Syed Hussain v. Ottawa Police Services Board, 2013 HRTO 1582

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Syed Hussain Applicant

-and-

Ottawa Police Services Board Respondent

INTERIM DECISION

Adjudicator: Mark Hart Date: September 19, 2013 Citation: 2013 HRTO 1582 Indexed as: Hussain v. Ottawa Police Services Board

WRITTEN SUBMISSIONS

Syed Hussain, Applicant Self-represented

Ottawa Police Services Board, Respondent David Patacairk, Counsel

1This is an Application dated May 21, 2012 and filed under s. 34 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, colour, place of origin, citizenship, ethnic origin, creed and age.

2In brief, the applicant applied for the position of Evaluation and Research Coordinator with the respondent. The applicant was granted an interview for this position. In late January 2012, he was notified that he was not the successful candidate. He made an informal complaint with the respondent, which was reviewed and confirmed the respondent’s hiring decision. The applicant believes that he experienced discrimination on the grounds alleged primarily based upon a comparison of his qualifications and experience to the successful candidate, who is a younger White male.

3The purpose of this Interim Decision is to address the following issues: (1) the need for formal notice of this proceeding to be provided to the incumbent in the Evaluation and Research Coordinator position; and (2) the applicant’s request for production of documents and information from the respondent.

Notification of the Incumbent

4As part of the remedy sought in his Application, the applicant seeks an order declaring the respondent’s decision to offer the Evaluation and Research Coordinator position to the incumbent to be void and that the position be offered to the applicant. Such an order obviously puts the incumbent’s rights at issue in this proceeding.

5By Case Assessment Direction dated July 24, 2013, the Tribunal sought confirmation from the parties that the incumbent has been notified of this proceeding. In response, the respondent advised that the incumbent has been notified of these proceedings verbally and may be called to testify as a witness at the hearing.

6Given that the incumbent’s rights may be affected by any remedy of instatement of the applicant to the Evaluation and Research Coordinator position as may be granted, it is my view that the incumbent needs to be put more formally on notice of the allegations raised in this proceeding and the fact that his rights may be affected. Accordingly, the respondent is directed to provide the incumbent with a copy of the Application, Response and Reply, together with a copy of this Interim Decision within seven calendar days of the date of this Interim Decision.

7If the incumbent wishes to intervene in this proceeding, he shall serve on the parties and file with the Tribunal a Request to Intervene (Form 5) in accordance with Rule 11 of the Tribunal’s Rules of Procedure, within a further seven calendar days from receipt of notice from the respondent. If the incumbent chooses not to intervene, he should be aware that the hearing will proceed in the absence of his participation as an intervenor and the Tribunal may order a remedy that affects his right to continue in the Evaluation and Research Coordinator position.

Applicant’s request for production

8The applicant first requests “the full record of the selection process for all candidates”. It appears that the records relating to those candidates who were selected for the test and interview portion of the competition have been disclosed. What the applicant is now seeking is the records relating to all persons who applied for the position but who were not granted an interview.

9The respondent objects to this request on the basis that these records are not arguably relevant to the matter at issue in this proceeding. No discrimination is alleged with regard to the prior screening process whereby candidates were reviewed and selected for an interview; indeed, the applicant was one of the individuals who passed through this screening process and was granted an interview. Further, the respondent states that it received 128 applications for this position, and disclosure of all of these records would be oppressive and an unnecessary breach of the confidentiality of the individuals who applied but were not granted an interview.

10I agree. The issue here is whether the evidence establishes that the applicant experienced discrimination on the grounds alleged as it relates to the assessment of his qualifications and experience at the interview stage of the competition. It seems to me that the relevant group of candidates who need to be reviewed to assess this allegation is the group selected for an interview, and not the persons who were screened out at an earlier stage of the process. Accordingly, this aspect of the applicant’s request is denied.

11The applicant next requests information about the relevant qualifications of the successful candidate on a table similar to what has been provided by the applicant to the Tribunal. The purpose of this request is to facilitate the Tribunal’s ability to make a comparison between these two candidates.

12The respondent objects to this request. It states that the applicant already has all of the information required, and can put this information into whatever format he chooses to submit to the Tribunal, subject to any objection as may be raised to admissibility. I agree. The applicant is free to format the information in whatever way he chooses, and to present evidence at the hearing regarding his assessment of the comparative qualifications and experience of himself and the successful candidate. He also is free at the hearing to pursue in his questioning of the respondent witnesses any issues he may have regarding this relative comparison. In my view, there is no need to require the respondent to submit this information in the particular format chosen by the applicant. Accordingly, this request is denied.

13The applicant next requests that the respondent provide composition data regarding the race, national or ethnic origin, age at recruitment and citizenship for all of the respondent’s civilian and sworn employees. The respondent states that it does not collect such data, and so has nothing to disclose. However, the respondent states that during the course of the competition process for the Evaluation and Research Coordinator position, it collected data regarding gender, age, whether the person is aboriginal or a visible minority and/or a person with a disability, for those who chose to participate. The respondent states that it does not object to disclosure of this data, subject to the removal of names or other identifying information of the other candidates in order to protect their privacy.

14I agree that composition data regarding the applicants for the Evaluation and Research Coordinator position, to the extent that it is available, is arguably relevant to the issue raised in this proceeding, and should be disclosed. With regard to the pool of 128 applicants as a whole, this information can simply be consolidated into a table showing the raw number and percentage for persons who self-identified on the basis of gender, aboriginal status, visible minority status and/or disability. With regard to age, the table should break down the pool of applicants into the following categories: under 25, 25 to 35, 35 to 45, 45 to 55, 55 and older. The same breakdown should be done for the pool of candidates selected for an interview.

15With regard to those candidates selected for an interview, it is my understanding that records relating to their participation in the competition already have been disclosed. On the basis of the material submitted by the applicant, it appears that as part of the application process, he was required to fill out a form in which he was asked to self-identify as to his gender, his age, whether he belonged to any racialized group, and whether he has a disability. All competition materials pertaining to the candidates who were interviewed would be arguably relevant to the issue raised in this proceeding, including this application form and the candidates’ responses to the questions asked. If this material already has been disclosed by the respondent, then nothing further need be done. If the respondent has not yet disclosed this material, then such material needs to be disclosed. It may be that the material pertaining to candidates granted an interview, other than material pertaining to the applicant and the incumbent, was already redacted by the respondent to remove their names. If so, any further material that may be disclosed can simply refer to the candidate by initials or candidate number and the full names and other identifying information relating to these candidates need not be disclosed.

16With regard to the applicant’s broader request, I am not prepared to order the respondent to conduct a workforce survey to obtain composition data that it does not already possess. This broader request is denied.

17Finally, the applicant requests “the document describing the approved selection process in detail”. The respondent objects to this request as overly broad. It is not clear to me precisely what the applicant is requesting. However, to the extent that he is making a request for any policy or procedure documents that may exist within the respondent police service that govern the recruitment, selection and hiring competition process, it seems to me that any such documents are arguably relevant to the issue raised. Accordingly, I am prepared to grant the applicant’s request for production on that basis.

ORDER

18For the foregoing reasons, the Tribunal hereby makes the following Order:

a. Within seven calendar days of the date of this Interim Decision, the respondent shall provide the incumbent in the Evaluation and Research Coordinator position with a copy of the Application, Response and Reply, together with a copy of this Interim Decision;

b. If the incumbent wishes to intervene in this proceeding, he shall serve on the parties and file with the Tribunal a Request to Intervene (Form 5) in accordance with Rule 11 of the Tribunal’s Rules of Procedure, within a further seven calendar days from receipt of notice from the respondent. If the incumbent chooses not to intervene, he should be aware that the hearing will proceed in the absence of his participation as an intervenor and the Tribunal may order a remedy that affects his right to continue in the Evaluation and Research Coordinator position;

c. Within 14 calendar days of the date of this Interim Decision, the respondent shall disclose to the applicant and file with the Tribunal the following material:

i. With regard to the pool of 128 applicants as a whole, information consolidated into a table showing the raw number and percentage for persons who self-identified on the basis of gender, aboriginal status, visible minority status and/or disability. With regard to age, the table should break down the pool of applicants into the following categories: under 25, 25 to 35, 35 to 45, 45 to 55, 55 and older,

ii. The same breakdown should be done for the pool of candidates selected for an interview,

iii. If not already disclosed to the applicant, the application form including the responses of candidates selected for an interview to the questions asking them to self-identify as to gender, age, whether they belonged to any racialized group, and whether they have a disability, and

iv. any policy or procedure documents that may exist within the respondent police service that govern the recruitment, selection and hiring competition process.

Dated at Toronto, this 19^th^ day of September, 2013.

“Signed by”

__________________________________

Mark Hart Vice-chair