PSGB# P-2022-11501

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Wilder

Complainant

• and -

The Crown in Right of Ontario (Ministry of the Attorney General)

Employer

BEFORE

Marilyn A. Nairn

Vice Chair

FOR THE COMPLAINANT

Jennifer Wilder

Intervenor

Jessica Roes

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel

HEARING

November 24, 2023; October 28, 2024, May 29, June 5 and 10, 2025

Decision

1This application challenges the Employer’s decision, further to a job competition, to select Jessica Roes for the position of Manager of Court Operations (“MCO”) – Kitchener, rather than selecting the Complainant, Jennifer Wilder. Ms. Wilder was and is employed as MCO – Cayuga, Brantford, Simcoe. She was effectively seeking to move to the same position in the Kitchener Court Services office. Ms. Roes (the “Incumbent”) was employed as a Manager of Business Support (“MBS”) at the time of the competition.

2In summary, it is the Complainant’s position that the Employer conducted a flawed competition. She alleges that the selection panel failed to consider factors relevant to merit, including prior performance, references, and experience. She also alleges that the panel considered factors that were not relevant to an assessment of merit, including age, statements taken out of context and statements made outside the competition process. She further alleges that the interview did not identify/utilize appropriate pre-determined weighting or scoring of the selection criteria. The Complainant asserts that her candidacy was the more meritorious and that she ought to have been awarded the position. The Complainant asks to be placed in the position, or, in the alternative, that the competition be re-run.

3I was referred to and have reviewed the following decisions:

• McCready v Ontario (Treasury Board Secretariat), 2021 CanLII 37124 (ON PSGB);

• Mitta v Ontario (Municipal Affairs and Housing), 2013 CanLII 42027 (ON PSGB);

• Ontario Public Service Employees Union (Naczynski) v Ontario (Ministry of Economic -Development and Trade), 2006 CanLII 17523 (ON GSB);

• Ontario Public Service Employees Union (Boucher) v Ontario (Northern Development, Mines and Forestry), 2011 CanLII 78576 (ON GSB);

• Association of Management, Administrative and Professional Crown Employees of Ontario (Alderson) v Ontario (Children and Youth Services), 2008 CanLII 70505 (ON GSB);

• Ontario Public Service Employees Union (Hogan/Paul/Montgomery) v Ontario (Community and Social Services), 2011 CanLII 83715 (ON GSB);

• Majkot v Ontario (Ministry of the Attorney General), 1999 CanLII 13879 (ON PSGB);

• Ontario Public Service Employees Union (Roleau) v Ontario (Ministry of the Environment), 2001 CanLII 25759 (ON GSB);

• Sawyer v Ontario (MCSCS), 2006 CanLII 30737 (ON PSGB);

• Paul v The Crown in Right of Ontario (Ministry of the Solicitor General), 2023 CanLII 61436 (ON PSGB);

• George v The Crown in Right of Ontario (Ministry of Community and Social Services), September 4, 1998 (ON PSGB);

• Brander v The Crown in Right of Ontario (Ministry of Correctional Services), December 7, 1992 (ON PSGB);

• McAdam v The Crown in Right of Ontario (Ministry of Finance), 1995 (ON PSGB); and

• Vipari v The Crown in Right of Ontario (Ministry of Community & Social Services), November 14, 1995 (ON PSGB).

4The parties filed a partial agreed statement of fact which provides:

1. The Complainant is Jennifer Wilder. She is currently the Manager of Court Operations – Cayuga, Brantford, Simcoe.

2. Ms. Wilder competed for the position of Manager of Court Operations – Kitchener (Job ID #187026).

3. The interviews occurred on October 19 and 20, 2022.

4. The Interview Binder is attached as Appendix A. The cover letter and resume of Ms. Wilder and Jessica Roes are attached as Appendices B and C. These documents were included in the Interview Binder on page 42 but are not accessible through Appendix A. On page 43 of the Interview Binder, the interview presentations are included but are also not directly accessible. These presentations are attached as Appendices D and E (for Ms. Wilder and Ms. Roes, respectively).

5. The interview panel consisted of Angela McGonigal (Director of Court Operations) as the hiring manager, Anne Gendron, a Director in Court Services Division, and Saifullah Sumbal, Director from the Ministry of the Environment, Conservation and Parks.

6. As set out in the Interview Binder, the panel scored Jessica Roes the highest and she subsequently accepted the position.

7. Ms. McGonigal informed Ms. Wilder on November 29, 2022 that she was not the successful candidate.

8. Ms. Wilder attended a “debrief” with Ms. McGonigal on December 2, 2022. Ms. McGonigal’s notes from the November 29 conversation and her speaking notes for the December 2 conversation are attached as Appendix F. Ms. Wilder’s notes from the December 2 conversation are attached as Appendix G.

9. Ms. Wilder’s evidence is that, in the course of the conversation on December 2, Ms. McGonigal provided both positive and negative feedback on her presentation and interview which supported a “Superior” rating. The Employer’s evidence is that Ms. McGonigal provided feedback to Ms. Wilder which included how her presentation and interview responses could have been improved.

10. The parties agree that, in the course of this conversation, Ms. Wilder asked whether anything other than the presentation, interviews, and reference checks were considered when determining the successful candidate. Ms. McGonigal advised that she only considered the presentation, interview, and references. When then asked to confirm that years of service or time in the job or performance in the job were not factored into the hiring decision, Ms. McGonigal confirmed they were not considered. Ms. McGonigal further informed Ms. Wilder that she had confirmed with the OPS’s Talent Acquisition Branch (“TAB”), which advised her that in MCP competitions there is no “relative equality” factor, and that, if she had direct knowledge of the candidate she could factor in what she knows about the candidate, but then she also has to apply the same to all of the candidates. Ms. McGonigal advised that she was not in a position to do that because she did not have direct working knowledge of all of the candidates.

11. Ms. Wilder’s [sic] does not assert “relative equality” should apply, rather that the interview itself cannot be strictly relied upon and that there must be consideration of past performance in the same job (as well as other considerations).

12. The Employer’s evidence is that, of the five candidates interviewed, Ms. McGonigal had prior working knowledge of Ms. Roes and had met Ms. Wilder and she did not know the other three candidates.

13. Ms. Wilder provided notice of this application on December 12, 2022.

14. Thereafter, Ms. McGonigal requested that TAB review the competition.

15. TAB’s review of the competition is attached as Appendix H, which includes three attachments from TAB and an email from Ms. McGonigal to her superior summarizing TAB’s review.

16. Ms. Wilder met with the Assistant Deputy Attorney General (Beverly Leonard) on January 24, 2023 to discuss this complaint. Attached as Appendix I are the notes from that meeting as taken by Angela Oh, a human resources representative who was in attendance. Attached as Appendix J are Ms. Wilder’s notes from this meeting.

17. Ms. Wilder filed her Form 1 on January 24, 2023.

18. The Employer provided third-party notice of this hearing to the current incumbent on September 13, 2023.

5An “MCP” competition refers to a competition for a position covered by the Management Compensation Plan. Ms. Roes, as the incumbent in the disputed position, attended all but one hearing date and participated as a party to these proceedings.

The standard of review

6The Board’s decision in Paul, supra, sets out the general standard applicable to assessing the Employer’s conduct in the context of a job competition for an excluded position:

79Regarding job competitions, the Board has been clear that the standard that applies to the Employer is reasonableness, not perfection. The onus is on the Complainant to establish that a competition was conducted in an arbitrary, discriminatory, or unfair manner, or the Employer made decisions regarding the applicant in bad faith or that the competition was so egregiously flawed as to be found invalid.

7The Board in Mitta, supra, more specifically observed:

64Procedural fairness is recognized in the Board’s jurisprudence as an important protection of the merit principle, and accordingly the Board exercises its jurisdiction to review disputed selection processes for flaws serious enough to impair the integrity of the selection decision. In Vipari, cited above, the Board found that, in order to overturn a competition, there would have to be a defect in the selection process important enough to raise a real possibility that compliance with the procedure might have brought about a different result. The onus of proof rests with the complainant in cases of this kind. The Board’s considerations in the review of competition decisions seek to strike an appropriate balance between the candidates’ right to fair treatment in the selection process and the employer’s right to establish a suitable process and criteria for selection.

8And see the Board’s decisions in Vipari, supra, at pages 15-16; George, supra, at pages 17-18, and Brander, supra, at pages 3-4.

9With that test in mind, the evidence about the competition is reviewed below both with regard to the competition’s structure and its implementation.

The structure of the competition

10The Complainant asserts that the rating methods utilized by the Employer in the competition were inadequate as they failed to consider her experience and performance in the MCO role and that the competition failed to comply with the terms of the Employer’s Employment Policy (the “Policy”).

11The Employer does not dispute that the Employment Policy, generated pursuant to the Public Service Commission Directives, sets out expectations for the conduct of this competition. It acknowledges that the Policy forms part of the terms and conditions of employment applicable to the Complainant and which bind the Employer. (See para. 77 of the Board’s decision in Paul, and para. 40 of Mitta, both supra.)

12Relevant provisions of the Policy provide:

6. Principles

6.2. Employment practices:

• apply the principles of merit, inclusion and accessibility

• are fair, objective, reasonable and transparent

• are supported by timely and accurate documentation.

8. Mandatory Requirements – Recruitment and Selection

Planning

Selection Criteria

Selection criteria are bona fide staffing requirements that are expressed in terms of qualifications, are necessary for effective performance of the work, and reflect the relative importance of each aspect of work to be performed.

8.5. Selection criteria form the basis on which all candidates are screened and rated and must:

• be based on a documented description of duties and qualifications (e.g. position description)

• reflect the required duties and qualifications for the work to be performed

• be developed from, and weighted in accordance with, the relative importance of the duties of the work to be performed

• be established at the outset and not changed during the selection process

Recruitment

Selection

Screening and Rating

8.29. Employee selection must be based on a thorough assessment of a candidate’s ability to demonstrate the qualifications required for effective performance.

8.30. For permanent work, candidates must be assessed using at least one screening method (e.g. review of resumes) and multiple rating methods (e.g. work samples, presentations, interviews, talent management assessments, etc.).

8.31. All screening and rating methods used must be valid, bias-free and reflect pre-determined selection criteria.

Pre-Employment Checks

Reference Checks

8.45 Prior to extending an employment offer, a manager must complete a reference check:

• when staffing a permanent assignment

• when the proposed hire is external to the OPS.

8.46 Information collected in reference checks must be employment-related, objective and consistent with pre-established selection criteria. Reference checks must comply with the Human Resource Privacy and Security Guidelines.

14. Appendix B - Terms and Definitions

For purposes of this policy, these terms have the following meaning.

Rating Method: Selection technique used to assess and evaluate candidates (e.g. interview).

13Section 8.30 of the Policy has changed since the Board considered it in 2013 in Mitta. At that time, the Policy (then s. 9.2) required the use of “at least three rating methods” (see para. 24 of Mitta, supra). The common meaning of the word “multiple” used in the current section 8.30 is “more than one”. Having regard to the change in the Policy and to that usual interpretation of the word “multiple” (and in the absence of any express definition in the Policy), the Policy is reasonably interpreted as requiring that more than one rating method be used.

14The Employer document “Reference Checking – Guide for Hiring Managers” confirms that reference checks may also be used as a ratings method, indicating that the examples set out in section 8.30 of the Policy are not exhaustive.

15Ms. McGonigal designed the competition with the support of Recruitment services from TAB. A presentation and an interview constituted the two rating methods utilized by the Employer. The Employer did not independently consider experience or performance in the role. The posting identified the competition as “open targeted”. This meant that applicants both internal and external to the OPS were eligible to apply. There was no dispute that the Employer was entitled to structure the competition as ‘open’, expressly seeking a broad range of applicant.

16The selection criteria established by the Employer were not challenged. These are the identified skills and abilities required by the position – the qualifications that the panel is asking candidates to demonstrate in the competition. The Complainant agreed that she was able to ascertain the selection criteria from the job posting. They were set out under the heading “How do I qualify?” and identified leadership skills, relationship management and communication skills, technical skills, and strategic thinking and change management skills.

17Resumés were used as the screening tool, to determine which applicants would advance to the presentation and interview stage of the competition. They formed part of the Interview Binder available to panel members.

18There was no evidence as to whether the rating methods were expressly identified to the candidates as such. However, the candidates were assigned the 10-minute presentation 7 days in advance, and they received the interview questions apparently 24 hours in advance. The Complainant prepared notes and acknowledged that she referred to her notes during the interview. There was no dispute that the assigned presentation and the interview questions appropriately addressed the selection criteria.

19Both the Complainant and Incumbent are valued members of the OPS. The Employer acknowledged this fact, including at this hearing. In each of the four years prior to the competition in issue, the Complainant achieved an “Outstanding” rating on her performance reviews for work completed in the MCO role, while located in geographically different court services. That rating confirms that she exceeded all expectations established for the position. At the time of the competition the Complainant had spent 8 successful years in the MCO position. The Complainant had, in total, over 18 years of management experience in the Ministry, including prior experience in the MBS position, the position then held by the Incumbent.

20The Incumbent had just over two years of experience in the MBS role at the time of the competition. Kelly Dale, an MCO and Acting DCO during Ms. Roes’ tenure as MBS, testified as to superior work the Incumbent had completed at the outset of COVID in relation to increasing technical capacity within courthouses and facilitating virtual court appearances. Ms. Dale described the MBS role as the “right hand person for the DCO”. Ms. Roes had previously worked as Modernization Coordinator for the West Region, a supporting role to the DCO, and as Supervisor of Court Operations in the Guelph/Kitchener court services for 4 years, reporting to the MCO.

21As to performance on the job, reference checks done on both the Complainant and the Incumbent indicated that both candidates were high performers.

22The MCO and MBS positions fall with the same M11 classification. The MCO is responsible for the “frontline” management of a courthouse location, including staffing, business lines, and facility management. Although responsible for significantly fewer staff than an MCO, an MBS has a broader regional scope of financial responsibility supporting the DCO.

23Ms. McGonigal scored the Complainant higher than she was scored by the other two panel members. However, although their ratings differed as across the presentation and interview questions, all three panel members scored the Incumbent higher than the Complainant.

Experience in the position

24Relying on the Board’s decision in McCready, supra, the Complainant asserted that experience and performance in the position were factors that ought to have been independently considered and were not. This argument was framed as the Employer failing to consider relevant factors. The Complainant asserted that consideration of her time and performance in the same job required that she be the successful candidate.

25It was the position of the Employer that the skills acquired through that experience need be reflected and demonstrated in the interview and the presentation and that a merit-based assessment includes reducing barriers that could be created by independently considering experience. While acknowledging that experience and performance in the role might be utilized as a rating method, Ms. McGonigal had not seen or used those criteria in the approximately twenty managerial competitions in which she had been involved across different ministries.

26The Complainant argued that independently considering experience in the position was necessary as interviews were insufficient as a rating method. She asserted that the Employer must conduct a thorough assessment of actual merit, not merely interview performance. Referring to the decisions in McCready (para. 11) Mitta (para. 95), and Naczynski, all supra, she noted that many people do not perform as well in interviews as on the job.

27The decision in McCready states that “performance on the job remains independently relevant in the assessment of skills, abilities, and attributes” (para 11). However, the circumstances reflected in that decision render it of limited, if any assistance here. Of note is that it represents a summary decision. There is no indication of any argument advanced in that case relating to rating methods, the Policy, and/or its application. It makes no reference to the Policy, selection criteria, or selected rating methods. The factual underpinning of the decision showing flaws in that competition flowed from an investigation conducted by the Employer, accepted by the parties, and adopted by the Board for purposes of that decision. Of more import, it references performance on the job, which could include performance in any role, and does not speak to experience in the position (in that case the complainant was seeking a promotion from Team Lead to a manager’s position). The decision does not stand for the proposition that the Employer must consider experience in the position independently of other chosen rating methods.

28The circumstances of this case are also distinguishable. There is reliance by both parties on the Policy and its specific requirements. There was also no assertion by the Complainant of any inability to demonstrate her skills, abilities, and experience through the presentation and/or an interview. To the contrary, and the Complainant’s interview skills were confirmed by Ms. Dunn. Any concern about the rating methods utilized here might well be rendered immaterial and of no consequence in that context.

29However, the Employer also explained why it did not independently consider experience. According to Ms. McGonigal, independently considering experience in the position could lead to predetermined outcomes and would be unfair, as it would advantage those candidates with such experience. As apparently asked rhetorically by Ms. Leonard in her meeting with the Complainant, why run a competition if experience in the role was determinative. The outcome would be a foregone conclusion. The Employer was conducting an open targeted competition, and it was structured in such a way that all candidates would have the same opportunity to describe their skills and abilities in relation to the selection criteria. The Employer considered its use of rating methods as a means of determining merit while at the same time reducing barriers in recruitment by allowing (and requiring) all candidates to similarly demonstrate their skills and abilities through those utilized rating methods.

30Ms. McGonigal noted that she had obtained her DCO position further to a competition at a time when she had limited DCO experience yet was awarded the position over another candidate with more experience in the role. Any direct comparison is not particularly helpful as the amount of those candidates’ experience in the role did not compare with the Complainant’s eight years of experience in the MCO position over the Incumbent’s lack of experience in the role. However, according to the Employer, that experience could and should have been readily expressed and reflected through the presentation and interview process, noting that the Complainant had evidenced past success in competition processes for MCP positions, including the MCO position.

31At the time of the competition, Debbie Dunn was DCO for Central West Region and the Complainant had reported to her since 2017. Ms. Dunn spoke to her own experience in recruitment, including for the MCO position, and was asked to comment on various matters regarding this competition. In cross-examination Ms. Dunn acknowledged that a candidate with prior experience should and would be likely to bring forward examples of that work to demonstrate competency, that the experience should become obvious in the strength of the candidate’s answers and would inform the quality of one’s answers.

32The Complainant relied on several decisions of the Grievance Settlement Board (“GSB”) to assert that the Employer is required to consider experience in the position independently of an interview. It has been noted in numerous Board decisions that the employment of excluded employees is based on an individual contract of employment and that the terms of employment are different from those employees who are represented by a bargaining agent and covered by the terms of a collective agreement. Ms. Dunn acknowledged that recruiting for OPSEU positions was different from recruiting for an MCP position.

33Excluded employees are not subject to a collective agreement that recognizes and gives weight to seniority, a factor that inherently acknowledges experience. The jurisprudence emanating from the GSB has developed in the context of a collective agreement commitment from the Employer that where candidates’ skills and abilities are relatively equal, the senior candidate will be awarded the position. That enables a robust review by the GSB of the Employer’s assessment of skills and abilities so as to ensure there has been no abrogation of those seniority rights. That is not the test for an excluded position and the standard of review by this Board is more limited.

34It is the Policy that establishes the terms and conditions of employment for the Complainant in relation to competitions. That is the extent to which the Employer has committed itself in its contract of employment with the Complainant.

35The Policy stipulates that candidates must be assessed using multiple rating methods. That stipulation does not mandate the number of rating methods to be used in a given competition, except to require at least two. Unlike in Mitta, supra, there was no suggestion that the rating methods chosen are not accepted methods. (The Complainant’s dispute as to how those rating methods were implemented is considered later).

36The Policy further requires a “thorough” assessment of a candidate’s ability to demonstrate the qualifications required for effective performance. Throughout, the Complainant essentially argued that the competition was not thorough enough, by asserting that the Employer was required to consider her experience in the position independently of the chosen rating methods.

37There are inevitably degrees of thoroughness. The Complainant did not argue that she was somehow limited or precluded from identifying/proffering her experience acquired in the MCO position during the presentation and/or interview. A review of the requirements of the presentation confirm that it specifically asked candidates to describe “how your skills and experience position you to excel as the Manager” (emphasis added). While asserting that the process was flawed due to the failure to independently consider her prior experience in the position, the Complainant did not address the inherent unfairness for other candidates were prior experience in the position be given weight independently of the presentation and interview. Those candidates would be competing at a disadvantage. The issue of how thorough the Employer’s assessment is required to be is a question of reasonableness having regard to the circumstances. The Board has also noted that it is incumbent on an applicant to present themselves “in the best and most thorough way” that they can (page 8 McAdam, supra.).

38In Mitta the Board concluded that the assessment of candidates “would have been more thorough if personnel files had been reviewed, references had been contacted and resumés considered by all members of the panel” (emphasis added) (para. 95). The Board found this to have been a flaw in the process. However, that flaw did not invalidate the rating methods used (para. 97). Nor did the Board find that, absent those flaws, the result would have been different. The complaint was dismissed. The decision does not consider the issue of ensuring that all candidates can compete from a level playing field by not preferencing those with experience in the position. Of note, the decision states that there was no evidence that Mr. Mitta did not get credit for his experience, even while there was no specific scoring of that element (see para. 103).

39I therefore hesitate to place much weight on that decision for the proposition that a more thorough assessment utilizing these additional resources was required by the Policy. There can be no dispute that considering additional resources would always result in a more thorough assessment. Given a multiplicity of factors and objectives, there may be legitimate policy debates as to what constitutes a best practice. The legal test, however, is one of reasonableness.

Other potential rating methods

40The Employer also did not use resumés or reference checks as a rating method and did not independently consider performance ratings. This was also challenged by the Complainant as reflecting an incomplete process (not sufficiently thorough), and not reflective of a decision based on merit. According to Ms. Dunn, performance plans are important as it tends to hold true that past performance is a good indicator of future performance, subject to life events.

41Ms. McGonigal noted that performance appraisals and/or ratings are not available except to the direct manager during the period of that direct report. The Complainant agreed that, absent making past performance a rating method, hiring managers do not have access to performance ratings (also described as a talent management assessment). Typically, those ratings would come to light through a reference check provided by the direct manager. A candidate can also reference performance ratings through the interview process as evidence of how demonstrated skills have been independently assessed.

42The Complainant testified in chief that failing to consider references prior to making a decision constituted a flaw as she had always been required to use three ratings methods when conducting a competition. The Employer’s document “Reference Checking - Guide for Hiring Managers” at pages 24-25 expressly contemplates that reference checks may or may not be used as a rating method. (See for example the decision in Vipari, supra, at page 3, where references were used as a rating method). If not used as a rating method, the document sets out that reference checks are to be used as a verification tool, that is, to verify information gleaned through the rating methods, such as an interview. That validation purpose is further confirmed in the “Guide to 360 Reference Checks” found at page 103 of the Interview Binder.

43Reference checks were conducted with respect to the Incumbent and the Complainant after they had been identified as having placed first and second in the competition. According to Ms. McGonigal, reference checks were used as a verification tool and in compliance with Article 8.45 of the Policy which requires a manager to complete a reference check prior to extending an employment offer when staffing a permanent assignment. Because they were used only for verification and disclosed no issues, Ms. McGonigal did not share the results of the reference checks with the other panel members.

44Ms. Dunn typically conducted reference checks as part of the review process with the panel so as to ensure that the information provided by the candidates was verified and accurately reflected the work they had done. Unlike Ms. McGonigal, she shared that information with the panel before they ranked the candidates. Even so, Ms. Dunn testified that a rating would only be changed as a result of a reference check where it was determined through the reference that an untruthful answer had been given during the interview.

45Notwithstanding, Ms. Dunn also testified that, although not rated or weighed, references still form part of the selection process, in addition to the resumé and interview responses as it is relevant information before the panel. According to Ms. Dunn, it validates one’s performance. In this case, the reference checks confirmed that both candidates were high performers.

46Ms. McGonigal understood that she was not required to conduct reference checks on both candidates but did so on the advice of Ms. Leonard, after informing her that the Incumbent had ranked higher than the Complainant. Ms. McGonigal consulted Ms. Leonard and TAB before making an offer. She was advised to focus on the selected rating methods.

47The competition established appropriate selection criteria. Prior experience in the position was not identified as a selection criterion or a rating method (see by way of contrast the decision in Paul, supra). Multiple rating methods were utilized to assess those selection criteria in accordance with the Policy requirement.

48I find that the Employer’s choice of rating methods, that being a presentation and an interview, were reasonable in the circumstances. Those rating methods were consistent with the Policy and provided both an opportunity to candidates to demonstrate their competencies and a reasonable means of assessing the relevant skills and abilities, including those attributes developed through experience, whether in the position or more generally. The assessment was structured so as to provide all candidates with the same opportunity to identify and explain their skills, abilities, and qualifications in relation to the stated selection criteria. No concern requiring any accommodation of those means of assessment was raised. The utilized rating methods accounted for, and allowed for a scope of assessment that met the Employer’s concurrent goals of assessing merit, providing fairness, and reducing barriers to recruitment.

49I do note that rating methods that change from competition to competition can create uncertainty, potentially leading to unfairness if candidates are not aware of the specific rating methods to be used. As noted at paras. 34-36 and 90 in Paul, supra, that complainant had the highest interview/test score but was not awarded any of three available positions because he lacked experience in the role. The Policy (Art. 8.5) requires that selection criteria be established at the outset and not changed. It appears to be silent with respect to the rating methods used. That leaves open the possibility of the rating methods being changed either during, or after a competition, during the assessment of candidates. Such an approach is likely not justified in light of the Employer’s policy statements requiring transparency and fairness. There is no evidence that such was done either in Paul or in this case. That potential does however suggest that rating methods be expressly identified at the planning stage and communicated to candidates in advance of the competition so that they are aware not only of the section criteria, but also the specific means by which those criteria are being assessed. See, for example, para. 6 of the decision in Mitta, supra, where the evidence disclosed that candidates were advised they would be subject to a project/presentation, an exam, and an interview. Candidates were also told to assume that the panel knew nothing of their capabilities even though one panel member had worked with at least four of the candidates.

Other structural considerations

50The Complainant also challenged the application of the rating methods as subjective, as no prescribed/desired responses and no weighting were identified. In her view, the selection criteria were not measurable as there were no expected responses. The Complainant relied on page 21 of the Interview Binder under “Best Practice Tips to Remove Interview Related Barriers”, which states that interviews need to be standardized and that “[a]ll questions need to have a range of benchmarks answers [sic] with assigned scores…”. This Guide does not appear to distinguish between competitions for bargaining unit positions and excluded managerial positions. The Complainant asserts that the lack of expected responses (and an identified correlation between the questions posed and the selection criteria) reflects a flawed process. The ‘practice tip’ relied on does reflect an approach having clear parameters.

51However, at pages 39-40, the Interview Binder also contains a rating scale specific to MCP competitions. This ratings scale identifies 4 ratings (scores) of “did not meet”, “met some”, “met”, and “superior” to be assigned by panel members in relation to the content of each interview response. The rating scale for the presentation provides those same 4 ratings in relation to each of “content, material, delivery, and discussion management/follow-up”. That four-level rating scale applies as a measure of the demonstrated ability to apply the competencies identified by the selection criteria. That is, candidates’ responses are to be ‘scored’ having regard to the various selection criteria.

52While more open-ended than being provided with expected responses, this rating scale does require panel members to assess and measure a response in relation to the selection criteria. It also provides a form of benchmark by establishing criteria for assigning the various ratings (scores).

53Ms. McGonigal disagreed in cross-examination that a lack of identified expected responses necessarily led to greater subjectivity and noted that TAB does not require benchmark answers for management competitions. Although unable to recall when it changed, and noting that it differed from OPSEU competitions, Ms. Dunn acknowledged that there was no longer a point system for MCP competitions, but rather “more a qualitative ranking scale”.

54In an email to the Complainant dated August 16, 2023, Yuchen Lin, from Treasury Board Secretariat, advised that for manager level recruitment, the Employer sought “to encourage panelists to feel less attached to a prescribed expected response and enable open and thoughtful discussion about each candidate following the interview, in order to determine where they land on the rating scale”. As such, there were no expected responses developed for the panel to consider.

55As an aside, the Policy stipulates that selection criteria be weighted in accordance with the relative importance of the work duties (s. 8.5). In this case the selection criteria do not appear to have been expressly weighted, or that weighting may not have been communicated to the candidates. The evidence is insufficient to draw any conclusion (see by comparison paras. 5-7 in Mitta, supra.). Arguably, where no express weighting has been assigned as between the selection criteria, it can reasonably be assumed that the selection criteria are of equal weight/importance.

56Of perhaps more import is that the Policy does not appear to require an identified weighting as between the utilized rating methods, for example, a weighting of 40% to a presentation and 60% for an interview. A review of each panel member’s notes in the Interview Binder indicates that they considered each of the four interview questions and the presentation to be of equal weight. Each Interview Score Sheet rated each separately and then a candidate ranking was provided.

57A weighting of the rating methods was identified and communicated in Mitta, where candidates were told that the project/presentation was worth 40%, the exam worth 15%, and the interview worth 45% of the assessment. A weighting of rating methods must be applied in any competition as a logical necessity, even while the Policy appears to be silent in that regard. The MCP rating scale also does not identify what constitutes ‘relative equality’ as between candidates, even while the Employer asserts that hiring managers can further consider “fit” in such circumstances (reviewed below at para. 70). Nor does it address what is to be communicated to candidates. These issues were not raised/argued.

58While the identification of expected responses seeks to enhance objectivity, those expected responses may also be limiting, both for the Employer and for candidates. The identification of expected responses may derive from and reflect an accepted and/or status quo understanding of both the role and how differing skills, abilities, and qualifications may be brought to bear in relation to the work. They may thereby limit the Employer’s search for skills, while at the same time creating barriers for some candidates who have less familiarity with existing parameters and the workplace environment, yet have skills that are transferable and innovative.

59The MCP rating scale does require panel members to actively and more broadly consider how the required competencies are being demonstrated. It does rely on each panel member being both willing and able to bring an open and thoughtful approach to the competition that would include things like careful objectivity and a lack of favouritism, recognition of both conscious and unconscious biases, no rush to judgment, as well as a willing consideration of a broader scope of possible outcomes and/or options than the status quo.

60And see the Board’s decision in George, supra, at pages 28-29 where, contrary to the Complainant’s submission that this is the first occasion for this Board to consider that ‘more qualitative’ scheme, pre-determined answers and a numerical scoring scheme were found not to be required by the Employer’s then policy directive. Nor was their absence found to constitute a flaw in that competition.

61I am unable to conclude that a lack of expected responses necessarily results in a flawed structure. Rather, the Employer has instituted a different process for assessing candidates for MCP positions. That process continues to expect a thorough assessment of candidates’ responses having regard to the identified, required competencies (the selection criteria). It also continues to require the assignment of a ‘score’ to those responses in order to be able to make an assessment as between candidates. The Employer’s MCP rating scale allows for more varied input from candidates and an assessment of perhaps unexpected but relevant demonstrations of skills and abilities. The Employer has reasonably preferenced this potentially broader scope of input consistent with the Policy principles of merit, inclusion, and objectivity.

62Having regard to the above, I am satisfied that the Employer was not required to consider the Complainant’s experience and/or performance in her MCO position outside, or independently of what was put forward by her in the presentation and interview. I am further satisfied that the competitive process structured by the Employer complied with the terms of the Policy, but for its seeming failure to expressly weight the selection criteria. However, there was no evidence of any detriment flowing from that omission.

The running of the competition

63The presentation was offered by the candidates in advance of their interview. Four questions formed the basis of the interview for each of the 5 candidates. As noted earlier, the presentation topic and the interview questions put to the candidates appropriately addressed the selection criteria.

64The presentation and each response in the interview were assessed based on the rating scale referred to in para. 51 above. Ms. McGonigal testified that each panel member made their own assessments, assigning a rating following each presentation and interview question, and, at the end of the interviews, ranked the candidates according to their assessments. She testified that that process was complete before there was any discussion among the panel members about the candidates, a matter reviewed later in the decision. That panel members would score candidates independently of each other was consistent with Ms. Dunn’s expectation. Ms. Lin’s email of August 16, 2023 seems to suggest a different process, but this approach is consistent with the Board’s decision in Majkot, supra, where the Board found consensus marking to be evidence of an unfair process (pages 10-11).

65Ms. Gendron did not know the Incumbent and had limited knowledge of the Complainant from some meetings mutually attended. She was from a different Region. Mr. Sumbal knew neither the Complainant nor the Incumbent. Ms. McGonigal had met the Complainant. As of April 2021, when Ms. McGonigal became DCO, the Incumbent reported to her. Ms. McGonigal testified that she would not and did not consider any personal knowledge of any of the candidates so as to ensure that the competition was fair and equitable. Ms. Dunn noted that as hiring manager she relied on panel members who did not know the candidates as a means of checking any biases or assumptions on her part, as she often had some knowledge of at least some of the candidates.

66I note here that there is no basis on which to generally discount the evidence of Ms. McGonigal. There were matters that Ms. McGonigal stated she could not recall. She was careful not to criticize. As reviewed below, Ms. McGonigal recorded comments of other panel members that operate against the Employer’s interest, yet she included them in the Interview Binder, arguably representing evidence of her intention to run a fair and transparent competition. She noted that she had expected that the Complainant would be the successful candidate and that it would have been easier and less work for her had that been the result. Having the Incumbent vacate the MBS position required Ms. McGonigal to run another competition to fill that role. However, it was also the case that she worked with the Incumbent who was a ‘known quantity’.

67There was no dispute that the hiring manager has and makes the final decision. As noted earlier, while Ms. McGonigal scored the Complainant higher than both other panel members, she also scored her lower than the Incumbent. She found, for example, that the Complainant’s presentation had lacked depth and strategic considerations, notwithstanding that the candidates each had 7 days to both reflect and research the presentation questions. Ms. McGonigal disagreed with the Complainant that having not worked in the Kitchener courthouse limited her ability to know the challenges it might be facing. The Incumbent was not working in the Kitchener location at the time yet had referenced current challenges in her presentation. Ms. McGonigal reviewed each of the questions and the two candidates’ responses and indicated what she saw as indicative of, or lacking in effective responses.

68Ms. McGonigal testified that the Incumbent had an “exceptional” interview demonstrating high level skills having a transformational impact on the Ministry’s business model. She also testified that the Complainant had a “good” interview, and she provided both positive feedback and some suggestions for future competitions in a debrief meeting with the Complainant after the competition concluded. Ms. McGonigal assessed the Incumbent as having demonstrated greater competencies than the Complainant in the competition and found she was therefore appropriately identified as the successful candidate.

Irrelevant factors alleged to have been considered

69It was alleged that panel members considered and were influenced by factors that were irrelevant. That evidence was reflected primarily in notes included at page 47 of the Interview Binder. The Interview Binder is a digital document that provides each panel member with a digital template of the presentation and interview questions for each candidate. Each panel member is able to enter their own notes under each heading for each candidate. The notes at page 47 were added by Ms. McGonigal during the ‘debrief meeting’ and reflect comments/considerations she was offered by the other panel members during that discussion, after the interviews had been completed and the candidates had been ranked. Ms. Dunn had not been shown these entries in the Interview Binder prior to testifying but was asked to comment on them. Her discomfort in both the nature of the entries and being asked to comment about others’ work was evident.

70Ms. McGonigal referred to these notes as being offered for “fit”, a factor she identified as available to be considered in management competitions if considering comparable candidates. She testified that TAB considers “fit” to be a proper consideration where one needs to decide as between relatively equal candidates. She described it as not intended to overrule the results of a competition and that, in any event, she did not consider “fit” as she determined there was a clear winner in this competition. Ms. McGonigal testified that she took none of the comments made by the other panelists into consideration as the outcome of the presentation and interview scoring had provided a clear winner of the competition.

71The comments recorded by Ms. McGonigal at page 47 included an assessment by Ms. Gendron of the Complainant as “entitled”, “very out of touch”, and “came across as very insensitive”. These judgements were all based on Ms. Gendron’s assessment of the Complainant’s response to a question posed by Ms. McGonigal prior to the presentation/interview process while they were waiting for the arrival of Mr. Sumbal. Ms. Gendron referenced this assessment in her own notes at page 69 of the Interview Binder, noting that it was a “pre-interview discussion”. The Complainant understandably took exception to being so described.

72Ms. McGonigal had asked the Complainant about a planned vacation, a personal question intended to put the Complainant at ease prior to the interview. The undisputed evidence of the Complainant was that her response was taken out of context, was misunderstood, and was a follow-up from an earlier conversation she had had with Ms. McGonigal, and of which Ms. Gendron knew nothing. Ms. McGonigal recalled having an earlier conversation about an upcoming vacation and did “vaguely” recall the Complainant indicating she was no longer going to the Dominican Republic but was going to Jamaica instead. When put to her by the Complainant that she was earlier “giving me pointers” about sites in the Dominican Republic, Ms. McGonigal could not recall but acknowledged having travelled there in 2022. That and the Complainant’s evidence differ factually from the notes made by Ms. Gendron (which reference Puerto Rico), supporting a conclusion that Ms. Gendron misheard and/or misinterpreted the Complainant’s response.

73Ms. McGonigal agreed that she would not make notes of anything that occurred prior to an interview, indicating that she had not relied on pre-interview discussions in other competitions in which she had been involved. When asked if she would consider such discussions, she stated “I don’t believe so”, taking care to avoid commenting on Ms. Gendron’s reference, stating that she could not speak to how others would respond or react. She later testified that if the comments were completely misaligned with OPS values or policy or were egregious, that might be a circumstance where it would be appropriate to consider pre-interview comments.

74Ms. Dunn testified that any discussion that occurred pre-interview was irrelevant and should not form part of the Interview Binder. She noted that candidates should not be pre-judged. She testified that a job competition is not based on how one perceives a candidate (in reference to the comment “seemed very entitled”) but based on an assessment of the candidate’s qualifications and skills. Advice provided in the Employer’s “OPS Recruitment Inclusion Lens – Selection Stage” document warns against relying on carelessly formed, pre-conceived and improperly biased impressions of a candidate.

75Ms. Gendron did not testify. The Employer argued that these notes were hearsay and that the Complainant ought to have called Ms. Gendron to testify as to her comments. I disagree. The notes were made in the course of the Employer’s business and are documented in the Interview Binder, a business record that the Employer requires be maintained. As such that business record stands as an exception to the hearsay rule.

76In the same way that it would be improper to consider personal knowledge of a candidate (favourable or otherwise), it is procedurally improper for a panel member to consider comments made outside the competitive process and in the absence of the full panel when assessing a candidate.

77It is difficult to assess the extent to which the view developed as a result of this pre-interview conversation may have influenced Ms. Gendron in her assessment of the Complainant during the competitive process. That Ms. Gendron made note of it at the outset of the Complainant’s presentation (page 69 of the Interview Binder) and subsequently raised it during the debrief meeting suggests that it remained on her mind, suggesting it had some influence in her assessment.

78Ms. McGonigal had not seen Ms. Gendron’s comment at page 69 of the Interview Binder until preparing for this hearing. The comments at page 47 of the Interview Binder were provided after each panel member had scored and ranked the candidates. The evidence does not support a conclusion that the remaining two panel members were aware of or influenced by these comments when they assessed the candidates.

79However, having received the comments noted at page 47 in the debrief meeting, Ms. McGonigal would have been aware of the possibility that Ms. Gendron had been influenced in her assessment of the Complainant by comments made outside the competitive process and took no action to inquire as to the extent of any influence. The Employer relies on her decision to ignore the comments as the scoring provided a successful candidate. However, whether the Complainant would have been scored higher by Ms. Gendron in the absence of an assessment of the Complainant as evidenced by these comments is unknown.

80Might the outcome of the competition been affected had Ms. Gendron not made this pre-interview assessment? Having carefully reviewed the scoring by the panel members, even had Ms. Gendron assessed the Complainant as ‘superior’ in all categories, the Complainant would still have fallen short of the Incumbent’s rating taking all the panel members’ ratings into account. (The same outcome would prevail were Ms. Gendron’s scores of both candidates be disregarded in their entirety.) Absent more, any flaw in the assessment of the Complainant reflected by the comments made by Ms. Gendron regarding the pre-interview discussion would not have affected the outcome of the competition and would not form a basis for overturning the results of the competition.

81The following was also recorded by Ms. McGonigal at page 52 of the Interview Binder:

Ann felt very scripted answers, started well, D & I answer went long. Impacted 3-4, very rich in depth, very confident speaker, comments re performance management. Thinks both candidates are good, found Jess’ answers too long. Makes it easier for panel, equally good candidates.

82These comments were entered at the end of Ms. McGonigal’s template relating to the Complainant. Ms. McGonigal acknowledged making the notes and attributed the comments to Ms. Gendron. There was no suggestion that the notes were not made contemporaneously to Ms. Gendron making the comments.

83Ms. McGonigal testified that she could not recall which candidates they referred to. This was disingenuous. Use of the word “both” indicates that the comments refer to two candidates. The comments are found at the end of Ms. McGonigal’s interview notes relating to the Complainant and make express reference to “Jess”, the Incumbent. It is apparent, and certainly more likely than not, that the comments are referable to the Complainant and the Incumbent.

84When asked in cross-examination when these notes were made, Ms. McGonigal testified she could not recall and that she could not recall the order of the interviews. However, in her notes, Ms. McGonigal recorded various times when interview questions were posed to the candidates. Those entries indicate that the Incumbent was the first to be interviewed, followed by the Complainant. That is consistent with the interview schedule at page 41 of the Interview Binder. The notes follow the notation of a question posed by the Complainant at the end of her interview. The content and location of the comments indicate they were made at the end of the Complainant’s interview.

85Ms. McGonigal testified that there had been no probing of the comments, and she relied on the scoring done by each panel member. The Complainant argued that the reference to “equally good candidates” indicated that had Ms. Gendron not been biased against her, the Complainant would have received higher marks. Unlike Ms. Gendron’s pre-interview assessment, her comments here do reflect more positively on the Complainant and suggest an assessment that is inconsistent with her scoring.

86Further, contrary to Ms. McGonigal’s testimony, I find there was some discussion of these candidates during the interview process and not only during the subsequent debrief meeting. Whether individual assessments of the Complainant had been completed at that time is subject to Ms. McGonigal’s general evidence as to how the scoring was conducted, evidence that was not reviewed in more detail in cross-examination.

The “age factor”

87I turn now to the most troubling entries at page 47 of the Interview Binder. As noted earlier, these record comments offered during the debrief meeting by the panel members about the Incumbent and the Complainant. The words “age factor” appear. The notes further include reference to an “old style leadership vs new leadership”. Further comments record that the Complainant “is very seasoned. [S]he was a little stale in terms of her concepts, leadership strategies/behaviours.” There is an unattributed notation asking, “Who has more rooms [sic] for growth?”

88The Complainant argued that these comments were all related to age and cannot be considered in a hiring decision. While the Complainant did not expressly argue that the Ontario Human Rights Code (the “Code”) had been violated, she did allege in her particulars and in her evidence in chief that considering age in hiring was discriminatory and did argue that taking age into account was improper. It was not disputed that the Complainant is older than the Incumbent, as evidenced by the significant difference in their levels of experience.

89Discrimination in employment on the basis of age is contrary to s. 5.1 of the Code. A violation of the Code amounts to more than a flaw in a competition. It is a violation of a statutory and quasi-constitutional protection. It need not be the main reason for the disadvantage in employment; it need only be part of the reason for that disadvantage.

90Asking who has “room” to grow instead of asking whether there is an “ability” to grow is suggestive of an underlying consideration of age. It is also the case that comments such as “seasoned” leadership and “stale” concepts can be ‘code’ for age-related discrimination. A comparison of ‘old versus new’ leadership styles may or may not be correlated to age. Reference to “age factor” is overt as an explicit factor as between the two candidates.

91I am satisfied that the fact of these entries in the Interview Binder gives rise to a prima facie case of age discrimination. They are recorded comments made by panel members during their post-interview discussions in relation to the Complainant’s candidacy. On their face the notations indicate that an “age factor” was considered to the detriment of the Complainant. In the result, an evidentiary onus shifts to the Employer to demonstrate that age was not a factor in conducting the competition.

92The evidence available is the record of each panel member’s notes taken during the candidates’ presentations and interviews and the testimony of Ms. McGonigal.

93Ms. McGonigal testified that she did not consider anyone’s age. She acknowledged that she had referred to “young” SCOs in the Kitchener court, referring to individuals with less experience. This evidence was not challenged by the Complainant. Ms. McGonigal agreed that it would not be appropriate to consider who had more room for growth, even for ‘fit’.

94Ms. McGonigal was less clear about the other comments that might relate to age. She could not recall details as to which panel member had made certain comments or what they had intended. She noted three years had passed and she testified that she had not considered the comments at the time.

95I have carefully reviewed all of the panel’s notes, including these entries. I have considered to what extent the comments might be attributable to an assessment of the Complainant’s leadership style, a factor that I accept as relevant in assessing one’s leadership and communication abilities. So, for example, in relation to her presentation, the Complainant challenged Ms. McGonigal’s assessment of “comes across as more of an autocratic leader”. While the Complainant may disagree with the characterization, the hiring manager is entitled to draw that conclusion based on their assessment of the presentation, as it reflects a relevant skill. However, that interpretation was not asserted by Ms. McGonigal in relation to the impugned comments and the Board must assess the evidence and not impute intention where no evidence of intention and/or explanation has been proffered.

96The notes record that Mr. Sumbal described an “old style leadership vs new leadership”, a comment that may or may not reflect consideration of age. He did not testify. The Complainant is then referred to as being “very seasoned”, and “a little stale in terms of her concepts, leadership strategies/behaviours”. These comments are noted as in relation to the Complainant as a person, supporting a conclusion that the personal attribute, that being age, was being considered.

97Those comments must be considered in light of the words “age factor”, overt and objective evidence of the Employer’s consideration of a prohibited ground under the Code. That age was a factor is supported by the other comments. I have no evidence from the Employer as to what was referable or intended by those remarks. There is also no evidence that those comments did not influence the panel members in their consideration of these two candidates, to the detriment of the Complainant.

98That the other panel members were not called to testify properly gives rise to the drawing of an adverse inference against the Employer. That is particularly the case where the evidentiary onus has shifted to the Employer. It was not incumbent on the Complainant to call these individuals once a prima facie case of discrimination was established.

99After careful and considerable review, and based on the evidence before me, I am unable to conclude that the Employer has met its evidentiary onus to provide an explanation or underlying rationale for the comments made, such that I am left with the prima facie case of discrimination established by the Complainant. I find therefore that the Complainant has met the legal onus of establishing that a prohibited ground under the Code, age, was a factor in assessing her candidacy and that the Employer thereby violated s. 5.1 of the Code.

100The Employer argued that the comments are irrelevant as Ms. McGonigal did not take them into account and the choice of candidate was her decision. While the hiring manager has the ultimate authority to make a decision, the competition is run using a panel. To simply ignore the input of the panel would be contrary to the rationale for having a panel in the first place. Moreover, while Ms. McGonigal testified that she did not take the comments into account, she did take the panel members’ scoring into account.

101In receiving these comments, Ms. McGonigal was aware that an “age factor” had been raised. She testified that she did not take age into account but, in the face of these remarks, made no inquiry as to whether the other panel members had done so. Yet she relied on their scoring to determine that the Incumbent was the successful applicant. I note that, even while Mr. Sumbal ranked the Complainant as second, he scored the Complainant at the same level as the fourth ranked candidate, below the other panel members’ scores. Ms. Gendron also scored the Complainant lower, even while seemingly assessing the two candidates during the competition as “equally good”. There is no way to assess to what extent consideration of age affected the scoring. Nor can one simply ignore that scoring and rely solely on the scoring done by Ms. McGonigal, as the panel’s assessment and input, properly given, might have persuaded Ms. McGonigal to reach a different conclusion.

102Unlike the flaw in considering the pre-interview discussion, it would be improper for the Board to attempt to assess whether the outcome would be different in the absence of discrimination. The finding of a breach of the Code goes beyond a “flaw” in a competition and warrants a determination that the competition be re-run so as to ensure that the Complainant’s statutory rights are protected.

Other factors

103The Complainant raised other issues in relation to the running of the competition and the factors considered by the panel. Those included notes at page 47 of the Interview Binder questioning whether there was a risk of losing either of the candidates if they were not awarded the position and reference in the notes to the Incumbent as the named “successor” in her Region without similar reference to the Complainant as named “successor” in her Region. The Complainant also raised concerns about both the quantity and quality of the note-taking by panel members, asserting a lack of careful attention to the interview responses. So, for example, the Complainant took issue with the accuracy of Mr. Sumbal’s notes in that, in his notes on her presentation, he referred to the Complainant as having experience in “similar roles” in other Regions instead of recognizing that the Complainant had 8 years of experience in the same role. However, his notes under Question #4 record that the Complainant was the MCO in Hamilton. In any event, it is equally incumbent on a candidate to ensure that panel members are aware of and accurately understand the experience they bring. The Complainant’s assertion that notes were not taken contemporaneously, relying on the use of a past tense, is not supported by the evidence. There is no basis on which to discount Ms. McGonigal’s evidence that the panel members took notes during the presentations and interviews.

104The Complainant also asserted there were inconsistencies between notes made during the interview and comments from Ms. McGonigal in the debrief meeting, asserting those as evidence of subjective marking during the competition. A debrief meeting is an opportunity to hear from the hiring manager as to how a candidate might enhance their performance in future, using examples of responses given. It is not a surgical review of the competitive process. Ms. McGonigal was unable to fully address a comment recorded at page 107 of the Interview Binder, as she could not recall the details. However, the comment, made in a reference check for the Incumbent, lacks context. The notation is insufficient to establish that Ms. McGonigal identified the Complainant as a candidate when conducting the Incumbent’s reference check. Ms. McGonigal acknowledged such would be inappropriate and she denied having done so.

105It is not necessary to consider these assertions in light of the finding of a breach of the Code. However, and in any event, I am not persuaded that these other factors give rise to any further finding.

Summary of Conclusions

106Having regard to the above, I am satisfied that the Employer was not required to consider the Complainant’s experience and/or performance in her MCO position outside, or independently of what was put forward by her in the presentation and interview. I am further satisfied that the competitive process structured by the Employer complied with the terms of the Policy, but for its seeming failure to expressly weight the selection criteria. However, there was no evidence of any detriment flowing from that omission.

107I find that, absent more, any flaw in the competition reflected by the comments made by Ms. Gendron regarding the pre-interview discussion (pages 47 and 69 of the Interview Binder) would not have affected the outcome of the competition and would not form a basis for overturning the results of the competition.

108Further to paragraph 99 herein, and based on the evidence before me, I find that the Employer violated section 5.1 of the Human Rights Code and discriminated against the Complainant in the conduct of the competition by considering age, a prohibited ground under that statute, to the detriment of the Complainant.

109I am not persuaded that the other factors raised by the Complainant give rise to any further finding.

110Further to paragraph 102 herein, I hereby direct that the competition for the MCO-Kitchener position be re-run in accordance with the terms of the Employer’s Employment Policy and the Code. Experience acquired by the Incumbent while in the MCO-Kitchener position is not to be considered in that competition. No further remedy is awarded.

111I am not seized.