Volante v. Thames Valley District School Board, 2014 HRTO 27

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Patrick Volante

Applicant

-and-

Thames Valley District School Board

Respondents

DECISION

Adjudicator: Daniel Randazzo

Date: January 8, 2014

Citation: 2014 HRTO 27

Indexed as: Volante v. Thames Valley District School Board

APPEARANCES

Patrick Volante, Applicant ) Self-represented

Thames Valley District )

School Board, Respondent )

) Peter J. Thorup, Counsel

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, CH.19 as amended (the “Code”), alleging discrimination with respect to employment because of age. In summary, the applicant alleges that the respondent did not hire him as an occasional teacher because of his age.

2On August 30, 2013, the applicant filed a Request for Order During Proceeding (“RFOP”) seeking a deferral of his application before the Tribunal until such time that the grievance between Ontario English Catholic Teachers Association and Dufferin-Peel Catholic School Board had be determined. By decision September 26, 2013 I dismissed the applicant’s request.

3This matter was scheduled to be heard on October 17 and 18, 2013 in London, Ontario. Prior to the hearing the applicant, by a Case Direction Assessment (“CAD”) dated September 19, 2013, was directed to file, by October 3, 2013, his list of witnesses and witness statements with the Tribunal and deliver same to the respondent. The applicant failed to comply with this direction and as a result the respondent filed a RFOP seeking dismissal of the application on the basis that the applicant failed to comply with the September 19, 2013 CAD and on the basis that the applicant had abandoned his application. Although the applicant did not comply with the September 19, 2013 CAD he did, on September 24, 2013, file a RFOP seeking an order directing the respondent to produce further documentation.

4On the first day of hearing, after hearing the submissions of the parties, I dismissed the respondent’s RFOP seeking to dismiss the applicant’s application. Although the applicant had not complied with the CAD and had not filed and delivered his witness list and witness statements, it was clear that the applicant had not abandoned his application as he continued to pursue his rights under the Code.

5With respect to his failure to provide a list of witnesses and witness statements, the applicant stated he had witnesses, other than himself, however he was not ready to provide the names of witnesses and that he feared that the respondent would seek reprisal against those who he called as witnesses. The applicant did not provide any particulars of such fears and conceded that his fears were not based on any reprisal flowing from the fact that he had sought to enforce his rights under the Code. The applicant did not have any witnesses, other than himself, available to give evidence at the hearing.

6I advised the applicant that he had commenced a legal proceeding and it was incumbent upon him to come prepared and ready to commence the hearing. The applicant had failed to provide a list of witnesses and witness statements notwithstanding that he was informed of and directed to do so by the Notice of Hearing dated September 25, 2012 and my CAD dated September 26, 2013. I permitted the applicant to confirm that he would be his only witness and that his evidence would be limited to the facts plead in his application.

7With respect to the applicant’s RFOP seeking an order directing the respondent to produce further documentation, I note that his request was made more than one year after the applicant had received the Notice of Hearing and twenty-four (24) days prior to the hearing. At the hearing, the respondent conceded that the requested documents, to the extent that they existed, were arguably relevant. The documents were, subject to issues of privacy, which could be addressed by redacting personal information, available at the hearing. As a result of the respondent’s submission, it was not necessary to make an order with respect to the applicant’s request for the production of further documents.

8The hearing commenced on October 17, 2013. I heard from one witness, the applicant, Mr. Patrick Volante. The respondent relied upon its documents and the applicant’s evidence.

REVIEW OF EVIDENCE

Applicant’s Evidence

9In 1983 the applicant received a Bachelor of Architecture Science from Ryerson University. From 1983 through 2000, the applicant had extensive work experience in construction and project management and in the real estate industry. In 1999 the applicant obtained a Bachelor of Education degree from the University of Toronto and in 2006 the applicant obtained a Master of Education from the University of Toronto. From 1999 to present the applicant has worked as an Elementary and Secondary teacher in the Dufferin-Peel Catholic District School Board and the Toronto Catholic District School Board. The applicant also has several years of experience as a Professor at Sheridan College, Humber College of Applied Arts and Technology, Ryerson University and University of Guelph.

10The applicant testified that in August 2010 he decided to apply for a position as an occasional teacher in the Thames Valley District School Board. The applicant was successful in obtaining an interview to be included on the TVDSB’s list of occasional teachers in the secondary pool. On August 19, 2010 the applicant met with and was interviewed by Mr. Paul Panayi and Ms. Judy Thorner. Both individuals are principals of secondary schools in the TVDSB. The applicant describes the interview process as being of very condensed time with comprehensive questions and very detailed answers.

11On August 26, 2010 the applicant received a letter from the TVDSB advising the applicant that he had not been selected to be included on the Occasional Teachers’ List. This decision did not sit well with the applicant. He contacted the TVDSB as he wanted to know why he was not selected. Eventually he was advised by email from Mr. John Cuddie on September 29, 2010 that interviewers, Panayi and Thormer, had not recommended the applicant for inclusion on the Occasional Teachers’ List. The interviewers provided the comments, “poor answers to questions” and “would relate better to post-secondary students”. The applicant was not satisfied with this answer and attempted to obtain clarifications, including a transcript of the interview.

12In cross examination the applicant acknowledged that the interview lasted approximately twenty (20) minutes. The applicant acknowledged that he did not take any notes during the interview process. By agreement of the parties, the interview notes from the applicant’s interview were admitted into evidence. The applicant testified that some of the notes were consistent with some answers he may have given but could not verify if the notes were accurate representations of all of his answers. The applicant thought that in several instances his answers would have been longer than what was recorded in the notes.

Respondents’ Evidence

13The respondent did not call any witnesses. By agreement of the parties, the respondent’s documents were entered into evidence. These documents consisted of:

1. Applicant’s employment application dated July 1, 2009;

2. 2010-2011 Occasional Teachers’ List interview report dated August 19, 2010;

3. 2010-2011 Occasional Teachers’ List interview notes;

4. Email to the Applicant from Mr. John Cuddie Re: Feed-back on Interview dated September 29, 2010; and

5. Letter to the Applicant from Mr. John Cuddie Re: 2010-2011 Occasional Teachers’ List interview results.

14Normally, the applicant would provide his argument first followed by the respondent with the applicant having an opportunity to reply the respondent’s argument. However, prior to commencing his argument the applicant requested that the respondent provide their argument first. The respondent agreed. The applicant was given an opportunity to provide reply submissions to respondent’s reply.

ARGUMENT

Respondents’ Argument

15The respondent acknowledged that the applicant was a highly credentialed candidate with some life experiences. The respondent noted that the applicant was one of two hundred and twenty applicants seeking a position on the Occasional Teachers’ List.

16The respondent submitted that the applicant did not call any evidence that would suggest a link between the decision not to place the applicant on the Occasional Teachers’ List and the prohibited ground of age.

17The respondent argued that the questions asked at the interview were proper and had no link to age. The respondent noted that the applicant agreed in cross examination that the questions asked at the interview were proper. The respondent suggested that the applicant may lack interview skills. The respondent argued that the applicant demonstrated a difficulty in listening and a lack of interview skills during his cross examination. The respondent suggested that perhaps the applicant’s ego was bruised and that he was not happy with the respondent’s decision. In his argument, counsel for the respondent suggested that the applicant was more of a “professor” and that the respondent was not looking for a professorial type of a teacher.

18Finally, the respondent argued that it was not a question of whether the applicant would make a great teacher but whether there was discrimination in the decision not to give the applicant a position on the Occasional Teachers’ List.

19The respondent relied on Ontario Human Rights Commission v. Simpson-Sears Ltd. (“O’Malley”), 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536; Dwyer v. Intact Insurance Company, 2011 HRTO 314; Dabic v. Windsor Police Service (“Dabic”), 2010 HRTO 1994; Taylor v. Mallick, 2011 HRTO 393; Napolitano v. Friendly Times Child Care Centre, 2012 HRTO 603; and Richards v. Toronto Community Housing Corporation, 2010 HRTO 2454 in support of their position that the applicant should be dismissed.

Applicant’s Argument

20The applicant argued that someone with his credentials and work experience should have had a better outcome through the interview process. The applicant argued that the interview process was not a fair process. The applicant added that he was not given an opportunity to take notes at the interview.

21The applicant argued that there were documents that would assist in establishing that the respondent was practicing ageism. The applicant also argued that the respondent had no intention of hiring him regardless of his qualifications, reiterating that the interview process was unfair.

22In the applicant’s view, the only reason that someone with his credentials did not get a position on the Occasional Teachers’ List was ageism and that he did not suit the respondent’s profile.

23The applicant argued that the reference to a “professorial” type of a teacher implied age and this was discrimination.

24The applicant did not rely on any cases but distinguished the cases relied on by the respondent on the basis that none of the case referred to school boards and did not related to education, age or hiring.

DECISION

25For the reasons that will follow, the application is dismissed.

26Prior to commencing my analysis, it is important to note that applicant continued his argument for the production of documents arguing that the further production of documents would assist his case. The Respondent objected stating that they have produced their arguably relevant documents and had responded to the applicant’s late request for documents. The respondent added that to the extent the requested documents exist, they made them available at the hearing. As noted above, the production issues were dealt with at the commencement of the hearing. To the extent that the requested documents existed, they were available at the hearing.

ANALYSIS

Analytical Framework and Relevant Code Provisions:

27The following provisions of the Code are relevant to this proceeding:

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

28It is well established that in an application alleging a violation of the Code, the applicant bears the onus of establishing a prima facie case of discrimination O’Malley, above, at para 28. In establishing discrimination, the ordinary civil standard of proof upon a balance of probabilities applies: Ontario (Human Rights Comm.) v. Etobicoke (Borough), 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202.

29In Shaw v. Phipps, 2012 ONCA 155, the Court of Appeal re-stated the long-standing principle from the decision of the Supreme Court of Canada in O’Malley, above, that the onus rests on the complainant to establish a “prima facie” case of discrimination which is described as “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 answer from the respondent.”

30The respondent relies on several cases all of which are decisions resulting from summary hearings. Although this was not scheduled as a summary hearing the analysis is similar. In Dabic, above, the Tribunal made the following observations on the type of inquiry that may be involved in s summary hearing:

In some cases, the issue at the summary hearing may be whether assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

31In the matter before me, it was incumbent on the applicant to call sufficient evidence to establish a “prima facie” case that there was a link or nexus between the decision not to offer the applicant a position on the Occasional Teachers’ List and the applicant’s age.

32Discrimination is not defined in the Code, however, it has been consistently defined by the Tribunal and the Courts to mean adverse treatment, or a distinction which creates a disadvantage, on the basis of a prohibited ground (O’Malley, above; Andrews v. Law Society of British Columbia (“Andrews”), 1989 CanLII 2 (S.C.C.), [1989] 1 S.C.R. 143. In Andrews, McIntyre J. defined discrimination in this way:

…a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual’s merits and capacities will rarely be so classed.

33In this case, I accept that the applicant self-identifies with the prohibited ground of age. I accept that he has suffered an adverse treatment in not being offered a position on the respondent’s Occasional Teachers’ List. The applicant has established the first and second stage of the analysis, however the applicant has not been able to establish the third stage of the analysis in that he has not established a nexus between the adverse treatment and the prohibited ground of age.

34It is apparent that the applicant holds a very sincere belief that the reason he was not hired was his age. He points to his academic credentials and his significant work experience and asks the question “how can someone with his credentials and work experience not get a spot on the Occasional Teachers’ List?” The applicant urges the Tribunal to find that age is the only answer. I note at this point that the test is that the prohibited ground of age must have been one factor in the decision, it does not have to be the only or primary reason. See Janzen v. Platy Enterprises Ltd, 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252.

35The applicant has called no evidence that could substantiate his claim that age played or role or was a factor in the respondent’s decision not to provide the applicant with a placement on the Occasional Teachers’ List. As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17, the Tribunal does not have the power to deal with general allegations of unfairness and there must be a basis beyond mere speculation or suspicion to establish a link between a ground alleged under the Code and a respondent’s actions.

36The applicant argued that the interview process was unfair but called no evidence to substantiate his belief. He argued that he was not given the opportunity to take notes but called no evidence that he was prohibited from taking notes during the interview. Even if the applicant was not given an opportunity to take notes, it is not clear to me how this could form the basis of a finding of discrimination.

37During the interview the following questions were asked:

1. Please give us a brief description of your relevant experience and an outline of your basic teaching philosophy.

2. What qualities do you possess that you feel will make you an effective teacher?

3. How would you motivate a group of students who do not “buy into” the learning process?

4. What techniques have you used to handle discipline problems that did arise in your classroom either as a teacher or a student teacher?

5. Although teachers are to leave a lesson plan each day, what would you do if you arrived at the school and could not locate the day book?

6. How do you stay current in your field?

7. Why do you want to work in our school system? What would you bring to the Thames Valley District School Board?

8. What activities would you like to become involved in within our school, district, or community?

(un-numbered) Is there any you’d like to share about yourself as a teacher that has not already come out in the interview?

38With respect to the interview process and the questions asked during the interview, the applicant acknowledged that the questions that were asked during the interview were proper questions. The applicant took issue with the interview notes suggesting that although some of the notes fairly represented his answers, he thought that his answers were longer than what was recorded. The applicant called no evidence that would establish that the interview process, the questions asked during the interview and the recording of his answers was in any way improper or a violation of the Code.

39The applicant argued that he was not hired because he did not fit the respondent’s “profile” but called no evidence to establish that the respondent’s had a preconceived “profile” of an occasional teacher.

40The applicant took issue with the reference to “professorial type teacher” made by counsel during the respondent’s argument. I find that this reference does not imply, as argued by the applicant, discrimination, or that it suggests a proxy for age. I accept the respondent’s submission that the reference relates to the notation in the interview notes “would relate better to post-secondary students” and refers to a type or style of teaching and not to the age of the teacher.

41For all the above reasons, the Application is dismissed.