HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Syed Hussain
Applicant
-and-
Ottawa Police Services Board
Respondent
DECISION
Adjudicator: Mark Hart
Indexed as: Hussain v. Ottawa Police Services Board
APPEARANCES
Syed Hussain, Applicant
Self-represented
Ottawa Police Services Board, Respondent
David Patacairk, Counsel
1This is an Application dated May 21, 2012 and filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, colour, place of origin, citizenship, ethnic origin, creed and age.
2In brief, the applicant applied for the position of Evaluation and Research Coordinator with the respondent. The applicant was granted an interview for this position. In late January 2012, he was notified that he was not the successful candidate. He made an informal complaint with the respondent, which was reviewed and which confirmed the respondent’s hiring decision. The applicant believes that he experienced discrimination on the grounds alleged primarily based upon a comparison of his qualifications and experience to the successful candidate, who is a younger White male.
3The hearing in this matter commenced in Ottawa on August 27, 2014, at which time I heard the applicant’s evidence in chief and under cross-examination. The hearing was scheduled to proceed for two further hearing days, but these hearing days were cancelled at the applicant’s request for medical reasons. The applicant was permitted to provide his evidence arising out of cross-examination in writing, which was reviewed and accepted by me despite the respondent’s objection by Case Assessment Direction (“CAD”) dated October 3, 2014.
4The respondent then made a request for dismissal of the Application on the basis that it had no reasonable prospect of success. This request was dealt with in writing, and the respondent’s request was denied by CAD dated January 8, 2015.
5The hearing was scheduled to continue in Ottawa on September 14, 15 and 16, 2015. In advance of these hearing dates, the applicant advised the Tribunal that he was in Pakistan and was unable to return to Canada for medical reasons. The applicant requested that he be permitted to participate in the hearing by video-conference. The applicant’s request was granted by e-mail correspondence dated August 24, 2016.
6At the hearing dates in September 2015, I heard testimony from two members of the interview panel, namely the director and the hiring manager. I also heard testimony from the respondent’s manager of employee services. On the last of these hearing days, I commenced hearing the testimony of the third panel member, the staff sergeant, but his evidence was not completed by the end of that day.
7The final hearing date in this matter was held on January 11, 2016, at which time we completed hearing the testimony of the staff sergeant and I heard final submissions from the parties. Once again, the applicant was in Pakistan and unable to return to Canada for medical reasons, and requested to participate in this hearing day by video-conference. This request also was granted.
ANALYSIS AND DECISION
8In August 2011, the respondent advertised for the position of Evaluation and Research Coordinator. This position is responsible for conducting and coordinating research and analysis on a wide range of policy and planning issues, carrying out the organization’s evaluation strategies, conducting and coordinating the organization’s survey research and analysis, producing the organizational annual report, developing performance measures for divisions, and assisting in the business planning process. The major responsibilities of the position include providing training and support in program evaluation, and preparing and/or making written and oral presentations to stakeholders.
9The required qualifications for this position were: successful completion of a four year university degree within any of the following disciplines: business, mathematics and/or statistics, arts, criminology or other social sciences, public administration or related discipline; minimum of three years professional experience in a planning and policy environment, particularly in the areas of statistical and qualitative analysis, research design and methodology, program evaluation, survey design, focus group facilitation, and organizational review; and experience dealing with a wide range of internal and external stakeholder groups. It is noted on the job description that experience and formal training combined may substitute for these stipulated requirements.
10The applicant applied for this position, and his application was accepted by the respondent. The applicant was a long-serving member of the Police Service of Pakistan, and had held senior ranks for some 20 years, including Superintendent and Deputy Inspector General levels. The applicant holds an M.B.A. from Lancaster University in the U.K., and an M.A. and Ph.D. in Criminology from the University of Pennsylvania. He majored in statistics as part of his B.A., and had conducted and coordinated various research projects for the government of Pakistan. He had advanced knowledge of evaluation and research design methods and analysis, data management and measurement tools, and had taken courses on survey design, organizational performance evaluation and strategic management. He had authored a number of publications, including books and policy papers, and had done a number of presentations, particularly in the area of counter-terrorism.
11The candidate who was ultimately successful in the competition had over five years of experience in public evaluation, and over seven years of experience in the economic and social development field. He had a background in research design, implementation and management, including impact assessments, organizational reviews, and socio-economic analysis. He holds a B.A. in Geography and an M.A. in Regional Development. While he did not have any prior employment in policing, he had work experience in conducting projects involving public safety and crime reduction.
12Of the three other candidates interviewed for this position, two held Ph.D.s and the third was a Ph.D. candidate.
The initial screening process
13The respondent received approximately 125 applications for this position. The first step in the competition process was for the applications to be reviewed by a staffing coordinator in the respondent’s human resources department. This initial screening process was for the purpose of weeding out those applicants who did not meet the required qualifications for the position, and to do a rough sort of the remaining candidates. This was described to me in the evidence as being a sort of the remaining candidates into A, B and C groups, with the A group representing those who appeared to the staffing coordinator to be the most qualified and the C group representing those who appeared to be the least qualified.
14At the same time as this initial review and screening of applications was being done by the staffing coordinator, the hiring manager was in the process of preparing and finalizing the interview materials. The interview process was comprised of a competency-based set of interview questions and a practical exercise. The interview guide for the competition identifies the relevant core competency, articulates an experience-based question in relation to that competency, and provides an answer guide with specific examples of what is required to achieve a particular score. The practical exercise was for the candidate to conduct research and prepare a draft presentation for the respondent’s Chief of Police to deliver at a national policing conference, identifying the three most significant issues facing Canadian policing in the next 3 to 5 years. This was to include identifying the potential impact and challenges to policing, and the steps the candidate would take in the position to address these issues.
15In the course of the hearing, the applicant raised an issue about the hiring manager’s request to have the screened-in applications and resumes forwarded to him before the interview materials had been finalized, which was against the respondent’s own internal policies. In my view, nothing turns on this. The objection raised by the staffing coordinator to the screened-in applications and resumes being forwarded to the hiring manager at this stage was that it could create unrealistic expectations as to the timing for the scheduling of interviews. The hiring manager was anxious to get the applications and resumes so that he could conduct his own review and identify the candidates that he considered most appropriate to be granted an interview. The interview materials already had been prepared by the hiring manager by this time, and were simply awaiting review and approval by his director. Ultimately, the human resources manager intervened so that the screened-in applications and resumes were forwarded to the hiring manager, and he could begin his review. While this may have been contrary to the strict terms of the respondent’s internal policy, I find nothing discriminatory in this having occurred.
16After receiving the screened-in applications and resumes, the hiring manager conducted his own in-depth review. He expressly did not rely upon the initial sorting that had been done by the staffing coordinator. In his evidence, this was because he had a better understanding of the position, which reported to him, and a firmer grasp of the kind of experience, skills and qualifications that he was looking for. The hiring manager testified that he did his own initial sort into three piles: those who appeared to have the strongest qualifications; those who needed further review; and those who were borderline. After conducting an initial review of all of the screened-in applications and resumes, the hiring manager then went back to the borderline pile to see if there was anything he had missed or if he had been inconsistent. He then returned to the “needed further review” pile, and sub-divided those applications into those that were stronger, those in the middle, and those that were the weakest. He then returned to the stronger applications from this pile, and assessed whether there were any that he would move into the “strongest” pile. He states that he then had a pile composed of what he regarded as the strongest candidates, which he then sub-divided into a “stronger” and “weaker” pile. The stronger of these candidates composed the hiring manager’s “A list”.
17With the A list candidates, the hiring manager prepared a rather elaborate chart comparing these candidates’ education, years of experience, and nature and level of experience. Of the 19 candidates who made this list, the hiring manager recommended seven for an interview, including the applicant and the successful candidate. Two of the candidates recommended for an interview later withdrew from the competition, leaving the five who were interviewed. The hiring manager’s recommendations were reviewed and approved by his director.
18In terms of level of relative experience, the hiring manager sub-divided the candidates’ experience into three areas: evaluation, research and survey. A rating of expert, intermediate or junior was given for each of these three areas. The applicant was given an intermediate level in evaluation, and an expert level in research and survey. The successful candidate was given a junior level in all three areas. This led the applicant at the hearing to question the hiring manager as to why someone with only a junior level in these three experience areas was selected for an interview.
19The hiring manager testified that the ultimately successful candidate came from the consulting world and had identified that he had dealt with complex projects. The hiring manager stated that because of the nature of the successful candidate’s consulting work and clients, he not only had strong program evaluation and research skills, but he also had experience in community safety and crime reduction, as well as economic and social return on investment and impact assessment expertise. As a result, not only did the ultimately successful candidate have experience on the program evaluation side, he also had demonstrated experience with both quantitative and qualitative research and consultation.
20The applicant also notes that someone from the respondent organization had written the word “yes” on his application, while the same person had written “maybe” on the application submitted by the ultimately successful candidate. While no-one who testified before me was definitively able to identify the author of this handwriting, it appears to me that it is most likely that of the human resources staffing coordinator. As a result, the applicant also questions why a “maybe” candidate was selected for an interview.
21In my view, little is gained by the applicant in this line of questioning. The reality is that both individuals were selected to participate in the interview process, such that no disadvantage was experienced by the applicant merely as a result of the ultimately successful candidate being selected for an interview. In any event, I am satisfied on the evidence before me that the respondent has provided credible, non-discriminatory reasons for the ultimately successful candidate being selected for an interview, despite his initial identification by the staffing coordinator as a “maybe” and despite his junior levels of relevant experience. In this regard, on the basis of a review of the chart prepared by the hiring manager, it is notable that all of the candidates who were interviewed (save one, who ultimately was the lowest ranked candidate) had experience in areas directly related to policing, including the applicant and the ultimately successful candidate; while all of the candidates who were not recommended for an interview (save one) lacked such experience. The relative levels of the candidates’ experience were not being scored or ranked at this stage of the hiring process. It was simply a matter of deciding who would be selected for an interview.
The presentation and interview process
22Once the hiring manager had determined who was selected for an interview, the candidate interviews were scheduled for November 2011. The interview panel was comprised of the hiring manager, his director and a staff sergeant who had previously worked in the position. Each candidate was given a copy of the practical exercise one week prior to their interview, and was to prepare the presentation in advance. Each candidate was given 10 minutes to give the presentation. At the conclusion of the presentation, the candidate was given a copy of the interview questions to review and excused from the interview room to do so. The candidate was then called back in to respond to the interview questions.
23The presentation was marked in two parts. The first part marked the content of the presentation, and was scored out of 100 points. The second part marked the manner of the presentation, including such things as delivery, flow, vocabulary and presence, and was scored out of 95 points. There was an error on the pre-printed scoring sheets showing the total score for part two to be 100 points, which was identified and corrected during the course of the interview process. The raw total point score from both parts of the presentation was then converted into a percentage score, and assigned an overall weight of 30%.
24The interview consisted of five questions, for a total raw score out of 57 points. The raw score for the interview similarly was converted into a percentage, and assigned an overall weight of 70%.
25The process for scoring the individual candidates was described as follows. Immediately following the presentation, each panel member would separately assign scores to the candidate on the various criteria set out on the marking sheet (in all, there were 39 different criteria). While the candidate was out of the room reviewing the interview questions and after the individual scoring had been completed, the panel members would then have a discussion to come up with a consensus score. The panel members testified that they did not individually review their separate scores on a line-by-line basis on each of the 39 criteria, but rather had a global discussion to come up with an overall consensus score for each of the two parts of the marking scheme for the presentation.
26A similar process took place in relation to assigning marks for responses to the interview questions. Each panel member individually would score the candidate’s response to a particular question in accordance with the answer guide, in most cases by checking off the applicable points. The items checked off on the answer guide would then correspond to a score to be given to the candidate for each question, which in many cases was signified by the panel member by drawing a circle or line at the relevant point in the scoring range. After each panel member had completed their individual scoring, they would then engage in a discussion to come up with a consensus score for each question and a consensus total score, which was signed by all panel members.
27The testimonial evidence before me, as confirmed by the respondent’s internal policy documents, is that the information from the candidates’ applications and resumes plays no role in the marking at the interview stage. This information is used solely for the purpose of screening the candidates at the initial stage of the hiring process in order to determine whether they are selected for an interview. The consistent evidence before me from the respondent’s witnesses is that, once the hiring process proceeds to the interview stage, the selection of the successful candidate is based solely on the weighted results of the interview and practical exercise, with the top-ranked candidate being offered the position.
28The results of the interviews and presentations in the instant competition are summarized in a scoring template in evidence before me. The successful candidate had a raw consensus score on his presentation of 171 out of 195 possible marks, for an average of 87.7%. With the 30% weight accorded to the presentation, this translated into a weighted score of 26.3. On the interview, the successful candidate achieved a raw consensus score of 36 out of 57, for an average of 63.2%. With the weight at 70%, this translated into a weighted score of 44.2. Combining the two weighted scores for this candidate, he achieved a total competition score of 70.52.
29The applicant had a raw consensus score on his presentation of 162 out of 195, for an average of 83.1% and a weighted score of 24.9. Out of the five candidates interviewed, the applicant achieved the fourth best score on his presentation. On his interview, the applicant achieved a raw consensus score of 37 out of 57, for a weighted score of 45.4. Out of the five candidates interviewed, the applicant achieved the top score for his interview. The applicant’s total competition score was 70.36, which was 0.16 points below the successful candidate.
30There was only one other candidate who passed the competition (the passing score was set at 65). This candidate was scored 171 out of 195 on her presentation, for a weighted score of 26.3, and 35 out of 57 on her interview, for a weighted score of 43.0, for a total competition score of 69.29, which was 1.23 points behind the successful candidate. Like the applicant, this candidate also held a Ph.D., which was in the area of applied social psychology, and had conducted projects and program evaluations in the areas of gang activity and crime reduction and had consulted on the validity of community surveys used by a police service.
31As is apparent, the results of the competition were very close, with three candidates within 1.23 points of each other. The evidence of the respondent’s human resources director is that it is not uncommon for competition scores to be recorded to two decimal places, and the respondent’s practice is to proceed with the top-ranked candidate based on the scores from the interview and practical exercise stage of the competition, regardless of how close the score(s) of the next-ranked candidate(s) are to the top candidate. There is no evidence before me to contradict this.
32The question before me, then, is whether a discriminatory factor entered into the competition scoring process which depressed the applicant’s scores on his presentation and/or his interview, or that inflated the successful candidate’s scores, or whether the respondent has provided a legitimate, non-discriminatory explanation for any contested scores.
The interviews
33With regard to the interview portion of the competition, the applicant contested the score given to the successful candidate in relation to one specific question, namely question five. On the other four interview questions, the applicant achieved scores that were largely equivalent to or better than the scores for the successful candidate: on question one, they both scored 4.5; on question two, the applicant scored 11 and the successful candidate scored 12; on question three, the applicant scored 9 and the successful candidate scored 6; and on question four, the applicant scored 6.5 and the successful candidate scored 6. The consensus score awarded to these candidates for each of these four questions is largely consistent with the individual scores recorded by each assessor, to the extent these can be discerned. (In this regard, I note that two individual scoring pages are missing for the applicant, and that the assessors on most occasions made marks on the scoring chart for each question rather than recording a specific individual score).
34The one question that the applicant contested at the hearing related to the position competency of networking and relationship building, and the need to build and maintain effective and constructive working relationships, partnerships or networks of internal and external contacts. This is a competency that is clearly related to the duties and responsibilities of the position.
35The specific question was: “Give us an example of how you have used your informal networks to obtain crucial information to accomplish a key business or operational goal. Why did you turn to your informal network and how did this resource assist you in reaching your goal?”
36The applicant’s answer to this question drew from an experience he had when he was the Superintendent of Police, Special Branch in Pakistan. He was involved in a case where a magistrate had been murdered because of a sectarian problem. The magistrate was Shia and had been killed by a terrorist from another group. The applicant was able to trace the accused by using his personal links in the village to which this person belonged. He states that it was mainly because of his personal links that the accused was apprehended.
37The applicant received a consensus score of 6 out of 12 for this question. As far as I can discern from the materials before me, the director gave the applicant an individual score of 8 for this question, while the hiring manager gave him an individual score of 6. The individual marking sheet for the staff sergeant was not available.
38The successful candidate received a consensus score of 7.5 for this question, with individual scores of 9 from the director, 7 from the hiring manager, and in the range of 4 to 6 from the staff sergeant. As can be seen, both the director and the hiring manager gave the successful candidate higher individual scores than the applicant (a comparison of the individual scores of the staff sergeant is not possible).
39The director’s evidence was that in response to this question, the successful candidate identified that his goal was to move to Canada to continue his career in the evaluation sector. One of the first things he did was to contact evaluation professionals in Ottawa and across Canada, and he gave a couple of examples of that effort, including contacts in the Ottawa area that were known to the director. The director testified that the successful candidate was able to obtain crucial information on opportunities in the evaluation sector in Canada and Ottawa. He and his wife then came to Ottawa on what the director called a scoping holiday, to find out more about opportunities in Ottawa and to make connections with individuals face to face and find out more about working in Canada. The successful candidate also made contact with the Canadian Evaluation Society, of which there is an Ottawa chapter.
40The applicant takes the position in this proceeding that the successful candidate did not properly answer the question for two reasons. First, the applicant states that the question asked about the use of networks to accomplish a key “business or operational goal”, whereas the applicant states that the successful candidate’s response was about achieving a personal goal, namely the continuation of his career in Canada. The director’s response to this assertion is that the successful candidate in fact did properly respond to the question, as he was utilizing networks for the purpose of business opportunities, which is within the scope of the question. The applicant also challenges the successful candidate’s response on the basis that the question asked about the use of “informal” networks, whereas the successful candidate contacted the Canadian Evaluation Society, which the applicant states is a formal organization. On this point, the director responded that the reference to the use of “informal networks” in the question was directed at the use of connections with clients and informal contacts.
41The hiring manager’s evidence regarding the successful candidate’s response to this question was that he provided an example of how he used formal and informal networks to accomplish a key business and operational goal, which was to expand his knowledge about program evaluation in the Canadian context. The successful candidate contacted various consultants who are highly regarded in program evaluation field, and was looking for information regarding the health of the program evaluation sector, whether security clearances were required to work in field, and what the market was like. The hiring manager also referred to the fact that the successful candidate had travelled to Canada to have face to face meetings with these contacts, including discussions about program work in the policing environment, and he had attended Canadian Evaluation Society events. The hiring manager also testified that the successful candidate had provided a second example from when he was in the U.K., where he had used informal networks of subcontractors and clients which had led to further benefits. Specifically, the successful candidate did something small for a client for free, which led to a full evaluation and contract for the consulting company he worked at.
42With regard to the applicant’s criticisms of the successful candidate’s answer, the hiring manager agreed that the main example used by the successful candidate was more of a personal goal, but stated that his example nonetheless responded to the question, in that the goal of learning about the program evaluation sector in Canada was a key business or operational goal for the successful candidate. The hiring manager also noted in his evidence that the successful candidate had described the use of both formal and informal networks.
43The staff sergeant provided similar, though less detailed, evidence regarding his recollection of the successful candidate’s response, and also disagreed with the applicant’s suggestion that he or the interview panel has misinterpreted the question in the successful candidate’s favour.
44The issue for me to determine is whether there is a basis to find that a discriminatory factor was involved in their assessment of the answers given to this question by the successful candidate as compared to the applicant. I find that there is no such basis. While I appreciate that the applicant’s example related to a high profile and high stakes issue, namely the murder of a magistrate by a terrorist, the actual use of informal networks to solve this case was quite limited, namely his use of a connection with a resident of a local village where the terrorist was from. In contrast, the successful candidate described in his answer a much more robust use of networks, including multiple initial contacts from overseas followed up by face-to-face meetings and attendance at events when he came to Canada. Quite simply, in my view, the successful candidate provided a better answer to this question than the applicant, and used an example that was more closely connected to the actual duties and responsibilities of the position at issue.
45Accordingly, I am satisfied that the respondent has provided a credible, non-discriminatory explanation for the higher score awarded to the successful candidate for his response to this question, and that the applicant’s race, colour, place of origin, citizenship, ethnic origin, creed and/or age was not a factor in either the higher mark awarded to the successful candidate or the lower mark awarded to the applicant.
The presentations
46It was the practical exercise, or presentation, where the applicant achieved a lower total consensus score than the successful candidate. As noted above, the presentation was marked in two parts, for a total score of 195 marks. The first part of the scoring related to the content of the presentation for a total of 100 marks, and the second part related to the quality of the presentation for a total of 95 marks. For the applicant, the individual scores of the three assessors on each of these parts were largely consistent. On the first part, he achieved a consensus score of 84, with individual scores of 80 from the director, 87 from the hiring manager, and 83 from the staff sergeant. On the second part, he achieved a consensus score of 78, with individual scores of 76 from the director, 79 from the hiring manager, and 78 from the staff sergeant.
47In contrast, the successful candidate achieved a consensus score on the first part of 88 (four marks higher than the applicant), with individual scores of 84 from the director, 88 from the hiring manager, and 91 from the staff sergeant. On the second part, the successful candidate achieved a consensus score of 83 (5 marks higher than the applicant), with individual scores of 83 from the director, 79 from the hiring manager, and 89 from the staff sergeant. As can be seen, the greatest variance in the individual scores awarded for both parts of the presentation as between the applicant and the successful candidate came from the director (156 marks for the applicant versus 167 marks for the successful candidate, for a variance of 11 marks) and from the staff sergeant (161 marks for the applicant versus 180 marks for the successful candidate, for a 19 mark variance). The variance in the hiring manager’s scores for these two candidates was only one mark.
48The director’s evidence was that the successful candidate’s presentation was better laid out, logically structured and organized, and more tightly focused to what the assignment was than the applicant’s. This in the director’s view was assisted by the successful candidate’s better formatting of the hard copy of presentation provided to the panel members. With regard to the quality of the presentation, the director testified that the successful candidate scored one point higher than the applicant in a number of categories, including confidence, appearance, spoken English, terminology and overall effectiveness and interest of the presentation. The director noted that the successful candidate’s presentation was cleaner than the applicant’s, it was not text heavy, and it had some graphical elements that aided in the presentation.
49The staff sergeant’s evidence is was that the applicant did quite well on his presentation, but that there were some areas of his presentation that concerned him. Specifically, the staff sergeant pointed to the applicant’s reference to rising crime rates in one of his initial slides, whereas he testified that it is well-documented that crime rates in fact have been falling for more than a decade. The staff sergeant also testified that the information the applicant presented reflected national policing issues as opposed to municipal policing issues. While the staff sergeant agreed that the presentation assignment asked candidates to identify the three most significant issues facing Canadian policing in the next 3 to 5 years, the presentation nonetheless was to be given by the Chief of the Ottawa Police Service. Having worked in the position, the staff sergeant was concerned that for the sake of the Chief’s credibility in giving this presentation at a national policing conference, the presentation should focus on municipal policing issues about which the Chief could speak from experience and with authority, rather than getting into issues that were not the primary jurisdiction of a municipal police service.
50The staff sergeant’s concerns are reflected in the contemporaneous handwritten notes that he made during the course of the applicant’s presentation. For example, beside the applicant’s reference to “rising crime rates” in his first slide, the staff sergeant wrote “falling!” And underneath that slide, the staff sergeant had written “not OPS” to signify that some of the issues identified by the applicant in this slide, such as “terrorism”, were more relevant to national policing than to a municipal police service. The staff sergeant also put a question mark beside the applicant’s reference to “transnational policing” as an example of increased responsibilities, to signify that this too was more of a national policing issue. He also pointed to the applicant’s juxtaposition of “counterterrorism” with what the applicant referred to as “street crime” on a slide dealing with the potential impact and challenges to policing as once again reflecting more of a national policing issue which did not reflect the primary agenda of a municipal police service.
51In cross-examination, the applicant challenged the staff sergeant on his interpretation of the assignment question, which refers to issues facing “Canadian policing” as opposed to specifically stating that the issues should reflect a municipal police service. While this is correct, the staff sergeant testified that the presentation should be framed from the perspective of the Chief of Police, who is in charge of a municipal police service, and should draw upon issues affecting the Ottawa Police Service in order to speak to national trends. His view was that the Chief would come across in the presentation as being much more knowledgeable by speaking to municipal policing issues, as opposed to speaking about areas where he did not have direct experience and therefore might not appear as credible.
52I have a hard copy of the candidate’s presentations in evidence before me. While I cannot speak directly to the oral presentations given by the candidates and can only rely upon the evidence of the witnesses before me, I can speak directly to the relative quality of the written presentations. In this regard, I note that the written presentations as prepared by the applicant and the successful candidate support and reflect the concerns identified by the director and the staff sergeant. With regard to the director, the written presentations before me support that the successful candidate’s presentation was cleaner, less text heavy, more focused, and overall of better quality than the applicant’s. With regard to the staff sergeant’s concerns, I note that the three most significant issues identified by the successful candidate were serious and organized crime, youth and demographic shifts, and resourcing and community policing, all of which reflect the primary agenda of a municipal police service. In contrast, while the three most significant issues identified by the applicant – namely increasing responsibilities, decreasing resources and less than fitting responses - on their face could reflect municipal policing, I agree with the staff sergeant that some of the examples used by the applicant to illustrate these issues reflect more of a national policing focus as opposed to the primary focus of a municipal police service.
53Once again, overall I find that the respondent has provided a credible, non-discriminatory explanation for the better scores awarded to the successful candidate on his presentation as compared to the applicant, and find that the applicant’s race, colour, place of origin, citizenship, ethnic origin, creed and/or age was not a factor in the overall scoring of the presentation.
Two specific criteria marked on the presentation
54That said, there were two specific criteria from the scoring template for part two of the presentation that were cause for concern. These two criteria were “use of proper terminology” and “fluent in spoken English”. Each of these criteria accounted for 5 marks out of the total of 195 marks for the presentation as a whole. In relation to these two criteria, there is a noticeable variance between the scores given across all candidates by the director and the hiring manager on the one hand, and by the staff sergeant on the other. Across all candidates interviewed, there was a small variance in the scores awarded by the director and the hiring manager in these two categories, ranging from a low of 3 to a high of 5. Both of these assessors gave the applicant a mark of 4 in both criteria, while the successful candidate was given marks of 5 in both criteria by the director and marks of 4 in both criteria by the hiring manager. For both assessors, there were other candidates who were marked equal to or lower than the applicant.
55In contrast, the staff sergeant gave the applicant a mark of two in both criteria, and gave every other candidate a mark of five in both criteria. The evidence before me is that a mark of two would be considered an “outlier”, in the sense that it would be a particularly adverse score for a candidate.
56As a result, the staff sergeant was questioned closely at the hearing regarding this rather stark variance between the marks given to the applicant in these two criteria and the marks given by him to all other candidates. In relation to the criterion “use of proper terminology”, the staff sergeant explained that his lower mark for the applicant was based upon two issues. The first issue is the applicant’s reference to rising crime rates, which the staff sergeant regarded as inaccurate. While the staff sergeant acknowledged before me that he could have taken this error into account in relation to his marking of the content of the presentation in part one, I nonetheless am satisfied that he sincerely relied upon this error in giving the applicant a mark of two under “use of proper terminology”.
57The second issue identified by the staff sergeant related to the applicant’s juxtaposition of counterterrorism with “street crime”. The staff sergeant testified that in the Canadian policing context, the term “street crime” has a very specific meaning which relates to organized crime. He testified that in raising the juxtaposition with counterterrorism, the applicant was really referring to ordinary or “everyday” crime. While the applicant challenged the staff sergeant regarding the meaning of “street crime” based upon the applicant’s own internet searches, I am satisfied that the use of the term “street crime” in a Canadian policing context represented a sincere and genuine concern on the staff sergeant’s part, given how this term would be understood by the attendees at a national policing conference and how the imprecise use of the term in the Canadian context would reflect on the Chief of Police. As a result, I am satisfied that the staff sergeant has provided a credible, non-discriminatory explanation for the lower individual mark awarded by him to the applicant in the criterion “use of proper terminology”.
The applicant’s accent
58With regard to the criterion “fluent in spoken English”, the staff sergeant was quite open and forthright in his testimony in acknowledging that the lower mark awarded to the applicant under this criterion was due to the staff sergeant’s difficulty in understanding what he described as the applicant’s “strong accent”. There is no question that the applicant speaks with a South Asian accent. The other two assessors had been questioned about whether they had any difficulty in understanding the applicant because of his accent, and they reported no such difficulty. In addition, when the applicant testified in person before me on the first day of hearing, I had no difficulty understanding him despite his accent, and no difficulties due to his accent were raised by anyone in attendance at the hearing on that day. There is no doubt that when the applicant was testifying from Pakistan by video-conference on the subsequent hearing days, all participants in the hearing struggled at times to understand what he was saying. But I noted that when being cross-examined by the applicant, the staff sergeant had particular difficulty in understanding the applicant’s questions, and I often had to repeat the question based upon what I had heard the applicant say. My impression was that the staff sergeant was sincerely trying to understand what the applicant was saying, and that his difficulty in understanding the applicant’s questions was not feigned or exaggerated.
59One question before me is whether the staff sergeant’s difficulty in understanding the applicant’s accent is discriminatory. As noted above, the other two assessors did not have difficulty understanding the applicant, despite his accent. Neither did I, particularly when the applicant testified in person before me at the hearing. Neither apparently did respondent counsel, who evinced no difficulty in understanding the applicant when conducting cross-examination. The applicant also points to the fact that he was offered a professorship at an American university and is currently a college instructor as further evidence that others do not share the staff sergeant’s difficulty in understanding him despite his accent.
60I take the applicant’s point that the staff sergeant’s difficulty in understanding his accent appears to be idiosyncratic, and that the issue appears to lie with the staff sergeant rather than with the applicant. At the same time, the staff sergeant testified that he had worked with a number of individuals who spoke with accents, including some South Asian persons, and did not experience difficulty understanding them despite their accents. The staff sergeant testified that of the persons he had worked with where he had difficulty understanding their accents, the individuals had Burmese, Scottish and French-Canadian accents. His evidence did not evince a pattern of having difficulty only with persons with accents from any particular place of origin.
61I also take the respondent’s point that verbal communication is a required competency of the position at issue. The position requires making verbal presentations to a variety of groups, including senior management, stakeholders, and staff. In this context, it is a legitimate expectation that the candidate be able to be understood. Viewed from this perspective, the respondent takes the position that it was legitimate and non-discriminatory for one of the assessors, namely the staff sergeant, to reflect his difficulty in understanding the applicant’s spoken English by awarding him a lower score on that specific criterion, notwithstanding that the other two assessors had no such difficulty.
62I am critical of the staff sergeant for not having raised his personal difficulty in understanding the applicant during the consensus discussion with the interview panel, and obtaining their feedback in relation to his individual scoring on that criterion. The staff sergeant’s evidence is that he does not recall raising this issue during the consensus discussion, and the other two assessors also did not recall any such issue having been raised or discussed. In my view, given that the staff sergeant was having difficulty understanding the applicant’s spoken English due to his accent, it would have been appropriate to raise that as an issue during the consensus discussion.
63However, whether or not the staff sergeant’s consideration of the applicant’s accent when awarding him a lower score on the criterion for fluency in spoken English was discriminatory, I need to consider whether or not this consideration was a “factor” in the respondent’s decision-making process. It is well-established in the caselaw that a protected ground under the Code need only be a factor in an impugned decision in order to establish discrimination.
64Recently, the Supreme Court of Canada provided some guidance as to what constitutes a “factor” in its decision in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39 (“Bombardier”). In Bombardier at paras. 43 to 52, the Court held that the protected ground does not have to be the sole or exclusive cause of the impugned action or have a “close relationship” to the impugned action, nor does the applicant have to prove a “causal” factor or connection; the protected ground need only have contributed to the impugned action or have played a role in the impugned action.
65The impugned action at issue in the instant case is the respondent’s decision to hire the successful candidate instead of the applicant for the position. So the question for me to determine is whether the staff sergeant’s consideration of the applicant’s accent “contributed to” or “played a role in” the respondent’s hiring decision.
66As noted above, the staff sergeant scored the applicant with a 2 out of 5 potential marks on the criterion “fluent in spoken English” in relation to the qualitative portion of the scoring for the presentation, while awarding all other candidates a score of 5 out of 5. Even if the staff sergeant’s consideration of the applicant’s accent was considered to be discriminatory and even if the applicant were awarded the same score as the other candidates on this criterion, this would have increased the staff sergeant’s individual total score for the presentation by three marks, or from a total individual score of 161 to a total individual score of 164. That, however, is only the staff sergeant’s individual score, not the consensus score for the presentation. There was much discussion at the hearing regarding how the consensus scores for the presentation were determined, and that this was not done simply on the basis of averaging the individual scores of the three assessors. However, an analysis of the consensus presentation scores across all candidates shows a very close correlation to the average of the three individual scores. While I appreciate that it may not have been the assessors’ intent simply to calculate the average of the three individuals scores when determining the consensus score, this appears more or less to be what the end result was, particularly for the three top candidates in the competition.
67On the basis of this analysis, an increase of three marks to the staff sergeant’s individual presentation score is more likely than not to have translated in an increase in one mark to the consensus score for the presentation. When translated into a percentage score (1/195 = 0.51%) and then applying the 30% weighting for the presentation (0.30 x 0.51 = 0.15), this would have increased the applicant’s total combined score for the competition from 70.36 to 70.51, which was still below the successful candidate’s total combined score of 70.52, albeit by only 0.01 points. Nonetheless, on the basis of the evidence before me, the respondent still would have regarded the successful candidate as the top candidate in the competition, even if the difference between his score and the next ranked candidate’s score was only 0.01 points. So even if the staff sergeant had awarded the applicant the same mark as all other candidates on the “fluent in spoken English” criterion, this would not have made a difference to the outcome of the competition.
68I also carefully considered whether the staff sergeant’s difficulty in understanding the applicant’s accent affected the scores awarded by the staff sergeant in relation to other aspects of the competition process, such as the content of the presentation, other aspects of the qualitative assessment of the presentation, or the interview marks. Having carefully reviewed the evidence regarding the staff sergeant’s individual scores as compared to the other assessors, I find that any such conclusion is not supported by the evidence.
69The staff sergeant’s score for the applicant on the content portion of the presentation was essentially in the middle between the other two assessors and consistent with the consensus score for the content portion (the director’s individual score was 80, the hiring manager’s individual score was 87, the staff sergeant’s individual score was 83, and the consensus score was 84). All assessors gave the successful candidate a higher score than the applicant for the content portion of the presentation, which I have found to be supported by the evidence for non-discriminatory reasons.
70In relation to the qualitative portion of the scoring for the presentation, if the “fluent in spoken English” criterion is taken out for all assessors, the staff sergeant actually awarded the applicant the highest individual score among the three assessors on this portion of the presentation scoring (the staff sergeant’s total individual score on this portion was 78 less the 2 marks for “fluent in spoken English” equals 76, while the director’s individual score was 76 less 4 for 72 and the hiring manager’s individual score was 79 less 4 for 75). While the staff sergeant did score the successful candidate higher on the qualitative portion of the presentation, his assessment that the successful candidate performed better on this portion of the presentation is largely consistent with the assessment of the director (the staff sergeant’s total individual score for the successful candidate on this portion was 89 less 5 marks for “fluent in spoken English” equals 84 for a difference of 8 points over the applicant, while the director’s individual score for the successful candidate on this portion was 83 less 5 marks for “fluent in spoken English” for a difference of 6 points over the applicant).
71On the interview portion of the competition, the individual marks awarded by the staff sergeant for the applicant’s answers to the interview questions were consistent with the individual marks awarded by the other two assessors, and with the overall consensus score for each question. With regard to the successful candidate, the staff sergeant appears to have given him individual marks on two of the interview questions that were lower than the other two assessors, and his individual marks otherwise were consistent with the other assessors and the consensus scores. As a result, the evidence before me does not demonstrate that, apart for the mark for “fluent in spoken English”, the applicant’s accent otherwise disadvantaged him in the competition in other aspects of the competition or in the interview; nor does the evidence demonstrate that the successful candidate was improperly advantaged by the staff sergeant’s difficulty in understanding the applicant’s accent.
72So, at the end of the day, I find that the evidence supports only that the applicant’s accent affected him on the individual score awarded for “fluent in spoken English”, which may have resulted in a 0.15 increase in his total competition score and would not have changed the outcome of the competition. In these circumstances, I simply cannot find that the staff sergeant’s consideration of the applicant’s accent, whether or not that was discriminatory, either “contributed to” or “played a role in” the respondent’s hiring decision. Thus, I cannot find that the applicant’s accent was a factor in the hiring decision in accordance with the principles set out in the Bombardier decision. As a result, it is not necessary for me to determine in the circumstances of this case whether consideration of the applicant’s accent in the context of this specific competition process was discriminatory, and I decline to do so.
Other issues raised by the applicant
73The applicant relies upon a memo prepared by the human resources staffing coordinator to allege that he was regarded as over-qualified for the position and that this was a factor in the hiring decision. This memo was prepared in the context of the applicant’s informal complaint about the competition to the respondent. The memo states that after the applicant’s initial inquiry regarding the outcome of the competition on December 19, 2011, the staffing coordinator was advised that the interview panel had concluded their deliberations and scoring, and she was contacted by the hiring manager to advise that the panel had identified three strong candidates and wanted to have an additional meeting / discussion with the top candidate to clarify the role and responsibilities of the position and to ensure the position clearly aligned with the candidate’s expectations. The staffing coordinator states: “One of the primary concerns the hiring group wished to address in identifying the right candidate was to find someone who would be qualified to perform and interested in the duties of the position, but not so qualified that they would come into the position and be disillusioned shortly afterwards if they felt they were over-qualified for the position.”
74The actual evidence before me regarding the post-interview meeting with the successful candidate was unclear. The primary purpose of this meeting was expressed to be to provide the successful candidate with the forms required to proceed further in the competition process and conduct the required background check. The hiring manager also testified that he wanted to ensure that the successful candidate understood the nature of the position, and was committed to it.
75I do not accept the applicant’s contention that the issue of whether he was “over-qualified” for the position entered into the hiring decision. On the evidence before me, and even on the basis of the staffing coordinator’s memo, it is clear that by the time of the post-interview meeting with the successful candidate, the deliberations and scoring from the competition had been concluded. Based upon those deliberations and scoring, the successful candidate was the top-ranked candidate from the competition. Even if one of the purposes of the post-interview meeting was to ensure that the successful candidate was fully aware of the nature of the position and was committed to the position, this does not change the fact that he had already been determined to be the successful candidate, subject to the results of the background check. The fact that the competition process had identified three strong candidates for the position, including the applicant, means only that if the successful candidate, after discussion about the nature of the position, decided to withdraw, there were other strong options from the competition to go to. The consistent evidence before me was that, if the successful candidate had decided not to accept the position or had failed the background check, then the position would have been offered to the applicant as the second-ranked candidate from the competition. Accordingly, I do not find that the issue of whether the applicant was “over-qualified” for the position entered into the hiring decision made by the respondent.
76The applicant also raised an issue that the respondent’s hiring materials consistently refer to the objective of hiring the “most qualified” candidate, whereas in the applicant’s view, the competition resulted in the respondent higher the “least qualified” candidate, or at least a candidate with less qualifications on paper than the applicant. There is no doubt that on paper, the applicant had superior academic credentials and police experience than the successful candidate. However, anyone who has been involved in a competition process that includes interview and practical exercise components has experienced situations where candidates with superior qualifications on paper have not performed as well at the interview and/or on a practical exercise. That appears to be what happened here.
77It is not the role or jurisdiction of this Tribunal to dictate to employers what specific hiring process they should use. The only issue for this Tribunal to determine is whether the evidence supports that a discriminatory factor played a role in or contributed to the hiring decision. Many employers, including the respondent, profess to want to hire the most qualified candidates. However, on the basis of the specific hiring process at issue in the instant case, a better statement of what the respondent actually does is as follows: the respondent screens in candidates for an interview on the basis of meeting the minimum qualifications for the position and being more relatively qualified than the screened out candidates, but actually makes its hiring decision on the basis of the candidates’ performance in the interview and practical exercise without further regard to their relative paper qualifications. This was a deliberate decision made by the respondent in terms of its hiring process, as evidenced by the policy memoranda before me. It is also a hiring process that is relatively common among many employers. Whether or not such a process succeeds in hiring the “most qualified” or the “best” candidate for the position, as opposed to hiring the candidate who simply performs best at an interview or on a practical exercise, is a matter of debate. But this is not a matter for this Tribunal to opine on, absent proof that a protected ground was a factor in the hiring decision.
78The applicant further alleges that the members of the interview panel had a “soft corner” for the successful candidate, which advantaged him over the applicant. By this, I take the applicant to mean that for reasons related either to the applicant’s race, colour, ethnic origin, citizenship, place of origin, creed and/or age, the members of the interview panel advantaged the successful candidate in the interview process by awarding him higher marks than the applicant. While, if proven, this would be a tenable allegation of discrimination, the fact is that upon a very thorough review of all aspects of the interview and practical exercise process, the evidence supports that the successful candidate delivered an objectively better presentation than the applicant, that there are valid non-discriminatory reasons for the relatively lower marks given to the applicant for his presentation (entirely apart from the “fluent in spoken English” criterion), and that the successful candidate gave an answer to interview question #5 (which is the only interview question challenged by the applicant) that was more in accord with the competency of the position that was being assessed by that question than the applicant’s answer. Accordingly, have carefully and thoroughly reviewed and considered all of the evidence before me, I do not find that any discriminatory bias in favour of the successful candidate entered into the marks awarded on either the presentation or the interview.
79The applicant also relies upon the respondent’s stated goal of ensuring that it has a workforce that reflects the diversity of the community it serves. At the hearing, there was some confusion regarding the precise policy in place at the relevant time. Ultimately, it was determined that at the relevant time, the respondent had in place a human rights and race relations policy that included the following provision: “[the respondent] will maintain a discrimination and bias free workplace, that reflects the racial diversity of the community at all levels, whether uniformed or civilian”. The applicant contends that, given that he and the successful candidate were in a virtual tie for top marks in the competition (70.52 vs 70.36), the respondent should have considered the fact that he is a member of a racialized group and awarded the position to him, and that its failure to do so was in violation of the Code.
80In this regard, the applicant relies upon this Tribunal’s decision in Tsemo v. York University, 2012 HRTO 2197. In that case, the collective agreement in place and applicable to the competition at issue expressly provided that, if there is a pool of candidates with substantially equal qualifications, then in certain circumstances where there is an under-representation of a particular group, preference is to be given to a member of that group. The problem with reliance on this decision is that there is no such policy or provision in place in relation to the respondent’s workforce. While there is a general statement of a goal of ensuring that its workforce reflects the diversity of the community it serves, there is no evidence before me of a policy or provision in place similar to the Tsemo case requiring the respondent to take account of equity considerations in the event of a virtual tie or candidates with substantially equal qualifications. The consistent evidence before me is that the offer is made to the top-ranked candidate based upon the weighted scores from the interview and practical exercise, regardless of how close the second-ranked candidate’s score may be. There is no evidence to contradict this.
81It is not this Tribunal’s role or jurisdiction when determining whether a respondent has violated the Code to assess whether a better process could be designed or put in place in order to achieve increased diversity. This Tribunal’s focus in deciding whether the Code has been violated is to consider the specific hiring process in place at the relevant time, and determine whether a protected ground was a factor in the hiring decision. In the instant case, for all of the reasons I have articulated above, I find that it was not.
82The applicant also notes that there was handwriting on his application documents highlighting that his address was in Brampton and a note stating “current status / situation??” This handwriting was not identified as being from any of the witnesses who testified before me, and is most likely that of the staffing coordinator. In my view, nothing is to be taken from this. The job was in Ottawa and the applicant lived in Brampton. There is no actual evidence before me as to what the staffing coordinator intended by the applicant’s “current status / situation”, but this could very well relate to the fact that he had applied for a job in Ottawa in August 2011 and the interviews were being arranged three months later in November 2011, and there may have been a question about his current residence. In any event, any such notations did not disadvantage the applicant in the screening process, as he was awarded an interview, and I already have found that there were valid, non-discriminatory reasons for the applicant not being scored as the top-ranked candidate in the interview and presentation process.
83The applicant also takes issue with a letter written by the Director General of the respondent in response to his internal complaint about the competition, which he alleges was fabricated. In response to the applicant’s internal complaint, the Director General wrote a letter to the applicant dated March 1, 2012. The evidence before me indicates that this letter was e-mailed to the applicant on March 2, 2012. The applicant states that he did not receive this letter, and so made inquiries of the respondent regarding the status of his internal complaint. Specifically, the applicant contacted the Chair of the respondent Police Services Board on March 14, 2012, and received a reply from the Chair on March 19, 2012 stating that the Chief of Police was aware of the applicant’s complaint and that the matter was being reviewed by the Director General. The respondent’s internal e-mails show that the Chair’s concern was forwarded to the appropriate staff within the respondent police service. These internal e-mails make it clear that the applicant’s complaint had already been responded to by the Director General, and resulted in a further letter being sent to the applicant dated April 2, 2012. In my view, there is simply no support for an allegation that the Director General’s March 1, 2012 letter was fabricated, nor does this have any bearing on the issue before me.
84The applicant also makes reference to remarks during the interview attributed to the director to the effect that the applicant was a “highly unusual person”. While there is some dispute between the parties as to the specific point in the interview when this comment was made, there is no real dispute that the director made this comment. However, there also appears to be no dispute that this comment was made in the context of the director asking about the very high levels of education achieved by the applicant and the support he appears to have received from the Pakistani Police Service in pursuing his education. It is fair to say that, in the context of policing, an officer with the levels of education achieved by the applicant is indeed highly unusual. In my view, there is no evidence before me to support that this was a negative or discriminatory comment to the applicant, nor is there any basis in the evidence to support that this comment played any role in the hiring decision at issue.
85Finally, the applicant states that at the end of the interview, he was asked by the director whether he would accept the position if it was offered to him. The director’s evidence is that this is a common question asked of all candidates at the end of an interview, in order to ensure that, having now had a better chance to understand the nature of the position, the candidate was still interested. The director’s evidence is that this was not in any way an indication that the interview panel had already decided to offer the position to the applicant. In my view, it would make no sense for the director’s question to indicate that a decision already had been made, given that the panel was only partway through the interview process, had not even discussed their consensus scoring for the applicant’s interview, and had not finalized the scoring for all candidates. I take nothing from this question having been asked.
ORDER
86For all of the foregoing reasons, the Application is dismissed.
Dated at Toronto, this 26th day of October, 2016.
“Signed By”
Mark Hart
Vice-chair