Christopher v. Toronto (City), 2016 HRTO 285

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Desmond Christopher Applicant

-and-

City of Toronto, Ryan Garnett and Andrew Lyszkiewsicz Respondents

-and-

City of Toronto Administrative Professional Supervisory Association (COTAPSA) Affected Party

INTERIM DECISION

Adjudicator: Bruce Best Date: March 3, 2016 Citation: 2016 HRTO 285 Indexed as: Christopher v. Toronto (City)

WRITTEN SUBMISSIONS

Desmond Christopher, Applicant Self-represented

City of Toronto, Ryan Garnett and Andrew Lyszkiewsicz, Respondents Amandi Esonwanne, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of age contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code").

2The applicant is a long-term employee of the respondent City. He applied in two job competitions, but was "screened out" and not given an interview in either. The first was a December 2014 competition for the position of Manager of Geospatial Data Integration & Access ("the first competition"), and the second was a May 2015 competition for the position of Supervisor, Land Base Maintenance ("the second competition"). The applicant alleges that he was screened out due to his age. The respondents take the position that the applicant was screened out because he lacked the appropriate experience, qualifications and competencies for the positions. No one was hired in the second competition, and the same position was subsequently re-posted after this Application was filed ("the third competition"). The applicant did not apply for the third competition.

3The parties have raised a number of procedural issues, including a request from the respondents for the Tribunal to hold a summary hearing and a request for removal of two of the individual respondents, Lan Nguyen and Andy McGhie. The applicant is also seeking an order for production of documents, including an order requiring the respondents to comply with Rule 16.1 of the Tribunal's Rules of Procedure.

Request to Remove Individual Respondents

4Rule 1.7(b) of the Tribunal's Rules provides that the Tribunal may add or remove a party. In Sigrist and Carson v. London District Catholic School Board, 2008 HRTO 14 ("Sigrist") at para. 42, the Tribunal held that where there is an organizational respondent who is able to respond to or remedy an alleged Code breach, and where there is no issue as to deemed or vicarious liability, an individual respondent should not be named absent some compelling juridical reason. The Tribunal further expanded on these principles in Persaud v. Toronto District School Board, 2008 HRTO 31 ("Persaud") at para. 5, where the Tribunal noted that a compelling reason may include where the conduct of the individual is a central issue, or where the nature of the alleged conduct may make it appropriate to order a remedy personally against that individual.

5In considering whether any compelling reason exists to continue the proceeding against a personal respondent, one way of approaching this question is to ask whether it is necessary to involve this person as a party in order to have a fair, just and expeditious resolution of the merits of the application.

6The respondents submit that at all times Nguyen and McGhie were working within the scope of their jobs and that neither was involved in the decision to screen out the applicant from the job competitions. The respondents note that Nguyen was involved only to the extent that she approved the job descriptions used for the posting of the competitions. The City is not taking the position that these respondents were acting outside the scope of their duties for the purposes of Code s.46.3(1), and also takes the position that the City can implement any remedial order the Tribunal may grant whether they are parties or not.

7The applicant did not address the respondents' request to remove the two individual respondents.

8In my view, in light of the factors adopted in Sigrist and Persaud, it is not necessary to involve either Nguyen or McGhie as individual respondents in order to have a fair, just and expeditious resolution of the merits of the Application. If it should be necessary, they may be called as witnesses; that, however, does not require them being named as parties. The respondents' request to remove them as individual respondents to the Application is therefore granted. The style of cause shall be amended accordingly.

Summary Hearing Request

9Rule 19.5A of the Tribunal's Rules of Procedure states:

19.5A Upon review of the Request and any Response to the Request, the Tribunal will determine whether to hold a summary hearing on the question of whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application will succeed. The Tribunal need not give reasons for a decision to hold or not to hold a summary hearing following a party's request.

10The respondents' request for a summary hearing is refused. Pursuant to Rule 19.5A of the Tribunal's Rules of Procedure, reasons need not be given for a decision not to hold a summary hearing.

Disclosure of Documents

Rule 16.1

11The respondents did not comply with Rule 16.1, on the basis that they had requested a summary hearing. The timelines under Rule 16.1 may be extended by agreement between the parties, but they are not extended simply because a party is seeking some other relief. The respondents have now apparently provided a number of documents to the applicant, however, it is not clear that the documents disclosed constitute all of the arguably relevant documents within their possession for the purposes of Rule 16.1 The respondents are ordered to comply with Rule 16.1 within 7 days of the date of this order.

Applicant's Request for Production

12The applicant sought disclosure of a number of specific documents, by letter and, when not provided, by filing a Request for an Order during Proceedings. Some of these documents have now been provided, including copies of his performance evaluations and email communication between himself and his supervisor respecting the qualifications for the second competition. The respondents have additionally provided the screening forms used to determine which candidates would obtain interviews in the first and second competitions; the applicant has indicated that he does not believe the screening forms are sufficient to satisfy his request for production.

13The outstanding documents the applicant is seeking are:

1. A copy of the CV/resumé of the human resources consultant involved in the screening processes for the job competitions
2. The CVs/resumés and application materials of those individuals "screened in" for the competitions, internally and externally
3. The CVs/resumés and application materials of the successful candidates (other than for the May 2015 competition, for which no one was hired), and
4. Information respecting the composition of the interview panels, questions asked and/or presentations requested of and made by each candidate.

14The respondents object to producing the above documents on the basis of relevance, and that the documents contain personal information involving third parties. The respondents further claim that the applicant's request is a "fishing expedition."

15In the present case, the allegation is that the applicant was screened out and not given an interview for the positions because of his age. The test generally applied to establish a prima facie case of discrimination in promotion/hiring cases was set out by the Tribunal in Shakes v. Rex Pak Ltd. (1981), 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001, as quoted in Reiss v. CCH Canadian Limited, 2013 HRTO 764 ("Reiss"), at para 61:

The issue of the relative qualifications of the people who applied for the job is of relevance because if the applicant were clearly less qualified than the other job applicants it would be hard to establish that the reason he wasn't interviewed was age discrimination. In Clennon v. Toronto East General Hospital, 2009 HRTO 1242 described [sic] the test for establishing a prima facie case of discrimination in a case such as this, at paragraph 75:

The classic statement of what is required to establish a prima facie case of discrimination in a circumstantial evidence case pertaining to hiring or promotion was articulated by this Tribunal in Shakes v. Rex Pak Ltd. (1981), 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001 at para 8919. Essentially, in these kinds of cases, a prima facie case is established by proving the following:

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

b) that the applicant was not hired; and

c) that someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position.

16In the present Application, it is not who was hired but who was screened in that is relevant; however, otherwise the above test is applicable to determining what disclosure is required.

17Widdis v. Desjardins Group/Desjardins General Insurance, 2012 HRTO 1906 ("Widdis") was also a case involving a screening prior to in-person interviews. In that case, the Tribunal ordered production of documents related to the 'screened in' candidates, including the applications/resumes, notes/records relating to the evaluation of the candidates, checklists, and internal/external correspondence regarding the job competition. The Tribunal noted at para 11:

Having considered the applicant's Request for production, I find that the documents sought are relevant to the issues in the pleadings. Specifically, the documents sought are arguably relevant to the defences raised by the respondent which allege that the successful candidates had experience that the applicant did not possess. I find that the other documents sought which relate to the job competition itself are also arguably relevant.

First and Second Competitions

18The relative qualifications of the individuals screened into the competitions in which the applicant participated are arguably relevant in order to determine whether the applicant did in fact lack the necessary qualifications and experience. As in Widdis, I find that the CVs/resumés and application materials of those individuals "screened in" for the first and second job competitions are arguably relevant and should be produced. To protect the privacy of the individuals, the respondents should redact the documents to remove personal information, including names, contact information and addresses. Once the respondents have provided the above, should the applicant believe personal information about any of the screened in applicants is necessary for the proper hearing of this matter, he may seek an order for production of such information.

Third Competition

19The applicant did not participate in the third competition, which as noted above occurred because no successful candidate was found in the second competition. I agree with the respondents that information relating to the third competition is not arguably relevant to the question of whether the applicant was screened out of the earlier competitions.

Successful Candidates

20The applicant is also seeking the CVs and resumés of the successful candidates in the first and third competitions. As the successful candidate was presumably screened into the first competition, this information will already be provided with respect to my order above. As information respecting the third competition is not relevant, it need not be disclosed.

Composition of Interview Panels and Interview Questions

21The applicant is also seeking details about the interview process itself. The issue in the Application, however, is with respect to the initial screening, not the subsequent interview process. At this point, it is not apparent that the information sought is relevant. However, depending on the information disclosed, it is possible that this information may become relevant, in which case the applicant may renew his request in the future.

Human Resources Consultant

22With respect to the CV/resumé of the human resources consultant, I do not see her qualifications as arguably relevant to the issue of whether the applicant was screened out due to his age. This request is refused.

Confidentiality of Documents

23I have ordered the respondents to disclose information which contains personal information relating to third parties. I draw the parties attention to Rule 3.3 of the Tribunal's Rules of Procedure, which states:

Confidentiality of Documents Disclosed Under These Rule

3.3 Parties and their representatives may not use documents obtained under these Rules for any purpose other than in the proceeding before the Tribunal.

24As noted in Konesavarathan v. Middlesex London Health Unit, 2015 HRTO 1698, the above rule exists in recognition of the fact that though personal information of third parties may need to be disclosed during legal proceedings, such disclosure should still respect to the extent possible the privacy interests of those individuals.

Order

25The Tribunal orders as follows:

a. Lan Nguyen and Andy McGhie are removed as respondents, and the style of cause will be amended accordingly

b. The respondents' request for a summary hearing is refused.

c. Within 7 days of the date of this Order, the respondents shall:

i. Comply with Tribunal Rule 16.1 and deliver to the applicant all arguably relevant documents in their possession and file a Form 23 with the Tribunal.

ii. In particular, without limiting the above, the respondents shall produce copies of the following documents to the applicant:

1. the applications and CV/resumés of all candidates screened in for the December 2014 competition for the position of Manager of Geospatial Data Integration & Access, and
2. the applications and CV/resumés of all candidates screened in for the May 2015 competition for the position of Supervisor, Land Base Maintenance.
3. The respondent may redact confidential information about the candidates including their names, home address and/or telephone number or other contact information.

26I am not seized.