Christie v. Trent University, 2015 HRTO 937

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nancy Christie

Applicant

-and-

Trent University

Respondent

DECISION

Adjudicator: Mary Truemner

Date: July 16, 2015

Citation: 2015 HRTO 937

Indexed as: Christie v. Trent University

APPEARANCES

Nancy Christie, Applicant

P. A. Neena Gupta, Counsel

Trent University, Respondent

Amanda Hunter, Counsel

Introduction

1When it was filed on April 10, 2012, this Application originally alleged discrimination with respect to employment because of several grounds, namely, place of origin, ethnic origin and age, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). A request to amend the Application to add the ground of ancestry was allowed on consent, because ancestry was arguably accurate as a characterization of the applicant’s allegations. The applicant essentially believes that the respondent University discriminated against her when it did not offer her an interview for a tenure-track position as history professor for which she believes she was qualified.

2With respect to the allegation of discrimination because of place of origin and ethnic origin, the applicant indicated on the Application form: “I am a bilingual Anglophone but because the job was advertised as “French Canada” a person with a French name and French as their first language was hired.” With respect to the allegation of age, the applicant indicated on the Application form: “During previous legal actions, members the [the respondent’s] History Department admitted to wishing to hire only “junior” scholars in jobs advertised at the assistant professor level.”

3After various stages in the process at the Tribunal, including a preliminary hearing which resulted in the dismissal of certain allegations relating to events prior to 2011 (2013 HRTO 952), the Application proceeded to a hearing which commenced on April 23, 2014.

4The applicant’s allegations dealt with at the hearing are that the respondent did not hire her for a 2011 tenure-track position, advertised as focusing on “the history of French Canada and Quebec”, (“the position”), because of her age, as well as because of her Anglophone background, or more accurately, because she was not French Canadian or Quebecoise, and because her first language was not French. The applicant, who considers herself a bilingual Anglophone, was not even offered an interview, even though she believes that she was more qualified than those who were interviewed. She believes that the candidates who were interviewed were preferred because they are from or are perceived to be from Quebec (place of origin), they are Francophone (ancestry, ethnic origin), and they are significantly younger than the applicant (age). The applicant alleges that she was adversely treated by the respondent which applied discriminatory factors in deciding not to grant her an interview and hire her for the position.

5I granted a request on consent to protect the identity of the candidates who applied for the position and were short-listed given that their identity was immaterial to the determination of the Application. They are called “the successful candidate”, “candidate B”, “candidate C” and “the fourth candidate”.

Summary of Unrefuted Facts

6The facts that were not refuted by the applicant are that the respondent’s Chair of the History Department, Dr. Harris-Stoertz, facilitated the advertising of the position and chaired a search committee (“the committee”) amongst its faculty, some of whom also sat on the personnel committee, to determine who should fill the position. She sent to each member of the committee the many applications from history academics who applied for the position, and organized the meeting at which members selected the candidates they wanted to interview.

7There were nine professors on the committee and each of them testified: Drs. Stapleton, Wright, Andriewsky, Struthers, Walden, Anastakis, Palmer, Sangster and Miron. Dr. Harris-Stoertz, as chair, merely facilitated the selection of candidates by these committee members. Each member, however, had the right to vote on candidates in the event that the committee could not produce a list of who to interview through consensus.

8Each committee member reviewed the applications for the position and created a list of people who he or she wanted to be interviewed (a “personal list”). Once their personal lists were made, the committee members participated in a meeting at which it was decided who should be interviewed (“the short-list meeting”). While one member of the committee, Dr. Stapleton, recalled that criteria was discussed ahead of the short-list meeting amongst the members, the majority of the members testified that there was no other meeting and no discussion, electronically or otherwise, before the short-list meeting.

9As the analysis of each committee member’s testimony below notes, each member assumed criteria based on the job posting for the position, and there was a consensus amongst the members of the committee that they were looking for someone whose academic research focused strongly on French Canada and Quebec history.

10The job posting read as follows:

The Department of History at Trent University invites applications for a tenure track position in the History of Quebec/French Canada, subject to budgetary approval. The successful candidate will be expected to teach a survey of the history of French Canada and Quebec at the third year level, contribute to one of your first year team-taught courses, and teach a fourth year seminar. Additionally the candidate would have the opportunity to contribute to the master’s program in History, the Master’s program in Canadian and Indigenous Studies and the PhD program in Canadian Studies. While the appointment will be in the Department of History, all courses will be cross-listed with Canadian Studies, and the candidate will hold a masthead appointment in the department of Canadian Studies.

This position will be effective from 15 August, 2011, and is at the assistant professor level for which a PhD is required. Applicants without a PhD should offer evidence that a defence date is imminent. The Department of History combines strong research with an emphasis on high quality teaching. The successful candidate will be expected to maintain an active program of research and publication.

Please send applications, including curriculum vitae and teaching evaluations if available, and arrange to have three letters of reference sent to …

All qualified candidates are encouraged to apply; however, Canadians and permanent residents will be given priority. Trent University is an employment equity employer, and especially invites applications from women, aboriginal people, visible minorities and persons with disabilities.

11Even though the courses were to be taught in English, the members generally understood that the successful candidate would need to be bilingual in order to research in French, and to engage with the academic milieu in Quebec and French Canada. A couple of members testified that publishing in French would not have been a criterion for a successful candidate, but no member testified that they thought the applicant was unable to publish in French, particularly given that she indicated in her curriculum vitae (“cv”) that she had published in French. Otherwise, outside what is required by the posting, there appears to have been no clear consensus on additional criteria, nor did the committee produce a list of other factors to consider for the judging of applications.

12Despite this lack of a clear consensus on criteria at the short-list meeting, members of the committee easily agreed upon three candidates to interview. Given the consensus, voting was not required. The names of the three candidates regularly appeared on members’ personal lists. Where a member had a favourite candidate, that candidate was one of the three candidates selected by the committee to be interviewed.

13Each of the three candidates appeared to focus on Quebec history, to have a French name, to be fluent in French, and to have been academically trained in Quebec. The ancestry, place of origin and ethnic origin of the candidates were not indicated in the documentation that accompanied the candidates’ applications, but their Quebec addresses were. Their ages were not indicated, but it was apparent that the three candidates completed their education, from their undergraduate degrees to their PhD’s, significantly more recently than the applicant. Members of the committee testified that the age, ancestry, place of origin and ethnic origin of the three candidates were not known to them up to and including the time of the short-list meeting, nor was there any discussion amongst them about the personal characteristics relating to the age, ancestry, place of origin or ethnic origin of any of the candidates. Upon examination at the hearing, some professors agreed that they might easily have assumed that a candidate was young on the basis of recent undergraduate and graduate degrees. Other professors pointed out in their testimony that an academic today cannot be assumed to be young simply because he or she recently obtained a PhD. Each member of the committee testified, however, that the age of the applicant had nothing to do with the choice not to place her on his or her personal list.

14After some deliberation during the short-list meeting, the members agreed to interview a fourth candidate (“the fourth candidate”) whose name had appeared on at least one member’s personal list, on the condition that the fourth candidate first provide adequate references as the other three candidates had done. The fourth candidate appeared to focus on Quebec history. He also appeared to have an English-sounding name, to publish mostly in English, and to have studied at English-Canadian universities. Of the nine members, five thought the fourth candidate’s application was strong, three remember him not being on their list, including Dr. Wright and Dr. Stapleton, and one member could not remember whether he was on his personal list or not. That one member was Dr. Walden. The fourth candidate ultimately never met the reference requirements, and was therefore never interviewed.

15The applicant submitted her application for the position on May 29, 2011. Not one of the committee members put the applicant on his or her personal list. She was not discussed at the short-list meeting held in June because only the candidates who were on a member’s list were discussed.

Summary of Findings

16At the hearing, each of the professors explained why the applicant was not selected for his or her personal list. The members generally articulated their respect for the applicant as a scholar with respect to Canadian history, but they did not recognize her as an expert in French Canada and Quebec history, given the publications listed in her cv. For the majority of the committee, specifically Drs. Andriewsky, Struthers, Anastakis, Palmer, Sangster and Miron (“the six members”), it was simply this perceived lack of expertise which immediately disqualified her in each of their assessments. (Understandably, the applicant made no allegation that any preference for someone with such expertise was discriminatory). Below, I review the testimony of each of the six members, and I examine the applicant’s publications listed in her cv to justify my finding that the six members, all of whom determined the applicant was not an expert in the field advertised, were credible. I come to the conclusion that the six members, a clear majority of the committee, did not exclude the applicant from their personal lists for any reason related to the grounds alleged. They found that her cv did not demonstrate that she had the expertise they were looking for, and that was the simple reason for which they decided not to interview her.

17Three of the members, Dr. Wright, Dr. Stapleton and Dr. Walden, appeared to eliminate the applicant using criteria in addition to her publications that were listed in her cv and that indicated to them that the applicant was not an expert in French Canada and Quebec history. In my analysis of the evidence below, I carefully considered whether the additional criteria of the above three professors created a distinction based on any of the grounds the applicant cited in her Application.

18With respect to Dr. Wright, he testified that he felt that the applicant was not focused on French Canada and Quebec history, even though as a Canadian historian (or “Canadianist”), like him, she occasionally researched and published on topics related to French Canada and Quebec. He therefore did not include her on his short list because she did not meet the requirements of the posting given her lack of expertise in French Canada and Quebec history. Also, however, he determined that the successful candidate should meet certain criteria he considered important, but criteria that were not shared with the committee, and which were not considered by certain members of the committee when they were questioned about them in the hearing. Dr. Wright wanted someone who 1) had published in French; 2) had been academically trained in Quebec; and 3) had sufficient professional experience in the academic milieu of Quebec. The applicant had published very little in French; she had not been academically trained in Quebec; and she had little professional experience in the academic milieu of Quebec compared to other candidates. I find that Dr. Wright’s criteria did not create a distinction based on any of the grounds cited in the Application.

19Dr. Stapleton also felt that, while the applicant had an excellent application in terms of broad Canadian history, her application did not demonstrate that she was an expert in French Canada and Quebec history. Also, like Dr. Wright, Dr. Stapleton used criteria that, it was discovered at the hearing, not all other members of the committee used. He preferred someone who had published a good proportion of his or her research in French, in order to demonstrate engagement in the French language and in the intellectual community of Quebec. The applicant had published very little in French, and had not engaged, as significantly as other candidates, with the intellectual community in the French language. I find that Dr. Stapleton’s criteria did not create a distinction based on any of the alleged grounds cited in the Application.

20With respect to Dr. Walden, he too felt that the applicant was not an expert in French Canada and Quebec history. Also, he determined that she was not as strong as other candidates because she was less likely to be accepted by Francophone Quebec historians for the following reasons: 1) she had not published enough in French; 2) she was not Francophone because French was not her first or dominant language; and 3) she would not be perceived as French-Canadian because she did not grow up in Quebec or live there for long enough to understand the culture of French Canadians in Quebec. I find that while Dr. Walden’s criteria created a distinction based on place of origin and ancestry, his criteria was never articulated to the other members of the committee, nor applied by them, and had no influence on the majority’s decision not to offer the applicant an interview. I therefore find that the applicant was not disadvantaged by the respondent University which was represented by the committee to whom it delegated the decision of who to interview and hire for the position.

review and analysis of testimony

Testimony of the Applicant

21The applicant applied for the position at the end of May 2011, believing herself to be very qualified. She had taught in contractual positions in the History Department, and was acquainted with some of the faculty. She testified that she telephoned Dr. Stapleton, one of the professors in the Department, in the summer of 2011 to find out who was offered the position. She testified that he told her the name of the successful applicant, and he asked her if she used French sources in her research or just English ones. She testified that she indicated to him that she used French sources, and then quoted his answer to her: “Well, they didn’t think you worked on French documents.” She testified that she felt very aggrieved and perplexed because her application for the position made it clear that she did use French documents.

22The applicant reviewed her covering letter and cv at the hearing. She spent quite a bit of time pointing out the publications, awards and experience listed in those documents about which she was understandably proud, and most of which qualified her as an impressive academic. The applicant claimed that her covering letter and cv reviewed by the committee members indicated that she was qualified as a specialist in French Canada and Quebec history. The applicant’s testimony about what her covering letter and cv demonstrated, must be measured against what those documents literally indicate, and what the committee members testified that those documents indicated to them: namely, that the applicant did not specialize in French Canada and Quebec history.

Testimony of Dr. Hubert

23Dr. Hubert acted as a reference for the applicant and acted as one of her references for the competition for the position. He is an associate professor at the University of Montreal in their History Department. He testified that he specializes in religion, education and social history, and described himself as is a Canadianist because all of the archives he studies are from Canada. He testified that he would strongly recommend the applicant for the position advertised, and described her as a “first rank historian in Canada”.

24Dr. Hubert testified that the applicant helped bridge the gap between Francophone Quebec historians and English Canadian historians, mainly through conferences in Quebec and outside Quebec, but also through organizing workshops which resulted in books with chapters from both groups of historians. He estimated that she had been to approximately 15 conferences in the last 20 years, the time he has known her, and that they speak in French. He testified, “There is not so much history of English Canada that is held in our area, so it is impressive that she participates frequently and we are happy to see her.” He also knows the applicant’s husband, and has visited her home.

25I did not allow Dr. Hubert to testify as an expert with respect to who was the strongest candidate for the position as between the applicant and the candidates who were interviewed. There is no need for me to make a decision in this case as to who the strongest candidate was in the 2011 competition for the position. My decision must focus on whether the respondent discriminated against the applicant contrary to the Code by excluding her, directly or indirectly, from being interviewed for the position because of a protected ground. While Dr. Hubert reinforced the applicant’s argument that she is an excellent scholar, Dr. Hubert’s testimony did not assist me in determining whether the committee discriminated against the applicant contrary to the Code.

Evidence of Six Member Majority: Andriewsky, Struthers, Anastakis, Palmer, Sangster and Miron

Testimony of Dr. Sangster

26Dr. Sangster is a professor in the History Department and participated on the committee. She attended the short-list meeting to which she brought her personal list on which she had placed the successful candidate, as well as candidates B, C and the fourth candidate. Dr. Sangster felt that their work indicated that their focus was on the history of Quebec.

27Dr. Sangster testified that the primary factor that she used to assess a candidate’s focus was the subject of their writings. A secondary factor that she felt was important was whether a candidate had experience in teaching Quebec and French Canada history. She did not believe from the applicant’s covering letter and cv that the applicant was a historian of Quebec and French Canada. She formed this belief on the basis of what the applicant had published, and, less significantly, on the basis of what she had taught; therefore, she did not place the applicant on her personal list.

28Dr. Sangster pointed to examples to explain why she came to her conclusion, such as the fact that Quebec and French Canada did not feature in the monographs section of the applicant’s cv. She looked at the applicant’s past and recent work in making her assessment, placing more emphasis, however, on what the applicant had actually published than on what she may have been invited to publish.

29Dr. Sangster testified that the successful candidate’s cv indicated that her research and publications were directly dealing with the history of Quebec and French Canada. Dr. Sangster pointed to the titles of the successful candidate’s PhD, post-doctorate work and publications to prove her point.

30Dr. Sangster testified in cross-examination that when she assessed the applicant’s cover letter, she did not agree with the applicant’s own characterizations of the focus of the applicant’s work. As examples, she pointed to a paragraph in the applicant’s covering letter which begins as follows:

I would draw particular attention to the fact that I have published on various themes in the History of Quebec/French Canada, including the history of science, state developments, charity, religion, and gender/family relations from the period 1760-1965:

• A study of mid-19^th century scientific networks in Montreal

• A chapter in Full-Orbed Christianity focusing on the development of social work and social science at McGill University

• In Engendering the State, there are three chapters which pertain to Quebec: Chapter 2 on World War I, Chapter 5 on the debate on family allowances in the 1920’s and Chapter 6 on the Great Depression and the work of single women analyzes the Montreal Council of Social Agencies.

• My article published in Journal of Family History regarding the origin of old-age homes focuses almost exclusively upon two charitable institutions in Quebec City and Montreal

31With respect to the second bullet point, Dr. Sangster testified that the applicant’s book, A Full-Orbed Christianity, did not focus on Quebec/French Canada and the chapter to which the applicant pointed in her cover letter did not focus in that area either. With respect to the third bullet point, Dr. Sangster testified that the three chapters cited by the applicant as “pertaining to” Quebec were pan-Canadian and did not focus on Quebec/French Canada. With respect to the fourth bullet point, Dr. Sangster disagreed that the applicant’s article focused “almost exclusively” upon two institutions in Quebec.

32While the applicant’s cover letter may not agree with Dr. Sangster’s contrary characterizations of those publications, there is no evidence to suggest that Dr. Sangster’s opinion is unreasonable and merely a façade to disguise any application of discriminatory factors to her assessment of the applicant’s candidacy.

33Dr. Sangster was cross-examined about the opinions of the applicant’s referees. She stated that she did not consider them to be strong because one referred to the applicant’s work on Quebec history that was not published, and the other was written by Dr. Hubert who Dr. Sangster considered to be the applicant’s friend because it was on the public record that they had collaborated together extensively. Dr. Sangster testified that she would not have asked someone with whom she had co-authored a publication to provide a reference because she would want the referee to have an arms-length relationship with her.

34Given that Dr. Hubert’s testimony confirmed that he had collaborated with the applicant extensively, and that he had socialized with the applicant, I do not find Dr. Sangster’s assessment of the applicant’s relationship with him to be unreasonable, nor do I find that her preference for references that appear to be from “arms-length” referees to have any bearing on whether Dr. Sangster applied discriminatory factors in her assessment of the applicant’s candidacy.

35With respect to the age of the candidates, Dr. Sangster testified that she knew when they obtained their degrees, but did not know what ages they were. She stated that people get their PhD’s at all ages, and go to school at all ages, so that she has observed that there appears to be a large range of ages of students doing graduate work. When questioned by the applicant’s counsel, Dr. Sangster testified that she looked at the full body of work of a candidate, including the applicant’s recent work, to determine the focus of research.

Testimony of Dr. Palmer

36Dr. Palmer was a professor in the Canadian Studies Department (“CAST”), and participated on the committee to ensure that the candidate chosen would fit well with the terms of cross-listing courses within CAST, in particular, someone who could fit well in CAST’s graduate program in Canadian and Indigenous Studies within the area of Quebec and French Canada.

37Although he readily admitted that she was accomplished in Canadian history, Dr. Palmer did not select the applicant for his personal list of candidates to be interviewed because, on the basis of what she had done in the past rather than her plans for the future, she did not appear to him to be a historian of Quebec and French Canada.

38Like Dr. Sangster, he felt that the applicant had mischaracterized her publications. He disagreed with the applicant’s covering letter which indicated that work in her book A Full-Orbed Christianity focused on Quebec and French Canada history. He also felt that the chapters in Engendering the State did not primarily engage the specific history of Quebec and French Canada, nor were they based on French language sources. He did not agree that her article published in Journal of Family History regarding the origin of old-age homes focused “almost exclusively” upon two charitable institutions in Quebec City and Montreal.

39Dr. Palmer also testified that he felt that the applicant’s work lost the particularity of Quebec by addressing global themes like gender and welfare policy. Contrarily, Dr. Palmer read the successful candidate’s work and felt that she was immersed in Quebec and French Canada. Even though the successful candidate dealt with food and nutrition, she was a historian of Quebec and French Canada. He also felt that the context of nutrition would fit well with the respondent University which he said was steering towards the area of health.

40Dr. Palmer also included candidates B and C on his personal list, but his reason for not including the fourth candidate was because his file was incomplete without a reference letter, not because he had an English sounding name. With respect to the applicant, he didn’t know if she is Francophone, but assumed that she used French-language sources because she cited some French sources in her work. Being Francophone was not a factor, although he felt it was implicit that to qualify for the position, some of a candidate’s sources for their research would be in French.

41Given that the applicant’s cv did indicate that she could use French sources and had published in French, and given that there is nothing to refute Dr. Palmer’s testimony that he had understood that the applicant could read French, I see no connection between the fact that her mother tongue is English and a discriminatory factor being applied by Dr. Palmer to his decision not to place her on his personal list.

42Dr. Palmer testified that he did not know the ages of the candidates, and saw no point in trying to guess on the basis of when they obtained degrees. He did not make any assumptions about their ages. He was looking for a historian of Quebec and French Canada, someone with a demonstrated expertise in the field, and he “didn’t pay attention to those other issues”.

Testimony of Dr. Andiewsky

43Dr. Andiewsky, an associate professor in the History Department, testified that she did not include the applicant on her personal list because her area of expertise did not focus on French Canada or Quebec history, particularly her research. Dr. Andiewsky cannot remember assessing any other criteria in deciding not to place the applicant on her personal list. She felt that the successful candidate did have such a focus, and believes that this was the candidate that she had placed first on her personal list.

44Dr. Andiewsky made references to the applicant’s cover letter and cv to illustrate why she did not believe that the applicant made a case that she was a historian of French Canada or Quebec. For instance, she pointed to the 3^rd sentence of the applicant’s cover letter which to this witness indicated that the applicant’s research was placed outside of French Canada and Quebec: “Further, because I do not conceive of the history of Quebec/French Canada in narrowly regional or geographical terms, my ongoing commitment is to seek ways of comparing and integrating Quebec/French Canada within transatlantic and international historiographic questions.”

45Dr. Andiewsky also explained that she understood the applicant’s description of her most recent research, while focused on Quebec history, to indicate only the beginning of a project. This understanding was in fact supported by the applicant’s testimony. Dr. Andiewsky understood that the completed research on Quebec, in the context of the applicant’s thematic work, was trans-Canada work, an understanding also supported by the applicant’s testimony. Dr. Andiewsky’s assessment of the applicant’s candidacy was reasonable in light of the examples that she provided.

Testimony of Dr. Struthers

46Dr. Struthers, a professor in CAST, testified that he knew the applicant and her work, and that he had written letters to support her candidacy in the context of applications she had submitted in the previous decade for certain academic vacancies at many universities in Ontario. He had great respect for the applicant’s prolific scholarship which he had relied upon in his own courses. He also understood that she was bilingual. However, at the time he formed his personal list, he did not consider her a specialist on the history of Quebec or French Canada. He explained that he formed this opinion on the basis of what the applicant had published, as opposed to what she indicated in her cv that she intended to publish.

47In cross-examination, Dr. Struthers testified that he read the applicant’s two books that she authored and published in 1996 and 2000, and not the one published in 2010 that she co-authored, but on the basis of reviews that he had read of that 2010 publication, he had formed the opinion that it was an overview book, not one which focused on French Canada or Quebec. He felt that the applicant might be capable of filling the position, but he did not place her on his personal list because her application was not as strong as the other applications he reviewed. His personal list included only candidates who he considered to have primarily focused on French Canada or Quebec, and he placed the successful candidate on the top of his list.

Testimony of Dr. Anastakis

48Dr. Anastakis, a professor in the History Department, testified that he felt that the required expertise for the position was made clear in the job posting, and he only placed on his personal list the candidates whose area of specialty was the history of French Canada or Quebec. He ruled out the applicant immediately because he determined that this was not her specialization on the basis of what she had published versus what she intended to publish. With reference to the publications listed in the applicant’s cv, Dr. Anastakis pointed out that her major works did not have titles showing that they were on French Canada or Quebec.

49In cross-examination, he testified that there had not been any discussion about the criteria outside of the short-list meeting. He testified that he did not know of any members of the committee who considered the applicant’s ancestry, ethnic origin or place of origin, and that he had no knowledge of what they were. He did not recall any discussion at the short-list meeting about whether publishing in French was important, nor whether fluency in French was important. He testified that he never thought about the applicant’s French skills, but he understood that the successful candidate did not need to be Francophone. He said that he assumed that everyone who applied for the job could read French and English. He had no understanding that the position should be filled by someone who had received their post-secondary education inside, versus outside, Quebec.

50Dr. Anastakis did recall some agreement at the short-list meeting that the successful candidate should have a connection to the French Canada and Quebec historical or scholarly community. He testified that he believed that she had satisfactory connections to that community, but that did not change his opinion that her work was not primarily on Quebec or French Canada which he understood to be a requirement and which was the reason he did not include her on his personal list. He read Dr. Hubert’s reference letter which described the applicant’s work as “extremely important for the historiography of Canadian and Quebec society” to mean more that it was important for Canadian society but less so for Quebec society.

51Dr. Anastakis testified that he did not think of how old the applicant or the other candidates were when reviewing their applications to decide who to put on his personal list, and he did not even consider when the candidates obtained their PhD’s. He said that he was simply reviewing who was a specialist in Quebec or French Canada history.

Testimony of Dr. Miron

52Dr. Miron, an associate professor in the History Department, testified that when she reviewed the applicant’s application for the position, she noted that the applicant had an excellent publication and teaching record, and she believed that the applicant was bilingual, but she determined that the applicant was not an expert in French Canada or Quebec history. She felt that the applicant’s cover letter tried to present her as that expert, but Dr. Miron determined that the applicant’s list of publications in her cv did not “hold up” such a claim. She gave the example of the applicant’s covering letter claiming that Engendering the State pertains to Quebec, when in fact the introduction of the book admits that there is a gap with respect to Quebec. She also pointed out that while many of the applicant’s edited collections listed in her cv deal with Quebec, those pieces were written by others, not the applicant.

53Dr. Miron also stated that she was not convinced by the applicant’s reference letters that the applicant was a specialist in French Canada or Quebec given her reading of the applicant’s cv. She noted that two of the applicant’s referees did not provide specific, unambiguous references to published works to justify why they were saying that the applicant was a specialist in Quebec history. It appeared to be an unsubstantiated claim. She said that the other candidates provided reference letters with specific examples of why those candidates specialized in Quebec history. She also remembered that when the applicant applied to teach at the respondent University in 2007, the applicant did not define herself as a Quebec historian.

54Dr. Miron acknowledged that the applicant was moving in the direction of becoming a Quebec historian in 2011, but Dr. Miron was looking for someone who had already established themselves as a French Canada or Quebec historian. On the other hand, Dr. Miron determined from the application of the successful candidate that the successful candidate was an extraordinary scholar who was firmly rooted in Quebec history, with a strong publication record on Quebec history and a theme that would enrich the respondent’s Department of History.

55Although Dr. Miron was excluded from hearing the evidence of Dr. Stapleton and Dr. Wright, she was asked whether there was any consensus or discussion at the short-list meeting about whether someone needed to be trained in Quebec or whether they should be Francophone or Quebecois. Dr. Miron recalled that there was none. When asked about whether Dr. Stapleton and R. Wright held “more sway” than any other member on the hiring or selection committee given that they also sat on the Department’s personnel committee, Dr. Miron testified that they did not.

Findings for Six Member Majority

56Drs. Andriewsky, Struthers, Anastakis, Palmer, Sangster and Miron excluded the applicant for the reason that she did not demonstrate in her application the required expertise. I find that these members of the committee essentially formulated their opinions that the applicant was not an expert on French Canada and Quebec history on the basis of her application for the position, particularly her cv which indicated that her publications did not focus on French Canada and Quebec.

57A covering letter contains a candidate’s own interpretation of his or her expertise, and, for a tenure-track position, a candidate’s characterization of his or her suitability for a position might be embellished in a covering letter. The members testified that a cv is more important as it contains the work a candidate has actually produced. The committee members generally shared the view that the list of what a candidate has actually published is more indicative of their expertise than the work that they intend to produce and publish.

58I find that it was reasonable and not discriminatory for the members to prefer candidates whose expertise focused on French Canada and Quebec history as opposed to Canadianists whose work included French Canada and Quebec history. On the basis of the applicant’s cv, all of the six members disagreed with the applicant’s characterization of herself as an expert in French Canada and Quebec history. I find that their decision to focus on the applicant’s cv, as opposed to her covering letter, in assessing expertise was reasonable and not discriminatory.

59It is not my job to determine whether the applicant was an expert in French Canada and Quebec history at the time she applied for the position; rather, I make my determination of whether the six members violated the Code in the circumstances, by concluding that the applicant’s cv indicated that she was not the expert she claimed she was.

60The main focus of the six members was on the applicant’s publications. They are listed in the cv in what would appear to be the order of most prestigious to least prestigious. Given their titles, the monographs authored by the applicant appear to be about Canada, not Quebec or French Canada:

• Chistian Churches and Their Peoples: A Social History of Religion in Canada

• Engendering the State: Family, Work and Welfare in Canada, 1900-1950

• ‘A Full-Orbed Christianity’: The Protestant Churches and Social Welfare in Canada, 1900-1940

61Similarly, the books edited by the applicant, and there are five of them, appear to be focused on Canadian history broadly, and have titles that do not mention either French Canada or Quebec. Of the 23 book chapters written by the applicant in other publications, not one title mentions French Canada or Quebec, but they generally imply a Canada-wide perspective. Some of the chapter titles imply a more specific focus, but one which involves Upper Canada, Western Canada, Winnipeg or Australia. Similarly, the list of the applicant’s journal articles have titles that do not suggest contents pertaining to French Canada or Quebec. There are eight of them ranging from as far back as 1990 to 2008.

62While book reviews were not considered by any witness to be as impressive as other publications, 18 were included in the applicant’s cv. Only one appears to be focused on French Canada or Quebec, and it was published in 2004, not recently in relation to her later prolific work.

63Although the members did not consider the applicant’s unpublished work to be as important as the work she had already published, they considered it. Certainly, the applicant argued that while she did not necessarily appear to be an expert in French Canada and Quebec history earlier in her career, she had become one by the time of her application in 2011 when her work had a focus in the required area. Her cv, however, lists one unpublished book which is co-authored with Michael Gauvreau and “accepted for publication in final form” with the title, The Sixties and Beyond: Dechristianization as History in Britain, Canada, the United States and Western Europe 1945-2000. Its title does not indicate that it is focused on French Canada or Quebec. Her cv also lists three chapters as “accepted for publication in final form” in different books, but their titles imply no relation to French Canada or Quebec.

64I also note that of the eight articles the cv lists as having been “submitted for publication,” only one appears to be focused on French Canada or Quebec. I find that this single publication, in the context of all the works in the progress of being published, is not sufficient, on its face, to justify the applicant’s claim that she had become a specialist in the required field by the time of her application for the position.

65Having reviewed the applicant’s cv myself, I find that it is reasonable for Dr. Sangster, Dr. Palmer, Dr. Andiewsky, Dr. Struthers, Dr. Anastakis and Dr. Miron to have concluded that the applicant’s publications, while prolific, and her teaching experience, while arguably more than the other candidates, had not focused on the history of Quebec and French Canada. Having reviewed the successful candidate’s cv myself, which listed five recent, refereed journal articles appearing to have focused on history of Quebec and French Canada, I find that it is reasonable for these members to have concluded that the successful candidate had focused on French Canada and Quebec.

66There is simply no evidence to suggest that the opinion of these six members about the shortcomings of the applicant’s application for the position is in any way a façade to disguise any use of factors related to the applicant’s ethnic origin, place of origin or ancestry. There is no evidence to suggest that her ethnic origin, place of origin or ancestry was considered by them in the formation of their opinion that the applicant lacked appropriate expertise and should not be interviewed.

67I also find that there was no evidence to suggest that any of them considered the applicant’s age in his or her decision not to place the applicant on his or her personal list. Some of the professors were asked questions about seemingly neutral factors which might have adversely affected the applicant because of her age. For example, while Dr. Miron was not examined on whether she considered a candidate’s age in making her selections of candidates to interview, she did testify, like some of the other professors, that the position was an entry-level position. She testified that she was looking for a candidate’s potential to be a successful academic. Similarly, Dr. Sangster testified that she was looking for the pace of publication more than the quantity of publications. This was a theme discussed by a few of the professors in their evidence. They felt that it was appropriate to factor in how many years candidates had to write and publish since obtaining their doctorates, and to measure their publication records in that context. I find that such a method of assessment was appropriate given that the competition was for a junior entry-level position. Such a method does not adversely affect old candidates on the basis of age, and it assures that young candidates are not adversely affected either.

68In conclusion, the six committee members discussed in this section were credible. They each claim that they did not include that applicant’s age, ancestry, place of origin or ethnic origin as a factor in deciding not to interview the applicant. They made their individual decisions not to include the applicant on their personal lists by applying the requirement that the successful candidate specialize or be expert in French Canada and Quebec history. This is the simple reason for which they did not choose the applicant for an interview. There is no evidence that the applicant’s age, ancestry, place of origin or ethnic origin was a factor in their individual decisions. There is no evidence to indicate that the requirement of specialization or expertise was a proxy to discriminate against her because of her age, ancestry, place of origin or ethnic origin, nor is there evidence to indicate that the requirement adversely impacted or excluded the applicant because of her age, ancestry, place of origin or ethnic origin. I find that these six committee members did not select the applicant for an interview because they sincerely and reasonably determined, without considering her age, ancestry, place of origin or ethnic origin, that the applicant did not specialize in French Canada and Quebec history.

Testimony of the Remaining Members of the Committee

Dr. Harris Stoertz

69Dr. Harris-Stoertz was Chair of the History Department, and, consequently, chair of the search committee which had the task of selecting a successful candidate for the position. She testified that the History Department felt that Quebec was under-represented in the Department, and she understood that what was required was a well-trained historian of Quebec history who used a substantial body of primary sources from Quebec in French, and who engaged with the Francophone Quebec community.

70She testified that she received applications from candidates, and circulated them to members of the committee. Unlike the other committee members, she, as Chair, did not create a personal list of candidates to present at the short-list meeting herself, nor did she comment on the shortlist of candidates to be interviewed, other than to say that the list looked good to her because she had looked over all of the applications and taken personal notes on each. Similarly, when the committee members who interviewed the selected candidates gave Dr. Harris-Stoertz the name of the successful candidate, she chose not to exercise her right as Chair to veto the selection, given her personal opinion that the successful candidate’s application was strong, and the successful candidate was ultimately hired.

71Dr. Harris-Stoertz testified that the hiring process did not discriminate against or exclude Anglophones who could meet the criteria. She understood that the applicant was fluent in French because her cv indicated that she participated in a colloquia in Quebec in French and that she wrote a book review in French, so that it did not matter to her that the applicant had not attended a French university.

72While some time was taken by counsel for the parties to review Dr. Harris-Stoertz’ opinion of the applicants for the position, there is no need for me to incorporate her opinions given that she did not prepare a personal list of candidates. At the short-list meeting, she did not offer, advocate for, or argue against any candidates.

The June 23, 2011 email exchange between Harris-Stoertz and Wright

73Dr. Harris-Stoertz was examined with respect to an email exchange on June 23, 2011 that she agrees she had with Dr. Wright, a history professor in the Department who was a member of the committee, shortly after the short-list meeting. She had emailed all the professors on the committee, including Dr. Wright, about the fourth candidate, asking if they were prepared to interview the fourth candidate given that they had received two of the three letters they expected to accompany his application for the position. Dr. Wright responded to her without copying the other members of the committee:

Hi Fiona:

If others give the go-ahead, I will go along.

As I mentioned yesterday, though, I REALLY think it is a strategic error to interview any Anglos when we have three outstanding francophone candidates. We are wide open on the lawsuit front. I believe we should interview the three Quebecois, and see where we stand; if we need to go back to the well, then we should add [the fourth candidate].

One man’s opinion.

74Several minutes later, Dr. Wright added the following afterthought to his email:

I just reviewed [the fourth candidate’s] CV, and I want to state emphatically that I believe shortlisting him is a serious error. Please feel free to circulate my earlier thoughts if you think comm [sic] members would like to hear them, e.g. [sic]

75Minutes later, Dr. Harris-Stoertz replied:

I’m going to suggest that you send your ideas directly to the crew. I think they are important. Just a couple of points. We cannot hold ethnicity against anyone – an Anglophone could be the best candidate. Also, the possibility of a lawsuit should not be a factor in our decision, and probably shouldn’t be discussed by the committee. Any applicant could sue us for not hiring them. This is why is it [sic] important that everything be fair and to code.

I’d agree the [the fourth candidate’s] CV is weaker, and comments on that ground are entirely fair.

Best, Fiona

76Several minutes later, Dr. Wright replied:

I have to say, Fiona, the more I think about it, the more your response worries me. An Anglo cannot be the best candidate if s/he is not shortlisted and interviewed! How will we later defend the appearance on our list of such a weak Anglo candidate vis-à-vis those who applied with far more impressive academic distinctions? (Note: [the fourth candidate’s] present research project has nothing to do with Quebec, and he has never published in French).

I am glad I abstained on Palmer’s motions. This will end badly.

Meantime, I will walk softly and carry a big attorney!

77Several minutes later, Dr. Harris-Stoertz replied:

Absolutely people should be ruled out on academic grounds.

78With respect to the above exchange, Dr. Harris-Stoertz did not recall in her testimony what Dr. Wright meant by referring to any communication the day before, but she explained his reference to being sued by referring to the fact that some of the members of the Department were being sued, and they were anxious about being sued again. She also testified that Dr. Wright’s thoughts in those emails were not shared with the other committee members because emails amongst them were indicating that the other members were not interested in interviewing [the fourth candidate] for reasons unrelated to him being an Anglophone. She had no concerns that the committee members were ruling out any candidates for reasons other than academic grounds.

Findings for Dr. Harris-Stoertz

79While she facilitated the short-list meeting at which it was decided that candidates other than the applicant would be interviewed, Dr. Harris-Stoertz exerted no influence on any committee member’s decision to exclude the applicant from any personal list. Her email exchange with Dr. Wright about the fourth candidate above, which made clear to Dr. Wright that a candidate could be excluded on academic grounds, cannot be interpreted as any encouragement to exclude the applicant. I find that her caution in reply to Dr. Wright, that an Anglophone may make the best candidate and that the committee “cannot hold ethnicity against anyone”, is evidence to support her testimony that she would not allow the exclusion or preference of a candidate on the basis of Code grounds, if she knew it were occurring. On the basis of her email, it appears that Dr. Harris-Stoertz was worried from Dr. Wright’s email that a reason for his rejection of the fourth candidate was because the fourth candidate was an Anglophone, and she understood that to be discrimination because of ethnic origin. I find from her testimony, however, that she was satisfied that the fourth candidate was not interviewed because of not meeting reference requirements, and nothing else. I find that Dr. Harris-Stoertz made no decision relevant to who should be interviewed or hired that might be construed as discriminatory.

Testimony of Dr. Wright

80Before Dr. Harris-Stoertz organized the committee to review the posting and accept applications for the position, Dr. Wright was a member of the History Department’s personnel committee, and therefore automatically participated on the search committee (“the committee”) from an early stage. He denied that he discriminated against the applicant because of her age, ancestry, place of origin or ethnic origin. He testified that he did not include the applicant on his personal list because he did not consider the applicant to be a French Canada and Quebec historian. He also testified that the successful candidate was not on his personal list. Candidate B was his “front runner by a long shot” because candidate B did all his degrees in Quebec, had an outstanding publication record in French, including a book published by a “Francophone press”.

The April 28, 2011 email exchange between Harris-Stoertz and Wright

81Dr. Wright testified that he engaged in electronic discussions with Dr. Harris-Stoertz about who the respondent might target in filling the position, prior to posting the position and receiving applications from candidates.

82He testified about an email exchange dated April 28, 2011 that he had with Dr. Harris-Stoertz. The exchange was about what kind of expertise the respondent needed for the position. When Dr. Harris-Stoertz circulated draft wording for the posting, Dr. Wright responded in an email:

Hi Fiona. If it were my call, I would drop all references to “French Canada” in favour of “Quebec”. Most Canadianists, myself included, teach French Canada. What we need is a Quebecois historian [emphasis added].

83Dr. Harris Stoertz sent an email in response which stated:

Hi Robert,

The history of this is that our “Quebec” historian this year objected to the course title “Quebec History”, as for much of the period covered by his course, “Quebec” as such didn’t exist. It’s a valid point. Moreover, since there seem to be mixed feelings as to the best period to have covered (CAST thinks we need someone 20^th C, but some members of our department have pointed out that virtually all our Canadian Historians currently focus on the 20^th century, with only Janet doing 19^th century), Hugh, Sally, and I decided that it would be wise to cast the net wide and see what comes up.

Not sure—my field is pretty remote from all this.

All the best, Fiona

84Dr. Wright replied as follows:

Hi Fiona:

French Canada is not a place – it is an idea, i.e. The principle that French Canadians are at home anywhere in Canada. The geographical precursors to Quebec were New France, then Lower Canada, then Canada East.

Frankly, my worry is that we will attract historians of, say, Franco-Manitoba, rather than of Quebec proper. Can we at least agree to prioritize New France/ Quebec in shortlisting and hiring?

85Dr. Harris-Stoertz replied:

I completely agree that New France/Quebec should be prioritized, and I suspect that everyone else involved will too…

86Dr. Wright explained in his testimony what he meant by his emails in this exchange. He explained that “a Quebecois historian” is a historian trained in Quebec whose “experience, credentials and record of research and publication are reflective of the distinct milieu in which Quebec scholars function.” He stated, “A Quebecois historian is dexterous in Quebec history and historiography and everything that follows from that.” He explained that he was arguing in his emails for a historian uniquely situated to teach Quebec history rather than a French Canada historian who would not focus on Quebec.

87There is nothing in the April 28, 2011 email exchange to cause me to doubt Dr. Wright’s explanations about it. I do not find that Dr. Wright’s preference for a historian who focuses on Quebec history rather than French Canada history is evidence of any preference for people whose ancestry is French Canadian or Quebecois or whose origins are geographically or ethnically French Canadian or Quebecois. It is not clear, however, what exactly is meant by someone “whose experience, credentials and record of research and publication are reflective of the distinct milieu in which Quebec scholars function,” but it became clear in his testimony, as discussed below, that he preferred a candidate who 1) was fluent and published in French; 2) was trained in Quebec universities; and 3) had professional experience in the academic milieu of Quebec, and I find that these three preferences (“Dr. Wright’s three preferences”) are consistent with his explanation of the email’s meaning.

The May 4, 2011 email to Harris-Stoertz from Wright

88Dr. Wright was also examined about an email he wrote to Dr. Harris-Stoertz the following week, on May 4, 2011, which stated:

Dear Fiona:

I would like you to treat this note as private. I don’t want to stir up a dept feud, but I do want to give you the benefit of my wise counsel!

I agree with the voices in the dept who suggest postponing the hiring of a Quebec historian for a year. We should be trolling for big fish in this process, which means appealing to the likes of Laval and UQAM for historians (or their protégés), people who may never have imagined leaving Quebec to pursue their careers. Damien remains, in a sense, our model; and it worth [sic] recalling what a difficult decision it was for him to come to Trent (where, of course, he did not stay long). In a sense, asking a Quebec historian to come to Trent is akin to you or I [sic] to consider an academic post abroad. It may well come with some major soul-searching, family dislocation, etc.

Tied to this worry is another: the Canadianist field is chock full of qualified people who will say or do anything for a TT [tenure track] job – and who can blame them? Joan is absolutely right when she points out that we never really know where our research interests are going to lead us (using me as a primo example). But I believe this speaks to my point. If we hire a Quebec francophone historian, it will not matter if s/he ends up studying Cuba or French Africa or Japanese feudalism (!), for s/he will always keep a hand in his/her original field, Quebec, and s/he will always be in a situation to teach it for us. The same simply cannot be said of Anglos whose interest in French Canada amounts to happenstance, as in the case, to use a handy example, of my friend Jane Harrison, who did her doctorate under Allan Greer at UT on New France but whose roots are deeply within Anglo Toronto [my own emphasis] and whose interest in French Canada turned out to be a sojourn.

Lastly, it worries me that we must dive into this over the summer because the univ might retract the offer (Joan’s point in her second missive). Let us not make a bad decision with a gun to our head(s). This cannot lead to anything good.

Okay, there it is, one man’s opinion!

RW

[Emphasis added]

89Dr. Wright testified that his email above was his attempt to advocate for making it easy for people in Quebec to apply because the respondent is not a big institution and the Department of History has had problems maintaining faculty whose families are out of province. He meant, by “big fish”, people with “the strongest research and publication records”. He testified that he was pointing out that candidates will finesse or skew an application to get the job.

90With respect to the third paragraph of his email above, Dr. Wright testified that many Canadian historians, or “Canadianists”, include work on Quebec, and while “there would be very few Canadianists who couldn’t claim some interest in Quebec, that did not mean they were historians specializing in Quebec.” He provided the example of himself because he had just finished a book on Quebec, but considers himself a Canadianist. He was therefore warning against allowing the focus to be on French Canada or New France instead of Quebec.

91Dr. Wright testified that the Department ought to be looking for someone who has a permanent stake in the study and teaching of Quebec history, not someone “glancing over it” in a broader study, but someone for whom Quebec is a central subject of study.

92Dr. Wright was examined further about the third paragraph and his statement, “The same simply cannot be said of Anglos whose interest in French Canada amounts to happenstance.” He explained that “Anglos” does not refer to people whose first language or mother tongue is English, but means Canadian historians trained in English universities who do not have the qualities such as being trained in French and in Quebec universities and in Quebec historiography, publishing in French and having professional experience in the academic milieu of Quebec. He gave himself as an example of an Anglo.

93Dr. Wright testified that his emails were meant to encourage the hiring of a “Francophone” in that a Quebec historian who was fluent in French, as well as English, was most likely to publish and research Quebec history. He explained that the first language or mother tongue of the ideal Quebec historian would not necessarily be French, but he or she would need to be fluent in French.

The June 23, 2011 email exchange between Harris-Stoertz and Wright

94Dr. Wright was examined with respect to the June 23, 2011 email exchange with Dr. Harris-Stoertz which was after the short-list meeting. It is discussed above in the context of her testimony. In that exchange, Dr. Wright objected to interviewing a candidate he described as “a weak Anglo candidate” whose “present research project has nothing to do with Quebec, and he has never published in French.” He confirmed that he was talking about the fourth candidate in that exchange.

95He explained that he was “jittery” because early in the short-list meeting, the names of candidate B, candidate C and the successful candidate appeared on the blackboard, and he had understood that there was a consensus that they interview three Quebec trained historians whose focus was Quebec. With respect to his reference in that exchange to “Anglos”, he repeated his explanation that the term is meant as a description of people trained in English outside Quebec who have shown no commitment to teach Quebec history. I note that the fourth candidate’s cv indicates that he received his Master of Arts and his Doctorate degrees from York University, and it appears that his most recent teaching was not Quebec history, but Canadian history.

96Dr. Wright testified about the sentence in his email, “An Anglo cannot be the best candidate if s/he is not shortlisted and interviewed!” and explained that he was being sarcastic. I interpret that statement in relation to the sentences which follow it, which support the interpretation that the word Anglo in that sentence means someone who is a Canadian historian trained in English universities and who does not have the qualities such as being trained in the French language and in Quebec universities and Quebec historiography, publishing in French and having professional experience in the academic milieu of Quebec.

97In cross examination, Dr. Wright said that he concluded that his input on what should go in the posting was not influential. Dr. Wright’s recollection of what was decided about the fourth candidate at the short-list meeting is that the committee decided to interview him depending upon the provision of satisfactory references, a motion that he did not support, but that was carried.

98Dr. Wright confirmed that he was worried about the optics of interviewing anyone who was not a Quebec-trained historian of Quebec, and was thinking of possible law suits given the proliferation of litigation about university decisions, including decisions about early tenure. In particular, he remembered that there was a huge issue in the ‘90’s over spousal hiring.

99Dr. Wright testified that he did not share with any of the other eight voting members on the committee the email exchanges he had with Dr. Harris-Stoertz, as chair, and his thinking was that he “would go whichever way the committee goes” so that there was no further discussion after those exchanges.

100In cross-examination, Dr. Wright explained that his understanding of the word “Quebecois” if applied to a person is in reference to the fact that the person lives in Quebec, not that the person is originally from Quebec. He clarified that when he used the phrase, “Quebec Francophone historian”, he was referring to a specialist in Quebec history who did not necessarily have to live in Quebec, but who was fluent in French, although not necessarily someone whose first language was French. He listed many names of people he considered Quebec historians, each of whom was bilingual, who he considered both Anglophone and Francophone. They had names that did not sound French. Dr. Wright stated that if someone lives in Quebec, he or she can more easily obtain a Quebec historiography, but it is possible to do this through self-study. He also stated that a Quebec historian can be someone who looks at English-speaking minorities in Quebec.

101In cross-examination, Dr. Wright agreed that all three candidates who were interviewed appeared to live in Quebec at the time of their application, appeared to be Francophone and appeared to have French sounding names, but he could not say what were their ages or origins. Nor did he know the applicant’s. He commented that he noted that the applicant had received her PhD approximately 20 years before the successful candidate, but that he himself received his tenure-track position when his PhD was over 10 years old so that if he has a bias, it is a sympathy toward people who had not recently received their PhD.

Findings for Dr. Wright

102In the context of the full emails and his explanations at the hearing, I find that Dr. Wright is credible with respect to his assertion that a reference to an Anglophone or to a Francophone was not meant by him to be a reference to ancestry, ethnic origin or place of origin, but is instead a reference to whether someone fluently speaks English or French respectively, whether they publish in English or French, and where their academic roots are, in the sense of where they received their academic training, and where their “professional experience in the academic milieu” is.

103Dr. Wright testified that he understood that the applicant was fluent in French and English. He also testified that he knows many people he would qualify as Quebec historians who are not French Canadian. I find that his decision to exclude the applicant from his personal list was not because he thought she is Anglophone in the sense that her first language is English, nor was it because she is not French Canadian. He understood that the applicant was fluent in both English and French, but he excluded her from his personal list because he saw from her cv that she did not publish much of her work in French, she was not academically trained in Quebec, and she did not have sufficient professional experience in the Quebec academic milieu.

104When Dr. Wright was examined with respect to how he judged her application for the position, he stated that the applicant is an accomplished historian as a Canadianist, but not a Quebec historian. The Department already had a large compliment of Canadian historians, and they were looking for someone whose main focus, research and expertise were on Quebec history. He described the applicant’s focus as national and transnational history, not Quebec history.

105With respect to Dr. Wright’s consideration of whether the applicant focused on Quebec history, I find, from my own reading of the titles of the applicant’s publications listed in her cv, that her cv does not demonstrate that she focused on Quebec history, despite what may she may have urged in her covering letter. (See my discussion above about my conclusions based on the applicant’s cv). In her testimony, the applicant briefly alluded to the fact that if she had been interviewed, then she would have been able to explain in the interview how certain publications listed in her cv contained work that did focus on Quebec history, implying that even she noted how it might not be obvious from her cv. Dr. Wright’s testimony about his assessment of the applicant as a Canadianist, not a French Canada and Quebec historian, is therefore reasonable and credible.

106With respect to other factors that Dr. Wright incorporated, and which the applicant alleges are discriminatory, I am satisfied that when Dr. Wright referred to a “Francophone” in his emails and in his testimony, he meant someone who was fluent in French, regardless of whether it was the dominant or first language. Also, when he referred to a “Quebecois historian” or a “French-Canada/Quebec historian”, I am satisfied that he meant a historian whose focus was on Quebec or Quebecois history, rather than a historian who was Quebecois or originally from Quebec or French Canada. Dr. Wright preferred a specialist in Quebec history who:

1. was fluent and published in French;

2. was trained in Quebec universities; and

3. had professional experience in the academic milieu of Quebec.

107With respect to the first factor, I find credible Dr. Wright’s testimony that he believed the applicant was bilingual. Her application for the position, which he reviewed, indicated that she wrote, in French, a review of another scholar’s book which was also written in French. Given Dr. Wright’s perception that the applicant was fluent in French, Dr. Wright’s preference for someone who was fluent and who published in French cannot be said to be discriminatory. He may have preferred other candidates who published more than her in French, but the criteria that she be fluent and publish in French was met by her. I find that Dr. Wright did not exclude the applicant from his personal list of candidates because of a factor related to fluency in French or being able to publish in French.

108With respect to the second factor, the applicant was not trained in Quebec universities, but she offered no evidence to establish that such a requirement or preference would disproportionately exclude English Canadians or people who were not French Canadians or born in Quebec.

109With respect to the third factor, the applicant arguably had some professional experience in the academic milieu of Quebec, but it was limited. Even if it were assumed that she did not have such experience, she offered no evidence to establish that such a requirement or preference would disproportionately exclude historians of Quebec or French Canada history who were not French Canadians or not born in Quebec.

110I do not find that any one of the above three preferred factors creates a distinction on the basis of the grounds cited in the Application.

111With respect to the question of whether they indirectly or constructively do so on the basis of age, I cannot find that the above qualifications disproportionately affect older candidates. In fact, it would be easier to argue that they act to disproportionately affect young people, but then one might assume the requirement of university and professional experience would be advanced as bona fide.

Testimony of Dr. Stapleton

112Dr. Stapleton, a professor in the History Department, was a member of the committee by virtue of being on the personnel committee, like Dr. Wright. Dr. Stapleton testified that the History Department was looking to fill a previous professor’s shoes given his recent departure, someone who was the Department’s Quebec specialist. The departing professor had publications in French and had a role in founding a French-language journal in which he also published. He testified that this professor’s mother was from Newfoundland, but he did not know from where his father came, perhaps Quebec.

113Dr. Stapleton testified that the committee had understood the 2011 position was for a French Canada and Quebec historian and he believed that the committee had a discussion about what that means. He recalled there having been a couple of committee meetings, including the short-list meeting, but he spoke to other members of the committee outside the meetings. Dr. Stapleton was never questioned by the parties’ counsel about which professors he discussed the competition with, nor about what they discussed, but he testified that he never heard someone say they preferred a Francophone candidate, or one that was “French-trained”. The committee decided that they wanted someone who was engaged in a French intellectual community, who was not simply using French language sources, but who was engaged communicating or publishing their research results in French. In other words, the committee was looking for someone engaged in an intellectual community through academic debate in French, by publishing a good proportion of their research and findings in French.

114Dr. Stapleton felt that the successful candidate fit the criteria very well, as did candidate B. He testified that he does not believe he initially placed candidate C on his personal list, but that he eventually agreed with committee members at the short-list meeting that candidate C also deserved to be interviewed on the basis of the criteria he described above. He did not feel that the fourth candidate fit the criteria, and recalled that he was not interviewed.

115Dr. Stapleton testified that he did not include the applicant on his personal list for the short-list meeting because, while she had an excellent application in terms of broad Canadian history, and while he understood that she was fluent in French and researched in French, she did not have as good a list of publications in French as the other candidates selected to be interviewed. In reference to her application letter and cv, he pointed out that, to him, they indicated that she had only one publication in French which was a minor one because it was a book review and not a research publication, and his focus in reviewing applications was on people’s publication records and what language they published in. She did not appear to him to be engaging in the French language community as much as other applicants for the position.

116In cross-examination, Dr. Stapleton emphasized that the position was for a specialist in French Canada and Quebec history. He recalled that the criteria with respect to publishing in French and to engaging with the French Canada and Quebec community were set at a committee meeting, but he could not remember if that meeting was held before or after the applications for the posting were received. He testified that credible candidates “obviously had to be bilingual”, but the committee did not discuss this in detail because the members assumed the candidates had advanced skills in reading and writing French, and because the members were not qualified to judge fluency.

117As stated above, the applicant testified that when she called Dr. Stapleton to ask about whether the successful candidate had been chosen, who it was, and why she was not interviewed, he had said, “Well, they didn’t think you worked on French documents.” Dr. Stapleton was examined about that telephone conversation. He testified that he was sitting in his office in the late Spring of 2011, just after he had testified in a law suit commenced by the applicant in another matter involving the collective agreement and incidents previous to the ones at issue in this Application. He said that the applicant apologized for naming him as a defendant in that matter, but she was told to name him so that he would testify. He told her that he would have been a witness even if she had not named him because he had never had a bad relationship with her. He testified that he did not believe he had any conversation with her about the competition for the position at issue in this Application, but given that the applicant’s cv makes clear that she published very little in French, and given that Dr. Stapleton used this as a reason not to include her on his list, any denial by him of making the comment is not material to my decision. It appears that some committee members, including Dr. Stapleton, did indeed think that the applicant had not “worked on” French documents in the sense that they did not think she significantly published French documents or that she published sufficiently in French, and for that reason, did not select her for their personal lists. “Worked on” is a term which I find means “authored” as much or more than it may mean “researched” when the context is measuring publications as in the case of the members’ assessment of applications from the candidates.

118While Dr. Stapleton agreed that postings at the “assistant professor level” generally are filled by people with recently obtained PhD’s, he was clear that the fact that a candidate for the position had not recently received their PhD was not a factor for him, and did not appear to be a factor for anyone else on the Committee given the absence of any discussion about the issue. He stated that he did not know how old PhD candidates are typically, but he noted that he would have seen the dates when the applicants for the position completed their undergraduate degrees, and he probably assumed the candidates interviewed were relatively young. He stated that had nothing to do with why he short-listed them. The Committee was looking for someone who was going to be successful in obtaining tenure five years into the job, and therefore the Committee was taking into account the level of publication and engagement in order to assess “scholarly promise”.

Findings for Dr. Stapleton

119Dr. Stapleton determined that the applicant’s cv failed to demonstrate that she was an expert in French Canada and Quebec history. As I explained above in the section discussing my findings for Dr. Wright, I find that it is reasonable to conclude that the applicant’s cv attached to her application for the position does not demonstrate that she was an expert in 2011 in French Canada and Quebec history. I find that Dr. Stapleton also applied the following factors: 1) she had not published much in French; and 2) she was not engaged sufficiently in an intellectual community that publishes a good proportion of their research and findings in French.

120In reviewing the applicant’s cv, and comparing it to the cv’s of the interviewed candidates, I find that a plain reading supports Dr. Stapleton’s belief that the applicant had not published much in French as had the interviewed candidates. It is a reasonable belief, and I find that his perception is not evidence that he used such a criterion as a pretense not to choose the applicant because of her ancestry, ethnic origin or place of origin.

121I also find that the applicant’s limited publication record in French was the basis for Dr. Stapleton’s assessment of the applicant as someone who was not sufficiently engaged in an intellectual community in French. The applicant had some professional experience engaging in the academic milieu of French Quebec, but, even if it were assumed that she did not have such experience, or that it was not sufficient, she offered no evidence to establish that a requirement or preference for more engagement would disproportionately exclude English Canadians or people who were not French Canadians, Quebecois or not born in Quebec.

122In conclusion, I find that the criteria relied upon by Dr. Stapleton to assess the applicant’s application for the position did not create a distinction based on any of the alleged grounds cited in the Application. There was no evidence that his criteria excluded or restricted English Canadians not born in Quebec. I also find that there is no evidence that Dr. Stapleton included in his determinations the applicant’s age or any factor that might exclude or restrict her because of her age.

Dr. Walden

123Dr. Walden was a professor in the History Department. While he respected the applicant’s experience as a Canadian historian, he had to weigh her experience against the other candidates. He believed that the successful candidate was clearly focused on French Canada and Quebec. He testified that he did not include the applicant on his short-list because he was not convinced that she was a historian dedicated to French Canada the way some other candidates were.

124He was familiar with some of the applicant’s publications at the time he reviewed her application for the position, and he did not believe in 2011 that her work focused on French Canada and Quebec history. He provided the example of a book which he believed did not have as much content about French-Canada as the applicant’s application letter suggested. He also testified about another publication that the applicant co-authored with Michael Gauvreau, her husband who he knew as a historian of religion in French Quebec, and Dr. Walden therefore presumed, rightly or wrongly, that the applicant’s role in the work focused on English Canada.

125Dr. Walden also felt, at the time he reviewed the applicant’s application for the position, that her cover letter conflicted with her cv. For example, she was not transparent because she appeared to take sole credit for works on French-Canada that were in fact co-authored by an expert in French-Canada history. He also noted that the applicant’s list of titles of publications lacked references to French-Canada or to Quebec, and, during cross-examination, he read through the publications listed on the applicant’s cv to emphasize his point.

126Dr. Walden testified that he knew from the applicant’s previous attempts to obtain academic positions that she had not previously advertised herself as a historian of French-Canada or Quebec. After reviewing the applicant’s cv, he concluded that her interest in Quebec was new, beginning in 2010, and, noting that she appeared to switch interests in her career, as, for example, from history of science to history of religion, he was not convinced that she would remain focused on French-Canada/Quebec. He also understood certain statements in her covering letter to mean that she wanted “wiggle room” to switch away from a Quebec focus, such as, “Further, because I do not conceive of the history of Quebec/French Canada in narrowly regional or geographical terms, my ongoing commitment is to seek ways of comparing and integrating Quebec/French Canada within transaltlantic and international historiographic questions.” He felt it was important to hire someone who was committed to a Quebec/French Canada focus and to teaching courses with that focus.

127In cross-examination, Dr. Walden testified that he assumed the three candidates selected for an interview were “insiders” because they were Francophone and had done substantial portions of their work in Quebec and had spent a substantial part of their lives in Quebec. Dr. Walden understood that the applicant is not Francophone which he explained meant that her first or dominant language is not French. When expanding upon his notion of “insider”, Dr. Walden explained that he assumed that Francophone Quebec historians would perceive the candidates selected for interviews as French-Canadians whereas they would perceive the applicant as English-Canadian, and they would not be as comfortable with her or accept her as intimately. He agreed that a specialist in French Canada and Quebec history could possibly publish only in English, but he also explained that the advantage of someone who was Francophone and from Quebec would lead to better liaising with the Francophone French-Canada/Quebec scholars. Dr. Walden testified that while he believed that there were emails about how the job posting should be framed, he did not recall meetings or discussion prior to the short-list meeting to determine the desirable attributes of the successful candidate.

128In re-examination, Dr. Walden testified about his perception that Francophone Quebec historians would be more receptive to French-Canadian professors. He explained that people who belong to colonized cultures will be less receptive to people who come from the colonizing one. For the History Department to build bridges with the Francophone Quebec historians, therefore, it would be helpful to hire someone who came from the colonized culture. He testified that if applications had not come from “people within Quebec”, then the committee would have looked at applications from people outside of Quebec, and made a hire from that pool. His preference was for a candidate from within Quebec which he clarified as meaning a Quebec historian who was Francophone and who had lived in Quebec for enough time of their life to understand the culture. He stated that there is a need to know “how Quebecers see the world”.

Findings for Dr. Walden

129I find that Dr. Walden determined that the applicant’s cv did not demonstrate that she was an expert in French Canada and Quebec history, and that this was a reason for his decision not to place her on his personal list. I also find, however, that his decision was influenced by his belief that she was less likely than other candidates to be accepted by Francophone Quebec historians for the following reasons: 1) she had not published enough in French; 2) she was not Francophone because French was not her first or dominant language; and 3) she would not be perceived as French-Canadian or from Quebec because she had not grown up or lived in Quebec for a long enough time to understand the culture of French Canadians in Quebec.

130I find, as stated above (in the analysis of the factors and preferences applied by Dr. Wright and Dr. Stapleton), that a preference for a candidate who published in French is not related to grounds cited in the Application. However, I find that Dr. Walden’s preference for someone whose first or dominant language is French, and for someone who had grown up in or lived for a substantial time in Quebec, creates a distinction related to ancestry, and place of origin. See below.

131With respect to the allegation of discrimination because of age, Dr. Walden testified that the committee did not have a preference for anyone who might have recently obtained a PhD, and that the committee did not discriminate against the applicant because she was too senior. He testified that he believed that if the Committee had hired a senior candidate, it would have advocated that the person receive a higher salary, but the issue was never discussed because the applicant was not short-listed. I find that there is no evidence arising from Dr. Walden’s testimony, or any other witness’ testimony, that the respondent in any way rejected the applicant because of her age or because she was senior and would have demanded a salary higher than the one set for the position.

Factors Used by Dr. Walden that Create a Distinction

132Subsection 5(1) of the Code states:

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, gender identity, gender expression, age, record of offences, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 5 (1); 1999, c. 6, s. 28 (5); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (5); 2012, c. 7, s. 4 (1).

133The relevant subsections of section 11 state:

11. (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,

(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or

(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right. R.S.O. 1990, c. H.19, s. 11 (1).

(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any. R.S.O. 1990, c. H.19, s. 11 (2); 1994, c. 27, s. 65 (1); 2002, c. 18, Sched. C, s. 2 (1); 2009, c. 33, Sched. 2, s. 35 (1).

134With respect to requirements of language in Ontario, French in particular, the Tribunal has recognized that such a requirement may be linked to ancestry, place of origin and ethnic origin. See Awan v. Loblaw Companies, 2009 HRTO 1046; Arnold v. Stream Global Services, 2010 HRTO 424; Tran v. Welcome Pharmacy (Queen) Ltd., 2012 HRTO 1445 and Islam v. Big Inc., 2013 HRTO 2009.

135While Dr. Walden testified that he did not believe that he discriminated against candidates contrary to the Code, I find that he applied criteria that created a distinction on the basis of Code grounds. Dr. Walden’s preference for candidates whose first or dominant language is French, and who grew up or lived a substantial time in Quebec, creates a distinction with respect to people whose place of origin is Ontario, where English is the dominant language, like the applicant’s, and with respect to people whose ancestry is not French like the applicant’s is not.

136I note that Dr. Walden is the only member of the committee who preferred candidates with those characteristics. This is not surprising because any requirement that candidates demonstrate that they engage with the Francophone academic milieu of Quebec can be met by English Canadians who are fluent in French and who do so engage. Dr. Stapleton and Dr. Wright were also eager that the successful candidate engage with the Francophone academic milieu of Quebec, but they had no issue with a candidate who was fluent in French even if it was not their first language.

137Dr. Walden’s preference for people who grew up or spent a significant amount of their lives in Quebec would disproportionately exclude those who grew up in Ontario, and whose place of origin is consequently more likely to be Ontario than Quebec. Dr. Walden’s preference for people whose first or dominant language is French would also disproportionately exclude those whose ancestry is not French. Dr. Walden’s criteria disproportionately excludes candidates who are not from Quebec and whose first language is not French, but who are perfectly fluent in French, publish in French and who engage beautifully with the Francophone academic milieu of Quebec. His criteria were not bona fide, or reasonably necessary for the position. They were not required by the committee and no one else on the committee applied them. I find that they created a distinction on the basis of the applicant’s English ancestry and her place of origin which appears to be Ontario. (Given that the applicant did not identify her ethnic origin, I cannot comment on whether the criteria applied by Dr. Walden created a distinction based on her ethnic origin).

138To determine whether the distinction used by Dr. Walden constitutes discrimination contrary to the Code, I must decide whether Dr. Walden’s use of it hurt the applicant’s chance of being selected for an interview by the committee and her chance of obtaining the job, thereby creating a disadvantage for her. (See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, at para. 74, where the Court of Appeal held that the test for establishing discrimination under the Code is consistently expressed in the jurisprudence as requiring a distinction based on a prohibited ground that creates a disadvantage. See also the requirement that adverse treatment must be present to establish discrimination as articulated in Shaw v. Phipps, 2010 ONSC 3884, upheld 2012 ONCA 155).

139Dr. Walden never said at the hearing that he would have selected the applicant for his personal list if her first language were French and if she were from Quebec. On the contrary, he was very clear that he did not consider her to be a specialist or expert in French Canada or Quebec history, a factor that was important to him, which makes sense given that the posting targeted such an expert, and every other member of the committee understood such an expertise to be required. There is no need for me to decide, however, whether Dr. Walden would have placed the applicant on his personal list and recommended the applicant to the committee at the short-list meeting if it were not for the additional criteria he used. I say this because my task is to determine not whether Dr. Walden disadvantaged the applicant, but whether the respondent University, as represented by the committee, did so.

140The other members of the committee were very clear that the applicant was not qualified for the position given that her application failed to demonstrate an expertise in the required area. The vast majority of the committee members eliminated the applicant immediately upon assessing whether she met their first requirement – being a specialist in the field – and determining that her publications indicated she did not meet it. Dr. Walden did not discuss the applicant with the other members of the committee. However, if he had, the evidence indicates that the majority would not have been swayed from their reasoned determinations that the applicant did not specialize in French Canada and Quebec History. Given each member had a vote in the event that consensus was not established, (i.e., in the case that Dr. Walden might have wanted the applicant interviewed), it is not probable and there is no reasonable possibility, that the applicant would have made the short-list. I am satisfied that even if Dr. Walden had placed the applicant’s name on his personal list, the other members of the committee would not have agreed to interview her for the position. There is no need for me to analyze how remote her obtaining the position was if she had obtained an interview, and I find that Dr. Walden’s use of his own criteria for his own list played no part in the respondent’s rejection (through the committee of nine) of the applicant for the position.

141In conclusion, I find that Dr. Walden’s decision not to interview the applicant, even assuming it was influenced by distinctions based on Code grounds, did not disadvantage her. While the applicant’s ancestry and place of origin were factors in Dr. Walden’s decision, and while I allow for the possibility that he may have included the applicant on his personal list had he not applied those factors, I find that the respondent University did not discriminate against the applicant. I say this because Dr. Walden was only one of nine members on the committee representing the respondent, and the other eight members clearly decided not to recommend that the applicant be offered an interview, let alone the position, for reasons which were not related to alleged Code grounds. The disadvantage to the applicant occurred, but it did so for reasons unrelated to the Code. The applicant has therefore not established on a balance of probabilities that the respondent discriminated against her.

order

142The Application is dismissed.