Peter Reiss v. CCH Canadian Limited, 2013 HRTO 764

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Peter Reiss Applicant

-and-

CCH Canadian Limited Respondent

DECISION

Adjudicator: Brian Cook Date: May 13, 2013 Citation: 2013 HRTO 764 Indexed as: Reiss v. CCH Canadian Limited

APPEARANCES

Peter Reiss, Applicant Gurlal Kler, Counsel

CCH Canadian Limited, Respondent Andy Pushalik, Counsel

Introduction

1Peter Reiss is a lawyer who is 60 years of age. CCH Canadian Limited is a legal publishing company, providing information products for tax, accounting, legal, financial planning and human resources professionals. In 2011, the respondent had two vacancies for the position of commercial legal writer. The applicant applied for the position but was not selected for testing or an interview. He alleges that he was not considered because of discrimination on the basis of age.

2The Application was heard on January 28, 2013. The applicant testified on his own behalf. The respondent called three witnesses. Leesa Fernandez was the respondent’s Director of Human Resources at the relevant time. She was not directly involved in the hiring decisions relevant to the Application and is no longer employed by the respondent. Rita Mason is the Director of Editorial for Legal and Business Markets, and was responsible for the hiring decisions. Peter Schon is a Human Resources consultant and provided Human Resources services on a contract basis in respect of the recruitment process for the legal writer positions.

Background

3Ms. Fernandez, testified that the respondent is committed to human rights and that it has a comprehensive harassment and discrimination policy. She testified that in her experience, age would never be a criterion in any hiring decision. Ms. Fernandez testified that approximately 40% of the total workforce is over 45 and about 25% is over 50.

4Ms. Mason joined the respondent’s company in 1997. The team that she heads comprises fourteen people, including editors, writers and analysts. Ms. Mason testified that there are six writers and analysts, three of whom are in the corporate and commercial area. She testified that these six people range in age from late 20’s to about 50.

5The recruitment process in this case was required to fill two vacancies for legal writers in the corporate and commercial area. There were three such positions so two out of three positions were vacant.

6Ms. Mason explained the general recruitment process. When a vacancy comes up she first confirms with the Human Resources department that the vacancy can be filled. The job is then posted. The Human Resources department does an initial screen of the applicants and then passes the potential candidates to her for review. She then selects any that she feels should go forward. These candidates are invited to come for testing, which includes a writing assignment to show that the candidate has the necessary writing skills. Candidates who pass the testing stage are invited for an interview.

7In this case, Mr. Schon was performing the Human Resources responsibilities. He is a consultant with an external Human Resources consulting firm. In and about May 2011 he was assisting the respondent with several recruitment processes, including the one relevant to the Application.

8Ms. Mason testified that it can be very difficult to fill a writer position. Sometimes no suitable candidate comes forward during a recruitment process. She recalled that a one-year maternity/parental leave went unfilled for the whole year because a suitable writer could not be found. Ms. Mason testified that there is also a relatively high turnover of writers and that it can be difficult to retain people. This is because of the fluid nature of the business and also because the remuneration is relatively low for people who hold a law degree. Ms. Mason testified that a common retention problem is that people will come to the job from private practice and leave again when a practice opportunity comes up.

9Ms. Mason testified that she did not and does not discriminate on the basis of age or any other ground. She indicated that an older lawyer with lots of related writing experience could be an ideal candidate. However, such people rarely apply. Ms. Mason testified that the ideal candidate is a person who has graduated from law school and gone to work in practice for a few years and who has realized that they do not like practice and prefer legal writing. Such people are less likely to decide to return to practice and more likely to continue working as a writer. Ms. Mason agreed that this profile will most commonly be met by younger lawyers. However, she noted that it could also be met by an older person who went to law school later in life.

10The applicant testified that he has been a lawyer for about 30 years and had a long career in corporate/commercial law. He worked in the legal departments of two banks, including a senior counsel position with one bank from 1989 to 2003. In 2003 he was laid off as a result of downsizing. He received a package from the bank, which included services from a placement service that assisted in preparation of curriculum vitae, job interview skills, etc. The applicant testified that he looked for work unsuccessfully for about two years. He had a number of interviews and two job offers but the offers did not work out.

11In 2005, he established a sole practice, focusing on corporate and commercial law. This practice was not a financial success. The applicant provided profit and loss statements for 2011, showing that the practice had a loss. In 2012, it did better after the applicant moved to a home office which eliminated office rental costs.

The recruitment process in April - June 2011

12In April 2011, there were three writer positions in the commercial department. Two of them became vacant, essentially at the same time. The jobs were posted on Workopolis on April 28, 2011.

13While Ms. Mason was in charge of the hiring process and had the decision making power, she involved Brenna Wong in the process. Ms. Wong was the Team Leader of the commercial writer group. Ms. Mason testified that she involved Ms. Wong for two reasons. First, she provided a “sounding board” for Ms. Mason about the potential applicants. Secondly, it was helpful for Ms. Wong to be more familiar with the hiring process and the considerations that go into that process.

14On May 5, 2011, two candidates applied. These individuals were referred to as “Crystal” and “John” during the hearing. Information about them in the hearing documents was redacted to protect their privacy.

15Mr. Schon referred Crystal’s application to Ms. Mason for review. They agreed that Crystal should be invited in for testing. There was some concern expressed about Crystal’s salary expectations which were higher than the amount they hoped to have to pay. However, based on Crystal’s experience, they thought they could offer at the higher end of their hoped for range. By May 18, Crystal had completed the testing and it was decided that she should be invited for an interview.

16Ms. Mason testified that John had also been tested by May 18, 2011 although the record does not include emails confirming this.

17The applicant responded to the Workopolis posting on May 18, 2011. He forwarded a copy of a curriculum vitae and a brief covering email. The respondents state that by the time the applicant applied, they already had applications from Crystal and John who had both been tested but not interviewed. In addition, Ms. Wong testified that she had been in contact with “Monica”. Monica had worked in the same position for the respondent from 2007 to 2009 and had continued after that to work on a freelance basis for the respondent while also working as a senior legal writer for a competitor publishing company. Monica was offered one of the two vacant positions on May 20, 2011, two days after the applicant submitted his application for the job.

18The applicant intentionally omitted some information from the curriculum vitae he submitted with the job application, including the date of his call to the bar and the dates of his earlier jobs. The applicant testified that he omitted these dates to avoid highlighting his age. He said this practice had been recommended at a seminar he attended that discussed challenges and strategies for job candidates over 45.

19In addition to the omission of dates, the curriculum vitae indicated that the applicant was in “private practice” from 2005 to present, but did not indicate whether the private practice was with a firm or if he was a sole practitioner. At the hearing, the applicant agreed that he should have provided clearer information on this point.

20Other issues related to the curriculum vitae that were discussed at the hearing include the fact that although it indicates that the applicant had worked for two banks, only one of them was named.

21The applicant’s curriculum vitae and covering letter were reviewed by Mr. Schon on May 18, 2011, the same day they were sent. Mr. Schon responded on the same day and asked the applicant about his salary expectations. The applicant replied later on May 18 that he was “not familiar with writers’ salaries” but that he would hope for a salary between $39,000 and $49,000 but that “benefits of course would play a role”. Mr. Schon replied to the applicant and told him of the benefit package and the applicant responded that the package sounded good and asked Mr. Schon to proceed.

22Mr. Schon testified that salary expectation was an important part of the recruitment equation. As a Human Resources consultant, he hopes to find the client the best candidate at the lowest cost. He understood that the client had a budget in mind for the position of around $50,000 per year. The successful candidates were offered a salary higher than this amount. The applicant’s range was therefore lower than the budgeted amount and lower again than the amount offered to the successful candidates.

23Mr. Schon forwarded the applicant’s job application plus the salary range information to Ms. Mason on May 19, 2011. Ms. Mason replied:

The applicant sounds good but there are a couple of odd things about this application, I find. Peter’s expected salary range is pretty low. I realize he’s aware that publishing doesn’t pay very much but for someone with his senior-level experience, it’s a little unusual. Also, he leaves out dates of some of his employment experience and all of his education and the name of the firm he’s working with now.

Can I please ask you to request that he resubmit his resume with these key pieces of information? Thanks. Otherwise, he is certainly qualified for the position, albeit probably overqualified.

24Ms. Mason was asked about this email at the hearing. She testified that the fact that the applicant had not put in all the relevant dates was of significant concern. She said that she could not recall ever seeing a curriculum vitae without all relevant dates. She said that the dates were important as she needs to determine if the job applicant has enough practical experience for the job. She indicated that any such omission catches her attention because “deficiencies [in the curriculum vitae] could suggest a deficient candidate”.

25Ms. Mason testified that the applicant’s low salary expectation was another “red flag”. She said that she has never seen such a low salary expectation from a person seeking a legal writing job. This was particularly of concern in the case of the applicant since he was clearly someone with a great deal of high level work experience.

26Mr. Schon contacted the applicant, who sent a revised curriculum vitae, with the missing dates and clarification that he was a sole practitioner, on May 20, 2011. Mr. Schon forwarded this to Ms. Mason later that day, which was a Friday.

27As noted, also on May 20, 2011, Ms. Mason offered one of the vacant writer positions to Monica, the person who had done the job a few years earlier and who had continued to work as a freelancer. The offer to Monica was confirmed in writing on May 20. She was offered a salary of $57,000. As of May 20, there was therefore only one vacant position.

28On May 20, 2011 Ms. Mason and Ms. Wong also exchanged emails about the test results for Crystal and John. Ms. Mason indicated that she had not yet reviewed John’s test results.

29On Monday May 23, 2011, Ms. Mason sent an email to Ms. Wong indicating that John’s test results contained a few errors but were otherwise “really good”. She sent this email at 11:27 am.

30At 11:56 am Ms. Mason sent an email to Ms. Wong about the applicant. It reads as follows:

Now that we have all of Peter’s work and education history I feel more comfortable reviewing his application. However, he has 30 years of practice experience, which I think makes him overqualified for the position, and although he has writing experience, our writer job will be a real change for him. On the other hand, if he wants to slow down his pace and expand his writing work, it could be beneficial to him and CCH. We could go ahead and ask him to write the test (which I am sure he will do well in but I don’t think it’s fair to other candidates to allow him to skip this step) and take it from there.

Please let me know what you think.

31The record does not include a reply from Ms. Wong to this email. Ms. Mason was asked if she recalled speaking to Ms. Wong in follow up to the email. She said that she could not specifically recall but that it was likely that she did have some conversation.

32At 6:01 pm on May 25, 2011, Ms. Mason sent an email to Mr. Schon:

Brenna [Ms. Wong] and I are on the fence about this applicant. I wish he had been more up front about how senior he was in practice and provided a more convincing reason in his covering letter as to why he wants to make such a big change at this time. I have no problem with the change, it’s just that he’s not very forthcoming about it that I find problematic.

If it’s ok, we’ll just keep this application on hold for now until we decide whether to pursue it. I’ll keep you posted.

33Ms. Mason testified that the context of this email and the reason for putting the application on hold was that she had filled one of the positions (Monica), and had two promising candidates (Crystal and John) who had been tested but not interviewed.

34At 6:21 pm, on May 25, about half an hour after the above email, Ms. Mason sent an email to Mr. Schon:

I wanted to let you know that [Ms. Wong] and I had an interview with [Crystal] today and it went really well. The only draw back is that she has a lot more tax experience that corporate but I believe she does have enough corporate experience to be a Corporate Writer.

We will hopefully be able to interview [John] as well and see how the candidates compare, and we will continue to pursue any other qualified candidates that apply as well.

35On May 26, the applicant sent an email to Mr. Schon: “When can I expect to hear back about an interview?”

36Mr. Schon testified that he found this email to be “rather aggressive”. He responded to the applicant shortly after receiving the applicant’s email:

The Hiring Manager has reviewed the C.V.; unfortunately they did not select your application at this time.

37As discussed at the hearing, this email, while possibly technically true, was misleading. Ms. Mason had in fact said to put the applicant’s application on hold. The applicant understandably took the email to mean that he had been rejected. He sent an email a few minutes later:

Thank you for your reply. Were my credentials out of date?

38A few minutes later, Mr. Schon replied:

I don’t have all the feedback on everyone yet, individually, but it is looking like they are moving toward candidates that are more junior in their experience and salary expectation.

39In his testimony, Mr. Schon agreed that this email was not correct either. In particular, the candidates who were under consideration had salary expectations that were higher than the expectation expressed by the applicant. Mr. Schon testified that he was not sure what he meant by the reference to “more junior” candidates. He said that the language about more junior candidates and lower salary expectations had not come from Ms. Mason. He testified that he did not show these emails to Ms. Mason or copy her on them.

40From the documents disclosed by the respondent, it appears that the next relevant activity was on June 1, 2011, when Ms. Mason and Ms. Wong interviewed John. Ms. Mason sent an email on June 1 to Mr. Schon indicating that John and Crystal were “both great candidates.”

41An email of June 10, 2011 from Ms. Mason to Mr. Schon indicates that an offer to Crystal had been made sometime before June 10. The same email indicates that if Crystal did not accept, the position would be offered to John. The email also references the applicant and indicates that they will await the outcome of the other job offers before deciding to pursue testing.

42A formal offer of employment was made to Crystal on June 14, 2011. Ms. Mason testified that Crystal accepted the position but then resigned after less than a week. An offer was then made to John but he had accepted another position in the meantime. The applicant was not contacted. Ms. Mason testified that the position was eventually filled by one of the writers who had held the job before leaving to make it vacant. She ran into this person on the subway and persuaded her to return to the job.

The legal test

43Section 5(1) of the Code provides as follows:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

44Section 9 of the Code provides:

No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

45The classical analysis starts with the question of whether the applicant has established a prima facie case of discrimination. The applicant has the onus to establish this. If the applicant succeeds in establishing a prima facie case of discrimination, the respondent must then establish a defence that shows that there is a non-discriminatory explanation for what happened. The applicant bears the onus of establishing that the respondent’s explanation is not credible or fails to establish that there is a non-discriminatory explanation for what happened, and that it is more probable than not that the applicant’s Code-protected rights were infringed.

46There is no evidence of direct discrimination in this case. The applicant does not, for example, allege that anyone told him he would not be offered a job because of his age or that his age was directly referred to in his dealings with the respondent. If there is to be a finding of discrimination it must therefore be based on the circumstantial evidence.

47I am guided in my analysis by the principles established in Phipps v. Toronto Police Services Board, 2009 HRTO 877. That was a case of alleged discrimination by a police officer on the basis of race. By referring to this case I do not mean to suggest that discrimination on the basis of age is comparable to discrimination on the basis of race. I rather refer to the case for statements of the principles regarding the appropriate analysis in a case where there is no direct evidence of discrimination and where the allegations of discrimination are grounded only in circumstantial evidence. In Phipps, the Tribunal Vice-chair set out those principles in the following terms at paragraphs 15 – 17:

The relevant principles that apply in cases where an allegation of racial discrimination has been raised have been usefully summarized as follows:

(a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;

(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant;

(c) The prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element;

(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and

(e) Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.

Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 52 C.H.R.R. D/430, 2005 BCHRT 302 at para. 482; Pritchard v. Ziedler (2007), CHRR Doc. 07-527 (Sask. H.R.T.).

In this case, as in many cases alleging racial discrimination, there is no direct evidence that race was a factor in the officer’s decision to take the actions that he did. As a result, the issue of whether the officer’s actions amount to racial discrimination in violation of the Code falls to be determined in accordance with the following well-established principles applicable to circumstantial evidence cases.

1. Once a prima facie case of discrimination has been established, the burden shifts to the respondent to provide a rational explanation which is not discriminatory.

2. It is not sufficient to rebut an inference of discrimination that the respondent is able to suggest just any rational alternative explanation. The respondent must offer an explanation which is credible on all the evidence.

3. A complainant is not required to establish that the respondent’s actions lead to no other conclusion but that discrimination was the basis for the decision at issue in a given case.

4. There is no requirement that the respondents' conduct, to be found discriminatory, must be consistent with the allegation of discrimination and inconsistent with any other rational explanation.

5. The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.

48The Tribunal’s Decision in Phipps was reviewed by the Divisional Court in Shaw v. Phipps, 2010 ONSC 3884. The Court majority upheld the Tribunal’s Decision.

49At paragraphs 46 – 47, the Court discussed what the applicant must show to establish prima facie discrimination:

The individual who brings a human rights complaint bears the onus of proving a prima facie case of discrimination. To establish that race was a factor in the alleged adverse treatment, the complainant must demonstrate a nexus between race and the alleged discriminatory conduct. To satisfy this burden, he or she must establish a prima facie case of discrimination which “is one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour, in the absence of an answer from the respondent” (Ontario (Human Rights Commission) v. Simpsons Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at para. 28).

The elements of a prima facie case that the complainant must prove are outlined in Dang v. PTPC Corrugated Co., 2007 BCHRT 27:

1. That he or she is a member of a group protected by the Code;

2. That he or she was subjected to adverse treatment; and

3. That his or her gender, race, colour or ancestry was a factor in the alleged adverse treatment.

50At paragraph 77, the Court observed:

In cases where discrimination must be proved by circumstantial evidence, there are no bright lines. The Tribunal must determine what reasonable inferences can be drawn from proven facts.

51In the Tribunal’s Decision in Phipps, the adjudicator did not expressly distinguish the evidence that went to the finding that a prima facie case of discrimination had been established and the evidence that raised questions about the credibility of the respondent’s explanations for what happened. Rather, the adjudicator reviewed the evidence as a whole. The approach taken by the adjudicator in Phipps largely formed the basis for the dissent in the decision of the Divisional Court and the approach was reviewed by the Ontario Court of Appeal when the decision of the Divisional Court was appealed.

[B]oth before the Divisional Court and before this court, the appellants argued that the Adjudicator was obliged to declare that the [prima facie] test had been met at the conclusion of the complainant's case and before she allowed Constable Shaw to give his evidence.

Constable Shaw has not provided authority for this proposition. 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. I would not give effect to this aspect of the argument.

52In Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482, for example, the adjudicator noted, at paragraph 62:

In the context of most adjudications under the Code, there is little practical difference between the prima face case and the complainant’s overall burden. The complainant proves the distinction (or treatment), the connection to the prohibited ground and the disadvantage that flows from it. The respondent proves the statutory defence or exemption. As part of that process, the complainant may challenge the respondent’s explanation as false or pre-textual. This process is often referred to as the “shifting burdens” in the human rights context. See Ontario Human Rights Commission v. Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202 (“Etobicoke”).

53On the basis of the foregoing, the issue that I must ultimately decide is whether, on the basis of the totality of the evidence, the applicant has established that it is more probable than not that his age was a factor that contributed to his not being interviewed for the writer position.

Analysis

54The respondent asserts that it could not have discriminated against the applicant on the grounds of age because they had no idea how old the applicant was until he submitted the Application to this Tribunal.

55In my view, this argument is somewhat disingenuous. While the respondent may not have known the respondent’s exact age, the second curriculum vitae which provided dates showed that the applicant was called to the bar in 1979. Unless it was assumed that the applicant had graduated from law school at an exceptionally young age, anyone looking at the dates would have to assume that the applicant was at least in his late 50’s.

56The applicant was an “older” lawyer, and considerably older than Crystal and John. There is also no dispute that he was not offered an interview. The question is whether age was a factor in his not being offered an interview.

57The respondent submits that the applicant was less qualified than Crystal or John. However, in her testimony, Ms. Mason agreed that the applicant was qualified for the job. In her emails, she indicated that the applicant was potentially “over qualified” for the position.

58In the covering letter that he sent with the first curriculum vitae, the applicant indicated that he had “authored many legal articles and had several of them published by Lancaster House, Butterworths, Canadian Banker Magazine and Jewel Publications.” In addition, he noted that he had done legal writing and editing in relation to his position with the bank.

59Crystal’s curriculum vitae was more specific with respect to her legal writing experience as she set out thirteen publications she had written. Most of these were newsletter publications sent to clients by the firm where she worked.

60John’s curriculum vitae indicated that he worked for one of the respondent’s competitors from 2010 – 2011. He indicated that as an articling student he had collaborated in writing an article published in a journal. He did not specify any other legal writing he had done although he referred to legal brief writing he had done.

61The issue of the relative qualifications of the people who applied for the job is of relevance because if the applicant were clearly less qualified than the other job applicants it would be hard to establish that the reason he wasn’t interviewed was age discrimination. In Clennon v. Toronto East General Hospital, 2009 HRTO 1242 described the test for establishing a prima facie case of discrimination in a case such as this, at paragraph 75:

The classic statement of what is required to establish a prima facie case of discrimination in a circumstantial evidence case pertaining to hiring or promotion was articulated by this Tribunal in Shakes v. Rex Pak Ltd. (1981), 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001 at para 8919. Essentially, in these kinds of cases, a prima facie case is established by proving the following:

a) that the applicant was qualified for the particular employment;

b) that the applicant was not hired; and

c) that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position.

62In my view, in this case, the evidence shows that all three of the applicants, John and Crystal were qualified for the job.

63The respondent has two primary explanations for why the applicant was not interviewed for the job. First, by the time the applicant applied, the respondent had already received applications from Crystal and John, both of whom appeared to be good candidates. Secondly, Ms. Mason had legitimate questions about the applicant because of his curriculum vitae and covering letter. The fact that important dates were missing and that details about where he had worked and the nature of his current practice were “red flags” for her, based on her previous experience that a deficient curriculum vitae could mean a deficient candidate. As well, he did not explain in his covering letter why a person with his experience was interested in the writing job.

64There is an issue in this case about the exact status of the applications from Crystal and John at the point that the applicant submitted his job application.

65In its Response to the Application (Form 2), the respondent indicated as follows:

On May 5, 2011, two candidates applied for the Writer position. These candidates proceeded through the screening, testing, first and second interview stages by May 18, 201. An offer was made to the top candidate. If she did not accept the offer, an offer would then have been made to the second candidate for the position.

By the time that the Applicant applied for the Writer position on May 18, 2011, CCH was already in process with two solid candidates. However, the CCH hiring manager was interested in having the Applicant tested and interviewed in the event that one of the top two candidates did not accept CCH’s offer.

66The evidence at the hearing shows that this information was not accurate. By the time the applicant submitted his job application on May 18, 2011, neither Crystal nor John had been interviewed. Crystal had been tested. John may have been tested, but Ms. Mason did not review the results until May 23. Crystal was interviewed on May 25 and John was interviewed on June 1.

67The fact that the information in the Response was not accurate is clear from the emails which are the central relevant documents in this case and which were outlined earlier. Mr. Kler points out that there was also a problem with the respondent’s approach to the disclosure of those relevant documents.

68At the point that the parties were required to exchange their “arguably relevant” documents, pursuant to rule 16.1 of the Tribunal’s Rules of Procedure, the respondent disclosed only a few documents. The applicant’s counsel complained that clearly relevant documents had not been disclosed, including the emails that are central to the Application. Mr. Kler’s letter was not responded to until he filed a Request for Order During Proceedings. Mr. Kler states that after this, the respondent disclosed many more documents, including the central relevant documents.

69On behalf of the applicant, Mr. Kler asked me to draw an adverse inference from the fact that the Response contained inaccurate information and from the fact that the respondent did not initially disclose all the relevant documents. He noted that the inaccuracy was potentially serious because at the time the applicant could not have known that the information was inaccurate. This could have adversely influenced how the applicant assessed the case, settlement positions and preparation of the case. The inaccuracy was only clear after the fuller disclosure, which occurred only a short time before the hearing. Mr. Kler submits that I should draw the inference that the respondent’s approach to the Response and disclosure was an attempt to cover up age discrimination.

70On behalf of the respondent, Mr. Pushalik advised that the Response was prepared by his firm on the basis of the information provided by the respondents and that there was no attempt to mislead. He did not address the disclosure issue.

71The preparation of a Response and disclosure of documents are important parts of the Tribunal’s proceedings. Inconsistencies as between pleadings and testimony can raise doubts about a party’s credibility. The Tribunal’s Rules provide that the Tribunal may take such action as is appropriate if a party fails to comply with the Tribunal’s Rules or an order or direction of the Tribunal regarding disclosure of documents (Rule 5.6).

72In this case, the actual facts of what occurred in respect to the timing of interviewing and testing the job applicants is now clear. The relevant documents have been disclosed. In these circumstances I do not find that there is an adverse inference to be drawn from the respondent’s approach in the Response or from the fact that it did not disclose all the relevant documents until asked to do so by the applicant.

73Although it is not the case that Crystal and John had been both tested and interviewed by the time the applicant applied, there is evidence to support the respondent’s assertion that by the time the applicant applied Ms. Mason had identified Crystal and John as promising candidates. The emails show that at the same time that Ms. Mason was discussing the applicant’s job application with Ms. Wong and Mr. Schon, she was also moving Crystal and John along in the recruitment process. She had identified both of them as “excellent” candidates and she was hoping that at least one of them would fill the vacancy.

74There is also evidence to support that the respondent had concerns arising from the applicant’s first curriculum vitae, which was missing information, including dates and the nature of some of his employments. Ms. Mason testified that in the legal writing area, attention to detail is important. The missing information raised some questions and concerns. These included the lack of clarity about his current employment, and the mention of only one of two banks that he had worked for. I accept that this missing information may have caused Ms. Mason to conclude that the applicant was “not forthcoming” and that this raised a general question about whether the applicant was a suitable candidate.

75The applicant provided a revised curriculum vitae in short order. It provided the missing information. It also provided information about his approximate age.

76Ms. Mason’s opinion after the second curriculum vitae was that the applicant had not provided a sufficient explanation for why he wanted to become a legal writer after a long career in practice. Interestingly, the applicant had a very good explanation for this, relating to the fact that for the previous several years he had been struggling to establish his own practice with limited success after downsizing led to the end of his long career in banking. Ms. Mason appears to have assumed that the applicant was seeking a transition directly from his career in banking to a new career as a writer. This assumption would have been proved erroneous if the applicant had been interviewed. However, it created an apprehension that the applicant might not want to stay in the job.

77Ms. Mason was also apparently concerned by the applicant’s low salary expectation. The applicant’s actual experience in the years before he applied for the job would also have provided an explanation for why he provided such a low salary expectation because even the low range was more than he had actually earned.

78However, on the face of the curriculum vitae and the covering letter the applicant provided, Ms. Mason was left with the impression that there were some “odd things”, as she indicated in her May 19, 2011 email.

79There is thus evidence that supports the respondent’s explanation for what occurred and supports that there were non-discriminatory reasons for the fact that the applicant was not offered a job interview.

80However, there is also evidence that raises questions about the respondent’s explanation.

81Whether or not Crystal and John were more or less qualified than the applicant, as noted, it seems clear that the applicant was well qualified for the job. Ms. Mason testified about how hard it is to recruit and retain legal writers. She referred to one occasion where a maternity leave went unfilled for a year because no suitable candidate could be found. She testified that there is a very high turnover. The actual experience in this case was that Crystal stayed on the job for only one week. John had accepted another job. Ms. Mason agreed that this particular recruitment was very unusual because there were four qualified candidates applying for two positions. After one was offered to Monica, there were three qualified candidates for one position. The evidence about the difficulty in recruiting and retaining qualified candidates therefore raises the question as to why the applicant would not be considered.

82Ms. Mason’s evidence was that the ideal candidate for the legal writer position is a person who has had a few years of practice after graduating from law school and who has realized that they would rather not work in practice. While this could include people who go to law school late career, for the most part, the people who fit this profile will be younger lawyers.

83The emails from Mr. Schon raise a particular apprehension that the decisions in this case were influenced by age discrimination. As discussed, in his May 26 email to the applicant, Mr. Schon told the applicant he had not been selected for an interview. In fact however, Ms. Mason had told Mr. Schon to put the applicant “on hold”. When the applicant asked why he was not being considered, Mr. Schon told him that the respondent was “moving toward candidates that are more junior in their experience and salary expectation.”

84The comment about salary expectation was simply wrong. The applicant’s salary expectations were lower than the expectations of Monica, Crystal and John and those three were all offered more than the top of the applicant’s range.

85It appears to me that Mr. Schon felt that the applicant should be rejected as a potential candidate. Whether this was only a personal view or whether it came more explicitly from Ms. Mason in conversations is difficult to tell. In my view, the fact that Mr. Schon told the applicant that the respondent was moving towards candidates more junior in experience and salary expectations is suggestive of a stereotyped assumption that an older person would necessarily want a higher salary and would therefore not be a good candidate.

86The effect of Mr. Schon’s communication to the applicant was that the applicant had no reason to follow up with the respondent. Had he been told that his application was on hold, he would very likely have followed up. Given what happened with Crystal and John, he was then the only qualified candidate from the recruitment process. Accordingly, even though Mr. Schon was not the ultimate decision maker, his communication had an adverse effect on the applicant.

87The applicant submits that Ms. Mason’s opinion about the applicant changed between May 23 and May 25. On the former date, Ms. Mason wrote the email to Ms. Wong in which she discussed the applicant’s “over qualification” for the job and how this could be a good thing if he wanted to “slow down his pace and expand his writing work”. She was considering asking him to write the test and even considering skipping the test because she was sure he would do well.

88Two days later, Ms. Mason sent her email to Mr. Schon, indicating that she and Ms. Wong were “on the fence” about the applicant and telling him to put the application on hold. On the face of the email, the stated concern and the reason for being on the fence was that the applicant had not been “more up front about how senior he was in practice” and had not “provided a more convincing reason in his covering letter as to why he wants to make such a big change at this time.” She added: “I have no problem with the change, it’s just that he’s not very forthcoming about it that I find problematic.”

89In the intervening two days between these emails, Ms. Mason had a conversation with Ms. Wong. She testified that she could not recall what transpired in that conversation. Ms. Wong was not called to testify.

90In his submissions on behalf of the applicant Mr. Kler urged me to draw an adverse inference from the fact that Ms. Wong was not called to testify. He noted that she is still employed by the respondent and so in the respondent’s control. Mr. Kler produced a letter dated January 18, 2013 (ten days before the hearing), which he sent to the respondent’s counsel’s firm. This letter identifies Ms. Wong as a “material witness” with “evidence that is directly related to the allegations in this matter.” The letter goes on to refer to Ms. Mason’s May 23, 2011 email to Ms. Wong which asked Ms. Wong to comment on the favourable impression that Ms. Mason seemed to have of the applicant in that email, and to her subsequent email of May 25, in which she advised that she and Ms. Wong were “on the fence” about the applicant.

91A colleague of Mr. Pushalik responded to this correspondence on January 22, 2013 and advised that the respondent was not calling Ms. Wong as a witness.

92At the hearing, Mr. Pushalik argued that Ms. Wong was not a material witness because she was not the person who made the hiring decisions in this case.

93The reason that Ms. Wong might have been an important witness would be to clear up whether anything relevant occurred in the interval between Ms. Mason’s May 23 and May 25 emails and specifically what was said between Ms. Mason and Ms. Wong about the applicant. Her evidence would probably not have been important or necessary if Ms. Mason had been able to provide evidence about this, but she testified that she did not recall.

94A respondent is not required or expected to produce as a witness every person who had anything to do with the events giving rise to an Application. It can also be difficult to anticipate the nuance of every aspect of an Application and how it may play out in a hearing. However, in this case, the January 18 letter from the applicant’s counsel put the respondent on notice about the gap in respect of the evidence about what happened between May 23 and May 25. That gap could have been closed if Ms. Mason had been able to provide evidence about it but she was not able to do so.

95In these circumstances, I find that it may be appropriate to draw an adverse inference from the respondent’s failure to provide evidence about what happened between May 23 and May 25. However, I also find that I am not able to infer a great deal. This is because while it is possible to discern a change in Ms. Mason’s view of the applicant between as between the May 23 and May 25 emails, the change is not great. The May 23 email was not unequivocally positive. While it discussed the possibility of having him write the test or even skip it altogether, it also indicates Ms. Mason’s continuing question about whether the applicant would be a suitable candidate.

96The May 25 email expresses these same concerns and states that Ms. Mason was “on the fence” about the applicant. The May 23 email also reflects “being on the fence” although perhaps leaning more in favour of moving forward with the applicant. As a result, even if I draw an adverse inference from the fact that the respondent did not call Ms. Wong, there is not much to infer.

97The applicant notes that it is apparent that Ms. Mason felt that the applicant was “over-qualified” for the job. Mr. Kler submits that “over-qualification” can be a euphemism for “too old”. In support of this, Mr. Kler referred to a decision of the United States Court of Appeals, Second Circuit, Taggart v. Time Incorporated, No. 549, Docket 90-7318, in which the Court stated (at para. 18):

Moreover, characterizing an applicant in an age discrimination case as overqualified has a connotation that defies common sense; How can a person overqualified by experience and training be turned down for a position given to a younger person deemed better qualified? Denying employment to an older job applicant because he or she has too much experience, training or education is simply to employ a euphemism to mask the real reason for refusal, namely, in the eyes of the employer the applicant is too old.”

98In the case before the Court, the employer had not hired the appellant and the only reason given was over-qualification. However, the employer then hired a younger job applicant who the Court found was more qualified than the older job applicant.

99While I agree that over-qualification can provide a discriminatory pretext, if a person is in fact over-qualified for a job, that fact can create genuine, non-discriminatory reasons for not offering employment, regardless of the person’s age. This point was made in Equal Employment Opportunities Commission v. Insurance Company of North America, 49 F.3d 1418, another decision of the United States Court of Appeals (Ninth Circuit), submitted by Mr. Kler. At paragraph 8, the Court commented that rejection of job applicants because the applicant is overqualified can “function as a proxy for age discrimination if ‘overqualification’ is not defined in terms of objective criteria.” In that case, however, the Court found that the fact that the job applicant was in fact overqualified led to legitimate and non-discriminatory reasons for not offering the job, based on the fact that the overqualification would cause the employee to delve too deeply into cases that required quick action.

100In the case before me, I do not see the fact that Ms. Mason identified the applicant as over-qualified as evidence of discrimination. The significance of the applicant’s “over-qualification” was that he had worked for many years in a senior corporate law position. Given this, Ms. Mason was not clear why the applicant would want to instead work as a legal writer at a low salary. Again while the applicant had very good explanations for these concerns which would likely have satisfied Ms. Mason at an interview, the applicant had not been “forthcoming”, to use Ms. Mason’s term, in explaining why he was applying for the job, given his background.

Conclusions

101There were three people were involved in the decisions around the April to June 2011 recruitment process: Ms. Mason, Ms. Wong and Mr. Schon. It is clear that Ms. Mason was the primary decision maker in this case and she was the one who decided not to interview the applicant, or to put his application on hold.

102I find that the applicant has established some evidence to support his contention that Ms. Mason’s decision making was influenced by age discrimination. However, the applicant has to do more than this. He must establish that it is more probable than not that his age was a factor in Ms. Mason’s decision making. I find that he has not done this. The evidence indicates to me that Ms. Mason consistently had questions about the applicant and whether he would be a suitable candidate. Her primary concern was that the applicant had not explained in his covering letter why he was interested in the legal writer position after his many years of experience in a senior level legal position. In addition, the applicant created some concern because the curriculum vitae he submitted was missing information that would normally be included. Perhaps ironically, the applicant omitted this information because he was anticipating age discrimination. However, the result was that a question arose about why the information was omitted resulting in a question in Ms. Mason’s mind about the suitability of the applicant.

103I find that Ms. Mason’s concerns about the applicant’s “over-qualification” was not related to the applicant’s age, but rather about unanswered questions about why the applicant would want to make what she felt was a major career change.

104As discussed above, while it is possible that something occurred in Ms. Mason’s discussions with Ms. Wong that caused her to be somewhat less positive about the applicant in the period between May 23 and 25, there is no evidence to suggest that this change was related to the applicant’s age. While this might be inferred from the failure to call Ms. Wong as a witness, as discussed, the possible inference does not provide anything substantial because the evidence does not indicate any significant change in Ms. Mason’s views between May 23 and May 25.

105The evidence about the difficulty in recruiting and retaining suitable candidates does raise a question about why the applicant was not interviewed even if there were two other qualified candidates. However, the evidence is clear that Crystal and John had been identified as promising candidates. Ms. Mason was moving their applications along at the same time that she was considering the applicant.

106The one remaining issue is why the applicant was not considered at the point that the position was unfilled after Crystal quit and John declined the position. The position was filled by someone Ms. Mason ran into on the subway.

107It does seem to me that if Mr. Schon had told the applicant that his application was on hold instead of telling him that he had been rejected, it is very likely that the applicant would have followed up with respect to the position.

108For the reasons noted earlier, I find that a reasonable inference from the evidence concerning Mr. Schon’s involvement is that he personally had formed the opinion that the applicant was not a suitable candidate, based on a stereotypical view about the applicant, based in part on the applicant’s age. The result of this was that the applicant thought that he had been rejected and did not follow up. I find that Mr. Schon’s communications to the applicant were tainted by age discrimination and that this had an adverse effect on the applicant.

109However, the adverse effect was limited because Mr. Schon was not the decision maker. The effect was limited to depriving the applicant of an opportunity to follow up. This is very different than discrimination resulting in not being interviewed at all or not offered a job.

Remedy

110Section 45.2 of the Code provides:

45.2 (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:

1. 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.

2. 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.

3. 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.

111I find that the applicant is not entitled to monetary compensation for any loss of earnings because I have found that the applicant has not established that Ms. Mason discriminated against him on the basis of age and because it was Ms. Mason who was the decision maker.

112I find that the applicant is entitled to monetary compensation for injury to dignity, feelings and self-respect as a result of the discrimination resulting in Mr. Schon’s giving the applicant incorrect information about the status of his job application.

113It is difficult to quantify this injury. In itself incorrect information about the status of a job application would not lead to a higher end award. However, the applicant was clearly upset about not being considered for the job and this information came from Mr. Schon. It was the information from Mr. Schon that caused the applicant to file the Application. If the applicant had followed up he might well have got an interview.

114In consideration of all the circumstances, I conclude that the applicant is entitled to $5,000 as monetary compensation for injury to dignity, feelings and self-respect.

115Although Mr. Schon was not an employee of the respondent, he was an agent of the respondent and the respondent has accepted any potential liability arising in this case. The monetary compensation is therefore payable by the respondent.

116Since Mr. Schon is not an employee of the respondent, I find that there is no reason to make any direction to ensure future compliance with the Code.

ORDER

117The respondent is directed to pay $5,000 as monetary compensation for injury to dignity, feelings and self-respect suffered by the applicant as a result of age-discrimination resulting in the applicant receiving incorrect information about the status of his job application which in turn deprived him of the opportunity of following up with the respondent regarding his job application.

118Post-judgment shall accrue at 3%, the rate specified under the Courts of Justice Act, commencing thirty days from the date of this Order.

Dated at Toronto, this 13th day of May, 2013.

”signed by”

Brian Cook Vice-chair