Gurofsky v. Toronto District School Board, 2011 HRTO 2274

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Helen Gurofsky

Applicant

-and-

Toronto District School Board

Respondent

DECISION

Adjudicator: Eric Whist

Date: December 20, 2011

Citation: 2011 HRTO 2274

Indexed as: Gurofsky v. Toronto District School Board

APPEARANCES

Helen Gurofsky, Applicant ) Farah Malik, Counsel

Toronto District School Board, Respondent ) Glorie Alfred, Counsel

1On October 23, 2008, the applicant filed Application 2008-00620-I under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). This Application alleges discrimination in employment on the basis of age in relation to the applicant’s unsuccessful efforts to be hired as a permanent contract teacher in three of the respondent’s schools. The Application alleges that:

1. Another teacher, aged 35, was hired for a permanent contract teaching position at the City Adult Learning Centre (“CALC”) in 2007, notwithstanding that that this teacher attempted to assault a student, and the applicant, who was on staff at CALC at the time, had more teaching experience.

2. The applicant was interviewed for a permanent contract teaching position at Martingrove Collegiate Institute (“Martingrove”) in September 2007. She alleges that she was unsuccessful because she was subject to an unsatisfactory recommendation from a vice-principal of CALC. The applicant alleges that the vice-principal’s recommendation was based on a perception that she did not fit into the culture of CALC because of her age rather than any objective assessment of her performance as a teacher.

3. The applicant was interviewed for a part time permanent contract teaching position at Jarvis Collegiate Institute (“Jarvis”) in October 2007 only to learn that the successful candidate for the position was much younger and had less teaching experience than the applicant.

2On June 10, 2010, the applicant filed Application 2010-05844-I alleging discrimination in employment on the basis of age when she was unsuccessful in two further job competitions with the respondent. The Application alleges that:

1. The applicant was interviewed for a permanent contract teaching position at West Humber Collegiate Institute (“West Humber”) in September 2009 only to learn that the successful candidate for the position was much younger and less experienced than the applicant.

2. The applicant was interviewed for a permanent contract teaching position at Victoria Park Collegiate Institute (“Victoria Park”) in October 2009 only to learn that the successful candidate for the position was much younger and less experienced than the applicant.

3In an Interim Decision dated August 10, 2010, 2010 HRTO 1657, the Tribunal determined that the two Applications would be heard together.

4A hearing was held over the course of six days. I heard from 10 witnesses (two called by the applicant, eight by the respondent) and had substantive documentary evidence adduced by both parties. This included documentation regarding the qualifications and years of teaching experience for the applicant and the successful job candidates, the interview questions and recorded answers for the applicant and the successful candidates for the job competitions at Jarvis, West Humber and Victoria Park, and as well as documentation of related reference checks. I also had assorted notes made by the applicant in 2007, 2008 and 2009 while she was seeking permanent contract teaching positions. The parties provided written submissions and case law. The hearing was bifurcated and so I heard no evidence or submissions on the issue of remedy.

DECISION

5The Applications are dismissed in their entireties. I find that age was not a factor in the respondent’s decisions not to hire the applicant for any of the permanent contract teaching positions the applicant interviewed for, nor in the decision to award a permanent contract teaching position at CALC to another teacher.

6It is clear that the applicant was significantly older than the candidates who were chosen for the permanent contract teaching positions in question and that she had decidedly more years of teaching experience. However, I am satisfied that the testimony of the respondent’s witnesses, along with the documentary evidence before me that relates to the job competitions at Jarvis, West Humber and Victoria Park, establishes that the applicant was outperformed at each of the interviews and that this was the determinative factor in the decisions to choose other candidates. I am satisfied that reference checks made of the applicant and successful candidates in these job competitions support the respondent’s stated reasons for hiring other candidates.

7I find that the reference given for the applicant by a vice principal from CALC in relation to the job competition at Martingrove was based on an assessment of her teaching skills that was not tainted by considerations of her age nor was the subsequent decision not to hire her at Martingrove. I find that the respondent has provided a credible non-discriminatory reason for why another teacher was chosen for a permanent contract teaching position at CALC.

BACKGROUND

8At the time of the hearing the applicant was sixty-four years old. The applicant graduated with a Bachelor of Arts with Honours in 1970, a Masters of Social Work in 1975, and obtained her Bachelor of Education in 2001. The applicant’s “Certificate of Qualification” issued by the Ontario College of Teachers (“OCT”) in 2001 indicates that she is qualified to teach Intermediate and Senior Division English, Intermediate and Senior Division Individual and Society subjects (which includes law and family studies), as well as English as a Second Language (“ESL”) and Guidance. The applicant has not only a basic qualification in ESL but a further specialist qualification in the subject.

9The applicant has been an occasional teacher with the respondent since 2001. Occasional teachers are hired for short-term and long-term teaching assignments when teaching assignments become available due to the absence of a permanent contract teacher. The applicant has generally been hired for long term occassional teaching assignments, and as such is referred to as a Long Term Occasional (“LTO”).

10As an LTO the applicant has taught in, it appears, ten different schools with the respondent. She has taught from 2001 to the present and across a broad range of subjects and grade levels. She has taught Grade 9, 10, 11 and 12 English, Grade 10, 11 and 12 History, Grade 11 Law, and Grade 10 and 12 Family Studies. She has taught ESL classes “A”. “B”, C”, “D” and “E” (letter categories refer to participants’ level of English competency) at a variety of grade levels, and Guidance (it was not clear at which grade level). Prior to being a teacher, the applicant worked for 25 years in child protection, including 15 years with a children’s aid society. The applicant is of the view that her social work career, which involved working with at risk children and families and in which the applicant carried out policy and therapeutic functions, was important and constitutes relevant experience that should have been considered when she was applying for permanent contract teaching positions with the respondent.

11At the hearing I heard testimony from Carole Atkins, a witness called by the applicant in order to give evidence of the applicant’s teaching skills. Ms. Atkins is a special needs assistant at Danforth Collegiate Institute (“Danforth”) who testified that she worked with the applicant during the 2008-2009 school year and witnessed the applicant in the classroom. She testified that the applicant worked hard to engage students, was creative in her assignments, and tried very hard to manage the behavioural challenges of her students including three with autism. She further noted that the applicant worked with at risk students outside of the classroom.

12At the hearing I heard testimony from the applicant, Yvonne Sheehan, Seniority Analyst at the Secondary Teaching Office, and Donna Fanjoy, a Recruitment Administrator in the Secondary Teaching Office, about how occasional teachers may compete for permanent contract positions with the respondent. I heard oral evidence and had before me documentary evidence about how the respondent determines whether teachers are qualified for specific job competitions. The evidence before me was that the applicant and all of the successful candidates had the necessary teaching qualifications to teach the courses they were being considered for.

13Occasional teachers who wish to be considered for a permanent contract teaching position must be on the respondent’s Eligible to Hire (“ETH”) list. In order to be placed on the ETH list teachers must be interviewed and selected on a yearly basis by a TDSB committee. The selection process generally takes place in May of each year. The number of teachers on the ETH list varies from year to year. It appears in 2008-2009 there were 550 teachers on the list, and in 2009-2019 there were 625. In 2008-2009 approximately 4300 persons had applied to be on the ETH list.

14Vacancies for permanent contract teaching positions are not posted so persons on the ETH list cannot formally apply for these teaching positions. Rather, principals who have identified vacancies in their schools can review the ETH list to identify candidates they believe are qualified to meet their school’s needs. Principals then shortlist the persons on the ETH list they wish to interview and the decision to hire is made at the individual school level and ultimately by the school principal. I also heard testimony that a principal has the discretion to choose to hire a single candidate without a competition as long as that person is on the ETH list.

15If an occasional teacher who is on the ETH list accepts a long term occasional teaching assignment, his or her name is removed from the ETH list. This meant that every time the applicant was in an LTO position she was not eligible to be considered for a permanent contract position. According to the applicant’s Reply to her 2008 Application she was on the ETH list for 2001-2002, her first year of teaching with the respondent, and for the years 2007-2008 and 2008-2009. She was not on the list for the years 2002-2003, 2003-2004, 2004-2005, 2005-2006, and 2006-2007 owing to her LTO assignments.

16The applicant does not allege that the process of being placed on the ETH list is discriminatory. Her Applications focus on the hiring decisions made at five specific schools in 2007 and 2009. The applicant does argue that it is significant that the average age of teachers hired by the respondent for permanent contract teaching positions in both 2007-2008 and 2009-2010 was 31 years. The applicant submits that this evidence suggests a preference for or an institutional bias towards younger teachers that directly affected the applicant and her efforts to gain a permanent teaching position with the respondent.

RELEVANT EVIDENCE

City Adult Learning Centre

17The applicant was employed at the City Adult Learning Centre (CALC) as an LTO during the year 2006-2007. She taught English and Law. The applicant testified that in June 2007 a fellow LTO teacher at CALC, Thomas Nevins, was chosen for a permanent contract teaching position to teach history and guidance beginning in 2007-2008. There was no formal competition for this position. The applicant alleges that she was more experienced than Mr. Nevins and that in November 2006 Mr. Nevins was involved in an incident in which he had to be restrained from assaulting a student which should have made him an unattractive candidate for a permanent contract position. Mr. Nevins was 35 years old at the time and the applicant is of the view that her age was a factor in the respondent’s decision to hire Mr. Nevins.

18At the hearing I heard testimony from the applicant and Richard Bilkszto, the former vice–principal at CALC (and now principal) about events surrounding the applicant’s teaching at CALC and the decision to hire Mr. Nevins. This included testimony regarding Mr. Bilkszto’s assessment of the applicant’s teaching. Mr. Bilkszto’s assessment of the applicant’s teaching is significant not only because the applicant alleges this negative assessment was a factor in Mr. Nevins, rather than the applicant, being hired at CALC, but because Mr. Bilkszto is the CALC Vice-Principal who later provided a reference for the applicant when she was being considered for a teaching position at Martingrove. It is undisputed that Mr. Bilkszto’s less than positive reference contributed to the decision made by the principal of Martingrove not to hire the applicant.

19CALC is, in part, a school for students who are at risk and/or who have been unsuccessful at other schools. Mr. Bilkszto testified that he had been involved in the hiring of the applicant as an LTO for 2006-2007 at CALC and in that capacity he had spoken to one of the applicant’s references, a principal at a school where the applicant had previously taught. Mr. Bilkszto testified that this reference was not particularly positive; he characterized it as alright but not great. He testified he was told by the applicant’s reference that the applicant was somewhat disorganized.

20The applicant testified that while at CALC she asked Mr. Bilkszto to evaluate her teaching in order to assist her in her efforts to gain a permanent contract position, and a January 27, 2007 letter from the applicant to Mr. Bilkszto requesting such an evaluation was before me. According to the applicant, Mr. Bilkszto visited her classroom only once and was there for only five minutes.

21Mr. Bilkszto testified that he did not recall that he had been asked to formally evaluate the applicant noting that he was not obliged to evaluate an LTO, but stated that he had visited the applicant on one occasion while she was teaching. He testified that he had intended to be in the applicant’s classroom for 30 minutes but was called away early and was able to stay only 15 minutes. Mr. Bilkszto testified that he was, in his view, able to form an opinion of the applicant’s work based on this classroom visit as well as a later instance when he listened to the applicant teaching from the hallway (during which he felt the applicant was successfully managing her class), and from observations he made of the applicant outside of the classroom.

22He testified that he also received unsolicited comments from students about the applicant’s classroom practices. He testified that he had been told by students taught by the applicant that they felt the applicant believed she knew everything, and that she did not want to listen to their opinion. These were indications, in Mr. Bilkszto’s opinion, that the applicant’s teaching style was teacher-centred rather than student-centred. Mr. Bilkszto also testified that students had told him that the applicant was disorganized and that her classes were boring. He testified that he did not hear any positive feedback from students about the applicant. He testified that he did not see the applicant talk to students outside the classroom.

23Mr. Bilkszto testified that he believed the applicant to be disorganized based on seeing her running around before classes preparing and from his observations from when he was in the applicant’s class. He testified that he did not see the applicant engaging with other staff or students outside of the classroom and he did not believe she was passionate about her teaching.

24Mr. Bilkszto testified that the applicant did not engage with her fellow staff, that she ate lunch alone, that she never came to him to discuss any aspect of her experience at CALC, and that he had no recollection of her involvement in extra curricular activities. Mr. Bilkszto testified that by the end of the 2006-2007 school year he had formed an impression that the applicant was a mediocre teacher who did not suitably engage with students. Mr. Bilkszto testified that engaging with students was an important value at CALC.

25Mr. Bilkszto denied any discriminatory treatment of the applicant or that his assessments were tainted by considerations of the applicant’s age, and referred to the fact that he had been instrumental in hiring the applicant at CALC. He further noted that another staff person at CALC named David Jones who was also an older teacher (over fifty years of age), and that Mr. Jones fit in at CALC because he engaged students and staff and was well liked. Mr. Bilkszto testified that he interviewed and supported Mr. Jones’ promotion at CALC.

26The applicant disputed Mr. Bilkszto’s assessment of her skills, suggesting, in part, that Mr. Bilkszto could not have carried out a meaningful evaluation of her teaching based on the time he spent in her classroom and that he only heard the views of four or five students. The applicant testified that she sat alone at lunch in order to be somewhere with natural light and that she had endeavoured to participate in the limited extra curricular activities available at the school.

27The applicant and Mr. Bilkszto met on June 25, 2007 at the applicant’s request after the applicant learned that Mr. Nevins was being hired as a permanent contract position. The applicant wished to discuss why she was not being asked to return to teach at CALC for the 2007-2008 academic year. Mr. Bilkszto testified that at this meeting he explicitly told the applicant that she was disorganized and did not successfully interact with students and staff. The applicant disclosed her handwritten notes dated June 25, 2007 that summarize her understanding of Mr. Bilkszto’s views of her skills. She records Mr. Bilkszto as stating she was not a good fit at CALC. The applicant testified that she did not raise the issue of age at this meeting with Mr. Bilkszto.

28Mr. Bilkszto testified that in September 2007 the applicant asked him for a reference as she was being interviewed for a permanent contract teaching position at Martingrove. Mr. Bilkszto stated he was surprised by this request given that he had previously shared with her his assessment of her teaching and her shortcomings. He testified that he told the applicant that he would answer questions put to him during a reference check truthfully. The applicant recalls that Mr. Bilkszto telling her not to worry about his acting as her reference.

29Mr. Nevins was an LTO who taught history, law and a police foundations course at CALC in 2006-2007. He was 35 years old and had received his certification to teach from OCT in 2005. The applicant testified that in November 2006 Mr. Nevins attempted to physically assault a student at CALC and that as a result of this incident Mr. Nevins was suspended for five days. The applicant testified that she witnessed the incident, that she saw Mr. Nevins approaching a student while angry and that another teacher intervened to prevent Mr. Nevins taking any further actions. Mr. Bilkszto testified that there was an incident in which Mr. Nevins knocked over a chair and swore at a student. While the incident was inappropriate, it did not constitute assault or attempted assault. He testified that the matter was investigated by the principal, Tasneem Khan, and that Mr. Nevins was not disciplined although he did not report to work for five days after the incident.

30Mr. Bilkszto testified that it was Ms. Khan, the then CALC principal, who made the decision to hire Mr. Nevins as a permanent contract teacher at CALC beginning in 2007-2008. He testified that he offered his opinion to Ms. Khan that both the applicant and Mr. Nevins were unsuitable candidates for the permanent contract position. Mr. Bilkszto testified that he did not think Mr. Nevins was a good teacher: that he was somewhat of a maverick and a bit cocky.

31Mr. Bilkszto testified that he believed his views of the applicant did contribute to Ms. Khan’s decision not to consider the applicant for the permanent contract position. He testified that a further concern of Ms. Khan’s was that the applicant had written a letter to Ms. Khan in June 2007 about the possibility of further employment at CALC in which the applicant described herself “meowing” –making deliberate cat sounds- as a strategy to assist a student who was having behavioural issues. Mr. Bilkszto testified that Ms. Khan thought this to be somewhat bizarre and inappropriate and not something one would brag about in an application-like letter. Mr. Bilkszto testified that this letter (which was before me) may have contributed to Ms. Khan’s decision not to consider the applicant as a candidate for the available permanent contract position, in addition to his own assessment of the applicant. Mr. Bilkszto testified that he understood that Ms. Khan wanted to hire Mr. Nevins for the available permanent contract position and that a reason for this was because Mr. Nevins was popular with students and a student petition supporting the hiring of Mr. Nevins had been provided to Ms. Khan.

Martingrove Collegiate Institiute

32I heard testimony from the applicant and Terry Baytor, who was principal at Martingrove in 2007 when the applicant was considered for a permanent contract teaching position. Mr. Baytor testified that he needed to find a candidate on short notice and identified eight or nine possible candidates from the ETH list. He testified that he interviewed three: one by telephone and two in person: the applicant and the successful candidate, Alison Chung. He testified that normally he would have relied on an interview panel but because one of the interviews had to be conducted by telephone he alone interviewed the candidates.

33The applicant testified that the interview was an informal one, involving just Mr. Baytor. She testified that after the interview Mr. Baytor told her that she could do the job and that he invited her to visit the school and meet staff. The applicant testified that she believed she was the successful candidate.

34Mr. Baytor testified that while he was still considering the applicant he was of the view that the applicant had an average interview, that she did not have a dynamic presence, and that she spoke in a monotone and did not express excitement for the position. He testified that there was nothing outstanding in the applicant’s interview that would suggest that she was a strong candidate. Mr. Baytor testified that after the interview he did invite the applicant to observe the class the successful candidate would teach as he was still actively considering the applicant as a potential candidate.

35Mr. Baytor testified that the invitation to the applicant to observe a class was made prior to his interview of Ms. Chung. He testified that Ms. Chung had a better interview than the applicant did. Ms. Chung was 23 years old and had graduated from teachers college in June 2007.

36Mr. Baytor testified that after the interviews he checked references. The applicant had identified Mr. Bilkszto as a reference. Mr Baytor testified that Mr. Bilkszto raised concerns (“red flags”) about the applicant and that Mr Baytor was led to believe that the applicant would be “high maintenance”. Mr. Baytor testified that he was not impressed with the reference. He testified that the reference did not suggest that the applicant would be an asset and that he did not get answers to his questions that would lead him to hire the applicant. Mr. Baytor testified that he made a second reference check for the applicant with a former principal of the applicant’s, which was more positive but was very general in nature.

37Mr. Baytor testified that he made two reference checks for Ms. Chung and described them as outstanding. He testified that the first reference, an associate teacher, had identified Ms. Chung as the best student teacher he had ever had. The second reference, a principal Mr. Baytor knew, had interviewed Ms. Chung for a position at his school and had stated that Ms. Chung was terrific and that he would have hired her if he could have. After the reference checks Mr. Baytor concluded that the applicant was not his preferred candidate because of her less positive references and the fact that the other candidate’s references had been so outstanding and because she had a better interview.

38Mr. Bilkszto testified that he did not recall the specifics of what he told Mr. Baytor during the reference check but did recall that he said that the applicant was a mediocre teacher, and that his general comments about the applicant were neither particularly negative nor glowing.

39After the competition had concluded Mr. Baytor provided a debriefing for the applicant. The applicant testified that she was told by Mr. Baytor that he was impressed with the fact that the applicant had changed careers and that she should be careful as to whom she chose to act as a reference. Mr. Baytor recalls having told the applicant that she should present her personality more forcefully at an interview.

40Mr. Baytor stated that it is his practice to destroy interview notes a year after a competition is held which is why the respondent had not adduced any documents related to his interviews or his reference checks.

Jarvis Collegiate Institute

41I heard testimony from the applicant and Andrew Gold, the principal of Jarvis Collegiate in 2007 when the applicant was considered for a permanent contract teaching position at Jarvis. The position was to teach English and ESL on a part time basis. Mr. Gold testified that the teaching qualifications for the position were qualifications in English and ESL and that he looked for suitable candidates from the ETH list. He determined to interview two candidates, the applicant and Deborah Schwartz. Ms. Schwartz was 32 years of age and received her teacher’s certificate from OCT in July 2006. Mr. Gold and the curriculum leaders for ESL and English at Jarvis Collegiate interviewed the two candidates. I also had before me the interview questions and the responses of the two candidates as recorded by each of the interview panellists. Finally, I had copies of the notes made by Mr. Gold when he conducted his reference checks for the two candidates.

42The applicant testified that she felt she had a good interview and while on the witness stand she reviewed the interview panel’s written summaries of her answers that she felt were evidence of her strong performance. Mr. Gold reviewed the six questions put to both candidates during their interviews and the answers that were recorded by the three interviewers. He testified that he preferred the winning candidate’s answers to all six questions, particularly her answers to three of the questions.

43Mr. Gold testified that Ms. Schwartz had a stronger interview than the applicant. In Mr. Gold’s view Ms. Schwartz communicated in a more concrete and specific manner. He testified that he found some of the applicant’s responses hard to follow, that some were so detailed that he had difficulty understanding her train of thought, that she did not explain how her experiences would benefit Jarvis. He testified that he and the other interview panel members were of the view that the applicant’s lack of clarity in communication would be an issue in the classroom, particularly given that she would be teaching ESL.

44Following the interviews, Mr. Gold checked references for both the applicant and Ms. Schwartz. He testified that both references for the winning candidate - supervisors from her teaching practicums - were positive. He testified that he contacted one reference for the applicant, a former principal who stated that while the applicant’s social work background was a positive and she had a good relationship with kids, the applicant was scattered in her approach to her duties and could go in too many directions at the same time.

45After the decision was made to hire Ms. Schwartz the applicant asked for feedback from Mr. Gold. She testified that Mr. Gold told her that the applicant’s answer to question #3 was the problem, but that her answer to a question on classroom management was brilliant and the best he had ever heard and that he had liked the fact the applicant had integrated questions 4 and 5. The applicant testified that Mr. Gold told her that if he had two jobs he would have hired both candidates. Mr. Gold testified that he did not recall this conversation but may have said something to that effect noting that the applicant did not have a bad interview but the winning candidate’s interview was stronger. He denied that he would have used the word “Brilliant”.

West Humber Collegiate Institute

46I heard testimony from the applicant and Naeem Siddiq, the principal of West Humber, and two vice-principals of the school, Isabel Lopez and Martha Koehn. Mr. Siddiq, Ms. Lopez and Ms. Koehn were involved in the interview and selection process that took place in September 2009 when the applicant was considered for a permanent contract teaching position at West Humber.

47There was some confusion as to the position the applicant competed for at West Humber. It appears it was to teach English and Guidance but to do so in the ESL department and with students who were all ESL learners. It appears that candidates were told prior to the interview that it was an ESL position and both Ms. Lopez and Ms. Koehn in their testimony described it as an ESL position. Mr. Siddiq testified that in the culture of the school it was seen as an ESL position but it more accurately should be categorized as an English position.

48Fourteen potential candidates were identified as qualified from the ETH list. Six candidates were interviewed. Ms. Koehn recused herself from interviewing the applicant because she had previously been a vice-principal at Danforth when the applicant was teaching there as an LTO.

49After the interview the panel’s preferred candidate withdrew before a formal employment offer could be made. The panel’s second choice, Gemsy Joseph, was then selected. Ms. Joseph was 26 years old and had obtained her Teaching Certificate from the OCT in March 2007. This was an Interim Certificate based on Ms Joseph having received her teachers training in another jurisdiction. Ms. Joseph was required to complete 194 days of successful teaching in Ontario before receiving her full certificate.

50The applicant testified that she believed she had a good interview, noting that she was able to share her social work experience, her experience in working with at risk children, and her interest in working in a multi-cultural school. She reviewed the five interview questions and testified that she felt she had fulsomely answered the questions asked.

51It was the testimony of Mr. Siddiq, Ms. Lopez and Ms. Koehn that the interview panel had agreed that two candidates were identifiably stronger than the others. They testified that the other candidates, including the applicant, were not ranked or ultimately considered. Mr. Siddiq testified that interviews are a means for candidates to demonstrate their interpersonal and communication skills, which in turn is a means to understand how they will perform in the classroom. He testified that the applicant did not demonstrate that she had the same skills as the two preferred candidates in working with at risk students and did not, in his view, appear approachable to students. Mr. Siddiq testified that the leading candidate was strong, that he had no weak answers, and that he believed this candidate would interact well with students, many who have behavioural issues.

52Mr. Siddiq testified that Ms. Joseph also had a strong interview with no weak answers. He testified that she provided specific examples about how she would work with students describing a range of proactive strategies. Mr. Siddiq testified that he believed that Ms. Joseph had better communication skills and appeared more confident than the applicant.

53Ms. Lopez testified that the applicant spoke in a monotone and was not very expressive as to what she could offer students. She testified that the applicant did not demonstrate the same desire or passion as the successful candidate. Ms. Lopez testified this was an important issue for her as she believed a candidate’s demeanour in an interview is an indicator as to how someone will perform as a teacher. She testified that the applicant did not demonstrate as ably as the two preferred candidates why she would be a good fit at West Humber.

54Ms. Koehn testified that while she did not interview the applicant she did interview the two candidates that she and the other panellists felt were strong candidates. She testified that the successful candidate demonstrated strong classroom skills, understanding of at risk students and was enthusiastic. She testified that after the interviews she communicated to the other panellists her views that there were two strong candidates and that the other panellists told her that the applicant’s interview had not gone well: that she did not emerge as a strong candidate. Ms. Koehn testified that she shared her views of the applicant based on having worked together at Danforth and that she believed the applicant had weak organizational skills, problems with evaluation and assessment, and weak classroom management skills. Ms. Koehn defended the fact that she shared her assessment of the applicant’s previous performance at Danforth stating that she had a professional responsibility to share her views when asked. Mr. Siddiq testified that he did hear from Ms Koehn as to her impressions of the applicant but once it was apparent that her views were not positive he did not need to hear more and the panel proceeded to consider its two top choices.

55Mr. Siddiq testified that he conducted the reference checks for Ms. Joseph and the applicant, stating that Ms. Joseph had strong references while the applicant’s was simply an all right reference.

Victoria Park Collegiate Institute

56I heard testimony from the applicant, Diana Panagiatopoulos, the principal of Victoria Park, and Tim Ward, a vice-principal at the school, as to what occurred in October 2009 when the applicant was considered for a part time permanent contract position at Victoria Park to teach English and Social Sciences (this position eventually became full time).

57Ms. Panagiatopoulos testified that a pool of 15-20 qualified candidates were identified from the ETH list with Ms. Panagiatopoulos then short listing four persons to interview. Ultimately, three candidates, including the applicant, were interviewed by Ms. Panagiatopoulos and Mr. Ward.

58The applicant thought she did well on the interview. At the hearing she reviewed the questions that the panellists asked her and the answers they recorded. She suggested some of her answers were taken out of context, that some of her answers were not accurately recorded and that she had, in fact, fully answered questions even though Ms. Panagiatopoulos and Mr. Ward’s interview forms do not record an answer for the applicant for question #6 and only a brief reply for question #4. Both Ms. Panagiatopoulos and Mr. Ward reviewed the answers provided by the applicant and the successful candidate, Alison Fisher, and explained why they found some of the applicant’s responses problematic and why they felt the successful candidate’s answers were stronger. Mr Ward testified that while the applicant showed enthusiasm she had difficulty staying on topic and some of her answers wandered. He testified that one answer was decidedly problematic and that the applicant did not answer one of the six questions.

59Following the interview Ms. Panagiatopoulos and Mr. Ward compared the answers of the candidates and concluded that they preferred Ms. Fisher’s answers to the majority of the questions at the interview. Ms. Fisher was 32 years old, had received her OCT certificate in July 2006, and had three years of teaching experience. They testified that they found Ms. Fisher to be more specific and more fulsome in her answers and that the applicant’s interview performance was less satisfactory in part because she provided a brief and off putting answer to one question and failed to answer a further question. Ms. Panagiatopoulos testified that she would have been prepared to accept the applicant while Mr. Ward was less satisfied, but that the issue was academic in that they felt they had an outstanding candidate in Ms Fisher.

60Mr. Ward testified that he would have checked the applicant’s references and recalls them as both being strong. Ms. Panagiatopoulos testified that she and Mr. Ward discussed the candidates after the reference checks and that Ms. Fisher’s references were very strong, that the applicant’s were alright, and that there was nothing in these reference checks to make them reconsider what they learned through the interview process.

ANALYSIS AND FINDINGS

Prima Facie Discrimination

61The applicant submits that she has established a prima facie case of discrimination in relation to the hiring processes at CALC, Jarvis, Martin Grove, West Humber, and Victoria Park given that she was qualified for the positions and the successful candidates at all five schools were decidedly younger than the applicant and had fewer years of teaching experience. These differences in age and teaching experience are not disputed and are summarized in the following chart:

Name

Age at Relevant Time

Teacher’s Certificate Issued

School

Date of Hiring Decision

Helen Gurofsky

64 (at date of hearing)

June 2001

Thomas Nevins

35

July 2005

CALC

June 2007

Emily Chung

23

June 2007

Martingrove

November 2007

Debbie Schwartz

32

July 2006

Jarvis

October 2007

Gemsy Joseph

26

March 2007

West Humber

September 2009

Alison Fisher

32

July 2006

Victoria Park

October 2009

62A 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 Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at para. 28.

63In hiring or promotion cases, the Tribunal has generally accepted that a prima facie case of discrimination is established when a person who was qualified for the job is not hired and that the person who is selected is no better qualified and lacks the distinguishing feature of the person not hired (i.e. race, gender, age). See, for example, Clennon v Toronto East General Hospital, 2009 HRTO 1242. In my view, the applicant has established a prima facie case of discrimination in relation to each of the five hiring decisions of concern to her given the distinct difference in ages and years of teaching of the applicant and the successful candidates.

64Once an applicant establishes a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory. See Jagait v. INTECH Risk Management, 2009, HRTO 779. However, the ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent. See Lannin v. Ontario (Ministry of the Solicitor General) (1993), 1993 CanLII 16448 (ON HRT), 26 C.H.R.R. D/58 (Ont. Bd. Inq.). The onus of proving discrimination remains on the claimant throughout. See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 119.

65I am satisfied that the respondent has provided credible and rational explanations for its hiring decisions and that there are no instances in which I find that an inference of discrimination is more probable than the explanations provided by the respondent.

General Findings

66The applicant has disputed five hiring decisions. Before analysing the evidence in relation to each of the five hiring decisions I would make the following general findings.

67I find it relevant that persons on the ETH list cannot apply for permanent contract teaching positions: they must be selected. In each of the four formal job competitions in question (Jarvis, Martingrove, West Humber and Victoria Park) the applicant was selected and/or subsequently short listed by the relevant school principal from the ETH list to participate in the job competition. In my view, these principals would have known in selecting the applicant for an interview that the applicant was an older candidate. Persons on the ETH list are selected from the online information they have provided, which includes their “Professional ETH Application Form”. The applicant’s ETH form records that she earned her Bachelor’s degree in 1970 and that she worked in various child service positions from 1975 to 2000 before she began working for the respondent. Principals may also have had access to the applicant’s resume that also provided dates for the applicant’s employment and education.

68Principals are not obliged to select all persons on the ETH list that meet the basic criteria for the position they are seeking to fill (e.g. qualifications to teach Intermediate English). I am satisfied that the fact that the applicant was selected for these interviews by the persons who ultimately decided who would be hired is evidence that these persons were open to the possibility of hiring the applicant. She was not screened out of these job competitions because of her age.

69I find that the hiring decisions in the four job competitions in question were essentially based on interview performance with a further reliance, in some measure, on subsequent reference checks. In the case of the Martingrove competition I do find that Mr. Bilkszto’s reference was a decisive determinant in the hiring decision. A candidate’s experience -clearly an area where the applicant had an advantage over other candidates- was not a stand alone category of assessment, although several of the respondent’s witnesses stated that experience was a factor that was considered. It is relevant to note that none of the job competitions had a formal system for scoring interviews and none of the competitions had a formal system for evaluating or weighing a candidate’s interview performance, reference check, and experience. However, there is no doubt that each of the competitions fundamentally relied on interviews to assess the suitability of candidates.

70I do not find this reliance on interviews to be discriminatory or that the applicant was disadvantaged in this process because of her age. Many of the questions asked in the interview process in the three job competitions for which I had documentation are about how candidates would deal with certain classroom situations. Such questions allow candidates to refer to and rely on their experiences. The applicant would have had a broad range of experiences to draw on. Ultimately, I am satisfied that the respondent has established that the successful candidates in three of the four formal job competitions outperformed the applicant at the interview and in the other job competition the applicant’s weak reference was the decisive factor that led to her not being hired.

71The applicant submits that there was increased likelihood for subjective evaluations in the respondent’s hiring processes because they did not formally score interview answers and assess the relative weight to be given to the interview performance, reference checks, and an applicant’s experience. I agree. However, while the lack of a clearly delineated way of formally evaluating candidates can lead to more subjective assessments, it is nonetheless important to recognize that the respondent’s interview processes did attempt to objectively compare performances. The three interviews for which I had documentation showed that the candidates were all asked identical questions with each member of the interview panel independently recording the answers provided. The evidence was that each interview panel collectively reviewed and compared these answers when they were considering whom to hire. I am satisfied that in the three documented job competitions the interviewers did use an established methodology to compare and contrast candidates and did have a rationale based on these comparisons for why they preferred the candidates that were chosen.

72The applicant also submits that subjective evaluations can be arbitrary and tainted by discriminatory considerations. I agree. She submits that those involved in interviewing the applicant and other candidates in the particular job competitions before me may have had stereotypic views of the applicant as an older worker. The applicant suggests that these stereotypes include beliefs that older workers lack innovation, energy and enthusiasm, or commitment to new ideas. The applicant submits that these stereotypes may have been operating consciously or unconsciously when the decisions were made to hire younger teachers who were considered to be more energetic and enthusiastic and a “better fit” for the schools for which they were being hired.

73I am aware that stereotypes can influence an employer’s perception of job candidates including stereotypes about the abilities and deficiencies of older workers. I have considered this issue carefully. Several of the respondent’s witnesses did state that they liked that certain of the successful candidates were energetic or were a good fit for their schools. However, in my view, the respondent’s witnesses provided reasoned credible explanations why, in these instances, they preferred the candidates with these identified qualities to the applicant that satisfy me that their hiring decisions were based on specific interview performances and not tainted by discriminatory considerations. I will address this issue further below.

74I find that the respondent’s witnesses were credible. In determining credibility I am guided by the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which is often quoted by this Tribunal. The Court held:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.

75I find that the respondent’s witnesses’ evidence was clear, consistent and logical. I did not find their evidence problematic or that it was undermined in cross examination. The four principals who took the lead in describing how their hiring processes were conducted and why the successful candidates were preferred were clear, forthright, and ultimately persuasive when considered in light of all the evidence before me. Importantly, I find the documentary evidence before me corroborated or was consistent with the key elements of this oral testimony.

76I also generally find the applicant to be credible in the sense that she presented her evidence about the events that she had direct knowledge of clearly and thoughtfully. I am satisfied that her recollections were generally accurate. I accept her testimony that she genuinely believed she performed well on various interviews. However, the key issues in this case are how the applicant was assessed by others and how her performance was compared to others. So, my determinations as to whether the applicant was outperformed at her interviews principally turns on whether I find the respondent’s explanations for their decisions credible or whether I find, based on the totality of the evidence before me, that an inference of discrimination is more probable. Ultimately, I found the respondent’s repeated determination that the applicant did not demonstrate particularly strong skills and abilities and was outperformed by other job candidates to be more likely than the applicant being discriminated against because of her age. As such, the applicant failed to establish on a balance of probabilities that age was a factor in the respondent’s decisions not to hire her for the positions at issue.

CALC

77I find Mr. Bilkszto presented a reasonable and credible non-discriminatory explanation for why he believed that the applicant’s teaching skills and ability to relate to students and staff were not strong and were of concern to him. He provided a coherent account of how he arrived at his assessments of the applicant’s teaching based on a number of direct and indirect sources of information, including his observations of the applicant in and out of the classroom and the feedback he obtained from students. He described a number of factors that led him to conclude that she did not engage with other staff or was involved in school activities.

78The applicant challenged the reliability of these assessments arguing that, apart from a brief 15 minute classroom observation, Mr. Bilkszto’s assessment that the applicant was a mediocre teacher was formed without observing her teaching performance. She argued that Mr. Bilkszto’s opinion of the applicant were significantly informed by second hand information and that he was unable to provide examples of why he believed the applicant to be disorganized and non-engaging. She argued his assessment of her not being engaged with other teachers and involved in extra curricular activities was based on limited knowledge. She argued Mr. Bilkszto’s reliance on unsubstantiated impressions is the hallmark of stereotyping and in this particular case his impressions have been tainted by stereotypes of older workers, including a stereotype that they do not engage younger people and are more withdrawn than younger people.

79I accept that it may well be that Mr. Bilkszto’s impressions of the applicant were derived from limited information, and that he did not have as fulsome a picture of the applicant as he might have. It did appear from his testimony that over the course of an academic year he had limited contact with the applicant and her students. However, he did, in my view, provide a basis for his assessment and I am not persuaded that Mr. Bilkszto’s views of the applicant were based on stereotypes or tainted by discriminatory considerations. Mr. Bilkszto was able to directly observe the applicant both in and outside the classroom, to observe her interactions with other staff, and to hear complaints from students that itemized a number of specific concerns. I find it reasonable that he was able to come to a conclusion about her skills, how she engaged with students and staff at the school, and her overall performance as a teacher.

80It is relevant to note that Mr. Bilkszto did not try to hide or disguise his views about the applicant’s performance. In June 2007, at a meeting requested by the applicant, Mr. Bilkszto stated, according to the applicant’s notes of the meeting, that she was not organized, failed to engage the students, failed to engage the staff, and did not participate in the school community, only doing what was required of her. This willingness to explicitly state his views to the applicant supports, in my view, that Mr. Bilkszto believed that he had a basis for arriving at his assessment that he could explain and defend.

81The applicant may feel this was a harsh and not fair assessment and one that was not sufficiently objective. However, even if this is the case -and again I would stress that I did find that Mr Bilkszto did establish that he had a reasonable basis for arriving at his assessments- I do not see evidence that would lead me to find, on a balance of probabilities, that this assessment was linked to the applicant’s age.

82I accept the applicant’s contention that there may be a general stereotype of older persons being less engaged with younger persons or more withdrawn or less energetic than younger persons. And it is true that Mr. Bilkszto did refer to the applicant as not being particularly engaged with students or in school activities. However, these specific assessments are, in my view, based on detailed and specific information Mr. Bilkszto had about the applicant’s interactions with students in and outside of the classroom, and observations that indicated to him that the applicant was less involved in school activities than other staff. I further note that Mr. Bilkszto was involved in the initial hiring of the applicant as an LTO for CALC, and evidence that another older teacher in the school was considered to a good fit at CALC because he engaged students. I do not see the evidence to suggest that Mr. Bilkszto’s assessments rely on generalized and stereotypic assumptions about the applicant because of her age.

83I find that the applicant’s allegations that she was not considered for a permanent teaching position at CALC because of her age, a position which went to a 35 year old teacher, Mr. Nevins, is without merit. The applicant maintained that she, with her teaching experience, should have been a preferred candidate. However, the fact is Mr. Bilkszto did not believe that the applicant was a particularly good teacher and he explicitly told the principal, Ms. Khan, that, based on his assessment, he did not believe the applicant was a suitable candidate for the permanent teaching position that was becoming available. According to Mr. Bilkszto, Ms. Khan apparently also had an independent view that the applicant was not suitable, in some measure because of a particular letter the applicant had written to Ms. Khan. These are non discriminatory and credible explanations for why the applicant was not seen as a candidate for the permanent teaching position.

84It is true that Mr. Bilkszto testified that he had a poor view of Mr. Nevins and did not recommend him for the permanent teaching position and that there was the incident involving Mr. Nevins and a student that, the applicant argued, was an indicator that he was not a suitable candidate. This raises the issue of why, under these circumstances, Mr. Nevins would have been offered the position. However, Mr. Bilkszto also testified that Mr. Nevins was a popular teacher, so much so that a student petition was circulated supporting his hiring. This is a non-discriminatory explanation for Ms Khan’s hiring decision. Clearly, the applicant is of the view that Mr. Nevins’ confrontation with a student should have been accorded more weight and that, comparatively, she, with her additional years of experience, was a better candidate. However, the evidence before me is that the applicant was not seen as a suitable candidate given the assessments of her teaching and involvement at CALC. I cannot, on the evidence before me, draw the inference that her age was a factor in the decision to hire Mr. Nevins.

85The applicant argues that I should draw an adverse inferences from the fact that the respondent did not call Ms. Khan as a witness and did not produce the applicant’s written statement regarding what she witnessed of the incident involving Mr. Nevins even though it was reasonable to assume that this statement was in the respondent’s possession. The applicant specifically asks the Tribunal to draw an adverse inference that Ms. Khan’s testimony would have contradicted Mr. Bilkszto’s testimony that he did not support the hiring of Mr. Nevins and that the missing statement of the applicant’s would have made clear how inappropriate Mr. Nevins’ behaviour was and how unsuitable he was to be hired as a permanent contract teacher.

86I decline to make these adverse inferences. I accept that the respondent thought it reasonable to rely solely on Mr. Bilkszto to provide testimony at the hearing as to what occurred at CALC given his key role in assessing the performance of the applicant and his further knowledge of Mr. Nevins’ hiring. While it may have been helpful to have heard from Ms. Khan I do not accept the contention that Ms. Khan was deliberately not called because her evidence may not have supported the respondent’s case. I find the applicant’s allegation that Ms Khan’s testimony would have contradicted Mr. Bilkszto’s evidence that he did not support Mr. Nevins’ candidacy to be unsupported conjecture. I also cannot conclude that the respondent deliberately suppressed the applicant’s written eyewitness account of the incident involving Mr. Nevins and the student. Even if this written account supported the applicant’s contention that the incident was serious and as a consequence Mr. Nevins should have been rejected as a suitable candidate, it does not lead me to find that the decision to not hire the applicant was related to her age.

Martingrove

87The applicant submits that the Tribunal should infer that, given the applicant’s years of teaching experience and the fact that Mr. Baytor invited the applicant to attend Martingrove, the applicant was the more suitable of the two candidates. The applicant submits that the Tribunal should draw this inference even if Mr. Baytor did not find that the applicant had a dynamic presence during the interview and Mr. Bilkszto expressed concerns about the applicant to Mr. Baytor. The applicant submits that Mr. Baytor’s hiring decision was ultimately tainted by a stereotype that older workers lack energy, enthusiasm and innovation.

88I am satisfied, based on the evidence before me, that Mr. Baytor considered the applicant to be a viable candidate for the permanent contract teaching position he was attempting to fill. He testified that although he did not believe that the applicant was a particularly strong candidate, noting her average interview performance and her lack of dynamic presence at her interview, he nonetheless saw her as a potential candidate. After interviewing the applicant, Mr. Baytor invited her to visit the school.

89The applicant testified that she believed she was going to be hired. In my view, it is significant that after the interview Mr. Baytor did consider the applicant to be a viable candidate and that he was prepared to potentially hire her. This is evidence that supports the respondent’s contention that Mr. Baytor did not reject the applicant’s candidacy because of her age and that there are other factors to account for why she ultimately was not hired.

90Mr. Baytor testified, that it was his subsequent interview with the successful candidate, Ms. Chung, and the reference checks for the candidates, including Mr. Bilkszto’s reference for the applicant, that led him to offer the position to Ms. Chung. He testified that Ms. Chung had a stronger interview and outstanding references.

91Mr. Baytor’s evidence regarding how the candidates comparatively performed was limited. Mr. Baytor did not keep the written interview materials. He did not recall specifics about the questions asked and the answers the candidates provided. I did not get a fulsome picture of what Mr. Baytor believed were Ms. Chung’s demonstrated strengths. Mr Baytor did testify that Ms. Chung’s references were outstanding: one from a principal who had interviewed Ms. Chung and stated he would have hired her, and one from a teacher who supervised the applicant student teaching and who called her the most outstanding student teacher he had ever had. I did have several written evaluations of Ms. Chung that she submitted to the respondent that were indeed positive.

92However, ultimately, the most persuasive evidence before me about the relative qualities of the two candidates is that the applicant had a poor reference. Mr. Baytor recalled that Mr. Bilkszto raised “red flags” about the applicant and that he was of the view that the reference Mr. Bilkszto provided was not the reference for someone who you would see as an asset or who you would want to hire. Mr. Bilkszto recalled describing the applicant as mediocre. I have no doubt, based on the evidence before me regarding Mr. Bilkszto’s assessment of the applicant while at CALC, that the reference he provided to Mr. Baytor was not positive and did communicate Mr. Bilkszto’s concerns about the applicant’s teaching abilities.

93Given these circumstances I do not agree with the applicant’s submission that she should be considered the more suitable of the two candidates. It is entirely reasonable, in my view, that the applicant would be considered a less desirable candidate in light of Mr. Bilkszto’s reference. And in my view it is this reference that most clearly accounts for the applicant’s failure in the Martingrove competition.

94The applicant submits that Mr. Baytor emphasized that the applicant spoke in a monotone, did not have dynamic presence, and that he formed an impression that she would be “high maintenance” after speaking to Mr. Bilkszto. The applicant argues that even if all of this was true, these attributes have no real bearing on whether the applicant could suitably perform the job for which she was being interviewed. The applicant submits that Mr. Baytor’s hiring decision was tainted by stereotypes that were based on impressionistic evidence; stereotypes, for example, that older persons lack innovation, energy and enthusiasm.

95Mr. Baytor stated that he found the applicant less dynamic based on his specific observations of the applicant’s performance during the interview. Mr. Baytor did provide further details referring to the applicant responding to questions in a monotone and expressing no excitement. I am satisfied that Mr. Baytor’s reference to the applicant’s behaviour was the result of direct observation. I heard no evidence or submissions to suggest that Mr. Baytor may have described the applicant’s interview performance as less dynamic because of the applicant’s age.

96I am of the further view that it is open to Mr. Baytor to consider the applicant’s behaviour at the interview in determining whether the applicant is a suitable candidate, with the proviso, of course, that he does not make discriminatory assumptions about how the applicant would perform as a teacher. It is reasonable that Mr. Baytor can, for example, consider the applicant’s interpersonal and communication skills as displayed throughout the interview and how they may apply to a teaching position. I am of the view that, in this case, it is more probable that Mr. Baytor’s expressed concern about a lack of dynamism is a concern about the applicant’s interpersonal and communication skills. There is insufficient evidence for me to make the inference that this concern is related to the applicant’s age.

Jarvis

97I find that that the answers to the interview questions as recorded by the three members of the interview panel and Mr. Gold’s clear and credible explanations for how these answers were interpreted and weighed establishes that the applicant was outperformed in her interview by the winning candidate, Deborah Schwartz. Mr. Gold’s considered, detailed, and consistent testimony provided a cogent and persuasive account of the panel’s deliberations and conclusions about the merits of the two candidates that were being considered.

98The applicant asks that I find that the interview performance of the two candidates was very close based on the answers themselves and the fact that Mr. Gold later spoke to the applicant in a debriefing session in which he told the applicant that she had performed well and that if he had had a second job he would have hired the applicant. The applicant submits that because the interview performance was very close she ought to have won the job competition because of her previous experience and her additional ESL qualifications.

99I do not accept the applicant’s contention that the interviews were close and on that basis other factors such as the applicant’s further ESL qualifications should have been considered by the panel. Mr. Gold credibly explained that there were clear and identifiable distinctions in the answers provided by the two candidates and why it was that Ms. Schwartz’s answers were preferred. He testified that Ms. Schwartz’s answers were more concrete and concise and were more understandable and easier to follow. Mr. Gold explained why Ms. Schwartz’s answer to question #3, which asked candidates to discuss strategies in the classroom, was identifiably stronger than the applicant’s in that it included references to how Ms. Schwartz would assess and evaluate whether her proposed strategies were working. The applicant’s answer to question #3 did not include such references. Mr. Gold credibly explained why, although the applicant should be credited for endeavouring to answer questions #4 and #5 together, the answer she did provide was overly expansive and difficult to follow, thereby raising concerns as to whether her style of communication would be effective in the classroom, particularly given that she would be teaching ESL. In light of the documentary evidence before me, I find Mr. Gold’s testimony about how the two candidates answered the questions put to them to be credible and I am satisfied that the applicant was outperformed during the interview.

100Mr. Gold conducted the reference checks and I had before me the notes he made at the time he conducted these reference checks. For the applicant’s reference, Mr. Gold spoke to a principal. Mr. Gold records that he was told that the applicant was:

–scattered in org

-passionate -social work background knowledgeable

-lack of org got in way

–too many directions

-4 different __ [last word is not clear]

–pretty good rel’s with kids

101Mr . Gold records that he was told by Ms. Chung’s first reference that she was:

intelligent, hardworking, highly recommend

very good rapport w students

102Mr. Gold testified that he shared these references with the panel and they confirmed the panel’s decision to hire Ms. Schwartz. I am of the view that these reference checks are further evidence that this hiring decision was non-discriminatory. There is nothing in these reference checks to suggest that the applicant’s age was a factor in the respondent’s hiring decision for the position at Jarvis.

103I do not agree that Mr. Gold’s post interview feedback to the applicant is evidence that the job competition was so close that the applicant should have been the preferred candidate based on her further experience and qualifications. I had the applicant’s notes taken at the time of the feedback interview. The notes record that Mr. Gold had told her that the hiring decision had come down to details and which candidate had been more specific. The notes record Mr. Gold as having said that while he preferred Ms. Schwartz’s answer to number #3, he had thought the applicant’s answer to #2 was the best he had ever heard, that she had done a wonderful job integrating questions #4 and #5, and that he would have hired her if he had a second job. Mr. Gold testified that he did not recall this conversation but that he may well have said encouraging things to the applicant for the purposes of providing a debrief, including the fact that she was the panel’s second choice.

104I also had Mr. Gold’s notes taken about his feedback that record, in part, that he told the applicant that her answers showed good technical, theoretical knowledge of curriculum and student behaviour, but that her communication style was very detailed but to the point where following her train of thought and ideas became challenging. I am of the view that the debriefing materials before me indicate that the applicant did reasonably well and was the second choice. I do not find that it establishes that the competition was so close that the respondent should have gaven added consideration to the applicant’s experience and further qualifications.

105The applicant further submits that the respondent’s position that the applicant’s additional ESL qualification was not required for the job is an example of a seemingly neutral reason that disadvantages an older candidate who has obtained an advanced qualification. I do not agree. The respondent’s position was that an advanced qualification was not required for the position in question. The applicant did not adduce evidence or make arguments that a further qualification ought to have been required for the position. The fact that the applicant may not have been given explicit credit for having her further qualification in this job competition is not discriminatory. The evidence was that hiring decisions were made based essentially on interview performance.

West Humber

106I find that the respondent has again provided a credible, non-discriminatory reason for its hiring decision. I find the evidence before me is that the applicant was outperformed in the interview. The respondent’s witnesses were able to identify specific examples of where the successful candidate’s answers were preferred. Further, the reference checks supported the interview panel’s interest in hiring the successful candidate, Gemsy Joseph.

107The evidence of all three witnesses who were on the interview panel was that they all agreed that the applicant was not one of their two top rated candidates. All three panellists were of the view that Ms. Joseph was a strong candidate and had the skills to engage at risk students both inside and outside the classroom.

108The testimonies of Mr. Siddiq and Ms. Lopez, in particular, were detailed and specific as why they felt Ms. Joseph was a strong candidate. Mr Siddiq reviewed the applicant and Ms. Joseph’s responses to the interview questions. He identified specific answers given by Ms. Joseph that he felt were strong, such as her response to question #2 in which Ms. Joseph stated how she would proactively assist students and build relations with students both in and outside the classroom. He testified that Ms. Joseph was both confident and energetic. According to Mr. Siddiq, Ms. Joseph had no weak answers. Ms. Lopez testified that Ms. Joseph performed well at the interview, had good communications skills, and would work well with at risk students. Ms. Lopez stated that Ms. Joseph was engaged and that her physical demeanour showed her enthusiasm. She was of the view that Ms. Joseph would be a good fit given the nature of West Humber and its student population.

109Both Ms. Lopez and Mr. Siddiq testified that the applicant‘s answers were more general, that she spoke in a monotone, that she did not demonstrate the same sensitivities, and that she did not come across as approachable. Both witnesses identified specific answers of the applicant that they found problematic. Mr. Siddiq was concerned that the applicant’s answer to question #3 suggested that the applicant would seek assistance to address an issue that Mr. Siddiq expected she could address on her own. Ms. Lopez was concerned that the applicant stated at one point that nothing surprised her: an answer Ms. Lopez found to be arrogant.

110The applicant expressed a concern as to whether Ms. Lopez’s suggestion that Ms. Joseph was a better overall fit was being used to mask discrimination. The Tribunal has considered the issue of whether hiring decisions that consider “fit” may be discriminatory and has found that that while employers are entitled assess how a prospective employee fits into a workplace culture, it must do so using objective and non discriminatory criteria based on actual characteristics and qualities and not presumptions or stereotyping. See Tahna v Bombardier Aerospce Regional Aircraft 2010 HRTO 1425; Sukhu v. Universal Energy, 2009 HRTO 1922; and White v. Queen’s University at Kingston, 2010 HRTO 640.

111I am satisfied that the panel’s consideration of fit was reasonable and not tainted by discriminatory considerations. The observations that the applicant’s presentation at her interview was flat and that she spoke in a monotone is an assessment of her communication and interpersonal skills based on her behaviours at the interview. It is not unreasonable to consider these demonstrated traits in considering whether the applicant would be a successful candidate: one who would interact successfully with students. It is also not, in my view, a coded reference to the applicant not having energy or that she might not be energetic because of her age. The panel’s concerns about the applicant’s communication style were specific and particularized, not general and abstract. The conclusion that Ms. Joseph was a better fit was, in my view, also based on an assessment of Ms. Joseph’s skills based on her interview performance. There is no basis to conclude that the committee’s view of the applicant’s unsuitability for the position was based on stereotypes about her age or that they ascribed qualities to Ms. Joseph that she did not have simply because she was younger. I also do not find a reference to Ms. Joseph being energetic suggests that the panel holds a stereotypic view that only young teachers are enthusiastic and energetic.

112The applicant had further concerns about the West Humber competition. The applicant submits that it was improper and unfair that Ms. Koehn, the third panellist, recused herself from the interview with the applicant (but participated in all the other interviews) only to later share her opinion with Mr. Siddiq and Ms. Lopez that, based on her experiences of having previously worked with the applicant, the applicant had a number of weaknesses. I understand the applicant’s concern as to whether Ms. Koehn’s decision to provide an assessment of the applicant based on a previous work experience was appropriate in the context of a job competition. However, I am satisfied that Ms. Koehn’s views of the applicant did not have a bearing on how Ms. Siddiq and Ms. Lopez assessed the applicant and ranked her relative to the other candidates given the timing of when she shared her views. Moreover, even if this sharing of these views was inappropriate, there is no evidence that this gave rise to the applicant being treated differently than the other candidates due to her age or any other Code ground.

113The applicant was also concerned that there was some confusion as to whether the competition at West Humber was for an ESL position or an English position. It appears that Ms. Lopez and Ms. Koehn believed it was for an ESL position, as did the applicant and apparently other job candidates at the time of the interviews. Mr. Siddiq testified that the position was, in fact, designated as an English position, but there may have been some confusion given that the teacher who had taught this course had been in the ESL department and that the position was often referred to as an ESL position given the culture of the school. Moreover, the students in the class were ESL students. There is no evidence that this confusion, however, had a discriminatory effect, meaning that the applicant was somehow disadvantaged in the interview process on a Code ground by the fact that she and/or others believed this to be an ESL position when it was not.

Victoria Park

114Ms. Pangiatopoulos and Mr. Ward, the two persons who conducted the interviews at Victoria Park, both testified as to why they preferred Ms. Fisher, the successful candidate. to the applicant. Both panellists reviewed their recorded answers to the interview questions that were asked and explained why they preferred Ms. Fisher’s answers. Ms. Pangiatopoulos testified that she thought Ms. Fisher had an outstanding interview and that she preferred her answers to the first six questions. Mr. Ward held a similar opinion noting that Ms Fisher’s answers provided more specific references to strategies and learning styles. Ms. Pangiatopoulos believed the applicant performed reasonably well. Mr. Ward was less impressed.

115Both Ms. Pangiatopoulos and Mr. Ward recorded that the applicant’s answer to question #4, which was about how to respond to a student that was being disruptive, as only “I’ll stop the behaviour”. Both indicated that they found this answer disconcerting because of its brevity and because the suggested strategy for dealing with a disruptive student was, in their opinions, inadequate.

116Both Ms. Pangiatopoulos and Mr. Ward recorded that the applicant provided no answer to question #6. They both testified that this reflected the fact that the applicant did not answer question #6 as asked. The applicant disputed this, submitting that there was no way she would not answer question #6 or would have only answered question #4 as recorded by the interview panel. She submitted that it made no sense for her not to answer questions asked of her at an interview, particularly ones that had been given to her in advance of the interview. She submits that the more likely scenario is that before the interview was over both panellists stopped listening to the applicant and formulated stereotypes (whether conscious or unconscious) about the applicant’s alleged lack of passion about teaching and/or students.

117I am satisfied that Ms. Pangiatopoulos and Mr. Ward provided credible explanations for preferring Ms. Fisher to the applicant based on the evidence they provided about the interview questions and responses, including in relation to questions #4 and #6. I accept their testimony that the applicant failed to adequately answer questions #4 and #6. I do not accept the applicant’s contention that she did provide fulsome answers to these two questions that Ms. Pangiatopoulos and Mr. Ward chose not to record. I find it completely improbable that two panellists in a job competition to hire for a needed position would collude to not record answers of a candidate for a position that they wished to fill. It is possible that they chose not to record information they felt was not related to the question asked, but I see no basis for concluding that they stopped listening because they believed the applicant, because of her age, would not to be passionate about teaching.

118I find the respondent has provided an explanation for its hiring decision that is more probable than any alternative theory that suggests that the applicant’s performance at the interview was comparable to Ms. Fisher’s or that the hiring process was tainted by discriminatory considerations.

Statistical Evidence

119The applicant asks that the Tribunal, pursuant to section 45.5(2) of the Code, consider and give weight to the Ontario Human Rights Commission’s Policy on Discrimination Against Older People because of Age. Part of this request is that the Tribunal consider documentary evidence of the respondent’s hiring practices in 2007-2008 that was before the Tribunal that show that the average age of a teacher hired on a permanent basis in both 2007-2008 and 2009-2010 was 31 years of age and that no-one over 55 years of age was hired permanently during 2007-2008. The applicant submits that this statistical evidence can constitute circumstantial evidence from which it is possible to infer that discrimination probably occurred in an individual case. The applicant submits that this evidence suggests a preference for or an institutional bias towards younger teachers that directly affected her and her efforts to gain a permanent teaching position with the respondent.

120I agree with the respondent when it submits this is not an appropriate case for the Tribunal to draw an inference of a pattern of discrimination based on statistics in relation to any of the job competitions in question. To begin, I do not know the ages of all the candidates on the ETH list in 2007-2008 and 2009-2010 and whether there is a high percentage of younger candidates on this list, which would account for the younger median age. Furthermore, I am of the view, based on the evidence I heard about how each the specific job competitions were conducted, that each of the job competitions in dispute are distinctive and unconnected. The hiring decisions that were made were done so at the individual school level by different, unconnected persons. I cannot draw a reliable inference that there is an institutional practice of preferring younger applicants that factored into the decisions not to hire the applicant.

121For all of the above reasons, the applicant has failed to establish on a balance of probabilities, that the respondent discriminated against her with respect to employment on the basis of age in failing to hire her for the positions discussed above. Accordingly,

the Applications are dismissed.

Dated at Toronto this 20^th^ day of December, 2011.

”signed by”________________

Eric Whist

Vice-chair