Hardy v. Lambton Kent District School Board, 2015 HRTO 1177

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Diane Hardy Applicant

-and-

Lambton Kent District School Board Respondent

INTERIM DECISION

Adjudicator: Colin Johnston Date: September 4, 2015 Citation: 2015 HRTO 1177 Indexed as: Hardy v. Lambton Kent District School Board

APPEARANCES

Diane Hardy, Applicant Diane Hardy, Self-represented

Lambton Kent District School Board, Respondent Dianne Jozefacki, 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”). More specifically, the Application alleges that the respondent School Board refuse to hire the applicant for a casual position on its clerical supply list because she was an older candidate.

2By way of a Case Assessment Direction (“CAD”) dated April 10, 2015, the Tribunal directed that a summary hearing be held to determine whether the Application has no reasonable prospect of success. At paragraph 7 of the CAD the Tribunal stated:

a. It appears that the applicant may be unable to prove that the respondent did not hire her because of her age. Although the applicant may believe that the respondent did not hire her because of her age, it is not clear that there is evidence available to the applicant to prove this. The focus of the inquiry in the summary hearing will be on the evidence the applicant has or may be able to obtain to prove that the reason the respondent did not hire her was because of her age.

3A summary hearing was held on August 12, 2015. The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as, the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding whether an Application should be dismissed in whole or in part because it is untimely or there is no reasonable prospect that the application will succeed.

BACKGROUND

4The applicant has had a lengthy career working as clerical support staff with different school boards in Ontario. In December 2013, she retired from a full-time position with another school board. In September 2014, she applied for a casual position on the Lambton Kent District School Board’s clerical supply list. The applicant submitted a cover letter and resume to the respondent. Her resume shows that she has 19 years’ experience working in clerical positions in both the elementary and secondary school system.

5The applicant was interviewed on October 23, 2014 by a school principal and a member of the School Board’s human resources department. She was asked questions on eight different competencies for the job. The interviewers scored the answers to these questions in evaluation forms which were provided to the applicant in advance of the summary hearing.

6The applicant stated that when she was interviewed for the position she was told that there were 60 candidates applying for 40 positions on the supply list.

7On October 27, 2014, a recruitment officer with the School Board sent an email to the applicant advising that she was not a successful candidate for a position, as there other more qualified candidates with more experience and better availability than the applicant.

8The applicant immediately responded to this email stating that she was more than qualified for the job and that real reason she was denied the position was because of her age.

9The recruitment officer replied to the applicant’s email on October 28 simply stating that due to the volume of candidates she did not have the ability to provide individual feedback as to why the applicant did not get the position.

10The applicant acknowledged that during her interview she was never asked any questions about her age. She also agreed that the job application form she filled out did not ask any questions about her age. Nevertheless, she stated that it would have been apparent to the two individuals who interviewed her that she was someone advanced in age.

11The applicant submitted that she was more than qualified for the position and given the number of positions open it was suspicious that she was not a successful candidate. She further submitted that the comment made by the recruitment officer that the successful candidates were more available for work was not true. To that end, she pointed to her application form, which stated she had full availability and access to her own vehicle.

12The applicant also found it suspicious that the respondent initially checked her as a “good match” for the position on its evaluation form but then “whited out” that referenced and replaced with “poor match”.

13The applicant felt there was no reasonable explanation for why she was not offered one of the 40 available positions, other than age discrimination.

14The respondent stated that its decision not to hire the applicant was based on bona fide reasons relating to her skills and qualifications and that the applicant’s score in the interview was less than the other successful candidates.

15The respondent stated that there were only 18 candidates hired for its casual list and approximately 30 individuals interviewed for those position including the applicant. The respondent further submitted that the email sent by the recruitment officer was a standard email sent to all unsuccessful applicants and that nothing should be read into the fact that it referenced the applicant as being less available then the other candidates.

16The respondent suggested that that the applicant’s complaint is based solely on her subjective belief, speculation and bald assertions of discrimination without any evidentiary foundation. The respondent argued that the onus is on the applicant to point to some evidence to establish discrimination and she has failed to do so.

ANALYSIS

17Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an Application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10:

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 will 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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

18During the course of the summary hearing, I invited the applicant to explain why she believed the respondent’s decision not to hire her was based on age discrimination. She submitted that she was more than qualified for the position and given the number of positions open on the casual list, it was suspicious that she was not a successful candidate. She noted that there were other aspects to the evaluation process that were suspicious, for example, it appeared on her evaluation form that the interviewers initially marked her down as a “good match” for the position but then whited out that notation and replaced it with “poor match”.

19She further noted that the email from the recruitment officer that other candidates were chosen because they were more available than her was simply not true as she had indicated full availability on her job application form.

20I appreciate that there appears to be no direct evidence to establish discrimination in this case. Nevertheless, the Tribunal has long accepted that is often difficult to establish direct evidence of discrimination and that the Tribunal must draw reasonable inferences from circumstantial evidence to decide whether discrimination has been proven on balance of probabilities.

21In determining whether the applicant can show a link between the proposed evidence and age discrimination, it is useful to examine what the applicant must establish in a full hearing on the merits to demonstrate a prima facie case. In cases involving hiring and promotion decisions, the Tribunal has found the following elements to be sufficient to establish a prima facie case of discrimination, based on circumstantial evidence:

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

b. that the applicant was not hired; and

c. that a considerably younger employee who was no better qualified than the applicant subsequently obtained the position;

(see Clennon v. Toronto East General Hospital, 2009 HRTO 1242 and Girdharrie v. Cardinal Fasteners, 2012 HRTO 430)

22Based on a review of the applicant’s proposed evidence, it appears that the applicant can point to facts, which would be capable of supporting the first two elements of the test discussed in the Clennon and Girdharrie decisions. The third element of the test involves evidence, which falls squarely within the control of the respondent and is not privy to the applicant at this stage in the process.

23The Tribunal is mindful of the fact that in some cases an Application must proceed further in the hearing process simply because it is the respondent who has control over evidence which could favour the applicant’s case.

24I appreciate that the respondent may not have any information about the specific ages of the successful candidates in the job competition. However, there may be other information that may become available through the hearing process, which sheds some light on this issue.

25It is not clear, at this point in time, that the Application has no reasonable prospect of success should the matter proceed to a full hearing.

ORDER

26The Tribunal will set this Application for a one-day hearing.