letter to Dr. Jeffrey dated January 22, 2007. In this letter, the applicant again raised the issue of his protected time, stating that his initial contract provided for 20% protected time for research but that he did not get all of this protected time in his first year and certainly did not get more than 20% in his second year. Starting from the summer of 2003, the applicant stated that a reduction in his clinical and teaching responsibilities made it possible for him to have up to 30% protected time. The applicant expressed the view that the outcome of his promotion application may have been different if the criteria by which he was assessed matched his actual time profile.

58The applicant also noted that, in his view, the decision not to recommend him for promotion did not match previous performance evaluations he had received. He noted that in each of his first three years at the respondent University, he had received an “A” for research. While the applicant did not receive a performance evaluation for his fourth year, he noted that in this year he had one manuscript published, three abstracts accepted for presentation at an international meeting, and a letter to the editor published, which he stated did not fall below the research standards set in previous years. The applicant also expressed his view that no credit appeared to have been given to the fact that he had co-supervised a M.Sc. student with Dr. Melo or that he had any part to play in Dr. Melo’s successful research activities, despite Dr. Melo’s letter to the committee explaining the dependence of his research on the imaging collaboration that the applicant provided.

59The applicant expressed agreement with Dr. Jeffrey’s assessment that the tempo of his research activity in the past year needed to be maintained, and expressed his hope that his research efforts would be vindicated in the following few weeks when the results of grant applications he had made with Dr. Melo were announced and the results of some submissions he had made since he originally submitted his promotion dossier became clear. He advised Dr. Jeffrey that his immediate plans were to consolidate the findings of his research activities so far, by focusing on writing using the available research time that he had.

60Following receipt and consideration of the applicant’s letter, Dr. Jeffrey wrote a memo dated January 24, 2007 to the Vice-Principal (Academic) recommending against promotion of the applicant to the rank of associate professor. In this memo, Dr. Jeffrey largely repeated the deficiencies that he had noted in his letter to the applicant of January 10, 2007, with a couple of additional points. In relation to the applicant’s research productivity and his publication record, Dr. Jeffrey noted with regard to the two manuscripts submitted but where revisions had been requested, that the journal in one instance raised questions about the validity of the data and in the other instance requested collaboration of certain molecular-based documentation. With regard to the applicant’s teaching, Dr. Jeffrey noted that the applicant had not received or been nominated for any teaching awards. While expressing his view that the promotion file at that time remained deficient, Dr. Jeffrey indicated that if the current profile were maintained over the next one or two years, the applicant would indeed warrant consideration for promotion to the rank of associate professor.

Review by Principal and Vice-Chancellor

61The final level of review under the promotions policy was conducted by Dr. Hitchcock, who at the time was the respondent University’s Principal and Vice-Chancellor.

62Dr. Hitchcock’s practice was for the promotion file to first be reviewed by Dr. Dixon, the Associate Vice-Principal (Academic), and by Dr. Lessard, the Special Advisor to the President. Dr. Dixon and Dr. Lessard would review the promotion file independently and then meet and discuss the file and their recommendations. After this, Dr. Hitchcock would meet with them and hear their comments, and then would undertake her own review of the file.

63Dr. Hitchcock recalls meeting with Dr. Lessard regarding the applicant’s promotion file, and recalls discussion about the level of research productivity and the expression of concern that the research was not where it should be for promotion to associate professor. She also recalls the disagreement between the applicant and Dr. G. Adams regarding the amount of protected research time that he had been afforded. Because of this disagreement, Dr. Hitchcock asked that the Division of Cardiology be contacted in order to ascertain how much protected time the applicant had received. Dr. Hitchcock’s evidence is that the information she received in response was that the amount of protected research time afforded to the applicant may have been less than the 40 to 50% indicated in Dr. G. Adams’ letter.

64Dr. Hitchcock sent a letter to the applicant dated March 19, 2007 to advise him that after a detailed and careful review of his promotion file, the evidence available to her did not support his promotion to the rank of associate professor. Dr. Hitchcock noted the criteria for promotion to associate professor as set out in the promotions policy, namely that there be a record as a “very good teacher” and a record of research and scholarly work judged to be of “high quality” by experts in the field, and expressed her concurrence with the previous conclusions that the applicant did not demonstrate either of these characteristics.

65With regard to the applicant’s research, Dr. Hitchcock accepted the applicant’s contention that although his original appointment provided for 20% protected research time, conditions in his department in the first years of his appointment did not allow for this to occur. However, Dr. Hitchcock noted her understanding from the promotion file that the applicant’s protected time had increased more recently. Dr. Hitchcock also noted that the applicant was engaged in a program of research with colleagues in Physiology that appeared to be on the verge of bearing fruit. However, Dr. Hitchcock stated that, since the evaluation gives weight to research which has been completed and published, she concurred with previous assessments that the applicant’s file for the period since assuming a position at the respondent University did not demonstrate a record of research and scholarship that could be qualified as being of “high quality”.

66With respect to teaching, Dr. Hitchcock noted that an examination of the teaching evaluations in the applicant’s file showed a proportion of responses at the very good to excellent level, but also showed a non-trivial number of responses at the neutral level and some few at the lower level. Dr. Hitchcock noted that this degree of spread was higher than that usually found in promotion files. In addition, while some of the student reference letters spoke to the applicant’s abilities as a role model and mentor, Dr. Hitchcock stated that she found limited evidence of the applicant playing a leadership role in education at the respondent University or more generally, no evidence of teaching awards, and little evidence of local, regional or national invited lectures. On the basis of the entire set of criteria indicating “very good” teaching as set out in the promotions policy, Dr. Hitchcock stated that she concurred with previous levels that the applicant’s file did not show convincing evidence of teaching considered to be “very good”.

67Dr. Hitchcock concluded by stating that, while the applicant’s file was not currently at the level which would merit promotion to associate professor, she encouraged the applicant to continue his efforts toward publication in the next several years and to expand his teaching activities to address the gaps she had noted, and then to re-submit an application for promotion at the appropriate time.

The applicant’s resignation from the respondent University

68The applicant’s evidence is that, with his employment contract with the respondent University still valid until June 30, 2009 and his restricted certificate of registration not scheduled to expire until May 10, 2008, he could have perhaps persuaded the hospitals where he performed clinical services to continue his privileges and done as Dr. Hitchcock suggested. However, he states that by this point, he was too discouraged and disillusioned by his experience at the respondent University to continue under its employ.

69In early April 2007, the applicant received a letter reminding him that his hospital privileges were scheduled to lapse on July 1, 2007 and an update on the applicant’s progress in meeting the terms of his restricted licensure was requested.

70The applicant responded by letter dated April 17, 2007, indicating that he felt that he no longer had the opportunity for career growth at the respondent University and he offered his resignation effective July 1, 2007. The applicant indicated in this letter his intention to pursue his career elsewhere, which he has since done by obtaining a position as an assistant professor at the Feinberg School of Medicine at Northwestern University in Chicago.

The May 2007 performance appraisal

71On June 5, 2007, shortly before the effective date of his resignation from the respondent University, the applicant received a performance evaluation completed by Dr. McCans on May 21, 2007.

72In this performance evaluation, the applicant was awarded a “B/C” in the area of education, “C” grades in the areas of research / scholarship and clinical activity, and a “B” in service / administration. According to the performance evaluation, a “B” grade indicates “meets expectations” and a “C” grade indicates “does not meet expectations”.

73In the comments under research / scholarship, Dr. McCans stated that although there had been some evidence of publication in peer-reviewed journals over the preceding year, the applicant’s level of productivity along with the absence of significant peer-reviewed funding where he was the primary investigator fell short of expectations. Dr. McCans’ evidence is that, while the applicant had previously received positive evaluations for his research / scholarship in the first three years of his tenure, his output of scholarly work in the period between his last performance evaluation in August 2005 and the May 2007 evaluation had been minimal. Given the emphasis that had been placed on the need for peer-reviewed publications and research funding, Dr. McCans was of the view that the applicant’s productivity fell well below the Department’s expectations.

74This is disputed by the applicant, who notes that in 2006 he had co-authored three published abstracts and had an additional two abstracts accepted, had a letter to the editor published, and had two manuscripts based on his collaborative work with Dr. Melo submitted for publication. In addition, the applicant notes that as principal investigator, he had secured $25,000 in additional funding from Pfizer.

75In the comments under “clinical activity”, Dr. McCans stated that the applicant had failed to meet the standards of the Echocardiography Group in the consistent interpretation of stress echocardiograms. Dr. McCans’ evidence is that during the period since the applicant’s last evaluation in August 2005, issues regarding the applicant’s interpretation of stress echocardiograms had come to the forefront. In particular, Dr. McCans was aware that complaints had been received about the inconsistency of stress echocardiogram reports that were being issued by the Echocardiography Group. This is supported by the evidence of Dr. Sanfilippo. Dr. McCans also personally had concern from his clinical practice regarding reports prepared by the applicant. As a result, Dr. McCans asked Dr. Sanfilippo to conduct an audit of the Group’s reports to determine if inconsistent interpretation was an issue.

76The specific concern was that the applicant was over-reporting positive stress echocardiogram (“stress echo”) reports, which led to a concern that more patients were being referred for angiographic examinations, which are invasive procedures. This resulted, according to Dr. Sanfilippo’s evidence, to a tendency for Divisional colleagues to ask himself or another echocardiographer to review studies interpreted by the applicant before they proceeded to conduct further and potentially unnecessary testing by angiography. Dr. Sanfilippo’s evidence is that, upon review of the applicant’s reports, he often disagreed with the applicant’s positive readings.

77As a result of the concerns brought to his attention by Dr. McCans, Dr. Sanfilippo undertook a review of the Echocardiography Group’s stress echo experience in order to confirm or refute this impression of inconsistency. Dr. Sanfilippo looked at all stress echo reports from the 2005 year to assess how many reports were positive, how many were negative, and how many were indeterminate for each member of the group. Dr. Sanfilippo then looked at the reports of any patients who had a stress echo and subsequently had an angiogram to determine which positive stress echo reports were confirmed with a positive angiogram report.

78The results from this review were in evidence before me, and show that the applicant had a tendency to report positive stress echo reports much more frequently than other members of the group (about 50% of the time as compared to 15%).

79Following this review, a meeting was held involving the members of the Echocardiography Group to review and discuss the results. Dr. Sanfilippo’s evidence is that, while he and the other two members of the group felt that there were significant issues with the heterogeneity of the group’s stress echo reports and the rate at which false positives were being reported, the applicant felt that there was no clinical issue that warranted addressing.

80Dr. Sanfilippo’s evidence is that the overriding objective of a stress echo is to identify patients who are at high risk of critical coronary disease. He states that as a result, the usual practice is to identify as positive only those patients whose stress echo results indicate that they are in a high-risk category. He states that the applicant’s approach was to read results which were in between positive and negative (or indeterminate results) as positive. While Dr. Sanfilippo acknowledges that this approach significantly decreases the likelihood of missing any indication of coronary disease, it also captures a lot of people who are at low risk and subjects them to unnecessary and potentially dangerous angiograms. He states that there is about a 1 in 1000 risk that a patient who undergoes an angiogram will suffer a significant complication.

81At the Echocardiography Group meeting, Dr. Sanfilippo states that he and the other two members of the group were in agreement that strategies should be implemented to ensure consistency in the group’s readings so as to avoid confusion and concern among physicians to whom their reports were provided. He states that the applicant, however, made it very clear that he did not feel that consistency in the group’s reporting was something to be concerned about. The group did reach consensus that they at least would include in their reports the reasoning behind any reading of a positive result, so that the physicians reviewing the reports would have the benefit of an explanation for the positive reading.

82On January 18, 2007, Dr. Sanfilippo sent an e-mail to Dr. McCans regarding the results of his review and the discussion at the Echocardiography Group meeting. In this e-mail, Dr. Sanfilippo expressed his view that he personally did not feel that it was enough for the group merely to explain the reasoning behind positive results without ensuring consistency in reporting.

83At the hearing, the applicant took issue with the methodology used and conclusions reached in the review conducted by Dr. Sanfilippo. In my view, that is not the issue before me. The issue before me is whether the applicant’s race was a factor in this review and the resulting impact upon the applicant’s May 2007 performance evaluation. In my view, this issue gave rise to a difference in medical opinion between the applicant and the three other members of the Echocardiography Group regarding the reporting of stress echoes as positive. I find that the concern about the applicant’s positive reporting of stress echoes was shared by the other three members of the Echocardiography Group and by Dr. McCans based upon their medical judgment. I appreciate that the applicant disagrees with their medical judgment and the means by which they concluded that he was over-reporting positive results. However, I find that the evidence does not support that the applicant’s race was a factor in this medical disagreement or in the resulting impact recorded in his performance evaluation.

Analysis and Findings

General principles

84The applicant’s complaint alleges that his race, colour, place of origin or ethnic origin and/or his sex was a factor in the respondent University’s decision to deny him promotion to the rank of associate professor and in relation to the May 2007 performance appraisal. While sex was a ground of discrimination cited in his complaint, this allegation was not pursued at the hearing nor do I find any basis in the evidence to support an allegation of sex discrimination. The remaining grounds I will refer to collectively as an allegation of discrimination because of race.

85The applicant bears the onus of establishing a prima facie case of discrimination: Ontario (Human Rights Commission) v. Simpsons-Sears Ltd. (“O’Malley”) 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536, at para. 28. In establishing discrimination, the ordinary civil standard of proof upon a balance of probabilities applies: Ontario (Human Rights Comm.) v. Etobicoke (Borough), 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202.

86There is no direct evidence in support of the applicant’s allegations, which is not at all uncommon in cases alleging racial discrimination. Rather, as in many cases of racial discrimination before this Tribunal, the applicant’s case falls to be determined by the application of the well-established principles relating to the use of circumstantial evidence.

87The principles that apply in the context of this Tribunal’s analysis of racial discrimination cases were reviewed and approved by the Divisional Court in Shaw v. Phipps, 2010 ONSC 3884, where the Court stated (at paras. 75 to 79):

Many discrimination cases, such as this case, do not involve direct evidence that a complainant’s colour or race was a factor in the incident in question. A tribunal must draw reasonable inferences from proven facts.

The Tribunal correctly outlined the principles that apply in cases involving an allegation of racial discrimination. . . .:

(a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;

(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is the effect of the respondent’s actions on the complainant;

(c) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and

(d) Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.

Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 52 C.H.R.R. D/430, 2005 BCHRT 302 at para. 482; Pritchard v. Ziedler (2007), CHRR Doc. 07-527 (Sask. H.R.T.).

In cases where discrimination must be proved by circumstantial evidence, there are no bright lines. The Tribunal must determine what reasonable inferences can be drawn from proven facts. These are difficult, nuanced cases that are important to both the parties, to society and the neighbourhoods in which we live. The Tribunal notes (at para. 17):

In this case, as in many cases alleging racial discrimination, there is no direct evidence that race was a factor in the officer’s decision to take the actions that he did. As a result, the issue of whether the officer’s actions amount to racial discrimination in violation of the Code falls to be determined in accordance with the following well-established principles applicable to circumstantial evidence cases.

(1) Once a prima facie case of discrimination has been established, the burden shifts to the respondent to provide a rational explanation which is not discriminatory.

(2) It is not sufficient to rebut an inference of discrimination that the respondent is able to suggest just any rational alternative explanation. The respondent must offer an explanation which is credible on all the evidence.

(3) A complainant is not required to establish that the respondent’s actions lead to no other conclusion but that discrimination was the basis for the decision at issue in a given case.

(4) There is no requirement that the respondent’s conduct, to be found discriminatory, must be consistent with the allegation of discrimination and inconsistent with any other rational explanation.

(5) The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.

The Tribunal confirms that it did not have to find that race was the only or the major factor leading to the discriminatory conduct. It also did not need to find that there was an intention to discriminate, as racial stereotyping will often stem from unconscious biases or beliefs. The Tribunal was well aware of the difficult, nuanced question that it had to determine. It states (at paras. 18-19):

In determining whether the inference of racial discrimination is more probable than the explanations offered by the respondent officer, I also need to be mindful of the nature of racial discrimination as it is understood today and that it will often be the product of learned attitudes and biases and often operates on an unconscious level: Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 4.

Allegation of racial discrimination in promotions process

88I first will address the applicant’s allegation that he experienced racial discrimination arising out of the denial of promotion to associate professor, in accordance with the steps prescribed by the circumstantial evidence test.

a) Has the applicant established a prima facie case?

89In assessing whether the applicant has made out a prima facie case of racial discrimination, in my view it is important to bear in mind not only what is required to establish a prima facie case as the initial step in the context of the three-part circumstantial evidence test, but also what and whose evidence should be relied upon in making this determination.

90The Supreme Court of Canada has stated that a prima facie case of discrimination “is one which covers the allegations made and which, if believed, is complete and sufficient to justify a verdict in the complainant's favour in the absence of an answer from the respondent-employer”, see O’Malley, supra, at para. 28.

91The sole purpose of the initial stage of the circumstantial evidence test is merely to shift an evidentiary burden to the respondent to come forward with evidence explaining the decisions or actions at issue. If a prima facie case of discrimination is not made out at this initial stage, then the respondent need not come forward with any evidence at all to explain its actions. As a result, it has been observed that the burden to establish a prima facie case at this initial stage is not an onerous one: Almeida v. Chubb Fire Security Div., (1984), 1984 CanLII 5036 (ON HRT), 5 C.H.R.R. D/2104 (Ont. Bd.Inq.), at para. 17845.

92In reaching a conclusion about whether the complainant has made out a prima facie case of discrimination at this initial stage, in my view, it is not appropriate for the Tribunal to consider the respondent’s evidence regarding its explanation for the decisions it made. I say this for two reasons. First, the purpose of the initial step of making out a prima facie case of discrimination is merely to shift the evidentiary burden to the respondent to bring forward this kind of evidence in response. Accordingly, this kind of response evidence is more appropriately considered at the second step of the analysis, rather than the first. Second, the Supreme Court of Canada in O’Malley, supra expressly refers to the assessment of whether an applicant has made out a prima facie case of discrimination “in the absence of an answer from the respondent-employer”.

93At the hearing in this matter, at the conclusion of the applicant’s case, the respondent sought to bring a motion to dismiss the Application for failure to make out a prima facie case. In accordance with my discretion, I asked the respondent to make an election as to whether it was going to call evidence before I would entertain the motion. The respondent elected to call evidence. As a result, I did not rule on the respondent’s motion, but invited the respondent to make submissions regarding this issue as part of its final submissions, which it did.

94In its final submissions, the respondent cites this Tribunal’s decision in Edwards v. Waterloo Region District School Board, 2009 HRTO 215, regarding the test for an applicant to make out a prima facie case in the context of a hiring or promotion decision. This test has been variously referred to in this Tribunal’s jurisprudence as the Shakes test (named after this Tribunal’s eponymous decision in Shakes v. Rex Pak Ltd. (1981), 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001, at para. 8919) or as the McDonnell test (after its origins in American civil rights jurisprudence in McDonnell Douglas Corporation v. Green (1973), 93 S.Ct. 1817, at p. 1824, as cited in Almeida v. Chubb Fire Security Div., supra at para. 17844).

95The fundamental components of this test are as follows:

a) That the applicant applied for and was denied the position;

b) That the applicant has a personal characteristic that is identified by a prohibited ground;

c) That the applicant was qualified for the position; and

d) That another candidate was hired or promoted who does not share the same personal characteristic and was no better qualified.

96This test has been criticized in this Tribunal’s jurisprudence, most notably in the Almeida decision, supra. In that decision, Professor McCamus noted that the McDonnell and Shakes tests function well with “lower level” positions; however, for higher level jobs, there might be several qualified candidates, such that the failure of a particular qualified candidate may not arouse suspicion. To this criticism, I would add that, again for higher level positions, it often is difficult to assess without hearing evidence from the respondent whether the applicant was indeed “qualified” for the position or whether the successful candidate was “no better qualified”.

97This problem is illustrated and in fact exacerbated by the circumstances of the instant case. Promotions to the rank of associate professor at the respondent University are not “job competitions” in the normal sense, where there are several candidates vying for one position and the selection of a “successful” candidate. Rather, assessments of a candidate’s application for promotion to an associate professor position are made on the basis of each individual candidate’s merit in accordance with the criteria established in the University’s promotions policy. To illustrate the point, in this case, the respondent University was considering applications by three candidates from the Department of Medicine for promotion to associate professor effective July 1, 2007, two of whom were successful and one of whom (the applicant) was not. The applicant was not unsuccessful because there were only two openings for associate professor and the other two candidates were determined to be “more qualified”. Rather, the applicant was denied the promotion because the respondent University determined that he did not meet the required criteria under the policy on his own individual merits (as I find further below), without comparing him to the other two candidates who had applied for promotion that year. If the applicant had been determined to have met the required criteria, there would have been three associate professor positions created that year instead of two.

98As a result, in my view, the fourth element of the traditional Shakes test is not really applicable in the circumstances of this case. In this case, there is not a “successful candidate” in a job competition who can be assessed as “no better qualified” than the applicant. Rather, there are multiple candidates who were not in competition with each other, but rather who were assessed on each of their own individual merits in accordance with the policy criteria. Accordingly, in my view, the fourth element of the Shakes test has no bearing on whether the applicant has established a prima facie case of racial discrimination.

99This leaves us with the third element of the Shakes test, which is whether or not the applicant was “qualified” for the position. In the specific circumstances of this case, I would amend that element of the test to ask whether the applicant met the criteria for promotion to associate professor established by the promotions policy. The difficulty I have in addressing this issue on the basis of considering whether the applicant has made out a prima facie case is that this is what the entire hearing was about. The applicant clearly believes that he met the required criteria, and set out in his promotion dossier, his subsequent letters during the promotions process and in his evidence before me why he believes this to be so. Without hearing and considering the respondent’s evidence, it is not readily apparent to me that the applicant did not meet the required criteria. I acknowledge that there are letters in evidence before me that were sent to the applicant explaining the basis for the respondent University’s decision. But the reasons stated for the applicant’s failure to meet the policy criteria are in dispute and are one of the primary issues in dispute between the parties.

100I accept that there may be cases where an applicant is so clearly unqualified for a position or where the successful candidate in a job competition is so clearly more qualified so as to warrant dismissal of an application for failure to make out a prima facie case without requiring consideration of the respondent’s evidence. But that is not this case. In my view, in cases where the issue of whether an applicant met the qualifications or criteria for a position is the very essence of the dispute, it will rarely be the case where dismissal for failure to make out a prima facie case is appropriate.

101Indeed, in cases where a respondent has actually called its evidence in response to an allegation of discrimination, in my view it is an artificial and unhelpful exercise to assess whether the applicant has made out a prima facie case of discrimination while pretending that I have not heard all of the respondent’s evidence that I, in fact, already have heard. In my view, in circumstantial evidence cases where a respondent has called its evidence in response to an allegation of discrimination and has provided an explanation for its decision or conduct, the carving up of the circumstantial evidence test into three separate steps is artificial and unnecessary. In my view, in such cases, the sole question before the adjudicator should be whether the allegation of discrimination made by the applicant is more probable on the evidence than the explanation offered by the respondent, which is now the third step of the circumstantial evidence test.

102In any event, to the extent that I am currently required to determine whether the applicant has made out a prima facie case of discrimination as the first step of the circumstantial evidence test, I find that he has for the following reasons. First, as stated above, without hearing and considering the respondent’s evidence, it is not readily apparent to me that the applicant did not meet the required criteria for promotion to associate professor under the promotions policy. As the purpose of the first step of the circumstantial evidence is merely to shift the evidentiary burden to the respondent to provide an explanation for its decision, I find as the trier of fact that further explanation from the respondent is called for in this case.

103Second, while I appreciate that the recommendations provided in the letters from the applicant’s referees are in dispute between the parties, on their face and without considering the respondent’s evidence, these letters appear to support the applicant’s promotion to associate professor.

104Third, the applicant has raised before me certain inconsistencies in the promotions process in contravention of the policy as part of his allegation that he experienced racial discrimination, the most notable of which is the solicitation of and reliance upon the letter of reference from Dr. G. Adams, who as an assistant professor at the same rank as the applicant, ought not under the policy have been asked to provide a reference. Once again, without the benefit of hearing and considering the respondent’s evidence, I find that this and other inconsistencies in the promotion process support a prima facie case of discrimination and call for some explanation from the respondent.

105Finally, while I will have more to say about these reports at a later stage of this Decision, at the initial stage of assessing whether the applicant has made out a prima facie case calling for some explanation or response from the respondent, I also place reliance upon the Final Report of the Principal’s Advisory Committee on Race Relations from 1991 (the “PAC Report”), the report prepared by Dr. Frances Henry for the respondent University’s Senate Educational Equity Committee (“SEEC”) in 2004 (the “Henry Report”) and the SEEC Response to the Henry Report from 2006, all of which were in evidence before me.

106The PAC Report identified a problem of racism at the respondent University and noted that racial minority employees were under-represented on the respondent’s campus and in particular that the numbers of racial minorities were low among faculty. This report included a large number of recommendations, including that the respondent University promote more racial minority group members into higher faculty ranks.

107The Henry Report also identified a problem with systemic racism at the respondent University, which was described as a “culture of Whiteness” that pervaded all aspects of University life, including promotion decisions. In the SEEC Response, it was stated that the committee strongly believed that the Henry Report represented the realities of the current climate at the respondent University.

108As I have stated in prior Interim Decisions in this matter, the issue of whether or not there is systemic racism broadly at the respondent University is not before me. The issue before me is whether the applicant personally experienced racial discrimination in the manner alleged in his complaint. However, in these prior Decisions, I also indicated that the evidence from the reports I have cited may provide background and context to the applicant’s allegations. In this regard, I have considered these reports and their findings as one aspect of my determination that the applicant has made out a prima facie case of racial discrimination, sufficient to call for some explanation or response from the respondent regarding the matters at issue in this proceeding.

b) Has the respondent provided a rational, non-discriminatory explanation?

109The second step of the traditional circumstantial evidence test is to determine whether the respondent has provided a rational explanation for the decision or conduct at issue which is not discriminatory.

110In my view, as stated above, it is somewhat artificial to separate this out as a “step”, although it does help the analysis somewhat by focusing attention on the respondent’s explanation for its actions. In my experience, it will be a rare case indeed where a respondent will fail to provide a rational explanation or will provide an explanation that is discriminatory. As a result, the vast majority of cases will proceed directly to the third step of the circumstantial evidence test, which in my view should be a one-step test.

111In any event, in my view of the evidence, the respondent’s explanation for its decision to deny promotion of the applicant to the rank of associate professor is quite clear on the evidence and fairly easily stated.

112The promotions policy required that the applicant demonstrate “high quality” research and scholarship. The respondent did not believe that the applicant met this standard on the basis of his lack of productivity as assessed by articles published in peer-reviewed journals during his tenure at the respondent University and by his lack of peer-reviewed funding as primary investigator from non-industry sources.

113The promotions policy also required that the applicant demonstrate that he was a “very good” teacher. Here, there is a bit more nuance. The Promotion Committee determined that the applicant had not met this criterion on the basis that the committee did not regard his student reference letters as being strong overall. In contrast, Dr. Jeffrey felt that the student reference letters were very strong, but expressed concern about the applicant’s teaching evaluations and lack of teaching awards. This was expanded upon by Dr. Hitchcock, who also noted the spread in the applicant’s evaluations and his failure to meet other indicia of very good teaching as described in the policy.

114In my view, these explanations are both rational and non-discriminatory.

c) Is racial discrimination more probable than the respondent’s explanation?

115The third and final step of the circumstantial evidence test is to determine whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent, with the onus remaining on the applicant to establish discrimination.

116I will review the various arguments raised by the applicant in support of the allegation that his race was a factor in the promotion process and make my findings based on my consideration of the totality of the evidence.

The reference letter from Dr. G. Adams

117The applicant takes issue with the reference letter provided by Dr. G. Adams on the basis that this letter was provided in violation of the respondent University’s promotions policy. Under the policy, referees are required to be at or above the rank for which the candidate is applying. As the applicant was applying for promotion to the rank of associate professor, his referees should have been at that rank or above. Dr. G. Adams was an assistant professor, which is the same rank as the applicant held and one rank below associate professor. While Dr. Hudson expressed the view that the Promotion Committee was entitled to consider Dr. G. Adams as a referee because the applicant had agreed to his inclusion, it was not seriously challenged by the respondent that consideration of Dr. G. Adams’ letter of reference was in violation of the policy.

118It is not the jurisdiction of this Tribunal to enforce the respondent University’s promotions policy. However, the applicant relies upon the Commission’s Policy and Guidelines on Racism and Racial Discrimination (the “OHRC Racism Policy”) to submit that the uneven or inconsistent application of a formal policy may create barriers for members of racialized groups and may create opportunities for conscious or unconscious racial biases to come into play.

119I wholeheartedly agree with and adopt this statement from the OHRC Racism Policy. However, this statement is careful to say that the uneven or inconsistent application of a formal policy “may” result in racial discrimination. As a result, the mere fact that the respondent University violated the terms of its promotions policy by requesting and considering the reference letter from Dr. G. Adams is not in and of itself a sufficient basis upon which to find racial discrimination against the applicant. Rather, there must be some evidence to establish that the applicant’s race was a factor in the policy violation, for example by evidence showing differential treatment because of race in relation to this policy violation or some other basis in the evidence upon which to link or connect the policy violation to the applicant’s race.

120In my view, there are three potential ways that the applicant’s race may have been a factor in relation to the reference letter from Dr. G. Adams: (i) race may have been a factor in the decision to request the reference letter; (ii) race may have been a factor in relation to the content of the letter itself; or (iii) race may have been a factor in the Promotion Committee’s consideration of the letter. I will examine each possibility in turn.

121The decision to request the reference letter from Dr. G. Adams was made by Dr. Hudson as Chair of the Promotion Committee. As indicated above, his evidence is that this request was made on the basis of a standard practice in the Department of Medicine for candidates for promotion to the rank of associate professor to include the Chair of their department as one of their referees. The documentary evidence regarding the promotion dossiers of other candidates supports that one of the identified referees customarily is the Chair of the candidate’s department. In my view, the applicant’s race was not a factor in the decision to request that Dr. G. Adams be included as an additional referee.

122There was evidence before me that, some four years previously, there had been a disagreement between the applicant and Dr. Hudson as Chair of the Kingston General Hospital / Hotel Dieu Hospital Pharmaceuticals and Therapeutics Committee (the “P&T Committee”) regarding the inclusion of a particular medication in the hospital’s formulary. The applicant’s evidence is that following this disagreement, there was a chill in his relationship with Dr. Hudson. This is disputed by Dr. Hudson. In my view, the evidence does not support that this disagreement and any residual impact played any role in Dr. Hudson’s decision to request a reference from Dr. G. Adams as Chair of the Division of Cardiology. Moreover, even if this personal disagreement did play a role in Dr. Hudson’s decision to request a reference from Dr. G. Adams, it does not suggest that race was a factor in Dr. Hudson’s decision to seek the reference.

123With regard to the content of the reference letter itself, it also is my view that race was not a factor. The views expressed by Dr. G. Adams regarding the applicant’s lack of research productivity in terms of peer-reviewed articles and lack of peer-reviewed research grants are evident from the applicant’s own promotion dossier and are consistent with the views expressed at every level of review during the promotions process. In particular, I note the minutes of the meeting of the Promotion Committee on October 24, 2006, prior to the letter from Dr. G. Adams being prepared and received, echo the concern about the applicant’s lack of productivity in terms of peer-reviewed publications during his tenure at the respondent University.

124During cross-examination, Dr. G. Adams acknowledged that he is not an expert in echocardiography and does not have comprehensive knowledge of the leading journals in this field. However, Dr. G. Adams did not take issue in his letter either with the quality of the work published by the applicant or with the nature of the journals in which he had published. Rather, the issue raised by Dr. G. Adams was the lack of quantity of peer-reviewed publications during the applicant’s time at the respondent University.

125It also was put to Dr. G. Adams that in his letter, he had commented upon the applicant’s teaching when this had not been requested. However, in the standard cover letter sent to the applicant’s referees, request was made for an assessment of the applicant’s accomplishments not only in terms of his research / scholarship but also in relation to his contributions to the profession. I read the last paragraph of Dr. G. Adams’ letter as addressing this latter component, as his comments relate to the other duties assigned to the applicant since his appointment, including not only teaching but clinical care. The global comment is that while these other duties had been performed as assigned, the applicant had not distinguished himself in these areas to the extent that the Promotion Committee should consider his performance exceptional.

126It is noted that a candidate who is applying for promotion to associate professor does not have to establish that she or he is an “exceptional” teacher but only that she or he is a “very good” teacher. That is true. However, as will be discussed in greater detail below, the evidence before me indicates that some candidates who have been appointed as clinician-educators and whose primary plank or basis for seeking promotion has been their teaching have had deficiencies in their research productivity outweighed by their exceptional teaching, clinical and administrative service. Viewed in this light, in my view, it was not inappropriate for Dr. G. Adams to comment on the applicant’s contributions in these other areas and whether they could be regarded as exceptional.

127The applicant raised the fact that Dr. G. Adams did not reference in his letter the applicant’s contribution two years previously to the development of goals and objectives for the echocardiography rotation in the cardiology training program or to his re-design of the echocardiography training program and efforts in teaching trainees. That is also true. However, Dr. G. Adams also did not reference in his letter a more recent experience with the applicant’s teaching from January 2006 in relation to a clinical skills session where the student evaluations of the applicant were described as “scathing”.

128There is no doubt that Dr. G. Adams made a mistake in saying that the applicant had received 40 to 50% protected research time for the entire period since his initial appointment in 2001. In fact, for the first two years, the applicant was allocated only 20% protected research time. Dr. G. Adams acknowledged in cross-examination that he would have been able to confirm this by reviewing the applicant’s employment file, and that he did not do so. However, in my view, that error alone is not a sufficient basis upon which to infer that the applicant’s race was a factor influencing the content of Dr. G. Adams’ letter.

129I accept that there may be instances where the conscious or unconscious racial bias of a referee influences her or his assessment of a racialized candidate such that the candidate’s race may become a factor in the promotions process. However, in this case, I do not find the evidence sufficient to support such an inference in relation to Dr. G. Adams’ letter. There was no surrounding or contextual evidence that would support or indicate that Dr. G. Adams was racially biased against the applicant. The views expressed by Dr. G. Adams in his letter, while blunt and to the point, are consistent with the objective evidence from the applicant’s promotion dossier and with the views of the applicant’s research productivity held by all levels of review in the promotion process. While expressing his views bluntly, Dr. G. Adams did not in his letter go out of his way to unfairly or inappropriately portray the applicant, his research or his teaching or clinical activities in an unfairly negative light. He simply stated his assessment as had been requested of him. While he did make an error in relation to the applicant’s protected research time, this alone in my view does not provide a sufficient basis to infer that racial bias was at play in terms of the content of this letter.

130Finally, with regard to the question of whether the applicant’s race was a factor in the Promotion Committee’s consideration of Dr. G. Adams’ letter, once again I do not see that such an inference is supported by the evidence. As already noted, the matter of the applicant’s lack of research productivity in terms of peer-reviewed publications already had been a matter of discussion by the Promotion Committee. Indeed, the minutes of the Promotion Committee’s meeting prior to receipt of Dr. G. Adams’ letter describes the applicant’s research productivity as being “marginal” in terms of peer-reviewed publications, which in my view is a stronger statement than the more couched language used by Dr. G. Adams in his letter.

131While Dr. G. Adams admittedly made an error in relation to the applicant’s protected research time, the matter of the applicant’s protected research time was raised by him in his submission to the Promotion Committee of November 9, 2006, and was considered and addressed by the committee in its ultimate decision. This issue also was squarely confronted in the review conducted by Dr. Hitchcock. As a result, in my view, the misstatement by Dr. G. Adams about the applicant’s protected research time did not materially influence the ultimate decision made either by the committee or at the other levels of review to deny promotion.

132However, even to the extent that there was some influence at the stage of the initial decision to deny promotion made at the October 30, 2006 meeting of the Promotion Committee, as evidenced by the reference in the minutes to the applicant having had 40 to 50% protected time for a five year period, that in my view is not a sufficient basis to support an inference that the applicant’s race was a factor in any reliance placed on the misstatement in Dr. G. Adams’ letter. Having found that the applicant’s race was not a factor in terms of the letter itself, it is difficult for me to understand how any initial reliance upon this error in the letter could form a basis for a conclusion that the applicant’s race was a factor in the committee’s consideration of this letter. I find that such an inference is not supported by the evidence.

The applicant’s protected research time

133Much time was spent at the hearing on the matter of the applicant’s protected research time. The applicant’s evidence is that in the first two years of his appointment, he had between 15 and 20% protected time and in the later years, although he was allocated 50% protected time, he actually had between 30 and 40% protected time. The respondent’s evidence is that the applicant actually had between 40 and 50% protected time during these years. Various charts and calculations were presented in evidence before me, none of which I find particularly persuasive or relevant on this point.

134The issue before me is not to make a determination as to precisely how much protected time the applicant did or did not have. The issue before me is not even whether an erroneous assumption about the amount of the applicant’s protected time was a factor in the decision to deny him promotion to the rank of associate professor. In the context of this specific issue, the issue is whether the applicant’s race was a factor in relation to any consideration of the applicant’s protected research time that played a material role in the denial of promotion. In my view, the evidence before me is simply insufficient to support such a finding.

135As discussed above, an error was made in Dr. G. Adams’ reference letter regarding the amount of protected research time that the applicant had over the entirety of his tenure at the respondent University. I already have found that the applicant’s race was not a factor in relation to the error made in this letter. As also discussed above, the evidence from the minutes of the Promotion Committee meeting on October 30, 2006 indicate that this error was a factor in the initial decision by the committee to deny promotion. I already have found that the applicant’s race was not a factor in relation to the committee’s consideration of the applicant’s protected time.

136Thereafter, the applicant in his letter dated November 9, 2006 squarely set out his position regarding the amount of protected time that he had actually received, and this letter was received and considered by the Promotion Committee at its meeting on November 16, 2006. The minutes of this meeting record that the matter of the applicant’s protected time expressly was discussed by the committee members. In this discussion, all committee members agreed that the percentage of protected research time an individual receives does not result in a modification of the “high quality” descriptors identified in the research / scholarship category of the promotions policy.

137The issue of the applicant’s protected time was again re-visited by Dr. Hitchcock as part of her review. Given the conflicting information in the promotion file, she expressly directed that the Division of Cardiology be contacted for further information regarding the amount of the applicant’s protected time. In her letter dated March 19, 2007, Dr. Hitchcock expressly addressed this issue first by acknowledging that she accepted the applicant’s contention that while he was allocated 20% protected time in his first appointment, conditions in his department did not allow this to occur. She also stated that she understands that in subsequent years, the time available to the applicant for research and scholarly work had increased, without placing a specific percentage on the amount of this increase. However, Dr. Hitchcock focused on an assessment of the applicant’s actual record of research and scholarship in terms of work that had been completed and published, and found that it did not meet the “high quality” standard under the policy.

138The applicant has not brought evidence to my attention that he was treated differently because of his race than other candidates for promotion to associate professor in relation to the consideration given to protected time. There is nothing in the promotions policy to indicate that the amount of protected research time afforded to a candidate is to be considered as a factor in relieving her or him from the requirement to establish research and scholarship of “high quality”.

139As part of this proceeding, I ordered the respondent University to disclose the promotion files for all candidates who applied to become an associate professor in the School of Medicine for the five year period from 2004 to 2008. In all, some 37 promotion dossiers were produced in response to this order. I appreciate that these candidates practised in different areas of medicine from the applicant. However, the policy requirements that applied to the applicant applied equally to these other candidates. As a result, if the amount of protected research time afforded to a candidate was considered as a factor in assessing whether she or he had met the “high quality” standard for research and scholarship, one might have expected to find evidence of this. However, except to a very limited extent, that is not the case.

140From my review of the evidence from these promotion files, it appears that where a candidate has been appointed as a clinician-educator, has sought promotion to associate professor primarily on the basis of teaching and has demonstrated exceptional teaching, the requirement to demonstrate “high quality” research and scholarship has in some cases been relaxed somewhat. In these instances, the promotion files indicate that some consideration has at times been given to the distribution of the candidate’s various duties and responsibilities and reference has been made to the relatively small percentage of the candidate’s time that has been allocated to research and scholarly work.

141That, however, is not the applicant’s situation. He was appointed as a clinician-scholar and not as a clinician-educator. The primary plank or basis of his promotion application was research and scholarship, not teaching. As will be discussed in greater detail below, his promotion file does not indicate the kind of exceptional record of teaching that has been demonstrated by the aforementioned candidates.

142In my view, consideration of the totality of the evidence does not support that the applicant was treated differently in relation to the consideration of his protected time than other similar candidates nor is there any other basis that I can find in the evidence to support that his race was a factor in relation to the consideration given to his protected time in the promotion process.

The assessment of the applicant’s research productivity

143As stated above, one of the primary bases upon which the applicant was found not to have met the standard for “high quality” research and scholarship was due to his lack of peer-reviewed published articles during his tenure at the respondent University. The applicant’s promotion file indicates that during the five years of his tenure, he had published only one such article.

144A number of issues are raised by the applicant in relation to this. First, questions were raised as to why the applicant’s publication record prior to coming to the respondent University was not considered, and it was noted that the promotions policy does not expressly prohibit consideration of articles from the time period prior to coming to the respondent University. I accept the respondent’s evidence that the focus in the promotion process is on the candidate’s research and scholarly activity while at the University, and not from prior periods. The applicant has not drawn to my attention any evidence to contradict this, whether from the disclosed promotion files or otherwise.

145Second, an issue is raised regarding the lack of weight placed on the abstracts and letters published by the applicant during his time at the respondent University. As explained by Dr. Hitchcock, there is a significant distinction between an abstract, which is merely a summary statement of research results, and a manuscript, which fully describes and sets out the research methodology and results and which is peer-reviewed prior to acceptance for publication. It is the completed and published manuscript which represents the ultimate stage of a research study and the culmination of a candidate’s work. As noted by Dr. Hitchcock in her evidence, the publication of an abstract is an indication that the preliminary research work of data collection and analysis has been done. However, what remains in order to fully bring research results to prominence within the academic community is the laborious work of preparing the full manuscript, having it peer-reviewed and then having it published. A letter, while it may in some respect reflect an individual’s own research work, is largely a critical response to someone else’s published manuscript. Copies of the applicant’s abstracts, letters and published manuscripts are in evidence before me. The difference between an abstract or a letter and a full manuscript is apparent to me from this evidence, as is the reason why much greater weight is placed on published manuscripts.

146Third, reference was made to the applicant’s unpublished manuscripts and the question raised as to why these were not considered. The answer, quite simply, is because the peer review process for these manuscripts had not yet been completed and they had not yet been accepted for publication. In this regard, I note that the applicant’s own promotion dossier reveals evidence of manuscripts that he had prepared that had not been accepted for publication. In response to the question as to why an unpublished manuscript could not have been sent to the applicant’s external referees for assessment, Dr. Hitchcock’s evidence quite clearly is that this had never been done at the respondent University. There is no evidence to contradict this.

147Finally, the applicant takes the position that there was a failure to give adequate consideration to his research collaboration with Dr. Melo. Once again, I do not see this. The nature of the applicant’s research collaboration with Dr. Melo and the applicant’s role in this collaboration were clearly set out in his promotion dossier. Dr. Melo, while not eligible under the policy to be a referee, did nonetheless provide a letter in support of the applicant’s promotion. The problem is that this collaboration did not provide evidence of the applicant’s research and scholarly abilities as a principal investigator. This was the area of focus in the promotion process. It is true that Dr. Melo had been very successful in securing external peer-reviewed funding for his research as principal investigator and had identified the applicant as a co-investigator on one such successful grant application for a significant amount, some $850,000. But that did not serve to demonstrate the applicant’s own ability to gain external peer-reviewed funding as principal investigator. Nor had Dr. Melo’s research yet resulted in the publication of any peer-reviewed articles, let alone articles where the applicant was identified as lead author. As noted by Dr. Hitchcock, this research collaboration may have been on the verge of bearing fruit; however, the promotion process was focused on the applicant’s own research and scholarly record at the time of the promotion application, not the hope or promise of a better record at some point in the future.

148In cross-examination, reference was made to the promotion file of another candidate (Ex. 6, Tab 137) where the candidate’s research and scholarly work largely had been conducted in collaboration with another researcher and where the Promotion Committee had requested a letter from the candidate’s collaborator in order to better understand his role in the research collaboration. The question was raised as to why such a letter was not requested from Dr. Melo. However, in the case of the other candidate, no letter from his research collaborator had initially been provided as part of his promotion application. In contrast, Dr. Melo already had provided a letter regarding the nature of the applicant’s role in their research collaboration which formed part of the applicant’s promotion file and this letter was already before the Promotion Committee at the time it made its decision and formed part of the file for all subsequent levels of review. In my view, any failure to request yet another letter from Dr. Melo does not provide evidence of differential treatment because of the applicant’s race.

149For these reasons, I do not find that the applicant’s race was a factor in relation to the assessment of his research and scholarly work.

Consideration of the applicant’s referees

150The applicant submits that the respondent University failed to give due consideration to the letters provided by his referees in support of his promotion. I find that the evidence does not support the applicant’s allegation.

151The reference letters for the applicant were distributed to the members of the Promotion Committee for the purpose of their initial decision to deny promotion and their subsequent confirmation of this decision, and also formed part of the applicant’s promotion file that was reviewed at each of the next three levels. There is no evidence that there was any failure to consider these letters.

152There is, however, evidence before me that these letters were not viewed to be as positive as the applicant thought they were or were not accorded weight because their support for the applicant’s promotion was based upon matters not considered to be relevant.

153For example, Dr. Lonn wrote to express her view that the applicant was “well deserving of promotion”. However, she expressly based this statement primarily on the applicant’s very high level of skill in echocardiography and his work in the echocardiography laboratory at the respondent University. The respondent’s evidence is that a candidate’s clinical skill is not relevant to the assessment whether his research and scholarly work is of “high quality”. Dr. Lonn also stated that the applicant’s research achievements were “not overwhelming” although she regarded them as “important”, and acknowledged that the applicant “does not have a very extensive publication record primarily with regards to papers” although she did make reference to his publication of abstracts. She also noted that the applicant’s “research funding is not overwhelming”. The respondent’s evidence is that this was not regarded as a strong reference letter. I agree.

154Dr. Mensah wrote a letter stating that he “strongly recommend[ed]” the applicant for promotion and that the applicant was “deserving” of promotion. Dr. Hitchcock’s evidence is that while the letter was positive, it did not seem to hold up when she “drilled down”, primarily on the basis of Dr. Mensah’s failure to distinguish between work published at the respondent University and work published before then and his failure to distinguish between published manuscripts and abstracts or letters. At the same time, Dr. Mensah did state that several of the applicant’s research activities suggest significant originality and innovation; that the applicant’s output in terms of publications appeared appropriate for his level of academic development; and that the amount of research funding he had received as principal investigator, while relatively small, was not unusual for practising clinicians at his level.

155Dr. Stoddard wrote a letter expressing his “strongest support” for the applicant’s promotion. However, he also failed to distinguish between pre- and post-appointment publications or between published manuscripts and abstracts or letters. He did, however, express his view with regard to the one article published by the applicant during his time at the respondent University, stating that this study had been well-received and was rigorously performed.

156Dr. Mody wrote a letter expressing her full and enthusiastic support for the applicant’s promotion. Dr. Mody also did not distinguish between pre- and post-appointment publications, although she did distinguish between abstracts and literature review articles as opposed to publications driven by the applicant’s original research. Dr. Mody’s recommendation, however, was qualified by her uncertainty as to whether the applicant was being promoted to associate professor in a clinical series or in a tenure track, as those different categories were understood at U.C.L.A. She described the clinical, non-tenure series as being where faculty predominantly focus on teaching and clinical work, as opposed to tenure track which requires publication of investigations and demonstration of independence. Dr. Hitchcock’s evidence is that there are not two separate promotion tracks at the respondent University and that the criteria for promotion for clinical faculty to associate professor are more like the criteria described by Dr. Mody for “tenure track” at U.C.L.A. I accept this evidence, as it is clear to me from the promotions policy and the evidence I have heard that the assessment of a candidate’s research and scholarly work at the respondent University does include assessment of the publication of investigations and demonstration of independence referenced by Dr. Mody in her letter.

157While unreservedly supporting the applicant’s promotion if it was in a clinical series, Dr. Mody was much more guarded in relation to the criteria applicable to the tenure series at U.C.L.A. In this regard, she indicated that the applicant’s productivity “would be considered modest but would still merit review for promotion in this series based on other contributions and value to the department”. She goes on to say that the applicant is “without doubt an independent investigator based on his publication quality and funding and therefore would be considered for promotion and likely to achieve it”. Dr. Hitchcock’s evidence is that, given Dr. Mody’s very careful choice of words, she did not read this letter as supporting the applicant’s promotion. I agree.

158In addition to these four external referees, the applicant also had two internal referees, not counting Dr. G. Adams. While a letter also was supplied in support of the applicant’s promotion by Dr. Melo, he was not eligible as a referee because he was not “arm’s length” within the meaning of the promotion policy due to his research collaboration with the applicant.

159Dr. M. Adams wrote a letter recommending that the applicant be promoted to associate professor as “he appears to have fulfilled the stipulated criteria for this promotion”. However, Dr. M. Adams expressly based his recommendation on the applicant’s submitted papers, as opposed to his published papers. For this and other reasons, Dr. Hitchcock’s evidence is that this was a lukewarm recommendation at best. I agree.

160Dr. Baird wrote a letter in which he did not actually make a recommendation in support of the applicant’s promotion. Rather, he expressed his view that the applicant qualified in five of the twelve (there actually are eleven) examples listed in the promotions policy as indicia of “high quality” research and scholarship.

161In total, the applicant’s external and internal referees, discounting Dr. G. Adams, do not provide strong support for the applicant’s promotion to associate professor. I do not find that the evidence supports the applicant’s position that the respondent University failed to give due consideration to these reference letters. These letters do not address the respondent’s concern about the applicant’s lack of research productivity in terms of peer-reviewed published manuscripts during his time at the respondent University. Nor do they address the respondent’s concern about the applicant’s lack of external peer-reviewed funding as principal investigator. In my view, these are legitimate concerns regarding the applicant’s research and scholarly work which are not dispelled by the reference letters. Moreover, I find that there is no sufficient basis in the evidence to support that the applicant’s race was a factor in the consideration given to his reference letters.

The use of the term “friend” by Dr. Stoddard

162In the reference letter in support of the applicant’s promotion provided by Dr. Stoddard, Dr. Stoddard states that “over the last 10 years, it has been my pleasure to know [the applicant] as an academician, researcher, clinician, teacher, colleague and friend”. In the minutes of the meeting of the Promotion Committee on October 30, 2006, it was noted that one external referee had used the word “friend” in his description of the applicant, whereas it had been clearly communicated to the applicant that all external referees must be at arm’s length.

163An issue is raised by the applicant that, upon review of other promotion files disclosed by the respondent University, referees for other candidates for promotion had used the word “friend” to describe their relationship to the candidate but had not had their reference letters discounted as not being arm’s length. Three specific examples were cited where a referee’s description of a candidate as a “friend” had gone unremarked. I note that in two of these examples, after referencing the candidate as a “friend”, the referee had gone on explicitly to state that they nonetheless felt able to provide an objective and neutral evaluation. In the third instance, however, and as with Dr. Stoddard, no such qualifying statement was made.

164I also note that the three instances cited by the applicant relate to candidates whose applications for promotion were considered by promotion committees in different departments, so this was not an instance where the evidence indicates that the same promotion committee treated the applicant one way in relation to this issue while treating another candidate in a different way.

165That said, there is no doubt from the evidence that there appears to have been a differential application of what it means for a reference to be “arm’s length”, with the Promotion Committee in the instant case considering a referee’s use of the term “friend” to mean that the reference was not arm’s length while other promotion committees have not reached the same conclusion.

166The issue arises, however, whether the evidence indicates that this difference in applying the arm’s length requirement for referees was related in some way to the applicant’s race. I do not see how such an inference is supported by the evidence.

167Nor do I find that the Promotion Committee’s note about Dr. Stoddard’s reference was a material factor in the denial of promotion to the applicant. As has been discussed at length above, the reasons for the denial of promotion were the applicant’s lack of peer-reviewed publications, his lack of peer-reviewed funding as principal investigator and the assessment that his teaching did not rise to the “very good” standard. As reviewed above, Dr. Stoddard’s letter, while generally supportive of the applicant’s promotion, did not alleviate these concerns. Further, at subsequent levels of review, no issue was taken by Dr. Jeffrey or Dr. Hitchcock as to Dr. Stoddard’s letter not being arm’s length.

168Accordingly, in my view, the evidence does not support that the Promotion Committee’s note about Dr. Stoddard’s letter not being arm’s length was related to the applicant’s race, nor do I find that this note was a material factor in the decision to deny the application for promotion.

The applicant’s prior performance assessments

169The applicant points to his prior performance appraisals from 2002, 2003 and 2004 where he was given an “A” for his research and scholarship as an indication that he was “on track” for promotion to associate professor. However, in my view, these performance assessments merely reflect Dr. McCans’ assessment of the applicant’s progress in research and scholarship during the specific years indicated, and cannot reasonably be taken as any indication that the applicant met the “high quality” standard for research and scholarship required for promotion to associate professor.

170For example, in the 2002 assessment, the applicant was given an “A” appraisal on the basis that “collaborative links have been established” and that “grants [had been] prepared for peer-review”. This, in my view, is an indication that in the first year of his appointment, the applicant was making progress in the development of his research program.

171In the 2003 assessment, the applicant was given an “A” appraisal on the basis of his “publication of several abstracts” and that publications had been submitted. In Dr. McCans’ overall appraisal, it is stated that the applicant “continues to work diligently in the development of his research program with indications of initial success”. Once again, clearly, this is an assessment of the applicant’s progress in the development of his research program during that year.

172In the 2004 assessment, the applicant again was awarded an “A” on the basis of the “submission of several papers” and the presentation of one abstract. The overall appraisal again was that the applicant “continues to work diligently at developing his research program” with “signs of initial success in the form of presentation and manuscript submission”. Again, this clearly is an assessment of the progress being made by the applicant in that particular year. However, in the “recommended action” section, Dr. McCans states that “the focus must be on successful publication of [the applicant’s] research in peer-reviewed journals”. It is this very lack of finish by the applicant from his research programs to published manuscripts which was one of the primary reasons for the denial of his promotion application.

173It is unfortunate that there was no performance assessment for the 2005 year. The evidence indicates that due to departmental re-organization and work commitments, no assessments were prepared for anyone that year.

174However, the message to the applicant that he needed to publish manuscripts emanating from his research was delivered to him, not only on the face of the 2004 performance assessment, but through other means as well. As discussed above, in his letter of re-appointment dated December 12, 2003, it was emphasized to the applicant that it was important for him to focus on his scholarly activity in order to prepare for promotion, particularly in the context of his restricted licensure. In this regard, it was expressly stated to the applicant that wherever possible, he should strive to publish promptly significant findings that he and his colleagues discovered and whenever possible in the leading journals in his field.

175Then on February 18, 2005, at his meeting with Dr. McCans, Dr. Abdollah and Dr. Hudson to specifically address the requirements for promotion and after reviewing the status of the applicant’s research program, it was emphasized to the applicant that he needed to both publish the work that he had completed to date and to pursue opportunities for funding from peer-reviewed agencies. The applicant’s evidence is that this was presented to him as a “kind of general advice” and that he did not see this as an indication that he was not on track for promotion. In his evidence, Dr. McCans allowed that he may have put too much “sugar in the pill”. Whether or not that is the case and however the applicant may have heard what he was being told at this meeting, the fact remains that no statement was made to the applicant that his publication record and peer-reviewed funding to that point were sufficient to merit promotion nor did the applicant ask this question. Indeed, at this meeting, in his 2004 performance assessment and in his re-appointment letter, it was being emphasized again and again to the applicant that he needed to publish.

176Finally, in the meeting on May 10, 2006, with Dr. McCans and Dr. Adams, shortly before the applicant’s application for promotion the following September, Dr. McCans emphasized again to the applicant the need for peer-reviewed publications and peer-reviewed funding in order to ensure a successful promotion. In his evidence, the applicant acknowledges that these things were emphasized, but again states that this was presented to him as “general advice”. Having had the message delivered to him on at least four occasions, it is hard for me to accept that it was reasonable for the applicant to view this as “general advice”. The applicant was being told what was required for a successful promotion, and he was told that he required peer-reviewed publications and peer-reviewed funding. It was the applicant’s deficiencies in these areas which were the very reasons that he was determined in the promotion application process not to meet the “high quality” standard for research and scholarship. At a certain point, having had these issues raised repeatedly, it appears that the applicant simply was not listening or paying sufficient attention to what he was being told.

177In his evidence, Dr. McCans states that, where he believes that a promotion application will not be successful, it is his practice to have a frank meeting with the candidate to advise them of this assessment and to encourage them to wait to apply at a later time when they have bolstered their academic profile. He acknowledges that he was not this blunt and forthright with the applicant, which he states was due to the applicant’s restricted licensure and his need to obtain promotion within a limited timeframe. Given the pending expiry of his restricted licensure in May 2008 unless he was promoted to associate professor, the applicant needed to apply for promotion when he did. If he waited until the following year in order to increase his publication record and obtain peer-reviewed funding as a principal investigator, any appointment to the rank of associate professor would not have been effective until July 2008, which was beyond the period of the extension. Given these time restrictions, I accept Dr. McCans’ explanation for why he was not as blunt and forthright with the applicant as he might have been with another candidate in different circumstances. But there is no indication in the evidence that the failure of Dr. McCans to be blunt and forthright with the applicant in this manner was related to the applicant’s race. Further, at the same time, the applicant acknowledged on cross-examination that he did not explicitly ask Dr. McCans or anyone else whether his current academic profile was sufficient to warrant promotion.

178Accordingly, I do not find that the applicant’s prior performance assessments in the area of research and scholarship are inconsistent with the reason for the denial of his promotion, and in fact I find that on at least four occasions prior to his application for promotion the applicant was informed of his need to increase his publication record in peer-reviewed journals and on at least two occasions of his need to obtain peer-reviewed funding for his research.

The applicant’s teaching record

179At all levels of review of his application for promotion, the applicant’s teaching record was regarded as not meeting the “very good” standard. However, the reasons for this conclusion differed somewhat between the discussion by the Promotion Committee and the subsequent reviews by Dr. Jeffrey and Dr. Hitchcock. The issue for me is whether there is any sufficient basis in the evidence to conclude that the applicant’s race was a factor in the assessment of his teaching record.

180At the level of the Promotion Committee, it was concluded at the October 30, 2006 meeting that the applicant did not meet the criteria in the “very good” or “exceptional” teaching categories. The only specific reason recorded in the minutes of this meeting is that “reference letters received from both undergraduate and postgraduate students were not considered to be strong overall”.

181After receiving the further submission from the applicant dated November 9, 2006, the Promotion Committee’s reasons for not regarding the applicant as meeting the “very good” standard for teaching were expanded upon somewhat. The minutes of the November 16, 2006 meeting record the committee’s assessment that overall the applicant’s teaching evaluations and his student reference letters were not considered to be representative of a “very good” teacher rating, within the meaning of the policy. As can be seen from these minutes, this assessment makes reference not only to the student reference letters, but also to the applicant’s teaching evaluations (which also played a large role in the assessments made by Dr. Jeffrey and Dr. Hitchcock). In addition, the committee noted that one former student had declined to provide a reference and another had not responded to repeated requests.

182In contrast, Dr. Jeffrey’s assessment was that the letters on behalf of the applicant’s former students were “very strong”. However, Dr. Jeffrey noted that some of the objective evaluations of the applicant’s teaching were not consistently above the 80th percentile and that he had not received or been nominated for any teaching awards.

183The contrast between Dr. Jeffrey’s assessment of the student reference letters and the Promotion Committee’s assessment was put to Dr. Hudson in cross-examination. Basically, Dr. Hudson testified that Dr. Jeffrey was entitled to his opinion, but Dr. Hudson continued to support the Promotion Committee’s assessment that these letters were not strong overall. Having reviewed these letters myself in some detail, I think it fairly can be said that most of the student references are very positive about the applicant’s teaching and supportive of his application for promotion. However, there is a certain amount of inconsistency. One letter was critical of the applicant’s approach to patient rounds, which the student felt would be better if they were more efficient as they tended to be lengthy. Another student was similarly critical of the applicant and his need to be more concise on ward rounds. A third student, while positive overall, noted that the applicant’s teaching method was “a little too comprehensive for my level of training” (while noting that overall his teaching efforts were well-intentioned and much appreciated) and recounted a “somewhat frustrating experience” with the applicant (while acknowledging that this experience forced him to challenge himself).

184As a result of this inconsistency in the student references, it is my view that reasonable people could come to differing conclusions about these letters. If, as Dr. Jeffrey appears to have done, one wished to accentuate the positive, then one reasonably could come to the conclusion that these letters were “very strong”. Some of them indeed were. However, if one focused on the inconsistencies and negative aspects, as the Promotion Committee appears to have done, one reasonably could reach the conclusion that these letters were “not strong overall”. Most importantly, the evidence does not suggest that the applicant’s race played a role in these differing assessments of the strength of his student reference letters.

185In addition, I find that there were other indicators that supported the conclusion that the applicant did not meet the standard for “very good” teaching as set out in the promotions policy. As indicated above, the Promotion Committee also had regard to the applicant’s teaching evaluations in coming to the conclusion that he did not meet the “very good” standard, as did Dr. Jeffrey and Dr. Hitchcock. As stated above, Dr. Jeffrey noted that the applicant’s evaluations were not consistently above the 80th percentile. Dr. Hitchcock noted that while the applicant’s teaching evaluations showed a proportion of responses at the very good to excellent level, there also were a non-trivial number of responses at the neutral level and some few at the lower level. She indicated that this “degree of spread” was higher than that usually found in promotion files.

186The applicant’s promotion dossier includes a number of student and resident evaluations. The applicant’s tutor evaluations for Phase 2E of the Clinical Skills Program for 2002 show that he was rated as slightly above the other tutors, for 2003 as below the other tutors, and for 2004 as above the other tutors. The applicant’s student evaluation for his 2006 course on the cardiovascular system showed slightly more than 31% of the class rating him as “very good” or “excellent”, while 35% rated him as satisfactory and 33% rated him as needing some or major improvement. The applicant’s 2003 resident evaluation of faculty showed the highest number of responses in the neutral category. In my view, these evaluations from the applicant’s own promotion dossier support the conclusion reached at all levels of review that the applicant’s student evaluations did not place him in the “very good” category for teaching.

187The respondent University’s promotions policy also includes a number of other indicia of “very good” teaching which the applicant failed to satisfy. As noted by both Dr. Jeffrey and Dr. Hitchcock, the applicant had not received or even been nominated for any teaching awards. I also agree with Dr. Hitchcock’s assessment that the applicant’s promotion file shows little evidence of him playing a leadership role in education at the respondent University or more generally, and little evidence of local, regional or national invited lectures.

188As a result, I find that the evidence supports the respondents’ assessment that the applicant did not meet the standard of being a “very good” teacher within the meaning of the promotions policy, and I further find that the evidence does not support that the applicant’s race was a factor in the assessment of his teaching in the promotions process.

Evidence re other candidates for promotion to associate professor

189In response to a request for production filed by the applicant, I ordered the respondent University to produce the promotion dossiers for all faculty members within the School of Medicine who applied for a promotion from Assistant Professor to Associate Professor during the period from 2004 to 2008 (see 2010 HRTO 2248). This resulted in the production of some 37 promotion dossiers, which comprised about six-and-a-half bound volumes of material.

190In a subsequent Interim Decision (2011 HRTO 22), I indicated that I had reviewed the promotion dossiers for candidates within the Department of Medicine and had identified one successful candidate for promotion who had a “less than robust” research profile. I directed the respondent University to provide an explanation for this candidate’s successful promotion and also directed the respondent to provide similar explanations for other candidates with “relatively less robust research and publications”.

191The respondent complied with this direction, and filed supplementary witness statements reviewing the successful promotion applications of 10 candidates within the School of Medicine during the 2004 to 2008 time period. I have reviewed this material very carefully.

192The promotions policy states that for promotion to the rank of associate professor, the candidate should be a “very good teacher” carrying a reasonable teaching load, that their research and scholarly work should show “high quality” as judged by experts in the candidate’s field of specialization, and that their contributions to the operations of their department, the University and the profession will be taken into account.

193On the basis of a simple reading of the policy, it would appear that a candidate for promotion to associate professor must demonstrate both “very good” teaching and “high quality” research and scholarship. However, based upon my review of the promotion dossiers and the evidence before me, it appears that a candidate who would not normally be considered to have demonstrated “high quality” research and scholarship may nonetheless be promoted on the basis of an exceptional record of teaching and administrative service. This is the category into which the 10 case examples reviewed by the respondent’s supplemental evidence fall.

194As a group, these candidates generally had been appointed as clinician-educators as opposed to clinician-scholars, which was the nature of the applicant’s appointment. In the role of clinician-educator, the expectation is that the focus of the appointee’s work will be on clinical service and teaching, rather than on research. For most of this group, the candidates had 10% or less of their time protected for research and scholarly work.

195In terms of this group of candidates’ teaching records, virtually all of these 10 candidates had received and/or been nominated for teaching awards. In contrast, as noted above, the applicant had not received or been nominated for any teaching awards. Their teaching evaluations were described as being consistently very good to excellent or positive. In contrast, as noted above, the applicant’s teaching evaluations were more mixed. Many of these candidates had made significant contributions to curriculum or program development. Some had been recognized nationally or internationally for their teaching. In contrast, the applicant simply does not have a teaching profile that matches these candidates’ teaching contributions and recognition.

196As a group, these candidates also had made significant contributions in the area of administrative service and service to the profession. In contrast, the applicant simply does not exhibit the same level of service contributions as exhibited by these candidates. In my view, it is also notable that virtually all of these candidates had served as assistant professors for a far longer period of time than the applicant prior to applying for promotion, ranging (with one exception) from 8 to 18 years as compared to the applicant’s five years as an assistant professor at the time of his promotion application. The one candidate within this group who also had served for five years as an assistant professor at the time she applied for promotion far surpassed the applicant’s record in terms of teaching and professional service, and indeed with only 10% protected research time had nonetheless managed to generate seven peer-reviewed publications, one book chapter and seven abstracts and was the primary site investigator for two international multi-centre clinical trials.

197Accordingly, while the promotions policy may be somewhat more elastic or flexible than it appears, upon my review of the comparative evidence the applicant simply did not have the kind of exceptional teaching and service record that would put him within this group of candidates who were promoted to associate professor without what might normally have been regarded as a record of “high quality” research and scholarship.

198I appreciate that the other 37 candidates for promotion within the School of Medicine during the five-year period from 2004 to 2008 practise in different areas and specialties than the applicant. I also appreciate that this is not a large enough sample upon which to perform reliable statistical analysis. However, it is notable to me that the applicant has not brought to my attention even one case example where a candidate with a research and teaching record similar to his own was determined to be qualified for promotion to associate professor.

199In my view, a review of this comparative evidence reveals that the applicant was less qualified for promotion than the other candidates who were successful in gaining promotion to the rank of associate professor, and I so find.

The exercise of discretion

200On behalf of the applicant, it is submitted that the promotions process was wrought with irregularities, misinterpretations and inconsistent application, and that in almost every instance where the Promotion Committee or other reviewers had an opportunity to exercise some discretion, the discretion was exercised in a manner that was unfavourable to the applicant.

201I accept that irregularities, inconsistent application of policies and the exercise of discretion can result in racial discrimination. However, as I have said before, at the end of the day some link or connection must be made between such irregularities, inconsistent application or discretion and the applicant’s race. In my view, it is this link or connection which is missing in this case.

202Many of the examples of irregularities, inconsistent application of the promotions policy or unfavourable exercises of discretion cited by the applicant already have been addressed in detail above. The applicant cites the Promotion Committee’s note that Dr. Stoddard was not an arm’s length referee because he referred to the applicant as a “friend” in his reference letter. However, as I have indicated above, I do not find that the evidence supports that the Promotion Committee’s view on this matter was linked to the applicant’s race nor do I find that any lack of consideration given to Dr. Stoddard’s letter was a material factor in the decision to deny promotion.

203The applicant cites the four external reference letters and states that all four external referees recommended the applicant for promotion, but that these reference letters were given little weight. I disagree. As discussed above, two of the external reference letters either were equivocal or ambivalent in their support. The other two external reference letters, while supporting the applicant’s promotion, did so on the basis largely of his research and scholarly output prior to his arrival at the respondent University. None of these letters addressed the concerns of the Promotion Committee and subsequent reviewers regarding the applicant’s lack of published peer-reviewed manuscripts while at the respondent University and his lack of peer-reviewed funding as principal investigator.

204An issue is raised by the applicant regarding the composition of the Promotion Committee, in that it did not include a student representative as required by the policy. There is no evidence before me to support the applicant’s assertion that “a student view likely would have been helpful in assessing the applicant’s contributions”. I fail to see how the absence of a student representative on the committee, while perhaps in violation of the promotions policy, is linked or connected to the applicant’s race, nor is there evidence before me to support such a link or connection.

205It is submitted that the applicant’s collaboration with Dr. Melo was not given sufficient weight. This too has been addressed in detail above. The issue here is that this collaboration, even with the applicant identified as co-investigator, had not yet resulted in published manuscripts for the applicant. And while Dr. Melo certainly had been successful in securing significant peer-reviewed funding as principal investigator, on one occasion with the applicant identified as co-investigator, this did not address the concern of the Promotion Committee and subsequent reviewers about the applicant’s lack of a successful track record in securing peer-reviewed funding as a principal investigator in his own right.

206The applicant raises an issue regarding a failure by the Promotion Committee or other reviewers to give his unpublished manuscripts to experts to assess their likely value. Dr. Hitchcock’s evidence is that this had never been done before with any candidate. There is no evidence to contradict this. It seems entirely reasonable to me for the respondent University to rely upon the peer review process that takes place prior to the publication of a manuscript in an academic journal as a means of assessing a candidate’s work. And it seems unreasonable to me to suggest that the University should have engaged in some form of separate peer review process in relation to the applicant’s unpublished manuscripts, particularly when this had not been done before.

207The applicant raises the issue of his protected time, which also has been addressed in detail above. While it is correct for the applicant to say that the Promotion Committee and Dr. G. Adams were wrong in saying that the applicant had 40 to 50% protected time throughout his five years at the respondent University, it is not accurate in my view to say that the Promotion Committee did not re-evaluate the applicant’s productivity based upon the corrected information. As reviewed above, the Promotion Committee received and considered the applicant’s submission of November 9, 2006 in which he expressly addressed the issue of his protected time, but concluded that the amount of protected time a candidate receives for research should not be a factor in reducing the requirement for “high quality” research and scholarship. This issue also was explicitly addressed by Dr. Hitchcock in her review. While, as I have reviewed above, the amount of protected research time afforded to a candidate for promotion has been considered in cases where the candidate is a clinician-educator and has applied for promotion primarily on the basis of exceptional teaching and administrative and professional service, the applicant’s record does not put him within this category. No case example was brought to my attention where a candidate who was applying for promotion as a clinician-scholar on the basis primarily of research and scholarly work had their protected time considered in lowering the standard for “high quality” research and scholarship.

208Finally, the applicant raises the reference letter from Dr. G. Adams, which also has been addressed in detail above. For the reasons articulated at length above, I do not find that the applicant’s race was a factor in the request for this letter, in the preparation or content of this letter, or in the Promotion Committee’s consideration of this letter.

209In the result, while I agree that there were some irregularities in the promotions process as it applied to the applicant, I do not find that any such irregularities contributed to the ultimate result or the primary reasons for denying the applicant’s promotion, nor do I consider any such irregularities either independently or as a whole to provide a sufficient basis in the evidence to support an inference that the applicant experienced discrimination because of his race.

Allegation re stereotypes

210In the final submissions filed on his behalf, the applicant also alleges that certain racial stereotypes were at play in the promotions process.

211First, reliance is placed on then stereotype of the “uppity” Black person, where Black persons are expected to “know their place” and any Black person who talks back or refuses to comply is regarded as “uppity” and needs to be dealt with harshly: see Abbott v. Toronto Police Services Board, 2009 HRTO 1909, at para. 45. Another aspect of this stereotype is a tendency to treat normal differences of opinion as confrontational or insubordinate when racialized persons are involved or to characterize normal communication from a racialized person as rude or aggressive: see OHRC Racism Policy, at p. 21.

212It is submitted that in the evidence provided in response to the applicant’s allegations, the applicant has been described as difficult and confrontational, in an academic and clinical environment where one would expect that lively debate on ideas and scientific advances and theory would be encouraged.

213There is in the evidentiary record before me some evidence of difficulties experienced by some of the respondent witnesses and other physicians with the applicant. However, the evidence does not support that these difficulties played a role in the promotions process or the decision to deny the applicant a promotion to the rank of associate professor. Witnesses who were involved in the promotion process were asked whether these difficulties were considered in making the decision to deny promotion, and this was denied. There is no evidence to contradict this. The minutes of the meetings of the Promotion Committee do not indicate that these difficulties were considered in the decision to deny promotion. Indeed, many members of the Promotion Committee are unlikely to have had any knowledge of these difficulties, as they did not work in the Division of Cardiology. Accordingly, whether or not any stereotype was at play in the characterization of the difficulties experienced with the applicant, the evidence does not indicate that this was a factor in the promotion process. In addition, there is no independent allegation before me raised by the applicant in his complaint arising out of these difficulties and how his role in them may have been characterized.

214The applicant also raises the tendency to act towards racialized persons in a paternalistic manner as another subtle manifestation of racial discrimination: see Persaud v. Toronto District School Board, 2009 HRTO 1728, at para. 224. It is submitted that paternalism towards the applicant was evidenced by both Dr. McCans and Dr. Sanfilippo, in that these two individuals were critical of the applicant for not following their advice. Once again, in my view, no link or connection has been established between this evidence and the consideration of the applicant’s promotion application. Dr. Sanfilippo was not on the Promotion Committee, and the evidence does not indicate that he played any role in the consideration of the applicant’s promotion application.

215While Dr. McCans did play a role at the first stage of review following the decision of the Promotion Committee to deny the applicant’s promotion, the evidence in my view does not support that any failure by the applicant to follow Dr. McCans’ advice played a role in Dr. McCans’ agreement with the Promotion Committee’s decision. Rather, Dr. McCans agreement was based upon his assessment that the applicant had not met the “high quality” standard for research and scholarship or the “very good” standard for teaching. Further, the context in which Dr. McCans gave evidence about the applicant not following his advice related to the applicant’s hypertension study, which Dr. McCans viewed as too ambitious and about which he had concerns regarding the study’s feasibility. These concerns were shared by the reviewers at the HSFO, who twice denied the applicant’s requests for funding of this study. I do not view Dr. McCans’ advice to the applicant in this regard as being paternalistic. Rather, I see Dr. McCans as trying to focus the applicant on manageable research projects that he could complete and the results of which he could publish in a reasonable timeframe. In my view, it was entirely appropriate for Dr. McCans to express these concerns to the applicant in his role as Head of the department, with a view to assisting the applicant in readying himself for a successful promotion application.

216The applicant also relies upon the “halo” and “devil” effects, whereby an interviewer has an initial reaction to a candidate which then gets reflected across the marks awarded in the interview without any real differentiation among what are supposed to be distinct criteria: see Azeez v. Ontario (Attorney General), 2010 HRTO 1919, at para. 61. To be frank, I have difficulty applying this concept in the instant case, as this was not a situation where the applicant participated in an interview process where he was awarded marks for particular characteristics or in response to certain questions. That is the context in which an interviewer can form an initial subjective impression of a candidate, which may be influenced by discriminatory factors and which then spills over into how the candidate is assessed.

217In the instant case, there was no interview process and the applicant was not marked on the basis of particular characteristics or his responses to questions. Rather, the Promotion Committee and subsequent reviewers engaged in a review of the applicant’s promotion dossier and file. It is submitted by the applicant that, somewhere along the way, the Promotion Committee determined that the applicant was not worthy of promotion on the basis of the committee’s test, and as a result they held short meetings and conducted superficial reviews of his promotion file and failed to accord the applicant the thoughtful and fair consideration he deserved. In my view, this is not supported by the evidence.

218From the outset, the Promotion Committee was concerned about the applicant’s lack of peer-reviewed publications and his lack of peer-reviewed funding as principal investigator. These in my view are entirely appropriate considerations in relation to the determination of whether the applicant’s research and scholarly work met the “high quality” standard. Before making their determination, the committee awaited receipt of the requisite reference letters and then considered them. Having decided that the applicant’s promotion should be denied, they put him on notice of their concerns and invited his response. They then considered his response at two further meetings, in order to allow all members to have input. The evidence of the respondent witnesses is that more time than usual was devoted to consideration of the applicant’s promotion application. There is no evidence to contradict this. In my view, on the basis of the evidence before me, the Promotion Committee gave appropriate consideration to the applicant’s promotion application and denied the promotion on the basis of legitimate and non-discriminatory concerns.

219As a result, I find that racial stereotypes of the nature alleged by the applicant did not play a role in the promotions process or the decision to deny the applicant’s promotion.

The systemic evidence

220The applicant has submitted that this entire case needs to be viewed through the lens of the PAC and Henry Reports (discussed above) and their findings that racial discrimination and a “culture of Whiteness” exists at the respondent University.

221In previous decisions in this matter, I have stated repeatedly that it is not an issue before me whether in some general way systemic racism exists at the respondent University. The sole issue before me is whether the applicant personally experienced racial discrimination in the manner alleged. While I have indicated that systemic evidence of the nature brought forward in this case can play some role in establishing context or background for the discrimination alleged, at the end of the day some link or connection must be made between the systemic evidence and the particular and specific experience of the applicant.

222I appreciate that racial discrimination can be manifested in subtle ways and most often emanates from unconscious racial biases. I appreciate that where there is a “culture of Whiteness”, a member of a racialized group can be disadvantaged or marginalized for not fitting the “profile” of who an institution believes should merit promotion. But these broader issues do not answer the question of whether racial discrimination was manifested towards the specific applicant before me in the context and circumstances of this specific case.

223In the instant case, the Promotion Committee and subsequent reviewers denied the applicant’s promotion application on the basis of what I have found to be legitimate and non-discriminatory concerns about his record of research and scholarship and his teaching. These concerns make sense to me and are supported by the evidence. No comparative evidence has been brought forward to indicate that another non-racialized candidate who was in the role of clinician-scholar with a research and scholarly record similar to the applicant’s was granted promotion. I have found that the evidence does not support that racial bias or stereotypes were at play in the matters considered by the Promotion Committee or subsequent reviewers. In short, in my view, there is no tangible evidence before me to support that the applicant personally experienced racial discrimination in relation to the promotion process, whether or not others at the respondent University may have in other and different circumstances.

224In this context, I also wish to address two other matters. I accept that there may be a “culture of Whiteness” at the respondent University. This certainly appears to have been accepted by the SEEC Report. One of the recommendations arising out of the PAC Report was to ensure that, as far as possible, at least one racial minority member should sit on Tenure and Promotion Committees. The evidence before me does not address to what extent this recommendation has been implemented across the respondent University, and such evidence would not be relevant to the specific matter before me. However, in the instant case, the evidence indicates that two members of the nine member Promotion Committee are members of racialized groups. The Chair of the committee, Dr. Hudson, self-identifies as a Black man. Another member of the committee and the former Chair of the Division of Cardiology, Dr. Abdollah, self-identifies as a Kurdish man who immigrated to Canada from Iran as a refugee. I appreciate that merely having members of racialized groups on a promotion committee is no guarantee against racial discrimination towards an applicant, even by the racialized members themselves. I also appreciate that a “culture of Whiteness” at an institution may even inculcate itself into the views and biases of racialized members of that institution. However, the farther one gets away from monolithic White decision-making, the more difficult and tenuous it becomes to support an inference of racial discrimination on the basis of a generalized “culture of Whiteness” and in the absence of other specific indicia that racial discrimination is at play.

225The second thing I wish to note is in relation to the more elastic and flexible application of the promotions policy within the School of Medicine when dealing with clinician-educators who have exceptional teaching and service records but less robust research and scholarship. In such circumstances, I have noted that the promotions policy has been flexibly applied to grant promotions to such individuals to the rank of associate professor. As stated above, there were 10 such candidates identified as falling within this category during the five year period from 2004 to 2008. In my view, it is notable that two of these 10 candidates self-identified as being from a “visible minority”. In other words, where the promotions policy has been flexibly applied within the School of Medicine, this flexibility has advantaged not only White candidates but also candidates from racialized groups. Once again, I appreciate that this is a statistically small sample and that just because two members of racialized groups have been advantaged by a discretionary and flexible application of the promotions policy does not necessarily mean that the applicant was not disadvantaged because of his race. However, in my view, this evidence makes it more difficult to infer that within the School of Medicine, discretion under the promotions policy was exercised to the detriment of the applicant based on generalized evidence about systemic racism and a “culture of Whiteness” at the respondent University, once again in the absence of other specific evidence that racial discrimination was at play in relation to the applicant’s specific circumstances.

226As a result, while I have carefully reviewed and considered the systemic evidence of racial discrimination at the respondent University that was brought forward on the applicant’s behalf, I ultimately do not find it of assistance to me in making my determination as to whether or not the applicant experienced racial discrimination in relation to the promotion process in the specific circumstances before me.

227As a result, after carefully considering all of the evidence and submissions before me, I find that the evidence does not support an inference that the applicant experienced racial discrimination in relation to the promotions process or the denial of a promotion to the rank of associate professor.

Allegation of racial discrimination in relation to the May 2007 performance appraisal

228There are two respects in which the applicant alleges that he experienced racial discrimination in relation to the May 2007 performance appraisal.

229The first relates to the “C” grade awarded to him for research and scholarship. The applicant points to the fact that he had received “A” grades for research and scholarship in previous years and that the 2006 year had been his most productive year at the respondent University in terms of research and scholarship. That may be. However, in my view, one needs to be mindful of what a “C” grade signifies on the form, which is that the department member “does not meet expectations”.

230As discussed above, the applicant had received “A” grades on prior performance evaluations in 2002, 2003 and 2004 on the basis of Dr. McCans’ assessment of his research progress during that specific year. However, as also discussed above, as the applicant’s time at the respondent University increased, the expectations in terms of publication and funding increased. I have reviewed above the several occasions on which it was emphasized to the applicant that he needed to publish promptly in peer-reviewed journals and needed to obtain peer-reviewed funding for his research. I have found that his failure to make sufficient progress in doing so was the primary reason for the denial of his promotion to associate professor.

231For the same reason, the applicant’s level of research and scholarship productivity was assessed by Dr. McCans as falling short of expectations as expressly stated by Dr. McCans on the May 2007 assessment. This assessment supports the award of a “C” grade, on the basis that in that year and at that particular stage of his academic career, the applicant’s research productivity did not meet expectations. In my view, there is nothing inappropriate or illegitimate about this assessment, and I find that the evidence does not support that the applicant’s race was a factor in the assessment of his research and scholarship on the May 2007 evaluation.

232The second respect in which the applicant alleges racial discrimination relates to the “C” grade awarded to him for his clinical activity. As stated by Dr. McCans on the evaluation, this grade was awarded on the basis that the applicant “had failed to meet the standards of the Echocardiography Group in the consistent interpretation of stress echograms in the criteria used and in some instances of estimation of right ventricular systolic pressures”. As already canvassed above, the issues underlying Dr. McCans’ assessment of the applicant’s clinical activity in the May 2007 performance assessment arose out of a difference in medical judgment between the applicant and Dr. McCans and the three other members of the Echocardiography Group. While I appreciate that the applicant disagrees with Dr. McCans’ medical judgment as reflected in the performance assessment, the evidence does not support that the applicant’s race was a factor in this medical disagreement or in the resulting impact recorded in his performance evaluation.

233As a result, I find that the evidence does not support the applicant’s allegation that he experienced racial discrimination relating to the May 2007 performance assessment.

234For all of the foregoing reasons, the Application is dismissed.