Yaser Kailani v. G4S Security Services (Canada) Ltd. and Alex Rosu, 2011 HRTO 1790

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Yaser Kailani Applicant

-and-

G4S Security Services (Canada) Ltd. and Alex Rosu Respondents

DECISION

Adjudicator: Eric Whist Date: October 4, 2011 Citation: 2011 HRTO 1790 Indexed as: Kailani v. G4S Security Services

APPEARANCES

Yaser Kailani, Applicant (Self-represented) G4S Security Services (Canada) Ltd., Alex Rosu, Respondents (Lorenzo Rosa, Sandra Reid, Representatives)

1This Application, filed on July 16, 2009, alleges discrimination in employment on the basis of disability contrary to s. 5 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"). The Application alleges that on three occasions, in 2006, in January 2009 and in April 2009, the corporate respondent, G4S Security Services (Canada) Ltd., refused to hire the applicant as a security guard on a full time basis because of his disability.

2A hearing was held on May 16, 2011. I heard testimony from the applicant, Yaser Kailani, Kiran Kainth, a human resources manager with the corporate respondent, and the personal respondent, Alex Rosu, an operations manager with the corporate respondent.

3After the hearing I determined that I needed to hear submissions and possibly evidence on the specific issue of whether I had the jurisdiction to consider the applicant's allegations regarding the job competition in 2006. The issue is whether allegations about this job competition are untimely given that the applicant did not file his Application within one year of this alleged incident of discrimination. On September 15, 2011 I heard submissions from the parties by teleconference on the issue of delay.

EVIDENCE

Yaser Kailani's Testimony

4Mr. Kailani testified that he applied for a position as a security guard with the corporate respondent in 2006 (a more specific date was not established). Mr. Kailani testified that he visited the corporate respondent's Mississauga Commercial office (the "Mississauga office") where he first wrote and passed an exam (with more than the required 75%) after which he was given an application to fill out. Mr. Kailani testified that the application form was approximately four pages and contained a question that explicitly asked if he had any illness or disease that he wished to disclose. Mr. Kailani testified that he disclosed on the form that he had diabetes. He testified that he was then interviewed by Kiran Kainth who asked him, amongst other things, whether he had diabetes "1" or "2" and whether he took pills or insulin. Mr. Kailani testified that he told her he had diabetes "1" and took pills. Mr. Kailani testified that after the interview Ms. Kainth told him that she would call him within a week if the corporate respondent was going to offer him a job. Mr. Kailani testified that after not hearing from Ms. Kainth for over a week he returned to the corporate respondent's Mississauga office and met with Ms. Kainth who told him that he was overqualified and the company would not be offering him a job. Mr. Kailani testified that he was suspicious about the truthfulness of this response but that within the month he obtained a position as a security guard with another company and did not pursue his concerns.

5Mr. Kailani further testified that he was employed as a security guard with this other employer for over two years before being laid off because of a shortage of work. He testified that in January 2009 he again applied for a security guard position with the corporate respondent at its Mississauga office. He testified that he passed the requisite exam and filled in the same application form, which had the same question about whether the applicant had an illness of disease that he wished to disclose. Mr. Kailani testified that this time he did not reveal his disability and stated that he withheld this information on the advice of his physician who told him that he was under no obligation to tell prospective employers of his diabetes.

6Mr. Kailani testified that he was again interviewed by Ms. Kainth who asked whether he had applied before with the applicant stating that he had, in 2006. He testified that Ms. Kainth stated that she recognized him and told him that she would call within the week if the corporate respondent would be offering the applicant a job. Mr. Kailani testified that he was not called.

7Mr. Kailani testified that the corporate respondent has a rule that a person cannot apply within three months of a previous application and so he waited until April 2009 to apply again. He testified that again he passed the test, again filled in the same application form, and again said "no" to the question about whether he had disease or illness to disclose. Mr. Kailani testified that he was interviewed by Ms. Kainth who again told him that she would call within a week if the corporate respondent would be offering him a job. Mr. Kailani testified that he then told Ms. Kainth that he did not believe her and told her that he had applied three times and that he believed that he was being discriminated against because of his race and colour or possibly his accent. Mr. Kailani testified that Ms. Kainth asked if the applicant wished to speak to her manager. Mr. Kailani stated he did. Mr. Kailani denied that he was argumentative or raised his voice during his exchanges with Ms. Kainth.

8Mr. Kailani testified that Ms. Kainth's supervisor, Alex Rosu, the personal respondent, then appeared. Mr. Kailani testified that he repeated his account of having applied three times and believing that he had been discriminated against because of his race, colour or accent to Mr. Rosu. He testified that Mr. Rosu asked Mr. Kailani to wait. According to the applicant, the personal respondent then returned holding all three of the applicant's applications and asking Mr. Kailani to clarify why he had stated on his application in 2006 that he had diabetes and had not done so on his two subsequent applications. Mr. Kailani testified that he explained to Mr. Rosu how his doctor had told him that he did not have to provide this information. Mr. Kailani testified that the personal respondent and Ms. Kainth then met privately after which the personal respondent offered Mr. Kailani an "on call" job; a job that would require him to be available to work as a security guard on an as needed basis, principally to fill in for security guards on vacation or on other short term leave.

9Mr. Kailani testified that he told Mr. Rosu and Ms. Kainth that this was an inadequate offer as he had applied for a full time job. Mr. Kailani testified that Mr. Rosu stated that this was all he could offer. Mr. Kailani testified that he then suggested that this "on call" offer was only to get rid of him to which Mr. Rosu replied that this was the only job he could offer. Mr. Kailani testified that he was not called by Ms. Kainth or any other representative of the corporate respondent after that, nor did he call them.

10Mr. Kailani testified that he obtained a security guard position with another company in September 2009.

Kiran Kainth's Testimony

11Ms. Kainth testified that she has worked for the corporate respondent for eleven years, she has worked in human resources since 2004, and she has been a human resources manager since 2010. She testified that she averages one hundred interviews a week, noting that there is a high turnover in the security business.

12Ms. Kainth testified that all applicants for a security job position first write a test. An application form is given to those who score over 75% on the test. She testified that the two-page application form that was disclosed by the respondents has been used since before 2006. She testified that the application form does not ask an applicant to identify an illness or disability but rather asks:

"The physical demands of a Security Guard requires the ability to Stand/Walk/ Climb Stairs for extended period of time; Do you feel you are physically able to meet these demands? YES__ NO ___"

13Ms. Kainth testified that if someone responds "No" to the question about whether they would have difficulty meeting the physical demands of the job she will not ask further questions. If someone answers "Yes" she will go over the physical demands of the job, relying on a physical demands and hazard analysis for Industrial Security Guards form dated May 7, 2001 that was disclosed by the respondents. Ms. Kainth testified that it is rare that a person would answer "Yes" and often a person would then say he or she answered "Yes" by mistake. Ms. Kainth testified that she did not recall an applicant filling in the form to indicate a specific illness. Ms. Kainth testified that the corporate respondent had, on occasion, not hired persons who had vision or hearing impairments on the basis of a determination that they would not be able to meet the essential physical demands of the security guard position.

14Ms. Kainth testified that all security guards start on an "on call" basis before becoming permanent full time or part time security guards, depending on their stated preference. She testified that newly hired security guards are "on call" anywhere from one week to the end of their 90 day probationary period, depending on the availability of full time or part time positions.

15Ms. Kainth testified that she did not remember Mr. Kailani from his interview in 2006 nor having any discussion about diabetes. Ms. Kainth testified that she did not recall Mr. Kailani from his January 2009 interview but she did remember his April 2009 interview.

16Ms. Kainth testified that she remembers interviewing the applicant in April 2009 and telling him that that there were no full time positions but that she could offer him an "on call" position. Ms. Kainth testified that Mr. Kailani then got upset and raised his voice asking why he wasn't being hired full time and that the refusal to do so was discriminatory. Ms. Kainth testified that she told Mr. Kailani she would call her manager, Mr. Rosu. She testified that when she spoke to Mr. Rosu he was already coming out of his office because he had been told by the receptionist that Mr. Kailani was causing a commotion in the office.

17Ms. Kainth testified that she was part of the meeting involving Mr. Kailani and Mr. Rosu. She testified that Mr. Rosu listened to Mr. Kailani's complaints and then offered him the same "on call" opportunity she had offered to the applicant. Ms. Kainth testified that Mr. Rosu did have the applicant's April 2009 application form in his hand but not the applicant's application forms from 2006 or January 2009, as alleged by Mr. Kailani. She testified that Mr. Rosu could not have had the applicant's 2006 or January 2009 applications as the corporate respondent's policy is to shred the application forms of unsuccessful applicants after 90 days.

Alex Rosu's Testimony

18Alex Rosu testified that he began working with the corporate respondent in 1995 and became the operations manager at the Mississauga office in 2008. He testified that the two-sided one page Application form disclosed by the respondents was the company's standard application form although it previously might have been printed on two separate pages. Mr. Rosu testified that Ms. Kainth was in charge of human resource issues in the Mississauga office, including being responsible for recruitment and that Mr. Rosu helped occasionally with interviewing when Ms. Kainth was not available.

19Mr. Rosu testified that he was told by the office receptionist in April 2009 that someone in the office was agitated and causing a scene, and that Ms. Kainth subsequently asked him to meet with the applicant. Mr. Rosu testified that he met with Mr. Kailani who was upset, nervous and was speaking in a raised voice. Mr. Rosu testified that he tried to talk to Mr. Kailani to calm him down and said he would speak with him after Mr. Kailani took some time to get some water and calm down. Mr. Rosu testified that he, Mr. Kailani and Ms Kainth reconvened about five minutes later. Mr. Rosu testified that the applicant was upset that he had not been hired previously. Mr Rosu testified that he reviewed the applicant's April 2009 application, confirmed that he had passed the required exam, and told Mr. Kailani that he was being offered an "on call" position. Mr. Rosu testified that Mr. Kailani insisted that he was looking for full time work. Mr. Rosu testified that he told Mr. Kailani not to panic, that everyone who wants full time work will eventually get it, but that there were no full time positions available at the time. Mr. Rosu testified that all successful candidates for security guard positions start on an "on call" basis.

20Mr. Rosu testified that Mr. Kailani said he would have to think about it and that Mr. Rosu said that this was fine but that Mr. Kailani would have to let them know his decision. Mr. Rosu testified that Mr. Kailani never called back about whether he would accept an "on call" position.

21Mr. Rosu recalled having the April 2009 application in his hand but that he would not have had all three of Mr. Kailani's applications as he had no written information related to the applicant's applications prior to April 2009. He testified that the corporate respondent destroys applications of unsuccessful candidates after 90 days. He testified that he did not recall Mr. Kailani making any reference to discrimination based on disability but that Mr. Kailani did allege that he was not being hired because of his colour or language, a reference, in Mr. Rosu's view, to the applicant's accent. Mr. Rosu testified that he told Mr. Kailani that "we are all the same colour here and that we are all immigrants" stating that he was trying to be "light" about the applicant's concern.

DECISION

22There are a number of key findings that I am able to make that ultimately lead to my decision to dismiss the entire Application. Mr. Kailani has not shown that, on a balance of probabilities, the respondents' actions constitute discrimination based on disability.

FINDINGS OF FACT

23There are a number of findings of fact I need to make as I have before me differing versions of events. In order to make my findings I have had to assess the credibility of the parties and have relied on the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354, which is often quoted by this Tribunal. The Court held:

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.

24I find that Ms. Kainth and Mr. Rosu were credible witnesses, including on a number of key points. I accept Ms. Kainth's testimony that the corporate respondent's practice since at least 2006 has been to use the employment application form that was in evidence before me. Mr. Rosu's testimony that this application form was the only application form that he was aware of while working for the corporate respondent strongly supports this claim. I prefer this testimony to the applicant's claim that he filled in a different application form in 2006, as well as in January and April 2009.

25The application form that was disclosed by the respondents that was before me is entitled "G4S Security Services (Canada) Ltd. Employment Application". It does not include the question Mr. Kailani alleges he had to respond to, which was a question that explicitly asked whether an applicant has an illness or disease he or she wishes to disclose.

26I find it less probable that an employment application form of a large, well established, national employer would include a question that asks an applicant if he or she has a disease or illness they wished to disclose. I find it more probable that a question on an application form would be linked to the requirements of the job being applied for, as the question on the application form disclosed by the respondents does when it asks:

"The physical demands of a Security Guard requires the ability to Stand/Walk/ Climb Stairs for extended period of time; Do you feel you are physically able to meet these demands? YES__ NO ___"

27It would, of course, have been helpful to have the applicant's actual applications in evidence but it was the respondents' evidence that these applications were destroyed after 90 days. I find this evidence to be credible. This was the evidence of both the respondents' witnesses and consistent with the statement on the corporate respondent's application form disclosed by the respondents which states:

"All applications received will be held active for 90 days after which time they are destroyed and you may reapply".

28Mr. Kailani categorically maintained that the application form disclosed by the respondents was not the form he completed in 2006 and 2009. As stated, I do not find this claim credible. That said, I am satisfied that Mr. Kailani did likely indicate on his application form in 2006 that he had diabetes in response to the question as to whether he could meet the physical demands of the job. I find the applicant's testimony about having diabetes, and having discussed his diabetes with Ms. Kainth in 2006 to be credible. The applicant provided numerous persuasive details such as the description of two questions he stated that Ms. Kainth asked in 2006 about the nature of his diabetes and the reference to the applicant's doctor advising him to not refer to his diabetes in future job applications.

29In regards to the April 2009 interview I make the following findings. I find that Mr. Kailani did raise with Ms. Kainth the fact that he had previously been unsuccessful in applying for security positions with the corporate respondent, that he recounted the history of his efforts to gain employment with the corporate respondent, and that he was upset. The testimony of Mr. Kailani and Ms. Kainth was consistent on these points.

30I am of the view that Mr. Kailani likely raised his voice and was forceful in raising his concerns at the April 2009 interview. The applicant denied this but I prefer Ms. Kainth's testimony on this point as it was, in my view, corroborated by the fact that Ms. Kainth and Mr. Rosu provided a consistent, detailed, and ultimately persuasive account of how the office receptionist became involved in summoning Mr. Rosu because of a disturbance in the office caused by Mr. Kailani.

31I find that Mr. Kailani made allegations of discrimination based on race, colour and accent to Ms. Kainth that he repeated these allegations to Mr. Rosu and that Mr. Rosu discussed with Mr. Kailani an offer of an "on call" job as a security guard. This evidence was not in dispute. It was also not disputed that Mr. Kailani recounted the history of his three applications to Ms. Kainth and later to Mr. Rosu.

32I also find that the applicant did tell Ms. Kainth and Mr. Rosu that he had indicated as part of his 2006 application process that he had diabetes and that Mr. Rosu subsequently questioned him about why he had referred to having diabetes in one of his applications but not the other two. Mr. Kailani testified that this was the case. Mr. Rosu testified that he did not recall such a conversation. However, Ms. Kainth suggested in her testimony that the applicant may have stated during his meeting with Mr. Rosu that he had indicated on one application that he had diabetes but not on the other two applications. In my view, this was enough evidence to substantiate the applicant's claim that he had raised the issue of his diabetes and that Mr. Rosu had asked him about why he had filled in his three application forms differently. However, I am of the further view that Mr. Rosu asked this question not because Mr. Rosu had copies of the applicant's three applications from which he could glean this information, as claimed by the applicant, but because, while recounting the history of his applications during the meeting, the applicant had indicated that he filled in these applications differently. As stated earlier I am satisfied that the respondents did not have copies of all three applications given their practice of destroying applications of unsuccessful applicants after 90 days.

33I am satisfied that the applicant was offered an "on call" position in April 2009. All three witnesses agreed that this was the case. Importantly, I accept the respondents' further contention that all successful applicants were required to start on an "on call" basis and once an "on call" job offer is made it is up to the successful applicant to contact the corporate respondent to indicate whether he or she would accept this offer. The respondents' witnesses were consistent on this point and I found their detailed description about how this process worked and how it was applied in the context of this job competition to be credible. Consequently, I am of the view that this meeting did not end with a commitment by the respondents to potentially contact Mr. Kailani within the week if they had a full time job available, as Mr. Kailani maintained.

34I am also satisfied that the offer of an "on call" position was first made by Ms. Kainth before being offered again by Mr. Rosu. The issue of whether Ms. Kainth made this offer was in dispute. Ms. Kainth testified that she made the offer and that the applicant's unwillingness to accept this offer was because he stated he wanted a full time position. She further testified that Mr. Rosu subsequently reiterated to Mr. Kailani that the corporate respondent was only offering "on call" positions. Mr. Kailani states that Ms. Kainth made no job offer whatsoever. I prefer Ms. Kainth's testimony on this point, which was corroborated by Mr. Rosu's testimony. As noted previously in this decision, I generally found both of the respondents' witnesses to be credible. Their testimony was consistent, clear and directly given with no identifiable inconsistencies or implausibilities. On the other hand, while I found Mr. Kailani to be genuinely concerned about his experiences with the respondents, there were parts of his account that were not credible. These include his insistence that he filled in an application form that explicitly asked about his disabilities, that he was not angry or loud when he complained during the interview process in April 2009, and that the onus was on Mr. Rosu or Ms. Kainth to contact him after their meeting if there was a job available rather than on Mr. Kailani to contact the respondents if he wanted the "on call" job that had already been offered.

ANALYSIS

35The Application alleges discrimination in employment on the basis of disability in respect of three occasions during which the applicant was not offered a full time position by the corporate respondent. While the applicant testified that in April 2009 he complained to Ms. Kainth and Mr. Rosu that he had been discriminated against because of his race, colour or accent, these are not allegations that are made in the Application. The applicant did not adduce further evidence about discrimination on the basis of race, colour or accent. He made no submissions that he was so discriminated, nor did he seek to amend his Application on these grounds. As such, the only allegations of discrimination that are properly before me are ones made on the basis of disability. There was no dispute as to whether the applicant had diabetes or whether diabetes constitutes a disability.

36Section 5(1) of the Code states:

Every person has a right to equal treatment with respect to employment without discrimination because of...disability.

It is also relevant to note the provisions of section 23(2) and (3) of the Code which state:

Application for employment

23 (2) The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

Questions at interview

(3) Nothing in subsection (2) precludes the asking of questions at a personal employment interview concerning a prohibited ground of discrimination where discrimination on such ground is permitted under this Act.

And section 34 of the Code which states:

34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

April 2009 Job Competition

37I find that there is no persuasive evidence that in April 2009 Mr. Kailani was denied employment with the corporate respondent based on a disability, namely his diabetes. In April 2009, Mr. Kailani was, in fact, offered a job. Mr. Kailani testified that he believed he was being offered an "on call" job just to get rid of him, suggesting that the respondents were discriminating against him by withholding the full time job he had applied for and were offering him an inferior job they knew he would be unlikely to take. The applicant testified that the corporate respondent's job advertisement stated that they were recruiting for full time positions. However, I am satisfied, based on my findings of fact, that the "on call" job that was offered to the applicant was the only type of job available and that the applicant was not being differentially treated when this job offer was made. I accept the evidence that the corporate respondent's hiring process at the Mississauga office at that time was that all successful applicants started on an "on call" basis with the expectation that they would eventually be employed on a full time basis.

38I am of the view that Mr. Rosu likely did ask Mr. Kailani in April 2009 why he had stated he had diabetes on one application form and not on the two others that he submitted. This question is not necessarily inappropriate or discriminatory. It may be that the respondents were most interested in ascertaining why an applicant would provide different answers to the same question on different applications. However, the key issue here is that Mr. Kailani was offered a security guard position in April 2009. There is no evidence to indicate that any action of the respondents in April 2009, including asking a question that referred in some way to the applicant having diabetes, differentially treated or disadvantaged the applicant in his efforts to obtain employment.

January 2009 Job Competition

39I have limited evidence before me as to what occurred in January 2009. Mr. Kailani testified that Ms Kainth recognized him, that she later told him that she would call if he was going to be offered a job. Mr. Kailani was not called.

40Ms. Kainth testified that she did not remember Mr. Kailani. She did not provide an explanation for why Mr. Kailani may not have been chosen for a job at that time. She noted the fact that she interviews hundreds of persons for security guard positions. However, she did offer Mr. Kailani a job three months later in April 2009 indicating that, at that time, as I have found above, that he was not denied a job or treated differently because of his disability. Based on the evidence before me, including the fact that the applicant was offered a job in April 2009, I cannot conclude that, on a balance of probabilities, the reason Mr. Kailani was not offered a job in January 2009 was related to his disability. The onus of establishing discrimination on the basis of disability rests on the applicant. Even if I accepted the applicant's evidence in relation to the January 2009 application as true, including his evidence that Ms. Kainth recognized him from 2006, this evidence does not, in my view, establish on a balance of probabilities that the respondents' failure to hire the applicant in January 2009 was related to his disability.

2006 Job Competition

41The first issue I need to consider is whether I have the jurisdiction to consider the applicant's allegations in regard to the 2006 job competition because of the time that passed before the applicant filed his Application in July 2009. Section 34 of the Code states that a person is required to file an application alleging that his or her rights under the Code have been infringed within one year of the incident or last incident of alleged discrimination. It also provides that persons may apply to the Tribunal more than one year after the incident(s) if the delay is incurred in good faith and does not cause substantial prejudice to the respondent.

42The applicant submits that the three hiring processes in 2006, January 2009 and April 2009 are a series of incidents and that as the last incident falls within one year of the filing of the Application all three incidents are timely under section 34(1). The applicant further submits that the delay in filing his Application in relation to the 2006 allegations was incurred in good faith pursuant to section 34(2). He stated that it is only when Mr. Rosu questioned him in the meeting in April 2009 about why he had indicated on his application in 2006 that he had diabetes and had not done so subsequently that he concluded that his disability was a reason for why he was not hired by the corporate respondent in 2006 (as well as in 2009).

43The respondents submit that the allegations in relation to the 2006 job competition are untimely given that they relate to an event in 2006, over three years prior to the filing of the Application.

44Generally, events are not part of a series of incidents if there is a significant gap in time between them. The Tribunal has determined that in most cases a gap of more than one year between events interrupts the series. See for example Savage v. Toronto Transit Commission, 2010 HRTO 1360, and Chintaman v. Toronto District School Board, 2009 HRTO 1225. However, in determining whether a number of incidents constitute a series for the purposes of section 34 of the Code, the Tribunal has, in addition to looking at the timing of the incidents, looked to the nature of the events as an indicator of whether they make up a pattern of conduct or relate to discrete and separate issues. In the case of an application regarding multiple job competitions where a series of incidents is relied on, the Tribunal has considered the time, location and decision-makers involved to determine whether the incidents are a series. See Thambipillai v. Toronto District School Board, 2011 HRTO 487 and Zholudev v. EMC Corporation of Canada, 2011 HRTO 1411.

45In the present case the three incidents that give rise to the Application all relate to job competitions for a security guard position in the same office of the respondent. The interviews are conducted by the same person over a period of approximately three years. In my view, the similar nature of these job competitions and the fact that the same decision-maker was involved in each incident leads to the conclusion that they constitute a series of incidents for the purposes of section 34(1) even though there is an extended period of time between the first and second job competition. Consequently, I am satisfied that the allegations regarding the 2006 job competition are properly before me.

46Section 23(2) of the Code indicates that a respondent cannot ask a question on an application that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination. I am of the view that the application question asking whether an applicant can meet the physical demands of a security guard position is not a violation of section 23(2) given that it is linked to the stated and uncontested demands of the position. As noted earlier, I am satisfied that the applicant indicated on his 2006 Application that he had diabetes and that Ms. Kainth asked him about this condition during their interview. I am of the view that it is not necessarily improper that Ms. Kainth questioned the applicant about this. As stated in Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230 that while there is a general principle that an employer cannot demand disclosure of information regarding Code grounds under section 23 of the Code, section 23(3) allows employers to question prospective employees about medical conditions that would prevent the performance of the essential duties of the job. See, for example, Kolev v. McDonnell Douglas Canada Ltd. (1992) 1992 CanLII 14234 (ON HRT), 18 C.H.R.R. D/213 (Ont. Bd. Inq.). Consequently, I do not find the oral and written questions from the 2006 application process are indications that the respondents intended to discriminate or did discriminate.

47The applicant did argue that there was further evidence his being discriminated against in 2006. He thought it relevant that he was turned down for jobs on two further occasions in 2009 and that Mr. Rosu revealed in April 2009 that he was aware that the applicant had diabetes. It appeared the applicant was arguing, in part, that the respondents had kept track of the applicant's disability by means of his application forms and that this information had informed their decisions in 2009 not to hire the applicant. However, as I have already stated, I am of the view that the respondents were aware of the applicant's disability in April 2009 not because they had kept records of this but because the applicant had, himself, divulged this information at the meeting in April 2009. But again it is highly relevant to note that I am of the view that the applicant was not discriminated against in April 2009 when he was offered a job and I have found that neither was he in January 2009. In other words, there is nothing that occurred in January and April 2009 to support a contention that the applicant was discriminated against in 2006. In the absence of further evidence I cannot draw an inference that it was the applicant's disability that accounts for why he was unsuccessful in obtaining employment in 2006.

48In summary, I find the evidence before me does not, on a balance of probabilities, support the applicant's allegations of discrimination and, accordingly, the Application is dismissed in its entirety.

Dated at Toronto this 4th day of October, 2011.

"signed by" Eric Whist Vice-chair