Human Rights Tribunal of Ontario
B E T W E E N:
Kovarthanan Konesavarathan Applicant
-and-
Wellington-Dufferin-Guelph Public Health Respondent
DECISION
Adjudicator: Bruce Best
Indexed as: Konesavarathan v. Wellington-Dufferin-Guelph Public Health
APPEARANCES
Kovarthanan Konesavarathan, Applicant
Self-represented
Wellington-Dufferin-Guelph Public Health, Respondent
Neil Ornstein, Counsel
Introduction
1This Application alleges discrimination in employment because of race, colour, place of origin, ethnic origin, and citizenship contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application was filed on July 14, 2015.
2The applicant is originally from Sri Lanka. He trained as a medical doctor in Russia, following which he practiced medicine in Sri Lanka. He emigrated to Canada in 2009. In 2011, he had experience working through Médecins Sans Frontières / Doctors Without Borders in Zimbabwe. He obtained a Master of Public Health (“MPH”) degree from Western University in August 2014.
3Between July 2014 and May 2015, the applicant applied for four different contract positions with the respondent. He was not given an interview. The applicant claims that this was due to discrimination based on his race or place of origin, in particular because some of his qualifications were discounted as they were not “Canadian experience.” He characterizes this as discrimination in the hiring decision. He further alleges that there were other indicators of a discriminatory attitude towards racialized immigrants by the individuals involved in the hiring process. He argues that even if there is a finding that his not being given interviews was not discriminatory, that he was nonetheless adversely affected by this alleged discriminatory attitude.
4For the allegations respecting “Canadian experience”, the central allegation is discrimination on the basis of place of origin, and I will refer to it as such. With respect to the allegations of racial discrimination, I will refer to such allegations collectively as related to his “race”. My analysis, however, applies equally to all the Code grounds raised.
5For the reasons set out below, after a consideration of all the evidence, I find that the applicant has not been able to establish that he has been subject to discrimination in any respect in any of the job competitions, in either the decisions not to give him an interview or otherwise in the hiring process, and the Application must therefore be dismissed.
Procedural History
June 2016 Request to Amend Application
6On June 17, 2016, six weeks prior to the first scheduled hearing date, the applicant filed a Request for production of documents and particulars, and to amend his Application to include the grounds of disability, citizenship, and sex (gender). I granted the request to add citizenship, refused to grant the request to add disability and sex, and granted some of the applicant’s requests for production of documents and/or particulars, with reasons set out in Interim Decision 2016 HRTO 947 (the “July 2016 Interim Decision”).
July 2016 Request to Amend Application
7As noted in the July 2016 Interim Decision, the applicant had filed a further Request on July 14, 2016. This Request was addressed as a preliminary issue on the first day of hearing, August 3, 2016.
8The applicant first requested that he be permitted to argue that the conduct of the respondent amounted to systemic discrimination, based on an intersectionality of race, gender and disability. I refused to allow this amendment for the same reasons put forward in the July 2016 Interim Decision. The applicant did not provide any reason why this issue was not put forward earlier, and raising it less than three weeks before the first date of hearing would have been unfair to the respondent, and would have unduly expanded the scope of the hearing.
9Second, the applicant reiterated his request to add sex (gender) as a ground, based on the disclosure he obtained from the respondent which indicated that almost all of the candidates given an interview were female. I again refused to grant the amendment due to the lateness of the request. As noted below, however, even if the amendments had been granted, the result would have been the same.
10Third, the applicant sought to bifurcate the hearing on the issue of liability and remedy. I noted that the applicant was not seeking unusual or complex remedies, and as it appeared there may be minimal evidence with respect to remedy, I determined that it was not necessary or appropriate to bifurcate the hearing.
11Fourth, the applicant also asked that the parties be permitted to make closing submissions in writing. This request was not opposed. I indicated that this request would be addressed after hearing the evidence. As noted below, I permitted the parties to make written submissions.
12Fifth, the applicant asked to be permitted to present evidence not directly relating to his job applications, but related to his participation as a volunteer on certain of the respondent’s committees, in particular the Oral Health Action Committee and Research and Knowledge Mobilization Committee. I permitted him to do so, as the evidence related to the applicant’s previous interaction with two of the individuals who were involved in the hiring decisions, Jennifer MacLeod and Randalin Ellery. The applicant also raised issues respecting discriminatory treatment by the respondent while on those committees. I ruled, however, that as such allegations were otherwise out of time, having occurred more than a year before the applicant sought to amend the Application in July 2016, they could not independently form a basis for allegations of discrimination, and were being allowed to be put forward only as background evidence to provide context to the timely allegations. I heard evidence respecting the applicant’s involvement with these committees, but I do not find that this evidence had any bearing on the allegations before me except as specifically addressed below.
13Last, the applicant sought to add Jennifer MacLeod as an individual respondent, for several reasons. First was because of her allegedly discriminatory treatment towards him while he was on the committees, referred to above. Second was the applicant’s conclusion, based on the witness statements filed by the respondent prior to the hearing, that she was involved in the later job competitions. He argued that she should therefore be added as an individual respondent on the basis of discoverability. Third, he argued that as a publically funded organization it should not have to pay for her discriminatory conduct. The allegations of a racial animus towards the applicant are levelled particularly at Ms. MacLeod.
14I refused this request. I held that the applicant had not met the test in Persaud v. Toronto District School Board, 2008 HRTO 31, nor s. 46.3 of the Code.
15There was no basis to add Ms. MacLeod as an individual respondent due to her alleged treatment of the applicant while on the committees, given that I had refused, on the basis of delay, the applicant’s request to amend his Application to include those allegations. Second, the only indicator the applicant had to support his belief that Ms. MacLeod was involved in the later job competitions was the similarity of the wording used in the witness statements of Ms. MacLeod and Ms. McCorriston. It appeared, however, that the similarity was because both witness statements had been drafted by counsel for the respondent, and both were respecting the evidence to be given on the witnesses’ opinions of the clarity of the same document, the applicant’s résumé. Where parties are represented, witness statements are generally drafted by counsel, and I do not see the similarity in wording to be an indicator of anything other than they were both written by the same person about the same subject. Third, the applicant’s desire that the individual respondent should have to pay personally was not sufficient to justify her being added as an individual respondent. While the applicant took the position that Ms. MacLeod harboured a discriminatory attitude towards him, this was simply speculation. There was nothing that could have supported a finding that Ms. MacLeod was acting in any manner beyond the regular course of her duties. Additionally, there is no issue here, such as in Ontario Human Rights Commission v. Farris, 2012 ONSC 3876 (Div. Ct.), where failure to include the individual respondent would affect the ability of the applicant to obtain a remedy if ultimately successful, as the respondent was willing to accept any liability should her actions be found to be discriminatory.
16A total of seven hearing days were held from August 2016 to February 2017. The applicant testified on his own behalf over two-and-a-half days, was cross-examined by the respondent, and called no additional witnesses. The respondent called four witnesses. Jennifer MacLeod, the respondent’s Manager, Health Analytics & Health Promotion at the relevant times, who conducted the initial screening for the first two job competitions. Randalin Ellery was the Coordinator of the Poverty Elimination Task Force, and, with Jennifer MacLeod, conducted the initial screening for the Assistant Coordinator position. Both Randalin Ellery and Jennifer MacLeod were involved in the two committees, referred to above. The third respondent witness was Jennifer McCorriston, the respondent’s Manager, Chronic Disease, Injury Prevention & Substance Misuse, who conducted the initial screening for the third competition for a Health Promotions Specialist in May 2015. The final witness from the respondent was Elizabeth Bowden, the respondent’s Interim Director, Human Resources & Corporate Services, who was involved in the May 2015 job competition for the position of Emergency Planning and Health and Safety Officer.
January 2017 Request to Recuse
17On January 11, 2017, five weeks before the matter was scheduled to resume for the last two days of evidence, the applicant filed a Request that I recuse myself. For the reasons given in Interim Decision 2017 HRTO 199 (the “February 2017 Interim Decision”), I refused the Request. Given my ruling, the hearing of evidence proceeded on February 22, and concluded on February 23, 2017.
Written Closing Submissions
18The parties agreed to a timetable for providing written submissions, which was extended for both parties, on consent, several times, and which were completed on May 23, 2017.
Procedural Fairness
19In his closing submissions, the applicant raised a number of concerns or objections respecting my earlier rulings, and also made a number of allegations with respect to procedural fairness during the course of the hearing.
Scope of hearing
20First, he argues that the decision in the July 2016 Interim Decision not to permit him to amend his application caused him prejudice. The applicant argues that by refusing to grant the amendment, I prevented him from addressing the real underlying issue, namely that the discrimination he faced was based on the intersectionality of race and gender. He argues that the proceedings were therefore unfair.
21Despite my ruling, the applicant continued to raise gender throughout the proceedings. Though he was reminded that gender was not before me as one of the grounds of discrimination, even if it had been, my findings below that the applicant has not been able to establish discrimination in the hiring process would be the same. The applicant has not been able to establish that he was qualified for the positions, or, if he was, that the candidates selected for interviews were no better qualified. Rather, I have found that regardless of their race, their gender, or any other Code ground, the candidates selected for an interview were better qualified for the specific positions.
Allegations respecting opposing counsel
22Second, he claims procedural unfairness or bias as, during the hearing, he was “extremely scrutinized and very frequently interrupted” by respondent counsel. The applicant also claimed that neither I nor respondent counsel had an understanding of human rights principles. He suggests that this was the cause of the allegedly frequent interruptions.
23Contrary to the applicant’s suggestion, however, I do not agree that counsel for the respondent interrupted the applicant frequently. He did make objections where he felt it was appropriate; some of the objections I allowed, some I did not. It is not clear what the applicant means by his being “extremely scrutinized”, but it has to be recognized that these are adversarial legal proceedings. Scrutinizing the evidence or submissions of the other party is how the system works. Though, as the applicant has indicated, he is not legally trained, he appeared to well understand this – he very thoroughly scrutinized the evidence of the respondent’s witnesses in cross-examination.
24With respect to the allegation respecting a lack of understanding of human rights principles, this argument was also raised in the context of the applicant’s Request that I recuse myself, and is addressed in the February 2017 Interim Decision. As noted in para. 14 of that decision, if the applicant believes that my rulings or decisions are not reasonable, he is entitled to raise such issues on judicial review.
Overview of job competitions
25The applicant applied in the following four job competitions. The positions were as follows:
Health Promotion Specialist (Temporary) (2 positions) (July 2014);
Assistant Coordinator, Poverty Elimination Task Force (Temporary) (January 2015);
Health Promotion Specialist (Temporary); (May 2015);
Emergency Planning and Health and Safety Officer (June 2015).
Health Promotion Specialist – July 2014
26The first position was the Health Promotion Specialist (“HPS”) contract position which the applicant applied for in July 2014. There were 112 candidates, four of whom were granted interviews. The initial screening of résumés was done by Jennifer MacLeod. Ms. MacLeod testified that she did not select the applicant for an interview because he did not have sufficient experience compared to the four candidates who were ultimately interviewed. However, as addressed below, he also had not, at the time he applied for the job, completed his Masters of Public Health. The evidence before me also confirmed that the respondent’s policy was that even if he had been otherwise qualified, he would not have been offered an interview because he did not have the requisite educational qualifications.
Assistant Coordinator, Poverty Elimination Task Force – January 2015
27The second position, the Assistant Coordinator for the Poverty Action Task Force, was a part-time one-year contract. The applicant applied in January 2015. There were approximately 100 candidates, six of whom received interviews. The respondents indicated that the primary qualifications for the job were excellent skills in social media, written communication, and editing. The applicant did not strongly argue that his qualifications in these fields were as good or better than the successful candidates. His primary challenge was to whether they were in fact essential duties of the job, and whether the level of proficiency in English had been inflated in order to exclude candidates whose first language was not English. The initial screening for this position was conducted by Jennifer MacLeod and by Randalin Ellery.
Health Promotion Specialist – May 2015
28The third position the applicant applied for was another HPS position in May 2015. This position was advertised as being focussed on tobacco prevention work. There were 70 applicants, four of whom were given interviews. All four had listed in their job applications experience with substance misuse or tobacco prevention public health work. The applicant’s résumé did not list any such experience. The screening for this position was done by Jennifer McCorriston.
Emergency Planning and Health and Safety Officer – June 2015
29The final position the applicant applied for was Emergency Planning and Health and Safety Officer. 27 individuals applied, and four were given interviews. The applicant was screened out automatically, without his résumé being reviewed, as he did not have Canadian Registered Safety Professionals (“CRSP”) certification, which the respondent considered as a prerequisite for the position. The applicant argued that the respondent should have conducted an individualized assessment of whether he had the skills required for the job, rather than requiring this specific certification, and that this requirement excluded him based on his place of origin.
30The applicant argued that, but for the CRSP certification, he was better qualified for the position than the four individuals who obtained an interview. However, his argument in this respect rested largely, as with the Assistant Coordinator position above, on his disagreement with the respondent about what the essential duties of the job should have been. He believed that the primary and most important part of the job was emergency planning, rather than health and safety. The respondent disagreed, and indicated that a central part of the job was with respect to meeting the respondent’s obligations under the Occupational Health and Safety Act. Elizabeth Bowden testified on behalf of the respondent with respect to this job competition.
Legal Framework
31The relevant provisions of the Code are ss. 5, 9, 10, and 11:
(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.
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
(1) In Part I and in this Part,
“equal” means subject to all requirements, qualifications and considerations that are not a prohibited ground of discrimination;
- (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.
(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.
32Much of the analysis below is based on how the applicant has interpreted s.11(1) and (2).
Burden of proof
33The applicant bears the burden of proving, on the balance of probabilities, that his race or place of origin was a factor in his failure to be selected for an interview, or that he was otherwise subject to discrimination in the hiring process. See Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 109, and Peel Law Association v. Pieters, 2013 ONCA 396 (“Pieters”) at para. 34. Direct evidence of discrimination, though it of course may be relied on, is not necessary, and particularly with respect to allegations of racial bias the available evidence will more often be proven by circumstantial evidence. See Pieters, at para. 111. It is also important to bear in mind that not all adverse treatment is the result of discrimination. As stated in Villella v. Brampton (City), 2011 HRTO 1085 at para. 10:
The Code is not designed to remedy all instances of differential treatment, poor service delivery or professional misconduct. The alleged treatment must be linked in a substantive way to a Code ground. The applicant must show more than mere subjective suspicion to establish a link between the respondent’s alleged conduct and the grounds pleaded. There must be at least some objective facts and circumstances to support the theory linking the respondents’ action with the Code.
34The possibility of discrimination, or speculation as to what occurred and why, is not sufficient. In order to prove a violation of the Code, the onus is on the applicant to prove his case on the evidence. If the applicant is unable to do so, the Application must be dismissed.
Prima Facie test
35In Stewart v. Elk Valley Coal Corp., 2017 SCC 30 (“Stewart”), Gascon J. set out the principles of what is required to establish a prima facie case of discrimination. Though the majority did not agree with Gascon J.’s conclusions and the application of the principles to the facts of that case, there was a consensus on the principles themselves. Gascon J. summarized the test as follows, at para. 69:
It is undisputed that the basic test for prima facie discrimination involves three steps, namely, (1) the complainant having a protected ground under the relevant human rights legislation (which I will call a “ground”, here drug dependence); (2) the complainant suffering disadvantage (which I will call “harm”, here Mr. Stewart’s termination); and (3) the ground being “a factor” in the complainant’s harm (which I will call “contribution”): Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789 [“Bombardier”], at para. 35; Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360, at para. 33.
36In Bombardier, the Supreme Court addressed what it means for a prohibited ground to be a “factor” necessary to establish discrimination. The Court clarified, at paras. 43-52, that a close relationship is not required, and that it is not necessary to establish a causal connection in order to prove discrimination. Rather, all that is necessary is to prove, on the balance of probabilities, that there is simply a connection between the prohibited ground and the adverse treatment, or, in the words of Gascon J. in Stewart, that the prohibited ground “contributed” to the adverse treatment. Most claims of discrimination will turn on whether the applicant can establish such a connection, as does the present case.
37The prima facie analysis, it should be noted, is not necessarily required, particularly in a case such as this where there has been a full hearing on the merits. It is, nonetheless, often useful as an analytical tool to consider whether the applicant has met the test, as noted by the Court of Appeal in Pieters, at paras. 82-84, as follows:
… A prima facie case framework in the discrimination context is no different than that used in many other contexts. Its function is to allocate the legal burden of proof and the tactical obligation to adduce evidence. It governs the outcome in a case where the respondent declines to call evidence in response to the application.
On the other hand, in a case where the respondent calls evidence in response to the application, the prima facie case framework no longer serves that function. After a fully contested case, the task of the tribunal is to decide the ultimate issue whether the respondent discriminated against the applicant. After the case is over, whether the applicant has established a prima facie case, an interim question, no longer matters. The question to be decided is whether the applicant has satisfied the legal burden of proof of establishing on a balance of probabilities that the discrimination has occurred.
Nevertheless, in cases that have been fully contested some human rights tribunals still employ the prima facie case framework as an analytical tool to structure and order their consideration of the evidence. Their analysis follows the order in which evidence is called even though all the evidence is in. Tribunals that use such an approach find it useful first to satisfy themselves that the record contains sufficient evidence to support a finding of discrimination before turning to consider evidence that might counter the inference of discrimination or establish a statutory defense.
38See also Blakely v. Queen’s University, 2012 HRTO 1177 at para. 48.
39It is also important to note that unless the applicant can prove that a particular practice, job qualification or requirement was discriminatory, there is no need for me to consider whether the requirement is bona fide, or whether changing the requirement could be done short of undue hardship. As stated by Abella J. in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4, [2007] 1 SCR 161 (“McGill”), at para. 64:
On the facts and the findings of the arbitrator, the claimant did not establish prima facie discrimination. Absent this, the employer is not called upon to justify the standard or its conduct.
Shakes Test
40The specific test for establishing a prima facie case of discrimination generally applied in a case such as this is the test from Shakes v. Rex Pak Limited (1981), 1981 CanLII 4315 (ON HRT), 3 CHRR D/1001 (the “Shakes test”). That test was restated in Ogunyankin v. Queen’s University, 2011 HRTO 1910 (“Ogunyankin”), at para. 95. I would restate it again to fit the circumstances of this case, as follows:
a) That the applicant applied for and was denied the position;
b) That the applicant has one or more Code-protected personal characteristics;
c) That the applicant was qualified for the position;
d) That another candidate, no better qualified than the applicant, obtained the position, and
e) That the other candidate does not share the same Code-protected personal characteristics that are the basis of the alleged discrimination.
41The Tribunal has noted, as in Nelson v. Lakehead University, 2008 HRTO 41 at paras. 34-36, that the Shakes test is only one approach to look at evidence that may, if believed and not satisfactorily explained by the respondents, lead to a finding of discrimination. The question at the end of the day remains whether the applicant has been able to establish that he was subject to discrimination on the balance of probabilities. I do recognize that this test will not be helpful in every case. However, I find that the Shakes test is a useful analysis appropriate to determine whether the applicant has made out a case of prima facie discrimination in the present case.
Commission Policy
42Substantial portions of the applicant’s submissions rest on his interpretation of a number of Ontario Human Rights Commission policies. He specifically referred to passages from the Commission Policy and guidelines on racism and racial discrimination (June 9, 2005; revised December 2009) (“Racism policy”), the Policy on Removing the “Canadian experience” Barrier (February 1, 2013) (“Canadian Experience policy”), and the Policy on discrimination and language (June 1996) (“Language policy”).
43The Racism policy identifies several indicators of subtle racial discrimination which the applicant argued were relevant based on the evidence in the present case. The policy does specifically indicate these may be “on-the-job” indicators of discrimination. However, given that they have formed the backbone of the applicant’s arguments in this case, I will consider them below to determine whether the applicant has been able to put forward any evidence that may support his argument that I should infer discrimination in the hiring process or decisions. The Racism policy states, at pp. 21-22:
On-the-job, the following types of treatment may be indicative of racial discrimination:
exclusion from formal or informal networks
denial of mentoring or developmental opportunities such as secondments and training which were made available to others
differential management practices such as excessive monitoring and documentation or deviation from written policies or standard practices when dealing with a racialized person
disproportionate blame for an incident
assignment to less desirable positions or job duties
treating normal differences of opinion as confrontational or insubordinate when involved with racialized persons
characterizing normal communication from racialized persons as rude or aggressive
penalizing a racialized person for failing to get along with someone else (e.g. a co-worker or manager), when one of the reasons for the tension is racially discriminatory attitudes or behaviour of the co-worker or manager.
In some instances, a non-discriminatory explanation may be available for such treatment. However, subjective explanations such as “bad attitude” or undocumented “poor performance” will be received with caution. It is therefore in an organization’s best interest to engage in good human resources practices, such as documented progressive performance management of all employees.
44Many of the policies contain “best practices” for employers to avoid discriminatory actions. The respondent in this case has, in my view, implemented a number of those best practices. It had not adopted all of them, and the applicant in general pointed to situations where the employer did not follow the Commission policies to the letter as an indicator that the process may therefore have been discriminatory.
45In Ogunyankin at paras. 118-119, where a similar argument was made, the Tribunal noted that the Commission is careful to say that a failure to follow formal policies “may” result in racial discrimination. Such a failure, or a failure to adopt the “best practices” set out in Commission policy, however, is not sufficient in and of itself to base a finding of discrimination. There must be evidence to demonstrate that the failure to follow those best practices did in fact have an adverse impact on the applicant because of a Code ground.
46As noted in the February 2017 Interim Decision at paras. 21-22, I made it clear to the applicant during the course of this hearing that Commission policy was not, itself, evidence on which a finding of discrimination could be based. A similar observation, which I would find is equally apt here, was later made in Konesavarathan v. Middlesex London Health Unit, 2017 HRTO 454 (“Konesavarathan v. Middlesex”), another case involving the applicant, at para. 141, where the Vice-chair stated:
Much of what the applicant included in his closing submissions and his evidence was a recitation of Human Rights Commission’s policy, and did not necessarily spring from his experiences with the respondent. As a result, for some of the applicant’s assertions there simply was no evidence.
47The existence of discrimination and the historical disadvantage based on Code grounds is very real. However, the fact that discrimination exists is not proof of discrimination or disadvantage in a particular case. As noted in Keith v. College of Physicians and Surgeons of Ontario, 2013 HRTO 1646 at para. 44:
One looks to historic disadvantage to understand the impact of the differential treatment, not to eviscerate the need to prove current disadvantage in the specific case.
48I will review the specific evidence which the applicant claims supports an inference of discrimination, below. I find, however, that the applicant has not been able to establish that any of the indicators of discrimination identified in the Commission policies exist in this case.
Exclusion from formal or informal networks
49The applicant claims that some candidates in the 2014 Health Promotion Specialist competition were given greater consideration in the initial review by Jennifer MacLeod because they had previously worked or had placements with the respondent. He suggested that showing preference for such candidates created a barrier for racialized candidates or immigrants who may be less likely to obtain such placements, or who may face barriers in being admitted to educational programs. He specifically pointed to one candidate, “A.”, who the applicant assumes was white, for whom Ms. MacLeod made a positive notation that he had done a practicum with the respondent as part of his Masters of Public Health.
50The respondent pointed out that there was no evidence before me that the applicant himself had faced any such barriers in either accessing educational programs or practicums. The applicant had, as noted, completed a Master of Public Health degree in Ontario himself, and did a practicum with another health unit (see Konesavarathan v. Middlesex, above).
51Though I agree that an individual could face barriers in obtaining positions or experience where an employer favours those candidates they already know, there was no evidence the respondent’s formal or informal networks, such as student placements or volunteers, excluded or preferred individuals based on any Code ground. The respondent noted that there were a number of candidates who had previously completed practicums, or who had otherwise worked for the respondent, some of whom were racialized, some who were not. It notes that A., the “white” candidate the applicant pointed out, was not, in fact, given an interview. It notes that another candidate, who was racialized and an immigrant to Canada, who Ms. MacLeod also gave a positive notation because of her prior involvement with the respondent, was ultimately the person hired.
52At the end of the day, what the applicant is asking is that I start with the assumption that the respondent is acting in a discriminatory manner, because discrimination exists in society. However, though I agree it is appropriate for me to consider factors that may point towards discriminatory conduct, a decision that discrimination occurred in a particular case has to be based on the evidence. There is no evidence before me that would establish that the respondent’s “formal or informal” networks either preferred white or excluded racialized individuals, and as such there is no basis for me to conclude that giving credit to candidates with previous experience with the respondent was an indicator of discrimination.
Deviation from written policies or standard practices
53The respondent’s own Recruitment and Selection policy stated, in part, that “[c]andidates selected to be interviewed will be based on the minimum job requirements”. The applicant interpreted this to mean that respondent was required, by its own policy, to give an interview to every candidate who met the minimum requirements for a position. He argued that he did meet the minimum requirements for the positions he applied for, and that, by not giving him an interview, the respondent had therefore deviated from its policy. He argued that this was an example of a “deviation from written policies or standard practices when dealing with a racialized person”, as indicated in the Racism policy, and was therefore an indicator of discriminatory conduct.
54The respondent argues that the applicant is misreading the Recruitment and Selection policy. It indicates that it was never its policy or its practice to give an interview to every candidate who met the minimum requirements for the job. This was confirmed by Jennifer MacLeod and Jennifer McCorriston, who both testified that they understood the policy to mean that in order to be given an interview a candidate had to have the minimum job requirements, but that having the minimum job requirements did not guarantee an interview. I also accept Ms. MacLeod’s explanation in her evidence in chief respecting the 2014 HPS positions that interviewing every candidate who met the minimum qualifications would be “far too onerous … if we did it for every job, that is all we would do. In this competition, at least 22 would have met the minimal requirements, no way we could interview them all.” Ms. McCorriston also testified, as addressed below, that for the 2015 HPS position she considered that at least 20 candidates would have met the minimum qualifications.
55Even if I were to accept that the wording of the policy is sufficiently ambiguous that it could be interpreted the way the applicant suggests, I accept from the respondent’s evidence that the norm was to select four to six candidates for interviews. There was no evidence of deviation from this standard practice.
56Even in the unlikely case that the respondent policy did, in fact, require it to interview every candidate who met the minimum qualifications, I do not see how only selecting the top four candidates for interviews would be a “deviation” that would raise an inference of racial discrimination, unless there was evidence that the respondent gave fewer interviews to avoid considering racialized candidates. However, if anything, the screening process increased the chances of racialized candidates being interviewed. For example, for the 2014 HPS positions, two of the four candidates interviewed were racialized. Ms. MacLeod’s evidence was that these four candidates were selected from a shortlist of 15, one-third of whom had names which suggested that they were racialized. She further noted that approximately one-quarter of the 112 job applications were from candidates who were likely racialized. The candidate ultimately hired was racialized. There is no evidence to suggest that white job applicants were favoured at any stage of the hiring process, or that the number of interviews was limited to exclude racialized candidates.
57The applicant also argued that the respondent had not demonstrated that it would cause it undue hardship if it did, in fact, interview every candidate who met the minimum qualifications. Whether an employer would be required to interview 20 candidates may be one of those questions where undue hardship is not particularly difficult to see; however, I do not need to answer that question. As noted above in McGill, if the applicant has not established that a particular practice is discriminatory, the respondent is not required to justify it.
Disproportionate blame / Overreaction
58The applicant alleges that Ms. MacLeod had, based on racial prejudice and stereotypes, claimed that he was “dishonest” on his résumé. He further claims that her evidence was not able to substantiate this assertion, and that I should conclude that her approach to him was therefore disproportionate to the incident, and that as such the decision was rooted in racial discrimination.
59This claim arises in a somewhat circuitous manner, based on Ms. MacLeod’s position in her witness statement, and her evidence at the hearing, addressing certain claims made by the applicant in the two job applications he made in May 2015. There is no indication Ms. MacLeod was aware of the applicant’s May 2015 job applications until the hearing; Ms. MacLeod’s evidence on this issue was to support the respondent’s argument that the applicant exaggerated his experience on the committees. The applicant suggested that the fact that Ms. MacLeod was testifying to this issue indicated that she was actually involved in the May 2015 competition, and that she had influenced Ms. McCorriston not to give the applicant an interview. This, however, is purely speculative. Ms. MacLeod testified about the claims in the May 2015 résumé because she was the best witness to point out what the respondent considered were inaccuracies in those documents.
60In his two May 2015 job applications, the applicant indicated in his résumé that he was a member of the respondent’s Oral Health Action Committee from August 2014 to March 2015, and that he “assisted in research design, data collection, data entry and data analysis by providing expert advice increasing the quality of research”.
61The applicant explained in his testimony in chief that he considered himself to have “assisted” in the data analysis by giving feedback at a committee meeting, and that his statement in his résumé did not imply anything further than his actual contribution.
62Ms. MacLeod testified that the data analysis had, in fact, been done by her and another staff member. She testified that the Oral Health Action Committee members, including the applicant, had no role in the data analysis, other than having the data presented to them, and that there was at best a discussion at one meeting about the correct approach to interpreting the data. She testified that she felt that the claim that the applicant had assisted in any of the “data analysis” was, as such, not accurate.
63Ms. MacLeod agreed that the applicant was involved in data collection and data entry, as she was aware he had administered some surveys and entered the corresponding data into the computer system. However, she testified that data collection and data analysis are very different things.
64In his cross-examination of Ms. MacLeod on this point, the applicant suggested that she was taking a narrow view of what could be considered “data analysis”, limiting the term to sophisticated computer software analysis, and that his use of the term in his job application was meant to include less sophisticated analysis, such as discussing the data at a meeting. Ms. MacLeod specifically rejected the applicant’s suggestion that “data analysis” could reasonably include a conversation such as occurred at the committee meeting. In his written submissions, he claimed that Ms. MacLeod taking the position she did was an example of her “exhibiting a classic superiority” over him.
65I note that there is no evidence that any of the respondent’s witnesses ever called the applicant “dishonest”, as he claimed. Rather, Ms. MacLeod referred to “inaccuracies” regarding the contents of his résumé, and that he had “exaggerated” his contributions to the Oral Health Action Committee. The label “dishonest” was only ever used by the applicant.
66I accept that Ms. MacLeod felt that the applicant’s résumé gave the impression that he had done more than simply giving feedback as a member of the committee, and as such she found it misleading. For the purposes of this hearing, I am also prepared to accept that that the applicant believed that he had not overstated his contribution.
67However, the fact that he and Ms. MacLeod interpreted his statement differently does not mean, as argued by the applicant, that she overreacted, or that she leaped to the conclusion that he was being “dishonest” based on stereotypes of racialized individuals. Her interpretation that the applicant had exaggerated his work for the Oral Health Action Committee was reasonable, and her reaction does not infer or imply a racial bias.
Excessive scrutiny
68The respondent’s witnesses indicated that they found the applicant’s résumé format and style to be lacking in clarity. He challenged them in cross-examination in this issue, asking whether they were experts in or aware of different formats for résumé writing. The applicant appears to be suggesting that his résumé was, objectively, well-structured, and that the respondent witnesses only raised concerns about its clarity and style because it came from a racialized person.
69The applicant argued that this amounted to “excessive scrutiny”, again relying on the Racism policy, which notes that greater scrutiny may be an indicator of racial profiling. Again, I agree with the policy, but do not accept that this is what happened here. I accept that the respondent’s witnesses genuinely found his résumé ineffective at conveying that he was qualified for the positions. There was no evidence to support his claim that their view of his résumé was because he was racialized.
Racialized Name
70The applicant argued that he may have been screened out based on the fact that he had a racialized name. The Racism policy recognizes that doing so would be discriminatory.
71This was, again, an argument solely based on the fact that such discrimination can occur. There was, however, no evidence that there was any such filtering of applications based on names in any of the job competitions at issue. As noted above, however, there was, to the contrary, evidence that individuals with racialized names may have been more likely, not less, to be considered for an interview. This allegation is dismissed.
Undocumented performance issues
72The applicant claims another indicator that racial bias may have played a role was the fact that, for the Assistant Coordinator position, Ms. MacLeod and Ms. Ellery did not take notes to explain why they screened out certain candidates, and for the 2015 HPS position, Ms. McCorriston had taken notes, but that, after the selection process was complete she shredded them to protect the privacy of the personal information they contained.
73The applicant argues, based on the Racism policy, at p. 22, that this amounts to “undocumented “‘poor performance’”, and may be a further indicator of racial discrimination.
74This is not what the Commission policy means by undocumented poor performance. The policy is referring to a situation where an employee is terminated, alleges that the termination was for a discriminatory reason, and the employer then raises, for the first time, an allegation of poor work performance without any documentation to back it up. The policy cautions, quite rightly, against relying on such explanations where the respondent cannot point to any evidence to show the performance issue was identified at the time it occurred. The reason for this caution is the lack of documentary evidence to show that the alleged performance issue was real.
75This is not the situation in the present case. The assessments the respondent made of the applicant’s qualifications were based on his cover letter and résumé. If the respondent claims that the applicant did not meet a particular job requirement, the equivalent to “poor performance” in a context of a job application, this question can be addressed by simply looking at the résumé. This is entirely unlike an allegation of poor performance based on something an employee did or did not do on the job which an employer does not document or raise until long after when the employee is challenging a termination. The fact that the respondent witnesses did not take or keep notes of their assessment of the candidates is simply not “undocumented poor performance” as contemplated in the Commission Racism policy, nor is it otherwise an indicator that he was subject to discrimination in the process.
Inflated job requirements
76The applicant further claims that the job postings included certain inflated requirements which acted as barriers to racialized candidates.
Consideration of Additional Qualifications
77First, the applicant claimed that the respondent gave undue consideration to qualifications which were not identified as requirements in the job postings.
78In the 2014 Health Promotions Specialist positions, for example, he argued that by looking positively on the experience some of the other candidates had in health analytics, the respondent was inflating the job requirements, as “health analytics” had not been listed as a specific qualification in the job posting.
79The respondent pointed out that these positions were, as clearly stated in the job postings, in the Family Health and Health Analytics division of the respondent’s Health Analytics and Health Promotion program.
80There is no dispute that the job posting did not specifically require experience in health analytics. I also agree that having such experience should not compensate for a candidate lacking specific requirements of the position. That does not mean, however, that it was an inappropriate qualification to consider in deciding between candidates who were otherwise similarly qualified, which is how it arose here.
81I do not see the fact that the respondent gave credit for “health analytics” experience to some other candidates to be an indicator of inflated job requirements from which an inference of racial discrimination could be found. At best, what it may have done is to give candidates who identified health analytics experience an advantage, but there was no evidence to connect having or not having experience in health analytics as being related to any Code ground.
82The applicant raised a similar argument with respect to the 2015 HPS position, noting that experience in tobacco cessation was not a requirement, but nonetheless ended up being a key deciding factor in who got an interview. The argument is even less persuasive for the 2015 job competition, as tobacco cessation experience was specifically identified as the focus of the job. It was used, legitimately, as a criterion to choose between otherwise similarly qualified candidates.
Language proficiency
83Second, the applicant argued that by giving credit or preference to some of the applicants for the Assistant Coordinator position or the 2015 HPS position because they had published articles in academic journals was an “inflated language requirement”, beyond what was necessary for the position. He argued that this had an adverse impact on individuals such as himself whose first language was not English. He made similar arguments with respect to the expectation of excellent written communication expectation for the HPS positions.
84Though inflating language proficiency or fluency could be used to indirectly support a discriminatory hiring practice, I do not find that there is sufficient evidence, if any, to support that this occurred in the present case.
85With respect to language, I accept that excellent writing and/or editing skills were entirely reasonable qualifications for the positions. The fact that some of the candidates had academic publications, and that this was remarked on as a positive when assessing writing skills, does not lead to the conclusion that other candidates were being excluded because of a Code ground.
86The applicant further argued that the proficiency in English required “far exceeded” what was required for the positions. The fact that some of the candidates selected for interviews had experience writing for academic journals was, he argued, irrelevant as such a high level of language competency was unnecessary for the job. He argued, therefore, relying on the Commission’s Racism policy, Canadian Experience policy, and Language policy, that the level of English fluency actually required for the job was lower than the standard expected by the respondent, and that there was as such an adverse impact on individuals such as himself who did not have the advantage of having English as a first language.
87He argued, specifically for the assistant coordinator position, that it was not an academic position – “they just need to do reports.”
88The applicant specifically referred to the following passage from the Racism policy:
4.2. Reasonable and bona fide requirements
There may be some instances where a policy, practice or decision-making process is neutral on its face but leads to systemic discrimination against racialized persons or groups. The organization or institution may nevertheless seek to justify or maintain the policy, practice or decision-making process by demonstrating that it is reasonable and bona fide in the circumstances. In the context of claims of racial discrimination, it is the OHRC’s position that it will be rare that a policy, practice or decision-making process will be found to be bona fide. To date, this defence has been arisen primarily in three situations:
(1) income requirements in housing accommodation,
(2) language requirements (see section “3.6. Language Related Discrimination”), and
(3) access to professions and trades.
89The applicant interpreted this as specifically indicating that the Commission believed that “it will be rare” that a language proficiency requirement will be found to be bona fide.
90This is, again, a misreading of the policy. In fact, section 3.6 of the Racism policy referred to in the above passage suggests that language proficiency may be one of the rare cases where, in some circumstances, such a policy may be reasonable and bona fide. That section reads:
3.6. Language-related discrimination
While the Code does not include “language” as a prohibited ground of discrimination, language can be an element of a complaint based on the grounds of ancestry, ethnic origin, place of origin and race. As noted in the OHRC’s Policy on Discrimination and Language, a person’s accent is related to his or her ancestry, ethnic origin or place of origin and as discussed earlier in this policy, accents or manners of speech can be racialized characteristics. There can be situations where the issue of the fluency of language or a person’s accent can be used to mask discrimination based on race.
At the same time, it is recognized that in some circumstances proficiency in a certain language may be a reasonable and bona fide requirement.
91There is no evidence put forward by the applicant that the concerns with his grammar and writing style were being used as a pretext to mask racial discrimination. The only question is whether the level of proficiency in English expected was an essential duty of the job.
92The Language policy, referred to in section 3.6 of the Racism policy above, sets out further the Commission’s position on proficiency in language as job qualification:
- Bona fide occupational requirement
The Commission recognizes that proficiency in a certain language may be a reasonable and legitimate requirement for employment. For example, if English language proficiency is required for a position, it should be established as a bona fide occupational requirement. The test for determining if a qualification is bona fide must be an objective one. The requirement for English proficiency, and the degree of proficiency required, must bear an objective relationship to the essential requirements of the job, and be a bona fide occupational requirement that is imposed in good faith.
93There are relatively few human rights cases addressing language proficiency requirements, and those that do usually arise in the context of labour jobs where being able to speak English at all was a requirement. See, for example, Segula v. Ferrante, [1995] O.H.R.B.I.D. No. 60, at paras. 61-67. I am unaware of any cases where language proficiency has been raised as a Code issue in a communications or writing position.
94I accept the respondent’s evidence that excellent communication and editing skills were an essential duty of the Assistant Coordinator position. This is not seriously challenged by the applicant. What he is saying is that the respondent preferred candidates for the position whose English communication skills were better than needed to do the job. He claimed that both he and the other candidates met the minimum qualifications respecting writing skills, but that the respondents preferred the other candidates by inflating the language skills needed for the position to the point where he was excluded because English was not his first language.
95The difficulty with this argument, however, is that the applicant was not screened out by a comparison with the other candidates. He was screened out on an individualized assessment of his cover letter and résumé which the respondents determined did not demonstrate the proficiency in writing and editing required for the job. The respondent’s witnesses pointed to specific typographical and grammatical errors which, I accept, were below the level required for the position. They argued that it showed that the applicant either did not have the required writing skills, or that he had not properly proofread his job application before submitting it, which, given that one of the essential duties of the job was editing materials for publication, was an entirely reasonable and non-discriminatory reason not to consider him for the job.
Canadian Experience
96One of the main allegations is that the respondent had a “Canadian experience” requirement for the postings which resulted in the applicant’s professional experience from Sri Lanka and Zimbabwe being discounted.
97The applicant’s argument is primarily based on his interpretation of the Commission Canadian Experience policy. This policy recommends that employers should not have requirements that would exclude individuals based on where they obtained their experience, as doing so may result in discrimination. On one end of the spectrum, the bluntest such requirement would be a job posting which explicitly stated “Canadian experience required”. The Commission takes the position, at p. 10 of the Canadian Experience policy, that “a strict requirement for ‘Canadian experience’ is discriminatory on its face and can only be used in limited circumstances.” The Canadian Experience policy also recommends, as a best practice, that employers should “[t]ake a flexible and individualized approach to assessing an applicant’s qualifications and skills”, and to “[u]se competency-based methods to assess an applicant’s skill and ability to do the job.” However, even in the case where an employer has a strict requirement for Canadian experience, the Commission recognizes such a requirement could be justified where the employer can establish that Canadian experience is a bona fide occupational requirement for the purposes of s.11(2) of the Code.
98Reviewing the specific job postings at issue in this Application, I cannot find that any of them have a strict requirement for Canadian experience. Rather, the job postings, as recommended by the Commission, listed the qualifications for the positions in terms of competencies and the skills required. In my view, the job postings in question are consistent with the recommendations in the Commission policy.
99The applicant suggests, however, that there was a general attitude or unwritten practice that generally devalued his non-Canadian experience. I will address this allegation below with respect to the 2014 HPS position. He further alleges that the Emergency Preparedness and Health and Safety Officer requirement for CRSP certification was a strict requirement for Canadian experience. This claim is addressed below as well.
Perception of Discrimination
100The applicant further relied on another statement at p. 23 of the Racism policy, which indicates that the Commission takes the position that a perception of discrimination may have some relevance in a human rights claim. I agree; however, the applicant is taking this much further, and suggests that his perception of being discriminated against is sufficient to point to discrimination in and of itself.
101I note, however, that in the authority cited by the Commission in the Racism policy, Brooks v. Department of Fisheries and Oceans, 2004 CHRT 36 at para. 110, the Canadian Human Rights Tribunal, while agreeing that an individual’s perceptions may have some probative value, acknowledges that a Tribunal must nonetheless be cautious in relying on the perceptions of the parties alone.
102I agree that perceptions can have some relevance. However, as this Tribunal has held on numerous occasions, a perception of discrimination alone is not evidence, and the Tribunal cannot make a finding of discrimination based only on an applicant’s feelings or beliefs. See Da Costa v. Kanetix Ltd., 2017 HRTO 72 at para. 24, Murray v. YouthLink, 2015 HRTO 1694 at para. 13, and Hui v. EPM Global Services, 2011 HRTO 2121 at para. 14.
103Overall, I have considered the Commission policies as requested by the applicant, but either do not accept his interpretation of them, or find that he has not pointed to any evidence to substantiate his arguments that the indicators referred to in Commission policies actually occurred in his case.
Individualized Assessment
104One of the applicant’s primary arguments is that the respondent was required to conduct an “individualized assessment” of his qualifications. The applicant summed up his argument in his reply submissions, where he stated “[i]n the end, the focus is on me. The respondent did not individually assess me and it did not ensure substantive equality regardless of the historical disadvantage arose out of my code grounds.”
105Though I agree with the applicant that it is appropriate to conduct an individualized assessment, in my view this was done, where appropriate, by the respondent in the present case. Though part of the Shakes test does call for a comparative analysis with the other candidates, this is only necessary where the individual alleging discrimination in hiring has first established that he or she was actually qualified for the job. That determination is an individualized assessment of the candidate’s skills for the position, without the need for a “head to head” comparison with others.
106This, however, does not appear to be what the applicant understands an individualized assessment to be. He suggests that in order to effectively do an individualized assessment the respondent should have given him an interview; he specifically claimed at the hearing that by being denied an interview, he was being denied the opportunity to present his qualifications. I do not accept that this is the case. The primary reason the applicant believes an interview would have been appropriate was so that he could explain or expand on his résumé. Though I accept that being given an interview may improve a candidate’s chances in a job competition, I do not accept the applicant’s arguments that this is a Code issue.
107In order for the applicant to establish that the respondent disregarded the applicant’s relevant non-Canadian experience, the respondents would have to have been aware that he had such experience. The applicant is taking the position that the respondent should have been able to infer that he had the experience, even though it was not set out in his job application. I do not agree. Where a candidate does not set out relevant qualifications in a job application, it will be difficult to fault an employer for not giving the applicant an interview. See Konesavarathan v. Guelph (City), 2016 HRTO 1453 at para. 23, and Thambipillai v. Toronto District School Board, 2012 HRTO 843 at para. 13.
108The applicant also suggests that if he had been given an interview, it would make up for the historical disadvantage he faces as a member of a traditionally vulnerable group. However, as noted in Ellis v. Petro-Canada, 2010 HRTO 2499 at para. 69, though the Code requires that employers not discriminate in hiring, the Code does not require them to take special measures to hire individuals with Code-protected characteristics. Such measures may be part of a public interest remedy to promote future compliance with the Code under s. 45.2(3) once a finding of discrimination in hiring has been made, but it is not something required in s. 5 of the Code.
109The respondent also pointed out that there was no indication or evidence that it was excluding racialized or non-Canadian candidates. As noted above, in the first competition, two of the four candidates interviewed were racialized. One of those two, who like the applicant was a foreign-trained physician with considerable work experience outside Canada, was not only interviewed, but hired.
110The applicant argued that the fact that the respondent interviewed or hired other candidates with similar Code-protected characteristics was not relevant to the question of whether he was given an “individualized assessment”. In particular, he relied on the Court of Appeal decision in Ontario Human Rights Commission v. A, 2000 CanLII 16951 (On C.A.), upheld by the Supreme Court in B v. Ontario (Human Rights Commission), 2002 SCC 66 (“B”), that the Code provides protection for individuals being discriminated against based on protected grounds, not on whether the individual fits into a particular disadvantaged group.
111As the Supreme Court in B stated at para. 29, quoting Abella J.A. from A,
The issue in the present case, she commented, “is not whether the employee/father belongs to a disadvantaged group, but whether he was arbitrarily disadvantaged based on a ground or grounds enumerated in s. 5(1) of the Code” (para. 49).”
112The applicant argues, therefore, that the question is not whether the respondent may have discriminated against any individual based on the person’s race or place of origin, but whether the respondent discriminated against him.
113I understand the applicant’s argument to be that because of the historical disadvantage he faces as a result of his Code grounds related to race and place of origin, what appears to be a neutral practice of screening for job interviews results in, under s. 11(1), the “exclusion … of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member”. He then argues that the respondent is required, based on B, to assess him individually, and that whether or not the respondent favoured other candidates who would also be protected from discrimination based on race or place of origin is not relevant.
114I do not see how B has any application to the present case. The applicant in B was fired from his job explicitly because of whom he was married to. What the Supreme Court did is to reject the argument that a finding of discrimination under s. 5 required a determination that the respondent was a member of a disadvantaged group. The Court found that Code grounds of marital status and family status were engaged because the discrimination against the applicant in B was explicitly because of animosity directed at him as a result of the actions of his wife and daughter. The fact that the applicant in B was not a member of a traditionally disadvantaged subgroup of the Code grounds of marital or family status (such as, for example, a single parent might be) was irrelevant.
115If the applicant was able to establish that he was not given an interview specifically because of his race or place of origin, I agree that it would not be necessary to determine whether the respondent similarly denied an interview to anyone else. However, s.11 specifically requires that a practice, in this case the initial screening, results in the exclusion of a Code-protected group. Though discrimination under s. 5(1) does not require a comparative analysis or a finding that another person with the same characteristics would have been discriminated against, given the wording of s. 11(1), the question is whether the requirement, qualification or factor results in the exclusion of a particular group, not just of a particular individual.
116Under the Shakes test, both the “individualized assessment” of a candidate’s qualifications compared with the requirements of the position, and a comparative analysis with other qualified candidates, is relevant and appropriate to consider in determining whether there was in fact discrimination.
117In the present case, I agree with the applicant that the fact that two of the four candidates interviewed for the 2014 HPS positions were racialized is not determinative. Other than both being South Asian, and even though the successful candidate was also a foreign-trained physician with considerable experience in Pakistan, both had considerably more “Canadian experience” than did the applicant, so in that respect their being given an interview would not trigger the last part of the Shakes test (point e. in para. 40, above).
118However, even accepting that none of the candidates selected for interviews shared the characteristic that is the subject of the claim of discrimination (i.e., a lack of Canadian experience), the applicant would still have to establish that the other candidates were no better qualified than he was. He has not been able to do so.
119For the two HPS job competitions, I accept that the candidates selected were, based on their job applications, clearly better qualified for the positions than was the applicant. As such, the applicant has failed to establish a prima facie case of discrimination under the fourth part of the Shakes test, above.
120For the Assistant Coordinator and Emergency Preparedness and Health and Safety Officer positions, I find that the applicant was not able to establish that he was, in fact, qualified for the jobs at all, even without comparing his résumé with the successful candidates, and as such has failed to establish prima facie discrimination on the third part of the Shakes test, above.
Specific Job Competitions
121I have considered the various factors raised and argued by the parties with respect to how the question of whether there was discrimination should be determined. A number of the arguments raised by the applicant have already been addressed above.
122Below, I will further address the applicant’s arguments, in light of the above, with respect to each of the four job competitions.
2014 Health Promotions Specialist
123The respondent posted two temporary HPS positions in 2014. The first position, #2014-25, was for a contract until December 31, 2014, and was to start as soon as possible. The second position, #2014-26, was for a contract until June 18, 2015, and was to start on August 25, 2014. The closing date to apply for both positions was July 4, 2014. The applicant only applied for the second position. The job descriptions and duties were identical, the only difference was the start date and duration.
124The job descriptions and requirements included the following:
Baccalaureate degree in health or related discipline
Masters’ degree in health promotion, health science or related discipline
Technical expertise and experience in health promotion strategies including:
adult education
social marketing
health education and health communication
community development and mobilization
program planning and evaluation
policy development
coalition building and advocacy
Demonstrated competencies in research design (qualitative and quantitative), epidemiology, statistics and associated computer software
Experience in engaging multiple stakeholders in working together on health promotion strategies
Excellent presentation and group facilitation skills
Excellent written and verbal communication
Project management skills
Masters’ Requirement
125The applicant applied on July 3, 2014. In his cover letter, he indicated that he was completing his Master of Public Health (“MPH”) at Western University, with an anticipated graduation date of August 2014.
126There was evidence from the respondents, both from Jennifer MacLeod and Jennifer McCorriston, that the respondent’s policy was that if a particular degree was required for a position, an interview would only be granted to candidates who had in fact completed their degree.
127Jennifer MacLeod testified that she was unsure at the time whether the applicant could be interviewed for the position, given that he had not yet actually completed his MPH. She knew she would have to contact HR to confirm this if it became an issue. On her first review, however, she identified the applicant as a “Maybe”, based on his qualifications and experience. She further testified that she made the decision not to interview him in the next round of reviewing applications, also based on his qualifications relative to the other candidates, and as such the fact that he did not yet have his MPH was not a factor in her decision. The reason it was raised in the respondent’s evidence was simply to point out that, even if he had got further in the process, if Ms. MacLeod had in fact called HR to determine whether the applicant could be considered, they would have said “no” and he would in any case still never have obtained an interview.
128In her testimony respecting the 2015 HPS position (addressed in more detail below), Jennifer McCorriston also testified, in response to questions asked her by the applicant in cross-examination, that she had at one point had occasion to asked human resources, for a position which required a Masters’ degree, if she could interview an individual who only required one credit and was anticipating that the degree would be completed shortly. She testified that she was told the policy was that such an individual did not meet the requirements for the position and would not be given an interview.
129The applicant, in his written submissions, speculated that the respondent’s claim that it required a candidate to have actually completed a degree may have been made up after the fact to justify not considering him for an interview. There is no evidence to substantiate this claim, and I accept the respondent’s evidence in this regard.
130On this basis, I find that the applicant did not, in fact, meet the minimum qualifications when he applied for the HPS position in 2014, and that even if Ms. MacLeod had shortlisted him for an interview, he would have been screened out at that point.
Did the Applicant meet the other requirements?
131Despite the above, Ms. MacLeod’s evidence was also that she did not screen the applicant out because he had not completed his degree. She never got to that point, as she screened him out based on her determination that he was not as qualified as other candidates.
132Ms. MacLeod testified that of the job requirements the primary qualifications she was looking for were demonstrated competencies in research design, excellent written and verbal communication skills, skills in health promotion and health promotion strategies, and excellent training, education and presentation skills.
133She testified that the HPS is responsible for monitoring the health of a population, to understand areas of concern such as mental health, poverty, and alcohol use, and that they need to be skilled in how to obtain and analyze appropriate data, and to synthesize it into meaningful information for distribution to the public. They are also responsible for the evaluation of various public health programs to determine effectiveness.
134She testified that excellent written communication skills, in particular, were needed in all aspects of the job, as the HPS is primarily responsible for ensuring information is made available to a number of different groups. Information would need to be tailored to the target audience, whether that be elected officials, service providers, teenagers, or professionals. She testified that an HPS would be responsible for writing many different types of documents, including funding applications, briefing reports, journal articles, literature reviews, advocacy letters, and comprehensive status reports on the health of a particular community.
135She reviewed the cover letter and résumé of the applicant with respect to the above qualifications. She noted that he had conducted research and prepared a report on anaphylaxis while he was doing his MPH placement with the Middlesex London Public Health Unit. She also noted, for example, that some of the other work he had done during his MPH placement was not the type of research that could be completed in a 16-week placement, and his descriptions did not indicate what his role actually was. He also indicated he had done situational assessments by monitoring a project while he was working with Médecins Sans Frontières in Zimbabwe. She also noted that he listed experience as an ethno cultural facilitator in Guelph, and conducted focus group meetings, and produced a report. Though Ms. MacLeod agreed such experience could constitute research, she indicated that based on her review of the résumés, the applicant had considerably less research experience than the other candidates.
136With respect to writing, she noted the two reports mentioned above, which she considered to be relevant experience. She also indicated, however, that she found the writing in his job application and résumé sometimes unclear or vague, and that it was difficult to determine what his role was in a particular project.
137With respect to the résumés and cover letters of the candidates who were given an interview, S. provided details of research she had conducted or been involved in, with specific references to journal publications. She also identified some cost evaluation work she had done for the respondent, and Ms. MacLeod noted that this was precisely the kind of work that would be done in the HPS position for which they were hiring. S. had also done another report on oral health promotion for the respondent that had been very well received, and had been shared and was being used by other health units across the province.
138Candidate Al. indicated in her resume specific knowledge of several statistical software programs which Ms. MacLeod indicated would be valuable experience for the job. Al. was also currently employed as an HPS for a non-profit foundation, where her work included health-related research projects and health promotion campaigns. Al. had also done similar work for other public health bodies. The specifics of her work experience were, in Ms. MacLeod’s words, “exactly what we do”.
139Candidate Ay. had similar software program experience as Al. She had several publications listed in her résumé, and also had experience managing public health research projects.
140Candidate Y. also had several relevant research publications, and also had conducted extensive work at another health unit which was again similar to the work done by the respondent. Y. was currently working as a research co-ordinator at a university, and had non-Canadian experience related to research proposals, including funding and budget management. She had also trained as a physician in Pakistan, and had practiced family medicine there.
141Ms. MacLeod described in her testimony that there were several types of public health work. She particularly noted the difference between primary promotion, work directed at the broader public designed to educate and change behaviour to prevent or reduce the incidence of public health issues or to work towards policy change through engaging decision makers, and secondary promotion, which was providing treatment or advice to specific groups or individuals living with particular health conditions. As an example, primary prevention would be publications or information available to the general public on how diet and exercise can prevent type 2 diabetes, whereas secondary promotion would be advice to individuals who have diabetes on how to live with the disease. The former is health promotion work done by public health, the latter by clinicians.
142Ms. MacLeod agreed that some of the applicant’s experience as a physician in both Sri Lanka and Zimbabwe was health promotion. The only position she was able to identify from his résumé that included an element of primary promotion, however, was his position in 2007 as Medical Officer for an NGO working at refugee camps in Sri Lanka, in particular his role supervising health promotion activities to reduce the risk of emergence and spread of disease within the camps. His other work in this position, organizing medical clinics to provide acute care, she identified as primarily clinical work. His further experience in Sri Lanka and Zimbabwe was either clinical or in secondary promotion, working with individual patients or addressed to specific limited communities, rather than primary promotion working in public education. She particularly pointed to his experience in setting up an infection control program, which she identified as secondary prevention, as was his work in improving the conditions in a hospital in Sri Lanka.
143In his evidence in chief, the applicant argued that his experience developing the medical clinics also involved health promotion in preventing unnecessary deaths, and that he had also identified that he had been given recognition for this work. Though this work is certainly worthwhile and had impressive results, it was not clear from the applicant’s résumé or cover letter, nor from the further clarifications he provided in his testimony, how such experience would be relevant to the HPS position.
144In contrast, the résumés of the candidates selected for interviews included significant experience in primary health promotion. Ms. MacLeod particularly identified S.’s work on a team planning and implementing an oral health campaign as being health education and promotion for the general public; Al.’s work developing a provincial advocacy campaign focussed on obtaining political support for tobacco control and child obesity policy initiatives; Ay.’s experience developing health promotion packages on food nutrition; and Y.’s extensive experience in community-based health promotion initiatives.
145After having heard the evidence of the applicant and the evidence of Ms. MacLeod, and having reviewed the job applications of the applicant and of the candidates selected for an interview, I find that the four candidates selected were all better qualified for the 2014 HPS positions than the applicant. As noted above, under the Shakes test the applicant has to be able to establish that a candidate no better qualified than him obtained an interview in order to make out a prima facie case of discrimination. The applicant has, therefore, not been able to prove that his not being granted an interview was discriminatory.
Candidate “R”
146The applicant further argued, however, that there was in fact specific evidence that Jennifer MacLeod gave less value to non-Canadian experience. In particular, he relied on a specific notation on the spreadsheet she used to take notes when she was initially reviewing the applications for the 2014 HPS positions.
147Ms. MacLeod testified that she used the spreadsheet to make notes for the initial review of the 112 applications received. The notes included the name, educational qualifications, number of years of relevant experience, positives, and negatives, along with whether the candidate had identified specific experience in various areas important to the position. The final column was whether, after an initial review, the candidate should be considered for an interview, either Yes, Maybe, or No.
148For one particular candidate, R., under the “Negatives” column, Ms. MacLeod wrote in her notes “HPS experience all in India”. The applicant argued that this was an indicator that Ms. MacLeod gave less value to non-Canadian experience, and that this also impacted how she viewed his job application.
149Ms. MacLeod provided evidence, with reference to R.’s cover letter and résumé, to explain why she noted as a negative that R.’s HPS experience was all in India. She testified that this was to do with timing, and that though the résumé indicated R. had health promotion experience as well, this experience was from several years earlier, when R. was still living in India. R.’s recent experience was all in a clinical setting as a nurse, rather than in health promotion.
150As discussed above, Ms. MacLeod described health promotion work as being on a continuum, with clinical work directly involving individual patients at one end, secondary promotion work respecting certain communities with specific health problems in the middle, and health promotion work involving broad public education campaigns on the other end. She further testified that she did review R.’s experience in health promotion from India, and that she also found that the specific description of the work done was insufficient to indicate that R. had appropriate experience for the position.
151I am not persuaded that the note was only about timing. I accept that the notation meant what it said, that she questioned whether the health promotion work that R. claimed to have to be less relevant to the position not just because it was out of date, but also because of where it was obtained.
152This conclusion, however, does not mean that I should therefore conclude that she similarly devalued all foreign experience, or that I should automatically assume that she devalued the applicant’s experience obtained in Sri Lanka and Zimbabwe. If I were to do so, I would have to ignore other equally relevant evidence. First, many of the candidates had foreign work experience, but the only one where such work was marked as a negative was R. Second, in the same document, Ms. MacLeod identified foreign experience or training as a positive, not a negative. Importantly, this included the applicant, for whom under the “Positives” column she specifically noted “MD, Sri Lanka”. She made similar notations in the positive column for other individuals with non-Canadian experience, including the candidate who Ms. MacLeod ultimately hired.
153I also note that the Commission’s Canadian Experience Policy is clear that even where there is a strict “Canadian experience” requirement, an employer can nonetheless raise as a defence that the requirement is bona fide. This recognizes that an employer simply wishing to confirm non-Canadian experience is relevant is not in and of itself discriminatory; the question rather is whether the employer is imposing an arbitrary requirement and closing its mind to considering experience gained elsewhere, and whether it can justify that such experience does not meet the requirements of the position for the purposes of s.11 of the Code.
154I agree that given the notation I have to carefully consider Ms. MacLeod’s evidence respecting how she considered the applicant’s experience, particularly with respect to how she viewed non-Canadian experience in making her determinations. Taking account of the evidence as a whole, however, I cannot reach the conclusion that Ms. MacLeod devalued the applicant’s foreign experience, or that her opinion respecting the relevance of R.’s experience was a factor in her consideration of the applicant’s job application.
Assistant Coordinator
155The second job the applicant applied for was the Assistant Coordinator of the Poverty Elimination Task Force, in January 2015. The job posting stated that the Assistant Coordinator would “provide administrative and communication support to the Poverty Task Force Coordinator”, and that the work would include logistical support for events, writing and editing. The stated requirements for the position included demonstrated excellence in interpersonal, written and oral communication skills, strong and demonstrated understanding of social justice and poverty issues, demonstrated experience writing for the internet and social media sites, and strong computer skills.
156Randalin Ellery was the Coordinator of the Poverty Elimination Task Force, and the person whom the successful candidate would report to. She testified that the Assistant Coordinator was a two day per week position, and that the primary skills needed were excellent communication, in particular familiarity with social media platforms, ability to write in plain language, and excellent editing skills, as this individual would be editing material originating from the task force. The assistant coordinator would be responsible for publishing the materials through a website and/or through social media. She testified that there were over 100 applications for the position. She and Jennifer MacLeod reviewed the applications and selected six candidates for interviews. The applicant was not selected.
157Ms. Ellery testified that in her view the first skill required for the position was social media experience. She noted that the only indication of experience in social media the applicant gave in his job application was in his summary of skills that he had “Received advanced training on MS Office 2010 and Social Media”, but that he did not list what specific tools he had been trained in, nor did his résumé or cover letter indicate any specific experience working with social media.
158In terms of writing skills, Ms. Ellery testified that in her opinion the applicant’s cover letter and résumé did not demonstrate strong communication skills. In particular, she indicated that his cover letter was not well-written and contained grammatical and typographical errors.
159Jennifer MacLeod similarly testified that, in her view, the applicant’s cover letter and résumé did not demonstrate that he had the skills necessary for the job.
160The applicant argued that the primary qualification for the job should have been strong understanding of social justice and poverty issues, given the nature of the organization. Though he acknowledged that the candidates selected for interviews did meet this requirement, he felt his qualifications on this point were stronger, as he had experience in public health and poverty that the other candidates lacked. I agree that the applicant did have strong experience in social justice and poverty issues, and that on this requirement I accept that none of the other candidates were any better qualified.
161However, I do not agree with the applicant’s position that such experience was or should have been the “main focus” of the position. Though understanding of social justice and poverty was important given the work of the committee, this was clearly a communications position, and the primary role, and the experience and skills needed, were in using social media, writing, and editing. The applicant acknowledged that the other candidates had more experience in social media than he did, though he maintained his writing experience was superior. His main argument was that the skills he did not have were not essential duties for the position.
162The applicant raised several arguments why he believes the respondent did not properly consider his application for this position.
163First, with respect to excellence in interpersonal, written and oral communication and facilitation skills, he argued that the fact that his application for the position contained typographical errors was not the same as whether he was able to write clearly and be able to effectively convey a message. I agree that being able to write clearly to convey a message, and being able to write without typos, are not necessarily the same thing. However, the position required both excellent writing and editing skills. The evidence is that an important part of the role of Assistant Coordinator was editing and preparing for publication or distribution the documents produced by the task force. Though being able to write clearly is obviously important, so is being able to proofread and correct typos in the documents being published. I agree with the respondent that the applicant’s cover letter and résumé contained typographical and grammatical errors. The respondent’s witnesses testified that for a position whose duties included proofreading, the fact that the applicant had apparently not taken care to proofread his job application was a legitimate reason to discount him as a candidate. As noted above in the discussion under the discussion of the Commission policies respecting language proficiency, I agree.
164The applicant also suggested that as the materials to be published would be reviewed by the committee members, that this would serve as a proofreading check for any mistakes or style issues with his writing, and that this would serve as an accommodation for the fact that English was not his first language.
165Further, he argued that the skills the respondent was looking for with respect to social media and internet platforms were not essential duties of the job. In his testimony, the applicant agreed that he did not have any work experience related to social media, but he argued that this was not necessary as he had experience writing for media generally, in particular that he had written columns for the local print newspaper. He argued that he therefore had the media writing skills necessary for the job, and that he could rely on the IT department to assist him with the technical aspects of actually posting the materials. He argued that the essential duty of the job was being an effective writer, and that should have been the focus of the respondent in selecting candidates for interviews.
166In short, the applicant takes the position that the IT department should be responsible for any technical aspects of the job, that the committee should take care of the proofreading and editing portions of the job, and as such he could focus on his core strength, writing on social justice and poverty issues.
167The problem with this position is that the applicant is arguing that the job should have been something different that it actually was. I accept that the ability to work with social media and internet platforms was, explicitly and legitimately, an essential duty of the Assistant Coordinator position. The respondent was not simply hiring a writer, but someone who could take on the job of editing, preparing and distributing materials through social media. These skills were essential duties of the job. As Ms. Ellery stated in cross-examination in response to the applicant’s question on whether the position would have IT support, “If my computer did not turn on, I could get IT support. If I had to send out a tweet, I would not go to IT”.
168The applicant’s proposed solutions are not accommodations for his place of origin that would permit the applicant to perform the essential duties of the job, but rather would exempt him from having to do so. This is not what is contemplated by accommodation under the Code. See Pourasadi v. Bentley Leathers Inc., 2015 HRTO 138 at para. 28, and Brown v. Children’s Aid Society of Toronto, 2012 HRTO 1025 at para. 99.
169Based solely on the applicant’s résumé and cover letter, the applicant had not demonstrated that he was qualified for the job. On that basis alone, he is unable to establish a case of prima facie discrimination.
170I have, however, also reviewed the résumés of the candidates selected for interviews, and agree with the respondent that they were better qualified for the position than the applicant. There were over 100 applicants for the Assistant Coordinator position, six of whom were selected for an interview. The job duties included editing documents for final publication on social media and internet sites. The applicant provided no details of his social media experience beyond indicating he had “advanced social media training”. The candidates selected for an interview all listed extensive social media experience on a number of different online platforms. His resume included typographical and grammatical errors. The selected candidates did not.
171The applicant further claims that Ms. MacLeod and Ms. Ellery wanted to take advantage of his free work when he was a volunteer on the committee, but then would not consider him when it came to a paid position. The applicant characterizes this in his written submissions as a “slavery attitude towards racialized person”. This argument, even ignoring the fact that such an analogy is a trivialization of the nature and impact of slavery, obviously has no merit.
172Based on all the evidence, the applicant has not been able to establish that his failure to obtain an interview for the Assistant Coordinator position was discriminatory, or that he was subject to any discriminatory attitudes in the hiring process. This allegation is dismissed.
Health Promotion Specialist 2015
173Jennifer McCorriston testified that the May 2015 HPS position was to replace an employee on maternity leave for approximately one year.
174The job requirements for the May 2015 HPS position listed in the posting were essentially the same as those in the 2014 HPS positions, listed above. Ms. McCorriston testified that the job posting was drafted by the human resources department based on the general job description for an HPS, and that she would then add a separate section to provide details on the area of focus for the specific position being filled.
175She testified that this particular position was funded by Smoke Free Ontario through the Ontario Ministry of Health. Ms. McCorriston added the following under the heading “Position Summary” to reflect the specifics of the job: “This position will be in the area of tobacco prevention. Specifically, the focus will be on working with community partners and internal staff to build youth resiliency and assets for the prevention of tobacco and other risk factors.”
176Given the nature of the position, and the fact that it was a one-year parental leave contract, she also indicated that they wanted someone with tobacco experience who would be able to quickly get up to speed on the specific job. She testified, however, that though tobacco experience was considered an asset, it was not a requirement for the position.
177Ms. McCorriston testified that there were approximately 70 applicants. She estimated that of these candidates, approximately one-third would have met the minimum requirements for the position.
178She narrowed the candidates who met the minimum qualifications to a short list of 10, from whom she selected four for interviews. She testified that at this point, where all the candidates being considered met the minimum qualifications, her selection necessarily involved a review of additional factors, such as experience in tobacco prevention, or experience working with youth, given that these were the specific focus of this position.
179The applicant did not list any experience in tobacco prevention or substance misuse/abuse in his résumé. Rather, the applicant argued that he had listed the competencies related to the job, and that he should have been given an interview on the basis of his competencies alone. His argument relied on the Commission’s Canadian Experience policy, addressed above.
180At the hearing, I asked the applicant how, in light of the Canadian Experience policy on which he was relying, the respondent taking into account experience in tobacco prevention in selecting the candidates was discriminatory. His answer was that as he did not have such experience, using it as a criterion adversely affected him. I specifically asked him to explain how this was a Code issue, given that the lack of tobacco experience would have presumably had the same impact on any candidate regardless of their race or place of origin. The applicant simply answered that they should have looked at competencies, but he did not provide any explanation that would draw a Code connection between giving a preference to candidates with tobacco prevention experience, amongst otherwise qualified candidates, for a contract position in tobacco prevention. I find that it was entirely reasonable for Ms. McCorriston to take into account a candidate’s health promotion experience in substance misuse or tobacco prevention in narrowing down the list to select candidates for an interview, given the specific nature of the position.
181The applicant further suggest that even though he did not explicitly indicate any experience in tobacco prevention in his job application, that Ms. McCorriston should have recognized that he had such experience given that he had practiced as a physician. He argued that it should have been clear that a physician would be involved in counselling their patients on quitting smoking.
182To make this point, in cross-examination, the applicant specifically asked Ms. McCorriston if she had considered the fact that he was a physician in determining that he had no experience in tobacco prevention. She testified that in her experience the clinical work of a physician with individual patients respecting tobacco cessation is very different from public health promotion work. She also noted that the applicant had not included any specific reference to working with tobacco issues as a physician, and that if he had such experience she would have expected him to highlight it, given the focus of position he was applying for.
183I do not agree with the applicant’s suggestion that Ms. McCorriston should have assumed that the applicant had health promotion experience in tobacco cessation comparable to the other candidates simply by virtue of his having practiced as a family physician. This was a legitimate qualification for the position. The fact that the applicant was screened out because his résumé did not contain any experience in substance misuse or tobacco cessation is not an indicator of discrimination.
184Ms. McCorriston also more generally addressed why she felt that the applicant had not effectively conveyed his relevant experience and qualifications for the position, with specific reference to his résumé. She noted that in one passage he stated that during his MPH practicum he “[d]eveloped Anaphylaxis Management presentation material for teachers”, which she found to be clear respecting what he did and for whom. However, she also noted that for other positions it was far less clear what he had done. For example, for another position he described his experience by stating only that he “[c]reated program ideas by conducting research and hearing community members resolving their community health issues”. Ms. McCorriston testified that it was not clear what this was about.
185The applicant later argued that Ms. McCorriston’s testimony in this regard was another example of “excessive scrutiny” of his résumé. I disagree. She was, quite reasonably, explaining why she did not feel that the applicant had effectively conveyed his experience relevant to the position.
186The applicant’s interpretation of the Canadian Experience policy appears to be that employers should look only at competencies when making hiring decisions, and, on that basis, he focussed his résumé on identifying his competencies.
187I agree that the policy does recommend that employers should look to an employee’s competencies, rather than relying on the employee’s “Canadian experience” or on stereotypes or based on the quality of work an individual would have had outside Canada. This does not mean, however, that specifics of relevant experience, wherever obtained, should therefore not be identified or considered in a job application. What it means is that an employer should not look just at a particular position, but should specifically look at the competencies that position involved. I accept, however, as indicated by Ms. McCorriston in her testimony, that it is difficult to assess competencies without being given the context of where or how they were obtained.
188I accept that the applicant met the basic qualifications for the job, and therefore met that part of the Shakes test. In order to establish a prima facie case of discrimination, however, the applicant would also have to establish that someone no better qualified obtained an interview.
189Three of the four candidates selected for an interview included specific experience in tobacco prevention. Candidate N. was, at the time she applied for the job, working in a very similar tobacco prevention position, also funded through Smoke Free Ontario in another municipality. Candidate L. had extensive experience in tobacco prevention, including public health education, was a university lecturer on tobacco issues, and had worked in the insurance industry as a consultant respecting tobacco cessation. Candidate A. had worked for the Heart & Stroke Foundation and had also worked as a volunteer for the respondent specifically in a tobacco-related project, and had done work in regulating tobacco use in outdoor environments. Candidate C. did not have the same breadth of experience as the other three, with her only direct reference to tobacco being that she had completed a course on tobacco cessation. She did, however, have work experience in other substance misuse programs for youth, which Ms. McCorriston indicated she felt was largely transferable to tobacco prevention, and which therefore made her a strong candidate as well.
190In his cross-examination of Ms. McCorriston, the applicant suggested that taking a single course on tobacco was insufficient. Ms. McCorriston agreed that it was less involvement in tobacco issues than the other candidates selected, but also noted that it nonetheless indicated more knowledge in the field than the applicant’s résumé did.
191Ms. McCorriston also considered the four candidates’ qualifications and experience related to other factors such as research planning and evaluation. The four candidates all provided specific details of their experience and qualifications, including the various software platforms with which they were familiar, and giving specific examples of their research experience. Ms. McCorriston agreed the applicant identified some relevant research work, but she testified that his description of this was lacking in specificity, and that he did not appear to have the same breadth of experience as the candidates who were granted interviews.
192Having reviewed the evidence, including the job applications of the four candidates given interviews, and the testimony of Ms. McCorriston, I accept that all four candidates granted an interview were better qualified than the applicant. As such, the applicant has not made out a prima facie case of discrimination with respect to this competition. He has further not been able to establish that there was any other discriminatory element in the hiring process.
Emergency Planning and Health and Safety Officer
193With respect to the fourth job competition, for the Emergency Preparedness and Health and Safety Officer, as noted, the applicant alleges that the position included a specific requirement, Canadian Registered Safety Professional (“CRSP”) certification, which excluded him based on his race or place of origin, and which was not a bona fide occupational requirement. The applicant argued that, other than the certification, he had the necessary skills to do the job. This argument, however, was also premised on his belief that the essential duties of the job were different than those claimed by the respondent; in particular, he believed that the job was primarily about emergency preparedness and response, where he had experience, as opposed to occupational health and safety, where his experience was considerably more limited or unclear. The CRSP certification was primarily with respect to occupational health and safety responsibilities.
194Elizabeth Bowden testified on behalf of the respondent that the occupational health and safety role was previously a part-time position, and the emergency preparedness role was part of the job description of another manager, who also had other duties. The respondent conducted a review of the positions to determine organizational needs, and decided to create a single full-time position with the responsibility of managing both the emergency preparedness and the occupational health and safety requirements of the organization.
195The respondent did not claim that it was legally required to have CRSP certification for this new position. However, the respondent’s evidence was also that this was the most senior position in the organization responsible for ensuring compliance with both emergency preparedness and health and safety requirements, which duties included training and implementation of the necessary health and safety protocols. As a result, the respondent needed someone who already had the knowledge and experience to fill the role, as the expertise did not otherwise exist in the organization. This was not a position that an individual could “learn on the job”. The pay range of $42-$50/hour also reflected that this was not an entry-level position.
196The applicant made several arguments challenging the respondent’s position.
Job Posting did not Require CRSP
197First, the applicant claimed that the posting itself did not actually require CRSP certification for someone who had a bachelor of science degree. He suggests that the respondent deliberately misinterpreted its own job posting to hide what was in fact a discriminatory decision to exclude him from consideration.
198There is no merit to this argument. I accept that CRSP certification was clearly a job requirement for all candidates. The specific requirements listed in the job as posted included the following:
Bachelor of Science (B.Sc.) degree and/or a combination of post-secondary education combined with relevant experience and the completion of Health and Safety Certificate Program
Professional designation related to Health and Safety, specifically Canadian Registered Safety Professional (CRSP)
199The applicant interpreted the first bullet as follows:
Bachelor of Science (B.Sc.) degree
And/or
a combination of post-secondary education combined with relevant experience and the completion of Health and Safety Certificate Program.
200He argued, therefore, that for any candidate with a B.Sc. the completion of a health and safety certificate program was not required. He further suggested that the separate bullet point requiring CRSP certification should therefore be interpreted to apply only to candidates who, under the above logic, had to complete a Health and Safety Certificate Program, which in his interpretation did not include those who had a B.Sc. The applicant did not in fact have a B.Sc., but argued that his having a medical degree and a MPH degree was more than comparable to a B.Sc. For the purposes of addressing this argument, I will assume this is the case.
201The respondents interpreted the logic of the first bullet above as follows:
Bachelor of Science degree
And/or
A combination of post-secondary education and relevant experience
And
The completion of health and safety certificate program.
202It is clear to me that the respondent’s interpretation is correct. Though the respondent was prepared to accept other post-secondary education and relevant experience as a substitute for a B.Sc., the completion of a health and safety certificate program was not an option. Furthermore, even accepting that the first bullet point in the posting was ambiguous, the bullet point requiring CRSP certification was not.
203There is, as such, no basis to the applicant’s claim that the respondent misinterpreted its own job posting as a means to exclude him from the interview process. There is, in any case, no basis to support his suggestion that their doing so was to exclude him as a racialized candidate.
Was CRSP Designation requirement discriminatory?
204The applicant further argues that, assuming the respondent did actually require all candidates to have CRSP certification, that such a requirement has an adverse impact on individuals based on their place of origin.
205The basis for this position is that the CRSP certificate itself requires that an applicant must be working in an occupational health and safety position in order to write the certification examination. By requiring the CRSP certificate, the applicant argues the respondent is therefore indirectly requiring “Canadian experience.” However, it is clear from the materials entered in evidence from the Board of Canadian Registered Safety Professionals (“BCRSP”), the body that sets the CRSP exam and issues the CRSP certification, that obtaining certification does not require Canadian work experience. The materials from the BCRSP specifically indicate that a candidate working in an occupational health and safety position outside of Canada is equally entitled to apply to write the certification exam. The fact that the CRSP certification requires that a candidate has to be currently employed in an occupational health & safety position is, as such, not a “Canadian experience” requirement.
206At best, the applicant appears to be suggesting that as immigrants may have a greater difficulty in obtaining employment, a requirement for a certification that can only be obtained by someone currently employed has an adverse impact on recent immigrants. This is not a “Canadian experience” issue. The applicant did not put forward any evidence that he was unable to obtain an occupational health and safety position because of his race or place of origin. There is no basis for the applicant’s argument that the CRSP designation discriminated against him.
Was CRSP Designation a bona fide occupational requirement?
207The applicant also disagreed with the respondent’s focus on the occupational health and safety aspect of the job, and argued that the more central job duties were related to emergency preparedness. I do not accept the applicant’s submissions on this point. The job duties and the focus on occupational health and safety was reasonable, and there was nothing discriminatory about the job description. The fact that the applicant may have been more likely to get an interview if the job had been different is, again, not an indication the posting was contrary to the Code.
208The applicant argued that, as he was trained as a physician, the respondent should not have expected him to have to also obtain a certificate, such as the CRSP, which he characterized as a certification that would be appropriate “for a secondary school graduate”. I do not accept this argument. The fact that the applicant had undergone the extensive training required to become qualified as a physician does not automatically mean he was therefore trained in occupational health and safety. The applicant has not presented any evidence to show a correlation between being trained as a physician and being qualified for this position.
209Essentially, his complaint is that CRSP certification is shorthand for the required qualifications, rather than setting out the competencies themselves. He argues that the respondents had an obligation to look at his underlying qualifications, rather than relying on whether or not he had obtained a particular certification.
210Though I find that the qualifications listed in the job posting were entirely reasonable and were related to the job, even if they were not, there would be no basis on which this allegation could proceed. The Code does not permit a broad review of every job posting to ensure it is reasonable. As addressed above, an employer is not required to establish that a particular qualification is bona fide and reasonable and cannot be justified to the point of undue hardship for the purposes of ss. 11(1) and (2), unless it is first established that the qualification results in the exclusion of a group identified by a particular ground of discrimination under s. 11(1). If the qualification does not do so, it may be unfair that it is listed as a job requirement, but it is not discriminatory.
211In the present case, the applicant has not been able to establish that the requirement for CRSP certification resulted in the exclusion of a group based on race or place of origin under s.11(1). There is, as such, no basis on which to consider whether the qualification was bona fide and reasonable. See McGill, above.
212For the above reasons, I find that the applicant has not been able to establish that his being screened out and not considered for an interview for the emergency preparedness and health and safety officer position was discriminatory. As a result, this allegation is dismissed.
Conclusion
213The applicant has not been able to make out a case of discrimination in any of the job competitions. He has not been able to establish that he was not given an interview for any discriminatory reason. He has not been able to establish that he was otherwise subject to discrimination in the hiring process.
Order
214The Application is dismissed.
Dated at Toronto, this 6th day of December, 2017.
“Signed by”
Bruce Best
Vice-chair