HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
June Ellis
Applicant
-and-
SSAB Central Inc.
Respondent
DECISION
Adjudicator: Judith Keene
Indexed as: Ellis v. SSAB Central Inc.
APPEARANCES
June Ellis, Applicant
Osborne G. Barnwell, Counsel
SSAB Central Inc., Respondent
Carl Cunningham, Counsel
Introduction
1This is a Decision in respect of an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race and colour.
2The applicant self-identifies as Black. She was employed with the respondent through an agency as a temporary worker from July 28, 2008 to the end of February 2010. The applicant took part in a job competition for a permanent position. The Application states that the applicant was told that her services were no longer needed because the position she was filling “had become obsolete and the company was moving in a different direction”, but that she was asked to train the successful candidate, who is white, to do some of the duties she had been doing.
3The respondent denies any breach of the Code. The Response indicates that the permanent job involved “an expanded role beyond pure administrative tasks”, and that the successful candidate had “a broader skill set, including sales and marketing experience that made her better qualified to perform a variety of tasks in the department”.
4The evidentiary burden is on the applicant to establish that, on a balance of probabilities, a prima facie case of discrimination exists. (See Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536, 1985 CanLII 18). Upon the presentation of a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation that its actions were not discriminatory; however, the onus of proving discrimination remains on the claimant throughout (Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, at para.119)
5Direct evidence of discrimination, such as testimony from a witness to discriminatory conduct, is not necessary to establish a breach of the Code. The applicant may rely on circumstantial evidence, which may include evidence of actions or omissions on the part of the respondent that raise inferences that a Code provision has been breached. The inference drawn need not be inconsistent with any other rational explanation to provide evidence of discrimination. Rather, it must be reasonable and more probable than not, based on all the evidence, and more probable than the explanation offered by the respondent. Evidence must always be sufficiently clear, convincing and cogent to satisfy the “balance of probabilities” test stated by the Supreme Court of Canada in F.H. v. McDougall, 2008 SCC 53. In that case, the Supreme Court reaffirmed the nature of the civil standard of proof, and discussed the difficulties inherent in a determination as to whether the testimony of one party is more reliable than that of another. The Court ruled that, where proof is on a balance of probabilities, the trier of fact must not consider the witness’s evidence in isolation, but should consider the totality of the evidence.
6Having regard to these principles, I have concluded that the applicant has not established a breach of the Code.
The Evidence
7I heard evidence from the applicant, who called no other witnesses. I also heard from the respondent’s witnesses. These were Jim Barber (currently employed in the role of Regional Sales and Product Development Manager with SSAB North American division in the United States, and previously, between March 2007 in March 2009, employed as General Manager of SSAB Central Inc.’s Toronto facility) and Jamie McPhail, formerly the respondent's Regional Sales Representative, who was appointed Regional Sales and Inside Sales Manager in March or April of 2009. Mr. Barber supervised the applicant from July 2008 to March/April of 2009, Mr. McPhail from March/April of 2009 to the termination of her employment in February of 2010.
8All witnesses gave evidence under affirmation. Mr. Barber was excluded until he had given his testimony. Mr. McPhail remained in the hearing room throughout as the representative of the respondent.
9A number of the relevant facts are undisputed; where there is disagreement it will be noted below.
10The applicant came to Canada in 1989, and has held a number of jobs. She has also diligently upgraded her qualifications with postsecondary education; she holds a number of certificates and diplomas. The applicant gave evidence about four positions held prior to her work with the respondent, including a brief attempt to establish her own hair product business. She was unemployed in July of 2008 and actively seeking work.
11On July 24, 2008, applicant started working at the offices of the respondent, as an employee of PAL Personnel (“PAL”), a business that supplies temporary staff to other businesses. There is no dispute that at the relevant time, she was the only black person employed the front office of the respondent’s business.
12At the time she was only scheduled to work for three weeks to cover for an employee on vacation (Ms. R), the corporate respondent’s Coordinator of Administration and Accounting. While Ms. R was on vacation, the applicant’s job title was “administrative assistant“; her duties included among other things general office administration, receptionist duties, dealing with accounts payable and receivable and purchase orders, administering a petty cash system and the filing system, and coordination of meetings. She also assisted one of the sales representatives with accounts receivable.
13Mr. Barber confirmed in his testimony that from March 2007 to the time he left in March 2009 the applicant's position did not involve sales. The applicant's predecessor in the position, Ms. R, had not been involved in sales.
14After Ms. R returned from vacation, she became ill and was unable to return to work on schedule. The applicant was then asked if she would like to continue working in the position, and she accepted. It appears that this was in September of 2008. From time to time she would telephone Ms. R. with questions concerning details of the job. Shortly after the applicant was asked to stay on, she and General Manager Jim Barber discussed salary, and the applicant’s pay was increased from $12 to $17 an hour.
15There is some disagreement between the parties as to how well the applicant was perceived as doing the job. In its Response and witness statements, the respondent raised some performance issues. The applicant indicated that she had no information from PAL or from the respondent that there were any concerns with her performance. She stated that Mr. Barber had said she was doing a good job. She recalled no complaints being made, and said that she was shocked when she saw a reference to complaints in the Response.
16The respondent’s witnesses’ actual testimony in respect of performance issues was considerably more temperate than its written materials. Mr. Barber described his relationship with the applicant as “pleasant”. He indicated that he had done no performance reviews in respect of the applicant -- he stated that the respondent did not perform performance reviews for temporary workers. He testified that the applicant had done an adequate job; “not quite as good as” Ms. R, who had had more experience with the company and broader job responsibilities. He described Ms. R. as “upbeat, pleasant on the phone and proactive”.
17Mr. Barber’s witness statement also states that the applicant had occasional disputes when “Jun Llanes, a purchasing manager…attempted to correct or question her work.” In response to this, the applicant testified that, early in her employment, Mr. Llanes had wanted to know how she got the job. She considered this an inappropriate question, but when she consulted Mr. Barber, “he said, just ignore him”. By the end of her time with the respondent she got along well enough with Mr. Llanes that she had lunch with him.
18In cross-examination Mr. Barber stated that there were no major issues with the applicant's performance. If there had been he would have raised these with PAL, which he did not do. Mr. Barber stated that there were some “minor squabbles” between Mr. Llanes and the applicant in that Mr. Llanes had noted some inaccuracy in the applicant’s records, and the applicant had stated she was following instructions she had been given. He stated that Mr. Llanes was very particular about accuracy. He also stated that Mr. Llanes had told him that applicant's performance had improved in this respect after he spoke to her.
19Despite admitting that one of the applicant's duties involved remitting accounts payable, Mr. Barber’s witness statement indicated that the applicant “inappropriately” reviewed the amounts payable to PAL for her services and approached him to request that the respondent issue her pay to her directly, which would be a saving of money. The statement says that, after this conversation, Mr. Barber was “required” to renegotiate the fee paid to PAL for Ellis' services and ultimately the fee was raised to $28.94 an hour.
20Mr. Barber's actual testimony related to this point was that the applicant had access to PAL invoices and that he had not given this much thought until she asked for a raise, pointing out that there might be a way to pay her directly instead of through PAL, which would save money, some of which might go to a raise for her. He stated that after this incident he had PAL invoices sent directly to his confidential attention.
21The respondent’s witness statements for Mr. Barber and Mr. McPhail say “throughout the course of her temporary employment with SSAB, SSAB had received numerous complaints both internally and from customers about [the applicant’s] lack of professionalism”. Mr. Barber’s statement indicates that he “received a number of complaints from customers and from other staff about Ellis’ level of professionalism and demeanour. In particular… a number of customers and inside sales team staff …felt Ellis was not welcoming, was rude and was at times abrupt”.
22In his testimony, the only performance issue that Mr. Barber appeared to regard as a problem had to do with the applicant's telephone manner. He said that he had heard comments from two “major customers” that the applicant, answering the telephone as receptionist, spoke in a monotone and appeared uninterested. However, he did not mention the comments to the applicant nor did he do any coaching. He recalled only explaining to the customers that the person who answered the phone was a temporary staff person.
23In his testimony, Mr. McPhail stated that, when he took over from Mr. Barber as the applicant’s supervisor, he was aware of some performance issues with the applicant; “some attitude issues”, as well as “the issue with Llanes”. He stated that one employee had said that he found it difficult to work with her. He admitted that there had been no written complaints about the applicant. He stated that “one of the salespeople” and a customer who spoke with him had described the applicant's telephone manner as showing “not a great level of enthusiasm” or as “abrupt”. Mr. McPhail stated that he had raised this with the applicant and told her that “she should conduct herself in such a manner that customers look forward to calling us”. He stated that she seemed receptive to this criticism.
24The respondent did not call Mr. Llanes to testify, and on its witnesses’ testimony, there seemed to be no perception by the applicant’s employer of serious performance issues. Certainly, there was nothing that barred Ms. Ellis from being considered for the permanent position on October 8, 2009.
25The applicant’s circumstantial evidence relevant to the job competition largely involves Mr. McPhail; she did not dispute Mr. Barber’s testimony that he had no involvement in the competition. The sole exception is that the applicant alleged that Mr. Barber had told her that if and when Ms. R, resigned, “he would take me on”. In his testimony, Mr. Barber did not recall telling the applicant that he would take her on if Ms. R did not return; he stated that it was more likely that he stated that she would be welcome to apply in that eventuality. On cross-examination the applicant agreed that he may have said that she would be welcome to apply.
26The applicant testified that, prior to Mr. McPhail's appointment, she had worked with him and had never encountered any problems. The work involved the applicant asking him for his clients list so that she could send Christmas cards to his clients. Other than that she did not have any work interaction with him as he worked out of the office. The applicant stated that, after Mr. McPhail was promoted to Mr. Barber’s position, she noticed that he would walk past her in the reception area and ignore her greeting.
27The applicant stated that she was not asked to do things that had previously been part of her job. She stated that she would ask Mr. McPhail what he wanted her to do but he declined to assign her to anything. She noticed that duties that she had routinely performed competently were being assigned to white members of staff. Those staff then asked the applicant for help in completing their assignments.
28In response to questions about changes in the applicant's duties, Mr. McPhail gave uncontested evidence that the accounts payable function previously performed by the person in the applicant’s position was no longer being done in the Scarborough office; it had been transferred to “finance specialists in Iowa or Chicago”. He stated that the transfer of accounts payable duties had nothing to do with the applicant or with her performance. Mr. McPhail denied that he had stopped asking the applicant to do her usual tasks. He did not specifically deny asking other employees to do work that may have been assigned to the applicant. He did not explain this other than to say that this was never done on the basis of race or colour. He denied ignoring her greetings and specifically stated that he did return them.
29The applicant stated that she was no longer asked to coordinate meetings, and was excluded from office meetings soon after Mr. McPhail took over. She asserted that, prior to Mr. McPhail's promotion, she attended meetings.
30Mr. Barber's recollection was that the applicant had not usually attended staff meetings, as these were about logistics for office and sales personnel. His recollection was that Ms. R had not attended these meetings, either. Mr Barber stated that there were also “rare” meetings about the group insurance and pension plan, which was not open to the applicant as a temporary worker. He stated that the applicant was needed to answer the phone during meetings, and “we shared anything relevant with her”. However, on cross-examination concerning meetings with personnel from the United States, he admitted that Ms. Ellis coordinated the food for those meetings and that she may have attended those meetings.
31Mr. McPhail recalled that the applicant was excluded from meetings; the example he recalled was a meeting that was held when the benefits package was changed to another insurance company; as noted above, the applicant was not a participant in the insurance plan. He stated that the applicant was excluded from most meetings because he insisted that there was always someone to answer the phone when meetings were held, but that the applicant did attend some meetings such as “safety lunches and the Christmas party”. Mr. McPhail stated that the present arrangement in regard to meetings is that the “three inside sales staff” and Ms. S (the candidate who replaced the applicant) work out an arrangement for attending meetings while ensuring that someone remains outside the meeting to ensure that the phones and reception are taken care of.
32In June 2009, Ms. R resigned. The applicant understood that there was some litigation between Ms. R and the company. She stated that in August Mr. McPhail came to her and abruptly told her that she should cease all communication with Ms. R. He never told her why. Mr. McPhail testified that he told the applicant to stop calling Ms. R early in July of 2009 when it appeared that she would not be returning to work and was no longer an employee.
33The applicant states that she never at any time shared company information with Ms. R. The times she spoke with Ms. R were to ask assistance in completing an office procedure when she started filling in for Ms. R. On cross-examination the applicant did not change her position that at the time Mr. McPhail told her not to speak to Ms. R, she did not know about the litigation and he did not give her a reason for his direction.
34The respondent decided to find a permanent replacement for Ms. R. Mr. McPhail indicated that the corporate respondent provided PAL with criteria and PAL found candidates from their database.
35The respondent filed and relied upon (Exhibits 12 and 13) two job descriptions for “Administrative Assistant”, both dated September 1, 2009. Each contains the phrase “general sales support” in its list of “administrative activities”. The jobs described in these documents are identical in relevant particulars; they do not have supervisory duties, and do not seem to be more than administratively involved with sales. Exhibit 12 was described as an “internal” document. Mr. McPhail referred to Exhibit 12 as having been produced during the process of drafting a job description, in which he was involved along with human resources staff. Mr. McPhail stated that the description filed as Exhibit 13 was the one provided to potential candidates, as well as to PAL. In cross-examination, Mr. McPhail further indicated that the job description had not been given to the applicant or to the other candidates in advance of the interview.
36Mr. McPhail testified that the new position was not intended to be the same as the one the applicant had performed. He referred to the removal of the accounts payable function as one of the reason for the change in job duties. He explained that he wanted the successful candidate to have the potential to go on to other roles within the company: “we wanted to cross train as much as possible” in order to “facilitate backfill” in a small workplace. On cross-examination he admitted that the only change to the actual job description was the addition of the phrase “general sales support”.
37Mr. Barber testified that, from March 2007 to the time he left in March 2009, the applicant's position did not involve sales. The applicant's predecessor in the position, Ms. R, had not been involved in sales.
38Neither party submitted a written job description purporting to describe the position filled by the applicant prior to the competition. I am left with the uncontradicted evidence of Mr. McPhail that the only change to the job description was the addition of the phrase “general sales support”. It therefore appears, and I conclude, that the previous job description reflects the two job descriptions submitted in evidence, but without the phrase “general sales support”.
39The corporate respondent struck a hiring committee consisting of Mr. McPhail, Mike Mayberry and Paul Paciocco. The latter two were not called as witnesses. Mr. McPhail's recollection is that not all candidates were interviewed by the full committee. He also stated that the committee did not in fact have authority to hire; they could recommend a candidate to Mr. Moskaluk, the president of the company, who was based in the United States. Mr. Moskaluk was not involved in any of the interviews.
40Mr. McPhail testified that he advised the applicant about the position prior to the competition: “I said that we were in a position to be filling the administrative role and she was more than welcome to apply”. The applicant had no recollection of this; she stated that she learned about the competition for Ms. R’s job when several staff told her that the job was available and that she should apply. In September she sent in a résumé to Mr. McPhail. She testified that she understood the job was to consist of the duties she was already performing.
41The applicant had an interview on October 8, 2009. She was interviewed by Mr. McPhail, Mike Mayberry and Paul Paciocco. The interview took “about 20 to 25 minutes”. The applicant says she was asked questions, and was told that she met the qualifications. She stated that she was asked if she was willing to be trained in sales and that she had said she was. She stated that she was told the hardest part would be “doing the medical”-- apparently there are “medical tests”, which apparently involved testing for drug use, before a candidate is accepted. The applicant did not claim that anyone in the interview offered her the job, and this was confirmed on cross-examination. In cross-examination she maintained that she did not recall anyone saying that the company was going in a new direction in respect of the position. The applicant stated that at no time was she told that sales experience was critical, and that there was no discussion about a role in sales, other than the question about her willingness to train.
42Mr. McPhail’s recollection of the applicant’s interview was that he discussed the applicant’s experience during her time with the corporate respondent, and indicated that the role might move into sales and purchasing. He stated that he did not raise performance issues, although the hiring committee still had some concerns about the applicant's “attitude”. He confirmed the applicant's evidence that there was a reference to the medical requirement. On cross-examination, he admitted that he had not discussed the future importance of “cross-training”, and could not recall if he had asked the applicant if she had any sales experience.
43The applicant stated that, because sales had been raised in the interview, she asked Mr. McPhail to see some sales data. She says he declined to let her see any sales data because she did not have the requisite security clearance. Mr. McPhail did not recall this.
44There was some delay before the applicant heard the result of the job competition—the applicant was interviewed in October of 2009 but the result of the competition was not announced until February of 2010. Mr. Barber and Mr. McPhail confirmed that due to an economic downturn, in late 2008 or early 2009 SSAB imposed a hiring freeze on permanent positions, which according to Mr. McPhail was not lifted until “September or October” of 2009.
45After the hiring freeze concluded in October of 2009, SSAB again commenced interviewing candidates referred by PAL for the position. The delay from October 2009 to February 2010 was explained by Mr. McPhail as having been caused by difficulties in finding the right candidate for the job.
46The respondent filed an interview schedule (Exhibit 14) which lists eight candidates, not including the applicant. Mr. McPhail explained the applicant's absence from the list as caused by the fact that PAL had arranged the appointments of the other candidates; the applicant’s interview was arranged at the workplace. The review schedule notes appointments made between September 2009 and the end of January 2010, with one in September, three each in October and November, one in December and two in January (two candidates were interviewed twice). The successful candidate was interviewed on January 22 and again on January 28, 2010.
47Mr. McPhail stated that he had made interview notes, but had not retained them after the successful candidate was hired. He gave evidence about the candidates based on his recollection. When he needed to refresh his memory he was permitted to refer to notes, filed as Exhibit 11, which had apparently been taken by someone at PAL, entitled “PAL Personnel Services Order Master Report”. In handwriting on the Report is the notation “Feedback from Interviews”. The parts of the Report which appear to reflect the interview process are divided by candidate (including the applicant, the successful candidate and seven others) and contain names of candidates and notes.
48Mr. McPhail’s recollection of the candidates can be summarized as follows. Ms. J, while “a nice woman”, was very quiet and said very little -- he concluded that she would not be able to handle the environment. Ms. PK had “a great skill set and background”; he could not recall why she was not hired. Ms. MR had very little experience and was not qualified for the job. Ms. CO was too reserved and quiet. Ms. CC was highly educated and had a background in banking. He felt she would not have stayed with the job as she would have got bored and moved on. Ms. SQ was a favoured candidate but she accepted another offer. Ms. BG was interviewed; he did not recall why she was not offered the job.
49Mr. McPhail stated that Mr. Mayberry and Mr. Paciocco still had “some concerns about [the applicant’s] attitude”. However, on October 28, 2009, he recommended hiring the applicant. At that point, according to the interview list, he had seen three other candidates and the applicant. He stated that as of October 28 he had spent a fair amount of time on the interview process, the applicant was there already and she seemed receptive to further training and evaluation. He said he was frustrated with the process and wanted to move on with the business at hand. He stated he would have planned to ensure that there were improvements in the applicant’s attitude and “voice with customers”.
50The respondents offered corroborative documentary evidence of Mr. McPhail's initial willingness to hire the applicant in the form of e-mails between Mr. McPhail and his supervisor Mr. Moskaluk. Exhibit 15 consists of an e-mail dated October 28, 2009 which reads as follows:
After interviewing several candidates, I would like to recommend that we bring June Ellis on full-time. This has been discussed in depth between myself, Mike Mayberry and Paul Paciocco, and both Mike and Paul are in agreement that June is the best candidate for the job.
June has demonstrated that she is capable of handling any administrative task that is put in front of her and has expressed interest to get involved in other areas of the business…
June has successfully worked within the “temp” framework… and I feel that if given broader framework and freedom June will take the position further than originally designed. While working inside this “temp” framework, June has taken upon herself to review specific areas of our business’ costs and make the necessary changes to save money.
I believe keeping June is what is best for SSAB Toronto. Once we have officially brought her on, my plan is to sit down and conduct a thorough review of her performance and provide her with constructive feedback, identifying areas of improvement, and design a short and long-term development plan.
51Mr. Moskaluk’s reply e-mail later that day is reproduced here in full:
We need to talk. This is a 180 from where you were. Give me time to understand the sudden change in your evaluation of June and her improvement in her duties.
52Mr. McPhail testified that he had a conversation with Mr. Moskaluk after the exchange of e-mails. He was not sure whether his subsequent conversation with Mr. Moskaluk took place by telephone or face-to-face. He stated that Mr. Moskaluk had advised him to think about what would be best for the business in the long term. Subsequent to the conversation he retracted his recommendation to hire the applicant and went on with more interviews.
53The interview list (Exhibit 14) submitted by the respondent indicates that the respondent had conducted five interviews, including that of the applicant, at the time of the e-mail communication of October 28, 2009. Mr. McPhail retracted his recommendation, and went on to conduct six more interviews during November, December and January. According to that list, the successful candidate was interviewed on January 22 and 28, 2010.
54In regard to Ms. S, the successful candidate, Mr. McPhail recalled that he was impressed with her from the beginning— “she asked questions about the industry and had done some background work to prepare— it was a conversation more than an interview”. He stated that her experience included a diverse business background, including supervisory experience, and that she seemed to be a person who took on initiatives. Mr. McPhail stated that he called PAL and recalled receiving “positive feedback”. The other hiring committee members were also impressed with this candidate. He called Mr. Moskaluk, who approved the hiring. He made an offer and the candidate accepted.
55The applicant testified that she was told that the delay in choosing a candidate was because “they were waiting on head office”. She had no knowledge of a hiring freeze. The applicant did not know whether other candidates were being interviewed; she says she found out about this only in February of 2010 when she was told she would not get the job. She stated that she was called into Mr. McPhail's office and told that her contract would not be extended.
56The applicant was given two weeks’ notice. She said she asked “what have I done?” She recalled being told that she had done nothing, but that the respondent was looking for someone “in sales”. The applicant stated that she was asked to train her replacement, and that Mr. McPhail asked her to make a list of her job duties. When the applicant called PAL and told them about the termination of her contract, she was asked if she would be willing to train her successor. She asked what training she would be doing, given that this was a sales position, and was told that the company wanted her to show her successor her daily duties. She replied that she needed about a week to finish her own work, but that she would be willing to do so.
57Mr. McPhail recalled that the applicant was shocked when he told her that she had not been hired. He stated that he explained that he was looking for a broader skill set so that the successful candidate could take on additional roles over time. He denied saying that the applicant's position was obsolete or that the new position would be operating exclusively in sales. In cross-examination, Mr. McPhail indicated that he knew the applicant was unhappy with the decision but that he felt it was the right decision for the business. When asked if he was comfortable in terminating the applicant's employment, he stated that he would not have been human had he not felt some discomfort at the applicant's distress. He confirmed that he had asked the applicant to help train her successor in the systems used in the office. When asked in cross-examination if he did not feel that this was demeaning to the applicant's dignity, he stated that he did not see it that way. He indicated that this was the first time he had terminated anyone's employment.
58In the event, the applicant did not train her successor. On the weekend after she was told that her contract was terminated, she received news that a young nephew had died in St. Vincent’s. She described this news as “devastating”. The applicant stated that this news, in addition to of the loss of her job left her depressed and disoriented. She stated that she e-mailed Mr. McPhail to tell him about the situation and to tell him that she could not come in at least one of the days after the contract was terminated. She recalled coming in for at least one day after the termination of her contract, but she left Canada to go to the funeral the following week.
59Mr. McPhail indicated that the successful candidate, Ms. S, was still in the job and performing well. He stated that Ms. S performs tasks that the applicant did not perform, such as undertaking projects including a new purchasing system for suppliers, mainframe changes and a change of the phone system and e-mail system. None of his evidence on this point indicated that the successful applicant was now involved in sales, although he indicated that she provided some administrative support to sales staff. In cross-examination he defined that as “acknowledging orders and collating documents”.
60The applicant's résumé, which was filed with her Reply (Exhibit 1), says that she has over 10 years of experience (she had over 11.5 years of office experience at the time the respondents terminated her employment) focused on accounts payable and teambuilding. Her jobs as listed on the résumé include accounting clerk, customer service representative and accounts payable clerk. She received an accounting clerk certificate in 2003 and studied at an Ontario college in 1996.
61The successful candidate’s résumé (Exhibit 18) indicates that she had 15 years of experience in office administration at the time she was hired. Apparently she began employment in 1996 as a sales and marketing assistant went on to jobs as an administrative assistant and receptionist, and had her first job “accounts payable supervisor” in 2002-2003 apparently for less than a year although no precise dates are given. From 2003 to 2006 she was a help desk lead in an IT department, which appears to have included supervision, and from 2006 to the point at which he was hired by the respondents she had been an administrative assistant. The résumé says she spent one year at each of two Ontario colleges and three years at a Vancouver community college.
ANALYSIS
62In cases in which an applicant claims that a job competition offends the Code, the applicant establishes a prima facie case by demonstrating the following three items:
a) that the applicant was qualified for the particular employment;
b) that the applicant was not hired; and
c) that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position.
(see Kiyaga v. Windsor (City), 2010 HRTO 1516; Shakes v. Rex Pak Ltd. (1981), 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001, at para. 8919; Abouchar v. Metropolitan Toronto School Board (1998), 1998 CanLII 29892 (ON HRT), 31 C.H.R.R. D/411, [1996] O.H.R.B.I.D. No. 21; Offierski v. Peterborough (County) Board of Education (1980), 1980 CanLII 3898 (ON HRT), 1 C.H.R.R. D/33 (Ont. Bd.Inq.), at para. 269; Basi v. Canadian National Railway Co., (1988), 1988 CanLII 108 (CHRT), 9 C.H.R.R. D/5029 (C.H.R.T.)).
63There has been no dispute that the applicant performed her job competently, and it is clear from Mr. McPhail’s initial recommendation to Mr. Moskaluk that he at least considered her able to develop her skills to meet changes in duties. It appears from a review of the résumés that, although the successful candidate’s résumé includes more years of office work and a somewhat broader variety of experience, the applicant and the successful candidate were similarly qualified in relation to the job description. The applicant, who is a racialized person, was not hired and an individual who is not racialized was hired. For these reasons, I find that the applicant has established a prima facie case of breach of s. 5 of the Code.
64Having found that the applicant has established a prima facie case under s. 5 of the Code, the burden shifts to the respondent to provide a credible and rational explanation that its actions were not discriminatory. However, as noted above I must have regard to the totality of the evidence and the onus of proving discrimination ultimately remains on the claimant throughout.
65The applicant has raised circumstantial evidence in respect of alleged behaviour on the part of Mr. McPhail that made her believe that he had a negative attitude toward her because of her race or colour. I do not find that the applicant was less than credible in her statements, but her allegations are largely based on her perceptions about changes in her working environment in respect of which an individual may be sincere, but mistaken.
66In respect of her claim that Mr. McPhail would walk past her in the reception area and ignore her greeting, Mr. McPhail denied ignoring her greetings and specifically stated that he did return them. It is difficult to make a finding in relation to this claim. The applicant’s evidence did not cite any specific instances, and there is no evidence in respect of the applicant’s assertion other than the recollections of the two individuals. In respect of any individual situation, it is certainly possible that a greeting might not be returned for reasons other than aversion toward the greeter; if, for example, the person greeted is preoccupied or does not hear a greeting, or if the greeter does not hear a response that was in fact made. These details were not explored by counsel. Insofar as the applicant’s allegation if that Mr. McPhail routinely failed to acknowledge her greeting, this has not been established on a balance of probability.
67The applicant’s testimony that duties that she had routinely performed competently were being assigned to other members of staff, who are white, is a fairly broad claim; specific instances were not cited, and once again, there is no evidence in respect of the applicant’s assertion other than the recollections of the two individuals. Mr. McPhail did not recall (but did not deny) assigning other staff tasks that the applicant performed; he denied that any such assignment was done for reasons that included race or colour. Mr. McPhail gave uncontested evidence that the accounts payable function previously performed by the person in the applicant’s position was no longer being done in the Scarborough office; it had been transferred to personnel in the United States, for reasons unrelated to the applicant. This alone would have left the applicant with less to do than she had previously done, which would have contributed to a perception that Mr. McPhail was assigning her less work.
68The applicant did not claim to have previously attended all meetings in the office, but alleged that she was excluded from meetings by Mr. McPhail. Mr. McPhail did not deny excluding the applicant from meetings; in his view, she was needed to answer the phone. In respect of the applicant’s claim about meetings, the dispute seems largely to be about how much of a change was effected by Mr. McPhail, as well as whether the exclusion was related to race or colour. Mr. Barber's recollection was that the applicant had not usually attended staff meetings, as these were about logistics for office and sales personnel. His recollection was that the applicant’s predecessor in the job, Ms. R, who was not a racialized person, had not attended these meetings, either. Mr. Barber stated that there were also “rare” meetings about the group insurance and pension plan, which were not open to the applicant as temporary workers did not partake in the plan. He stated that the applicant was needed to answer the phone during meetings, and “we shared anything relevant with her”. He did say that the applicant arranged food for and may have attended meetings with personnel from the United States. The evidence indicates that neither the applicant’s predecessor nor her successor in the job attend all meetings. It appears that Mr. McPhail’s stated reason for excluding the applicant was part of Mr. Barber’s rationale for her exclusion from meetings prior to Mr. McPhail taking over. I accept that Mr. McPhail may have enforced that rule more strictly, but there appears to be no clear connection between this enforcement and the applicant’s race or colour.
69Is there a rational, non-discriminatory, non-pretextual explanation for the result of the competition? The evidence of the respondent is that the applicant's first supervisor, Mr. Barber, believed that the applicant had done an “adequate” job; “not quite as good as” her predecessor Ms. R, who had had more experience with the company and broader job responsibilities. Mr. Barber also testified to some performance problems with the applicant: the early friction between the applicant and the respondent’s purchasing manager, Mr. Llanas, and the complaints from two “major customers” that the applicant, answering the telephone as receptionist, spoke in a monotone and appeared uninterested. Mr. Barber did not bring the latter problem to the applicant’s attention, but Mr. McPhail, taking over from Mr. Barber as the applicant’s supervisor, did raise the customer complaints with the applicant, telling her that “she should conduct herself in such a manner that customers look forward to calling us”. He was favourably impressed with her response to his criticism, but it appears from his uncontradicted testimony that neither he nor the other members of the hiring committee were unaware of some perceived performance problems, although I have concluded that these did not appear to the respondent as major flaws.
70There was also some evidence from Mr. McPhail, which was not shaken in cross-examination, that he wanted to hire someone into the permanent position who could “back fill” in other positions, and that this was why he added “general sales support” to the job description. No candidates were given the job description before they attended the interview. The applicant confirmed that she was asked during the interview if she were willing to be trained in sales, which indicates that at least to this extent, there was a discussion of expanded duties. I accept that Mr. McPhail, as a new manager, did have some plan, albeit rather vaguely expressed, to make his staffing situation more flexible by including other duties as required. This could have been made much more clear in both the respondent’s communication with candidates and in the job description, as a matter of general fairness. However, the establishment of a breach of the Code requires a connection between demonstrated unfairness and the personal characteristics included as grounds of discrimination, which the evidence on this point does not establish.
71Perhaps the strongest evidence supporting the respondent’s position that the respondent's failure to hire the applicant was unrelated to her race or colour of is the e-mail evidence that indicated that Mr. McPhail was willing to hire the applicant permanently. His evidence is that his boss, Mr. Moskaluk, suggested that he continue the search for someone who would be a better “long-term fit”. There is no evidence that Mr. Moskaluk was aware of the applicant's race or colour. Mr. McPhail made his recommendation on October 28, 2009. He retracted it after discussion with Mr. Moskaluk, and undertook six more interviews after he did so. The recommendation and its retraction occurred almost three months before Mr. McPhail’s first interview with the successful candidate, a fact that militates against any suggestion that the retraction had any connection with the race or colour of the successful candidate, as opposed to that of the applicant. On the evidence before me, the successful candidate had a somewhat broader variety of experience. I conclude that the decision was more likely than not to have resulted solely from Mr. McPhail’s opinion concerning the applicant’s past performance and the successful candidate’s experience and preparation for the interview.
Other Evidentiary issues
Corporate policies
72Mr. Barber testified that the company had a diversity and equal opportunity policy and that staff had received training on this and that it was posted. However, on cross- examination Mr. Barber confirmed that these policies were implemented in 2011, well after the applicant's contract had been terminated. Prior to that there had been no diversity training. Ordinarily evidence that a business has implemented diversity training is circumstantial evidence of appropriate corporate behaviour in respect of human rights. In this case I have not taken diversity training undertaken two years after the alleged events into account in assessing the evidence.
Implications of the applicant’s “delay” in filing the Application
73The applicant filed her Application close to the end of, but within, the one year period referenced in s. 34 of the Code. While initially the respondent claimed prejudice related to unfortunately-timed changes in its e-mail system, this claim was not followed up at the hearing. However, in the course of the hearing, the respondent suggested that the fact that the applicant did not file this Application until near the end of the one-year time limit should, for reasons that were not made completely clear, be considered a point against the credibility of her allegations. I have drawn no such inference, and it would be unwarranted to do so.
74The applicant stated that, as a woman of colour and an immigrant, she had encountered racism in her life in Canada. I have no reason to doubt that. Racism is one of the reasons the Ontario legislature saw fit to enact human rights legislation, and unfortunately, it is still part of life in Canada as in other countries. The Supreme Court of Canada has accepted that racism in Canada is so “notorious” that it can safely be a fact of which judicial notice can be taken. (See R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at para. 5.)
75The applicant stated that she had hesitated and discussed her experience with friends and family, as well as consulting with counsel, before deciding to go ahead with her Application. The decision to retain counsel and launch a legal proceeding is not one that most individuals take lightly; it requires careful consideration.
76In addition to the caution about undertaking litigation common to most responsible individuals, there are reasons germane to the context of human rights that can also result in some delay in filing an Application. The Honourable R. Roy McMurtry, former Chief Justice of Ontario, in an address to the 2012 Social Justice Tribunals Professional Development Institute, stressed that tribunals should develop and maintain awareness of the many ways in which disadvantage and the pursuit of justice intersect. He noted as a particular example that the experience of racism can profoundly affect the way in which many of those subjected to it relate to and view the world, and the justice system:
While racism pervades the social context for many, it can still come as a brutal shock to its direct victims. The resulting challenge to self-esteem can lead many to try and find another explanation; to assume that it can't really have happened to them.
Far from a rush to complain, there can be a denial of the experience, followed by real concerns about the impacts of challenging it. A personal sense of worth, relations with family and friends, and sometimes housing or employment prospects can seem to be at risk… overcoming these concerns, whether in making a complaint or responding to a claim, takes time and emotional energy. As a result, issues of racism are often slow to be raised and evidence and witnesses may not have been immediately sought. Understanding these dynamics need not dictate conclusions drawn by an adjudicator in such circumstances, but I would say it must inform them. (from Notes for an Address by the Hon. R. Roy McMurtry)
77I understood from the applicant’s testimony that the applicant’s hesitation was at least in part because she did not wish to believe that discrimination was even one of the reasons why she was not successful in the job competition. This is understandable; the conclusion that discrimination barred his or her chances is in itself a depressing one, which an individual might only acknowledge after weighing the facts available, and with reluctance. That reluctance may translate into delay in filing an Application, and in my view no negative conclusions can properly be drawn from that delay.
Conclusion
78In conclusion, having regard to my findings above and on the totality of the evidence, I find that the applicant has not established on a balance of probabilities that her rights under the Code were infringed. The Application is dismissed accordingly.
Dated at Toronto, this 22^nd^ day of October, 2012.
“Signed by”
Judith Keene
Vice-chair