Alan Truscott v. Landmark Student Transportation, 2014 HRTO 607

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Alan Truscott

Applicant

-and-

Landmark Student Transportation

Respondent

DECISION

Adjudicator: Beverly Harris

Date: April 30, 2014

Citation: 2014 HRTO 607

Indexed as: Truscott v. Landmark Transportation

APPEARANCES

Alan Truscott, Applicant

Self-represented

Landmark Student Transportation, Respondent

Samil Chagpar, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of age contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the respondent’s decision not to hire him was based on his age and therefore infringed his rights under the Code. The respondent denies that it infringed the applicant’s rights under the Code and maintains that its decision not to hire the applicant was based on sound business considerations alone.

DECISION

2The evidence in this matter does not establish that the applicant’s age was a factor in the respondent’s decision not to hire the applicant. Accordingly, the Application is dismissed.

PROCEDURE

3The Tribunal convened an oral hearing in this matter on March 25, 2014. I heard evidence from the applicant and the only witness on behalf of the respondent. Both the applicant and the respondent made oral argument before the Tribunal. At the close of the hearing it became apparent that there was no direct evidence on a key point in issue; namely, whether there were any vacancies on Collingwood routes during the summer of 2013. The applicant believed that there were vacancies and the respondent’s witness testified that she assumed there were no vacancies because the applicant had not been called about a position.

4The Tribunal issued a Case Assessment Direction directing that the respondent file sworn written testimony on that discrete point and inviting submissions in response from the applicant.

5The Respondent filed the affidavit of Ms. Lubke Storry indicating that she had consulted with the manager for the Collingwood routes and determined that there were no vacancies in Collingwood in the summer of 2013 thus confirming her assumption advanced at the oral hearing.

6The applicant’s submissions in response suggested new approaches to challenge the evidence and also reiterated evidence and argument marshalled at the hearing. Because the evidence from the respondent was not new or different from that adduced at the hearing, I find that it is not necessary or helpful to re-open the hearing in the fashion that the applicant suggests. The applicant had a full opportunity at the oral hearing to challenge the respondent’s evidence on this issue.

BACKGROUND

7The applicant is a seventy-five year old man who has been driving both highway buses and school buses since retiring over fifteen years ago from a career as a high school guidance counsellor. The evidence is uncontroverted that Mr. Truscott had an exceptional safety record as a school bus driver; in 2012 he received an award for fifteen years of safe driving. There is also uncontested evidence that the applicant was highly engaged in his work as a school bus driver, particularly with elementary school students. He found this work to be enormously satisfying and hoped to continue to work as a school bus driver into the future.

8In the fall of 2012 the applicant was employed by Parkview, a transportation company that held the contract for providing services on some but not all of the school bus routes for the Simcoe County Board of Education (a region that includes Collingwood, where the applicant drove a school bus). Two other companies also provided bus service in the Region for the school board: Sinton and First Student.

9For many years the applicant drove route 422, an elementary school bus route in Collingwood and one that he found extremely satisfying and enriching. In the 2011-12 school year, for reasons unrelated to his performance, he was transferred to a high school route (route 430); a route that he enjoyed less than route 422.

10The contracts for providing school bus services in Simcoe county were put out to tender and in October 2012 Landmark was awarded many of the school bus routes for the region. As a result of this tender, the applicant’s employer, Parkview, lost almost all the school bus routes that it provided and many of the Parkview drivers lost their jobs at the end of the 2012-13 school year.

11In the late fall of 2012 Landmark held an open house in Collingwood to recruit drivers for the following academic year. The applicant was quite active in suggesting to Landmark a venue for that open house as well as promoting the open house to his fellow drivers at Parkview.

12The applicant attended the open house and spoke with Ms. Lubke Storry, the project manager for Landmark. She knew of his interest in working for Landmark and, because he would not be available for the regularly scheduled interviews, Ms. Storry offered to attend at the applicant’s home in Collingwood to conduct his interview and complete the application form.

13When they met for that interview, Mr. Truscott indicated a strong preference to return to route 422 if he was hired by Landmark. Ms Storry made a note to that effect on the form and advised that she would not have final confirmation of Landmark’s routes (and, in particular, whether Landmark would be awarded route 422) until early in the new year.

14At about the same time, Landmark agreed to buy Sinton’s operations. As a result, approximately 300 drivers formerly employed by Sinton were now Landmark drivers.

15By the spring of 2013, Landmark had final confirmation of the routes it would be providing. It was awarded 307 routes in the region; approximately 13 of which were in the immediate Collingwood vicinity (the 13 Collingwood routes). Landmark was not awarded route 422 (Mr. Truscott’s preferred route) but it was awarded route 430 (the route Mr. Truscott was driving at the time of the Application).

16Landmark then began the process of populating the routes with drivers. Their first priority was to assign the drivers who previously worked for Sinton. Ms. Storry advises that, of 300 Sinton drivers, approximately 270 drivers were absorbed by Landmark. Thus, the first order of business for Landmark was matching those 270 drivers to the 307 routes that had been awarded to Landmark.

17Ms. Storry testified that Landmark assigned drivers by matching routes to the driver’s place of residence. She explained that many drivers keep the school bus at their residence and drive from there to begin their route for the day; accordingly, the cost of gas and other associated costs of driving the vehicle are lower if that distance is as short as possible.

18The respondent’s evidence is that all 13 Collingwood routes were assigned to drivers who previously worked for Sinton.

19In April 2013 the applicant was advised by Ms. Storry that he would not be hired by Landmark. He appealed to the owner of the company and was informed that because Landmark was contractually obligated to hire Sinton drivers, they were unable to offer employment to Mr. Truscott. Both Ms. Storry and the owner of the company offered to keep the applicant’s name in a database of potential drivers for Collingwood routes.

20The applicant has never been contacted by Landmark about employment since having his name added to the database in April 2013.

Was age a factor in the decision not to hire the Applicant?

21The applicant argues that in view of his long and engaging experience driving a school bus and buses generally, his safety record and his higher education he was a stronger candidate for the job than 90% of the applicants. He argues that the only rational explanation for the decision not to hire him is a belief on the part of the respondent that he was too old. He admits that there is no direct evidence of such discrimination but relies on the following evidence described by him as circumstantial:

• The Applicant understood that Landmark acquired all the routes previously operated by Sinton, but could not understand why a Sinton driver would be assigned to a Parkview route

• Landmark has continued to advertise for drivers in the months following the decision not to offer the Applicant a position, particularly in the summer of 2013. In spite of this, the Respondent has never called the Applicant about a position

• The Applicant assumes he was the sole Parkview driver who was not hired by Landmark

22The applicant concedes that there is no direct evidence of age discrimination and that his case rests on circumstantial evidence. The question of whether the Tribunal may draw an inference of discrimination has been considered many times by the Tribunal, often in cases of race and colour discrimination. I adopt the following summary from Phipps v. Toronto Police Services Board, 2009 HRTO 877 as a concise summary of the approach that applies equally in cases of alleged age discrimination:

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. (emphasis added)

23I also have borne in mind in this decision that age need only be a factor in the respondent’s decision in order to amount to a violation of the Code, and that the standard of proof in discrimination cases is on the balance of probabilities.

24I am satisfied that the applicant has established a prima facie case that age was a factor in the decision not to hire him. He was extremely well qualified for the position and had an excellent record over the more than fifteen years he drove school buses for Parkview. There were jobs available in the Collingwood area and the applicant was not chosen. Further, the respondent advertised for new drivers in the months following their decision not to hire the applicant but the manager responsible for Collingwood never called the applicant in that period about joining as a driver. As a result, the evidentiary burden then shifts to the respondent to provide a rational and non-discriminatory explanation for its decision not to hire the applicant that is credible on all the evidence.

Assigning Sinton drivers to Parkview routes

25The applicant assumed that Sinton drivers who joined Landmark would be re-assigned to the same routes they drove for Sinton. He further assumed that former Parkview routes would be available to be assigned to new Landmark employees and, in particular, former Parkview employees. With these assumptions in mind, he concluded the only reason he was not hired by Landmark is that he was considered too old for the job.

26Ms. Storry explained how Landmark made decisions about assigning drivers to the routes and began by explaining a fairly dramatic shift in the landscape between the time the applicant applied for the position and when the decision was taken.

27At the time Landmark acquired the contract to provide bussing services, in the fall of 2012, the respondent did not have final information about the routes that it would be given in the Collingwood area. Furthermore, and of greater import, the respondent had not acquired Sinton and its drivers.

28By the spring of 2013, Landmark knew exactly how many routes it had (307, of which 13 were in Collingwood and route 422 was not among them). More importantly, Landmark had acquired Sinton and knew that there were approximately 270 former Sinton drivers who would be assigned to those 307 routes.

29Landmark assigned drivers using a matching process that matched drivers to the route closest to their residence. They began by matching the Sinton drivers and were able to match Sinton drivers to each of the 13 routes in the immediate vicinity of Collingwood.

30Under this process, had the applicant been a former Sinton driver, the applicant would have been a strong match for the routes in the immediate vicinity of Collingwood. Indeed, such a match would have closely aligned with the applicant’s stated preference to have a route that is close to home. The applicant testified that he did not apply to jobs with other companies because the routes were all a significant distance from his home and he did not wish to travel so far for a part-time job.

31The respondent’s evidence about how it determined route assignments is reasonable and credible. I am satisfied that the decision not to hire the applicant for any of the 13 Collingwood routes was rooted in its contractual obligations to Sinton drivers and in sound management concerns for containing costs.

Ongoing advertising for driver positions

32The applicant also points to a campaign of advertising conducted by the respondent in the summer of 2013. This campaign suggested to him that there were vacancies for Landmark routes and on Collingwood routes in particular. He argues that the respondent’s decision not to offer him a position at this time was based on age discrimination.

33The respondent’s evidence is that it is common in the industry to have significant turnover, in the order of 15% of drivers, particularly in September. The advertising was an attempt to build up their data base of drivers in all parts of Simcoe county over the summer in anticipation of this turnover.

34More particularly, Ms. Storry testified with respect to vacancies in Collingwood and how the database was managed in that community. She testified that the names of Collingwood area residents, including the applicant, were kept in a database for Collingwood area routes only. This database was given to the Collingwood area manager.

35After the conclusion of the oral hearing and at the request of the Tribunal, the respondent filed sworn testimony that none of the Collingwood routes were open during the summer of 2013. Thus, contrary to the applicant’s assumption, there were no vacancies over the summer for Collingwood routes operated by the respondent.

36I prefer the direct evidence about route availability in the summer of 2013 proffered by the Respondent over the conjecture of the applicant. Thus, on this basis as well, I find that the respondent’s explanation is reasonable and credible and not discriminatory.

Applicant was not the only Parkview driver not offered work

37The final piece of circumstantial evidence relied upon by the applicant is his understanding that, of all the Parkview drivers who applied for work, he alone was not hired by Landmark. He bases this assumption on the fact that none of the Parkview drivers replied to his call on the two-way radio to “get in touch with him [either by radio or at his home phone]” if they had applied and not been offered a job.

38Landmark’s evidence does not respond directly to this assumption; however, the company’s position that other Parkview employees were not hired by Landmark is consistent with the evidence that more than 90 people were turned down for work with Landmark. Given the shift in the providers in the Collingwood area and the small number of driver jobs available after the purchase of Sinton (there were only 27 vacancies for non-Sinton drivers), it would be surprising if many amongst those 90 were not former Parkview employees. I find that Landmark’s position is more consistent with the evidence than the applicant’s.

39In considering whether the respondent has discharged its burden to “provide a rational explanation [for its decision not to hire the Applicant] that is not discriminatory”, I am mindful of the last point articulated by the Tribunal in Phipps. For ease of reference, I repeat that statement here:

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

40The actual explanations offered by the respondent in this case include the fact that Landmark’s first obligation in matching drivers to routes was to find places for almost 300 Sinton employees who had been transferred to Landmark. The respondent also refers to the business analysis undertaken in matching drivers to routes in order to best contain the costs of the business.

41I am persuaded that there were 13 routes in Collingwood that were matches to the applicant and that also aligned with his preference to work within a short distance of his residence. I am further persuaded that all 13 routes were awarded to former Sinton employees to whom Landmark owed a primary duty to place in jobs.

42I am also persuaded that Landmark routinely draws upon the retiree community for drivers and this was particularly true in Collingwood. I accept Ms. Storry’s evidence that they find the part-time work of driving a school bus to be a particularly strong fit with the interests and needs of retirees.

43I find the respondent’s explanation for its decision to be rational and credible in view of all the evidence. Further, I find the respondent’s explanation to be more consistent with the evidence than the applicant’s assertion of discrimination as the reason for the decision.

44For all of the above reasons, the Application is dismissed.