Sangha v. Mackenzie Valley Land And Water Board

Sangha v. Mackenzie Valley Land And Water Board
Collection
Canadian Human Rights Tribunal
Date
2006-02-24
Neutral citation
2006 CHRT 9
File number(s)
T949/6904
Decision-maker(s)
Sinclair, Grant, Q.C.
Decision type
Decision
Decision Content
CANADIAN HUMAN RIGHTS TRIBUNAL TRIBUNAL CANADIEN DES DROITS DE LA PERSONNE
GIAN S. SANGHA
Complainant
- and -
CANADIAN HUMAN RIGHTS COMMISSION
Commission
- and -
MACKENZIE VALLEY LAND AND WATER BOARD
Respondent
REASONS FOR DECISION
2006 CHRT 9 2006/02/24
MEMBER: J. Grant Sinclair
I. THE COMPLAINT
A. The Respondent Mackenzie Valley Land and Water Board
B. The Board's Advertisement for Four Regulatory Officers
C. The Functions and Responsibilities of a Regulatory Officer
D. Screening the Applicants for Interview
E. The Interview Process
(i) Profile of Dr. Sangha
(ii) Profiles of the Six Candidates That Were Offered RO Positions
(iii) Stephen Mathyk
(iv) Adrian Paradis
(v) Allen Kogiak
(vi) Ethan Sawchuk
(vii) Latisha Heilman
(viii) Andrew Hammond
F. Why the Six Candidates Were Offered a RO Position and Dr. Sangha Was Not
G. Post-Interview Procedure
H. Staff Turnover
I. Dr. Sangha's Reaction to Not Being Offered the Regulatory Officer Position - Pain & Suffering
J. Dr. Sangha's Efforts to Obtain Other Employment - Mitigation
(i) Income Earned Since 2001
K. The Remedy for Dr. Sangha
L. Using Overqualification to Screen Job Applicants
M. The Expert Evidence of Dr. Jeffrey Reitz
(i) Educational Levels and Experience Levels of Immigrants and Visible Minorities
(ii) Employment Barriers Affecting Immigrants and Visible Minorities
(iii) Representation of Immigrants in Highly Skilled Occupations
(iv) Why Immigrants Accept Work For Which They Are Overqualified
(v) Are Overqualified Workers Less Satisfactory?
N. Older Workers - Age Discrimination
O. The Board's Expert - Dr. Derek Chapman
P. Personnel Selection Practices, Overqualified and Job Fit
Q. Pre-Screening the Overqualified
R. Reasons for Screening Out the Overqualified
S. Other Consequences of Hiring the Overqualified
T. Dr. Reitz's Use of Census and Labour Force Data
U. Barriers to Visible Minority Immigrants
V. His Assessment of the Board's Interview Method
W. Dr. Chapman's Assessment of Dr. Sangha
X. Has the Complainant Established a Prima Facie Case?
Y. The Prima Facie Case for the Complainant
Z. Has the Board Answered the Prima Facie Case?
AA. What is the Appropriate Remedy?
II. THE AWARD
I. THE COMPLAINT [1] Dr. Gian S. Sangha filed a complaint dated May 6, 2002 with the Canadian Human Rights Commission. He alleges that the respondent, the Mackenzie Valley Land and Water Board (Board) discriminated against him on the grounds of race, national or ethnic origin, colour, religion and age by refusing to hire him for the Regulatory Officer (RO) position with the Board. He alleges that this refusal is contrary to s. 7 of the Canadian Human Rights Act.
A. The Respondent Mackenzie Valley Land and Water Board [2] The Board is a regulatory authority established under the Mackenzie Valley Resource Management Act. The primary function of the Board is to process applications for land use permits and water licences in those areas of the MacKenzie Valley in the Northwest Territories where land claim agreements have not yet been concluded, i.e. in unsettled land claim areas. The Board also processes transboundary land and water applications in the Mackenzie Valley where the application transcends the boundaries of more than one settlement area.
[3] Some examples of activities that require a land use permit are the use of explosives greater that 50 kg; the use of vehicles greater than 5 tons; camp sites to be used for more than two hundred person days; fuel storage greater than two thousand liters; construction of buildings greater than one hundred square meters.
[4] Activities that require a water licence include the use of water for gas and oil exploration, mining and milling, power facilities, agriculture, conservation and recreation.
B. The Board's Advertisement for Four Regulatory Officers [5] On August 11, 2001, the Board placed an advertisement in the Vancouver Sun for four RO positions, at a salary range of $48,410 to $60,770. The position required:
an undergraduate degree in science, environmental studies, ecology, resource management or a related field, with two years experience in a related environmental field; or a post secondary diploma in environmental management or a related field and three years experience; knowledge of environmental issues in Canada's North, especially relating to mining, and oil and gas developments; knowledge of the technology associated with the reduction of impacts caused by developments in a northern environment; operating knowledge of Microsoft Office software; experience working in remote locations; ability to write technical reports; a Class 5 drivers licence.
[6] The RO position was for a term of three years, subject to a six month probationary period, with the possibility of a two year extension.
C. The Functions and Responsibilities of a Regulatory Officer [7] The primary responsibility of a RO is to process land use permit and water licence applications. When the Board receives an application for a permit, it is assigned to an RO whose first task is to ensure that the application is complete. If not, the RO will contact the applicant and request further information. The RO refers to a checklist which is a step-by-step outline of the RO's duties when an application is received.
[8] Once the application is complete, the RO sends it out for review. The Board has a distribution list of reviewers, which includes First Nations communities, the relevant Federal Government departments and departments of the Government of the North West Territories. The RO must ensure that all of the reviewers get copies of the application and have an opportunity to review and provide comments back to the RO.
[9] After receiving the reviewers' comments, the RO synthesizes them into a staff report for consideration by the Board. The staff report includes the application details, comments of the reviewers and whether there is public concern or a potential harm for the environment.
[10] If no concerns have been identified, the RO will so indicate in the staff report and draft the licence or permit for the Board's approval. The Board has a standard list of conditions and the relevant conditions are put in the licence. If there are concerns identified in the staff report, it is left to the Board for its decision.
[11] ROs spend a great deal of time communicating with the applicants and the reviewers. This involves phoning, writing or emailing the applicant for more information or responding to applicants' inquiries as to the status of their application. There is a statutory time limit to review the application and issue the Board's decision. There is pressure on the RO to meet these timelines.
[12] ROs often have to contact the reviewers numerous times, coaxing them to send in their comments so that the staff report can be prepared and sent to the Board for decision within the time period.
[13] The ROs must have some, but not a lot, of knowledge of the technical issues in the application. More detailed technical expertise is available from the Senior RO or from outside consultants.
[14] It is also important that an RO have some northern experience, such as understanding of the environmental issues in the north; northern living experience and some familiarity with First Nations communities.
D. Screening the Applicants for Interview [15] The Board received 38 applications for the four RO positions. Of the 38 applicants, two had grade 12; six had diplomas; 22 with Bachelor degrees; six with Master's degrees; and two with Ph.D.s.
[16] An Interview Committee was struck to review the applications received and decide which applicants the Board would interview. The Interview Committee consisted of Wanda Anderson, Manager of Finance and Administration; Karl Lauten, Manager of Regulatory Reviews; and Peter Lennie-Misgeld, Sr. Regulatory Officer. Each of them reviewed the applications and prepared a list of who they thought should be interviewed
[17] The Interview Committee chose 12 applicants for interviews. It screened out all of the Grade 12 applicants; 71% of those with a diploma; 60% of those with a Bachelor's degree, and all of those with a post-graduate degree, except for Dr. Sangha. This suggests that the Board used educational credentials as screening criteria, both on the low side and on the high side.
[18] Ms. Anderson did not select Dr. Sangha for an interview. She felt that, given his qualifications, he would likely become bored with the job fairly quickly. Karl Lauten did want to interview Dr. Sangha. He thought that Dr. Sangha might be a good fit for Technical Advisor, which position was vacant. But at that time, the Board had not considered filling the position. Mr. Lennie-Misgeld, who was the junior member on the Interview Committee, said that he deferred to Mr.Lauten in choosing Dr. Sangha to be interviewed.
[19] Ms. Anderson testified that the Interview Committee had discussed this possibility. But she was clear in her evidence, which was not challenged, that Dr. Sangha was interviewed only for the RO position. The Technical Advisor position was never filled and was later eliminated.
[20] Dr. Sangha testified that he was never told during the interview that he was being considered for Technical Advisor.
E. The Interview Process [21] The interview was a structured interview in which a set of standard questions was put to each candidate interviewed. There were no questions asked by the interviewers relating to personal characteristics, such as, race, colour, national or ethnic origin, religion or age.
[22] The questions focused on the skills of the potential candidate and the knowledge that the candidate had of the Board and its processes, the experience of the candidate, together with salary expectations and a starting date.
[23] Each of the candidates was given a score by the interviewers. Interview notes were taken by all of the interviewers, which notes were filed at the hearing, except those of Mr. Lennie-Misgeld who had discarded all of his interview notes.
[24] Of the twelve people interviewed for the RO position, four were offered a job. Two of those did not accept the offer and the Board made two more offers which were accepted.
[25] Dr. Sangha was not made an offer. Ms. Anderson advised him by email on September 17, 2001 that the four RO positions had been offered to other candidates.
(i) Profile of Dr. Sangha [26] Dr. Sangha's educational qualifications are: B.Sc., Agriculture (Punjab University, India, 1972); M.Sc., Landscape Planning (Technical University of Berlin, Germany 1983); Ph.D., Environmental Science (Technical University of Berlin, 1983); Certificate in Project Planning & Management (Technical University of Berlin, Germany 1989).
[27] He is fluent in German, Punjabi, Hindi and English. He has co-authored two books and has written a number of research papers in the environmental field.
[28] Dr. Sangha has a varied work experience. During the course of his studies in Germany, Dr. Sangha worked for the German Federal government as an environmental scientist dealing with various environmental issues.
[29] In 1990, Dr. Sangha assumed the position of Associate Professor at Punjab Agricultural University and remained in that position until 1996 when he came to Canada with his family. He taught courses in ecology and urban environment; land use and resources conservation; watershed conservation and management plan; environmental and impact assessment.
[30] When he arrived in Canada, Dr. Sangha believed that there were few opportunities for a new immigrant in a Canadian university. So he applied for jobs in the environmental sciences throughout Canada. He wanted to gain Canadian experience, which hopefully would get him a permanent position in his field.
[31] He first worked as a voluntary worker with the Langley Environmental Partners Society, in Langley, B.C. This was a community based organization whose focus was watershed restoration. He prepared a plantation scheme for wetland restoration and conservation and worked there for about five months in 1997. He was not paid and did not work full time. He did it to gain experience.
[32] For six months in 1997-1998, Dr. Sangha worked as a Senior Research Scientist with Kam Biotechnology Ltd in Surrey, B.C. Dr. Sangha worked on a waste water remediation project.
[33] In 1998-1999, Dr. Sangha worked for the Fraser Valley Regional District in Chilliwack, B.C. as an Environmental Promotion and Educational Development Assistant, basically dealing with waste management plans. He was sponsored in this position by HRDC in a program designed to provide work experience to recent immigrants.
[34] From March 1999 to June 2000, Dr. Sangha worked as a production manager for the N.A.T.S. Nursery Ltd.
[35] At this point in time, Dr. Sangha applied for university positions and was offered the position of Assistant Professor, Environmental Studies, at St. Cloud State University, Minnesota. This was a contract position from September 2000 to May 2001. When the contract ended, Dr. Sangha applied for a tenured position, but the position was not filled for budgetary reasons.
[36] When he returned from Minnesota, Dr. Sangha worked as a landscape gardener for residential properties in and around Vancouver. It was a labour-type of job; running the lawnmower, hoeing, weeding, tending the garden. He had been doing that for about a half year, when he was involved in a car accident and was quite seriously injured. He did not return to work at that job.
[37] In March 2004, he started work as a bookkeeper with the Gill Electric Company in Vancouver and continues in that position.
(ii) Profiles of the Six Candidates That Were Offered RO Positions. (iii) Stephen Mathyk [38] Stephen Mathyk has a Renewable Resource Management Diploma (Lethbridge Community College, 1998); Fish and Wildlife Technology Certificate (Lethbridge Community College, 1999); and a B.Sc. in Environmental Science (University of Lethbridge, 2001).
[39] He has four years experience in operating in both an independent and team environment dealing with resource management and environmental policies. His experience includes dealing with multiple user groups, including environmental activists, special interests groups, First Nations and governmental bodies. He had experience in northern issues, remediation technologies and techniques, and drafting technical reports and applying and enforcing municipal, provincial and federal legislation.
(iv) Adrian Paradis [40] Adrian Paradis has an Environmental Monitoring and Enforcement Diploma (Lakeland College, Alberta, 1995-1997). He attended the University of Alberta from 1997 to 1999 taking courses in Land Remediation, Reclamation and Conservation.
[41] He worked as an Environmental Technologist for various companies between 1997 and 1998 and has worked as an Environmental Technician conducting Phase I, II, III, environmental site assessments. He has training in techniques of revegetation, reclamation and decommissioning techniques. He also has experience in dealing with regulatory bodies and landowners.
(v) Allen Kogiak [42] Allen Kogiak has a diploma in Renewable Resource Technology (Aurora College, Fort Smith, NWT, 1994) and a PITS Certificate in Environmental Land Management (1997).
[43] He has considerable experience working in the North, working as a Fisheries Management Technician in Hay River, NWT (1993-1994); a field worker for the Salt River First Nations, Fort Smith, NWT, doing research, mapping, conducting scientific research and liaising with the public and governments (1994-1995); working as a research management officer for DIAND, Inuvik, NWT, which involved working with municipal, territorial and federal government officials, First Nations, Community Leaders, consultants and industry executives to exchange and obtain information on legislation requirements, prepare reports, and maintain records and files (1995-2000). He also worked with the Dogrib Rae Band, Rae, NWT as a Colomac Mines Clean up Project Coordinator (March 2001-May 2001) and as a Site Superintendent Trainee at the Colomac Mine site at Tli Cho logistic, Yellowknife, NWT.
(vi) Ethan Sawchuk [44] Ethan Sawchuk obtained a B.Sc. in Land use and Environment studies (University of Saskatchewan, 2000). He also has an advanced Certificate in Biology. He was a Land Management Officer with the Inuvialuit Land Administration where his responsibilities were to review and process land use development applications, consult and coordinate with industry representatives, government and aboriginal community organizations, undertake inspections, and produce reports.
(vii) Latisha Heilman [45] Latisha Heilman has a B.Sc. in Environmental Biology (University of Alberta). She is trained in GIS (Geographical Information Systems). Her experience includes working as a field and lab assistant at the University of Alberta, in the Department of Biological Sciences. Her responsibilities included experimental design and setup, collection of data in the field, organizing and interpreting data, techniques of analysis, and providing written reports. She has no northern experience.
(viii) Andrew Hammond [46] Andrew Hammond has a BA in Archeology/Anthropology, and Native Studies (University of Saskatchewan, 1997). He has considerable experience working in Canada's north, including working as an Environmental Technician for BHP Diamonds Inc. in Yellowknife, NWT (1997-2001. He also worked on the Community Consultation database for the Tibbit to Contwoyto Lake Winter Road Joint Venture (1997-2001).
[47] He was a Policy Analyst with the Ministry of Aboriginal Affairs of the GNWT working in Yellowknife. Some of his responsibilities included editing and revising internal guidelines used in land claim negotiations.
[48] From November 1993 to June 1994, he was a Research Policy Analyst at Aurora College in Iqaluit, NU, where he was part of a team conducting a five year corporate review of the Iqaluit campus.
[49] From 1991 to 1992, he was a Research Analyst with the Department of Health, GNWT, Yellowknife, where he reviewed and evaluated the department's health position on the northern health, research and development programs. From 1990 to 1994, he also worked as a Science Administrator with the Science Institute of NWT, Yellowknife.
F. Why the Six Candidates Were Offered a RO Position and Dr. Sangha Was Not. [50] Both Ms. Anderson and Mr. Lennie-Misgeld testified as to how the Interview Committee selected the six candidates for an offer. Mr. Lauten did not appear at the hearing. All of the candidates interviewed were given a numerical score representing each of the interviewer's assessment of how the applicant has answered the interview questions. The maximum score was 60.
[51] Ms. Anderson rated Dr. Sangha 41/60 based on her assessment of his answers to the questions. She rated no on her interview notes indicating that she would not make an offer to Dr. Sangha. She noted that Dr. Sangha could be overqualified, would be easily bored and would look for another job quickly. She also noted that Dr. Sangha was more of a policy person, that he was able to answer the questions well and he came across as very smart.
[52] Ms. Anderson testified that during the interview, Dr. Sangha was not asked by any of the interviewers why he had applied for the RO position. Nor did they raise their concerns that he would find the job unchallenging or boring and would be likely to leave at the first opportunity.
[53] Ms. Anderson said that Dr. Sangha had asked for a salary of $55,000. If he had been hired, Ms. Anderson said he would have been paid that amount.
[54] Ms. Anderson scored Stephen Mathyk 48/60. She wrote yes on her interview notes indicating that he should be made an offer. She felt that with his background, knowledge and his experience, he was a very good candidate. He had enforcement background and that experience would benefit the Board.
[55] Ethan Sawchuk was working for the Inuvialuit Land Administration as a Regulatory Officer. This was particularly relevant to the work of the Board. Ms. Anderson rated him 45/60. His education and his northern experience made him a very good candidate. Ms. Anderson's interview notes indicated Mr. Sawchuk had good technical knowledge relating to land use permits. He also had good policy understanding and first hand experience.
[56] Ms. Anderson gave Allen Kogiak a score of 37/60. Mr. Kogiak was working at the Colomac mine site in the NWT which was under remediation. Ms. Anderson thought that he had good knowledge of that mine site, its problems and what needed to be done in terms of remediation. He also had northern experience and had lived in the north. She indicated in her interview notes that he should be hired.
[57] Adrian Paradis had two years education from the University of Alberta in Land Remediation, Reclamation and Conservation and had an Environmental Enforcement Diploma. He also had experience working in the oil fields of Alberta. Because there were a number of oil and gas projects coming on in the NWT, Ms. Anderson considered Mr. Paradis to be a good candidate for oil and gas issues. She indicated yes for hire in her notes and scored Mr. Paradis 45/60 on the interview. He did not have any northern experience.
[58] Because Allen Kogiak and Ethan Sawchuk did not accept the Board's offers, two further offers were made to Latisha Heilman and Andrew Hammond.
[59] Ms. Anderson rated Ms. Heilman 36/60 on the interview. She noted in her interview notes that Ms. Heilman had training in GIS and that land use planning was one of her main interests. She thought she would be a good candidate for the RO position because at the time there were no land use plans in place anywhere in any of the regions. It would be useful for the Board to have someone with that knowledge and training.
[60] As for Andrew Hammond, Ms. Anderson gave him a score of 36/60 on the interview. He had been working for at least three years for BHP Diamond's project in Yellowknife as an Environmental Technician. He had northern experience and had working knowledge of one of the important mine sites and how mines actually operate in the north. She also felt that it was very relevant that Mr. Hammond worked at the Ministry of Aboriginal Affairs for the GNWT as a Policy Analyst in Yellowknife, and had experience in dealing with land claim negotiations and in particular dealing with First Nations and communities.
[61] Karl Lauten, the Manager of Regulatory Operations in August/September 2001, did not give evidence at the hearing of the complaint, but his notes of the interviews were put in evidence. Mr. Lauten rated Stephen Mathyk 48/60. He rated Adrian Paradis 41/60, Allen Kogiak 50/60 and Ethan Sawchuk 47/60. He rated Latisha Heilman and Andrew Hammond 46/60 for the interviews.
[62] Interestingly, Mr. Lauten rated Dr. Sangha the highest on the interview, scoring him 52/60. He indicated that Dr. Sangha had lots of academic and work experience and made much effort to review the Board's website, the Act and Regulations. But he noted that Dr. Sangha had no northern experience.
[63] Mr. Lennie-Misgeld testified as to why he thought the six candidates that were offered jobs were the best qualified. His views on the candidates are as follows:
[64] Latisha Heilman's education and work experience were directly applicable to the work of an RO.
[65] Stephen Mathyk had enforcement experience and the Board was looking to add additional capacity in terms of environmental enforcement.
[66] Adrian Paradis had done some site assessments and also had experience in remediation of well sites. His experience would be useful to the Board for oil and gas applications.
[67] Andrew Hammond had valuable experience working in the archeological field in the north. He had also worked for one of the diamond mines so he had some directive environmental field experience. His experience working with First Nations people and in the archeological field was relevant to the responsibilities of the RO liaising and working with First Nations and Community groups. Archeological and cultural views are very important to the people of the North. It is a primary concern to them when it comes to development applications.
[68] Allen Kogiak had experience working as Resource Management Officer for DIAND. In that position, he was responsible for enforcing terms and conditions of land use permits which is one of the major functions of the Board. His experience on the enforcement side would also contribute to the Board's work. He had also worked at the Colomac mine site, an abandoned mine near Yellowknife, so he had a combination of enforcement experience as well as field experience in terms of remediation.
[69] Ethan Sawchuk at the time was working for the Inuvaluit Land Administration as a Land Management Officer. The role of that agency is very similar to the work of the Board so he had directly applicable work experience.
[70] As to Dr. Sangha, Mr. Lennie-Misgeld believed that he had the experience and the education. But the RO position is an entry level position in the environmental field. The work can be very repetitive and he believed that it would not sufficiently challenge Dr. Sangha's skillset. And there is little opportunity for promotion at the Board for ROs.
G. Post-Interview Procedure [71] After the interviews were completed, the Interview Committee met and decided who would be made offers. They based their decision on the resumes, the interview notes, who they considered would be a good fit, and the knowledge and experience they could bring to the position. The interview scores were just one criterion and certainly not the deciding factor.
[72] There was unanimous agreement amongst the Interview Committee that offers should be made to Stephen Mathyk, Adrian Paradis, Allen Kogiak, and Ethan Sawchuk as the best candidates. The next two ranked candidates were Latisha Heilman and Andrew Hammond.
[73] As for Dr. Sangha, there was consensus in the Interview Committee not to offer him a position. Their view was that Dr. Sangha was overqualified for an RO. Because the position was an entry level position, they believed that he would be bored by the type of work required and was not a good fit for the position. The other candidates much better suited the job requirements.
[74] Robert Wooley, the current Executive Director of the Board, (he joined the Board in October, 2001) gave evidence at the hearing. Although Mr. Wooley was not at the Board when the new RO's were hired, he testified that he had reviewed Dr. Sangha's resume and had spoken with the members of the Interview Board. He said that he was and continues to be impressed by Dr. Sangha's academic credentials. But he did not see how those credentials would serve him well as an RO. His credentials are far greater than what is required.
[75] In forming this view, Mr. Wooley said that he relied on his experience as a senior manager for over 20 years, managing people with varying backgrounds. This experience indicates that someone with Dr. Sangha's qualifications would not be satisfied with the work environment, or with this level of job, and would not be happy for any length of time.
[76] Mr. Wooley's assessment of the work of an RO was that it is a step above tedious. The job can have its interesting moments, but for the most part, it is a lot of the same thing, pushing paper, cajoling, phoning, faxing and assembling a stack of papers for the staff report.
H. Staff Turnover [77] Mr. Wooley testified that when he came to the Board as the Executive Director, in October 2001, there was a lot of employee turnover. He believes that it has turned around somewhat, but there is still some turnover.
[78] Mr. Wooley does not consider that to be such a bad thing. A lot of the staff are young and are career oriented. Working at the Board gives them exposure to a wide spectrum of industries and technologies. They get known by consulting groups, exploration companies and by government. Often when they have enough experience they will move to one of these organizations.
[79] Others leave the Board for other reasons, such as spousal transfers, or they get tired of living in Yellowknife, tired of the dark and the cold during the winter. Some just want to go elsewhere. Employee turnover is an issue related to being located in Canada's north. That is one of the reasons the Board prefers northern experience.
[80] According to Mr. Wooley the Board must be very careful to hire somebody with some assurance that they will stay for some time. It is expensive to bring them to the NWT. The Board pays their relocation expenses and also gives them ongoing training. A lot of money is expended, and if someone decides that the north is not where they want to be, then that money is wasted.
[81] Expenses include around $10,000 to get someone to come to the NWT and they are also paid relocation expenses at the end of the term.
[82] Ms. Anderson testified that staff turnover at the Board was about the same as for other agencies in the north. After a certain point in time, Board staff seeks to advance their careers. At the Board the only option is to look elsewhere, and most of the staff that left, did just that. Ms. Anderson regards staff turnover at the Board as a cost of doing business in the north.
[83] On the question of turnover, there were six Regulatory Officers at the Board in October 2001. They were Elaine deBastien, Greg Smith, Janpeter Lennie-Misgeld, Darren Campbell, Emma Pike, and Lori Bruno. Lennie-Misgeld, deBastien and Pike all started in 2000. The others started later.
[84] Darren Campbell left in September 2001 for personal reasons. His wife did not like living in Yellowknife.
[85] Mr. Lennie-Misgeld moved up to Senior Regulatory Officer in August 2001.
[86] Elaine deBastien left in 2002/03. Her husband moved to Edmonton and she moved with him before her contract ended.
[87] Greg Smith left in 2004. His wife got a job at the hospital in Sudbury, and he moved with her, before his three-year term ended.
[88] Lori Bruno left for personal reasons as well. Her husband didn't like Yellowknife, so she got a job in Fort McMurray.
[89] Emma Pike went to the federal government.
[90] Andrew Hammond resigned before his term was finished because his wife, a medical doctor, got a job in Ontario.
[91] Latisha Heilman was offered an extension, after her three year term, but she declined. She wanted to travel.
[92] Adrian Paradis' and Stephen Mathyk's terms were extended for a further two years.
[93] Thus, since 2001 the Board had almost a complete turnover of ROs over the following 4-5 years. With the departure of these Regulatory Officers, the Board has hired four more Regulatory officers; two were hired about a year and a half ago, and two were hired seven months ago. They were hired through an open competition which was posted on the Board's website. But Mr. Wooley was not sure if the positions were advertised in any major papers.
I. Dr. Sangha's Reaction to Not Being Offered the Regulatory Officer Position - Pain & Suffering [94] After the interview, Dr. Sangha returned home positive that he would be offered the job. He told his family that the interview had gone well.
[95] But when he received the email from Ms. Anderson advising that he would not be offered an RO position, he was very upset. Obtaining the position meant that he would be working within his profession and gaining some Canadian experience in the environmental field. It also meant very much economically. It was a good paying job and his family was planning to join him in Yellowknife.
[96] Dr. Sangha also testified that he became depressed over not getting the job. He consulted his family doctor who prescribed anti-depression medication. His doctor advised him that the medication could have some negative effects. For this reason, he only took them occasionally and then eventually stopped using them.
J. Dr. Sangha's Efforts to Obtain Other Employment - Mitigation [97] Some time after his application was not accepted, Dr. Sangha started working as a landscaping gardener. He had to travel each day for one hour in the heavy traffic and was working outside in the rain and the wind. He was so tired from this work that he had no time or no energy to look for other jobs.
[98] After a while, Dr. Sangha again began to look for jobs. He sent out about 15 resumes, had two or three interviews, but received no offers. He applied for jobs in government and in the private sector. Sometimes the jobs advertised were in his specialty, sometimes not. Even if not, he would still apply.
[99] Dr. Sangha contacted St. Cloud State University to see if there was any opportunity and was told again that there was no opportunity.
[100] Since he started working at Gill Electric, he has not applied for any other jobs.
(i) Income Earned Since 2001 [101] Dr. Sangha filed a summary of his earnings and his tax returns. This shows earnings of $62, 701 from all sources.
[102] Dr. Sangha also has an arrangement with Columbia State University whose website lists him as Professor, Occupational Safety and Health. This is an online university that offers courses online.
[103] The website also shows that he has taught courses for Columbia State University, including, toxicology, waste management, pollution prevention, industrial hygiene and advanced air quality control. Dr. Sangha said that he does not teach students, but rather interacts with the students by email or by telephone.
[104] He started with Columbia State University sometime in 2003. His evidence is that this is not a full-time position, that he is not paid a regular salary, but is paid an honorarium of between $300 and $600 per assignment. He continues to work for Columbia State University. He says that he does so to keep in touch academically.
K. The Remedy for Dr. Sangha [105] Dr. Sangha asks for compensation for three years at a salary of $55,000, being his potential earnings as an RO. He also asks that the Tribunal order the Board to hire him as an RO at the next available opportunity.
[106] He also claims compensation for pain and suffering in the mid-range, given the maximum of $20,000.
[107] The Commission seeks a policy remedy that the Board work with the Commission to ensure that this type of discrimination does not occur in the future.
[108] As to Dr. Sangha's request to be hired as an RO, Mr. Wooley testified that, future land claim settlements could result in a significant reduction in the Board's staff. With each land claim settlement, the Board's jurisdiction to issue land use permits and water licences would extend only to the remaining unsettled areas and transboundary applications.
[109] The Board staff could shrink to a five or six-person office, including the Executive Director and Office Manager to deal with budgets and two or three ROs. He therefore resists Dr. Sangha's request to be hired as an RO.
[110] On the question of whether an RO would be extended, Mr. Wooley said that it has been his policy to try to maintain a stable workforce. If an RO was a good employee and the Board was happy with their work, they could expect to be extended, usually for two more years. Unless the work of the Board is significantly reduced.
L. Using Overqualification to Screen Job Applicants [111] The Commission and the complainant assert that decisions not to hire overqualified job applicants have an adverse effect on visible minority immigrants. Overqualification is an illegitimate criterion to use when applied to this particular group. It contains a number of assumptions about the group and their motivations that are not necessarily valid.
[112] The Commission and the complainant also allege that a practice or policy of not hiring the overqualified amounts to age discrimination against older workers.
M. The Expert Evidence of Dr. Jeffrey Reitz [113] The Commission and the complainant called Dr. Jeffrey Reitz to give expert opinion evidence on their behalf. Dr. Reitz is a Professor of Sociology, the Harney Professor of Ethnic, Immigration and Pluralism Studies and Director of the Graduate Collaborative Program in Ethnic and Pluralism Studies, at the University of Toronto.
[114] He has 35 years of experience in sociological research and teaching on the general topics of race and ethnic relations, and immigration. Much of his research focuses on the employment of immigrants and visible minorities, and barriers to the employment success of minorities including discriminatory barriers. Dr. Reitz has published seven books and monographs, as well as numerous articles, book chapters and edited books that have examined these and related topics.
[115] Dr. Reitz was qualified to give expert evidence in the area of race and ethnic relations and immigration issues as they relate to employment.
[116] The global thesis of Dr. Reitz's evidence is that not hiring overqualified job applicants has an adverse impact specifically on visible minority immigrants. Overqualified job applicants are those whose education and experience significantly exceed the requirements specified as necessary for a particular job.
[117] Dr. Reitz defines immigrants as foreign-born residents of Canada irrespective of their length of stay in Canada and whether or not they are citizens. Since the 1970's, the origins of the majority of immigrants to Canada are Asia, the Caribbean, Latin America and Africa. Immigrants to Canada from these regions are considered to be racial or visible minorities in Canada.
[118] Dr. Reitz has five supporting conclusions.
(i) Educational Levels and Experience Levels of Immigrants and Visible Minorities [119] Conclusion One: Immigrants are, on average, more highly educated than native-born Canadians. Dr. Reitz points out that immigrants arriving in Canada since the 1970s, most of whom are considered to be visible minorities, possess high education levels and a substantial portion are qualified professionals. According to the 1996 Canadian census data, immigrants average 0.4 more years of education than native-born. And with more recent immigrants, the trend is upward so that the relative level of education of immigrants is closer to 0.6 years more.
[120] The reason for this, says Dr. Reitz, is that the largest single number of immigrants to Canada are independent or economic immigrants, who are selected on the basis of a points-based system. According to Dr. Reitz, the 1996 Canada census showed that working age immigrants arriving in the most recent five year period had an average of 14 years of education and nearly 30 % had university degrees. Among later arriving immigrants, in 2000 for example, about 45 % had university degrees.
(ii) Employment Barriers Affecting Immigrants and Visible Minorities [121] Conclusion Two: Visible minority immigrants face barriers to employment at their level of qualification. These barriers force highly qualified visible minority immigrants to seek lower skilled jobs.
[122] Dr. Reitz' evidence is that the research identifies various types of barriers to equal opportunity for immigrants. These include discriminatory hiring practices based on race, immigrant status or origin; employers' unfamiliarity with foreign acquired education; lack of credit for non-Canadian work experience/no Canadian work experience; licensing bodies' refusal to recognize foreign acquired education/experience; and lack of social contacts useful in gaining labour market access.
[123] Dr. Reitz refers to various studies and reports which show significant numbers of immigrants report difficulties in qualification recognition. Significant numbers (20%) of visible minorities perceive discrimination in empl