der von Felix v. C.R. Laurence of Canada (Ontario), 2009 HRTO 581

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hans Harry der von Felix

Applicant

-and-

C.R. Laurence of Canada (Ontario) and Gavin Brin

Respondents

Case Resolution Conference Decision

Adjudicator: David Muir

Date: May 6, 2009

Citation: 2008 HRTO 581

Indexed as: der von Felix v. C.R. Laurence of Canada (Ontario)

Reasons for Decision

1This is an Application dated October 8, 2008 under section 53(3) of Part VI of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Applicant alleges that he was subject to discrimination in vocational associations on the basis of race, ancestry, colour, ethnic origin and place of origin. In addition, the applicant alleges breach of settlement and reprisal. A Case Resolution Conference (CRC) was held in Toronto on April 28, 2009 in accordance with the expectation, expressed in the Code and the Tribunal’s Rules, that section 53(3) applications proceed in a highly expeditious manner. I heard from the applicant and the personal respondent.

3The applicant was employed by the corporate respondent ending in 2004. The parting of ways was not amicable and the applicant filed an employment standards claim for unpaid commissions and a human rights complaint alleging that he had been discriminated against in employment. Both of those matters were settled.

4The applicant alleges the personal respondent effectively sabotaged his prospects for employment when he would not “definitely confirm” his employment with the corporate respondent and stated that “he did not want to comment” on his employment when contacted by prospective employers and/or background reference checkers for respective employers.

5The respondents state that the only specific allegation – that the personal respondent would not comment on the applicant’s employment is not discriminatory, nor a breach of settlement or reprisal. The applicant did not rely on a settlement that would have required his former employer to provide particular employment information when contacted by prospective employers.

6The applicant states that he was told by Maurice Scott, an employee of a reference checking agency for a prospective employer, that an offer of employment to him was withdrawn because of unsatisfactory comments made by the personal respondent to another person employed by another agency. To be clear, Mr. Scott was relaying information provided to him by another individual who had actually spoken with the personal respondent. The content of what the personal respondent is alleged to have said is entirely unclear. At its highest it is alleged the personal respondent stated that the termination of the applicant’s employment with the corporate respondent in 2004 was not amicable. This particular allegation is not made in the complaint.

7It is not contested that two sets of reference checks were performed, the first in the Fall 2007 and the second in January 2008. The applicant “passed” the first but not the second.

8The personal respondent confirmed he was contacted on two occasions by reference checkers. He did not recall specifically who contacted him and could not be sure when the calls were made but agreed the times suggested by the applicant (September/October 2007 and January 2008) were likely. On both occasions, he was asked to and did confirm the applicant’s employment. He agrees he was asked for further information on one of these occasions but, citing company policy, declined to say more. The caller was persistent and eventually he ended that phone call. In response to my questions, the personal respondent stated that it has been company policy for at least ten years to confirm employment dates but offer no other information when contacted by reference checkers. He denied saying the applicant’s employment with the corporate respondent had not ended amicably.

9Although I am entitled to hear and consider hearsay evidence, it will normally be given little weight in determining the central issues in the dispute. The only evidence going to the central issue tendered by the applicant was double hearsay - the content of a conversation between the individual who spoke with the personal respondent as relayed to the applicant by Mr. Scott.

10In contrast, the personal respondent was present at the Case Resolution Conference and gave direct evidence of his recollection of his conversations with reference checkers related to the applicants. His testimony was consistent and forthcoming and his explanation for his refusal to provide more information was reasonable in all the circumstances. In weighing the personal respondent’s testimony of his conversations based on his first-hand knowledge against the hearsay evidence tendered by the applicant, I find the respondents’ evidence more reliable. On a balance of probabilities I am satisfied the personal respondent provided factual information confirming the applicant’s dates of employment and, in accordance with company policy, said nothing further.

11These facts do not support a finding that the Code has been violated.

Order

12The Application is therefore dismissed.