Law Times

Law Times • sepTember 10, 2012 FOCUS ON Human Rights Law Firefighter's age-based claim dismissed But City of Ottawa ordered to stop requesting birth certificates filed a complaint with the Human Rights Tribunal of Ontario. Shaw, a veteran firefighter in A ment, David Shaw Mississauga, Ont., felt he wasn't getting the job because of his age. When he first applied for the job in 2005, Shaw was 37 years old. He applied again in 2008 at the age of 40. Both times, he didn't get the job despite his credentials. He needed the job considering he was commuting from Ottawa, where his wife lived, to Missis- sauga, where he continued to work as a firefighter. Aſter he filed a complaint on Oct. 30, 2009, in which he alleged the city' the second rejection, against older firefighters and fa- vours the younger candidates. The tribunal heard the com- s hiring process discriminates plaint and made its decision earlier this year. In order to prove his case, Shaw alleged the city's points system for BY KENNETH JACKSON For Law Times ſter two attempts to get job with the City of Ottawa' an entry-level s fire depart- tion due to his age. "The applicant alleged that the respondent's points system had an adverse effect on older candidates, such as him, but his theory of discrimination was illogical and he did not pres- ent any credible evidence to support his allegation," wrote tribunal vice chairman Ken Bhattacharjee in his ruling. Bhattacharjee even went as far as ruling the points sys- tem favours older candidates. "The points system, which The City of Ottawa won a recent case of discrimination over its hiring practices at its fire department. screening for minimal qualifi- cations, a written exam, a physi- cal test, and final interviews. Shaw was one of 325 candi- dates who passed the first three stages of the recruitment process. The process involved assessing assessing job applicants discrimi- nated against older candidates. At the same time, he felt that by ask- ing him to submit documents that showed his age during the hiring process, the city was attempting to classify candidates by age. When Shaw first applied for the job, he didn't put his age on the application but indicated he had worked as a firefighter since 1994. Shaw' each candidate on a points system based on eight categories that in- cluded experience and education. Shaw received a total of six to other less relevant experience, such as volunteer or part-time firefighting, that younger candi- dates tend to have. Shaw also said a human re- sources consultant at the time "candidly admitted to him that the system was skewed towards younger candidates." However, the city was able to points out of a possible 17. The candidates then went show it had hired several people who were around Shaw' through interviews. Prior to the interviews, Shaw was asked to provide a copy of his birth cer- tificate. According to the ruling in older. The interview process for the s age or plications the city received. Hiring involved a four-part re- cruitment process that included s was one of 1,400 ap- the case, Shaw told the tribu- nal the points system restricted career firefighting experience, which tends to apply to older candidates, to a maximum of three points. He believed the system allo- cated the same amount of points candidates from 2005 contin- ued until the fall of 2008. Shaw was 40 years old when he had his interview. In the meantime, the city ad- vertised for positions again in 2008. Shaw applied for those jobs as well. He testified he made it past the first two rounds but said the process ended there. The city, however, said it had sent Shaw a letter inviting him for the third ing testified that one member of the interview panel would have reviewed the birth certificate and driver' round. Shaw said he never got it. A city division chief for train- cant had the legal right work in the country and drive a fire truck. But the human resources con- s licence to ensure the appli- sultant testified "that only the clerk would have reviewed the documents and the panel would not have seen the documents pri- or to the interview unless there was an issue with the documents." The letter went out on Oct. 17, 2008, a few days aſter Shaw's inter- view for the first hiring process. The tribunal found the city' evidence was inconsistent as to whether the interview panel had received Shaw' s prior to the interview. However, following a three- s documents day hearing, the tribunal tossed out Shaw' s claim of discrimina- CANADIAN LAW LIST 2012 YOUR INSTANT CONNECTION TO CANADA'S LEGAL NETWORK Inside you will find: • an up-to-date alphabetical listing of more than 58,000 barristers, solicitors and Quebec notaries, corporate counsel, law firms and judges in Canada; • contact information for the Supreme Court of Canada, the Federal Court of Canada, Federal Cabinet Ministers, departments, boards, commissions and Crown corporations; • legal and government contact information related to each province for the Courts of Appeal, Supreme Courts, County and District Courts, Provincial Courts, law societies, law schools, Legal Aid, and other law-related offices of importance. MORE THAN A PHONE BOOK Hardbound • Published February each year • On subscription $149 • L88804-571-26084 One-time purchase $165 • L88804-571 • ISSN 0084-8573 Prices subject to change without notice,to applicable taxes and shipping & handling. Visit carswell.com or call 1.800.387.5164 for a 30-day no-risk evaluation www.lawtimesnews.com CLL - 1/4 pg - 5X.indd 1 1/20/12 10:55 AM CANADIAN LAW LIST allocates points for a broad range of qualifications, educa- tion, and work experience, is more favourable to older can- didates because they tend to have more life experience than younger candidates," he wrote. "In cross-examination, correct, Bhattacharjee said the tribunal couldn't find the points system to be discriminatory un- less there was evidence of an ad- verse effect on older candidates. Shaw didn't provide any evidence to support that, he ruled. But Bhattacharjee did find towards older candidates." Even if Shaw' s argument was the city overstepped its bounds by asking for a birth certificate. "I find that it is appropriate to order the respondent to cease and desist from requiring candi- dates for firefighter positions in job competitions to provide cop- ies of documents with their birth dates and other code ground identifiers on them during the application and interview pro- cess," wrote Bhattacharjee. "I will leave it up to the re- " LT the applicant eventually ad- mitted that the points sys- tem may, in fact, be skewed PAGE 9 spondent as to how it will imple- ment this order.

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