Blakely v. Queen’s University, 2012 HRTO 1177

Human Rights Tribunal of Ontario

B E T W E E N:

Mathew Blakely

Applicant

-and-

Queen’s University

Respondent

DECISION

Adjudicator: Mark Hart

Date: June 14, 2012

Citation: 2012 HRTO 1177

Indexed as: Blakely v. Queen’s University

APPEARANCES

Mathew Blakely, Applicant

Self-represented

Queen’s University, Respondent

Andrea Risk and Ashley Brown, Counsel

Introduction

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, dated June 26, 2009, alleging discrimination in respect of employment because of disability and/or discrimination or reprisal because of the applicant’s relationship or association with a person identified by a prohibited ground of discrimination. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on March 21, 2007.

2The applicant’s allegations arise out of the denial of a position as a Sessional Adjunct Instructor to teach a six-week module (Introduction to Drawing) in the 2007 spring term (May 7 to June 18, 2007). As a result of my Interim Decision dated January 14, 2011 (2011 HRTO 114), the denial of the Sessional Adjunct Instructor position is the only issue to be addressed in this proceeding.

3The hearing in this matter was held in Kingston on October 24, 2011, and January 13 and 20, 2012, in accordance with the expectation, expressed in the Code and the Tribunal’s Rules of Procedure for Transitional Applications, that section 53 applications proceed in an expeditious manner. On consent of all parties, I took the lead in questioning the applicant and his witness, Sylvat Aziz. After I completed my questioning, the applicant was afforded the opportunity to provide or elicit any further relevant evidence, the respondent was afforded the opportunity to cross-examine, and the applicant was afforded the ability to provide or elicit any proper relevant evidence by way re-examination.

4I also heard from five respondent witnesses. Two of these witnesses, Sebastian Shutze and Jan Winton, were members of the hiring committee that considered applications for the Sessional Adjunct Instructor position at issue and that made the hiring decision. The other three witnesses, Ted Rettig, Carl Heywood and Otis Tamasauskas, were called in response to evidence given by Professor Aziz on the first day of hearing. The evidence of the respondent witnesses was elicited through examination-in-chief by respondent counsel, although I interjected to ask questions from time to time, followed by an opportunity for the applicant to cross-examine and for any proper re-examination. The applicant also was afforded an opportunity to provide any proper and relevant evidence in reply.

5At the conclusion of the evidence, the parties agreed to file their final argument by way of written submissions, with the applicant’s submissions in reply received by the Tribunal on March 2, 2012.

6As an accommodation for the applicant, the hearing on January 13 and 20, 2012, was recorded and an audio recording provided to the parties prior to their requirement to file their written submissions. The October 24, 2011 hearing day was not recorded as the accommodation request was raised by the applicant following that date.

Background

7In January 2007, the respondent posted a position for a Sessional Adjunct Instructor position in the Department of Art to teach a course called Introduction to Drawing. This was a six-week course to be offered from May 7 to June 18, 2007. Applicants were to have an M.F.A. degree or equivalent and should understand the requirements for teaching the basic principles of line and form in a post-secondary studio program. Applications were to include a covering letter, CV, 20 slides of recent work in the appropriate medium, and the names and contact information for at least two referees who may be contacted for a reference.

8This position and the hiring for this position were governed by a collective agreement between the respondent University and the Queen’s University Faculty Association (“QUFA”). The hiring process was undertaken by the Sessional Adjunct Committee, which was comprised of the Acting Head of the Department of Art, Professor Shutze, and two elected faculty representatives, Professor Winton and Professor Una D’Elia.

9Professor Shutze had been a faculty member in the Department of Art at the respondent University since 2003 and was appointed Acting Head of that Department in the summer of 2005. He continued in this role until the summer of 2007, after which he continued as a faculty member in the Department until 2009, when he accepted a position as the Chair of the Department of Art History at the University of Vienna in Austria. Professor Shutze provided his evidence at the hearing by teleconference from Vienna.

10Professor Winton is an Associate Professor in the Department of Art who teaches in the Fine Art program. Professor Winton was originally hired by the respondent University as an Adjunct Professor in 1986, after which she obtained promotions, first to the level of Assistant Professor and then to Associate Professor. Professor Winton teaches drawing and painting and occasionally print-making.

11Professor D’Elia is a faculty member in the Art History program in the Department of Art, and was the designated equity representative on the Sessional Adjunct Committee. Professor D’Elia was not called as a witness at the hearing.

12The Sessional Adjunct Committee received 12 applications for the instructor position to teach Introduction to Drawing. The evidence before me indicates that the three members of the committee were given an opportunity to review the applications prior to the meeting of the committee to discuss them. In addition, Professor Winton testified that she made the applications available for review by faculty members in the Fine Art program in order to receive and consider their input. The evidence indicates that only Professor Tamasauskas (who is Professor Winton’s spouse) responded by providing an e-mail in support of the person who ultimately was the successful candidate. This e-mail was not in evidence before me. Professor Winton recalls this e-mail and states that it was placed in the application file. Professor Shutze states that he was not aware of this e-mail.

13The evidence of Professor Shutze and Professor Winton is that all of the applications were discussed briefly at a meeting of the Sessional Adjunct Committee. Professor Shutze’s evidence is that the discussion was fairly straightforward and that a consensus was reached quickly in favour of the successful candidate, Dan Oxley. Professor Winton’s evidence is that the committee came up with a short list of three candidates, and then reached a consensus on Mr. Oxley as the successful candidate from the short list. Professor Winton did not recall the names of the other two candidates who made the short list, but states that the short list did not include the applicant in this proceeding, Mr. Blakely. Subsequently, when questioned by the applicant about another candidate, R.A., Professor Winton expressed her belief that R.A. also had been on the short list.

Comparison of qualifications

14Professor Shutze and Professor Winton testified that the candidates were assessed on the basis of three primary criteria: the candidate’s exhibition record (which was expressed to me as being the fine art equivalent of an academic’s publication record); the candidate’s teaching experience and whether the candidate had taught similar courses in the past; and whether the candidate was regarded as being a good teacher.

15In terms of exhibitions, it was noted that Mr. Oxley’s work had been exhibited extensively in major centres, including Montreal, Vancouver, Victoria and other cities in Canada as well as in various locations in the United States. His CV shows that his work had been exhibited regularly during the period from 1979 to 2006 and also had been reviewed in a variety of publications. Mr. Oxley’s CV indicates that his work also forms part of a number of public and private collections, and he has received a significant number of academic awards and grants.

16In contrast, it was noted that Mr. Blakely’s work had not been exhibited since his graduation from the Master of Fine Art program at the University of Waterloo in 1999, that his only solo exhibition had been for his graduate thesis, and that his group exhibitions had all been in the academic context. Mr. Blakely’s CV does not indicate that his work has been reviewed in any publications, or that it forms part of any public or private collections. Mr. Blakely had only received one grant since receiving his M.F.A., and had received two scholarships while studying at the University of Waterloo.

17In terms of Mr. Oxley’s teaching experience, he had taught undergraduate Fine Art courses at the respondent University in 2004 as a replacement for Professor Winton and in 2006 as a replacement for Professor Heywood. He also had taught extensively at Concordia University, including a variety of drawing courses. He also had been an instructor in the Visual Arts program at the University of Ottawa and was a visiting instructor at Dawson College in Montreal.

18In contrast, Mr. Blakely’s most recent teaching experience was as the instructor of a one-week course at the respondent University called Introduction to Visual Arts in May 2006, which was an enrichment program for high school students. Prior to that, Mr. Blakely had been what is described on his CV as an Adjunct 1 for several courses in the Fine Art program at the respondent University during the period from September 2000 to July 2002. While some of these courses included a drawing component, none of these courses was exclusively focused on drawing. Mr. Blakely’s CV also indicates that he had been a Painting Technician assisting Professor Aziz during the period from September 2004 to September 2006, and had been a Teaching Assistant to Professor Aziz in January 2007.

19With regard to whether the candidate was regarded as a good teacher, I heard evidence that Mr. Oxley had taught fairly recently at the respondent University and had been well-regarded by his colleagues. There was no objective evidence, such as student evaluations, regarding the teaching of either Mr. Oxley or Mr. Blakely or indeed any other candidate. I will observe that the quality of Mr. Blakely’s teaching at the respondent University was commented upon positively by at least one of the respondent witnesses, Professor Rettig.

20Professor Shutze’s evidence is that Mr. Oxley had a broader, more national teaching career and had taught a number of courses in exactly the same area they were looking for, and was by far the strongest candidate in the pool. Professor Winton’s evidence is that the committee hired Mr. Oxley as the most experienced person for the job at hand, and the person who would deliver to the students the most professionally-based experience and bring to the course his vast knowledge and experience as a professional artist and teacher.

Does the applicant have a disability?

21In support of his position that he has a learning disability, the applicant tendered into evidence a report by a psychologist, Dr. D.J. Torney, which confirmed the presence of a learning disability in written expression, with concentration difficulties likely to occur due to short-term memory challenges. The applicant was studying at the University of Waterloo at this time, and Dr. Torney recommended that certain modifications be made to the applicant’s program due to the presence of this learning disability, such as the opportunity to complete in-class assignments from home on an extended basis and oral exams to assist him in conveying his course knowledge.

22The applicant’s evidence is that accommodations for his learning disability were provided while he was at the University of Waterloo. This is supported by the evidence of Professor Rettig, who sat as an external advisor for the applicant’s Master’s thesis and who was made aware that the applicant was receiving accommodations.

23The respondent takes the position that the applicant has not established that he had a disability at the time he was a candidate for the Sessional Adjunct Instructor position in the spring of 2007. The respondent notes that Dr. Torney was not called to testify as a witness at the hearing, and so it was not able to cross-examine him on his assessment. In this regard, I will note that it is not uncommon for applicants to rely upon medical reports to establish a disability or the needs arising from a disability, and it is not always necessary to call the doctor or other health professional to testify in person.

24The respondent submits that the fact that the applicant was assessed as having a learning disability in 1996 is not evidence that he continued to have this disability in 2007, and submits that there is no evidence before me to establish that the applicant had a learning disability at the time of his candidacy for the Sessional Adjunct Instructor position. In response, the applicant states that a learning disability is not a medical condition like a cold or a broken arm, which exists for a time and then goes away, but rather is a life-long condition.

25The respondent takes the position that, whether or not the applicant is correct, there is simply no medical evidence before me to support that a learning disability is a life-long condition and that I cannot simply rely upon the applicant’s lay evidence in this regard. The respondent further submits that this is not a situation where I can properly take judicial notice that a learning disability is a life-long condition, as this is not a commonly known or notorious fact.

26In my view, in assessing the matters of which this Tribunal can take judicial notice, one needs to be informed by the particular expertise of this Tribunal, which includes addressing discrimination because of a person’s disability. In exercising this expertise, this Tribunal has developed knowledge of a variety of disabilities, including learning disabilities. As a result, what might not be commonly known to another court or tribunal may nonetheless be something of which this Tribunal, given its particular expertise, may take judicial notice. In my view, the fact that a learning disability is generally an ongoing condition is a fact of this nature.

27Accordingly, on the basis of the evidence before me, I find that the applicant has a learning disability in written communication, which falls within the definition of “disability” under the Code, and that he had this disability at the time of his candidacy for the Sessional Adjunct Instructor position in the spring of 2007.

Were the Committee members aware of the applicant’s disability?

28While I have found that the applicant had a disability at the relevant time, the next question for me to consider is whether the committee members who made the hiring decision were aware of the applicant’s disability at the time the decision was made.

29The applicant did not self-identify as a person with a disability in the application materials he submitted for the Sessional Adjunct Instructor position at issue in this proceeding. The evidence of Professor Shutze is that he was not aware that the applicant has a learning disability. There is no evidence to contradict this. There also is no evidence to support that Professor D’Elia had any awareness that the applicant has a learning disability. There also is no evidence before me that either of these two individuals perceived the applicant to have a disability.

30With regard to Professor Winton, her evidence is that she was not aware that the applicant has a learning disability until she received a copy of his human rights complaint (she was originally named as a respondent to the complaint), and that she did not perceive the applicant to have a disability. This is disputed by the applicant. There is no doubt that at least two faculty members in the Fine Art program, namely Professor Aziz and Professor Rettig, were aware of the applicant’s learning disability. Professor Rettig had become aware of the applicant’s learning disability when he was the external advisor for the applicant’s Master’s thesis in 1999. I also have no reason to doubt the applicant’s own evidence that he shared the fact that he has a learning disability with students he was instructing.

31But this evidence alone is not sufficient to affix Professor Winton with knowledge of the applicant’s learning disability. The applicant points to two specific pieces of evidence to support that Professor Winton was aware of his learning disability.

32First, Professor Aziz testified that at a meeting attended by her and other faculty members, including Professor Winton, Professor Rettig made specific mention of the applicant’s learning disability. Her evidence initially was that Professor Rettig stated that the applicant had a learning disability and that he didn’t think the applicant was a suitable candidate to be hired. She testified that this statement was seconded by Professor Heywood, and that other faculty members including Professor Winton and Professor Tamasauskas were in agreement. She testified that she was the only one who objected to Professor Rettig’s statement.

33When Professor Aziz returned for cross-examination, her evidence regarding what was said at this meeting changed. At this time, Professor Aziz stated that Professor Rettig made mention of the applicant’s learning disability in the context of a general discussion of potential candidates for positions in the Fine Art program. At this time, Professor Aziz stated that after mention of the applicant’s learning disability, the discussion just stopped. She stated that the implication was that the applicant was not a suitable candidate to be hired, but no one actually said this. She recalls raising an objection to Professor Rettig’s mention of the applicant’s learning disability and why he was bringing this up in that particular context.

34Professor Aziz was unclear as to the timing and context of this meeting. Her evidence is that the meeting occurred when a particular individual may have been Head of the Department. She recalled that it was not a committee meeting to make a decision about who should be hired for any specific position, but rather was a full faculty meeting at which there was a general discussion about hiring for positions in the department. When she returned for cross-examination, she recalled that the meeting took place in the spring and may have been a “cross-over” meeting, which I understand to mean a meeting at the end of one term and prior to the beginning of the next term. The evidence before me suggests that this meeting may have taken place in the spring of 2001.

35All of the identified participants in this alleged meeting were called to testify before me. None of them recalled a meeting of this nature where the applicant’s learning disability was discussed in the manner indicated by Professor Aziz. Professor Rettig testified that he had a vague recollection of an occasion when he mentioned the applicant’s learning disability and Professor Aziz objected, but states that this statement was not made in the context of saying that the applicant should not be hired, but rather in defence of the applicant in response to some criticism of him. In my view, Professor Rettig’s recollection of the context in which he made reference to the applicant’s learning disability is more probable, as Professor Rettig appeared to be very supportive of the applicant. He had invited the applicant to come to the respondent University after completing his M.F.A., he had introduced the applicant to Professor Aziz in the context of the applicant obtaining work at the University, he had taught courses with the applicant, and he was generally positive about the applicant’s teaching and artistic abilities.

36Even accepting, as I do, that on some occasion perhaps six years prior to the hiring decision at issue in this case, Professor Rettig made mention of the applicant’s learning disability in the presence at least of Professor Aziz, this still does not provide evidence that Professor Winton was present on this occasion or that she attended to Professor Rettig’s comment and retained this knowledge in the spring of 2007. On the basis of the evidence before me, I am not satisfied that a meeting occurred as testified to by Professor Aziz where Professor Winton was present, particularly in view of the inconsistencies in her evidence as to what Professor Rettig actually said. I also am not prepared to find that Professor Winton was present on the occasion vaguely recalled by Professor Rettig. Professor Rettig did not have a recollection, vague or otherwise, that Professor Winton was present on this occasion.

37The second piece of evidence relates to an issue that arose in 2000 regarding the use of student photographs, to which the applicant took exception. The applicant’s evidence is that, in this context, he stated at a faculty meeting that even as a person with a learning disability, he was still able to remember student’s names without the use of photos. While they could recall the issue about the use of student photographs, neither Professor Winton nor any of the other faculty members who testified recalled the applicant stating in this context that he had a learning disability. While it may very well be that the applicant made such a statement seven years prior to the hiring decision at issue, that is a separate question from whether, in the context of the student photos issue, any reference the applicant may have made about having a learning disability registered with Professor Winton or the other faculty members and/or whether any such reference was retained over the ensuing years. In my view, given the state of the evidence on this issue, I am not prepared to find on balance of probabilities that any reference the applicant may have made to his learning disability in the context of the student photos issue provides a sufficient and reliable basis to conclude that Professor Winton was aware of the applicant’s learning disability at the time of the hiring decision at issue in this case.

38Accordingly, I am not satisfied that the evidence relied upon by the applicant establishes that Professor Winton was aware of his learning disability and carried this knowledge with her when she participated in the hiring decision in the spring of 2007. I further find that the evidence does not support that Professor Winton perceived the applicant to have had a disability at the time of the hiring decision.

The test for circumstantial evidence cases

39This fundamentally is a circumstantial evidence case. There is no direct evidence before me that either the applicant’s learning disability or his association or relationship with a member of a protected group was considered as a factor in denying him the Sessional Adjunct Instructor position in the spring of 2007. The evidence before me is that there was no discussion of Mr. Blakely’s learning disability during the course of the committee’s deliberations, nor was there any discussion of his relationship or association with Professor Aziz. There is no evidence to contradict this.

40It is not at all unusual that cases alleging discrimination in relation to a hiring decision proceed on the basis of circumstantial evidence, as applicants generally are not privy to the discussions held by the persons who made the hiring decision and as it is not uncommon that unstated and sometimes even unconscious biases may affect a hiring decision.

41Traditionally, this Tribunal has applied a three-part test in circumstantial evidence cases, namely:

a. Whether the applicant has established a prima facie case of discrimination because of the ground alleged;

b. If so, the evidentiary burden then shifts to the respondent to provide a credible, non-discriminatory explanation for its decision; and

c. Ultimately, the question for determination is whether discrimination on the ground alleged is more probable than the actual explanation offered by the respondent.

42The respondent has urged me to apply this traditional test, and particularly to find that the applicant has not established a prima facie case. In relation to what constitutes a prima facie case in the context of a hiring decision, the respondent submits that I should apply the test set out in Shakes v. Rex Pak Limited, 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001 (the “Shakes test”), which requires an applicant to establish the following:

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

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

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

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

43In previous decisions, I have been critical of the traditional three-step circumstantial evidence test and of the Shakes test: see, for example, Ogunyankin v. Queen’s University, 2011 HRTO 1910, at paras. 89 to 101. In particular, in the circumstances of the instant case, the respondent urges me to find that the applicant has not satisfied the fourth element of the Shakes test, namely that Mr. Oxley was no better qualified than he was. Closer examination of what would be entailed in making such a finding reveals, in my view, the deficiencies of both the Shakes test and the three-step circumstantial evidence test.

44I already have observed that the assessment of whether an applicant has made out a prima facie case is to be determined on the basis of the applicant’s evidence without consideration of the respondent’s evidence, since consideration of the respondent’s explanation for its decision traditionally occurs at the second step of the analysis: see Ogunyankin, supra at para. 92; Correia v. York Catholic District School Board, 2011 HRTO 1733, at para. 33; Persaud v. Toronto District School Board, 2009 HRTO 1728, at para. 187.

45Where I am only to consider the applicant’s evidence, how is it that I am to conclude that Mr. Oxley was or was not better qualified than the applicant? The applicant believes he was better qualified to teach this specific Introduction to Drawing course than Mr. Oxley, but surely the applicant’s own personal belief is not sufficient. Without hearing the respondent’s evidence, how am I to know in this setting what considerations were important to the committee members in assessing the qualifications of the various candidates and why they felt that Mr. Oxley was better qualified than the applicant? In my view, this is a highly artificial exercise that places an unrealistic barrier in the way of applicants in being able to get past even the first hurdle of the circumstantial evidence test.

46Recently, in Shaw v. Phipps, 2012 ONCA 155, the artificial separation of the various elements of the traditional circumstantial evidence test was criticized by the Ontario Court of Appeal. In that case, the appellants (who were the respondents before this Tribunal) argued that the proper application of the circumstantial evidence test required the Tribunal to make a determination that the applicant had established a prima facie case of discrimination before calling upon the respondents to provide their evidence in response. In rejecting this argument, the Court of Appeal states (at para. 28):

Where as here, the person alleged to have discriminated chooses to give evidence, the Adjudicator must decide the case based on all the evidence. Moreover, the argument purports to engage the same test at the end of the complainant's case as at the end of Constable Shaw's evidence: whether discrimination has been proven. Recalling the words of the Adjudicator, which were also adopted by the Divisional Court, "[t]he ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent": see Divisional Court reasons at para. 77 and Adjudicator's reasons at para. 17. In the human rights context, there is no rational justification for requiring an adjudicator to decide the same issue on two occasions at two different points in the hearing in the absence of any challenge to the sufficiency of the evidence at the conclusion of the complainant's case.

47In my view, if there is no rational justification for requiring an adjudicator to decide the same issue on two different occasions at two different points in the hearing, there similarly is no rational justification for requiring an adjudicator to decide the same issue at two different steps of the circumstantial evidence test at the conclusion of the hearing. If I were to apply the Shakes test in order to determine whether the applicant had satisfied the first component of the circumstantial evidence test, I would need to compare the relative qualifications of Mr. Oxley as the successful candidate and the applicant in the context of considering whether a prima facie case of discrimination had been made out. And then, two steps later, I would once again need to engage in a comparison of the qualifications of these two candidates, this time enlightened by the actual evidence of the respondent decision-makers, for the purpose of determining whether discrimination was more likely than the respondent’s explanation for its decision. The degree of overlap between the determination of these two parts of the same test is obvious, and the artificiality of deciding the former issue on the basis of the applicant’s evidence while pretending that I have not heard the respondent’s explanation (which by this point I have indeed heard) is apparent.

48Accordingly, to adopt the Court of Appeal’s language, it is my view that there is no rational justification for the traditional three-step circumstantial evidence test. In my view, in circumstantial evidence cases where the respondent’s evidence has been heard, the test should simply be whether the evidence is sufficient to satisfy the adjudicator that discrimination on the ground alleged is more probable than the explanations provided by the respondent, bearing in mind that the onus of proving discrimination always rests with the applicant and that discrimination need only be one factor in the respondent’s decision.

49Adopting this one-step circumstantial evidence test does not preclude the possibility of a respondent asking this Tribunal, or the Tribunal asking of its own initiative, whether there is a reasonable prospect of the applicant succeeding in her or his case at an earlier stage in the hearing process. While a respondent does not have the right to require this Tribunal to determine that issue at the time of the respondent’s choosing, this Tribunal does have the power to consider that question at an appropriate time if it is felt that doing so is consistent with a fair, just and expeditious resolution of the matter: see Russell v. Indeka Imports Ltd., 2012 HRTO 926, at paras. 53 to 57; and Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777.

50But where the Tribunal adjudicator already has heard all of the respondent’s evidence, it is my view that the issue in a circumstantial evidence case should be determined on the basis of the one-step test as articulated above.

Was the applicant’s disability a factor in the hiring decision?

51And so I ask myself the question, on consideration of all of the evidence before me, is the evidence sufficient to satisfy me that discrimination because of the applicant’s learning disability is more probable than the explanations provided by the respondent for deciding to hire Mr. Oxley, bearing in mind that the onus of proving discrimination always rests with the applicant and that discrimination need only be one factor in the respondent’s decision?

52In my view, there are three difficulties presented by the applicant’s case. First, in a case like this one, where the applicant has a non-evident disability, there needs to be evidence sufficient to satisfy me that the individuals involved in making the hiring decision were aware of the applicant’s learning disability or perceived him to have a learning disability. Otherwise, there is no basis upon which to conclude that his learning disability was a factor in the committee’s decision. For the reasons already articulated above, I am not satisfied on the basis of the evidence before me that any of the three committee members, including Professor Winton, were aware that the applicant had a learning disability (or even if Professor Winton had some years previously heard a passing comment to this effect, that she retained that knowledge at the time of the hiring decision in the spring of 2007).

53Second, and even if at least one of the committee members was aware of the applicant’s learning disability, on the basis of a review of the comparative qualifications of Mr. Oxley and the applicant as set out above, the committee members who testified before me were able to articulate objective and intelligible reasons why they considered Mr. Oxley to be the better candidate. He had taught similar courses before. The applicant had not. He was a well-exhibited and recognized artist. The applicant was not. He had taught at the respondent University more recently than the applicant. This is not intended to denigrate the applicant, but rather to say that I am satisfied on the evidence before me that the respondent was able to articulate legitimate, non-discriminatory reasons for its decision to hire Mr. Oxley, that I find are more probable than any conclusion that the applicant experienced discrimination because of his disability.

54In terms of comparative qualifications, the applicant asserts that Mr. Oxley is an abstract expressionist painter and that his work does not include realistic renderings. The applicant states that in contrast, he is highly skilled in rendering and high realism, and that this is particularly important for teaching a course such as Introduction to Drawing, which tends to attract students who are in programs other than Fine Art. This assertion is hard for me to assess. I do not have the portfolios of work that were submitted as part of the application process for the position at issue. However, it is not up to me to assess which artist is more capable of producing realistic drawings. I am not here to substitute my decision for that of the hiring committee. Rather, my task is to hear the reasons why the hiring committee chose Mr. Oxley over the applicant, and to assess whether they are credible and rational as opposed to being a pretext for discrimination. I have found that the committee’s explanation is credible and rational. The decision makes sense based on the evidence before me. Mr. Oxley certainly was capable of teaching drawing courses at Concordia University, and any focus on abstract expressionism he may have in his work did not prevent him from teaching these courses.

55The applicant also points to another candidate, R.A., whom he asserts was more qualified than Mr. Oxley and whom he says actually bested Mr. Oxley in a subsequent job competition. With respect, this assertion has little to do with the case before me. R.A. is not alleging that she experienced discrimination in relation to this competition. It is the applicant who is alleging discrimination, and so it is to his relative qualifications that Mr. Oxley is to be compared. The applicant’s underlying point appears to be that the committee did not in fact make its decision on the basis of merit, as if it had done so, R.A. would have been the successful candidate. Even if there were a basis in the evidence to support that point, it still would not prove that the applicant himself experienced discrimination. However, the evidence does not support the conclusion that the applicant draws. I do not have evidence before me as to the job that R.A. was competing for when she was the successful candidate or when this is alleged to have occurred; if it was sometime after the competition at issue in this proceeding, I do not know whether anything about the qualifications of R.A. or Mr. Oxley changed in the intervening period; and I do not know who was on the committee that decided to hire R.A. As Professor Winton stated in her evidence, different committees may come to different conclusions about competing candidates for equally valid reasons.

56Finally, there is nothing in the evidence before me that would cause me to conclude that the applicant’s disability or any perception of a disability was a factor in the hiring committee’s decision.

57For all of these reasons, I find that the applicant has not proven on a balance of probabilities that his learning disability was a factor in the committee’s decision not to hire him for the Sessional Adjunct Instructor position in the spring of 2007.

Was the applicant’s relationship or association with a person identified by a protected ground a factor?

58As stated above, the alternate allegation raised by the applicant is that his relationship or association with Professor Aziz, who is a woman and a member of a racialized group, was a factor in the denial of the position at issue.

59There is evidence before me to indicate that there was tension and hostility among faculty within the Fine Art program that seemed to center around the relationship between Professor Aziz and her supporters on the one hand and Professor Winton and other faculty members on the other. This is described in some of the documents before me as having given rise to a “chilly climate” in the program.

60There also is no doubt that Professor Shutze and Professor Winton were aware of these issues within the Fine Art program and also were aware that the applicant had sided with Professor Aziz.

61The question for me is whether, in making the hiring decision in the spring of 2007, the applicant’s association or relationship with Professor Aziz was a factor in deciding not to hire him. On the basis of the comparative qualifications of the applicant and Mr. Oxley, as reviewed and discussed above, I find that the evidence does not support such a conclusion on a balance of probabilities. There is nothing about the applicant’s qualifications as compared to Mr. Oxley that causes me to question why the applicant was not hired or even given more serious consideration in the hiring process. As I have stated above, the respondent witnesses were able to explain to me, in terms that I understand and that make sense to me, why they decided that Mr. Oxley was the better candidate for the position. There is no evidence before me to indicate that the applicant’s relationship or association with Professor Aziz was discussed by the committee in its deliberations, nor in my view is there anything about the committee’s decision and the explanation for this decision that raises a suspicion that other factors may have been at play. The criteria identified by the committee for assessing the candidates were rational and sensible criteria, and the application of these criteria to Mr. Oxley and the applicant were credible, intelligible and make sense.

62As a result, I find that the applicant has not proven on a balance of probabilities that his relationship or association with Professor Aziz was a factor in the committee’s decision not to hire him for the Sessional Adjunct Instructor position in the spring of 2007.

63While in some of his materials, the applicant has expressed this as an allegation of reprisal, in my view this allegation is more appropriately addressed in the context of s. 12 of the Code, which provides that a right under the Code is infringed where the discrimination is because of relationship, association or dealings with a person or persons identified by a prohibited ground of discrimination. To the extent that the applicant does seek to raise an allegation of reprisal under s. 8 of the Code, this requires evidence that the applicant sought to claim and enforce his rights under the Code and experienced reprisal for so doing.

64In order to prove reprisal, an applicant must establish that the respondent engaged in an action or threat which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the applicant must establish that the action was taken with an intent to punish or retaliate: Noble v. York University, 2010 HRTO 878, at para. 31. While an intention to retaliate may be inferred on the basis of circumstantial evidence, there nonetheless must be some basis in the evidence to support a finding that the applicant having sought to claim and enforce his Code rights was a factor in the action taken which is alleged to be reprisal.

65In this case, there is evidence before me to indicate that at some point prior to 2003, the applicant raised discrimination issues in the Fine Art program with the respondent University’s Human Rights Office, which were investigated and resolved. However, the evidence before me is not sufficient to establish that the applicant having raised these issues was a factor in the hiring committee’s decision. There is no evidence before me to indicate that the fact that the applicant previously had raised discrimination issues was considered or discussed by the hiring committee, and for the reasons already articulated above, I find that there is no sufficient basis in the evidence to support an inference that this was a factor in the hiring decision.

66For all of the foregoing reasons, the Application is dismissed.