Mahant v. York University, 2011 HRTO 1981

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Edelgard Mahant Applicant

-and-

York University Respondent

-and-

York University Faculty Association Intervenor

DECISION

Adjudicator: Mark Hart Date: November 3, 2011 Citation: 2011 HRTO 1981 Indexed as: Mahant v. York University

APPEARANCES

Edelgard Mahant, Applicant: Self-represented (assisted by Michael Craig on May 29, 2011) York University, Respondent: Richard Charney and Rachel Silver, Counsel York University Faculty Association, Intervenor: Monica Mulvahill, Representative

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 18, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on February 21, 2007.

2The applicant alleges that she experienced discrimination in respect of employment because of age contrary to ss. 5 and 9 of the Code, and reprisal contrary to ss. 8 and 9 of the Code, arising out of her failure to be selected to the long short-list for the position of Co-Director of the Canadian Centre for German and European Studies (“CCGES” or the “Centre”) at the respondent University and ultimately for the position itself.

3The hearing in this matter was held on January 25 and May 29, 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 advance of the hearing, I proposed that the respondent provide its evidence first, as the reason why the applicant was not selected for the long short-list for the Co-Director position was within its knowledge. I heard from four members of the hiring committee and the recording secretary for the committee: Dr. David Dewitt, Associate Vice-President, Research, Social Sciences & Humanities at the respondent University and Chair of the hiring committee; Paul Kleiner, Coordinator for the CCGES and a non-academic staff member at the respondent University; Dr. Roger Keil, a member of the Faculty of Environmental Studies at the respondent University and the Director of the City Institute; Dr. Mark Webber, then a faculty member in the Department of Languages, Literatures and Linguistics and the Department of Humanities at the respondent University (since retired); and Phyliis Lepore Babcock, Executive Officer, Research at the respondent University and the hiring committee’s secretary.

4The applicant provided her evidence in response and I also heard from three witnesses called to testify on her behalf by conference telephone: Karen Foss, a member of the Canadian Foreign Service and former student of the applicant; Roy Christensen, Press and Information Officer at the Delegation of the European Union to Canada; and Dr. Hans Michelmann, Professor of Political Science at the University of Saskatchewan and one of the founding editors of the Journal of European Integration.

Background

5The CCGES is a cooperative initiative of the German Academic Exchange Service (“DAAD”), l’Université de Montréal and York University. The CCGES serves as a national research and teaching resource, focusing on contemporary Germany in its European context. In Canada, the CCGES was formally opened in November 1997 and has offices in Montreal and Toronto. In the context of the respondent University, the CCGES operates as an “organized research unit” that is operated and overseen by the University’s Division of Research & Innovation.

6In the fall of 2006, the respondent advertised for the position of Co-Director of the CCGES. The advertisement stated that candidates must have a Ph.D. (or equivalent) in a relevant field and the potential to devise innovative projects that attract third-party funding. Administrative experience, including the administration of grants and projects, was stated to be advantageous. It was indicated that the successful candidate must be able to conduct courses in both English and German, and that a working knowledge of French was an advantage.

7The responsibilities of the Co-Director position were described to include: the day-to-day administration of budget, financial, organizational, and academic activities of the Centre at the respondent University; the development of additional funding sources; maintaining an active individual and collaborative research program; initiating a mix of curiosity-driven and commissioned research and related scholarly activities; and remaining cognizant of traditional areas of scholarship while also being attentive to the leading edge of innovative knowledge creation and dissemination. It was stated that the Co-Director would be appointed to the position of Associate or Full Professor in the Faculty of Arts at the respondent University in the Department of Languages, Literatures and Linguistics or the Department of Political Science, depending on area of expertise.

8The position was to commence on July 1, 2007 and was subject to budgetary approval. The deadline for receipt of completed applications was set as November 15, 2006. Candidates were to submit a curriculum vitae, appropriate samples of their scholarship and teaching evaluations, and arrange to have three letters of reference sent to the secretary of the hiring committee. The advertisement stated that the respondent University is an affirmative action employer, and also noted that Canadian citizens and permanent residents would be given priority.

9The hiring committee met for the first time on November 22, 2006. There were nine members of the hiring committee plus the recording secretary. Two members of the committee (the student representative and Dr. Webber) were unable to attend the first meeting. The minutes of this meeting record that candidates’ cover letters and curriculum vitae would be distributed to all committee members following the meeting, and samples of scholarship and teaching evaluations and letters of reference would be available for review at the recording secretary’s office. Committee members agreed to review the candidates’ materials before the next meeting and come prepared to short-list the applicants at the next committee meeting.

10At the November 22, 2006 meeting, the committee members identified the following criteria as important when evaluating the candidates:

• Previous administrative positions in which the candidate would have demonstrated the administrative skills needed for this position.
• Candidate’s concept of a research centre.
• Reason(s) why the candidate is attracted to the CCGES.
• Commensurate with the candidate’s field, his/her individual and collaborative research agenda and record (particularly with respect to his/her success with gaining external funding).
• Leadership in research. In particular, ability to bring researchers together to form networks.
• Demonstrated ability to connect with others and present an open-minded attitude that creates the intellectual space that will allow for diverse ideas.
• Level of interaction with graduate students.
• Candidate’s vision for CCGES.
• Knowledge of the North American post-secondary system. To what degree does the candidate envision the Centre as part of the Canadian educational system?
• Demonstrated ability to work cooperatively with others (e.g., committee work).
• Fundraising ability.
• Ability to interact with European diplomats.
• Language knowledge – Does the candidate have a near native knowledge of English and German? Does the applicant have at minimum a reading knowledge of French?

11The next meeting took place on December 6, 2006. At this meeting, the committee members were advised that the student representative had withdrawn, but that the University’s Dean of Arts had confirmed the acceptability of proceeding in the absence of a student representative, as there would be other opportunities in the interview process to gain student feedback on candidates. All other committee members were in attendance at this meeting.

12By the time of this meeting, the committee members had reviewed the candidates’ materials. The following additional criteria were added to the list of criteria to evaluate candidates established at the previous meeting:

• Ability to interact with Canadian diplomats.
• How does the candidate fit into their department at York?
• Level of seniority.
• Has the applicant ever worked in North America?
• Does the applicant understand the differences between the Canadian and American systems?

13The committee then proceeded to consider the candidates in alphabetical order to determine who would be placed on the long short-list. If a candidate was supported by even one committee member, then she or he was placed on the long short-list. If no committee member supported a candidate, then her or his application was set aside. Out of a total of 20 candidates for the position, six candidates were selected for the long short-list. The applicant was not one of these candidates.

14Having selected six candidates for further consideration, the committee agreed that the candidates should be sent questions on the following issues: fund-raising in the Canadian context; vision for a multi-disciplinary environment; and governance. A letter requesting this information from the candidates was sent out on behalf of the committee. Responses were received from four of these candidates, with the other two withdrawing from the competition. Three candidates were invited for interviews, which were held in February and early March 2007. Ultimately, the committee concluded that none of the short-listed candidates would be recommended for hire to the Co-Director position. As a result, the hiring committee was disbanded.

15Subsequently, a “True Visitor” position was created as an interim solution to fill the Co-Director position. Dr. Klaus Rupprecht was hired to fill this position.

The candidates selected for the long short-list

16As set out above, the applicant alleges that she experienced discrimination because of her age and/or reprisal in relation to this competition. As the applicant’s candidacy for this position was eliminated at the stage when the committee compiled the long short-list, the issue before me is whether the applicant’s age or reprisal was a factor in not selecting her for the long short-list. The determination of this issue requires me to consider the reasons that the six candidates were selected for the long short-list and the reasons why the applicant was not selected. I will first start by reviewing the evidence as to why the six candidates were selected for the long short-list.

Candidate A

17Candidate A (Ex. 5, Tab 4) was a tenured associate professor in German Studies at Rice University in Texas. There is no specific evidence before me regarding the age of this candidate. The applicant has asked me to infer her age based on the date that Candidate A received her first degree, which was in 1978, as compared to when the applicant received her first degree, which was in 1962. While I profess to having some difficulty with this, given that it would appear that Candidate A’s precise age could have been determined through other means, I am nonetheless prepared to assume that Candidate A is approximately 16 years younger than the applicant, and therefore would have been approximately 50 years of age at the time.

18The evidence before me indicates that Candidate A was selected for the long short-list for a variety of reasons. She was described as having very interesting administrative experience, having been asked a number of times by the National Endowment for the Humanities to direct its summer institute in Vienna, Austria. She was the editor of the journal Modern Austrian Literature, which was described to me as being relatively new and as showing the expansiveness of her interest as a scholar not only in German language literature but in the German-speaking world. In particular, it was noted that one of the members of the hiring committee was an expert in Austrian literature and felt it important that the CCGES recognize scholarship in the broader German-speaking world.

19Candidate A also had been the Director of the Rice Center for the Study of Languages for five years from 1997 to 2002. It was stated that being the Director of a centre of this nature is not the same as being the Chair of a small department at a university, and requires a different set of administrative management and fund-raising skills. It was stated that Candidate A had quite a range of experience in administration and management tasks, some of which required initiative and not just management. She also had worked with the DAAD, which was the principal funder for the CCGES at the time, and it was felt important to find someone who had a connection with Germany and funding, because the CCGES was coming to the end of its DAAD funding.

20Candidate A also was someone who had received external research grants and academic awards consistently over a number of years, and had secured more than $1 million in external grants. In terms of publications, Candidate A was well published and had ongoing work in progress, and much of her publications were in German.

21One witness, Dr. Keil, described Candidate A as on paper the most experienced and accomplished scholar and academic among the candidates, and as someone who scored highly on all areas that the committee was looking for. Dr. Webber described Candidate A as someone who had a lot of success in designing grant applications for large externally funded projects, who had a very well known standing within the profession, whose administrative experience was extremely promising, and who had a very active research and publication agenda.

Candidate B

22Candidate B (Ex. 5, Tab 5) was a tenured associate professor of History and Science at Harvard University. Based upon her having received her first degree in 1980, I am prepared to assume that she was in her late 40’s at the time she applied for the Co-Director position.

23Candidate B was regarded as someone who had a high-powered research agenda and profile, working at the cusp between science and social sciences and the humanities. She was described as working in an inter-disciplinary area that was new and exciting and would have made a good fit to the respondent University and where the committee thought the University was going. Dr. Dewitt described Candidate B as having enormous academic gifts in terms of what she had accomplished to date, and stated that her scholarship excited people. Her scholarship had received recognition through having one of her books named outstanding academic book for 1995, and she also had been the editor and author of a multi-volume publication on science under socialism in East Germany. Dr. Dewitt stated that there was excitement about someone who did something that did not yet exist in the CCGES but fits within the emerging program in science and technology.

24Concern was expressed by committee members about Candidate B’s lack of independent administrative appointments and experience, but Candidate B was viewed as someone with a lot of potential who might be able to grow into the position with the right collegial and staff support. She also had received a personal recommendation from the most senior scholar at the CCGES, who had told the committee members to look out for her application. On the basis of her scholarship and this personal recommendation, the committee decided to place Candidate B on the long short-list to see how she progressed through the competition process and whether the committee could gain confidence that she could make the step to the Co-Director position.

Candidate C

25Candidate C (Ex. 5, Tab 6) was an associate professor for Literary Theory and Modern German Literature at the University of Seigen in Germany. I was told at the hearing that it is customary for candidates to show their age or year of birth on European curriculum vitae, and as a result I know that this candidate was born in 1958. This would have made him either 47 or 48 years of age at the time of his application for the Co-Director position.

26Dr. Dewitt testified that Candidate C was regarded as the most well-established scholar among the candidates, with considerable experience at various universities in Germany and abroad. Candidate C dealt with an intellectual area that a number of people on the hiring committee knew something about, and the work he was doing was known and highly regarded. It also was significant that Candidate C was a humanities scholar involved in a major international collaborative research program. I was told that it was not common for scholars in the humanities to engage in such programs, as they usually work independently. He had a long list of published materials, both single authored and edited volumes, and had actively presented at conferences throughout the German speaking world. Dr. Dewitt stated that Candidate C was connected and established, and that everyone on the committee thought that this was someone who deserved serious and deep examination.

27Dr. Webber expressed his view that Candidate C was a really outstanding candidate, not just in terms of the quality of his degrees and publications, but because of the kind of work that he did. Candidate C’s work was described to me as cutting between the humanities and theory and also making use of technology. Candidate C had worked out a net-based project of bilingual hypertext which Dr. Webber thought was incredible and very unusual. Dr. Webber described Candidate C as embodying for him what he thought the field of German studies should be, moving from literary and textual studies, into political history and culture, and then moving over to technology. Candidate C had managed some extremely complex collaborative major research projects funded by the top tier funding agency in Germany.

28Dr. Webber testified that the hiring committee was particularly concerned about the candidates’ ability to obtain research grants because the CCGES, as a research centre, is not a teaching department but is a voluntary association among a group of scholars who work in inter-connected fields which needs to obtain collaborative grants to pay for the knowledge production and dissemination that research centres perform. The CCGES, in particular, was at a critical stage, because it had received initial funding from the German government (through the DAAD) and from the two host Canadian universities for a period of 10 years, with the understanding that the German funding would be phased out after that time. As a result, at this point in its history, it was imperative for the CCGES to be able to obtain the funding required to continue to generate the kind of work that the Centre wanted to do.

Candidate D

29Candidate D (Ex. 6, Tab 1) was an assistant professor in the Department of History at the University of Texas at Arlington. From his curriculum vitae, it appears that he obtained his first degree in 1994, from which I am prepared to assume that Candidate D was in his mid-30’s at the time he applied for the Co-Director position.

30Dr. Dewitt describes Candidate D as someone who had received a series of awards for his scholarship and fellowship support both during and after his doctoral studies, and who had compiled an impressive list of authored and co-authored works for such a relatively short career. His work was described as having an active and lively intellectual character, which cut across a variety of fields including the humanities, social sciences and politics. Dr. Dewitt states that there was an interest in the kind of work Candidate D was doing, due to the growing interest at the respondent University in urban issues and the role of the city. It was noted that Candidate D had been an active teacher at the graduate level, though there was very limited evidence on graduate supervision. While Candidate D was clearly at the more junior level in terms of experience, his scholarship was very active and seemed to be well supported. Dr. Dewitt states that Candidate D, along with Candidate B, were two candidates that members of the committee were interested in getting more information about.

31Dr. Keil described Candidate D as a very strong academic, with a record of funding and fellowships. Dr. Keil regarded Candidate D’s publications as making the most memorable impact, with publications in German and English on an interesting mix of topics with a broad reach. Dr. Keil regarded Candidate D as someone who thought beyond what he had already done and who was a forward looking and exciting scholar. Candidate D also was regarded as someone who had made the effort to reach out and cross continents and interact in a variety of cultural contexts.

32Candidate D was someone who was known to Dr. Webber as a result of work Candidate D had done at the University of Toronto. Dr. Webber regarded Candidate D as having an excellent research agenda that had resulted in funding and recognition, and as the kind of person who was going to continue to be productive based on the consistency and trajectory of his record of scholarship. Candidate D had a proven ability to collaborate on exciting research projects and was a known factor in the German Studies Association.

Candidate E

33Candidate E (Ex. 6, Tab 2) was a Fulbright Senior Scholar in the Department of Literature, Art and Media at the University of Konstanz in Germany. He had received his first degree in 1985, and so I am prepared to assume that he was in his early to mid-40’s at the time he applied for the Co-Director position.

34Dr. Dewitt describes Candidate E as someone with a strong formal education and a very interesting curriculum vitae. It was noted that Candidate E was at the University of Konstanz, which is a leading German university particularly in humanities and social sciences and which has a special relationship with the respondent University. Dr. Dewitt recalls that someone on the hiring committee had read some of Candidate E’s work and knew of him and had heard very good things. He was exceedingly well published for a younger scholar, had received a number of grants and fellowships, had considerable support for his research, and had been quite active not only in university service but also in external service. Candidate E had been the director of Kent State University’s Ethnic Heritage Programs for five years, and had organized a series of colloquia and conferences. Candidate E also was of interest because his intellectual interests in the Holocaust were an active point of engagement at the respondent University, which at that time was involved in major project co-managed by the CCGES and the Centre for Jewish Studies at York dealing with German-Jewish relations post-Holocaust. As a result, Candidate E had intellectual and research interests that would have fit into the interests of two research centres at the respondent University and would have presented an attractive opportunity for the teaching unit to strengthen its complement as well.

35Dr. Keil noted that Candidate E had published or was planning to publish at major presses, had a steady outflow of articles and book chapters, and a number of fellowships. It was also noted that the DAAD had been mentioned in Candidate E’s materials as well as connections to foundations, fellowships and funding agencies, which meant a lot to the hiring committee. Dr. Keil noted that the business of the CCGES is to live in this trans-Atlantic world and Candidate E clearly had experience living in this world and connections with people that were known to have weight in the field. Nonetheless, Dr. Keil regarded Candidate E as the weakest of the six chosen for the long short-list, based upon his “spotty” references and uncertainty as to his status at Kent State University.

36Dr. Webber notes that Candidate E works more in the area of literature but with an inter-disciplinary approach, with his work focusing not just on traditional notions of what texts do, but about how they were influenced by the political, cultural and historical environment. Dr. Webber referenced Candidate E’s long list of prestigious grant applications, his work with students and graduate supervision, and his organization of colloquia and symposia. Dr. Webber expressed the view that Candidate E was another self-starter who looked like an interesting potential addition to the collegium.

Candidate F

37Candidate F (Ex. 6, Tab 3) was a Heisenberg Fellow and Visiting Professor in the Department of Political Science at the University of Göttingen and an Honorary Senior Lecturer in the Institute of Social Sciences at Humboldt University in Berlin, Germany. He was 39 years old at the time he applied for the Co-Director position.

38Dr. Dewitt notes that Candidate F had an established appointment at one of the elite universities in Germany and an extraordinarily accomplished academic record. He was seen to have an interesting and exciting set of publications completed and research interests in progress that would provide opportunities for colleagues at the CCGES. He was someone who could not only work as a solitary scholar but who also knew how to collaborate. He had published in both English and German with well-respected presses in areas of interest to the departments of political science and history at the respondent University, and he had international connections both in Germany, the United States and in London, England, having been a visiting fellow for international studies at Harvard University, at the London School of Economics, and at Göttingen. Candidate F was a person with considerable exposure, who was known to his intellectual counterparts, and who had been a referee for well-regarded international journals. He was seen to be a very promising candidate and worthy of further examination.

39Dr. Keil described Candidate F as being a “no-brainer’ in terms of his inclusion on the long short-list. Dr. Keil regards Candidate F as a very accomplished academic, who publishes in all right places and on the right topics, and whose papers are a joy to read. He is a very interesting intellectual who is forward looking and with broad research interests. He has had scholarships from very interesting foundations, and was regarded as someone who would have brought an interesting new perspective. Dr. Keil states that Candidate F was clearly someone with a more junior curriculum vitae, but nonetheless someone he would have liked to see interviewed.

40While Dr. Webber did not teach in the area of political science, Dr. Webber states that his political science colleagues on the hiring committee were able to contextualize for him the work that Candidate F had done and that Candidate F was one of the “stand outs” in German political science. Dr. Webber also noted the scholarships and awards Candidate F had received from various foundations, and that he had significant international experience. Dr. Webber states that his overall impression and the discussion in committee supported putting Candidate F on the long short-list.

Reasons why the Applicant was not selected for the long short-list

41The applicant was a tenured full professor in the Department of Political Science at Glendon College at the respondent University at the time of her application for the Co-Director position. The applicant was 66 years of age at the time her application was considered by the hiring committee and the decision made not to select her for the long short-list for this position.

42Dr. Dewitt acknowledged that the applicant had served as the Chair of a small department at Glendon College and that some of her research fell within areas relevant to the mandate of the CCGES. He stated that based upon a review of her curriculum vitae, the applicant’s scholarship was competent though not impressive. However, while the applicant’s scholarship was international in scope, Dr. Dewitt notes that her application materials showed no evidence of involvement in large scale collaborative research programs, no evidence of external funding of any substantial kind, no evidence of an ability to secure funding to support her or her students, little evidence of involvement in mentoring graduate students, and no experience with the DAAD or major national or international foundations.

43Dr. Dewitt also testified that he was aware that the applicant was not viewed as a strongly supportive or diplomatically appropriate colleague to handle the kinds of things that the CCGES was looking for. Though as Chair of the hiring committee he did not vote, Dr. Dewitt testified that he would not have been enthusiastic about adding the applicant to the long short-list. He noted that this was not an appointment solely on academic merits, but an appointment to a Co-Director position at a research centre, which requires a sense of presence that gives confidence to colleagues, that provides excitement to graduate students, and that provides a welcoming working environment and shows an understanding of the issues. Dr. Dewitt expressed his view that he felt those qualities were lacking in the applicant.

44Dr. Dewitt testified that he recalls some discussion at the hiring committee regarding the applicant, and that there was consensus that she should not be placed on the long short-list. He states that no-one on the committee spoke in terms of any excitement about the applicant’s scholarship, which was regarded as competent but not cutting edge and was not seen as something that would stimulate or excite or draw graduate students. He also states that the common view of the committee members was that there was no evidence in the applicant’s long career of her having secured any substantial research or program support of any kind. Given the critical issues around the need to secure ongoing funding for the CCGES, Dr. Dewitt testified that the committee wanted someone who had experience in taking those kinds of initiatives, and this was noticeably absent from the applicant’s materials.

45Dr. Dewitt stressed that this aspect of the Co-Director’s work was important because the CCGES is an organized research unit, which is a voluntary association of faculty who come together to construct a centre that can do a full range of research and can leverage opportunities more than just in their teaching departments. He states that research centres have to survive by going out and getting funds, and rely on “soft money” as they are not part of the base operating budget of the University and need to be able to obtain endowments and contract work. As a result, the Co-Director needs to be the kind of person who can sustain high quality faculty and students and provide attractive deliverables for those who provide funding, in terms of high quality books, conferences and websites. He states that the bottom line is that while research centres are collegial institutes, they live and die on the shoulders of the Director and that is a very different kind of appointment than a straight academic appointment.

46Dr. Dewitt testified that concerns were expressed by committee members about the applicant’s interpersonal conduct, relating to such things as an issue arising from the applicant’s attendance at a reception dinner and allegations raised by her regarding individuals working with the CCGES and inappropriate behaviour at public lectures or presentations, at which she would read a newspaper or otherwise act in a manner regarded by attendees as being rude. Dr. Dewitt testified that while these may appear to be little things, they were felt to be indicative of behaviour that committee members were uncomfortable with. Dr. Dewitt testified that the feelings about the applicant’s inappropriate conduct were held by committee members with some strength and conviction.

47Dr. Keil testified that he regarded the applicant as having an average impressive curriculum vitae for a senior academic who had been in the game for a long time with a lot of accomplishment and with a publishing record that was not impressive but steady in a field that was fairly mainstream in his point of view. As compared to other candidates, Dr. Keil did not regard the applicant’s scholarship as being theoretically or methodologically interesting. Dr. Keil acknowledged that there was some overlap between the applicant’s scholarship and the mandate of the CCGES and that the applicant had been involved to some degree in the work of the CCGES, but he did not see the kind of sustained exceptional experience that one would have expected of a director.

48Dr. Keil states that the applicant’s scholarship showed some work with co-authors, but he did not see major collaborative research projects or major funding. In addition, apart from chairing a department on the academic side, he did not see the kind of administrative experience that he would have liked to see. More importantly, he was concerned about the applicant’s record of involvement at the respondent University, which he regarded as underwhelming at best and off-putting at worst. Dr. Keil states that he was involved right from beginning in the governance of the CCGES, and he never saw the applicant play any role of consequence in the governance or academic interests of the Centre. He states that when he was resident at the Centre, he never saw the applicant come through the door to work with people there or strike up a discussion with colleagues to work together on matters of interest to the Centre. He states that the applicant was not one of those people he viewed as being among the leading group of intellectuals in relation to German Studies at the respondent University, and he regarded the applicant as a co-traveller at best.

49Dr. Keil also testified that the applicant often displayed behaviour that made people uncomfortable, and that he personally had experienced that the applicant sometimes annoyed him. He states that, in order to be building a culture of collaboration and research, one needs to not annoy people.

50Dr. Keil also spoke to the significance of work with graduate students in relation to the activities of the CCGES. Dr. Keil expressed that a culture of research is a culture where there is a relationship between the work that professors do and the work that graduate students do. He states that it is crucial that there be a nexus between current research by established scholars and the next generation in the field, so that there is an ongoing profound and sustained conversation going on between teachers and new colleagues. He cited Candidate A as an example of someone who had created a spark from her teaching and research into a new group of emerging scholars. He states that this connection to graduate students is particularly important for the CCGES, as it has a diploma program and a variety of student-oriented programs that are nurtured by colleagues in the Centre, which is key to the Centre’s success as students go out into the world and build relationships. The applicant was not regarded as someone who had demonstrated this kind of work with graduate students, or who would generate excitement among graduate students in the work of the Centre.

51Dr. Webber testified that the issue for him was who was going to be a good fit for the Centre and who was going to do things for the university and the Centre that as a voluntary collegium needed to be done. Dr. Webber recognizes that the applicant is a dedicated teacher and expressed his belief that his personal relationship with the applicant over many years had always been collegial and open and respectful and without any personal issues. However, he thought that for a number of reasons the applicant was not a good fit for the Co-Director position.

52He states that a lot of his issues with the applicant’s candidacy for this position had to do with the fact that a research centre like the CCGES is a voluntary collegium, which requires people to want to work collaboratively with colleagues and enter into that group interaction. He states that nothing in the applicant’s background led him to believe that the applicant would be an effective Director of the Centre. He states that there had been some occasions having to do with Centre business in which the applicant had not been collegial and respectful towards other colleagues, and had accused them of malfeasance and unacademic and unprofessional behaviour, and that she had seemed unwilling or unable to acknowledge that this was an issue when it was brought to her attention.

53In particular, Dr. Webber cited an incident that had occurred in 2003, arising out of the applicant’s attendance at a reception dinner following a conference given by the Greek Consul-General, to which the applicant had brought uninvited guests and which caused embarrassment to the Centre. This was followed by an email from the applicant to Dr. Webber in April 2003, in which she raised a number of serious concerns about colleagues which Dr. Webber (who was then Co-Director for the CCGES) determined to be unfounded. From the material in evidence before me, it appears that the allegations raised by the applicant were a source of serious concern for Dr. Webber and for these colleagues. As a result, Dr. Webber was concerned that, not only was there no history of the applicant being able to bring people together in the Centre, if she were appointed Co-Director, it would cause an exodus from the Centre of some key colleagues upon whom the Centre depended.

54Dr. Webber also expressed concern that the applicant would come to presentations or lectures late or leave early and read papers, sleep or eat, which he did not regard as professional behaviour. He recalled in his testimony one specific instance at the University of Toronto when an extremely high-ranking official from Germany was giving a presentation and the applicant engaged in this sort of behaviour. Dr. Webber states that it was this pattern of inappropriate behaviour which led him to believe that there would be no support in collegium for the applicant as Co-Director. He stated in his evidence that, without making any pronouncement on the applicant as a teacher or a person, he felt that she would not be a good fit for the Co-Director position.

55Mr. Kleiner also supported the decision not to put the applicant on the long short-list. As a non-academic appointment to the hiring committee, he states that he limited his input in discussions to questions of the suitability of candidates in terms of running the office and their day to day role. He states that he had concerns that the applicant did not have the type of fund-raising experience that the Centre was looking for, and as a former student, he had some questions about the amount of experience the applicant had working with graduate students. He states that graduate students form an integral part of CCGES life and it did not seem clear to him whether the applicant would be able to do this aspect of the work.

56Mr. Kleiner also notes that he had encountered the applicant at a Centre event where she was present at a talk and he recalls her behaviour as being quite disruptive. He states that the applicant attended the event, brought out a newspaper or magazine, and proceeded to read during the presentation. He states that the event involved a small group of people and the applicant’s behaviour was conspicuous. He states that, based on that experience, he had a hard time imagining that she would be suitable as Co-Director at the Centre.

57Mr. Kleiner also expressed concern about what he referred to as the applicant’s “social awkwardness”. He states that the applicant’s body language is very closed, she tends not to make eye contact when speaking, and she has a difficult pronunciation to understand. He states that while these may seem like superficial characteristics, he suggests that they would go a long way in forming people’s opinion of her as Co-Director and he was simply not convinced that her manner was compatible with the role she would be asked to play. He states that having seen her in that setting, the possibility of working with the applicant on a day to day basis was not something that he particularly relished.

58Mr. Kleiner states that he was not the only one on the hiring committee to have concerns about the applicant’s suitability, particularly in a representative role. He also states that others on the committee shared his concerns about the applicant’s lack of experience working with graduate students and in fund-raising.

59In her evidence at the hearing, the applicant acknowledged that she had less experience than the other candidates with fund-raising, particularly in the academic context. She states that while she had received several grants during the course of her academic career, they were not particularly large ones. She states that most of her fund-raising experience was in the political or non-academic context. Dr. Webber testified that he did not regard this non-academic type of fund-raising experience to be of particular relevance to the Co-Director position. On cross-examination, the applicant acknowledged that she did not have a history of significant fund-raising in the academic setting. She also acknowledged that she had never been the principal investigator or applicant for a major collaborative research grant.

60The applicant also acknowledged on cross-examination that she is a multi-tasker and sometimes does other things during presentations, such as reading a paper. She also expressed the view that it is okay to fall asleep or doze off at a presentation if it is boring.

61The applicant took issue with the description of the events from 2003 and expressed her belief that she had positive relationships with people working at the Centre. While she did not go so far as to say that Dr. Webber was lying about these events or their impact, she did express concern that the views expressed about her conduct and behaviour were highly subjective.

The applicant’s allegation of age discrimination

62The applicant has alleged that she experienced age discrimination in relation to not having been selected for the long short-list for the Co-Director position. For the purpose of this Decision, I am prepared to assume that the applicant was 15 to 25 years older than the selected candidates.

63The critical issue for me is whether the explanations offered by the respondent for not selecting the applicant are credible, rational, and are not a pretext for age discrimination against the applicant or otherwise discriminatory against her because of her age, or whether the applicant has satisfied her burden of demonstrating on a balance of probabilities that her age was a factor in the committee’s decision. I find that the applicant has not satisfied this burden.

64The evidence before me indicates that the applicant had no significant experience in fund-raising in the academic setting. She acknowledges this. I find that this aspect of the Co-Director position was of critical importance at this particular time in the Centre’s history, as it needed to replace the DAAD funding that was expiring and garner sufficient grants, endowments or other sources of funding in order to continue the Centre’s work. As also acknowledged by the applicant, the other candidates selected for the long short-list did have a demonstrated history of being able to secure significant funding.

65The applicant also was regarded as not having the kind of administrative experience or experience in working on major collaborative research projects that was considered necessary to fulfil the Co-Director role. It is clear to me on the evidence that being the Director of a research centre is very different from a purely academic appointment and requires an ability to effectively manage the centre’s affairs. It also is clear to me on the evidence that the work of the Centre also requires a significant degree of collaboration with colleagues, often across disciplines. Other candidates, perhaps with the exception of Candidate B, had this kind of experience. The applicant did not.

66I also accept that being able to work with graduate students is an integral part of the Centre’s work. While the applicant appears by all accounts to have been highly regarded as a teacher at the undergraduate level, her curriculum vitae does not reveal a significant or sustained involvement in supervising graduate students, particularly as compared to the other candidates who were selected for the long short-list.

67I feel less able to comment on the nature and quality of the applicant’s academic scholarship. It appears from the evidence that the applicant’s work in relation to the European Union overlaps with the mandate of the Centre. However, her work was not regarded by the academics on the hiring committee as being particularly innovative, exciting, or “cutting edge”. When discussing the academic work of the selected candidates, the respondent’s witnesses were able to articulate for me what it was about their scholarship that was considered to be innovative, exciting, or cutting edge in ways that are supported by their application materials. I appreciate that there may be differences of opinion as to what amounts to innovative, exciting, or cutting edge research and scholarship. However, I find that the explanations provided to me in evidence by the respondent witnesses on this point are credible, rational, supported by the documents, and not a pretext for age discrimination.

68Entirely apart from these more objective criteria, I also accept that there were honestly held concerns by committee members regarding the applicant’s conduct and behaviour. I have reviewed the material before me regarding the 2003 incident. The applicant clearly did not, and does not to this day, consider it to have been inappropriate for her to show up at the reception dinner with uninvited guests. Dr. Webber and others at the Centre at the time hold a different view. What is indisputable on the documents, however, is that arising out of this event, the applicant made quite serious allegations about the propriety of the conduct of her colleagues. Based upon the material before me, these allegations were quite understandably upsetting to Dr. Webber and the individuals against whom they were made. Dr. Webber found these allegations to be unfounded. It is not my role as the adjudicator in this proceeding to investigate these specific allegations or make my own findings as to their substance. What is significant in the context of this proceeding is that Dr. Webber, as a member of the hiring committee, found these allegations to be upsetting and divisive and not consistent with the collegial atmosphere that the Co-Director of the CCGES would need to maintain. This has nothing to do with the applicant’s age, but rather how her conduct was viewed by the collegium at the Centre.

69I also cannot discount the concerns expressed about the applicant’s conduct at events and presentations, which was regarded by committee members as rude, disrespectful, and inappropriate. The applicant clearly does not share these views, and believes it appropriate to read the newspaper, nod off or leave early if she is not sufficiently engaged. She stated in her evidence that she is not bothered by such behaviour even by her own students. That may be. However, in the context of a research centre where collaborative work and relationships with colleagues is at a premium, I find that it was entirely rational for the committee to consider such conduct and how it is viewed by the collegium. While I agree with the applicant that these impressions of her conduct are to some degree subjective, this alone does not make them invalid concerns nor is there any connection between these concerns and the applicant’s age.

70The applicant made a number of submissions regarding her qualifications as compared to the selected candidates. She presented to me a table which purports to show a summary of her qualifications as compared to the successful candidates, on which she lists herself as the only candidate who met all of the qualifications. The first problem with this table is that the qualifications set out do not bear any particular relationship to the evaluation criteria developed by the hiring committee at its meetings to assess the candidates. These were the criteria that influenced the committee’s decision, not the basic standards or qualifications set out in the job advertisement. Of particular significance, the table prepared by the applicant does not list criteria such as: the candidate’s previous administrative positions in which they have demonstrated the skills necessary to be the director of a research centre; the candidate’s individual and collaborative research agenda and record and success at gaining external funding; the candidate’s leadership in research and ability to bring researchers together to form networks; the ability to work cooperatively with others; level of interaction with graduate students; and fund-raising ability. Based upon the evidence before me, these were critical components in the evaluation of who had the potential to make a good Co-Director for the Centre, and it was these very criteria in which the applicant was found wanting and which the selected candidates, to greater or lesser degrees, possessed.

71Issue was taken by the applicant that these criteria were developed at the committee’s first meeting, after the applications had been received. However, the minutes of this meeting make clear that the criteria were developed before the candidates’ application materials were distributed. Further, the criteria developed for the evaluation of candidates are all rational and sensible criteria that bear directly upon the nature of the position under consideration and the needs of the CCGES at that particular time. There is no evidence before me that would suggest that these criteria were developed as a pretext for age discrimination or otherwise were discriminatory against the applicant because of her age.

72The applicant also takes issue with the fact that five additional criteria were added at the second committee meeting, after the committee members had reviewed the candidates’ materials. The issue before me is not whether doing so represents good practice for a hiring committee, about which I express no opinion. The sole issue for me is whether there is evidence that these five criteria were added as a pretext for age discrimination against the applicant or were otherwise discriminatory against her on the basis of age. There is simply no evidence to support such a conclusion. Indeed, as acknowledged by the applicant on cross-examination, at least four of the five criteria favoured her own candidacy. (While the applicant suggested that “level of seniority” could mean that candidates with less seniority were being favoured, I do not regard this as being a serious suggestion nor do I find it consistent with the normal consideration of level of seniority as favouring those with higher seniority).

73The applicant takes issue with the fact that as compared to the selected candidates, she is the only one who is fluent in French as well as in English and German. In this regard, I note that the advertisement for the Co-Director position states that “a working knowledge of French is an advantage” as opposed to stating that this is a requirement for the position. The applicant also takes issue with the fact that knowledge of French was down-graded in the criteria for evaluation developed by the committee, to whether the candidate had “at minimum a reading knowledge of French”. As already stated above, these criteria were developed prior to review of the candidates’ materials and the evidence does not support that the specific criterion relating to knowledge of French was inserted in order specifically to exclude the applicant or as a pretext for age discrimination. As I understand the evidence, the primary reason for including this criterion was due to the Centre’s relationship with its sister Centre at l’Université de Montréal. There is no doubt that a number of the candidates selected for the long short-list did not appear from their materials to have knowledge of French. However, based upon the evidence before me, this was more of a “nice to have” criterion which did not outweigh the other significant evaluation criteria that were directly related to the core role and responsibilities of the Co-Director position.

74It was noted by the applicant that the job advertisement speaks to the successful candidate being appointed to a position in either the Department of Languages, Literature and Linguistics or in the Department of Political Science, whereas Candidate B’s home position was in the Department of History of Science and Candidate D’s home position was in the Department of History. The evidence before me indicates that the hiring committee was hoping for some flexibility from the respondent University administration in terms of placing the successful candidate in a particular department, and as a result was not prepared to rule out candidates from other disciplines if they otherwise seemed promising. In my view, this is a rational and credible explanation for selecting these two candidates for the long short-list despite the specific departments in which they were situated at their home universities, given the other qualifications that they exhibited. I do not find that this is an indication of age discrimination as against the applicant.

75The applicant also notes that the job advertisement states that priority would be given to Canadian citizens or permanent residents, and as compared to the selected candidates, she was the only Canadian citizen or permanent resident. It was explained to me by the respondent witnesses that the hiring committee had the ability to consider all candidates concurrently in evaluating their qualifications, without first sorting the pool of candidates into those who were Canadian citizens or permanent residents and those who were not. This is supported by the minutes of the committee meeting held on November 22, 2006 at which this specific issue was addressed. The evidence does not support that the committee’s decision to consider all candidates concurrently was a pretext for age discrimination against the applicant or otherwise discriminatory against her because of age.

76The applicant also referred in her evidence to certain comments made by two of the respondent witnesses in witness statements provided to the Commission as part of its investigation into her complaint, which she characterized as providing evidence of age discrimination. The first comments were made by Dr. Dewitt. As part of the Response filed with the Commission, the statement was made that, after interviewing the three short-listed candidates, the hiring committee determined that none of them would be appointed to the Co-Director position. It was then stated that the respondent University determined that a suitable new candidate might emerge in the next few years, either internally – as a result of “recent fresh appointments” of faculty members who participate in the Centre’s work – or externally in the broader academic community. As a result, as an interim measure, the decision was taken to create the “True Visitor” position mentioned above.

77In his interview by the Commission investigator, Dr. Dewitt was asked about this statement and whether it referred to the age of these recent appointments. In response, Dr. Dewitt noted that the CCGES had gone through two searches for a suitable candidate – the first one being an internal search that resulted in a strong candidate being offered the appointment but who accepted another appointment instead, and the second being the competition at issue in this proceeding in which external candidates could be considered. Neither of these two searches was ultimately successful in securing a suitable candidate to fill the Co-Director position. He states that this led to the decision to create the “True Visitor” position. In this context, Dr. Dewitt states:

In the previous years, there were a number of appointments made with individuals not yet at the level of associate professor but one could imagine that if they went through a successful process to get tenure and promotion, they might be able to apply a few years down the road for the directorship. Therefore, knowing that we have a good cohort of young colleagues from a range of disciplines, who self identified with the center, within a number of years having achieved a promotion to tenure, one or more of them might be an appropriate individual as director, whenever the opportunity arose. The question that was considered then was around an interim strategy . . .

78What Dr. Dewitt is saying in his interview statement is that, as two competitions had not yet yielded a successful candidate, the Centre needed an interim strategy in order to bridge the time before a potential successful candidate might emerge. He is saying that a potential successful candidate might emerge at some point in the future as a result of the presence of a “good cohort of young colleagues” who were currently involved in the Centre’s work but who had not yet attained the status of associate professor required for consideration for the Co-Director position. This clearly is not a statement about the competition at issue in this proceeding, or that age was a consideration or factor in the hiring committee’s decisions. Rather, it is a statement that, while the competitions had been unsuccessful to date, there might be some point in the future when the Centre could successfully fill the position. This possibility existed because of the presence of this cohort of young colleagues involved in the Centre’s work, who might at some later point (and when they were no longer so young) be eligible for consideration if they obtained appointment as an associate professor. I do not see anything discriminatory in this statement.

79The next statement was made by Mr. Kleiner with reference to Candidate F, to whom he referred as a “young, dynamic scholar”. I heard similar evidence from a number of respondent witnesses in relation to Candidate F and Candidate B, who were referred to as being “young” scholars. In the evidence, this reference was explained as being to what these candidates had achieved at a relatively early stage of their academic careers, which was described as being less than 20 years as a scholar. Based upon the evidence before me, I do not find that a candidate’s “youth” in and of itself was a factor considered by the committee. Rather, in the context of assessing the body of these candidates’ scholarship and achievements, it was notable that they had achieved a great deal in a relatively short span of time. In my view, to comment upon a candidate’s achievements in this context does not amount to age discrimination.

80More significantly, however, the issue before me in this proceeding is whether the applicant’s age was a factor in the committee’s decision not to select her for the long short-list. Given the other significant ways in which the applicant failed to satisfy the evaluation criteria as determined by the committee for the Co-Director position, which I have found to be credible, rational and non-discriminatory, I find that the evidence does not support such a finding.

81The applicant in her final argument asked me to draw an adverse inference from the fact that there is evidence before me showing that two members of the committee made notes regarding the candidates who applied for the Co-Director position, and in one case no notes appear beside the applicant’s name and in the other there are only minimal notes. The applicant submits that this demonstrates that her application was not given serious consideration, which she attributes to her age. While these notes may indicate that the applicant’s candidacy for this position was not given serious consideration, at least by these two members, it does not serve to establish that this was due to her age. The evidence before me, which is uncontradicted, is that there was discussion about the applicant at the committee meeting on December 6, 2006 and concerns were raised by various committee members about the applicant’s candidacy which led to the decision not to select her for the long short-list for all of the reasons I have already canvassed above. I do not find that the absence of notes regarding the applicant by these two committee members provides support for the applicant’s allegation of age discrimination.

82The applicant also asked that I draw an adverse inference from the fact that, when the respondent was asked to shorten its witness list, it only called one tenured faculty member to testify. The applicant submits that other tenured faculty members who were on the committee and who could therefore have testified freely without fear of retribution were not called as witnesses. No such adverse inference is supported on the evidence before me. All of the respondent witnesses testified that there was unanimity among the committee members in the decision not to select the applicant for the long short-list. There is no evidence to contradict this.

83The applicant referenced the Commission’s Policy on Age Discrimination, which states that eliminating an applicant because the applicant’s background is too diversified may also be an indication of age discrimination. In this context, the applicant relies upon the fact that the respondent witnesses discounted her experience as Chair of the Political Science Department at Glendon College when considering her administrative experience, and also discounted her non-academic fund-raising experience. I appreciate that in some contexts, regarding an applicant’s background as being too diversified may be an indicator of age discrimination. However, that is not in my view what occurred in this case. With regard to the applicant’s experience in academic administrative positions, the respondent witnesses indicated that they were aware of this experience, but were looking for administrative experience in the context of a research centre. These witnesses explained the distinction between the type of skills required for an academic administrative position and what was required to run a research centre. All of the selected candidates, with the exception of Candidate B, had experience in this latter kind of administration. It is also clear to me that there is a difference between fund-raising for a political party or in a non-academic setting, and the type of fund-raising experience that the respondent was looking for in a Co-Director. All of the selected candidates had demonstrated success in being able to obtain significant academic funding.

84For all of the foregoing reasons, I find that the evidence does not support the applicant’s allegation that she experienced age discrimination in not being selected for the long short-list for the Co-Director position.

85Before leaving this issue, I do wish to address one final aspect of this matter raised by the respondent. The evidence indicates that the individual hired for the “True Visitor” position after the hiring committee was disbanded (Dr. Rupprecht) was 64 years of age at the time he was appointed. The respondent takes the position that this is an indication that it did not discriminate against the applicant because of her age, given that it was willing to hire someone who was approximately the same age as her. However, the evidence before me indicates that the True Visitor position into which Dr. Rupprecht was hired was different from the Co-Director position for which the applicant competed, in the sense that while Dr. Rupprecht was to be responsible for the administrative management of the Centre, he would not have responsibility for academic matters. In addition, in my view, the subsequent appointment of Dr. Rupprecht to the True Visitor position does not address the question before me as to whether the applicant’s age was a factor in the decision not to select her for the long short-list, which involves an analysis of why she was not selected as compared to the candidates who were selected (who did not include Dr. Rupprecht) and whether the evidence supports an inference that her age was a factor in this decision, which I have found it does not.

Allegation re reprisal

86In December 2005, the Ontario Legislature enacted legislation to amend the definition of “age” in the Code so that it no longer includes an upper limit of 65 years of age. However, this amendment was not made effective until December 12, 2006. The effect of this amendment was to allow persons who otherwise would have been required to retire when they turned 65 to either continue working or complain of age discrimination if they were forced to retire because of their age on or after December 12, 2006, subject to an employer’s ability to establish the defence that this was a reasonable and bona fide requirement.

87Even though this change did not take effect until December 12, 2006, some universities apparently began applying the legislation retrospectively to allow professors to continue in their positions beyond the age of 65. However, it appears that the respondent University established a cut-off date of July 1, 2006, such that professors like the applicant who reached the age of 65 prior to that date were still required to retire.

88The applicant took a public stand in opposition to this decision by the respondent University. She appeared in an article in the Toronto Star on August 17, 2006 expressing her outrage at the respondent’s position, and she also distributed an open letter to faculty of the respondent University on January 19, 2007 expressing her strong disagreement with the respondent’s actions.

89In the context of this proceeding, the applicant alleges that she experienced reprisal contrary to the Code on the basis that she believes that her public stand in opposition to the respondent’s position on mandatory retirement was a factor in why she was not selected for the long short-list for the Co-Director position.

90In order to prove reprisal, an applicant must establish that the respondent engaged in an action or threat which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the applicant must establish that the action was taken with an intent to punish or retaliate. See Noble v. York University, 2010 HRTO 878 at para. 31. While an intention to retaliate may be inferred on the basis of circumstantial evidence, there nonetheless must be some basis in the evidence to support a finding that the person responsible for the action taken against an applicant which is alleged to be reprisal was at the very least aware of the steps taken by the applicant to claim and enforce her Code rights.

91In the instant case, there is no evidence before me to indicate that any member of the hiring committee was actually aware of the applicant’s stand in opposition to the respondent’s position on mandatory retirement for persons turning 65 prior to July 1, 2006. The respondent witnesses who appeared before me stated that they had no such knowledge. The applicant’s evidence is that notice of a meeting to discuss this issue was given to members of the York University Faculty Association (“YUFA”) via a listserve and that some members of the hiring committee were YUFA members, but she was unable to provide any direct evidence either that any of them had actually received the notice, or read it, or attended the meeting, or understood the applicant’s role in this issue.

92Even if I were prepared to infer that at least one or more members of the hiring committee may have been aware of the applicant’s stand on this issue, the applicant still would need to establish on the evidence that her stand on this issue was a factor in the hiring committee’s decision not to select her for the long short-list. For all of the reasons already articulated above, I have found that there were credible, rational and non-discriminatory reasons for not selecting the applicant, and I further find that the evidence does not support that her stand in relation to the mandatory retirement issue was a factor in the committee’s decision.

93Counsel for the respondent argued before me that, in any event, even if what the applicant alleged were true, it still would not constitute reprisal within the meaning of s. 8 of the Code. Section 8, in its relevant part, confirms a person’s “right to claim and enforce his or her rights under this Act”. Counsel noted, as was acknowledged by the applicant on cross-examination, that the stand she was taking against the respondent University on the mandatory retirement issue did not arise from a “right” under the Code, as the amendment to the definition of “age” did not come into effect until December 12, 2006: after the applicant already had turned 65 and already had been required to retire. Given the finding that I already have made above, it is not necessary for me to resolve this issue.

Allegation re failure to investigate

94The applicant alleges that the respondent University failed to take appropriate steps to investigate or otherwise respond to her allegations of age discrimination. The respondent objects to the applicant raising this allegation on the basis that it is beyond the scope of the subject matter of her complaint. I disagree. On the face of her complaint, at point 8, the applicant stated that she had made a complaint to the President of the respondent University and to the Chair of the hiring committee, and “both brushed aside my complaint without further investigation.” If there was any doubt as to whether this was an allegation being raised by the applicant of a violation of the Code, the applicant then indicated in her statement of additional facts and requested remedy that she was seeking a specific remedy arising out an alleged “failure to investigate.” Accordingly, I find that this allegation is within the proper scope of the applicant’s complaint, and that the respondent was on notice of this allegation and had an opportunity to respond.

95However, that does not mean that the applicant has brought forward sufficient evidence in support of this allegation. The applicant first relies upon an email she sent to the President of the respondent University after being informed that she was not on the short list for the Co-Director position. This email is dated January 19, 2007 and states, in its entirety:

I obviously cannot do anything until I see the short list. But it would be kind of fun to be the first in the province to launch an age discrimination complaint under the new legislation.

96The President responded the same day with a brief email stating “the decision would never be on the basis of age.”

97In my view, it is evident from the applicant’s email that she was not actually making a complaint of age discrimination at that time. She clearly stated that she could not do anything until she saw the short list, presumably so that she could compare her age and qualifications with the selected candidates. All the applicant actually said in this email was that she believed it would be “fun” to launch an age discrimination complaint under the new legislation, as opposed to saying that she was actually making such a complaint to the President via that email.

98The applicant next refers to a phone call she made on February 13, 2007 to Dr. Dewitt. She states in her evidence that she made this phone call after having been advised to do so by the Commission. There is very little evidence before me from the applicant as to what was said during this phone call. In her evidence in chief, the applicant testified that she told Dr. Dewitt that she was in the process of filing a complaint with the Commission. On cross-examination, she testified that Dr. Dewitt told her “next to nothing” and just told her that they had selected more qualified candidates. She denies that Dr. Dewitt informed her of any other avenues through which she could pursue her complaint. In the interview statement that she gave to the Commission, when asked to describe her conversation with Dr. Dewitt on February 13, 2007, the applicant responded that she did not remember very much at all, did not remember the details, and did not recall anything further than what was stated in her complaint (which was just the general allegation that her complaint was “brushed aside”).

99Dr. Dewitt only testified to this phone call on cross-examination. Dr. Dewitt’s evidence is that the applicant never asked him to pursue her allegation of age discrimination, and if she had, he would have said that she had the opportunity to pursue her complaint through other avenues at the University. Dr. Dewitt did not agree that it was his responsibility as chair of the hiring committee to investigate the applicant’s allegations of discrimination. Dr. Dewitt’s evidence is that he informed the applicant that internal procedures existed to deal with her allegations and that she should pursue them by speaking to her supervisor, or by going to the University’s Human Rights Office or Ombudsman. He states that he informed the applicant that his office was the wrong place to go, as he has nothing to do with addressing complaints of discrimination.

100As noted above, the applicant disputes that Dr. Dewitt informed her that she needed to pursue other avenues at the University. In her final argument, the applicant submitted that Dr. Dewitt’s evidence on cross-examination regarding this conversation was different than what he had stated in his witness statement given to the Commission. This was never put to Dr. Dewitt on cross-examination, and so he never had an opportunity to respond to this challenge to his credibility. In any event, having reviewed Dr. Dewitt’s witness statement (which is in evidence before me), Dr. Dewitt did state that he had informed the applicant that there were avenues available to her within the University (see his answer to Q. 24 at p. 526).

101At the end of the day, whether or not Dr. Dewitt informed the applicant about other avenues within the University, I am left with no actual evidence that the applicant made a complaint to Dr. Dewitt that she had experienced age discrimination in not being selected for the Co-Director position or that she asked him to take any steps in response to such complaint. The highest the evidence goes is that the applicant informed Dr. Dewitt that she was in the process of filing a complaint with the Commission. I have no evidence to contradict Dr. Dewitt’s testimony that the applicant never asked him to pursue her allegations. As a result, I find that I do not have a sufficient basis in the evidence to support a finding that the applicant either made a complaint of age discrimination to Dr. Dewitt (as opposed to informing him that she was filing such a complaint with the Commission) or asked him to take any steps in response to her allegations.

102Further, I am cognizant that the circumstances giving rise to this proceeding took place in the context of a university with mechanisms available to deal with such matters. The respondent University does have a Human Rights Office and an Ombudsman, either of which could have been accessed by the applicant if it truly was her intention to raise an internal complaint so as to impose a legal obligation upon the respondent under the Code to take reasonable steps to respond. The applicant also could have sought advice from YUFA if she was unclear regarding the appropriate steps to be taken to raise such an allegation internally at the University. In my view, merely making a telephone call to the chair of the hiring committee and raising a general allegation of age discrimination is not a sufficient basis in the circumstances of this case upon which to impose a legal obligation on the respondent to respond, failing which it could be found in violation of the Code and liable for damages. The intent of imposing such a legal obligation on a respondent is to require a respondent to take early and active steps to address discrimination or harassment when such issues are brought to its attention. The intent is not, in my view, to set a trap for the unwary respondent where internal avenues exist to address such matters but are not accessed by an applicant, and where no specific support for an allegation of discrimination is provided or request for action is made.

103Accordingly, I find that the applicant has failed to establish on balance of probabilities that she made a complaint of age discrimination to the respondent University on the occasions alleged sufficient to impose a legal obligation on the respondent under the Code to respond.

104For all of the foregoing reasons, the Application is dismissed.

Dated at Toronto, this 3rd day of November, 2011.

”signed by”______________

Mark Hart Vice-chair