Mahant v. York University, 2011 HRTO 542

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

INTERIM DECISION

Adjudicator: Mark Hart

Date: March 16, 2011

Citation: 2011 HRTO 542

Indexed as : Mahant v. York University

WRITTEN SUBMISSIONS

Edelgard Mahant, Applicant ) Self-represented

York University, Respondent ) Richard Charney and ) Rachel Silver, Counsel

1This is an Application made under s.53(5) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) dated June 18, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on February 21, 2007 and abandoned upon filing of this Application with the Tribunal.

2The purpose of this Interim Decision is to address the relevance of the evidence of six witnesses proposed to be called by the applicant in support of her position in this matter. While the applicant has submitted the names of six proposed witnesses, she has committed to calling only five witnesses when the hearing resumes on May 19, 2011, but requests a ruling on the relevance of the proposed evidence of all six witnesses in the event that one of her proposed witnesses is unavailable to testify at the continuation of the hearing.

3The applicant alleges that she experienced age discrimination and reprisal when she was not short-listed for the position of Co-Director for the Canadian Centre for Germanic and European Studies (“CCGES”).

4While there are some allegations about statements alleged to have been made by the chair of the hiring committee which the applicant states are indicative of age discrimination, this is primarily a case that relies upon circumstantial evidence. None of the applicant’s proposed witnesses is going to provide direct evidence of any statement or admission that the applicant’s age was a factor in the hiring committee’s decision not to include her on the short list. This, of course, is not unusual.

5Rather, the applicant’s contention is that, based upon her qualifications and experience as compared to the candidates who were placed on the short list, she ought to have been included, and the fact that she wasn’t, perhaps when combined with other statements alleged to have been made by the chair, support an inference that her age was a factor in the hiring committee’s decision not to include her on the short list.

6In accordance with the well-established principles that this Tribunal applies when considering circumstantial evidence cases, the inquiry is comprised of three steps: (1) the applicant is required to establish a prima facie case of age discrimination; (2) if she does, the respondent must bring forward evidence of a non-discriminatory explanation for the decision; and (3) the Tribunal must consider whether the respondent’s evidence is credible and not a pretext for discrimination or whether it is more likely that the applicant’s age was a factor in the respondent’s decision.

7The hearing in this matter commenced on January 25, 2011. On consent of the parties, the proceeding has been bifurcated first to address whether there has been a violation of the Code and then to address any issue of remedy at a subsequent stage, if required. Also on consent, the respondent presented its evidence first, as evidence regarding why the hiring committee did not select the applicant for the long short list and why it selected the candidates who made it to the long short list is in the sole possession of the members of the respondent’s hiring committee. Accordingly, at the hearing on January 25, 2011, I heard evidence from four respondent witnesses who were members of the hiring committee about the reasons why the applicant was not selected for the long short list and why those who made it onto the long short list were selected.

8In responding to this evidence, the applicant is entitled to challenge the credibility of the reasons offered by the hiring committee for not selecting her to the long short list. In challenging such evidence, she is entitled to call witnesses who are able to provide evidence contrary to the assessment of her made by the members of the hiring committee. The purpose of such evidence is not for the applicant, these witnesses or myself as the trier of fact to substitute their view of the applicant for the views expressed by the hiring committee members. It is not my role under the Code to assess in the abstract whether the hiring committee chose the best or most qualified candidate for the position or was correct or not in its assessment of the applicant. However, it is my role under the Code to determine whether the applicant’s age was a factor in the hiring committee’s decision, and in a circumstantial evidence case such as this, such determination necessarily involves an assessment as to whether the reasons offered by the hiring committee members for not selecting the applicant to the long short list are credible.

9In terms of the specific witnesses that the applicant proposes to call, the first is Roy Christensen, who is the Press and Information Officer at the Delegation of the European Union (“EU”) to Canada. This witness is expected to testify that the applicant is well-known to the EU Delegation and for many years had close and frequent contact with various members of the Delegation. This witness also is expected to testify that the EU Delegation sees the applicant as an active academic, well-informed about the EU and EU-Canada relations, and that the applicant has had no difficulty whatsoever, as far as this Delegation is concerned, in interacting with diplomats. The applicant describes the relevance of this evidence as speaking to her expertise in European politics and international contacts and to her ability to interact with diplomats.

10In this regard, I note that one of the reasons expressed by Dr. Dewitt for not selecting the applicant to the long short list is that she had no history or links with government personnel, especially the German or Polish governments. In his evidence at the hearing, Dr. Dewitt testified that in his view, the applicant was not viewed as a strongly supportive or diplomatically appropriate colleague to handle the kinds of things that CCGES was looking for, which involved building relations with the diplomatic community in Canada and abroad. In addition, Dr. Webber’s evidence also cited the applicant’s inability to effectively represent the CCGES internally and also externally within the academic, diplomatic / consular, and business communities.

11In my view, Mr. Christensen’s evidence may be relevant to some extent to respond to these reasons for not selecting the applicant, and perhaps to suggest that these reasons are not credible. I am aware, as submitted by the respondent, that the hiring committee had before it the written materials submitted by the various candidates and to a large extent based its decision on that material. However, it seemed to me from hearing the evidence of the respondent’s witnesses that assessments also were made by them about the applicant based not only upon the written materials that she submitted, but also based upon their personal experiences with or knowledge of the applicant. That Mr. Christensen and members of the EU Delegation may have had different experiences with the applicant does not necessarily invalidate the assessments made by some members of the hiring committee, but I cannot exclude it as being irrelevant to the credibility of at least some of the reasons advanced for not selecting the applicant. Accordingly, I will allow Mr. Christensen’s evidence.

12The next proposed witness is Karen Foss, who is a Canadian diplomat. Ms. Foss is expected to testify that the applicant is an effective communicator, as well as a clear and methodical teacher. She is expected to say that the applicant is a creative networker who is always looking for the links between people and interests, who is keen to broaden and deepen her circles of contacts, and who has an energy which inspires and motivates others. As a professional member of Canada's diplomatic corps, Ms. Foss also is expected to assure the Tribunal that the applicant can work easily with the diplomatic community. The relevance of Ms. Foss’ proposed testimony is stated as being to attest to the applicant’s expertise in teaching at the graduate and undergraduate levels and to her ability to interact with diplomats.

13Once again, while certainly not addressing all of the reasons for not selecting the applicant or perhaps not even the primary reasons, I cannot say that Ms. Foss’ proposed evidence is irrelevant to at least some of the reasons given for not selecting the applicant or for selecting the candidates who made it to the long short list. I have addressed the issue of the applicant’s interaction with diplomats above. With regard to the issue of the applicant’s teaching, I do not understand this to be one of the reasons why the applicant was not selected. Rather, it was that the materials submitted by the applicant in support of her candidacy did not show that she had supervised M.A. or Ph.D. students. I do not understand that Ms. Foss will be in a position to speak to this issue. However, it was clear to me from the testimony of a number of the respondent’s witnesses that the ability of the successful candidate to inspire and motivate others and to network and make contacts relevant to the work of the CCGES was a factor that was considered. In this regard, Ms. Foss’ proposed evidence may have some relevance, and I accordingly will allow it.

14The next proposed witness is Dr. Hans Michelmann, who is a Professor of Political Science and a former Dean of the Faculty of Arts at the University of Saskatoon. Dr. Michelmann is expected to testify about the applicant’s expertise as a scholar of the European Union, and to testify that she was (and remains) one of the leading scholars of European integration studies in Canada. Dr. Michelmann also is expected to speak about his work with the applicant at the Journal of European Integration, and about the applicant’s participation in academic conferences and her active role in the European Community Studies Association (Canada).

15In this regard, Dr. Dewitt’s evidence is that one of the reasons for not selecting the applicant is that she had no internationally recognized research reputation. In addition, in his testimony at the hearing, Dr. Keil testified that the applicant’s publishing record was not impressive but steady, in a field that is fairly mainstream in his point of view, and as compared to the other candidates, was not something theoretically or methodologically interesting.

16As with the previous witnesses, I cannot say that Dr. Michelmann’s proposed evidence is irrelevant to some of the reasons put forward by the hiring committee members for not selecting the applicant to the short list. While it is not indicated that he will be able to speak to the issue of the applicant’s lack of collaborative research projects or ability to secure funding, which appear to be two of the main reasons advanced for not selecting the applicant, Dr. Michelmann may nonetheless be able to speak to the credibility of the assessment of the applicant’s publication record and research reputation espoused by at least two of the hiring committee members. Accordingly, I will allow Dr. Michelmann to testify.

17The next proposed witness is Dr. Marcia Macaulay, who is an associate professor in the Department of English at York University’s Glendon College. Dr. Macaulay is expected to testify that the applicant has made a difference to her department, to her college, to the university and to the national and international community, that she is an academic and human being of distinction, and that her reputation as a scholar has been beneficial to her department and the College. Dr. Macauley also is expected to testify that the applicant is a truly interdisciplinary scholar who has mastered not only her own discipline but also history, international studies, economics and even elements of linguistics. Finally, Dr. Macaulay is expected to testify that the applicant has the courage to defend minority positions, and is a person of great moral courage. The relevance of this proposed testimony is expressed as speaking to the applicant’s academic leadership.

18While there is no doubt that the applicant’s lack of leadership skills was cited as a reason for not selecting the applicant by three of the hiring committee members who testified before me, the evidence given at the hearing by the hiring committee members about this aspect of their reasons was quite focused. The leadership qualities being looked for related to the candidates’ ability to run a collaborative research facility, to attract significant grants and funding for research projects, and to bring forward novel or cutting edge approaches that would excite the interest of academic colleagues and graduate students. In this context, I find Dr. Macaulay’s proposed evidence to be more about the applicant’s general character and reputation, and not specifically focused on the actual reasons given in evidence before me for not selecting the applicant to the long short list. For this reason, I find that Dr. Macaulay’s proposed evidence is not relevant to the matters at issue in this proceeding, and I decline to hear from this witness.

19The next proposed witness is Gabriel Malebang, who is a lecturer in the Department of Political and Administrative Studies, University of Botswana and former Administrator and Researcher in the Centre for Strategic Studies, University of Botswana. Mr. Malebang’s proposed evidence relates to the applicant’s knowledge of diplomacy and foreign affairs, and more specifically, it is proposed that he will explain why he chose the applicant to be one of the instructors in an induction course for recently appointed Botswana diplomats. It also is proposed that Mr. Malebang would testify about the applicant’s ability to teach and supervise graduate students. The relevance of this proposed evidence is stated by the applicant to be with regard to her ability to interact with diplomats and her expertise in teaching at the graduate and undergraduate levels.

20With regard to Mr. Malebang’s proposed testimony about the applicant’s ability to teach and supervise graduate students, this does not appear to relate to the issue before me. What I heard from the witnesses who testified is that one of the reasons for not selecting the applicant was that the material she submitted to the hiring committee did not contain evidence of her having mentored graduate students, in contrast to the materials submitted by the candidates who were chosen. While Mr. Malebang may be able to provide evidence that was not included in the applicant’s materials as submitted to the hiring committee, this would not be relevant to my determination, as the evidence of the respondent’s witnesses was quite clear that they based their assessment of this aspect of the applicant on the submitted materials.

21With regard to Mr. Malebang’s proposed evidence about the applicant’s ability to interact with diplomats, I do not regard this proposed evidence as being relevant, in contrast to the proposed evidence of Mr. Christensen, which focuses on the applicant’s interactions with the EU delegation and therefore has some direct relevance to the community served by the CCGES, and the proposed evidence of Ms. Foss, which focuses on the Canadian diplomatic community and again may have some direct relevance to the work of the CCGES. While Mr. Malebang may hold the applicant’s diplomatic abilities in high esteem and as a result may have sought her assistance with the induction of Botswana diplomats, this does not assist me as the adjudicator in assessing the credibility of the reasons given by the hiring committee for not selecting the applicant. Accordingly, I will not hear from Mr. Malebang.

22Finally, the applicant proposes to call Dr. Edmund Fowler, who is Professor Emeritus in the Department of Political Science at Glendon College and was a colleague of the applicant from September 1991 until the middle of 2002. Dr. Fowler is expected to testify that the applicant became chair of the department at a time when it suffered from many divisions, that she listened to all points of view and steered a firm course through these difficulties, and that she showed great skill at getting along with faculty from different backgrounds. It is proposed that this witness also would testify to the applicant’s qualities of academic leadership being evident when she defended the department and the College against attempts to destroy and/or downgrade them both, in which endeavours, the witness will say that the applicant displayed tenacity as well as creativity. The relevance of this proposed evidence is stated to be with regard to the applicant’s academic leadership.

23Once again, as with Dr. Macaulay, I do not find Dr. Fowler’s proposed evidence to be relevant to the matters at issue before me. The fact that the applicant acted as chair of the political science department at Glendon College was indicated on the materials that she submitted to the hiring committee. I have heard the reasons offered by the hiring committee members who testified before me as to why they did not consider this experience as being particularly pertinent to their consideration of the applicant as a candidate for the Co-Director position. While there is no doubt, as I have stated above, that several of the hiring committee members factored into their considerations their knowledge of the applicant apart from the materials she submitted, this evidence was directed towards the applicant’s prior interactions with the CCGES or at related events or functions. I did not hear any evidence to indicate that the hiring committee members considered any personal knowledge they may have had about the applicant’s tenure as chair of the political science department at Glendon College in their decision not to include the applicant on the long short list. As a result, I do not find Dr. Foster’s proposed evidence to be relevant to the matters at issue before me, and I decline to hear from him.

24While the applicant also identified Dr. Lorna Marsden as a proposed witness in her initial materials filed with the Tribunal, Dr. Marsden subsequently was withdrawn by the applicant as a proposed witness.

25Accordingly, at the continuation of the hearing scheduled for May 19, 2011, I will hear evidence from the applicant, Mr. Christensen, Ms. Foss and Dr. Michelmann. I then will hear reply evidence from the respondent, if any. If time permits, I will also hear final submissions on that day.