HomeMy WebLinkAboutHorodnyk 14-10-10 IN THE MATTER OF AN ARBITRATION
~ BETWEEN ~
CENTENNIAL COLLEGE
(“EMPLOYER or COLLEGE”)
~ AND ~
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 562
(“UNION”)
AND IN THE MATTER OF AN INDIVIDUAL GRIEVANCE (BEVERLY HORODNYK)
Board of Arbitration Deborah Leighton, Chair
Ann Burke, College Nominee
Sherril Murray, Union Nominee
APPEARANCES
For the Employer Jason Green
Nancy Fisher
Paul Schwartzman
For the Union Sheila Riddell
Lesley Gilchrist
Deborah Warren
Phil Cunnington
Hearings were held on this matter in Toronto on: October 12 and December 7, 2011, January 12,
27, March 30, September 6, 21, 28, October 5, 26, November 30, 2012, January 11, February 7,
May 10, June 20, September 12, October 4, 11, 18, and December 3, 2013.
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AWARD
Introduction
[1] Ms. Beverley Horodnyk, a retired police officer, began teaching for the college in the
Police Foundations Program, (PFP), in September of 2009. Ms. Horodnyk worked as a partial
load professor from 2009 to 2010. The grievor applied for a full-time position as a professor in
the PFP on July 7, 2010. She was successful in the initial phone interview and proceeded to the
final interview of the recruitment process. She was not successful in getting the full-time
position. Ms. Horodnyk grieved on August 25, 2010 that the “College has violated Articles 4, 6
and the Letter of Understanding, “Employment Equity” of the collective agreement” by not
hiring her for a full-time faculty position.” She gave the grievance to the college on September 1,
2010.
[2] At the outset of the hearing into this matter, the employer objected to the board’s
jurisdiction to hear the case because Ms. Horodnyk was not an employee of the college at the
time of this job competition and therefore had no right to grieve. The grievor also filed a human
rights complaint regarding the same facts as alleged in the grievance. The preliminary matter on
the jurisdictional issue was not argued to the board. The parties entered into negotiations that led
to Minutes of Settlement (MOS), which amongst other things provided the board with
jurisdiction to proceed with hearing the grievance.
Ms. Horodnyk acknowledges that the Board of Arbitration presiding over the
Grievance is authorized to and shall consider any and all human rights
complaints, concerns or issues arising out of her Grievance against the College
and shall exercise such remedial powers as are set out in Article 32.03D of the
Collective Agreement and that, as a result, this Memorandum of Settlement
constitutes a full and final settlement of the Application in File No. 2010-
07568-I and any planned or possible complaint or complaints against the
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College or the individuals (names omitted) under the Human Rights Code
arising out of or in respect of said employment.
[3] Pursuant to the agreement, Ms. Horodnyk withdrew her human rights complaint and the
board heard the grievance on its merits. The MOS also provided that Ms. Horodnyk’s partial
load employment ended on April 30, 2010, but for the purposes of the grievance Ms. Horodnyk
was deemed to be an employee on September 1, 2010. She was not offered a new partial load
contract in September 2010.
The parties to this memorandum are agreed, for the exclusive purpose of Ms.
Horodnyk’s grievance dated September 1, 2010, that she will be deemed to be
an “employee” on September 1, 2010 and therefore entitled to file the
Grievance presently before the Board of Arbitration chaired by Deborah
Leighton.
There was also an express provision that Ms. Horodnyk did not become entitled to any rights
under the collective agreement, and recognition that she was not an internal candidate for the job
posting.
[4] It is the union’s position that the college discriminated against the grievor when it denied
her the full-time faculty position in the PFP. It retaliated against her when she raised concerns
about the lack of female representation in the department contrary to the collective agreement
and the Ontario Human Rights Code, R.S.O. 1990, chapter H.19, as amended (Code). The union
alleges that the Department Head manipulated the hiring process of the incumbent because she
had a personal interest in him.
[5] The college took the position it was fully within its rights to choose the best candidate for
the position. The college also denied that it breached any of the grievor’s human rights or the
collective agreement with regard to its decision to hire the incumbent. Counsel for the college
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took great exception to the allegations that the Department Head was motivated to hire the
incumbent for personal reasons.
[6] After approximately seventeen days of hearings, the union closed its case. The employer
then sought to non-suit the union and elected not to call evidence. The college submitted that the
non-suit motion is based on an assessment of the credibility of the grievor’s evidence. It argued
that there is no evidence for a prima facie case that there was a breach of the Code on
discrimination or reprisal.
[7] During the submissions on the non-suit motion, the union conceded that there was no
evidence to support the allegation that the Department Head had a personal interest in the
incumbent. The union also conceded that, although Ms. Horodnyk believed that the full-time
position was an equity hire, it was not. Given the nature of the allegations against the Department
Head and the incumbent, for which there was no evidence, we have not included their names in
the decision.
The Evidence
[8] Much of the evidence in this case is contested. We have reviewed it all carefully. Given
the nature of the submissions on the evidence, what follows is a brief summary of the union’s
evidence. Further references to the evidence will occur in both the counsels’ submissions and in
our decision.
[9] Ms. Horodnyk testified in examination-in-chief that the Department Head had been
pursuing funding for an additional full-time position since approximately the spring of 2009. The
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grievor thought that the Department Head had determined by late 2009 that the incumbent should
have the position.
[10] The Department Head made the incumbent a partial load professor in December 2009,
which in the grievor’s opinion was in order to make him eligible to apply for the full-time
position. The Department Head assigned the incumbent nine hours of teaching in one day. The
grievor said this was unusual. Two professors in PFP, Ken Yates and Harry D’Arcy testified they
had never seen the assignment of nine hours in one day. On cross-examination, the grievor said
that she had never asked for nine hours of teaching in one day.
[11] Ms. Horodnyk testified that the Department Head knew in February or March of 2010
that the full-time position was to start in September 2010. When the funding for the position was
approved, the Department Head posted the job internally. It was Ms. Horodnyk’s view that this
was in order to reduce the numbers of applications for the positions. This ensured that the
incumbent had very little competition for the position. The Department Head also discouraged
other partial load professors from applying for the job. She told one male professor not to apply,
if he did not have a degree. The Department Head allowed the incumbent to apply as an internal
applicant even though per the collective agreement he was no longer eligible to apply for an
internal posting. In cross-examination, Ms. Horodnyk acknowledged that she had the same status
as the incumbent, since she also was a partial load professor. Her contract ended in April.
[12] In Ms. Horodnyk’s view, the college geared the job posting to the incumbent’s
experience and education. The initial posting did not list women as an equity group being
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encouraged to apply for the position, even though women are in her view chronically
underrepresented in the program. The grievor said she was troubled that women were not listed
in the equity group encouraged to apply for the position. The grievor raised concerns about the
posting and it took several emails and calls to various levels of the college before women were
added as an acknowledged equity group welcome to apply. A series of emails ensued between
the grievor and the Department Head. We will address details on this evidence later in the
decision.
[13] The grievor was of the view that, because of raising the equity issue, by the time she had
her interview both the Department Head and Professor Joe Perino, one of the interview panelists,
were angry with her. There was one other person on the panel from Human Resources, Ms.
Portia Vidal. The grievor said that she did not get a fair interview. She testified that both the
Department Head and Professor Perino were aggressive, and the manner of their questions put
the grievor on the defensive. It was also her view that they did not give her appropriate scores to
answers she provided and in effect retaliated against her for raising human rights issues. She also
said that she was not well prepared for the interview and it went very badly. When the grievor
was told that she did not get the position, she raised concerns about the college not considering
employment equity in the hiring process. She thought that being reduced to part-time was a
reprisal for raising employment equity.
[14] We know from the grievor’s evidence and the documents that the Dean Sandra Murphy
investigated Ms. Horodnyk’s complaints. After reviewing the documents and speaking to those
who were part of the recruitment process, the Dean decided the grievor’s complaints were not
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founded. She advised Ms. Horodnyk of this at a meeting on September 1, 2010 initially
scheduled to provide the grievor feedback on her interview. The Dean asked why Ms. Horodnyk
had contacted the Maytree Foundation, an organization outside of the college, about her
complaints. Someone at Maytree sent Ms. Horodnyk’s email on to the college. Ms Horodnyk
testified in cross-examination that she had never intended anyone in the college to see her email
to Maytree complaining about the college. She testified that she felt ambushed by the Dean and
the Department Head at this meeting. It was also her evidence that at the end of the meeting she
“served” her grievance on the college.
[15] Instead of allowing the grievor to file a formal complaint, which she believed she had a
right to do, the college terminated her employment the next day, even though she had been
scheduled to teach two fall courses and had received her timetable and class lists.
Employer’s Introductory Submission on the Non-suit Motion
[16] Counsel for the college emphasized that no reasonable person would support
discrimination in the workplace. He submitted that when those allegations are made the college
takes them seriously and when proven, they lead to serious consequences. It also follows from
that principle that it is imperative that allegations of human rights violations be credible and
reliable. In this case he argued that the allegations were made against real people, professionals
trying to do their best work every day. Given the seriousness of the allegations before the board,
counsel argued that we must carefully deliberate on the credibility of Ms. Horodnyk’s
allegations.
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[17] Counsel argued that the college was permitted to choose whomever they thought was the
best candidate for the job. He urged us to find that in assessing whether there has been
discrimination under the Code, we could conclude that the incumbent meets and exceeds the
qualifications for the position. He argued that it is not clear on the face of the grievor’s resume
that she meets the minimum criteria. However, counsel emphasized that there was no need to
decide who the better candidate was: it was enough to conclude that it was reasonable for the
college to choose the incumbent over the grievor.
[18] Counsel submitted that the relevant qualifications in the job posting for the purposes of
this arbitration are proof of an undergraduate degree or equivalent and at least five years of
administrative experience in policing. There were two applications for the position: the
incumbent and Ms. Horodnyk. The incumbent was the successful applicant. Counsel for the
college emphasized that this was not a case about whether the grievor was a superior or inferior
candidate to the incumbent. Instead the central issues before us are as follows:
1. Was the grievor denied a full-time position because she is a woman?
2. Should the grievor have been given the position because she is a woman?
3. Is there any evidence that the grievor suffered reprisal from the college for asserting
her right to employment equity and the benefits that flow from that?
Counsel submitted that on each of these issues there is no evidence to support a prima facie case.
[19] Counsel observed that Professor D’Arcy said that the incumbent was fully qualified and
worthy of the position. Thus it is the union’s evidence that the incumbent could have been
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chosen by the college. He argued that this undermines the union’s premise that there was
anything untoward about the job competition.
[20] Counsel argued that the above is the starting point of the analysis of the central issues
before us, that is, whether there is any evidence upon which it can be said that the union has
made a prima facie case of discrimination and reprisal against Ms. Horodnyk. He reviewed the
relevant law on non-suit motions and the standard for a prima facie case in human rights
jurisprudence by the tribunal. We will address the legal argument in the analysis of our decision
later.
The Employer’s Submission on the Grievor’s Credibility
[21] In counsel’s submission Ms. Horodnyk has not been credible, honest or reliable in her
evidence. Counsel points to five examples where the grievor was not credible in her evidence.
The first concerns her evidence as to her credentials and the number of courses that she
completed at the University of Toronto. In her evidence examination-in-chief Ms. Horodnyk
testified that she had taken six courses in the criminology program at the University of Toronto.
This was important evidence to the union’s case because the job posting for the full time position
required either an undergraduate degree or equivalent. In cross-examination, Ms. Horodnyk
testified that she had made an error in her earlier evidence and that she had completed five
courses. When presented with her transcript from the University of Toronto for this program it
became clear that she had finished four courses. A fifth course indicated on the transcript showed
a failure. The grievor testified that she had not realized that she had failed that course. Counsel
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argued that this evidence showed that the grievor is prepared to say anything under oath to make
out her case.
[22] Counsel argued that Ms. Horodnyk had misrepresented her evidence to the board on other
occasions as well. The second involves the exchange with Professor Perino. In an email
exchange with him, the grievor indicated that she had the equivalent of an undergraduate
university degree and that her credentials had been assessed by a university.
[23] On cross-examination when pressed to reveal the identity of this university, she admitted
that the evaluation of her credentials was done pursuant to a job process for a position at Ontario
Power Generating (OPG). Counsel for the college argued that that the original statement to
Professor Perino was patently false. Both of these examples, in counsel’s submission, are
important because Ms. Horodnyk made the statements in pursuit of the full-time position and in
her evidence before the board. In her email copied to senior staff, including the president of the
college, she stated, “A University has assessed all of my hands on experience, University and
College Courses as equivalent to an undergraduate degree.” Counsel urged the board to consider
the above when assessing the grievor’s allegations of discrimination or reprisal.
[24] The third example of why the grievor’s evidence is not credible involves her testimony
around teaching the diversity course she was hired for in 2009. In her evidence in examination-
in-chief, Ms. Horodnyk said that when she was notified that she was going to teach the course
she began to research and prepare by locating a textbook and reading it cover to cover. She said
she researched the topic at the Pickering, University of Toronto and Centennial College libraries.
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She further stated that she put the course outline together for the students. In July of that year,
she proceeded to prepare lesson plans, which she worked on and polished until September. She
noted in her evidence that each lesson plan had a learning objective for each class. She wrote the
tests, midterms and final examinations. She noted that she “spent way more time than I should
have in terms of preparation. I felt that for the first time teaching that course I did it to the best of
my ability.”
[25] In cross-examination she was presented with materials related to the course on diversity,
provided to her by the Department Head. She was taken through the course outlines and tests and
examinations that were provided to her and asked to compare them to the ones that she used in
the course in 2009. It became clear in cross-examination that she had done almost nothing to
create the materials for the class. There were very few changes to the materials given to her. The
dates had been changed, but little else.
[26] Counsel for the college argued even if we find that she was not dishonest here, there is
ample evidence that her evidence was not accurate either in terms of her perception or her
memory of events. Thus, the rest of her evidence must be viewed with significant caution and
skepticism. Counsel argued further that we cannot give weight to any of the grievor’s testimony
unless it is supported by a document.
[27] In a fourth example of why the grievor’s evidence is not reliable, counsel for the college
submitted that the grievor will not only mislead with evidence but will also omit evidence where
it suits her purpose. He noted that there was extensive evidence in examination-in-chief on Ms.
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Horodnyk’s policing experience. She reviewed her employment history with the Toronto Police
Service, Cobourg and Durham in great detail and gave evidence about the specifics associated
with each job. On cross-examination she was asked about her work history with the police in
Lindsay. This work history was not included on her resume and there was nothing in the
documents put forward by the union that identified her work at Lindsay.
[28] When she was confronted with omitting her work history from Lindsay she said “I did
not know that you knew about that.” In counsel’s submission, this response was telling. He
argued that it was omitted because it would not have reflected well on her. There is some
evidence to suggest that she left following a motor vehicle accident in a police cruiser. In sum,
counsel for the college argued that this example shows a pattern of how Ms. Horodnyk chooses
to give her evidence and that she is prepared to tailor it to suit her aims. Thus, whether
intentionally or otherwise, she is not a credible witness.
[29] A fifth example for why Ms. Horodnyk should not be found to be credible is the grievor’s
distorted perception of events. When Ms. Horodnyk saw the job posting for the full time position
she noted that women had not been encouraged to apply for the position. Upon seeing this, Ms.
Horodnyk contacted the Department Head to see if this had been done in error. A series of emails
ensued. The first was from the Department Head with a typographical error that women were
indeed included. It is clear from the context that the Department Head meant “not included.” The
grievor responded that she was happy that the Department Head agreed with her that women
should be listed with the equity groups encouraged to apply. The grievor stated further that she
would contact Human Resources to point out the omission of women. The Department Head
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responded to Ms. Horodnyk’s email and copied Ms. Vidal in Human Resources. Ms. Vidal
responded the next day agreeing that it was a valid concern, that the posting would be revised to
include women in the equity groups. The email was sent to the Department Head and the grievor
was copied.
[30] When the grievor was asked by counsel for the college what she thought of the response
from Human Resources, Ms Horodnyk answered, “I was already very suspicious, I did not know
why she was thanking the Department Head for something I had done.” She also testified that
she was puzzled why Ms. Vidal had copied her.
[31] Counsel for the college argued that it was not reasonable based on these emails to be
suspicious of Department Head or Human Resources. He emphasized Ms. Horodnyk’s
misperception in this particular case to argue that she also misperceived her treatment in the
interview for the full-time position. Ms. Horodnyk testified in examination-in-chief that during
the interview the Department Head maintained a mean look and kept her arms crossed. The
grievor perceived the interview as intentional discrimination. In counsel’s view, the board cannot
have faith in her perceptions to support a finding of a breach of the Code.
[32] Counsel for the college argued further that we get tremendous insight into Ms.
Horodnyk’s views given these email exchanges and her views of how to understand them. This
can also be seen in her human rights complaint, wherein the grievor explains the Department
Head’s “reprisal” by alleging that the Department Head was angered by the grievor going over
her head to get the job posting amended to include women. The grievor says that the Department
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Head ignored her complaint about the posting. Counsel notes that this was just not true: if one
examines the email exchange, it is evident.
[33] Thus, in counsel’s submission there is ample documentary evidence in front of us, even
in the absence of responsive evidence from the college for us to have concerns about Ms.
Horodnyk’s credibility with respect to the allegations that she suffered discrimination because
she was a woman and was subjected to prohibited reprisal. He argued further that it is not
necessary to find that she is dishonest, but she is not credible because her perception is not
objective and her memory, not clear.
[34] Counsel for the college also argued that the above examples should inform the board
about Ms. Horodnyk’s perceptions of the interview for the full-time job and the final meeting on
September 1, 2010. Counsel reviewed these examples to make the point that the union bears the
burden of demonstrating a prima facie case and Ms. Horodnyk was the only witness to the
events. Human rights jurisprudence indicates that a prima facie case is established if there is
evidence “if believed” to support the allegation of a breach. Counsel urged the board to be very
cautious about making any findings of fact in respect of critical issues in this case based only on
the grievor’s testimony. We are not required to accept her evidence in support of her allegations.
The Central Issues
1. Was the grievor denied a full-time position because she is a woman?
[35] Counsel for the college submitted that there is no evidence for this allegation to succeed.
In fact, Ms Horodnyk’s own evidence establishes that the allegation must fail. The grievor is
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obliged to show two things. First, there has to be some evidence that gender was a factor in the
college’s decision not to hire her. Second, the reason that the incumbent was hired was because,
as the union alleged, the Department Head wanted the incumbent in the position of full-time
faculty because of her personal relationship with him.
[36] Counsel for the employer argued that the union in its opening statement undertook to
prove this. They alleged that the Department Head had a fixation on the incumbent and this
precluded the grievor being successful in the full-time competition. Counsel argued that these
were bald assertions and there has been no evidence to support the allegations. Counsel reminded
the board that he took umbrage with this position at the beginning of the case. It was his view
that this was slander, only protected by a legal proceeding. However, he emphasized then, and he
emphasized again in his submission on the non-suit, that the allegations affected real people.
[37] Counsel underscored that the union counsel adopted the particulars, which provided in
part and in summary: Ms. Horodnyk observed that the incumbent was promoted to a partial load
position in December 2009 and began to fixate on the incumbent. The incumbent was given nine
hours of teaching on one day in the week while he worked full time as a Toronto police officer.
Ms. Horodnyk noticed the incumbent and the Department Head together at an end of the year
barbecue and that they seemed to have arrived and left together. Counsel for the college argued
that not one of the three union witnesses had the “guts” to allege an inappropriate personal
relationship between the two. All three suggested that they saw them together at social functions
and that they sat close. Counsel for the college noted that three witness saying this three different
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ways does not make it truth, that there was no evidence of anything inappropriate between the
two. He concluded that the allegations should not have been made.
[38] The union took the position that the college tailored the posting for the full time faculty
position for the incumbent to be the successful candidate. Counsel argued that it is not enough to
say this. The union must show that the Department Head did something to tailor the job posting.
In Ms. Horodnyk’s own evidence, she said that she asked about who had prepared the job
posting and the Department Head replied to her in the September meeting that it was the
Program Advisory Committee (PAC) who wrote it. She further stated that PAC wanted the
university degree and administrative experience. The grievor also said that she asked the
Department Head if she wrote any of the posting, and the Department Head was emphatic that
she did not write any of it.
[39] Counsel argued that we are left with four bald allegations about the extreme favouritism
shown to the incumbent without evidence to support one of them. Counsel asked the grievor in
cross-examination whether she had any other evidence of extreme favouritism of the incumbent.
She said no. Thus, there is no evidence to support the allegation that Department Head favoured
the incumbent over Ms. Horodnyk. Further even if there was evidence that Department Head
wanted the incumbent in the job for personal reasons there is still no evidence that there was a
breach of the Code for discrimination against Ms. Horodnyk, in counsel’s submission.
[40] Counsel submitted that Ms. Horodnyk believed the posting had been tailored for the
incumbent and that women had been left out was further evidence of the tailoring. The grievor’s
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evidence was that she had a dilemma about raising this concern with the college. However, the
grievor did speak to a male professor in the program who said he did not apply because
Department Head said not to apply if he did not have a degree. Another male professor was also
discouraged from applying. The grievor testified she could not understand why these people
were being discouraged unless the goal was to get the incumbent in the position.
[41] Counsel argued that the uncontroverted evidence, taken in the best light for the union, is
men were told not to apply, if they had no degree. Counsel argued that this undermines the
union’s discrimination allegations, particularly when Ms. Horodnyk, who did not have a degree,
was not discouraged from applying. In conclusion, counsel said there is no evidence on which to
support an inference that the Department Head wanted the incumbent in the job or that she
favoured him as compared to anyone else at all.
[42] In counsel’s submission, all of the above undermines the allegation that Ms. Horodnyk
did not get the job because she was a woman. Of all the people interested in the job she was the
only woman and she did not have a university degree and she was not discouraged from
applying. Thus there were only two facts that support her allegations: 1. She is a woman and 2.
She did not get the job. The test in Sosoo, infra, makes it clear that this is insufficient to ground a
prima facie case of discrimination. There is no evidence for the board to conclude that she has
made a connection between the prohibited ground and the alleged discrimination, that is, the
failure to get the job. Therefore, the allegation is fatally flawed.
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2. Should the grievor have received the job because she is a woman?
[43] Counsel for the employer argued that there are several problems with this position. First,
there is no individual right or entitlement under the Code or the collective agreement to
employment equity. Counsel noted that Section 5 of the Code provides that every person has a
right to equal treatment with respect to employment without discrimination because of race,
ancestry, place of origin, color, ethnic origin, citizenship, creed, sex, sexual orientation, gender
identity, gender expression, age, record of offenses, marital status, family status or disability.
[44] Counsel emphasized that the grievor’s allegation of discrimination came up after step two
in the grievance procedure. During step two, the only thing that the grievor referred to was a
breach of employment equity. Counsel argued this case has always been about employment
equity. He argued that the grievor based her assumptions on something that was incorrect. The
grievor believed that the college was under an obligation to hire a woman in its next full- time
position. She believed this in part because she had spoken to a professor previously appointed
pursuant to a special hiring program.
[45] While the grievor believed the job she was seeking was an equity hire, it was not. The
evidence of Professor D’Arcy was that he understood at the time that the posting was not an
equity hire. Thus, there was no evidence except the grievor’s belief that it should have been an
employment equity hire, that is, that a woman should have been hired. Her belief here is
irrelevant. Therefore, the grievance on this point has to fail in counsel’s submission.
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3. Is there any evidence that the grievor suffered reprisal from the college for asserting
her right to employment equity and the benefits that flow from that?
[46] Counsel for the college addressed the grievor’s position that she suffered reprisal for
raising her employment equity concerns with the employer. The first reprisal occurred when she
was reduced from partial load teaching to part-time. The second occurred when the college did
not renew her contract in September 2010. Counsel argued that reprisal is a statutory claim and
noted the language of section 8 of the Code, which states:
Every person has a right to claim and enforce his or her rights under this Act, to
institute and participate in proceedings under this Act and to refuse to infringe
the right of another person under this Act, without reprisal or threat of reprisal
for so doing.
Counsel submitted that there is no right under the Code for a protection to assert employment
equity. There is specific protection against reprisal in the parties’ collective agreement at Article
4.02 3 (2) which protects against reprisal or complaining about sexual harassment. However,
there are no other protections in the collective agreement or under the Code.
[47] Counsel argued that in order to establish a reprisal the grievor must show some evidence
that there was an intent to punish or retaliate against her, as found in Noble, infra. Counsel noted
that the grievor never raised an allegation of discrimination until after her contract was not
renewed. Since the college had no knowledge of the grievor asserting discrimination they could
not be found to have reprised against her.
[48] Counsel also maintained that given the grievor’s contract ended at the end of April 2010,
she had no right to any hours in the future. In his submission the employer is not obliged to
produce hours for someone who is not an employee. There is also evidence that Professor Perino
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emailed partial load and other professors that given the full-time hire and someone returning
from maternity leave, hours for partial load and part-time professors were not clear. Therefore, in
Counsel’s submission, there is no prima facie evidence to show reprisal under the Code.
[49] Counsel emphasized to the board that he reviewed every email and contact the grievor
had with the college in her cross-examination. Ms. Horodnyk confirmed that she only raised
employment equity and never discrimination. The first time she raised the issue of employment
equity as a concern for the full-time faculty job posting was at a summer barbecue. Counsel
reviewed the exchanges with the college’s equity office and Ms. Horodnyk confirmed that what
she raised had to do with equity issues. He noted that Ms. Horodnyk acknowledged that prior to
the posting going up she had never raised concerns about favouritism towards the incumbent.
There were no equity issues raised during the telephone interview that the grievor had for the job
position. Ms. Horodnyk did raise issues about employment equity at the job interview with the
panel.
[50] Counsel for the college also reviewed the grievor’s email to the Department Head on
August 20, 2010 wherein the grievor reacts strongly to having her hours reduced to part-time.
She asserts that this is the first time she had any idea that her hours would be reduced and states
as follows:
I sincerely hope this is not disguised punishment because I took exception
to the noncompliance of this hiring process in terms of employment equity.
I felt when I requested that women be included as an equity group in the
posting, you were hostile towards me. In fact I had to go above the h iring
manager and prove that females were und errepresented as professors in
the Police Foundations Program. (There are now 5 full-time male
professors and 0 female professors.)
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This research also included the extreme under representation of females enrolled
as students in the police foundation’s program. As you may or may not know, the
Minister of Equity Stockwell Day very recently announced a review of public
sector employers around the issue of equity positions and compliance for under
represented groups.
I believe the entire process of this specific posting needs to be reviewed. As you
are aware I exceed the job requirements in terms of experience and equity and
have concerns of how I was treated throughout the process.
I am requesting an internal review by Centennial College but I am also open to an
independent review under the jurisdiction of Stockwell Day’s Office.
(bolding and underlining in original)
But at no time did she claim that she had suffered discrimination. It was not until August 23,
2010 that the grievor refers to the incumbent being groomed for the position.
[51] The grievor’s email to Professor Perino on August 23, 2010 was the last correspondence
before the college met with her on September 1, 2010. In this email, the grievor is reacting to
Professor Perino’s disappointment that the grievor believed the hiring process was biased against
her. In giving his reasons for why she was not the chosen candidate he said she had not obtained
an undergraduate degree, that she had not met the benchmarks of the questions, and he also said
that she lacked the necessary supervisory experience required by the position. In responding to
him, the grievor stated:
Your response only confirms my assertions that the panel was biased
towards me in all areas of the process. A University has assessed all of my
hands on experience, University and College Courses as equivalent to an
undergraduate degree. (bolding in original)
[52] The grievor further asserted that bringing up the issue of employment equity visibly
agitated the Department Head. She concluded by stating: “I meet and exceed the threshold for
the job call.” Counsel questioned the grievor on the August 23, 2010 email to Professor Perino
22
referred to above. He asked her whether she thought it was appropriate and professional to use
bolding in the email. Ms. Horodnyk said it was professional. When asked whether referring to
Stockwell Day in the email was appropriate, Ms. Horodnyk laughed and said she was being
flippant and sarcastic. She also stated: “the systemic barriers I’ve faced during the process are
further amplified by the reality that women are not included as professors in the Police
Foundations, and there are identified systemic barriers to keep them out.” She ends the email by
stating that she had sought advice, both internally and externally and intends to follow through
“with requests to have this process investigated and reviewed, as per the Employment Equity Act,
Ontario Human Rights Code, collective agreement, etc.” Thus, in counsel’s submission, before
the meeting of September 1, 2010, there is no evidence to support a finding that the grievor had
asserted a right under the Code against which a reprisal could be committed. Moreover, there
was no evidence that any action taken by the college was taken with the intent to reprise.
[53] Thus the only evidence that the grievor can use to argue a reprisal is what occurred
during the September 1, 2010 meeting. In counsel’s submission this is why he made a substantial
argument on why the grievor is not a credible witness. Ms. Horodnyk said she went to the
September 1, 2010 meeting to discuss and get feedback on the job competition. All the board has
before it is her evidence with regard to this meeting. He urged us to find that we could not rely
on her perception of events to defeat the non-suit motion.
[54] The grievor testified that she was “ambushed” at the meeting on September 1, 2010. We
know from the grievor’s evidence that the Dean had investigated her allegations against the
23
Department Head regarding the unfairness and bias of the hiring process. Ms. Horodnyk testified
that the Dean told her that there was no support for the allegations against the Department Head.
[55] Ms. Horodnyk also gave evidence of this meeting that the Dean challenged her on why
she had taken her story to the Maytree Foundation. The Dean stated that she had defamed the
Department Head. It was Ms. Horodnyk’s evidence that, when asked by the Dean, “Did you
speak to people outside the college about the complaint?” “I said yes, I knew she was talking
about the Maytree email.” The grievor went on to testify that the Dean said she had a problem
with Ms. Horodnyk contacting Maytree. Ms. Horodnyk said that she could understand why the
Dean was upset, but that she had no intention of anyone in the college ever seeing the email to
Maytree. Counsel submitted that the grievor recognized that the email to Maytree was
inappropriate, or she would have had no concern that the college saw it. Ms. Horodnyk knew that
Maytree had informed the college of her complaint before her meeting with the college on
September 1, 2010. On August 27, 2010, she emailed someone at Maytree that she had just
learned that her email to them had been forwarded to her employer.
[56] On September 2, 2010, Ms. Horodnyk was told that there was no part-time contract for
her. In counsel’s submission this is not a surprise, the college had decided it could not deal with
her anymore. In an email dated September 9, 2010 to Maytree the grievor wrote, “I was just fired
from Centennial College for the following reason: the way your complaint was put out there, the
fact that you sent an email about your complaint to outsiders.” Counsel argued that the grievor
recognized that this was why she did not have her contract renewed. It was her own behaviour in
24
handling her complaint that led to the college’s decision not to renew her contract. There has
been no statutory reprisal based on the Code.
[57] In summary, counsel argued that not many cases will lead to a non-suit motion. In this
case, there is no evidence to support a prima facie case on the three issues before the board.
Since there is no case for the college to meet, it decided not to call evidence. Counsel did note
that there had been a decision by the parties to bifurcate the issues and if they lose the non-suit
motion, they wish to speak to remedy. The college cited the following cases in its submission:
Toronto (City) v. Toronto Civic Employee’s Union, Local 416 (Espinola Grievance), (2000) 93
L.A.C. (4th) 372 ( Surdykowski); Sosoo v. Winners Merchants Inc, 2010 HRTO 1367 (Ontario
Human Rights Tribunal); Noble v. York University, 2010 HRTO 878 (Ontario Human Rights
Tribunal); Patterson v. Hamilton Health Sciences-Chedoke, 2011 HRTO 1582 (Ontario Human
Rights Tribunal); Owen Sound Lumber Co. v. Seaman Kent Co, The Ontario Weekly Notes,
October 7th, 1913; Ontario v. Ontario Public Service Employees Union (OPSEU), (1990) 37
O.AC. 218 (Ont. Divisional Court) Parfitt v. Lawless, (1872) Vol. 41 Probate and Matrimonial
Court; Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care
Professionals, [2011] 3 S.C.R. 616 (S.C.C.); Mississauga (City) v. A.T.U., Local 1572 (Pendov),
(2012) 109 C.L.A.S. 74 (P. Craven); Manminder Jagait v. IN TECH Risk Management Inc, 2009
HRTO 779, (Ontario Human Rights Tribunal).
25
The Union’s Submission on the Non-suit Motion
Introduction
[58] Counsel for the union submitted that there is enough evidence before the board to defeat
the non-suit motion. Moreover, the union submitted that on a balance of probabilities there was
enough evidence to show that the grievor had suffered discrimination contrary to the Code, when
the college denied her the full-time position. It further discriminated against her when it
terminated her contract. Counsel argued that Ms. Horodnyk was an employee at the end of
August 2010. The college breached section 5 of the Code, which prohibits discrimination
because of a person’s sex in two ways. The first is that Ms. Horodnyk was denied a fair chance at
competing for the position because of the systemic discrimination in the program. The second
discrimination occurred when the grievor raised concerns about employment equity and she
suffered a reprisal, which is prohibited by section 8 of the Code.
[59] The union submits that even if the grievor was mistaken about the original job posting
being discriminatory for not including women in the equity groups encouraged to apply and even
though she was wrong about the posting being an “equity” hire, she had an honest belief that
there had been discrimination and she had a right to have her case addressed. The college
retaliated against her because she raised concerns about equity and that in itself amounts to
discrimination under section 8 of the Code. Ms. Horodnyk suffered the ultimate reprisal when
she was terminated from a job that had been promised to her.
[60] Union counsel emphasized that the grievance claims a violation of Articles 4, 6, and the
Letter of Understanding on employment equity. Counsel submitted that Article 4, provides that
26
there shall be no discrimination or harassment against any employee of the college. Counsel for
the union submitted that this shows recognition between the parties that, when human rights are
an issue, all employees deserve protection no matter what the protected ground. Article 4.02 A 9
provides that the normal timelines for grievances do not apply to discrimination and harassment
complaints. This shows the parties’ intention to deal with human rights on the merits rather than
being defeated for technical irregularities. It is significant that the parties recognize a qualitative
difference between human rights complaints and other grievances. This amounts to an implicit
acknowledgment of the significance of human rights cases, and is consistent with Supreme Court
cases that have held that human rights codes are quasi-constitutional in nature.
[61] Counsel for the union submitted that Article 6 of the collective agreement gives the
college the right to hire. The hiring must be consistent with the rest of the collective agreement.
(See Article 27.11 B) Management actions must also be consistent with human rights provisions
of the collective agreement, which incorporate the Code. Counsel also referred the board to the
Letter of Understanding on employment equity and the acknowledgement of a shared
responsibility between the parties to achieving employment equity. Women are listed as a
designated group. The Letter of Understanding also states that the parties at the local level will
work together to implement policies to enhance hiring of designated groups.
[62] The union has conceded that there was no special program to hire women in place for the
position that Ms. Horodnyk sought in the PFP. However she submitted that the collective
agreement, the Letter of Understanding and the policies still provide a context in which the board
must examine this job competition. These documents recognize a commitment and an obligation
27
for the college to actively address the under representation of certain designated groups. Every
job posting that goes up in the college includes the first paragraph that was included for the job
posting that is before us.
Diversity, equity, and inclusion are fundamental to our mission to educate
students. We are committed to education that places strong emphasis on
global citizenship, social justice and equity. We live this value through the
strength and richness that diversity brings to our workforce and welcome
contributors from equity groups including: Women, Aboriginal Peoples,
Visible Minorities, Persons with Disabilities, Lesbian, Gay, Bisexual,
Transgender and Queer persons.
Counsel for the union also cited “Framework for Equity and Inclusion at Centennial College.”
Counsel submitted that the college had not considered its equity obligations.
[63] There was an objection at this point by counsel for the employer that this is the first time
an allegation of systemic discrimination had been raised. Counsel for the union submitted that
they had given a significant amount of evidence on systemic discrimination and employment
equity. The grievor believed she was the victim of systemic discrimination when she did not get
the position.
The Union’s Response to the Employer’s Submission on the Credibility of the Grievor
[64] Counsel for the union reviewed the five examples and reasons submitted to the board to
consider Ms. Horodnyk not credible in her evidence and argued that not one of the employer’s
arguments raise legitimate credibility issues. She argued that the best predictor of present
behaviour is past behaviour. The most important information about Ms. Horodnyk’s credibility
and integrity is that she had a thirty year blemish free police career. She had excellent
performance reviews and commendations for, amongst other things, kindness, compassion, and
28
team work. She has exhibited ethical behaviour and these traits do not change overnight. In
counsel’s submission the college is grasping at straws to attack the grievor’s credibility. She is a
credible witness and therefore the board must accept her evidence in the most favourable light.
[65] Counsel argued that the grievor’s evidence will establish each of the essential elements of
the claim:
1. She is a member of a protected group.
2. She was subject to adverse treatment.
3. Gender was a factor in the adverse treatment, or
4. Raising her concerns about the gender issue was a factor in the adverse
treatment.
The union submits that is has established the following:
1. The grievor met the qualifications of the position.
2. The grievor is a woman.
3. Female professors are underrepresented at the college.
4. The grievor raised human rights concerns when the posting for the job
came out without women listed in the equity group.
5. The interview panel treated her unfairly, that she had no real chance at the
job and that there was no effort by the college to turn its mind to the fact
that she was a woman in a male dominated program.
6. The grievor was treated unfairly at the interview because she had raised
human rights concerns. That is, there was an intentional reprisal against
her during the final interview for the job.
7. The college further reprised against the grievor when she was terminated
from employment in September 2010.
29
[66] Counsel for the union submitted that the grievor met the qualifications in the job posting
and despite efforts to “dig up dirt” the college could not find any. Ms. Horodnyk was an
exemplary police officer. In counsel’s submission there is not a sliver of doubt that she was
qualified for the full-time position. Counsel cited the grievor’s cover letter and her resume,
noting that each bullet point in the cover letter addressed the requirements of the job posting.
Counsel submitted that the grievor’s transcript from the University of Toronto showed that she
had completed four courses in the certificate program in Criminology. She submitted that she
also had a Canadian History course from the University of Toronto although that was not shown
on the transcript. Thus, given all the special training and the university courses it is clear she met
the job requirement of an undergraduate degree or equivalent. Counsel argued that at no time
was the grievor trying to mislead the interview panel.
[67] Counsel stated that the job posting required at least five years of police administration
experience. However, none of the courses listed in PFP are on the administration of policing. She
argued that this suggests that the college wanted someone to teach police administration but there
was no evidence put forward of this. In counsel’s submission that the posting requires
administrative experience is because it would meet or match the incumbent’s qualifications.
[68] Thus, in counsel’s submission Ms. Horodnyk was qualified for the job and her evidence
on her qualifications should not be seen as discrediting her credibility.
[69] Counsel for the union submitted that Ms. Horodnyk worked for the Lindsay Police for
only a short time in 1989. The only reason it was not included on her resume was because she
30
did not believe it was important. She said that there was no requirement that every position one
works at must be on a resume. She said that the employer had insinuated that Ms. Horodnyk
omitted references to this employment in order to conceal an accident with a police cruiser. It is
the union’s position that this should not support a finding that she is not a credible witness.
[70] In sum, Ms. Horodnyk was fully qualified for the full time position that she applied for in
PFP and at least equal to the incumbent. Counsel acknowledged that the incumbent’s credentials
on paper were impressive. However, Ms. Horodnyk has been a trailblazer in a male dominated
field. She has experience as a police officer. She has teaching experience and is a role model for
students. In counsel’s submission the hiring panel should have considered the fact that she “had
lived” the experience of discrimination.
Ms. Horodnyk’s Work Performance at the College
[71] Counsel argued that the evidence before the board shows that there were no problems
with the grievor’s performance. The grievor testified that she had one verbal assessment by the
Department Head which was positive. On cross-examination counsel for the employer presented
hand written notes from a classroom visit on October 15, 2009, conducted by the Department
Head.
[72] Counsel for the union argued that Ms. Horodnyk testified that she had never received the
document or the criticisms that were found within the document. The union submitted that it had
doubts about the document and suspected that it had been fabricated after the fact.
31
The Department Head’s Favouritism Towards the Incumbent
[73] Counsel for the union summarized the evidence provided by the grievor on favouritism
shown to the incumbent by the Department Head as follows. The Department Head allowed the
incumbent to teach nine hours in one day rather than spreading the teaching out across the week.
Professor Yates testified that in his years at the college he had never seen a professor teach nine
hours in one day. He also stated that, “since January is always a smaller intake of students than
September, it was strange to decide to increase a professor’s hours to nine.” He also testified
that the Department Head and the incumbent had a close relationship, that the two of them had a
better rapport than the rest. At social functions they sat side by side or close to each other.
[74] Counsel for the union submitted that the job posting was geared to the incumbent’s
experience because it called for five years of practical experience in police administration, an
odd requirement, and a post secondary degree or equivalent. At the September 1, 2010 meeting,
the Department Head denied having anything to do with drafting the requirements of the job
posting. She indicated that the PAC had done so. Counsel for the union argued that this was not
true that a document provided pursuant to a freedom of information request in a letter dated
September 23, 2010 shows that PAC had no documents regarding the job competition.
[75] Thus, the union is asking this panel to draw a reasonable inference from the above facts
that the incumbent was in fact the Department Head’s favourite candidate for the full-time
position. At the end of this submission on favouritism, union counsel conceded that there was no
evidence to support a personal interest in the incumbent by the Department Head, which led her
to make sure the incumbent, would be hired in a full-time position.
32
The Internal vs. External Job Posting
[76] Counsel for the union submitted there was a dispute early on as to whether the posting
was an internal or an external one. The collective agreement provides that partial load professors
can only apply for internal postings while on contract or for one month after their contract ends.
Counsel for the union argued that the Department Head took steps to “narrow the field” and give
the incumbent the better chance to succeed in the job competition. Counsel stated that this
evidence was important because both the grievor and the incumbent had contracts that ended in
April, 2010 and the job competition was posted in June of 2010. Thus it is clear that both the
incumbent and the grievor had completed their partial load contracts and should not have been
permitted to apply for an internal posting.
The First Posting
[77] Counsel for the union submitted that the following evidence proves that Ms. Horodnyk
had good reason to have human rights concerns about the initial job posting. The grievor
believed the July 2010 posting was an equity hire because of conversation she had with another
professor who had been an equity hire.
1. The grievor also believed it would be an equity hire because of the special
program she believed was still in effect.
2. The first posting excluded women from a list of equity groups encouraged
to apply.
3. Women are underrepresented in police foundations at the college. In the
history of the police foundation’s program at the college there has only
ever been one full time female professor who did not remain at the college
for long. At the time the grievor was hired as a partial load professor she
was the only female partial load professor. There were five full time
professors all of them male and seven part time professors six of whom
were male.
33
4. The grievor emailed the Department Head on July 2 explaining her
concern that the posting did not include women as an equity group. When
the Department Head responded she said “you’re right the posting does
specifically include women.” So the grievor felt compelled to email her
again on July 6.
5. The Department Head responded to this email of the grievor “you’re right,
I mean it doesn’t.”
6. Since the second email from the Department Head did not say the posting
would be changed, the grievor emailed the college office of Global
Citizenship to Dr. Aboagye and Dr. Margaret Brigham and pointed out
that women were underrepresented in police foundations and asked that
women be included as an equity group in the posting for the full time
position.
7. Later that same evening the grievor emailed Dr. Aboagye information
about the male-female balance of professors in the department. She also
provided information about under representation of women in the police
service and noted that women were a recognized equity group in police
constable job postings in the Durham regional police service.
8. The grievor testified in cross-examination that she was forced into a
position of disadvantage because she had to go to the hiring manager to try
to get “women” put into the job posting, then had to go over her head to
get it done.
[78] Counsel for the union submitted that all of the above evidence proves that Ms. Horodnyk
had a legitimate right to raise her human rights concerns about the initial posting. Counsel further
submitted that the change to the posting only occurred because the grievor advocated for herself
as a woman because she knew women were underrepresented in the PFP. She was worried that
there were systemic barriers preventing them from being hired and took action to protect her
human rights.
34
The Job Interview and Post Interview
[79] Counsel for the union argued that there is clear evidence that Ms. Horodnyk’s job
interview was conducted in bad faith and was discriminatory. She relied on the grievor’s
testimony that she felt an unwelcoming atmosphere right from the beginning of the interview.
Ms. Horodnyk said that Professor Perino was sarcastic and cynical, challenging her on her
supervisory experience and on her credentials. On question one, Ms. Horodnyk said that she did
not have proof of her credentials with her. Professor Perino’s reply to the statement was “so you
have no credentials.” Counsel submitted that Professor Perino’s score sheets for the interview
reflect his skepticism. He wrote on the assessment under the first question “no degree.” Counsel
argued that this showed that he did not consider whether Ms. Horodnyk had the equivalent of a
degree even though he had recorded on the sheet that she had taken five or six criminology
courses at the University of Toronto. Counsel argued that we have to question why Professor
Perino would doubt that Ms. Horodnyk “met the most basic requirements of the job when she
had made it past the initial screening.”
[80] Professor Perino’s assessment of questions two, three, four and five were a one out of
five. In response to her question six answer, which was to give an example of what she did when
she was in a dysfunctional team, Professor Perino made a comment about the age of the example.
Ms. Horodnyk testified that this hurt her self confidence and she felt like she had to defend
herself rather than promote herself. The last question which counsel for the union described as a
“gimme type of question” has no wrong answer. Yet again Professor Perino gave Ms. Horodnyk
one out of five.
35
[81] Counsel submitted that Ms. Horodnyk testified extensively about the detailed answers
that she provided to the panel during her job interview. She submitted that although Ms.
Horodnyk acknowledged she had not performed well during the interview she clearly
remembered the information she provided the hiring panel for each question. Counsel argued that
the board is required to accept the truth of that testimony. She submitted that reviewing the
marks from Professor Perino makes it clear that Ms. Horodnyk had no chance of succeeding at
the job interview. She submitted further that something had happened before the job interview to
turn Professor Perino against her. She argued it is the union’s position that the only reasonable
inference is that Professor Perino was upset by Ms. Horodnyk’s pursuit of her human rights and
her insistence that women be added to the job posting.
[82] The Department Head’s scoring was slightly better than Professor Perino’s assessment,
but still not reflective of the answers Ms. Horodnyk gave, in counsel’s submission. The
Department Head gave two out of five on question one, despite the fact that the grievor’s resume
indicates that she has the education and experience for the job. The Department Head wrote “no
degree, diploma, certificate, credential?” on the assessment sheet. Counsel further noted that
there was no recording on an equivalent of a post secondary degree, which was acceptable
according to the posting.
[83] Thus, in counsel’s submission the panel did not turn its mind to the possibility that the
grievor had equivalent credentials to an undergraduate degree and the failure to do so was
evidence of bad faith and discrimination.
36
[84] In the remainder of the questions the Department Head assessed the grievor’s answer as a
two out of five for questions two and three. She gave Ms. Horodnyk two out of six in question
six and two out five for question seven. In counsel’s submission this scoring clearly
demonstrates bad faith. The Department Head was ensuring that Ms. Horodnyk had no chance at
the job. Counsel urged the board to make the inference that the Department Head was angry
about the grievor’s concern about having women listed in the job posting as an equity group. She
also urged us to infer that the Department Head felt threatened that Ms. Horodnyk might win the
position when she had clearly earmarked it for the incumbent.
[85] Union counsel argued in reply to the college’s submission that Ms. Horodnyk had misled
the board about her credential, that Ms. Horodnyk was clearly qualified for the job. She asked
the board to decide whether Ms. Horodnyk had the equivalent of a university undergraduate
degree.
[86] Counsel also emphasized the evidence that the grievor raised employment equity and her
view that women were underrepresented in the program at the end of the interview. Counsel
argued that this shows that Ms. Horodnyk was clearly raising issues of systemic discrimination.
[87] Counsel submitted that the college’s treatment of the grievor after the interview also
shows bad faith and discrimination. In an email dated August 4, 2010, Ms. Horodnyk asked the
Ms. Vidal who had received the full-time position. The Ms. Vidal’s response on August 6, 2010
said that Human Resources did not normally inform a candidate of another candidate’s status.
However, the grievor would be informed when the other candidate had accepted the offer. Ms.
37
Horodnyk testified that she believed that after August 6, 2010 Ms. Vidal blocked her emails. The
grievor’s emails kept bouncing back to her. She subsequently spoke to someone at IT who told
her that Ms. Vidal had blocked her emails.
[88] Ms. Horodnyk also emailed Professor Perino on August 5, 2010 to ask him if he knew
who got the job. Professor Perino was on vacation and replied to Ms. Horodnyk on August 18,
2010, that the incumbent had been offered the job. Ms. Horodnyk emailed the Department Head
on August 20, 2010, to ask about a meeting that had been set up for September 1, 2010, for
feedback on her performance in the interview. The grievor also questioned why her schedule had
been reduced to two courses. The Department Head responded stating that she had discussed this
with Ms. Horodnyk during a classroom visit in May. The Department Head also noted that
Professor Perino had sent an email before he went on vacation advising all non full-time faculty
which courses they would be teaching. Counsel for the union argued that neither of these
statements was true. She noted that the grievor responded that same day and corrected these false
statements and copied Professor Perino. She also testified in examination-in-chief that no one
told her that her hours might be reduced and that Professor Perino’s email did not say what hours
faculty would be teaching. It said that there would be teaching opportunities for everyone, even
though there was to be a person hired full-time and someone was returning from maternity leave.
Counsel for the union noted that in that email Ms. Horodnyk raised the possibility of the
reduction in her hours being a disguised punishment because she had raised equity concerns
about the hiring process.
38
[89] Counsel for the union stated that Professor Perino replied to the grievor’s email,
explaining that his scoring was based on the following criteria: the grievor did not have an
undergraduate degree; the grievor had lack of supervisory experience; the grievor failed to meet
the benchmarks in answering the interview questions. Counsel submitted that the benchmarks
were not met because Professor Perino assigned the mark of one out of five to every single
answer she gave. Thus in counsel for the union’s submission Professor Perino’s actions in
awarding one for every answer shows he was acting in bad faith, and in an arbitrary and
discriminatory manner.
[90] The union argued that the grievor’s view was that Professor Perino did not believe she
had supervisory experience because she is a woman and women are much less likely than men to
hold positions of power in the police force. Union counsel noted that the grievor responded to his
email the next day pointing out his “faulty conclusions” and referred to her belief that there were
systemic barriers to women gaining positions as professors in the PFP. In counsel’s submission
this email shows that the grievor raised issues of systemic discrimination from the time the job
was posted, during the job interview itself, right through to the post interview phase before she
was fired.
[91] Ms. Horodnyk had wanted to file a formal complaint under the college’s policy for filing
harassment or discrimination complaints. She testified that she was not permitted to do this. At
the September 1, 2010 meeting, Ms. Horodnyk told the Dean several times that she wanted to
make a complaint under this policy. Counsel argued that while the college may have preferred
Ms. Horodnyk to file a grievance rather than a complaint under the harassment and
39
discrimination process, she was clearly entitled to do both. The fact that the college denied her
the right to file a complaint establishes bad faith and discrimination in her view.
[92] Counsel for the union further argued that the grievor knew by the September 1, 2010
meeting that her hours had been reduced to part-time. During that meeting, Ms. Horodnyk said
that she believed the reduction in her hours was a reprisal for complaining that the college had
not complied with its employment equity responsibilities. Thus in union counsel’s submission
the issue of reprisal for trying to enforce her human rights was not something dreamed up for this
hearing. The meeting on September 1, 2010 ended with Ms. Horodnyk handing her grievance to
the Dean. The grievor was informed the next day that the college was not renewing her contract.
[93] In sum, counsel for the union submitted that not only was Ms. Horodnyk denied the full-
time position that she deserved but she was terminated in retaliation for trying to enforce her
human rights. She submitted that the facts here establish that she was an employee in August
although she had not signed a contract yet she had been scheduled to teach two courses in the fall
term.
Systemic Discrimination
[94] Counsel for the union emphasized the following evidence to support the claim that the
grievor had suffered systemic discrimination. Women are underrepresented as professors in PFP
at the college and in policing in general. The college markets itself as ‘the diversity college” and
the Letter of Understanding in the collective agreement refers to a “shared commitment to
achieving employment equity within the college.” The college has made no efforts to support
40
employment equity in the PFP. For example when Ms. Horodnyk asked for statistics about the
representation of women in the program she was told that none had been collected. During the
job interview, Professor Perino was skeptical that the grievor had supervisory experience.
Counsel argued here that the only reasonable inference to be drawn is that he was skeptical
because he believed that women do not always fill these positions.
[95] Further, during the interview the Department Head made the comment in reply to the
grievor’s concerns about female representation in the program “there are enough women
working at the college.” In union counsel’s submission she did not make a distinction between
the number of women at the college in general and the number in the program. When asked by
the grievor what it meant that the college “welcomed applications from equi ty groups,” she said
she did not know. In counsel’s submission these two statements point to a stunning lack of
understanding of the significance of the under representation of women in a male dominated
field. This lack of understanding creates a barrier to women like Ms. Horodnyk being successful
in a PFP job competition for a full-time position.
[96] Counsel argued in reply to the college’s submission that Ms. Horodnyk did not raise
discrimination as an issue until after she had grieved. She submitted that this is not the case. She
argued that the grievor repeatedly raised issues of systemic discrimination before the job posting,
during the interview and after. She submitted that the grievor also raised more direct bad faith
discrimination from the panel during her interview for the full-time position. Counsel noted that
when the grievor was being cross-examined she claimed systemic discrimination. Contrary to the
employer’s argument that systemic discrimination was part of the union’s case until argument,
41
[97] To the college’s position that the grievor cannot claim reprisal under section 8 of the
Code because employment equity is not a protected right under that legislation, counsel
emphasized that the grievor, in addition to claiming systemic discrimination and employment
equity violations also claimed direct discrimination, which is clearly protected under the Code.
Counsel submitted that Ms. Horodnyk also raised concerns about the “special program” that she
thought was in effect. Counsel reiterated that even if Ms. Horodnyk was wrong about the special
program and that the full-time position was to be an equity hire, she is deserving of protection
from reprisal under the Code. Counsel argued that the college cannot take the position that they
did not know that she was raising discrimination as a ground in her grievance. In this case, intent
to reprise against the grievor has been shown in two ways: first, the evidence that she did not get
a fair chance during the job interview and second, the evidence that she did not get the full-time
job and lost all work with the college.
[98] Counsel argued again that Ms. Horodnyk did not need to be correct about whether the
college owed her a duty to hire her under employment equity. The law permits an employee to be
wrong or unable to prove discrimination and still requires protection under the Code for reprisal.
Further, counsel argued that the grievor should be forgiven for using the phrase employment
equity even though she meant discrimination. The college submits that Ms. Horodnyk deserves
nothing because she did not assert a right under the Code. However, counsel for the union
submitted that the grievor was merely not using the right language.
42
[99] In sum, counsel argued that the complainant must introduce some evidence of the
essential elements of the claim. Here the claim is that Ms. Horodnyk suffered discrimination
from the college. Counsel argued that the union has shown that the grievor met or exceeded the
qualifications of the job; she is a woman; women are underrepresented in the PFP; Ms.
Horodnyk raised human rights concerns when the job was posted and throughout the process of
the hiring; she was treated unfairly during the interview for the full-time position and was not
given a fair chance; the panel engaged in this treatment because the grievor had raised human
rights issues about the posting.
[100] Thus in counsel’s submission having provided some evidence of each element of this
discrimination claim she asked the panel to find that Ms. Horodnyk had suffered discrimination
by the college because of her sex and reprisal. Counsel asked us to dismiss the non-suit motion
and grant the grievance.
[101] The union relied on the following cases in support of its submission: Toronto District
Board of Education and The Canadian Union of Public Employees, Local 4400, (2001) 168
L.A.C (14th) 339 (Swan); Ontario Public Service Employees Union (Sager et al.) and Ministry of
Transportation (2004) 134 L.A.C. (4th) 218 ( Mikus); Southern Alberta Institute of Technology
and A.U.P.E., Local 39 (1994) 43 L.A.C. (4th) 261 ( McFetridge); Canada (Attorney General) v.
Mossop, [1993] 1 S.C.R. 554 (S.C.C.)
Employer’s Reply Argument
[102] Counsel for the college submitted that the union claimed that the grievor is a victim of
systemic discrimination for the first time in its argument against the non-suit. Counsel argued
43
that the union has thus fundamentally changed the case in its argument. The union should not be
able to make a wholesale substitution of its case in closing argument.
[103] The union provided detailed particulars of the allegations against the college. They
included an allegation that the Department Head had a personal interest in the incumbent and this
is why he got the job. The college knew that there was no evidence to support this position.
However, the union maintained this position until counsel acknowledged that there was no
evidence to support this allegation during her submission against the non-suit. Thus from a legal
perspective the union’s case must fail. The purpose of particulars is to define the issues in
dispute, so there are no surprises at the hearing. The employer relied upon the particulars to
argue the non-suit motion and thus there is prejudice to the employer to allow the union to make
out a case that is completely different than what was originally alleged.
[104] Counsel argued that the board is not required to simply accept Ms. Horodnyk’s evidence
as being true. Counsel for the college reviewed the union’s submissions on evidence and what
they alleged were facts in the case. He urged us to separate material facts from bald conclusions.
As an example counsel argued the union stated as a “fact,” the Department Head had been
pursuing funding for an additional full-time position since the spring of 2009 and had determined
by late 2009 that the incumbent should have the position. Counsel urged us to find that there is
no evidence to support this statement. It is not a fact in any event. It is a conclusion. A second
fact is that the Department Head made the incumbent a partial load professor in December of
2009 in order to make him eligible to apply for a full-time position. Again, counsel for the
college submitted that there was no evidence to support this and it is not a fact.
44
[105] Further, it is not relevant to an analysis under the Code because there is no evidence to
suggest that the Department Head knew Ms. Horodnyk would apply for the position. If she was
trying to get the incumbent the job she was trying to block any and all applicants. A third fact
alleged by the union was that the Department Head took an exceptional step by assigning nine
hours of teaching in a single day to the incumbent. The union stated that this could not possibly
be for a legitimate business reason. Counsel for the college said this is not a fact. It is an
argument. Further, just because nobody had ever seen this does not mean that it was wrong.
[106] In counsel’s submission, facts may lead to inferences, if the inferences are reasonable. A
fourth fact alleged by the union is that when the funding for the position was secured, the
Department Head posted the job internally to reduce the number of applications and ensure very
little competition for the incumbent. Again, counsel argued this is not a fact. It is an argument.
[107] Further, contrary to the union’s position that the college discriminated against Ms.
Horodnyk, everyone was discouraged from applying for the position, except the grievor.
Moreover, there is no nexus between any of these allegations and a violation of the Code. The
professors discouraged from applying were all men. The union relies on the incumbent being
allowed to apply as an internal applicant as wrong even though Ms. Horodnyk and the incumbent
were both treated as internal candidates for the purposes of the competition. Thus Ms. Horodnyk
got the same treatment as the incumbent.
45
[108] The union also alleges that the job posting was tailored to meet the incumbent’s
experience and education. Further, the initial posting did not list women as an equity group
despite the fact that women are chronically underrepresented in the PFP. Counsel for the college
submitted that if this was truly the case then why would the college allow a university degree or
“equivalent” when it was clear the incumbent had a university degree and the grievor did not.
[109] Counsel for the college said that the union has asked the board to conclude that because
Ms. Horodnyk raised issues about the posting, both the Department Head and Professor Perino
were angry enough not to give her a fair chance in the job interview. Counsel stated that the
particulars never asserted that Professor Perino had a role in this case. Counsel argued further
that the union is trying to use the scoring of Professor Perino to bolster a weak case against the
Department Head. He emphasized that there was absolutely no evidence of collusion or
conspiracy between the Department Head and Professor Perino. More importantly, in counsel’s
submission, the union acknowledged that there is no evidence that Professor Perino was aware of
Ms. Horodnyk’s challenges to the posting in the pre-interview period. The problem here for the
union is that the Department Head scored Ms. Horodnyk higher than Professor Perino and the
union was forced to try to address a gaping discrepancy in its case.
[110] Regarding the union’s systemic discrimination argument, counsel submitted that there is
no evidence that women are underrepresented in the program. The only evidence that we have on
this is the grievor’s opinion. Other union witnesses gave evidence about the number of women
teaching in the program. However, there was no evidence about how many women applied for
positions in the program.
46
[111] Counsel reiterated that this case has always been a case about employment equity and
that the union never raised systemic discrimination allegations until the end of the case. He
cross-examined Ms. Horodnyk on the distinction between discrimination and employment
equity. She recognized the difference. There was no obligation for the college to consider Ms.
Horodnyk’s application more favorably because she is a woman.
[112] Further, counsel said that Ms. Horodnyk was terminated from her employment. Ms.
Horodnyk ceased to be an employee of the college when her contract ended in April 2010. She
had no right to a further contract. The parties agreed in the MOS to give the board jurisdiction to
hear Ms. Horodnyk’s grievance, when otherwise she had no right to grieve under the collective
agreement, since she was not an employee at the time of the competition.
[113] Counsel for the college said that the union asked the board to find that Ms. Horodnyk had
the equivalent of a post secondary degree. Counsel said that the employer would also like the
board to decide this issue. He reiterated that Ms. Horodnyk misled the board and the employer as
to her credentials. She does not have a degree and there is no proof that she has the equivalent of
a degree. He reminded the board that on cross-examination Ms. Horodnyk said it was the OPG
who had assessed her credentials, not a university.
[114] In conclusion, counsel urged the board to grant the non-suit motion and dismiss the
grievance.
47
Analysis
[115] This has been a long and difficult case for the parties. It proceeded by way of MOS and
our analysis of the college’s non-suit motion must be guided by that agreement. Ms. Horodnyk’s
employment ended with her winter 2010 contract. However, the MOS deemed that the grievor
was an employee of the college on September 1, 2010 for the purpose of giving the board
jurisdiction to hear her grievance. The MOS specifically authorized us to consider Ms.
Horodnyk’s human rights complaints. Ms. Horodnyk agreed to withdraw her human rights
complaint at the Ontario Human Rights Tribunal. The parties also agreed that we had the
remedial powers of Article 32.03D of the collective agreement. There is an express provision
that Ms. Horodnyk was not an internal candidate for the full-time position in the PFP. Finally,
the parties agreed in their MOS that Ms. Horodnyk was not entitled to any other rights under the
collective agreement.
[116] A brief review of arbitral jurisprudence on non-suit motions is helpful at this point in our
analysis. The principles applied in non-suit motions at arbitration are well established. In
Toronto District School Board, supra, the arbitrator quoted extensively from Ontario v. OPSEU
[1990] O.J. No. 365 (Div. Ct.) a decision reviewing an award by the Ontario Crown Employee’s
Grievance Settlement Board. The Divisional Court reviewed the necessary elements to be
considered by the decision maker in a non-suit motion.
The standard of proof on a non-suit is that of a prima facie case, not a case on
the balance of probabilities. If a prima facie case has been shown a non-suit
must not be granted. It is erroneous to determine a non-suit motion on the basis
of the higher onus of the balance of probabilities. A prima facie case is more
than a case for the defendant to answer,
48
‘The term non-suit describes the modern practice of the defendant
making an application for judgment at the close of the plaintiff’s
case on the ground that the plaintiff has failed to make out a case
for the defendant to answer.” Williston and Rolls, “The Conduct of
an Action”, p. 45 (Butterworths).
‘A motion for non-suit in modern practice is made by the defendant,
contending that the trier of fact should not proceed to evaluate the
evidence in the normal way, but should dismiss the action. The
defendant must satisfy the trial judge that the evidence is such that
no jury, acting judicially, could find in favour of the plaintiff. The
decision of the judge in both jury and non-jury actions is a decision
on a question of law. Sopinka, “The Trial of an Action”, p. 124
(Butterworths).
The “normal way” in a civil action would be on the balance of probabilities.
Where a judge is sitting with a jury, the issue is whether there is some evidence
to support the claim. If there is, the case goes to the jury. If there is none, it
does not.
When sitting alone the judge poses the same question. If there is some evidence
a motion for a non-suit must be dismissed. If there is none, it must be granted.
(para. 25)
[117] In City of Toronto, supra, the arbitrator, having cited the history of the non-suit motion in
the courts, explained the distinction between “no evidence” and “insufficient evidence”
The distinction that has been drawn between “no evidence” and “insufficient
evidence” demonstrates the difference between what is and what is not
properly a non-suit motion. A non-suit motion is in effect a “no evidence”
motion; that is, the moving party asserts that the party which has the onus in
the proceeding (or which has the onus with respect to an issue which if decided
against it would be dispositive of the proceeding), having had a full and fair
opportunity to do so, has failed to make out a prima facie case for the relief it
seeks. That is, on its own evidence, there is no reasonable possibility that the
party responding to the motion can succeed. (para.17)
[118] The arbitrator here went on to address the standard of proof to be applied in considering a
motion for non-suit:
…the question on a non-suit motion is whether there is any evidence which, if
taken at its highest, establishes or gives rise to a reasonable inference in favour
of the party responding to the motion. Any doubts in that respect are to be
49
resolved in favour of the responding party (Hall v. Pemberton, (1974) 5 O.R.
(2d) 438 (Court of Appeal)). This is consistent with what appeared to be the
court’s view of how administrative tribunals should handle such motions
(Ontario v. Ontario Public Service Employees Union (1990) 37 O.A.C. 218
(Divisional Court)). This does not mean that the evidence of the party
responding to the motion must necessarily be accepted as being true.
While a party should be given the benefit of the doubt, taking its evidence
at its highest does not require that evidence which is patently untrue or
unreliable has to be accepted. Nor does it require that every inference drawn
be favourable to the party. If the only reasonable inference to be drawn is a
negative one, it is appropriate to do so. The test that I consider appropriate to
apply is the test applied by the courts and the OLRB in such motions ; that is,
whether taking the evidence at its highest, and drawing all the reasonable
inferences most favourable to the City, has the City made out a prima facie
case for just cause for discipline? (para.21) [emphasis added]
[119] The Court of Appeal’s decision in Hall et al v. Pemberton referred to in City of Toronto,
supra, also cited in Toronto District Board of Education, supra, provides as follows:
The principle which this Court must apply is stated by Lord Penzance in Parfitt
v. Lawless (1872), 41 L.J.P. & M. 68 at pp. 71-2 where he said:
I conceive, therefore, that in judging whether there is any case
evidence for a jury the Judge must weigh the evidence given, must
assign what he conceives to be the most favourable meaning which
can reasonably be attributed to any ambiguous statements, and
determine on the whole what tendency the evidence has to establish
the issue.
And,
From every fact that is provided, legitimate and reasonable
inferences may of course be drawn, and all that is fairly deducible
from the evidence is as much proved, for the purpose of a prima
facie case, as if it had been proved directly. (para. 25)
[120] Thus, we must decide whether there is any evidence that allows the board to make
reasonable inferences to show a prima facie case that the college denied the full-time position in
PFP to Ms. Horodnyk because she is a woman or that she ought to have won the position
because she is a woman. The union alleges that the college did not give the grievor a fair chance
50
during the job interview because the Department Head wanted to hire the incumbent. The
college discriminated against the grievor and acted in bad faith. We must also consider whether
there is any evidence to find that the grievor suffered reprisal for asserting that women should be
listed as an equity group. We must consider all of the union’s evidence generously, but we are
not obliged to accept evidence that is patently untrue or unreliable. Further, we are required to
draw inferences from the evidence that, if believed, are reasonable and legitimate.
[121] The college’s non-suit motion is based on the contention that Ms. Horodnyk’s evidence,
where not supported by a document is not credible and therefore the board cannot rely on it or
make reasonable inferences from it.
[122] It is well established that in assessing the credibility of a witness there is no complete list
of factors to be applied by the board. In the oft quoted passage from Farnya v. Chorney [1952] 2
D.L.R. 354 (BCCA) noted in Patterson, supra, the court said as follows:
Opportunities for knowledge, powers of observation, judgment and memory,
ability to describe clearly what he has seen and heard, as well as other factors,
combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of
evidence cannot be gauged solely by the test of whether the personal
demeanour of the particular witness carried conviction of the truth. The test
must reasonably subject his story to an examination of its consistency with the
probabilities that surround the currently existing conditions. In short, the real
test of the truth of the story of the witness in such a case must be its harmony
with the preponderance of the probabilities which a practical and informed
person would readily recognize as reasonable in that place and in those
conditions (…) Again, a witness may testify to what he sincerely believes to be
true, but he may be quite honestly mistaken.
(para. 217))
51
[123] There are two aspects to credibility. The first is whether the witness has been honest in
his/her testimony. The second is whether the evidence is reliable. Poor memory and
misperception, inter alia, are likely to lead to a finding that evidence is not reliable.
The Grievor’s Credibility
[124] The college has argued that Ms. Horodnyk’s evidence is not credible on key issues: her
credentials and her claim to have the equivalent of an undergraduate degree; her work on
preparation for a course in 2009, her understanding of her efforts to have the job posting changed
to include women as an equity group, and her omission of evidence that she worked as a police
officer in Lindsay for several months. Counsel for the union argued that none of this evidence
should lead the board to find that Ms. Horodnyk is not credible. In support of her position
counsel argued that the best predictor of present behaviour is past behaviour. Counsel for the
union emphasizes that Ms. Horodnyk, who had a thirty-year blemish-free police career had been
highly commended throughout. She noted further that these traits do not change overnight.
[125] Counsel for the employer acknowledged that Ms. Horodnyk had a fine record as a police
officer. He also submitted that this case had nothing to do with the grievor’s performance in her
work for the college. Rather, the employer’s non-suit motion rests on the argument that Ms.
Horodnyk’s evidence is not credible and therefore the board cannot rely on it to find that there is
any evidence to survive the non-suit. We agree that Ms. Horodnyk’s performance teaching at the
college in fall 2009 and winter 2010 is not an issue before us. We also agree that Ms. Horodnyk
has a good record as a police officer. We must nevertheless consider the credibility of her
evidence.
52
[126] Counsel for the employer argued that Ms. Horodnyk’s evidence on her qualifications is
not credible. Ms. Horodnyk testified in examination-in-chief that she had completed six courses
in criminology at the University of Toronto. In cross-examination she acknowledged that she had
completed four. She testified that she had not realized that she failed one course. She said that
this occurred during a difficult time in her life. In re-examination of the grievor the union tried to
tender documentary evidence of a history course completed at the University of Toronto. There
was an objection that the document was not admissible and a majority of the board agreed. The
board is prepared to accept the oral evidence that she did a history course at the University of
Toronto. It is also recorded in her resume. However, it is of no help to the grievor on the issue of
her credibility on the evidence that she had completed six courses in criminology. The evidence
shows that she completed four.
[127] We have to conclude that Ms. Horodnyk was either misleading the board, as she had the
college, during her interview, or her evidence here is simply not reliable. She did not remember.
[128] Ms. Horodnyk testified that she had told the college that her education and experience
was equivalent to a university undergraduate degree. She maintained this position after she
learned that she had not been the successful candidate in the job competition. In an email to
Professor Perino, in response to his reasons for not finding her to be the best candidate, she says,
“a University has assessed all of my hands on experience, University and College courses as
equivalent to an undergraduate degree.” When cross-examined as to which university, she
admitted that OPG had assessed her work history and education. The union made no submission
53
to the board on this evidence, except to argue generally that as a police officer of thirty years, she
had an established record of integrity. Ms. Horodnyk provided nothing further to the board that
would allow us to conclude that her work history and education were equivalent to an
undergraduate degree. The import of this evidence goes primarily to credibility. However, it is
also important to the issue of whether Ms. Horodnyk satisfied an essential requirement of the job
posting.
[129] Two conclusions emerge from this evidence. The first regards Ms. Horodnyk’s
credibility. By claiming that a university had assessed her credentials, she clearly misled us, as
she misled the college. It is one thing to forget the number of courses completed in a program
some years in the past. It is quite a different matter to assert that her credentials had been
evaluated by a university as equivalent to an undergraduate degree, when it is simply not true.
The second is that Ms. Horodnyk did not provide evidence that she had the equivalent of an
undergraduate degree. Therefore she did not meet a threshold requirement of the job posting,
which will be addressed again later in our reasons.
[130] The college also argued that the grievor’s evidence on her efforts to prepare to teach the
“Issues and Diversity” course in the fall of 2009 is not credible. Without repeating the whole of
the evidence in this exchange summarized above, the grievor stated that she worked extensively
to create the materials for the course, for example, lesson plans and tests. In cross-examination
Ms. Horodnyk acknowledged that the Department Head provided materials to her for the course.
She also acknowledged that she made almost no changes to the materials. The board accepts the
grievor’s evidence that she worked hard to prepare to teach this course. However, in her
54
evidence in examination-in-chief she led us to believe that she had created the materials for the
course. She either deliberately misled us or she did not remember what she had actually done, or
she had an inflated view of the work she had done to prepare. In any case, we must once again
conclude that her evidence is not reliable.
[131] Counsel for the college submitted that the email exchange between Ms. Horodnyk and
others with regard to the original posting for the full-time position reveals the grievor’s
unreliable perceptions of events around her. The grievor testified that when she saw the job
posting dated June 28, 2010 she was concerned that women were not included in the list of
equity groups encouraged to apply. After some consideration she emailed the Department Head
on July 2, 2010 with her concern about women not being listed. The Department Head emailed
back on July 5, 2010 at 8:45 am: “You are right the posting does specifically identify women as
one of the equity groups encouraged to apply however, since women are underrepresented in the
policing profession, women are one of the equity groups. I hope that helps.” The Department
Head meant, “Does not specifically identify women…” Given the email was ambiguous, on July
6, 2010 at 10:48 am the grievor emailed back to the Department Head to clarify this and told the
chair that she would contact Human Resources to have the omission corrected. She said that she
was happy that the Department Head agreed with her and stated as follows:
All Police Services in Canada include women as one of the equity groups and
the Employment Equity Act of Canada lists women as one of the equity
groups. If this situation is not remedied prior to the expiration of the posting,
this whole process may be flawed.
Please don’t take my objection to the posting as insubordinate, I make this
request with the greatest respect of your authority.
It is understandable how the equity groups were attached to this posting, being
that the same listed equity groups are attached to other faculty programs.
From my perspective, I have had to fight an uphill battle for most of my career
in Policing and have learned to be proactive as (sic) apposed to reactive.
55
Thank you for your patience and understanding.
[132] Within thirty minutes of the receipt of this email, the Department Head replied to the
grievor acknowledging that she meant “doesn’t” list women, and copied Human Resources so
that they were aware of the grievor’s concerns. The next day Ms. Vidal of Human Resources
emailed the Department Head, thanking her for bringing the grievor’s concern to their attention
and advising that the college would be amending the posting. Ms. Vidal copied the grievor. Two
days later the grievor emailed the Department Head thanking her for contacting Human
Resources on her behalf and forwarding her concerns about the omission of women as an equity
group from the posting.
[133] These email exchanges are very important for a number of reasons. Ms. Horodnyk raised
her concerns about the posting. She was not shy about expressing her views, though she testified
that it was a dilemma for her, whether to speak up. She got an ambiguous response from the
Department Head, in that her email omitted a “not.” However, the rest of the email indicated that
the Department Head agreed with the grievor that women should be listed. In a quick response to
the grievor’s query about the “doesn’t” the Department Head clarified the ambiguity. She then
copied the email chain to Human Resources. The next day Ms. Vidal responded that the posting
would be amended to add women. The evidence is clear that the Department Head responded
respectfully and agreed with the grievor’s concern.
[134] However, this is not how the grievor understood the email exchange. When counsel for
the college asked Ms. Horodnyk about the Ms. Vidal’s response, the grievor said, “I was already
very suspicious. I did not know why she was thanking [the Department Head] for something I
56
had done.” Counsel for the college argued that to be suspicious of the college made no sense.
Ms. Horodnyk’s belief that the Department Head ignored her concerns about the posting
contradicts the emails between them. The evidence that the grievor also emailed the college’s
equity office is irrelevant. We have evidence in an email from Ms. Vidal that shows that, upon
receipt of the Department Head’s email, she consulted with Mr. Yves Deschenes, the Associate
Vice-President, Human Resources and Organizational Development about changing the posting.
Ms. Vidal noted that the equity office “had been contacted” regarding the posting. Mr.
Deschenes agreed within ten minutes. His email said, “Can you please update the list of equity
groups to include women for the posting…” This evidence shows that the college, including the
Department Head, took the grievor’s concerns seriously and took the necessary steps to change
the posting.
[135] Given Ms. Horodnyk’s perceptions of the email exchanges, counsel argued that the
board could not rely on her perceptions of what happened during the interview for the job or on
the September 1, 2010 meeting with the Dean and others. We accept the college’s argument that
it makes no sense for the grievor to be suspicious of an oversight in the posting or wonder why
the Human Resources thanked the Department Head for forwarding the grievor’s concerns to
them. It does lead us to conclude that Ms. Horodnyk’s perceptions of events here are not
credible.
[136] Counsel for the college argued that the grievor was willing to testify to anything under
oath to make out her case. She was also willing to omit part of her work history that might not
have reflected well on her record. Without the grievor’s response on cross-examination to why
she omitted this work history, we would not conclude that this was a deliberate omission.
57
However, when cross-examined on her employment in Lindsay, the grievor said, “I did not know
that you knew about that”. In the context of the detailed evidence on her work history, it is not
likely that she merely forgot to include it. Therefore, we conclude that the omission was
calculated. This evidence further undermines the grievor’s credibility.
[137] In sum, it is not necessary for us to find that Ms. Horodnyk has been generally dishonest
in her evidence, but from all of the above we must conclude that her evidence is not consistently
reliable. She exaggerated her credentials and her work on the fall course and misperceived an
inadvertent omission on the job posting as something deliberate and suspicious. She certainly
did not remember the number of courses she took in criminology. Ms. Horodnyk’s evidence that
she had the equivalent of an undergraduate degree as assessed by a university is clearly false.
Thus, we must be careful in assessing the grievor’s evidence in this case.
Should Ms. Horodnyk have won the position because she is a woman or was she denied the
position because she was a woman?
[138] The union conceded that the college never designated the full-time position as an equity-
hire. Nevertheless, the union maintained that the college ought to have considered its obligations
under its employment equity policies and the Letter of Understanding to assess Ms. Horodnyk’s
application and that she ought to have won the position because she is a woman. With all due
respect, we are persuaded that in this case the college was entitled to choose whomever it
considered the best candidate, given Article 6.01 (ii) which provides that the college may hire
employees “subject to the right to lodge a grievance in the manner and to the extent provided in
this Agreement.” Thus, there was no obligation under the collective agreement or under the
college policies to hire a woman. There is no evidence to support the union’s allegation that the
58
college acted in bad faith by not considering equity policies. Moreover, there is no obligation to
hire women under the Code.
[139] Ms. Horodnyk believed that the college should have hired her because she is a woman. In
her view, women are underrepresented in the department. She also testified that she believed that
there were systemic barriers to women being hired. Counsel for the college objected to the union
arguing in its reply to the non-suit that the grievor did not get the job because of systemic
discrimination in PFP. Counsel argued that this was the first time the union raised systemic
discrimination as a ground in the grievance. He argued that it would be prejudicial to the college
for the board to entertain the argument. He also argued that the union had not put in evidence to
support a claim of systemic discrimination. Counsel for the union disagreed and pointed to the
grievor’s testimony where she had said she did not get the job because of systemic barriers to
women. She also argued that Ms. Horodnyk meant systemic discrimination when she used the
term employment equity. We will not repeat the union’s whole argument on this issue, which is
found under the subheading, Systemic Discrimination above.
[140] We do not need to address the issue of when the union first advanced systemic
discrimination, because we are satisfied that there is no evidence to support a prima facie case
that there are barriers to women being successful. To advance a case of systemic discrimination
there would have to be some evidence of practices, policies or rules that may appear benign, but
have an adverse effect on a protected group, in this case women. It is not enough to assert that
the program is male-dominated without also providing evidence of how many women applied for
full-time positions over some time. Ms. Horodnyk’s opinion that she was unsuccessful in the job
competition because of systemic barriers is not helpful. Further, we are not persuaded that the
59
Department Head’s answers to the grievor’s questions at the end of her job interview prove
systemic discrimination. Nor can we infer that Professor Perino’s view that the grievor lacked
administrative experience was further evidence of systemic discrimination. He seems to have
relied upon the fact that the grievor’s highest rank as a police officer was acting sergeant. One
final point is that several partial load male professors were discouraged from applying, if they
did not have the credentials. Ms. Horodnyk was never told not to apply.
[141] The union rightly argued the hiring process must be consistent with the collective
agreement, which incorporates the Code. Therefore, the next question before us is whether there
is any evidence to support a prima facie case that the college denied the job to Ms. Horodnyk
because she is a woman.
[142] The union’s position in this case is that the grievor ought to have won the full-time
position because she is a woman and is qualified for it. The college did not give her a fair chance
during the hiring process; the union argued that the college discriminated against her. Initially it
contended that the Department Head contrived to award the position to the incumbent for
personal reasons. In argument against the non-suit motion, union counsel conceded that there
was no evidence before the board to support the allegation that the Department Head had a
personal interest in the incumbent’s success.
[143] Much of the evidence tendered by the union was the grievor’s belief that the college
treated her badly and the incumbent was the favoured candidate. We heard from Ms. Horodnyk
that she was of the view that the college gave the incumbent a teaching assignment that would
give him an advantage to compete for the position. The union made a substantial argument that
60
the college permitted the incumbent to compete for the full-time position, even though he was
not an internal candidate. The college also permitted the grievor to compete, even though she
was not an internal candidate. The college treated them the same way. Thus, we are not
persuaded that the college gave any advantage to the incumbent. They were the only candidates
for the full-time position and the college allowed both to compete.
[144] The grievor testified that in her view the college tailored the job posting to the
incumbent’s qualifications. She thought that the Department Head had written the posting.
However, there is no direct evidence to support her supposition. The Department Head told the
grievor that she had nothing to do with the job posting. She said that PAC drafted it. The union
tendered a document from PAC that was incomplete and stated it had no documentation on the
job competition. From this evidence, the union asked us to infer that the Department Head lied.
We cannot rely on an incomplete hearsay document to make such an inference. We prefer the
evidence, which the grievor told us herself, that the Department Head did not draft the posting.
[145] The posting required a degree or equivalent qualification. The incumbent has a Bachelor
of Applied Arts in Justice Studies and at least on review of his resume would seem to qualify in
all the requirements of the posting. Ms. Horodnyk does not have a degree, but as she claimed that
she had the equivalent of an undergraduate degree, the college allowed her to compete.
[146] The union argued that the omission of women as an equity group in the posting was also
part of a concerted effort to hire the incumbent. Further, the union claimed that it was because
the grievor raised the job posting issue that the Department Head was angry with her and treated
her badly in the job interview. The union asked the panel to infer that the Department Head
61
scored the grievor with low marks because she was angry with Ms. Horodnyk and wanted to
ensure that the incumbent was the successful candidate.
[147] The union also argued that we should infer that Professor Perino was angry at the grievor
for raising the omission of women in the posting during the interview. However, subsequently
the union acknowledged that there was no evidence that Professor Perino had any knowledge of
the grievor’s concerns about the posting at the time of the interview. There is no evidence that
anyone in the college was angry with Ms. Horodnyk for raising her concerns. Ms. Horodnyk may
have believed this to be true, but it would be unreasonable for us to infer this on Ms. Horodnyk’s
belief alone. As we noted earlier the Department Head’s response to the grievor’s email was
respectful and supportive of the change in the posting.
[148] We are left with Ms. Horodnyk’s belief that the college treated her badly during the
interview because she raised equity concerns about the job posting and because the Department
Head wanted the incumbent to get the position. Ms. Horodnyk blamed the panelists for her poor
performance in the interview. She complained that the panelists did not give her a chance to
explain that she had an equivalent credential. She testified that she understood that she did not
have to provide proof of her credentials until she was offered the job. However, there is no direct
evidence that the college treated her badly during the job interview. Even if Professor Perino
was skeptical about the grievor’s credentials or the Department Head was cold in response to her
answers to the competition questions, we are not able to infer this was because she is a woman
and the college wanted to hire a man. Given her low scores, we might, conclude that Ms.
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Horodnyk did not answer the questions very well. She acknowledged as much. She said that she
did not do a good job in the interview.
[149] We must conclude that given her misperception of the email exchange with the
Department Head regarding the change of the posting, her evidence on the interview is not
reliable. Further, the claim that the incumbent got special treatment, even if such an inference
was reasonable, does not provide any evidence that the grievor suffered discrimination contrary
to the Code. To be precise, there is no evidence that the incumbent received special treatment
because he is male.
[150] The union argued that Ms. Horodnyk was clearly qualified for the full-time position. The
grievor testified that she met or exceeded the job requirements. The union invited us to address
the issue of whether Ms. Horodnyk had the equivalent of a university degree and argued that it
had provided ample evidence through the grievor’s testimony that Ms. Horodnyk was qualified
for the full-time position. The employer agreed that we should address the issue.
[151] With respect, there is no evidence to conclude that Ms. Horodnyk met or exceeded the
job requirements for the full-time position. An undergraduate degree or equivalent was a
required qualification for the job. The only evidence before us is the grievor’s opinion that she
had attained the equivalent of an undergraduate degree. We cannot simply accept her opinion. It
is not reliable. Furthermore, she is not in a position to assess her own credentials.
[152] Ms. Horodnyk’s evidence that a university assessed her experience and course work as
equivalent to an undergraduate degree was false. There was nothing adduced to show that her
credentials were equivalent to an undergraduate degree. There was no certificate or record of
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assessment from a university as could be expected if she had one. The board has no expertise to
assess Ms. Horodnyk’s education and experience. This was the first essential element in the
union’s case and there is no evidence for us to find that she met this requirement of the job
posting. Even if Ms. Horodnyk met every other requirement in the job posting, this was enough
to disqualify her from getting the job.
[153] Further, we get some insight from Professor Perino’s email to Ms. Horodnyk in response
to her outrage at not being hired. He listed three reasons for her not being successful in the job.
In addition to not having a degree or equivalent, she did not achieve the benchmark scores
required in the competition questions. He also said that she lacked administrative experience.
Ms. Horodnyk reached the rank of Acting Sergeant.
[154] As in Sosoo, supra, the grievor here has made broad and sweeping allegations that the
college discriminated against her because she is a woman. However, she has not provided any
evidence to show the nexus between her gender and the alleged mistreatment. In Sosoo, the
Human Rights Tribunal commented on the threshold for meeting a prima facie case of
discrimination as follows:
It has been said that the threshold for making out a prima facie case of
discrimination is not a high one. However, in my respectful view, nor is it so
low that merely establishing that one has been mistreated and that one
identifies with one or more prohibited grounds under the Code will suffice to
make out a prima facie case. If that were the case, then every single employee
who experienced any kind of mistreatment would have a prima facie case of
discrimination under the Code, since everyone identifies with one or more
Code grounds just by virtue of her humanity. In order to make out a prima
facie case of discrimination, the applicant’s evidence must establish a
foundation upon which the Tribunal could find not only that the applicant was
mistreated, but that he was mistreated on the basis of a prohibited ground under
the Code. This is consistent with the Supreme Court of Canada’s decision in
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Andrews v Law Society of British Columbia, [1989] 1 S.C.R. 143, in which the
court defines discrimination thus:
Discrimination is a distinction, which, whether intentional or not
but based on grounds relating to personal characteristics of the
individual or group, has an effect which imposes disadvantages not
imposed upon others or which withholds or limits access to
advantages available to other members of society. (para. 71)
We agree with this analysis. The union’s evidence does not provide a foundation upon which we
can find that she lost the competition because of her gender. The only evidence we have is that
she is a woman and did not get the position. Having carefully reviewed all of the evidence and
the submissions of the parties, we have concluded that there is no evidence to support a prima
facie case that the grievor was denied the full-time position because she is a woman or should
have been successful in winning the competition because she is a woman.
Reprisal
[155] The next issue to consider is whether there is any evidence to show a prima facie case of
reprisal under the Code for the grievor’s complaint. The union argued that the employer was
liable for two reprisals. The first occurred when Ms. Horodnyk’s teaching load was reduced from
a partial load to part-time. The second occurred when the college did not renew her contract in
the fall of 2010. In Noble, supra, the Human Rights Tribunal explains why the protection
against reprisal is an important provision in the Code.
The prohibition against reprisal is an important provision in the Code. Its
purpose is to ensure that individuals may “claim and enforce” the
fundamental rights embodied in the Code without fear or intimidation. It
protects the integrity of the process before the Tribunal, as well as in
other complaint procedures that may be established under human rights
policies. An individual need not prove that their rights have in fact been
infringed to claim protection of section 8. As the Court has said,
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“Without a strict prohibition against reprisals, the purposes and
effectiveness of the statute would be significantly diluted.” (para 30)
[156] The tribunal goes on to articulate the test for reprisal as follows:
In order to prove reprisal, a complainant –now an applicant- must
establish that the respondent engaged in an action, or threat, which was
intended as a retaliation for the claiming or enforcement of a right under
the Code. Unlike an allegation of discrimination, where intention is not a
necessary element to prove a violation, where a reprisal is alleged, the
complainant must establish that the action was action with an intent to
punish or retaliate. [cites omitted] (para 31)
[157] The tribunal summed up its analysis with a list of the elements that must be proved to
establish reprisal:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or
attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt
to enforce the right.
Thus, we must first review the evidence to assess whether the union has provided any evidence
to prove a prima facie case that the college deliberately reduced Ms. Horodnyk’s hours to part-
time because she made or tried to make a complaint under the Code. Then the union must have
adduced evidence that the college intended to punish the grievor for claiming that her human
rights had been violated. The union rightly argued that even if the grievor was wrong about
alleging a breach of her human rights, the college might still be liable for reprisal under section 8
of the Code.
[158] There was a substantial submission before us as to whether Ms. Horodnyk was alleging
discrimination before her contract was not renewed in September 2010. The college argued that
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Ms. Horodnyk did not raise a beach of the Code until at the very earliest September 1, 2010.
Union counsel argued that while the grievor complained about the college’s failure to meet what
she considered its obligations under employment equity, she really meant that she had suffered
systemic discrimination. Whether she meant this or not, she did not make a complaint that her
human rights had been violated until the September 1, 2010 meeting with the Dean and others.
Before this date, she consistently voiced her complaint on employment equity. She believed
that she ought to get the job because she is a woman and in her view, women were under
represented. Asserting a right to employment equity is not the same as alleging systemic
discrimination. . Therefore, there is no evidence that the grievor claimed a right under the Code,
against which a reprisal could be committed.
[159] Moreover, the evidence before us is that Professor Perino emailed partial load and part-
time professors in the program in the spring of 2010 to tell them that their hours for the fall were
not clear, given someone was returning from a maternity leave and the full-time hire. He did say
there would be opportunities for all. Ms. Horodnyk claimed that she had no idea that her hours
could be reduced, but she did receive the email. It is also important to note again that Ms.
Horodnyk’s contract ended in April 2010. She was not an employee of the college and therefore
had no entitlement to any hours.
[160] The next question is whether the college did not renew Ms. Horodnyk’s contract because
she raised equity issues and filed a grievance. As noted above, there is no evidence before us
that Ms. Horodnyk claimed a right under the Code until possibly the September 1, 2010 meeting
with the Dean and others, when at the end of the meeting in her words she “served” the college
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with her grievance. The meeting was originally set up for feedback on the job competition. The
evidence of this meeting is important to our analysis of the union’s claim of reprisal.
[161] Ms. Horodnyk copied the Dean and other senior staff on the August 23, 2010 email to
Professor Perino. This email was highly critical of the Department Head. At the September 1,
2010 meeting, she learned that the Dean had investigated her allegations that the competition
was not fair and particularly the comments that the incumbent was given special treatment. The
Dean told Ms. Horodnyk that there was no support for her defamatory allegations against the
Department Head.
[162] The Dean had also received a copy of an email from the Maytree Foundation that Ms.
Horodnyk had sent the foundation on August 16, 2010. In it the grievor complained to the
organization about not getting the job. She also claimed that the college was ignoring equity
obligations in hiring. In the email, the grievor complained specifically about the Department
Head. The Dean asked Ms. Horodnyk if she had spoken to anyone outside of the college about
her complaint. Ms. Horodnyk testified that she understood that the Dean was referring to her
email to Maytree. The Dean told her that she had a problem with that. Ms. Horodnyk said that
she understood why the Dean was upset. She also told us that she had no intention of anyone in
the college seeing the email. The Dean concluded the meeting by telling Ms. Horodnyk she
would have to consider what action to take if any given all the circumstances.
[163] The grievor testified that she was “ambushed” at this meeting. Counsel for the college
urged us not to believe this, given Ms. Horodnyk had a prepared grievance with her and
delivered it at the end of the meeting. We tend to agree. The meeting was originally set up for
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feedback on the job competition. The nature of the meeting changed to an inquiry into Ms.
Horodnyk’s complaints, including the one made to Maytree. Given, the evidence on Ms.
Horodnyk’s view of what happened in the job interview, which we found not to be reliable, we
are not convinced that the college attacked her in any way in this meeting. By her own
testimony, she continued to criticize the Department Head and the competition process. Again,
she was not shy in advancing her views.
[164] The next day the college informed Ms. Horodnyk that they would not be renewing her
contract. The union argued that this was the ultimate reprisal for raising her equity concerns
with the college. The college argued that the grievor sent outrageous emails both internally and
externally and acknowledged in cross-examination that her communication was inappropriate.
Given her behaviour and considering that she was not an employee, there can be no inference
that the college’s refusal to renew her was reprisal. Counsel for the college also emphasized the
grievor’s email to Maytree on September 9, 2010 that said in part, “I was just fired from
Centennial College for the following reason: ‘The way your complaint was put out there, the fact
that you sent an email about your complaint to outsiders.’” He argued that Ms. Horodnyk
recognized that the reason for her nonrenewal was because she had contacted Maytree.
[165] It is not clear that the college realized that Ms. Horodnyk was raising any human rights
complaint in her grievance, because her complaints at the September 1, 2010 meeting and the
emails centered on a claim that the college failed to consider employment equity and the
unfairness of the competition, as she saw it. However, even if we found that there was some
evidence to satisfy a prima facie case that the grievor made a complaint alleging that her human
rights had been violated, we find there is no evidence that the nonrenewal was an intentional
69
retaliation for her complaint. The statements in the August 20 and 23 and Maytree emails are
highly disrespectful to the Department Head and the college. In her strident email on August 20,
2010 cited above in full, she attacked the Department Head:
I sincerely hope this is not disguised punishment because I took exception
to the noncompliance of this hiring process in terms of employment equity.
I felt when I requested that women be included as an equity group in the
posting, you were hostile towards me. In fact I had to go above the hiring
manager and prove that females were underrepresented as professors in
the Police Foundations Program. (There are now 5 full-time male
professors and 0 female professors.)
Likewise, the tone of the August 23, 2010 email is angry and entitled: it contains bolding and
underlining. Ms. Horodnyk was outraged that she did not get the job that she was sure should be
hers. When asked by counsel in cross-examination whether she thought bolding and underlining
was professional and appropriate, she said it was. She also suggested an outside review by
Stockwell Day’s office, before the college had even had an opportunity to investigate her
concerns. In cross-examination, she admitted that this was flippant and sarcastic. She copied
many senior staff of the college on both emails.
[166] Further, Ms. Horodnyk’s email to Maytree on September 9, 2010 contradicts any opinion
advanced at the hearing that the college did not renew her contract because she raised equity
issues with the job competition. She recognized that the college did not renew her contract
because she sent her complaint to an outsider. We are satisfied that given her behaviour and
considering that she was not an employee, there can be no inference that the college’s refusal to
renew her was reprisal.
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[167] Finally, we would like to thank both college and union counsel for their able argument
after a lengthy hearing.
[168] For the reasons noted above, we hereby grant the college’s non-suit motion and dismiss
the grievance.
Dated at Kingston, this 10th day of October, 2014
_
________________________
Deborah Leighton, Chair
_________________________
Ann Burke, College Nominee, concurring
__________________________
Sherril Murray, Union Nominee, dissenting in part
Deborah Leighton
"Ann Burke"
"Sherril Murray"
1
Dissent (in part)
Although there are a number of issues with which I agree with this Board, using t heir discretion
to eliminate the name of the Chair of the Community Services Department (Department Head),
Ms. Rita McGillivray while including the name of the grievor is unfair. The parties had not
sought an order to omit names and when a Board uses its discretion to eliminate names (a
practice I support) I believe it to be an obligation to be exercised for all concerned. To do
otherwise is in fact an action against the grievor.
With reference to the claims about the preparation work she did before her first assignments,
Ms. Horodnyk used the term” course outlines” to describe the work she was doing to learn the
materials and create lesson plans. A mistake in terminology is not a fabrication or exaggeration.
In terms of the grievor’s resume omitting a few months of employment with a police force over
twenty years ago is irrelevant. Yes, she did that and admitted to a minor fender bender during
that brief employment.
I agree that the grievor did herself no favour by exaggerating her credentials, but I also believe
she held a genuine belief that the 30 years of police work, 7 years of Acting Sergeant, her
success in the classroom, the 47 or more courses associated with the ranks of police personnel,
her courses at University and her self-assessment using the OPG assessment tool gave her the
equivalency.
By contrast, there was no consideration given by the hiring committee into establishing any
type of equivalency. Similarly, with the issue of women in the Department. Absolutely no effort
was made to further delve into the question raised by the grievor about why the entire full time
faculty of Police Foundations were men. Although the Chair (Department Head) was a female,
there was no evidence to suggest she had any police training at all.
Although the college revised the posting to include women, it was a hollow gesture without
meaningful analyses let alone any course of action. Certainly there is no evidence that the
college at any point turned their mind to gender issues nor that an entire program had only
male full time faculty. While there was no explanation provided by the college as to why or how
it happened, there was also no dispute that the category “women” should have been included
on the posting.
While the majority may be correct in that the evidence did not support the allegations, the fact
remains there were a number of indicators that Ms. McGillivray favoured a certain male
candidate.
That person was accommodated to the point he taught 9 hours in one day. In this member’s
experience in dealing with more than 7,000 college grievances I have never seen such a
workload as had neither of the faculty witnesses.
2
To those unfamiliar with this Collective Agreement, teaching “9 hours” classifies the individual
as Partial Load, a status which entitles one to be interviewed as an internal candidate. There is
sufficient evidence to conclude that the Department Head was at least seeking a new full time
position for the program although she may not have known conclusively it was to be approved .
Although eventually both candidates were treated as “internal”, it is more likely because the
grievor had raised her concerns about the omission of women as an equity group in the posting.
However I also believe the grievor that the interview itself was disingenuous.
The exhibits show marks from the interview awarded the grievor were extremely low
considering the answers she provided and written comments about her answers non -
complimentary.
The unrefuted evidence that the Department Head also dissuaded two other candidates from
applying for the position also gives rise to further concerns. The college asserts (without
evidence) that was done because the candidates did not have a University degree. Then why
ask for equivalency in the first place?
Up until a significant number of days into the hearing, the grievor had not known that this
particular posting had not been designated an equity hiring as had the previous posting in the
department. Thus her pursuit in the direction of equity matters and systemic discrimination.
After dealing with the employer to rectify the posting and include “women”, she brought to the
attention of the college the positive efforts of police forces to encourage female applicants in a
tremendously male dominated sector. She asked for any information the college could muster
on what inquiries had been made into this issue. The only response from her Department Head
was “There are already enough women working in the college.” With respect, that does
nothing to address the issue with Police Foundations.
Turning to the posting itself. It is heavily skewed in a direction which encompasses the
incumbent’s qualifications as evidenced in exhibit 54, Ms. McGillivary’s “Request to Recruit
Form” and exhibit 58, the incumbent’s resume. No doubt the incumbent’s experience is useful
to the department. However, other partial loaders and part timers including the grievor may in
fact have possessed superior experience and demonstrated skill. The posting was so narrowly
construed paired with the Department Head’s active campaign to dissuade other candidates,
we will never know.
The grievor testified that she had asked Ms. McGillivary about the creation of the posting and
Ms McGillivary said the PAC had created the criteria. A request for information revealed they
had not.
It is most unfortunate that the grievor’s quest for assistance from Maytree was revealed to the
grievor’s employer. More unfortunate is the employer’s defensive and punitive reaction.
The grievor had asked for a meeting post interview to review her performance at the interview
to seek advice from the employer as to what she needed to do to become the successful
3
applicant for a full time position. Instead she received the news of what she views as her
“termination”.
She had already been told that she would be teaching two courses and had prepared the
materials for two courses. The college chose to withdraw that offer, or more precisely did not
commit to place in writing those contracts of employment.
I can draw no other conclusion than the employer was offended by the grievor’s persistence at
addressing the issues of gender and systemic discrimination and decided to sever the
relationship. However I believe a large part of that “offended” also meets the level of reprisal
and terminated the grievor contrary to the code.
All of which is respectfully submitted, Sherril Murray Union Nominee.