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Kickham v. Charlottetown (City)

Report of the Board of Inquiry Between Gladys Kickham, complainant, and City of Charlottetown, respondent

Prince Edward Island Board of Inquiry Under the Human Rights Act J.K. Clark

Heard: January 13-27, 1986.
Decisions: March 26, 1986
(68 paras.)

Appearances:
 
Dolores Crane, for Gladys Kickham.
David Hooley, for the City of Charlottetown.
Linda Gaudet, for P.E.I. Human Rights Commission.
David Riley, for the Board of Inquiry.


1      This matter arises as a result of a complaint filed by Gladys Kickham with the Prince Edward Island Human Rights Commission on May 14th, 1985, pursuant to the Human Rights Act.  In that complaint, Ms. Kickham alleges that she was discriminated against by the City of Charlottetown in relation to her application for a position with the City Police Department.  The particulars of Ms. Kickham's allegation are that she was discriminated against on the basis of her sex in the matter of employment and such discrimination took place on an interview date of April 29th, 1985 and/or a Council Meeting on May 14th, 1985.

2      Subsequent to the filing of the complaint, the Prince Edward Island Human Rights Commission made an investigation and attempted to seek settlement between the two (2) parties.  Settlement could not be reached and as a result of this, I was appointed by the Minister of Justice and Attorney General for Prince Edward Island, as a one (1) man Board of Inquiry pursuant to Section 24(1) of the Prince Edward Island Human Rights Act.  A number of witnesses were called at the Board of Inquiry and their evidence lasted for six (6) days and two (2) evenings.  There was also one (1) day set aside for summations by Counsel.  I would like to take this opportunity, at the outset, to thank Counsel and all parties involved for their co-operation and assistance throughout the Hearing and their helpful research and representations made before the Board of Inquiry.

3      There were a great deal of inconsistencies which arose as a result of the evidence of some of the witnesses before the Board of Inquiry and I will therefore be called upon to make findings of fact in relation to the inconsistencies where they appeared.  I will, as well, be required to deal with issues of credibility and I will be cognizant of the same in such findings of fact.  In fairness to some of the witnesses that appeared before me, a substantial period of time had elapsed since the time of the alleged discrimination and memories may have been somewhat hazy on certain points which became crucial in the determination of the issues I must deal with.

4      In February of 1984, a vacancy was created in the Charlottetown Police Force by the retirement of one Sergeant Bishop.  In October or November of 1984, discussions took place at the Police Committee level regarding a replacement for the vacancy so created by the retirement of Sergeant Bishop.  The position to be filled was that of a Probationary Constable and not a Sergeant.  As a result of the Police Committee discussions, Chief Charles Ready was instructed to insert an advertisement in the local paper calling for applications.  Among other things in such advertisement, it indicated, that the job was open to male or female applicants and applications were to be made to Chief Ready by Twelve o'clock (12:00) noon on Friday, December 28th, 1984.

5      As a result of the advertisement, a list of Twenty (20) candidates was compiled by Chief Ready in early 1985 and during the period between January 1985 and March 1985 a Selection Committee was chosen by Mayor Frank Moran, with Alderman John Squarebriggs as Chairman.  It appears that membership of the Selection Committee changed prior to the interview night due to illnesses, etc. but Mayor Moran was kept fully appraised, as was Council, by Alderman Squarebriggs.  The final composition of the Selection Committee, consisted of Alderman John Squarebriggs, Alderman Maureen Hutcheson, Deputy Chief Wayne MacIntyre, Sergeant Roy Biggar, and Sergeant Paul Jay.

6      In the early part of April 1985, after being requested to do so, Chief Ready short-listed the applicants to eight (8) who were to be contacted for interviews before the Selection Committee.  The date for such interviews was to be April 29th, 1985 and to take place at City Hall.  Ms. Kickham was the only female who had applied for the job and was therefor one (1) female among Twenty (20) original applicants. She also made the short-list and was therefore one (1) of the eight (8) people to be granted interviews.  I should point out at this stage, that one (1) of the eight (8) persons named on the short-list did not appear for his interview and was therefore not considered.

7      Prior to embarking upon the evidence in relation to the interviews which took place and the procedures used thereat, I should address the issue of the guidelines which were given to the Selection Committee members by the City of Charlottetown.  Evidence from the City Administrator, as well as various Aldermen, and the members of the Selection Committee highlighted the deplorable lack of procedure prescribed by City Council for the hiring of police officers. Evidence given by the City Administrator indicated, that there are various other positions, including promotions of police officers, where actual procedures are set down.  The Selection Committee in this instance, was given a mandate to recommend to Council a police officer for a position on the City Police Force.  This, from what I can glean from the evidence, comprised the entire instructions, procedures, guidelines, and assistance which City Council gave to this Selection Committee to help them with their mandate.  There were no set questions to be asked, no determination of how a successful candidate should be chosen, no requirement for the Selection Committee to indicate to Council the basis upon which such recommendation was made and in addition to this, no guidance when even requested by the Chairman of the Selection Committee.  The Chairman of the Selection Committee, Alderman John Squarebriggs, stated that at various times during this hiring procedure and actually prior to the interviews, he requested time and time again that the Mayor and Council give him guidance in procedure and guidelines for the use of his Selection Committee.

8      I find this lack of procedure and guidance not only unfair to applicants for a job on the said City Police Force, but also to the members of the Selection Committee.

9      It would appear, that up to the night of April 29th, 1985, the Selection Committee had not itself established rules or procedures for the determination of how a successful applicant would be chosen.  There was a brief discussion prior to the interviews on the night of April 29th, 1985, where the parties discussed the use of certain evaluation forms in the scoring of the applicants on different attributes.  It was further determined by the Selection Committee, that the same six (6) questions be asked to each of the applicants and they would be scored on the basis of their responses.  Evidence would indicate that some persons on the Selection Committee based their scoring on the basis of the content of the answers, whereas others based their scoring on the way the applicants presented themselves in giving their responses.

10      At the commencement of the interviews, no firm method had been established to determine a successful candidate.  Alderman Squarebriggs stated in his evidence, that he felt that the top three (3) candidates would be considered to find which of the three (3) would be the successful candidate.  Although a procedure was not voted upon, I find that from the evidence and actions of the remaining four (4) members of the Selection Committee, that it was their opinion that the person who scored the highest as a result of the evaluation forms would be the successful candidate.  I will discuss this matter further at a later stage.

11      I am of the opinion, that all of the applicants, who were interviewed on April 29th, 1985, were treated the same during their respective interviews.  I find that there were no discriminatory comments made during the actual interviews, and that each applicant was given an equal opportunity before the Selection Committee.

12      During the course of the interviews Alderman Maureen Hutcheson suggested that the marks given to each candidate, as they appeared before the Selection Committee, be discussed.  However, one other member of the Selection Committee, being Deputy Chief MacIntyre, felt that the discussion of each applicant's scores as they appeared before the Selection Committee may in fact prejudice the minds of the people on the Selection Committee as they marked subsequent applicants, if in fact they had a favourite applicant.  It was therefore resolved, through whatever medium, that the scores of each of the applicants not be discussed until the determination of the interviews.  I have no doubt that during the interview process, as well as the discussion which took place later, the proper forms of procedure for a meeting were not followed.  At various times, especially after the interviews were completed, there would be two (2) to three (3) conversations going on at once, and therefore things that were said, were not heard to have been said, by certain members of the Selection Committee.

13      At the conclusion of the interviews, each of the members of the Selection Committee were asked to relate to Deputy Chief MacIntyre, who was in possession of a calculator, the marks that each of the Selection Committee members had attributed to each of the candidates under each of the respective categories, as well as the total mark.

14      The scores which were attributed to each of the top three (3) candidates by each of the Selection Committee members, are as follows:
 
John Maureen D/Chief

Square-

Hutche-

Sgt.Paul

Sgt.Roy

Mac

briggs

son

Jay

Biggar

Intyre

-------

-------

--------

-------

-------

Kickham

86

87

88

93

86

MacGuigan

92

73

88

91

88

Estabrooks

91

84

85

91

87

15      In averaging the marks indicated above, of each of the top three (3) candidates, the resultant averages and ranking, are as follows:
 
Average Score

Gladys Kickham

88.8

Colin Estabrooks

87.6

Gary MacQuigan

86.2

16      After some discussion, which I will deal with later, a majority (3) of the Selection Committee felt that another marking system should take place whereby the highest and lowest marks given, by the Selection Committee, to each of the candidates should be taken off and the remaining marks averaged.  As a result of this exercise, the following were the results:
 
Average Score

Gary MacGuigan

88.6

Colin Estabrooks

87.6

Gladys Kickham

87

17      A great deal of discussion took place in relation to why, in fact, the system was changed from the matter of a simple averaging, to a system where the high and low marks were taken off prior to averaging, (referred to at numerous times as the Olympic Marking System).  Alderman Squarebriggs, as well as Deputy Chief MacIntyre and Sergeant Jay, all indicated in their evidence, that this had taken place due to the fact that Alderman Hutcheson had given Gary MacGuigan a 73 which was substantially lower than any other mark Mr. MacGuigan had received from other members of the Selection Committee.  The evidence of these individuals indicates that they asked Alderman Hutcheson to explain her low marking of Gary MacGuigan, but she did not give a satisfactory answer. All three (3) related, and in particular, Sergeant Jay and Deputy Chief MacIntyre, that in their minds, Alderman Hutcheson was treating Gary MacGuigan unfairly and possibly discriminating against him in order to place her favourite, Gladys Kickham, higher in the ranking.

18      Professor Gerald Winston Pineau was called on behalf of the Human Rights Commission to testify as an expert in relation to the scores which were given by the various Selection Committee members and if the scoring given by Alderman Hutcheson to Gary MacGuigan should alert a person that discrimination or bias had taken place.  After lengthy testimony, Professor Pineau said, that objectively, one would not suspect bias, looking at the mark given to MacGuigan by Alderman Hutcheson in light of the marks Alderman Hutcheson had given to the other six (6) applicants.  Alderman Hutcheson did mark lower overall than the other Selection Committee members.  However, under cross examination by Mr. Hooley, Professor Pineau seemed to indicate that, if a person looked at the marks subjectively, and had some preconceived notion that Alderman Hutcheson was biased or prejudiced, one might be concerned about the mark given to Gary MacGuigan.

19      I feel, that rightly or wrongly, Alderman Squarebriggs, Deputy Chief MacIntyre, and Sergeant Jay were all of the opinion that Alderman Hutcheson was for one (1) reason or another intentionally treating Gary MacGuigan unfairly and was possibly doing this in order to further promote and elevate the standing of Gladys Kickham.  This was one of their reasons for changing the scoring system.

20      I find that after the reranking, as a result of the utilization of the Olympic Marking System, a successful candidate had still not been chosen by the Selection Committee.  I further find, that a discussion in relation to male and female police officers took place subsequent to the determination under the Olympic Marking System.  As I had indicated earlier, the evidence would show that after the calculations under the Olympic Marking System, there still was not a successful candidate conclusively chosen who would be presented to Council.

21     The manner in which the discussion arose in relation to the question of female police officers, I find to be quite curious, yet somewhat enlightening.  The majority of the discussion centering around female police officers took place between Sergeant Jay and Alderman Hutcheson, and to a lesser extent, Deputy Chief MacIntyre took part in this discussion. Deputy Chief MacIntyre indicated that the sequence of events which took place leading into this conversation were to the effect that he, as well as Sergeant Jay and others were trying to convince Alderman Hutcheson of the attributes of Gary MacGuigan in relation to a life saving award, as well as his impressive resume, to which Alderman Hutcheson did not seem to be responding favourably.  Immediately after this, for reasons which were never explained, although addressed before the Board of Inquiry, Deputy Chief MacIntyre asked Alderman Hutcheson that if she had a problem at her home, who would she sooner have attend, a two (200) pound "male" police officer or a One Hundred and Twenty (120) pound "female" police officer. The question I find was stated rhetorically.  The apparent response by Alderman Hutcheson was to the effect that she would sooner have a One Hundred and Twenty (120) pound female than a fat-bellied policeman.  Subsequent to this, Deputy Chief MacIntyre called on Sergeant Jay to relate his experiences with female police officers.  As stated, this abrupt change in the discussion from speaking of the attributes of Gary MacGuigan directly to negative experiences with female police officers, I find to be quite unusual.

22      Although Sergeant Jay related, that he would be happy to have Gladys Kickham working under him, at the conclusion of the discussion in relation to female police officers, the evidence indicates that all experiences which he related, as well as experiences he could relate in relation to other Police Departments, had somewhat negative implications to female police officers.  I believe that his explanation to Alderman Hutcheson did not include many positive attributes of female police officers.  Granted, a number of the issues, Sergeant Jay related to the Selection Committee, centered around the ability of other male police officers to work with female police partners.

23      I find that as the evening of April 29th, 1985 progressed, it was obvious at the Selection Committee, that Sergeant Biggar and Alderman Hutcheson were supporting candidate Kickham and Sergeant Jay and Deputy Chief MacIntyre were supporting candidate MacGuigan.  Later in the interview night it becomes obvious that Alderman Squarebriggs, was forced to break the tie and decided to support candidate MacGuigan.  I find that when the Selection Committee disbanded on the evening of April 29th, 1985, the Selection Committee had supported MacGuigan on this three (3) to two (2) basis and that Alderman Squarebriggs was going to go to the Committee of the Whole to seek further instructions.  However, unless something convinced him otherwise or he was instructed to change procedures, he would be recommending to City Council that Gary MacGuigan be hired.

24      As stated above, there is a great deal of confusion as to what took place on the interview night in relation to how a successful candidate was to be chosen. After reviewing all the evidence, I am compelled to make some findings, which may in fact not be consistent with the stories of some of the parties, but appears to have been the scenerio on April 29th, 1985.  I find that the intention originally, was that the candidate who ranked highest as a result of the scoring, would be the successful candidate and the one recommended to Council.  In support of this, there is the evidence of Alderman Hutcheson, as well as Sergeant Biggar, which would indicate, that after the scoring was completed, they had anticipated they would have a successful candidate. Sergeant Jay and Deputy Chief MacIntyre also stated that they were of the same opinion.  Although, Alderman Squarebriggs stated that the top three (3) ranked candidates would be further discussed, I find this quite unusual given the developments which took place on April 29th, 1985.  If the ranking of the top three (3) candidates was not important, it was very unusual why Alderman Squarebriggs would suggest that the Olympic Marking System be put in place.  All this could hope to do was change the ranking of the top three (3) candidates and the scoring, which according to Alderman Squarebriggs would not be important in any event.  Therefore, the exercise of the Olympic Marking System, would be of no assistance whatsoever.  I find that the Selection Committee felt, at least initially, that the person who ranked with the highest score would be the successful candidate and the person recommended to Council.

25      The next question which one must address, is why then, was the initial scoring system changed and further, after the change, why was the second scoring system not allowed?  In relation to the changing of the first scoring system, there is a great deal of evidence dealing with this issue given by Alderman Squarebriggs, Deputy Chief MacIntyre, and Sergeant Jay.  They stated in their testimony, that the reason they wanted the Olympic Marking System was to eliminate the low mark Alderman Hutcheson had given to Gary MacGuigan. As related above, this would in my mind support the fact that the actual scoring system was to be the determining factor. Alderman Squarebriggs, Deputy Chief MacIntyre, and Sergeant Jay stated that their reason for changing the marks was because of the unfair mark given by Alderman Hutcheson.

26      In dealing with cases of discrimination, one sometimes has to look at the total circumstances, including matters surrounding decisions made by hiring authorities to determine if discrimination is at all a factor. In the case of Kennedy v. Mohawk College Board of Governors (Ontario Board of Inquiry, 1983), the Board of Inquiry stated as follows:
 

"Discrimination on the grounds of race or colour are frequently practised in a very subtle manner.  Overt discrimination on these grounds is not present in every discriminatory situation or occurrence.  In a case where direct evidence of discrimination is absent, it becomes necessary for the Board to infer discrimination from the conduct of the individual or individuals whose conduct is an issue.  This is not always an easy task to carry out. The conduct alleged to be discriminatory must be carefully analyzed and scrutinized in the context of the situation in which it arises."

27      Also in the case, before a Board of Inquiry, of Ruest v. International Brotherhood of Electrical Workers and Nicholls (Ontario, 1968), the Board of Inquiry Chairman stated at Pages 2-3, as follows:
 

"Seldom will chose who act for motives which are forbidden by the law and held in disrepute by the community announce in clear and unmistakable terms that they are acting for illicit motives.  As experience under The Labour Relations Act has indicated, much depends upon the ability of a tribunal to draw inferences from conduct which (at least in the eyes of a person familiar with employment relations) are reasonable if not compelling."

28      Further in the Ontario Labour Relations case Metropolitan Meat Packers Ltd. (1962), 62 C.C.H.L.L.R. 230, it was stated as follows:
 

"... Legitimate and reasonable inference may be drawn from all the evidence adduced and that which is clearly deductible from the evidence is as much proved as if it had been established by direct evidence ... It should be borne in mind that the facts as to the real reasons for discharge often lie peculiarly and necessarily within the knowledge of the respondent."

29      I find that after the initial scoring, there was a great deal of concern about the way the parties had ranked. The reason for changing the scoring, I find, did have something to do with the way the parties had in fact ranked. To address the question of whether there is anything of discriminatory nature going through the minds of the members of the Board, I find it requisite to consider the comments made subsequently by the Selection Committee members.  I believe the unrequisitioned rhetorical question made by Deputy Chief MacIntyre, (about the Two Hundred (200) pound "male" versus the One Hundred and Twenty (120) pound "female"). would definitely indicate that he felt males were much more desirable for police work than females.  Also, Sergeant Jay's comments, addressing all his statements in a negative fashion, in relation to female police officers, would indicate what may have been going through his mind.

30      The changing of the scores, I feel came about, to an extent as well, by the low mark given Gary MacGuigan by Alderman Hutcheson.  I think that Sergeant Jay and Deputy Chief MacIntyre, in particular, felt that they had been tricked by Alderman Hutcheson, and in this way the female candidate who she was supporting would be successful.

31      Ultimately, the old scoring system was changed and the new scoring system came into play with the results as mentioned above.  I feel again, that possibly the successful candidate would have been chosen at this time in the person of Mr. MacGuigan, but Alderman Squarebriggs was rattled by Alderman Hutcheson and her accusations in relation to discrimination and bias.  I believe, that as a result of this, it became requisite to proceed to have some form of vote in relation to who would be the successful candidate among the top three (3) candidates.  In reality, the question really was who would be the successful candidate between Gary MacGuigan and Gladys Kickham, as candidate Estabrooks was never mentioned.

32      At this stage it is incumbent to discuss the issue of whether the statements made by Deputy Chief MacIntyre and Sergeant Jay, could said to be of a discriminatory nature. In addition to the statement made by Deputy Chief MacIntyre in relation to the Two Hundred (200) pound "male" police officer and the One Hundred and Twenty (120) pound "female" police officer, Sergeant Jay indicated problems of female police officers and their male partners becoming emotionally involved while working together.  As well, Sergeant Jay indicated, that in some instances a dispatcher may not send a team which included a female police officer to a rough situation.  Also, there was discussion which took place where a male partner would become overprotective of a female in situations where the female may be harmed or threatened with bodily harm. These discussions centering around police officers went on for a substantial period of time.

33      The definition of discrimination as contained in Section 1(d) of the Human Rights Act, states as follows:
 
1(d)

"Discrimination means discrimination in relation to the race, religion, creed, colour, sex, marital status, ethnic or national origin, age, physical disability or political belief as registered under Section 24 of The Election Act R.S.P.E.I. 1974, Cap. E-1 of any individual or class of individuals."

34      The definition as contained in the Human Rights Act of Prince Edward Island is somewhat ambiguous but appears to be the same definition which is utilized in various Human Rights legislative enactments in Canada.  We must therefore look to see how the definition of discrimination has been interpreted and utilized.  In the case of Paul S. Carson, Ramondsanz, William Nash, Barry James, and Arie Tall v. Air Canada (1983) 5 C.H.R.D. 187, the Board in discussing discrimination said at Paragraph 15972, as follows:
 

"Fundamental to the concept of discrimination is the existence of a preference or distinction based on an individuals characteristics, but not related to an individuals merit."

35      The approach to discrimination has gone through various stages in United States as well as Canada and three (3), accepted categories are as follows:
 
(a)

evil motive or animus;

(b)

differential treatment;

(c)

consequences or effects.

36      This approach, and in particular in relation to the latter catagory, has been discussed at length in the recent Supreme Court of Canada Decision of Ontario Human Rights Commission and Theresa O'Malley (Vincent) v. Simpsons Sears Ltd. [1985] 2 S.C.R.000, Mr. Justice MacIntyre stated in relation to discrimination at Page 12, as follows:
 

"... the code aims at the removal of discrimination. This is to state the obvious.  Its main approach, however, is not to punish the discriminator but to rather provide for the relief of victims of discrimination.  It is the result of the effect of the action as complained of which is significant, if it does, in effect cause discrimination; if its effect is to impose on one person or group of persons obligations, penalties, or restrictive conditions not imposed on other members of the community, it is discriminatory."

37      I think it is implicit in the statements made by both Deputy Chief MacIntyre and Sergeant Jay that such statements are made against female persons and do not take into consideration the personal merits of Gladys Kickham for the position.  It might be said that their statements reflect the unsuitable working relationship which may be caused by females being on the police force, however, in this regard I refer to the case of Imberto v. Vic and Tony Coiffure and Vince and Tony Ruscica (1981), 2 C.H.R.R. D/396.  The Board of Inquiry in that case dealt with the question of working relationship with other employees and problems with interrelations with such employees.  The Board of Inquiry stated at Page D/396, as follows:
 

"As the unwillingness or, in, indeed, refusal, of existing employees to work with a male co-worker rests on attitudes which are properly characterized as discriminatory in the requisite sense, the issue which must be addressed is whether an employer can justify discriminatory employment policy on the basis that the discriminatory attitudes of existing employees make it a virtual necessity for the employer to adopt such a policy.  It is my view that no such justification would be consistent with the provisions and basic objectives of the Ontario Human Rights Code.  To permit employers to raise a defence of this kind would obviously perpetuate the very practices and policies which the Code is designed to bring to an end.  Thus, for example, if an employer were to be permitted to refuse employment to members of a particular racial group because of his existing employees disliked members of that group, the Code's objective of eliminating discriminatory barriers to the employment of the members of that racial group would be frustrated."

38      I find the statements made by Deputy Chief MacIntyre and Sergeant Jay were of a discriminatory nature. The impact of the statements was to the effect, that females were much less suitable than males as police officers.  The very fact these statements were made, shows they were being considered and it was felt they should be considered in the hiring process.  I find that these adverse feelings against female police officers were taken into consideration by Deputy Chief MacIntyre and Sergeant Jay at the time they voted for changing the marking system, which change of marking system effectively unseated Gladys Kickham as the top candidate to be recommended to Council.

39      In relation to whether these statements subsequently influenced the decision of whether or not to hire Ms. Kickham, I think the evidence of Alderman Squarebriggs is most important.  Alderman Squarebriggs stated in relation to whether he was influenced by the comments of the police officers, at Page 70, as follows:
 
A.

"Or I would like to have interjected to me, by the professionals, that were assisting me, which would be, in this case, the four other members, and in particular, I was concerned about the, the, ah, the advice that I might receive, or the information I might receive, from the police officers, who, in my opinion, were and are professionals in their own field, and I, as I stated before, and have been, very unprofessional in, in the alderman position that I'm just an elected official.

Q.

Right.

A.

I try to do the best I can, as I stated.  And I depended on their statements for whatever guidelines we might in general discussion."

40      And further states as follows on Pages 83 to 84 of the Transcript of Evidence:
 
A.

"Oh, there was, for instance, other remarks might have been made, and was made, and I wouldn't recall it.  I do recall, to a certain extent, would you rather go into a crisis situation with a 210 or 20 pound male versus a 110-pound young lady, or female constable?  And, and, that, to me, ah, was an opinion expressed by an officer, and he's out on the street.  I don't know what he goes through.

Q.

And did that influence you in any way?

A.

I don't think it influenced me, in relationship to male-female.  Absolutely not.

Q.

Any other, anything else?  Okay, perhaps, then, if I could just clarify it a little bit.  Most of these, this discussion, then, centered around the police officers?

A.

The majority, yes, and ...

Q.

(Unclear.)

A.

Yes, sir, and this is basically where I felt I got any guidance, in relationship to any final decision that might be forthcoming; I would listen to their concerns, and...

Q.

Right.

A.

And I felt any, the only concerns I would listen to would be those opinions that I felt, that they might have received during their experience in the field, over the years, that's all.

Q.

But you don't feel that you were influenced by their remarks?

A.

I, I can honestly say that I feel the female is as capable as the male."

41      I find that the comments of Sergeant Jay and Deputy Chief Maclntyre, would and did have an effect on Alderman Squarebriggs and influenced him in his decision of choosing to support Gary MacGuigan over Gladys Kickham.  Mr. Squarebriggs testified that he would listen to these opinions and be influenced by the same but further states they may not have really influenced him between a male and female.  A thorough reading of Alderman Squarebriggs' Evidence reveals that he was in fact influenced by what the police officers had to say, but did not feel that the concerns they were expressing could be categorized as discriminatory.  I believe this to be an incorrect interpretation of the law of discrimination on the part of Alderman Squarebriggs.  Further in his Evidence under examination by Ms. Crane, Alderman Squarebriggs indicated at Pages 234 to 241, as follows:
 
Q.

"The interview committee.  Okay.  One of the things that you have already gone on record as saying happened, was there was a certain statement made, pertaining to the ability of a female to respond to certain night calls.  For instance, in violent situation, given a woman's lesser physical stature and strength, that there was a concern that, perhaps, her partner might, in fact, her male partner might, in fact, become upset if she was struck. Do you remember that conversation?

A.

I, I do, Ms. Crane.

Q.

Was everyone listening to the conversation?

A.

At that, at our interviews?

Q.

Yes.

A.

I would only assume they were. (Unclear.)

Q.

I'm asking you if you can remember them.  Do you remember that?

A.

Do I remember who said it?  Or, do I remember if they all listened?

Q.

Were they all listening?

A.

I, I would, I only assumed they would be.  I know I was listening.

Q.

Does that mean you remember they were listening?

A.

No, I, I can't recall that they were all listening.

Q.

But you recall hearing it.

A.

I recall hearing it.

Q.

Right And, now, was it said by more than one of the members on your committee?

A.

I, I couldn't recall that.  I know it was said.  By one ...

Q.

Was it said by one person, and then just dropped? People just never paid any attention to it?

A.

Oh, I don't think a statement like that would be just dropped.  It was discussed, by all the members in the room, and I don't know, really, which member made the, the remark.  It would be, as close as I can recall, a police officer, because it, naturally, it was his, it was his concern.

Q.

So it was one of the police officers.

A.

Well, it wouldn't be Alderman Hutcheson or myself, because we would have no experience with such a thing like that.

Q.

I understand, also, it's a matter of the public record that you said there was also concern, and a statement made, that the man on the shift with the woman tends to feel protective of, of the woman that might possibly be on the shift with him, and that could compromise public safety.  Do you remember words to those effects?

A.

I do remember making a statement to that effect, of recalling ...

Q.

You made them?

A.

Yes, I, I made them publicly, of what I recall took place at the meeting.

Q.

Okay.  And you remember hearing those at the actual meeting?

A.

I remember hearing them.

Q.

Was there discussion surrounding that?

A.

Again, the same situation as your first question. About the same limitation.  There was a number of people, you know, would mention it, and I'm sure Alderman Hutcheson would have her relationship to it, and I might as well, but it was an opinion expressed by the police officers; I didn't see that I would stop an opinion being expressed.

Q.

And, ah, there was another comment, that a man might overreact to a situation where the woman is verbally or physically attacked.  Do you remember that sort of conversation taking place?

A.

I, I do recall either, it being said at that meeting, Ms. Crane, or coming from a statement of our solicitor, in presentation to Council, after hearing the Commission brief.

Q.

No, no.  No, no.  In the materials available to us, where I'm getting these kinds of comments, are directly from the things that you said went on at the meeting, the hiring committee meeting.

A.

I can't recall all these particular statements you're coming out with, but there was similarities to those, and all I'm trying to interject, Ms. Crane, is that there was one time, when Mr. Hooley made a presentation to Council ...

COMMISSIONER:  I think, Mr. Squarebriggs, you're probably talking about the same meeting, which Ms. Crane, this may have happened at the same meeting ...

A.

Oh, that's possible.

COMMISSIONER:   But I think Ms. Crane would like you to restrict your comments to any comments that would relate back to the May 13th meeting or the meetings of the hiring committee.

A.

Alright, Mr. Commissioner.

COMMISSIONER:   Any issues of settlement, which may have taken place at that same meeting, we can't get into that.

A.

Yeah, well, see ...

COMMISSIONER:  I'm not allowed to hear anything about that.

A.

No, and I'm getting confused in this, Mr. Commissioner, right now...

COMMISSIONER:  Okay, what I think you can, if you will limit your references to the meeting that Ms. Crane's questions are in relation to; limit what was said, in relation to your, like, if you're repeating, at that time, things that were discussed back at the April 29th meeting, or the May 13th meeting, or around that time, up till May 14th, sort of restrict your comments to those types of issues, not what may have come up after May 14th.

A.

I respect that, Mr. Commissioner.  The only thing I would, I would request, as well, that there are some things that were said after that, that were related to what did take place, that I didn't hear, and I, and I'm getting confused as to whether ...

Q.

Oh, well, just tell us if you remember or if you don't remember, from the actual interview night.

A.

I can recall, I think, the first two instances that you mentioned were definitely brought out at that particular meeting.

Q.

Now, I understand there were some concerns about the position that a dispatcher might be put in, if the male, if the female candidate had been given the job, ah, a concern that the dispatcher might, in fact, play some sort of, or show some sort of favoritism towards one or the other, and, and might, in fact, not send a male and a female to a violent situation, and that would cause a heavier burden on male officers.  Do you recall that kind of conversation?

A.

As I recall it, something similar to that particular intent certainly was mentioned at that particular meeting.

Q.

Now, did you, when these concerns were being talked about, did you just listen, or did you make your comments?

A.

As I recall, Ms. Crane, I tried to act as a reasonably sound and sane Chairman, or Chairperson, ah, because in my experience at City Hall, sometimes you get involved in saying too much, and when you're Chairman, or Chairperson, of particular committees, I think you're basically put there to listen, not to give any direction, one way or the other.  It's a matter of controlling the meeting ...

Q.

So are you saying you just listened, or are you saying you made comments?

A.

Basically, basically, I did, that was my exercise, to listen, but I certainly made comments.  Now ...

Q.

Did you make comments, for instance, when there were these types of concerns about how this, how a female officer might react?  Did you make any comments at that point?

A.

I don't recall making any detrimental comments, saying, you shouldn't say that, or you should say that.  It was a matter of me absorbing what they were saying, as an opinion of the officer, that's all.

Q.

Did you, for instance, say, well, Sergeant Biggar, you worked with this woman.  How did she get along?

A.

No, but I, I would imagine, ah, in fact, I recall ...

Q.

Sorry.  Sorry.  Did you say something like that to any of the officers that were there?

A.

No. I recall saying to the officers that were there that, that I was maintaining, in my mind, their remarks as professionals, and, for guidance, if it came to a crunch; I did mention that.

Q.

That you, sorry.  Tell me that again.

A.

I said, I did mention, during the interviews, that I was certainly depending on the professionals' advice and considerations, as to their past work performance, and what they felt, as police officers, they could live with or not live with, in light of employment, one way or the other.

Q.

In other words, if they had certain reservations about the possibility of having to work with the female candidate, if they had reservations, that you would be swayed by that, in the event you ever had to break the tie?

A.

Not saying I would be swayed, but I'm very interested in hearing their opinion, if they wish to express it, because they are the professionals that are going to, going to work alongside the successful candidate.

Q.

So what you, what these professionals had to say, you felt would, it would certainly have a bearing on your final decision?

A.

I had, I had thoughts that if it came to me voting, that I would be considering the, the comments that were made by the professionals, yes.  "

42      Alderman Squarebriggs further stated at Page 217 to Page 218, under examination by Ms. Crane, as follows:
 
Q.

Let's talk about those concerns then, okay?  Let's not worry about when they were talked about.  Let's talk about the concerns that were voiced.  Do you remember who voiced the concerns?

A.

I, I couldn't specifically say what particular police officer had voiced a concern, but I do know that I did state previous, and I do again, that I did depend on their guidance and statements, in light of any final deliberation that I might have.

Q.

Okay.  You depended on their guidance.

A.

Umhm.

Q.

For what?

A.

Ah, professional opinions.

Q.

Yeah, but you had already scored every one of the individuals ...

A.

Yes.

Q.

To that point.

A.

Yes.

Q.

So what were you depending on them for?

A.

Because, Ms. Crane, deep down in the back of my mind, I had the scary situation that Johnny Squarebriggs was going to have to break a vote.  And I had no idea how I was going to do it.  If that came to a crunch, and I had to make that final decision and vote, I don't known what Johnny Squarebriggs would have done.

Q.

So this is, every time you make reference, then, to the fact that you depended on them, it was because you were thinking in the back of your mind you might have to ...

A.

It's a possibility.

Q.

Split the vote.

A.

And I would have to weigh the professionalism of the police officers, versus whatever Maureen Hutcheson made, or whatever Johnny Squarebriggs felt."

And further at Page 245, as follows:
 
Q.

In other words, the onus was practically on you. You felt a responsibility to consider those things that were said by the police officers.

A.

Absolutely.  If I was to give a final vote, I was going to have to consider those."

43      It is quite clear that Alderman Squarebriggs was influenced in his decision, by the comments of the police officers which I have found above to be of a discriminatory nature.

44      On the night of April 29th, 1985, Gladys Kickham had scored the highest marks as attributed by the Selection Committee and after the initial scoring, she was the top ranked candidate.  I also find, that it was the intention of the Selection Committee, that the top ranked candidate after the initial scoring, would have been the candidate to be recommended to Council for the position of Probationary Police Constable.  In addition, I also find that the scoring mechanism was changed which had the effect of removing Ms. Kickham as the candidate to be recommended and part of the reasons for changing the scoring system were of a discriminatory nature.

45      In the latter part of the evening of April 29th, 1985, there was a two (2) to two (2) tie and the Chairman of the Selection Committee, Alderman Squarebriggs was forced to break this tie and he did so in supporting candidate MacGuigan.  I find that Alderman Squarebriggs was influenced in his decision by the discriminatory remarks made by both Deputy Chief MacIntyre and Sergeant Jay and these discriminatory factors were taken into consideration by Alderman Squarebriggs as well as other members of the Selection Committee in their decision not to hire Gladys Kickham.

46      There may have been other considerations, in addition to those of a discriminatory nature, which the Selection Committee were influenced in their decision not to hire Gladys Kickham.  There is, however, substantial amount of case law to the effect that, as long as discriminatory factors are among the considerations and one of the proximate causes a person is not hired, discrimination will be found to have occurred.  The case of Naugler v. New Brunswick Liquor Corporation, [1975] N.B.H.I.R.B.I.D. No. 1, is authority for the fact that as long as sex is one of the factors, i.e. a proximate cause then, discrimination would be found to have occurred.

47      In the New Brunswick Board of Inquiry in the case of McBean v. Village of Plaster Rock, [1975] N.B.H.R.B.I.D. No. 2, Chairman Kerr indicated two (2) reasons for supporting the theory that as long as a discriminatory reason is one of the facts taken into consideration, a violation of the code has been completed.  Mr. Kerr stated at pp 5 and 6, as follows:
 

"The purpose of the code as indicated by the Preamble and the Substandard Provisions is to eliminate from considerations and decisions affecting employment, and other matters which are listed in the Code those factors such as race or sex which are listed in the Code.  It is made a governing principle "that all persons are equal in dignity and human rights without regard to race, colour, religion, national origin, ancestry, place of origin, age, marital status, or sex." This purpose would not be served if these factors can viably be considered merely because they are considered in conduction with other legitimate factors.

Practical considerations reinforce this conclusion.  In order to determine whether prohibited reason was a sole or primary reason for decision, it would be necessary for the Board to assume the place of the employer making the decision and analyzing in full the process, mental and otherwise, which lead to this decision.  Such an extensive interference with the appropriate internal management functions of an employer cannot have been intended by the legislature, particularly when the declared purpose of the Act can be better accomplished by the much. less involved method of determining merely whether a prohibited reason form part of the reasons for the decision".

48      I believe that this approach and interpretation of the purposes of Human Rights Legislation is supported by the reasoning of the Supreme Court of Canada in Ontario Human Rights Commission and Theresa O'Malley (Vincent) v. Simpsons Sears Ltd., [1985] 2 S.C.R. 536.

49      The question of mixed motives has been discussed by various Boards of Inquiry Decisions and the leading case which is most quoted in relation to the question of mixed motives is the case of Regina v. Bushnell Communications Limited et al. (1973) 45 D.L.R.(3d) 218 and as affirmed on Appeal in (1974) 47 D.L.R. 3d 678 (Ont. C.A.).

50      At the Court of Appeal level Evans, J.A. stated as follows at Page 670:
 

"We agree in substance with the result at which Hughes, J., arrived and in our view the question which the Court must determine is "What motivated the employer to take the action which he in fact took with respect to the employee?" If it is found that union membership is a ground for the action taken then a conviction should be made.  Otherwise an acquittal.  It is entirely a question of fact in each case for the trial Judge to determine, after assessing the credibility of the various witnesses, whether union membership was a cause of the action taken.

In our view, to create an offence under S. 110(3) of the Canada Labour Code, R.S.C. 1970, c. L-1, union membership must be a proximate cause for dismissal, but it may be present with other proximate causes."

51      I find that one of the proximate causes why Gladys Kickham was not recommended to be hired, was the fact that she was a female and that Gladys Kickham was therefore discriminated against at the Selection Committee level.

52      The next question to address, is whether the City of Charlottetown through City Council can be found to have discriminated against Gladys Kickham in relation to her sex when in fact all City Council had allegedly done was to follow the recommendations of the Selection Committee, which it had constituted.

53      A great deal of evidence was heard in relation to how City Council has to work under the committee system and can not review all the workings of each committee, or if they did they would never be able to get their work completed, as a Council.

54      I find that from the very inception of this hiring process, City Council did not give direction to the Selection Committee, even after being requested to do so by Aldermen Squarebriggs, on various occasions.

55      In the examination of Alderman Squarebriggs by Mr. Riley, the Board of Inquiry Counsel, Alderman Squarebriggs stated, commencing at Page 15 of his Evidence as follows:
 
A.

"Now, the next concern of ours was that only one (1)applicant, would be, would be successful, and fill the vacancy.

Q.

Right?

A.

For a Police Constable.  So the Committee, again, discussed this particular matter, and, in fact, I identified, I think, this, to Council, that the applications were all in, I don't know whether I identified the numbers but, the procedure, there would be, have to be a procedure take place as to what we were going to do.

Q.

Right.  So that the date had come and gone for the filing of applications?

A.

Yes.

Q.

And you had all the applications?

A.

Yes, as I recall.

Q.

This, through January ... ?

A.

Sometime early in the New Year.

Q.

What was the date for the closing of (unclear)?

A.

I guess the 28th of December, 1984.

Q.

Was the last date for the, so any meetings in January would, then, be subsequent to the ....?

A.

Yes.  And this is where the concern on the, concern on the procedure was discussed, on various occasions, and I couldn't recall how many.

Q.

Right?

A.

But we didn't know what we were going to do.

Q.

And this is at the Police Committee level?

A.

Yes.  Yes.

Q.

Ok, so ... ?

A.

In fact, in fact, I identified this matter to Council.

Q.

Right?

A.

I said, you, as Council give me a mandate or will be giving me a mandate or have given a mandate...

Q.

Right?

A.

To fill a vacancy.  You were the ones that are going to hire, not me, but you're giving me a mandate to recommend a particular applicant for, to fill this vacancy, and I said, I have no guidelines, there is no procedure to follow, or rules, or regulations, and this mandate was still there, that I must, as Chairman of the Police Committee, and the Police Committee members, and/or whatever selection body that's going to be formulated must make a recommendation to Council.  So this was the first difficult task one would have."

56      I should point out that the Police Committee was separate from the Selection Committee and its meetings, in relation to the matter before this Board of Inquiry, took place prior to the interview night.

57      Evidence of Alderman Squarebriggs, as well as evidence of other parties before the Board of Inquiry would indicate that Alderman Squarebriggs, on numerous occasions throughout this procedure, had requested guidance and instructions from Council.  There was a meeting of the Committee of the Whole, and Alderman Squarebriggs again requested guidance, subsequent to the interviews, and the evidence related that for one reason or another Council did not appear to allow time to deal properly with the question.

58      I find that at the Committee of the Whole meeting which took place in the vicinity of March 1st, 1985, it was brought to Council's attention that there was concern about discrimination in relation to a female versus a male, in the hiring process.  Evidence of the Chairman of that meeting, Jack Ready, related that he gave a warning to all concerned in relation to the "Charter".  Mr. Ready stated that he recalled Alderman Hutcheson, at the Committee of the Whole meeting, raising a concern about discrimination.  Subsequent to this, at the Council meeting of May 13th, 1985, Alderman Maureen Hutcheson again expressed to Council her concern about the questions of discrimination in relation to the subject hiring process. Different Council members indicated that they recalled these statements but decided not to act upon them. Most Aldermen stated that they based their decision to hire Gary MacGuigan solely on the basis that he was the person recommended by the Selection Committee.

59      Council had established this Selection Committee to make a recommendation to itself as to who to hire.  When requested at the Committee of the Whole meeting to assist the Selection Committee in the hiring process, Council told the Chairman of the Selection Committee to come forward with one (1) applicant only.  I find that they had delegated their authority entirely to the Selection Committee to in effect hire the person and that Council would be merely rubber stamping the decision of the Selection Committee.

60      To determine if Council can be held responsible actions of the Selection Committee, there are various aspects of the which have been utilized in relation to Human Rights Legislation.  Different Boards of Inquiry have dealt with the issue of vicarious liability, personal liability, principle and agent, as well as people being considered directing minds of corporations.

61      At this point, I find myself compelled to deal with an objection which was raised by Linda Gaudet on behalf of the Human Rights Commission, by a letter to myself dated February 13th, 1986.  There was a great deal of argument on the date set for oral submissions, being January 27th, 1985 in relation to the question of how, if at all, City Council could be held responsible for the actions of the Selection Committee.  At that time it was agreed by Counsel, that additional cases on this point could be provided by any Counsel to the Board of Inquiry within one (1) week. Subsequent to this, other Counsel would be entitled to respond to any cases raised by opposing Counsel.  Ms. Gaudet filed a letter with a number of cases on January 31st, 1986 and subsequent to this on February 5th, 1986, Mr. Hooley on behalf of the City of Charlottetown filed letter reciting a number of cases and relating them to an extent to the evidence which was heard before the Board of Inquiry.  After receipt of Mr. Hooley's letter, I received the February 13th, 1986 letter from Ms. Gaudet, referring to certain cases and going on at length objecting to the arguments contained in Mr. Hooley's February 5th, 1986 letter.  Ms. Gaudet objected to Mr. Hooley's letter on the basis that he was presenting additional arguments and representations to evidence and was thus having an unfair advantage.  Ms. Gaudet requested that I not consider portions of Mr. Hooley's letter.  As a result of this, I contacted Ms. Gaudet and indicated that I felt the most proper way to deal with the issue was to allow her to make further submissions, in response to Mr. Hooley's letter.  Ms. Gaudet indicated, for various reasons, it was not her desire to do so.

62      Throughout the Hearing, all Counsel were given an opportunity to present evidence, examine witnesses, and present argument without the restrictions which may be normally apparent in the court system.  I find that Mr. Hooley's letter of February 5th, 1986 is not out of order, given the circumstances and have considered the letter of Mr. Hooley of February 5th, 1986 in its entirety in my determination of the issue of whether the City of Charlottetown can or cannot be found liable for the actions of the Selection Committee.  Mr. Hooley was relating the facts to the cases he was presenting to the Board of Inquiry which I find to be not out of order and in addition, Ms.Gaudet was given an opportunity to respond to Mr. Hooley's letter, which opportunity she did not see fit to follow up.  As indicated, I therefore have taken into consideration the contents of Mr. Hooley's February 5th, 1986 letter and have been mindful of same in my deliberations.

63      In the case of Kathy Hartling v. Board of Police Commissioners, City of Timmins and Chief Floyd Schwantz (1981) 2 C.H.R.R., D/478 there was a similar fact situation to the matter before myself.  In that case, the Chief of Police had indicated that the Department would not hire female police officers.  Board of Inquiry Chairman, Peter A. Cumming found the Board of Police Commissioners liable in not taking efforts to rectify the discriminatory actions of the Chief of Police. Mr. Cummings said at Page D/493, as follows:
 

"The Board of Police Commissioners knew, or certainly should have known if they were exercising their duties with the diligence of reasonable persons in their positions, that there was a problem in the actual recruitment process, whatever the formal, stated policy was.  They knew, or should have known, that the recruitment process in actuality, as administered by Chief Schwantz, was discriminatory against women applicants.  The Commissioners did not try to deal effectively with the problem. There was no rigorous investigation of the true situation in the face of the newspaper commentary. The Commissioners really deferred to the Chief's judgment, knowing that the Chief did not want women constables.  There was perfunctory, minimal supervision of the Chief.  Whether Mr. Brewer agreed or not with the Chief (and I think, considering Mr. Doody's evidence that Mr. Doody disagreed with the Chief's discriminatory recruitment practices) the Board did not do anything at all to rectify the recruitment process. The Board tried to insulate itself from criticism, as evidenced by the "Hiring Policy" resolution (Exhibit No. 18), but chose not to deal effectively with the problem, knowing there was a problem."

64      And further stated at Page D/494, as follows:
 

"The Board did not really set up, or enforce, a rigorous system for recruitment with objective standards, but rather left hiring largely to the subjective evaluation of the Chief.  Secondly, the Board knew, or most certainly should have known if it had performed its responsibilities with reasonable diligence, that Chief Schwantz was in breach of the Code in his recruitment practices, and therefore, the Board of Police Commissioners is itself in breach of paragraphs 4(1)(a) and (b) of the Code."

65      The case of Arny Iancu v. Simcoe County Board of Education (1983) 4 C.H.R.R. 1203, Board of Inquiry, Peter A. Cumming, refers to the Hartling Decision at paragraphs 10628 and 10629, as follows:
 

"10628 - In Hartling v. Timmins Board of Police Commissioners, the Board of Police Commissioners was found liable for the Police Chief's discriminatory hiring practices.  However, that case can be distinguished from the Nelson case, supra, because the Board of Police Commissioners was found not to be innocent of the Chief's practises. The Board of Inquiry (myself) found on the facts, that the Board of Police Commissioners knew or ought to have known that the Chief was discriminating against women and that it did not try to deal effectively with the problem.

10629 - Its liability was held to be personal.  It was held liable because, in authorizing the Chief to recruit on its behalf, it "did not really set up, or enforce, a rigorous system for recruitment with objective standards, but rather left hiring largely to the subjective evaluation of the Chief".  Also, it was held personally liable because it "knew, or most certainly should have known if it had performed its responsibilities with reasonable diligence, that Chief Schwantz was in breach of the Code in his recruitment practices".  Thus, the Board of Inquiry found that, because the Board of Police Commissioners knew the Code was being breached and because it did not actively do anything to ensure compliance with the Code, it condoned the practices of the Chief."

66      I find that in the case before myself, the liability of the City of Charlottetown to be similar to that in the Hartling case which was found to be of a personal nature.  The City of Charlottetown did not set up any system for the hiring of police officers and left all procedure/criteria to the Selection Committee.  The City of Charlottetown knew or should have known there were concerns about discrimination at the Selection Committee level.  I find that the City of Charlottetown knew or ought to have known that there was a breach of the Human Rights Act and did not do anything actively to insure compliance with the Human Rights Act.  The hiring of Gary MacGuigan in the face of this information was in effect condoning the practices of the Selection Committee.  I find that the actions of Council of not investigating the expressed concerns of discrimination amounted in essence to a condonation and ratification of the procedures and discriminatory practices which occurred at the Selection Committee level.  I feel that in following the recommendations of the Chairman of the Selection Committee after being made aware of the extent of the discriminatory problems at the Selection Committee level, that City Council must now be held responsible.

67      I, therefore, find the City of Charlottetown to have been in contravention of Section 6(1) of the Human Rights Act S.P.E.I. 1975 c-72, in that Gladys Kickham was refused employment as a police officer because of her sex.

68      As was agreed by all parties to this matter, the Hearing was bifurcated. It is now therefore, apparent that a Hearing date must be fixed for representations by Counsel concerning a final disposition of the matter.  I will contact Counsel in the near future to arrange such a date.
 
 

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