HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
David Shaw
Applicant
-and-
City of Ottawa
Respondent
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Shaw v. Ottawa (City)
APPEARANCES BY
David Shaw, Applicant ) Self-represented
City of Ottawa, Respondent ) David Patacairk, Counsel
INTRODUCTION
1The applicant, who applied to be a probationary firefighter with the respondent, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on October 30, 2009, which alleged that the respondent discriminated against him with respect to employment because of his age.
2Specifically, the applicant alleged that the respondent’s points system for assessing job applications discriminated against older candidates, that the respondent required him to submit documents during the hiring process that disclosed his age, and that the respondent did not hire him as a probationary firefighter because he was an older candidate.
3The respondent filed a Response on December 23, 2009, which denied the allegations of discrimination. Specifically, the respondent stated that it hired candidates for the position of probationary firefighter based on their qualifications, not their age.
BACKGROUND
4The hearing took place over three days. I heard the oral evidence of the applicant and two individuals who were involved in the hiring process. I also admitted into evidence a number of documents, including the applicant’s application for the position, the points-based assessment of his application, the interview notes for the applicant and several other candidates, and statistics on the ages of successful candidates for the position.
5At the outset of the hearing, the applicant requested that the Tribunal order the respondent to produce a number of documents, including the interview notes for all other candidates. The respondent opposed the applicant’s request. I ordered the respondent to produce a random selection of the interview notes for other candidates (candidates #1, #5, #10, etc.) who were interviewed by the same panel as the applicant, and to include the age of each randomly selected candidate.
6After the applicant closed his case, the respondent requested that the Tribunal dismiss the Application, without hearing the respondent’s evidence, on the basis that the applicant failed to establish a prima facie case of discrimination. I heard oral submissions from the parties, and dismissed the applicant’s allegation that the respondent’s points system for assessing job applications discriminated against older candidates. My full written reasons are below. I then heard the respondent’s response evidence with respect to the applicant’s outstanding allegations. The applicant did not provide any reply evidence.
EVIDENCE
7The applicant began working as a firefighter with the City of Mississauga in 1994. In 2003, he moved to Ottawa, where his wife lived, and began commuting to his job in Mississauga. The applicant was interested in becoming a firefighter with the respondent, but because of various legal and administrative barriers, including the collective agreement between respondent and the local firefighters’ association, was unable to apply directly for a mid-level position.
8In 2005, the respondent advertised for the position of probationary firefighter at the entry level. The applicant, who was 37 years old at that time, applied for the position. He did not put his age in his application, but did indicate that he had worked as a firefighter since 1994.
9The respondent received approximately 1,400 applications. The recruitment process took place in four stages: (1) screening of applications for minimal qualifications, (2) written examination, (3) physical ability test, and (4) interviews. Prior to the written examination, a candidate was required to provide a clerk with a copy of his or her driver’s license. According to the respondent’s statistics, 325 candidates passed the first three stages of the recruitment process.
10The applications of candidates who passed the first three stages were then assessed against a points system. The respondent allocated points in relation to eight categories: firefighting experience (up to three points), post-secondary education (up to six points), trade qualifications (up to three points), medical experience (up to three points), military/police experience (up to three points), languages (up to two points), extended work experience (up to three points), and courses endorsed by the Ontario Association of Fire Chiefs (“OAFC”) and the Office of the Fire Marshall (“OFM”) (up to two points).
11Where a candidate’s experience or education fit into more than one category, the respondent only allocated points once. For example, a candidate who received points under firefighting experience could not be allocated points for the same experience under military/police experience, extended work experience, or courses endorsed by the OAFC and the OFM.
12Furthermore, with respect to firefighting experience, the respondent allocated points for either career firefighting experience or volunteer/part-time firefighting experience, but not both, and treated each experience equally in terms of the number of points allocated.
13A candidate could obtain a maximum total of 17 points. According to the respondent’s statistics, one candidate received 11 points, nine candidates received 10 points, 16 candidates received nine points, 34 candidates received eight points, 63 candidates received seven points, 76 candidates received six points, and the remaining 126 candidates received five points or less.
14The respondent then ranked the candidates on a list and conducted several rounds of interviews. Prior to the interview, the respondent sent a letter to each candidate that stated that he or she was required to bring a copy of his or her birth certificate and his or her Class “D” driver’s license with a “Z” air brake endorsement to the interview. The timing of each round of interviews was based on the respondent’s need for new firefighters. The last round of interviews for candidates who applied in 2005 took place in the fall of 2008.
15The applicant passed the first three stages of the recruitment process and received six points when his application was assessed. Specifically, he received three points for firefighting experience, three points for post-secondary education, and zero points for the rest of the criteria.
16In his testimony, the applicant admitted that respondent’s assessment of his application was accurate based on the criteria and the restrictions on double allocation of points. However, he alleged that the points system was biased towards younger candidates, and had a discriminatory effect on older candidates, such as him.
17Specifically, the applicant stated that the points system restricted career firefighting experience, which tends to be held by older candidates, to a maximum of three points, even though it is the most relevant experience for the position. He also stated that the points system allocated the same amount of points to other less relevant experience, such as volunteer/part-time firefighting, which tends to be held by younger candidates.
18The applicant further stated that when he asked the respondent’s human resources consultant about the points system, she candidly admitted to him that the system was skewed towards younger candidates.
19According to the respondent’s statistics on the ages of the successful 130 candidates for the position since 2004, 50 were in the 20-29 years of age range, 71 were in the 30-39 years of age range, and 9 were in the 40-43 years of age range. Furthermore, a breakdown of the last two categories shows that 19 were in 37-40 years of age range, which was the approximate age range of the applicant during the recruitment process, and two were in the 41-43 years of age range, which means that they were older than the applicant.
20In cross-examination, when it was put to the applicant that the points system was actually skewed towards older candidates because they tend to have a broader range of experience than younger candidates, he responded, “Perhaps”.
21The respondent interviewed the applicant and 56 other candidates during the last round of interviews in the fall of 2008. Each candidate was interviewed by a three-person panel, asked a standard set of eight questions, and received a score on each question between zero (unacceptable answer) and five (superior answer). The passing grade for the interview was 28/40 (70%). According to the respondent’s statistics, 31 candidates passed the interview and 25 candidates failed the interview.
22The applicant, who was 40 years old at that time, attended his interview on October 2, 2008. He was interviewed by the respondent’s division chief for training, a district fire chief, and a human resources consultant. He received an overall score of 23.5/40 (63.5%), which was a failure. In late October 2008, the human resources consultant informed the applicant that his application for the position of probationary firefighter was unsuccessful.
23In his testimony, the applicant alleged that he was denied the position because of his age. He stated that prior to the interview he was required to submit copies of his birth certificate and driver’s license to a clerk. He stated that these documents would have clearly indicated to the interview panel that he was 40 years old.
24The respondent’s division chief for training testified that the respondent required each candidate to provide a clerk with a copy of his or her driver’s license at the written examination stage purely for identification purposes. He stated that at the interview stage a candidate was then required to provide a clerk with a copy of his or her a birth certificate or passport to show that he or she was legally entitled to work in Canada, and to provide a copy of his or her Class “D” driver’s license with a “Z” air brake endorsement to show that he or she could drive a fire truck within 30-60 days of being hired.
25The respondent’s evidence was internally inconsistent as to whether the interview panel received the above documents prior to the interview. The respondent’s division chief for training testified that one member of the interview panel would have reviewed the birth certificate/passport and Class “D” driver’s license with a “Z” air brake endorsement prior to the interview, while the human resources consultant testified that only the clerk would have reviewed the documents and the panel would not have seen the documents prior to the interview unless there was an issue with the documents.
26The applicant also testified that the low score that he received in his interview was indicative of age discrimination. He stated that he did not dispute the accuracy of the panel’s interview notes, but believed that the panel applied a more stringent standard to the answers of older candidates. He specifically pointed to the score that panel gave him for his answer to question 3 as an example.
27Question 3 presented the following scenario:
You are a firefighter at a fire scene and in the course of your duties you are given instructions by an Officer, which you disagreed with because you feel that it is unsafe, how would you react, how would you respond – explain your position.
According to the panel’s notes, the applicant answered that he could not refuse to follow an order pursuant to the Occupational Health and Safety Act, but would inform the Officer what he thought the hazard was in order to fix the situation. He also answered that he would remain calm. The panel gave the applicant a score of 1/5 for this answer. The applicant testified that the panel would have given a 22-year-old candidate a higher score for the same answer.
28The respondent’s division chief for training testified that the applicant was given a 1/5 because his answer was largely wrong. He stated that safety issues at the fire scene are handled solely by senior firefighters, that probationary firefighters are required to follow the orders of senior firefighters, and that probationary firefighters should not raise safety concerns with the Officer at the scene of the fire, but rather after returning to the fire station.
29The applicant also presented evidence that showed that in 2010 he was the highest-ranked candidate in a competition for the position of captain in Mississauga Fire and Emergency Services. He stated that it made no sense that he was the number one-ranked candidate for an advanced firefighter position at one fire department, but failed the interview for an entry-level firefighter position at another fire department.
30The respondent produced a random selection of the interview notes for six other candidates who were interviewed by the same panel. The notes show the following:
Candidate #1 was 29 years old, received 35/40 (87.75%), and passed the interview.
Candidate #5 was 36 years old, received 33.5/40 (83.75%). and passed the interview.
Candidate #10 was 41 years old, received 29.5/40 (73.75%), and passed the interview.
Candidate #15 was 38 years old, received 27/40 (67.5%), and failed the interview.
Candidate #20 was 36 years old, received 19.5/40 (48.75%), and failed the interview.
Candidate #25 was 27 years old, received 23.5/40 (58.75%), and failed the interview.
31With respect to question 3, all the candidates received a higher score than the applicant. For example, candidates #1 and #5, who both received a 5/5, answered that the firefighter must perform the task because of the command structure, and can talk to the Officer afterwards about any safety concerns. Candidate #10, who received a 3.5/5 and was similar in age to the applicant, answered that he or she would bring the safety issue to the Officer’s attention, but follow the order because of the chain of command. Candidate #25, who received a 2/5 (the most similar score to the applicant), answered that he or she would raise a concern to the Officer, and then proceed to do the task if ordered to do so.
32In 2008, the respondent advertised again for the position of probationary firefighter at the entry level. The applicant, who was 40 years old at that time, applied again. He participated in and passed the first two stages of the recruitment process.
33The applicant testified that he did not hear from the respondent again, and believed that the respondent screened him out after the interview panel in the first competition found out that he was 40 years old. The respondent tendered into evidence a letter to the applicant dated October 17, 2008, which invited him to the third stage of the recruitment process, and a “no show” document which indicated that the applicant failed to appear for the third stage.
34In cross-examination, the applicant admitted that it was possible that the respondent sent him the letter and he never received it. He also admitted that he never followed up with the respondent when he did not hear back about the third stage of the recruitment process.
35In support of his allegation that the respondent did not hire him because of his age, the applicant also tendered into evidence the respondent’s report on the Ottawa Fire Service’s 2010 Recruitment Campaign. The document states that recruitment for entry-level firefighters was primarily focused on college and university-age candidates, and that the Service also had programs aimed at high school students. The applicant testified that the respondent did not have any special focus on recruiting older candidates.
ANALYSIS
Applicable Law and Issues
36The Application relates to sections 5, 9, 11 and 23 of the Code, which provide:
(1) Every person has a right to equal treatment with respect to employment without discrimination because of… age….
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
(1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
- (2) The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.
37The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, at para. 46.
38The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent. See Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536. In order to establish a prima facie case of discrimination, the applicant must prove that (1) he was, or was perceived to be, an older candidate, (2) he received adverse treatment, and (3) his age or perceived age was a factor in the adverse treatment. See, for example, Communications, Energy & Paperworkers' Union of Canada (CEP), Local 789 v. Domtar Inc., 2009 BCCA 52, at para. 36.
39In the case at hand, there was no dispute that the applicant was an older candidate within the age spectrum of candidates who applied for the probationary firefighter position. The main issues were whether the applicant received adverse treatment, and, if so, whether his age was a factor in the adverse treatment.
40If the applicant establishes a prima facie case of discrimination, the respondent must establish defences and exemptions on a balance of probabilities. Although an evidentiary burden to rebut discrimination may shift to the responding party, the onus of proving discrimination remains on the applicant throughout. See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, at paras. 112 and 119.
41In this case, the issues to be decided are the following:
Did the respondent’s points system result in the exclusion of older candidates, such as the applicant?
Did the respondent directly or indirectly classify candidates, including the applicant, by age when it made written requests for their birth certificates and driver’s licenses prior to the interview?
Did the respondent refuse to hire the applicant for the position of probationary firefighter because of his age?
Did the respondent’s points system result in the exclusion of older candidates, such as the applicant?
42After hearing the applicant’s evidence and the parties’ oral submissions with respect to this allegation, I am not satisfied that the applicant established a prima facie case of discrimination.
43The applicant alleged that the respondent’s points system had an adverse effect on older candidates, such as him, but his theory of discrimination was illogical and he did not present any credible evidence to support his allegation.
44First, the applicant equated career firefighting experience with older candidates, but given that a person can start working as a career firefighter at the age of 18, this seems to be an illogical equation. In any case, the applicant did not present any evidence to show that the candidates with career firefighting experience were exclusively or predominantly older candidates.
45Second, the respondent submitted, and I agree, that the points system, which allocates points for a broad range of qualifications, education and work experience, is more favourable to older candidates because they tend to have more life experience than younger candidates. The respondent’s statistics on hiring, which show that most recent hires were over the age of 30, supports the respondent’s submission and contradicts the applicant’s allegation. In cross-examination, the applicant eventually admitted that the points system may, in fact, be skewed towards older candidates.
46At the end of the day, the applicant’s main argument was that the points system did not allocate sufficient points for career firefighting experience, which, in his view, was the most relevant experience for the position of probationary firefighter. However, even if the applicant’s argument is correct, the points system cannot be found to be discriminatory unless there is evidence of an adverse effect on older candidates. The applicant did not present any such evidence.
47Accordingly, the applicant’s allegation that the respondent’s points system had an adverse, discriminatory effect on older candidates, such as him, is dismissed.
Did the respondent directly or indirectly classify candidates, including the applicant, by age when it made written requests for their birth certificates and driver’s licenses prior to the interview?
48After hearing the parties’ evidence and their closing arguments, I am satisfied that the applicant proved this allegation on a balance of probabilities.
49Prior to the interviews, the respondent made a written request to all candidates, including the applicant, for a copy of their birth certificates and driver’s licenses. Although the respondent’s evidence was internally inconsistent on whether these documents were before the interview panel, one member of the panel who interviewed the applicant testified that a member of the interview panel would have reviewed the applicant’s birth certificate and driver’s license. There is no dispute that these documents contained the applicant’s date of birth.
50I therefore find that the respondent infringed s. 23(2) of the Code by making a written inquiry of the applicant that indirectly classified him by age. The request for a birth certificate or passport also would have classified candidates by other Code grounds, such as place of origin. In my view, the respondent can only request such documents after a conditional offer of employment is made, or if it requests such documents prior to a conditional offer being made, the dates of birth and any other Code ground identifiers must be blacked out before the documents are submitted.
51Accordingly, the applicant’s allegation that the respondent classified him by age when it made a written request for his birth certificate and driver’s license prior to his interview is upheld.
Did the respondent refuse to hire the applicant for the position of probationary firefighter because of his age?
52After hearing the parties’ evidence and their closing arguments, I am not satisfied that the applicant proved this allegation on a balance of probabilities.
53The applicant alleged that the respondent refused to hire him for the position of probationary firefighter because of his age, but presented very little evidence to support his allegation. In my view, the fact that the respondent focused its 2010 recruitment for probationary firefighters at the entry level on college and university-age candidates, and also had programs aimed at high school students has no probative value. I cannot see how it is discriminatory for an employer to focus its recruitment of job applicants for an entry-level position at universities, colleges and high schools.
54Although there was evidence that a copy of the applicant’s birth certificate and driver’s license, which both had his date of birth, were before one member of his interview panel in 2008, the applicant had, in fact, already disclosed his approximate age to the respondent in 2005 when he indicated in his job application that he had worked as a firefighter since 1994. Despite knowing the applicant’s approximate age, the respondent invited him to an interview.
55The applicant asserted that the interview panel applied a more stringent standard to the answers of older candidates, but did not present any credible evidence to support this assertion. There was a dispute between the parties as to whether the applicant should have received a higher score from the panel for his answer to question 3, but the respondent presented evidence, which the applicant did not rebut, that the two other older candidates received a significantly higher score than the applicant for their answers to this question.
56In addition, this Tribunal does not have expertise in firefighting, but the respondent’s division chief for training’s explanation for the applicant’s low score on question 3, particularly when the applicant’s answer and score was compared with the answers and scores of other candidates, was logical and made sense. Specifically, the candidates who answered that the firefighter must perform the task because of the command structure, but can talk to the Officer afterwards about any safety concerns, received higher scores, while the candidates, such as the applicant, who answered that they would address the safety concerns with the Officer at the fire scene received lower scores.
57Furthermore, the respondent presented evidence, which the applicant did not rebut, that two older candidates (a 41-year-old and a 36-year-old), who were interviewed by the same panel, received a significantly higher overall score than him and passed the interview.
58The respondent also presented statistics on the ages of the successful candidates for the position since 2004, which showed that a significant number of candidates in the applicant’s age range and older were hired. This evidence was not rebutted by the applicant.
59The applicant also asserted that the respondent screened him out of a second job competition in 2008 after the interview panel in the first competition found out that he was 40 years old, but presented very little evidence to support his allegation. Again, the evidence indicates that the respondent knew the applicant’s approximate age since 2005. As such, there was no sudden discovery of his age in 2008. Furthermore, the respondent presented documents which showed that it invited the applicant to the third stage of the recruitment process, but he did not show up. In cross-examination, the applicant admitted that it was possible that the respondent sent him a letter inviting him to the third stage, and that he never followed up with the respondent when he did not hear back about the third stage of the recruitment process.
60Accordingly, the applicant’s allegation that the respondent refuse to hire him for the position of probationary firefighter because of his age is dismissed.
REMEDY
Applicable Law and Issues
61The Tribunal’s remedial powers are set out in s. 45.2 of the Code, which provide:
(1) On an application under section 34, the Tribunal may make one or more of the following orders if the Tribunal determines that a party to the application has infringed a right under Part I of another party to the application:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
An order directing any party to the application to do anything that, in the opinion of the Tribunal, the party ought to do to promote compliance with this Act.
(2) For greater certainty, an order under paragraph 3 of subsection (1),
(a) may direct a person to do anything with respect to future practices; and
(b) may be made even if no order under that paragraph was requested.
62The two remedial issues to be decided are solely in relation to the Tribunal’s finding that the respondent infringed s. 23(2) of the Code by making a written inquiry of the applicant and other candidates that classified them by age:
Should the Tribunal order the respondent to pay the applicant monetary compensation for injury to his dignity, feelings and self-respect?
Should the Tribunal order the respondent to do anything to promote compliance with the Code?
Should the Tribunal order the respondent to pay the applicant monetary compensation for injury to his dignity, feelings and self-respect?
63In Arunachalam v. Best Buy Canada, 2010 HRTO 1880, the Tribunal reviewed recent awards under this heading of damages, and stated at paras. 52-54:
(…) The Tribunal’s jurisprudence over the two years since the new damages provision took effect has primarily applied two criteria in making the global evaluation of the appropriate damages for injury to dignity, feelings and self-respect: the objective seriousness of the conduct and the effect on the particular applicant who experienced discrimination: see, in particular, Seguin v. Great Blue Heron Charity Casino, 2009 HRTO 940 at para. 16.
The first criterion recognizes that injury to dignity, feelings, and self respect is generally more serious depending, objectively, upon what occurred. For example, dismissal from employment for discriminatory reasons usually affects dignity more than a comment made on one occasion. Losing long-term employment because of discrimination is typically more harmful than losing a new job. The more prolonged, hurtful, and serious harassing comments are, the greater the injury to dignity, feelings and self-respect.
The second criterion recognizes the applicant’s particular experience in response to the discrimination. Damages will be generally at the high end of the relevant range when the applicant has experienced particular emotional difficulties as a result of the event, and when his or her particular circumstances make the effects particularly serious. Some of the relevant considerations in relation to this factor are discussed in Sanford v. Koop, 2005 HRTO 53 at paras. 34-38.
64In my view, it is not appropriate to award monetary compensation to the applicant because there is no evidence that the respondent’s written request for his birth certificate and driver’s license prior to his interview resulted in an injury to his dignity, feelings and self-respect. In fact, the evidence showed that prior to the respondent’s request the applicant had already disclosed his approximate age to the respondent through his job application without being asked to do so. The evidence also showed that the respondent’s technical violation of the Code was not a factor in its decision not to award the applicant the position of probationary firefighter.
65Furthermore, the applicant sought an award of $150,000 compensation for injury to his dignity, feelings and self-respect, but in both his Application and his oral evidence, he only stated that he was seeking such as award to compensate him for the emotional and mental suffering that he experienced as a result of not obtaining a probationary firefighter position with the respondent. He did not specifically request monetary compensation because the respondent classified him by age when it made a written request for his birth certificate and driver’s license prior to his interview.
Should the Tribunal order the respondent to do anything to promote compliance with the Code?
66In view of my finding that the respondent infringed s. 23(2) of the Code by making a written inquiry of the applicant and other candidates that indirectly classified them by age, I find that it is appropriate to order the respondent to cease and desist from requiring candidates for firefighter positions in job competitions to provide copies of documents with their birth dates and other Code ground identifiers on them during the application and interview process. I will leave it up to the respondent as to how it will implement this order.
ORDER
67Accordingly, the Tribunal orders as follows:
- Effective immediately, the respondent shall cease and desist from requiring candidates for firefighter positions in job competitions to provide copies of documents with their birth dates and other Code ground identifiers on them during the application and interview process.
Dated at Toronto, this 22nd day of March, 2012.
“Signed by”
Ken Bhattacharjee
Vice-chair