Gazankas v. Red Lake (Municipality), 2013 HRTO 198

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gary Gazankas Applicant

-and-

Municipality of Red Lake Respondent

-and-

Walter Scarrow Intervenor

DECISION

Adjudicator: Mark Hart Date: February 4, 2013 Citation: 2013 HRTO 198 Indexed as: Gazankas v. Red Lake (Municipality)

APPEARANCES

Gary Gazankas, Applicant William Shanks, Counsel

Municipality of Red Lake, Respondent Paula Rusak, Counsel

Walter Scarrow, Intervenor Andrew Reynolds, Counsel

1This is an Application filed on May 8, 2009 pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), alleging discrimination in respect of employment because of age.

2The applicant was the unsuccessful candidate in a job competition for Fire Chief of the Red Lake Fire Service held in the spring of 2009. The applicant was almost 64 years old at the time of the job competition, and the successful candidate was some 20 years his junior. The applicant alleges that he experienced age discrimination primarily on the basis of his superior experience and qualifications.

3The hearing in this matter was held in Thunder Bay on August 27, 28 and 29, 2012. I heard from the applicant and three witnesses called to testify on his behalf. These three witnesses were references provided by the applicant in support of his job application, who were contacted by the respondent. I also heard from witnesses called by the respondent, namely Brian Anderson, the Chief Administrative Officer for the respondent Municipality, and Phil Vinet, the Mayor. At my request, the respondent also called Ken Forsythe, who is a Municipal Councillor and was a member of the interview committee. I also heard evidence from the intervenor, who was the successful candidate and is currently the incumbent in the Fire Chief position.

Background

4As of April 2009, the applicant had been the Fire Chief for the Township of Ear Falls, which is another small northern Ontario community about 75 kilometres from Red Lake, for eight years. The applicant had held the position of Fire Chief for Red Lake from 1981 to 1998, prior to amalgamation and when this was a volunteer position. The applicant also had been the Deputy Fire Chief for Red Lake for three years in the late 1970’s and again from 1998 to 2001. This too was a volunteer position. The applicant also had 12 years of additional management experience from his tenure as Supervisor of Maintenance for the Red Lake Board of Education from 1980 to 1992. The applicant was born in Red Lake, had lived there his entire life and was very active in the community. At the relevant time, the applicant was approximately 64 years old.

5The intervenor was the successful candidate in the competition for Red Lake Fire Chief held in 2009 and has held that position since June 2009. He was granted intervenor status in this proceeding due to the applicant’s request for instatement to the Red Lake Fire Chief position and the potential impact of such a remedy on the intervenor personally. The intervenor had been a Maintenance Coordinator with the Ministry of Transportation since 1998, responsible for overseeing maintenance on 350 kilometres of highway in the Red Lake area. In this position, the intervenor supervised a number of permanent staff as well as being responsible for the oversight of numerous maintenance contractors. He also was responsible for administering budgets which were about ten times the size of the budget for the Red Lake Fire Department. The intervenor also had been a volunteer firefighter in Red Lake for ten years, and had held the position of Auto Extrication Officer for four years. At the relevant time, the intervenor was in his 40’s and approximately 20 years younger than the applicant.

6In February 2009, the Municipality advertised for a full-time Fire Chief. Prior to this, the Fire Chief had held a part-time position, initially working 20 hours per week and later working 25 hours per week. It was determined that this was insufficient time for the Fire Chief to perform all required duties, and a decision was made to eliminate the Deputy Fire Chief position and make the Fire Chief a full-time position. In particular, I heard evidence that, due to the part-time nature of the position, the former Fire Chief had been unable to keep up with inspections and other reports required in connection with building permits in the Municipality, and there had been some criticism in this regard from the Fire Marshall’s office. I also heard evidence that there had been some issues post-amalgamation with the integration of five fire stations and an urgent need for these issues to be addressed.

7An interview committee was struck by the Municipal Council, comprised of the Mayor and two Councillors, Brian Larson and Ken Forsythe. The Municipality’s Chief Administrative Officer, Brian Anderson, was also a member of the interview committee. There were four applicants for the Fire Chief position, and their letters of application and resumes were screened by the interview committee. Only two of the candidates were selected for an interview, namely the applicant and the intervenor.

8In accordance with the Municipality’s Hiring Policy, references were checked by Mr. Anderson prior to the interviews. I heard evidence from three of the four references provided by the applicant, and they all were very positive about his skills and abilities. Mr. Anderson testified about the references provided by the intervenor and stated that they too were very positive. I have in evidence before me a form setting out the standard reference check questions that Mr. Anderson used when checking the references for these two candidates. This form requests that the referee provide a score from one to five in relation to each of the questions asked. I do not have the actual reference check forms as completed by Mr. Anderson in relation to these candidates, as they were destroyed prior to the Municipality’s receipt of this human rights Application, as a result of a policy initiated by a Municipal Councillor. This policy has since been reversed, and completed reference check forms are now retained by the Municipality.

9Mr. Anderson’s evidence is that the scores from the reference checks were very close for the applicant and the intervenor, being between one and two points apart. The former Fire Chief (who did not testify before me) was a common reference used by both the applicant and the intervenor. Mr. Anderson’s evidence is that the former Fire Chief stated that the Municipality could not go wrong with either one of these two candidates. The intervenor’s references included two current members of the Red Lake Fire Department, one of whom was the Captain for the fire station where the intervenor was deployed and the other who had been the District Trainer for the department. Mr. Anderson testified that both gave positive references for the intervenor.

10Mr. Anderson reported the results of the reference checks to the other members of the interview committee, and interviews were scheduled for the two candidates. These interviews took place on the morning of April 14, 2009. For the interviews, Mr. Anderson had prepared a list of 39 questions that were asked of each candidate. These interview questions had been prepared in consultation with the Fire Marshall’s office for a previous job competition when the former Fire Chief was hired, with some new questions added. The applicant had been an unsuccessful candidate in the previous competition.

11Each candidate was asked the same set of questions at the interview. There is evidence that some of the members of the interview committee took notes of the candidates’ answers. These notes were not in evidence before me, as they too had been destroyed prior to receipt of the human rights Application as a result of the aforementioned policy. As with the completed reference check forms, this policy has since been reversed and copies of notes made by members of interview committees are now retained.

12There is no dispute that no scores were assigned for the candidates’ answers to the interview questions, as this was not the Municipality’s practice at the time.

13Following the interviews, the interview committee met briefly to discuss their views of the two candidates. Mr. Anderson, the Mayor and Councillor Larson spoke in favour of the intervenor. Councillor Forsythe spoke in favour of the applicant. A meeting of the Personnel Committee was held at noon on April 14, 2009 to receive the recommendation of the interview committee. An in camera discussion was held at which the views of the members of the interview committee were presented, including the views of Councillor Forsythe in favour of the applicant. On the basis of the majority of the interview committee, it was recommended that the intervenor be offered the Fire Chief position. This recommendation was accepted by the Personnel Committee and a resolution passed that the committee recommend to Council that the intervenor be hired as Fire Chief effective upon a date to be agreed to by both parties. Councillor Forsythe testified that he voted against this resolution, although his "nay" vote is not set out on the resolution as he did not ask for a recorded vote.

14The matter then proceeded to Council on April 21, 2009 and Council agreed to accept the recommendation of the Personnel Committee to hire the intervenor as Fire Chief. The intervenor was formally offered the position on April 23, 2009 and accepted on April 27, 2009, with a start date of June 1, 2009. The intervenor has been the Red Lake Fire Chief since that time, and continues in the position to this day.

Legal Principles

15In making my findings, I have been mindful of the fact that the applicant bears the legal burden of proving discrimination on a balance of probabilities, and that a prohibited ground of discrimination need only be one factor in a respondent’s decision or action in order to constitute a violation of the Code. Where I have been called upon to assess credibility, I have made this assessment in accordance with the well-established principles articulated in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA) at pp. 356-357.

16This fundamentally is a circumstantial evidence case. There is no direct evidence before me that the applicant’s age was considered as a factor in denying him the Fire Chief position in the spring of 2009.

17As I stated in my decision in Blakely v. Queen’s University, 2012 HRTO 1177 at paras. 40 to 50:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

18As in the Blakely case, the respondent here has urged me to find that the applicant has not made out a prima facie case of age discrimination. However, the respondent elected to call evidence to respond to the applicant’s allegations. For the reasons articulated in the Blakely decision, it is my view that in such circumstances, it is not necessary for me to consider whether the applicant has made out a prima facie case of age discrimination. Rather, I will consider whether the evidence is sufficient to satisfy me as the adjudicator that the applicant’s allegation of discrimination on the basis of his age is more probable than the explanations provided by the respondent, bearing in mind that the onus of proving discrimination always rests with the applicant and that discrimination need only be one factor in the respondent’s decision.

19In making this determination, I have been mindful of the caselaw cited to me by applicant’s counsel indicating that the applicant may rely on circumstantial evidence to prove discrimination. See for example McKinnon v. Ontario (Ministry of Correctional Services), [1998] O.H.R.B.I.D. No. 10 at para. 296. I also have been mindful that age discrimination, as with many other grounds protected under the Code, may be covert and subtle and may even emanate from unconscious biases and that motive or intent is not required to prove discrimination. See McKinnon, above; Kartuzova v. HMA Pharmacy Ltd., 2012 HRTO 328 at para. 26; Brooks v. Total Credit Recovery Limited, 2012 HRTO 1232 at para. 29.

Analysis and Decision

20In its Response to the Application, the Municipality set out four reasons why the intervenor was selected over the applicant. In my view, these can be collapsed into two main reasons.

21The first main reason is that the intervenor appeared to have a better grasp of the issues facing the Fire Service and a better vision on what it would take to run the Fire Service both in the present and in the future. It is also stated that the intervenor was able to propose solutions and recommendations on how to deal with or resolve issues.

22In my view, this stated reason is supported by the evidence before me. It was clear from the evidence before me that the intervenor was familiar with the current issues affecting the Red Lake Fire Service in a way that the applicant was not. In his examination-in-chief, the applicant initially testified that he was not asked any questions at the interview bearing upon the issues facing the Red Lake Fire Service or how to deal with or resolve these issues. On the basis of the interview questions, this is clearly not the case. Question 3 asked the candidate to describe the challenges he would be faced with as Fire Chief and to outline his thoughts on solutions to such challenges. Question 28 asked him to describe his goals and objectives for the first six months. Question 29 raised the issue of the five fire stations in the amalgamated municipality and whether this service was adequate and whether he would make any changes. Question 30 asked about staffing levels in the Fire Service. Question 36 asked for his short and long range goals for the Fire Service.

23The evidence before me indicates that these issues were important to the Municipality. In particular, I heard evidence that since amalgamation, one of the fire stations that was amalgamated into the Red Lake Fire Service continued to operate independently and resisted the Municipality’s authority. This was a major issue that needed to be addressed.

24When he was giving his evidence before me, I asked the applicant specifically to tell me, to the best of his recollection, how he responded to these questions at the interview. I appreciate that this was a somewhat artificial exercise, as the interview had been conducted more than three years earlier and the applicant’s answers could well be tainted by his knowledge of why the Municipality says he was not hired. But even in these circumstances, I was struck by the applicant’s responses to the questions.

25In response to Question 28, regarding his goals and objectives for the first six months, the applicant stated that he cannot remember exactly what he answered, as he had been away from the Red Lake Fire Service for many years. He actually stated in his evidence that the intervenor would know more about that than he would, as the intervenor was with the Red Lake Fire Service while the applicant was at Ear Falls. He stated that this was a tough question for him, because he had been away from the Red Lake Fire Service and does not know what changes had been made in that time.

26In response to Question 29, about the need for five fire stations, the applicant initially responded by stating that he guessed he would have "talked about something". He went on to say that changes would be according to the budget given to the Fire Service by the Municipality and it was all dependent on the budget. On cross-examination, when his answer to this question was re-visited, the applicant initially did not recall that I had put this question to him. He then changed his testimony about the answer he had given at the interview, by stating that he would look at whether one particular fire station was necessary, as there was another fire station close by. When it was put to the applicant that what he had actually said at the interview was that this was a political decision and that Council would decide, the applicant agreed.

27In response to Question 30, about staffing levels, the applicant stated in his evidence that he had been away from the Red Lake Fire Service, so he really would not know. He said that, like anywhere else, he would have to look at each station and see exactly what they needed. He said that he really could not make changes because he does not know how many officers and firefighters they have. He concluded by stating that he really does not know what he would have said in response to this question.

28In response to Question 36, about short and long term goals, the applicant provided an extremely vague answer, stating that he would prepare a ten year plan with Council, taking a look at everything and all the fire halls. With regard to short term goals, he stated that, once he was in there, he would take a look at what he had. On cross-examination, the applicant stated that he would have to look at the situation, since he had not been there for years, and go accordingly. While he disagreed when it was put to him that he could not state any short or long term goals when asked this question at the interview, it is apparent from his testimony at the hearing that he was unable to articulate any such goals.

29In contrast, Mr. Anderson testified that the intervenor expanded on and looked at different problem areas in the Fire Service, and indicated that he would work with the Fire Captains, trainers and fire stations to find solutions to the problems and make recommendations to Council on how to resolve them. For example, with regard to the fire station that was resisting amalgamation, Mr. Anderson testified that the intervenor said he would go in and speak with the people at that station and work with them to find solutions, rather than just tell them that he was the Fire Chief and that they needed to do what he said. Mr. Anderson testified that, while ultimately recognizing that the Fire Chief was responsible for making decisions, the intervenor stated that he would try to make decisions as a group and that these decisions would be informed by all materials he gathered from his investigation into the issues. In response to the question about the need for five fire halls, Mr. Anderson testified that the intervenor said that he would discuss this issue with all of the Fire Captains and come up with a plan to reduce the fire stations if this was possible through the fire regulations, and spoke about the need to investigate and report to Council so that an informed decision could be made. This was contrasted with the applicant’s response, which was to say that any reduction of fire stations was a political decision. Mr. Anderson’s evidence is that the intervenor expanded upon his answer and talked about how he would approach this issue, and that this was one of the answers that impressed the interview committee. Mr. Anderson also testified that the intervenor identified a specific issue with regard to training, such as breathing apparatus training, and how he would work to bring all firefighters who required such training into one station to receive it, rather than having separate sessions held at each station.

30The second main reason as stated in the Response is that the intervenor appeared to have a more compatible management style. It is stated that the intervenor’s philosophy was more inclined to lead by example and engage in team building as opposed to a "do as I say" approach. The intervenor also was viewed as having better leadership and human resources skills which were current having regard to the job he was in. This too in my view is supported by the evidence.

31There is some dispute on the evidence as to whether, in response to Question 18 about his leadership style, the applicant actually stated at the interview that he had a "do as I say" style of management. This is denied by the applicant. The applicant also denied that, when he was asked Question 21 about "effective teamwork" and how he would build an effective team, he only talked about his personal experiences and not about how to build an effective team.

32In contrast, Mr. Anderson’s evidence is that in response to Question 18, the applicant’s answer was more or less "do as I say". His evidence is that the applicant’s view was that he was the Fire Chief and he would ensure that everyone did as he wished. Mr. Anderson does not recall the applicant talking about working with the Fire Captains on these issues at all. Mr. Anderson testified that the impression he got from the applicant’s interview responses was that he would go in as the Fire Chief and instruct the Captains on what he wanted done, and then would rely on the Captains to transmit this to the firefighters; and if they did not like it, they could quit. Mr. Anderson also testified that the applicant did not really get into teamwork in response to the interview questions. This is supported by the evidence of the Mayor, who testified that the applicant said something to the effect that the Captains, officers and firefighters would just do it his way. The Mayor viewed the applicant’s responses regarding his management style to be a little more autocratic, which was not consistent with what the Municipality needed at that time.

33The evidence of Mr. Anderson and the Mayor is that the intervenor’s approach to leadership and his management style was more democratic, and was oriented towards consultation, consensus building and working with a team. This came across in the intervenor’s answers to questions about how he would approach and address certain issues within the Fire Service, where the intervenor talked about meeting with the Fire Captains and other members of the Fire Service to discuss and seek to resolve these issues and make decisions as a group.

34In my view, the impression that Mr. Anderson and the Mayor formed regarding the applicant’s leadership and management style came through in the applicant’s evidence at the hearing. Question 16 related to a situation where a Captain refuses to follow rules and regulations of the Fire Department, even though he had been warned about this matter. The candidate was asked to describe the steps he would take to resolve this situation. When I asked the applicant how he had responded to this question at the interview, the applicant stated that he had said that he would call the Captain into the office to go over the situation and give him a warning. He said that if it happened again, he would take disciplinary action against the Captain.

35Question 17 related to a situation where a longtime firefighter had not been attending training or responding to calls, and had been spoken to about this but the pattern had not changed. Once again, the candidate was asked to describe the steps he would take to resolve this situation. When I asked the applicant how he had responded to this question at the interview, the applicant stated that he had said that the firefighter already would have been aware of these requirements from his training, and he would take disciplinary action against this firefighter. The applicant stated that if a firefighter had missed that many meetings, he would have to terminate the position, and the firefighter would have the right to appeal that decision to Council.

36In my view, these responses do reflect a more authoritarian and disciplinary approach to leadership and management. The applicant did not indicate, either when asked these questions by me or when these questions were re-visited with him on cross-examination, that he would speak with either the Captain or the longtime firefighter to find out whether there were underlying issues that were causing these problems or to try to see if there was a non-disciplinary approach to resolving them. In contrast, Mr. Anderson testified that the intervenor had responded by saying that he would look to see what the underlying problem was and determine whether he could correct the problem.

37The intervenor testified that he had worked under the applicant when he was Deputy Chief, and so was familiar with the applicant’s leadership and management style. The intervenor described the applicant’s leadership and management style as being more direct and "dictatorial". As a result, when preparing for the interview, the intervenor stated that he looked for opportunities to highlight his leadership and management style as being different from the applicant’s, and being more oriented towards teamwork and consensus building. This accords with the evidence of Mr. Anderson and the Mayor regarding how they viewed the intervenor’s responses to the interview questions and his leadership and management style.

38Accordingly, I find that the two main reasons articulated by the Municipality for choosing the intervenor over the applicant for the Fire Chief position are supported by the evidence before me, including the evidence given by the applicant himself. I find that these are reasonable, rational, credible and non-discriminatory reasons for preferring the intervenor over the applicant.

39The applicant raised an issue about the fact that the intervenor had only been a fire officer for four years, whereas the job advertisement indicated that the ideal candidate would have at least five years of experience as a fire officer and the position description stated under "Qualifications" that the Fire Chief "should have at least five years of experience as a fire officer". In response, Mr. Anderson testified that the job advertisement was referring to the "ideal" candidate rather than setting out a minimum requirement, and that the position description used the word "should" as opposed to "must".

40While I appreciate that the hiring of someone without the minimum qualifications required for a position may undermine the credibility of an employer’s stated reasons for hiring that person, the issue before me is not to determine whether the Municipality adhered to any requirements set out in a job advertisement or position description, but rather to determine whether the applicant’s age was a factor in the Municipality’s decision. For the reasons set out above, I have found that the Municipality has articulated credible, non-discriminatory reasons for preferring the intervenor over the applicant, and I do not find that these reasons are undermined by the intervenor having had only four years of experience as a fire officer. In addition, based upon the documentary and testimonial evidence before me, I find that five years of experience as a fire officer was a preferred qualification, as opposed to a minimum requirement.

41The applicant also takes the position that it is not credible for the Municipality to have selected someone who was at the lowest rank of fire officer, as opposed to the applicant who had actually been a Fire Chief for many years. The applicant pointed to evidence that the intervenor had never supervised Fire Captains before, was not a Captain himself, and did not have the ability to certify training requirements for firefighters, except in auto extrication. All of this is true. But I accept the submission of intervenor’s counsel that the Municipality was not hiring the intervenor to be Fire Chief merely as someone who had been an auto extrication officer for four years and a volunteer firefighter for 10 years. Rather, the evidence supports that the Municipality was hiring the intervenor as someone who had been in a management position as Maintenance Coordinator for a significant period of time, with responsibility for a larger group of employees and contractors and while overseeing budgets far in excess of the budget for the Red Lake Fire Service, who also had experience as auto extrication officer and as a volunteer firefighter. The evidence of the respondent’s witnesses confirms that it was the intervenor’s human resources and administrative skills and abilities that were needed and valued by the Municipality, and that the intervenor had presented these skills and abilities more effectively in the interview process than the applicant had.

42The applicant also questioned the credibility of the evidence of the respondent’s witnesses on the basis that they gave inconsistent evidence regarding a direction they had received through counsel after receiving the human rights Application, to prepare notes of what they recalled from the interviews. There is no doubt that there was inconsistent evidence on this point. I am asked to infer that, because these witnesses gave inconsistent evidence on this point, which does not directly bear on the issue before me, therefore these witnesses’ testimony regarding the reasons given for not hiring the applicant should be found to lack credibility. In my view, there is no proper basis upon which I should draw such an inference. As already reviewed above, the reasons articulated by the respondent witnesses for preferring the intervenor over the applicant were not only rational and credible, they were supported by the applicant’s own testimony at the hearing.

43With regard to the notes prepared by the respondent witnesses at the direction of counsel following receipt of the human rights Application, an issue arose at the hearing as to whether these notes should be produced, as the respondent witnesses had reviewed these notes for the purpose of giving their testimony. I gave all parties the opportunity to provide caselaw and heard oral submissions on this point. After receiving and considering the caselaw and submissions from all parties, I ruled that litigation privilege attached to these notes and was not waived by the respondent witnesses having reviewed these notes for the purpose of testifying. At the hearing, I gave the following oral ruling:

In my view, the decision of the Ontario Labour Relations Board (International Union of Painters and Allied Trades, Local Union 1891 v. KSP Finishes Inc., March 5, 2012) is directly on point and is dispositive of the issue. I am satisfied that the notes were created at the time litigation had been commenced and specifically at the direction of legal counsel for the purpose of preserving evidence and preparing the Response, and that providing this material for counsel was the dominant purpose of the creation of these notes and that their use in any fashion to refresh witness memory prior to the hearing was an ancillary purpose which did not serve as a waiver of privilege.

In my view the CEC Edwards case (Attorney General for Ontario v. C.E.C. Edwards Construction, (1987) 1987 CanLII 4230 (ON HCJ), 60 O.R.(2d) 618 (D.C.)) is distinguishable on the basis indicated in the Wronick decision (Wronick v. Allstate Insurance Co. of Canada, [1997] O.J. No. 544 (G.D.)) and is confined to the very specific and particular facts of that case, which involved a plaintiff making ongoing and copious notes of all of his activities in the months and years leading up to trial for the express purpose of relying upon this material to give his evidence at trial.

I find that the notes are protected by litigation privilege which has not been waived.

44The applicant also submitted that the absence of scoring on the interviews should cause me to conclude that there was no objective evaluation of the candidates, and therefore that the Municipality’s decision was extremely subjective. In this regard, I note that there is no requirement under the Code for an employer to score candidates on their interviews. See Gurofsky v. Toronto District School Board, 2011 HRTO 2274 at paras. 69 to 70. While I have been critical of interview processes even where scoring has been conducted, (see, for example, Azeez v. Ontario (Attorney General), 2010 HRTO 1919 at para. 56), I agree with the applicant’s submission that an employer’s failure to score candidates’ responses in an interview process can result in a more subjective evaluation of the candidates. But while the decision may be more subjective, this does not necessarily mean that a prohibited ground of discrimination was a factor in the hiring decision. Such a determination must be made on the basis of all of the evidence presented at the hearing. For the reasons already stated above, and while acknowledging and considering that the Municipality’s decision may have had a degree of subjectivity that would not accord with best practices, I nonetheless have found that the Municipality was able to articulate rational and credible reasons for preferring the intervenor over the applicant which were supported by the evidence, including the evidence of the applicant himself.

45The applicant asks me to draw an adverse inference from the fact that the completed reference check forms and any interview notes were destroyed. While it is certainly regrettable that this happened, I note that the uncontradicted evidence indicates that these materials were destroyed prior to receipt of the human rights Application and in accordance with a policy initiated by a Municipal Councillor that was not specific to the competition at issue in this proceeding. In these circumstances, I find that there is no proper basis to support the drawing of an adverse inference that these materials were destroyed to hide evidence of age discrimination See White v. Queen’s University, 2010 HRTO 640 at para. 23.

46The applicant also asks me to draw an adverse inference on the basis that one of the members of the interview committee, Councillor Larson, was not called to testify at the hearing. At the hearing, I indicated that it would be helpful for me to hear from Councillor Larson, as well as from Councillor Forsythe. I was told that Councillor Larson was not available to testify. However, I did hear evidence from Mr. Anderson that, when the interview committee discussed the two candidates, Mr. Larson supported hiring the intervenor on the same basis as the Mayor, in that he liked the intervenor’s vision and skill set, especially on the administrative side, and also liked the intervenor’s ability to handle the firefighters. I also heard Councillor Forsythe’s evidence that he recalled Councillor Larson saying that the intervenor had started out slow in his interview, but had "come on strong". In my view, it is not necessary for a respondent to call literally every member of an interview committee in order to provide evidence as to the basis for a hiring decision. I have not required this in other cases. (See, for example, Correia v. York Catholic District School Board, 2011 HRTO 1733 and Mahant v. York University, 2011 HRTO 1981). In my view, in order to support the drawing of an adverse inference, there must be some basis in the evidence to indicate that the particular interview committee member was not called when she or he was available to testify, and more likely than not would have evidence to contradict the evidence given by the interview committee members who were called to testify. There is simply no basis in the evidence to support this.

47I need to consider whether, even accepting that the Municipality has articulated rational and credible non-discriminatory reasons for selecting the intervenor over the applicant, the applicant’s age nonetheless was a factor in this decision. In this regard, I expressed concern at the hearing about the use of the phrase "very energetic" in the job advertisement to describe the characteristics of the successful candidate. I was concerned that this may have been a code to indicate that the Municipality was looking for a younger person. In response to my questioning, Mr. Anderson stated that he had taken this wording from a sample job advertisement on the website of the Association of Municipalities of Ontario. Both Mr. Anderson and the Mayor took issue with the suggestion that this wording indicated a preference for a younger person. Mr. Anderson testified that, to him, this language indicated a person who would come in and realize that the status quo was not good enough and that he would have to raise the bar and, if applicable, do things differently. In colloquial terms, Mr. Anderson testified that this language indicated they were looking for someone who would "give’er". The Mayor, who is just a couple of years younger than the applicant, took umbrage at the suggestion that someone who is "very energetic" implies a younger person, and cited examples of older individuals who demonstrated considerable energy and vigour.

48I also raised the issue, at least with Councillor Forsythe, as to whether the Municipality was concerned about its experience with the former Fire Chief, who had experienced some medical issues and had to retire. I asked whether any concern had been expressed about hiring the applicant at his age, with the possibility that he might retire soon and the Municipality would have to repeat the hiring process or that as an older individual he might be prone to experiencing medical issues like the former Fire Chief. Councillor Forsythe frankly was not able to recall much detail about the discussions in the hiring process. Nonetheless, he had supported the applicant in the process and so was the member of the interview committee least likely to be motivated to try to defend the Municipality’s decision. While I appreciate that Councillor Forsythe remains a member of Municipal Council with ties to the individuals on the interview committee who voted for the intervenor, he nonetheless is an elected official who is not subject to the same kind of pressures as an employee, even one who is a member of management. I was impressed by Councillor Forsythe’s evidence when he testified not only that age was never raised or discussed in the committee’s deliberations, but also in response to my questions that age did not indirectly become a factor based upon the Municipality’s experience with the former Fire Chief.

49The applicant raised a few other points that were alleged to be indicative of age discrimination. One was that the job advertisement identified the ideal candidate as someone, among other things, who had the ability to recognize and understand changes to municipal fire fighting requirements that result from new legislation. The suggestion was that a younger person would be more conversant with "new" legislation. I do not accept this submission. It seems to me to be a reasonable expectation that the Municipality would want a Fire Chief who was aware of and understood any new legislation, and I do not see this knowledge as being any more accessible to a younger person as opposed to an older person.

50Another point was that the job advertisement indicated that the Municipality was looking for someone who was "knowledgeable with computer applications". Once again, it was suggested that a younger person would have more knowledge and familiarity with computer applications. Whether or not this may be, it seems to me to be a reasonable expectation for the Municipality to want its Fire Chief to be familiar with computer applications. In any event, the evidence did not indicate that this factor played any material role in the selection of the intervenor over the applicant for the position.

51The applicant also raised the fact that at the end of the interview questions, it is stated that there would be a requirement to have a work related medical completed. It is suggested that this is an indication that the Municipality was reluctant to hire an older person who might present the kind of medical issues experienced with the former Chief. The evidence does not support that this was a material factor in the interview committee’s deliberations or in the Municipality’s ultimate decision. Further, the requirement for a work related medical to be administered after a job offer has been made is not an unusual practice, and is in accord with the Ontario Human Rights Commission Policy on Employment Related Medical Information.

52The applicant also raised the fact that, after the hiring decision had been made, he had contacted Mr. Anderson to obtain an explanation for this decision. His evidence is that Mr. Anderson told him that he could not tell the applicant the reasons for the decision, and if he did so, he would be fired. The applicant presented this as an indication that something improper had occurred in the hiring process, and asked me to infer that age discrimination had been at play. In response, Mr. Anderson testified that what he meant (and in his evidence, what he actually said to the applicant) was that he was bound by the confidentiality of the discussions of the Personnel Committee and Council in their in camera sessions and any disclosure of the reasons for the hiring decision would constitute a breach of this confidentiality obligation and would get him fired. Having considered the evidence on this point, it is my view that the applicant’s evidence regarding what was said to him by Mr. Anderson, even if accepted as true, does not provide a proper basis to establish that his age was a factor in the respondent’s decision.

53At the end of the day, I can understand why the applicant brought this Application and why he feels the way he does about the Municipality’s decision, particularly in the absence at that time of having received the respondent’s reasons for its decision. On paper, given his extensive current and prior experience as a Fire Chief both in Ear Falls and previously in Red Lake, it is understandable to me that the applicant would feel that he was better qualified than the intervenor. However, an interview process is an important part of many selection processes, and it is not infrequently the case that a candidate who appears better qualified on paper does not perform well at the interview and does not exhibit the kind of characteristics, such as leadership or management style or knowledge of the challenges to be confronted and how to approach them, that the employer is looking for. That appears to be what happened in this case. I note from the applicant’s evidence on cross-examination that he did not believe that he should have been required to attend an interview, and in fact feels insulted that this was required of him. It appears to me that the applicant may simply have expected that he would get the job based upon his experience and qualifications regardless of what happened in the interview, and so may not have adequately prepared for the interview. It was apparent to me from the applicant’s evidence at the hearing that his answers to many of the interview questions were deficient. In contrast, the evidence indicates that the intervenor prepared extensively for the interview, tried to anticipate the questions that he would be asked to answer, and elaborated on his responses to exhibit the characteristics that he believed the Municipality was looking for.

54Having carefully considered all of the evidence before me, I find that the applicant’s age was not a factor in the Municipality’s decision to hire the intervenor as Fire Chief. I further find, as stated above, that the Municipality has provided rational, reasonable, credible and non-discriminatory reasons for its decision, which are supported by the evidence, including the applicant’s own evidence.

55Accordingly, for all of the above reasons, the Application is dismissed.