Elizabeth Beals v. Joseph Produce Eastside Inc., 2011 HRTO 1386

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Elizabeth Beals

Applicant

-and-

Joseph Produce Eastside Inc.

Respondent

INTERIM DECISION

Adjudicator: Mary Truemner

Date: July 25, 2011

Citation: 2011 HRTO 1386

Indexed as: Beals v. Joseph Produce

APPEARANCES

Elizabeth Beals, Applicant ) Self-represented

Joseph Produce Eastside Inc., Respondent ) Jody Joseph, Representative

1This Application arises from the applicant’s failed attempts to obtain employment from the respondent. The applicant alleges that the respondent discriminated against her on the basis of race, colour and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2Pursuant to a Case Assessment Direction (“CAD”) issued on April 11, 2011, a summary hearing was held on July 21, 2011, to determine whether this Application should be dismissed in whole or in part, on the basis that there is no reasonable prospect that it would succeed.

3The CAD noted that “the Application does not disclose a basis for [the applicant’s] belief that the respondent’s conduct was in any way related to the grounds of race, colour or ethnic origin or identify any specific evidence that links the alleged discriminatory treatment to these grounds. The applicant’s allegations of discrimination seem to arise out of speculation. Moreover, in its Response, the respondent provides what appear to be non-discriminatory reasons for why the applicant was not given a job interview and was not a successful candidate for the position.”

4Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

5The issue that Rule 19A requires me to determine is whether the Application has no reasonable prospect of success. If a finding is made that the Application has no reasonable prospect of success, then it is dismissed. In the absence of such a finding, the Application continues to proceed through the Tribunal’s procedure.

6In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal stated:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

7During the course of the summary hearing, the applicant explained that she believes the respondent did not allow her application for the position of cashier to proceed once Brad Joseph, a manager, met her and saw that she was black. On the telephone some days previously, he listened to her qualifications and invited her to come to the store for an interview, but when the applicant arrived and introduced herself to a cashier, non-management staff apologetically told her that the interviewer had to leave to pick up children. The applicant clarified that she is not alleging that the cancellation of her interview at that time was discriminatory. She explained that the respondent’s failure to provide her with another interview time after she met Brad Joseph in person, despite his assurance that she would be contacted, is the focus of her allegations of discrimination contrary to the Code.

8The applicant, who identifies herself as black, explained that she has been a customer of the respondent one or two times a week since 2005. She said that the respondent and its sister store employ over 40 people, but she has observed only one black staff member who worked sweeping floors for a short time in approximately 2007. Her Application states that no black people are presently employed. She explained at the summary hearing that the lack of black staff, coupled with the respondent’s failure to interview her after management saw her (in the context of her qualifications and management’s encouragement prior to seeing her), are sufficient evidence to show a link between the event (denial of an employment opportunity) and her race, colour and ethnic origin.

9The Response, filed August 2, 2010, explains that Brad Joseph “inadvertently failed” to communicate to Jody Joseph, the management staff member who does the respondent’s hiring, that he had set up an interview for the applicant. The Response also indicates that no one told Ms. Joseph that the applicant arrived at the store for her scheduled interview, discovered it was cancelled and was told someone would call her back. The Response also states that on the day that the applicant arrived for her interview to discover the interviewer gone, Ms. Joseph hired another person who then started work the following day. The Response does not address the allegation that the applicant arrived some days later and spoke with Brad Joseph, who promised that someone would contact the applicant, but no one did.

10At the summary hearing, Ms. Joseph stated that the manager to whom the applicant spoke a few days after her scheduled interview was not Brad Joseph. This is disputed by the applicant, who met Brad Joseph subsequently at a mediation conference. Ms. Joseph also stated that the respondent disagrees with the applicant’s position that the respondent has no black staff. She argued that the applicant has not established a link between the alleged event and the alleged prohibited grounds.

11At this stage, it is not appropriate to make any findings with respect to the applicant’s allegations or the respondent’s defence. It is sufficient to say at this point that the applicant has satisfied me that she may be able to establish a link between the events alleged to have occurred and the grounds upon which she made the claim. I cannot find that there is no reasonable prospect that this Application will succeed, and the Application is not dismissed.

12Mediation was attempted by the parties; therefore, the next step is a hearing. Given new factual particulars provided by the applicant and respondent during the summary hearing, the Tribunal directs the parties’ attention to Rule 17 of the Tribunal’s Rules of Procedure which requires them to summarize what witnesses will say at the hearing. The parties should take steps to ensure that the factual allegations upon which they intend to rely at the hearing are set out in the summary of what their witnesses are expected to say at the hearing. The applicant is reminded that she is also considered a witness so that she must provide a summary of what she will say as well, particularly in the circumstances where she has raised facts at the summary hearing which were not in her Application. The Notice of Hearing will provide other information on how the parties are to prepare for the hearing, and the parties are encouraged to read the Tribunal’s Plain Language Guides and its Rules on its website (www.hrto.ca).

13I am not seized of this matter.