Tharmaratnam v. The Miller Group, 2011 HRTO 1883

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tharmasuthaharan Tharmaratnam

Applicant

-and-

The Miller Group

Respondent

DECISION

Adjudicator: Maureen Doyle

Date: October 19, 2011

Citation: 2011 HRTO 1883

Indexed as: Tharmaratnam v. The Miller Group

APPEARANCES:

Tharmasuthaharan Tharmaratnam, Applicant ) Praba Namasi, Representative

The Miller Group, Respondent ) David DeFrancesco, Counsel

1This is an Application filed on May 14, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the respondent discriminated against him in employment on the basis of race, colour, place of origin and ethnic origin.

2In his Application, the applicant alleged that he was wrongfully terminated from his employment. He alleged that the employer did not complete a full and proper investigation regarding allegations that he had been involved in altercations with another worker. He alleged that his termination was brought about “based on …third party information”. On January 25, 2011, the Tribunal issued a Notice of Intent to Dismiss on the basis that the narrative in the Application failed to identify any specific acts of discrimination within the meaning of the Code. The applicant made submissions by way of a letter, indicating that the Application was within the Tribunal’s jurisdiction because he was allegedly dismissed due to his race, colour and Sri Lankan background. Based on the submissions, on May 16, 2011, the Tribunal issued an Interim Decision, Tharmaratnam v. The Miller Group 2011 HRTO 939, finding that it was not plain and obvious that the Application does not raise matters covered by the Code and directing that the Tribunal continue to process the matter.

3Also on May 16, 2011, following a review of the Application, the Tribunal issued a Case Assessment Direction (“CAD”) directing that a Summary Hearing take place via telephone conference call.

4The applicant was in attendance, with a friend acting as his representative, during the Summary Hearing by telephone conference call on October 4, 2011. In the course of discussing the CAD, the applicant stated that he had not received the CAD, though he had received the Notice of Summary Hearing sent by the Tribunal dated August 24, 2011. Among other things, the Notice of Summary Hearing includes the date, time and information for calling in to the conference call, as well as the statement that “Timelines for delivery and filing of any documents or submissions are set out in the Case Assessment Direction of May 16, 2011”. The applicant indicated that he did not make any inquiries regarding the reference to a May 16, 2011 Case Assessment Direction and that he concluded that the Notice of Summary Hearing was a notice regarding the Hearing into the merits of his Application. He requested an adjournment of the Summary Hearing. The respondent objected to his request.

5Both the CAD and the Notice of Summary Hearing were sent to the same address which was provided to the Tribunal by the Applicant. Further, during the course of the telephone conference call, I advised the applicant that I had a copy of a CANPAR Proof of Delivery document, indicating delivery of the CAD on May 17, 2011 to the address provided by the applicant and bearing a signature for receipt of the document. The applicant was unable to explain this.

6Given the fact that the CAD had been sent to the applicant at the address he provided to the Tribunal, and the fact that it had been received at that address, and given the fact that the applicant advised he was attending on the telephone conference call Hearing under the impression that he would be presenting the merits of his case as opposed to participating in a Summary Hearing, which has a narrower focus and would not require him to present the totality of what he would have had to present at a full hearing into the merits of his Application, I denied his request for an adjournment and the Summary Hearing proceeded.

DECISION

7For the reasons that follow I find that this matter has no reasonable chance of success and the Application should be dismissed.

ANALYSIS

Summary Hearings

8In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

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.

9In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

Application to the Facts

10As noted above, in his Application and supplementary letter, the applicant has indicated that he was dismissed from his employment, and that he believes the dismissal was wrongful, as he alleges that there was no proper investigation of allegations that he had been involved in altercations with co-workers. Additionally, he alleges that his termination was due to is race, colour and Sri Lankan background.

11At the Summary Hearing, the applicant repeated that a third party had fabricated a story about him fighting with his coworkers. He vehemently denied having fought with coworkers and stated that no one had observed such a fight. He alleged that the third party fabricated the story in order to receive a promotion. He submitted that he had been a good employee and that he had never been late for work. He submitted that he had never received a warning letter regarding fighting and that there was no incident report to document his participation in any fight. He alleged that the employer had not done a proper investigation into the charge that he had been fighting. He also stated that he is a member of a visible minority and that others would not have been treated in this way. He alleged that the individual with whom he was alleged to have fought was a member of the union and was not terminated, but that he was not yet a union member and that the respondent employer was favouring members of the union. He alleged that the respondent employer had failed to listen to his concerns, and he alleged that this was because he is a member of a visible minority.

12The respondent denied the allegation that no proper investigation had been done, and submitted that the real basis of the Application is the fact that the applicant disagreed with the respondent’s investigative measures. The respondent submitted that this does not constitute a breach of the Code. The respondent also submitted that the applicant had not provided any material facts which would arguably give rise to a finding that the Code had been breached.

13It is clear that the applicant is very troubled by what he believes to be a false accusation regarding fighting. The power of the Tribunal, however, is limited to dealing with applications alleging a violation of the Code, which prohibits discrimination on specific grounds. It does not have the power to deal with all claims of unfairness or all disputes between parties.

14The applicant has made bald assertions that his termination was due to his race, colour and Sri Lankan background. He has not indicated what evidence he would be able to call to indicate a link between the fact of his termination and his race, colour, place of origin or ethnic origin. He has also not indicated what evidence he would use to establish his allegation that the respondent conducted an inadequate investigation because of his race, colour, place of origin or ethnic origin, nor has he indicated what evidence he would use to establish his allegation that the respondent did not listen to his concerns because of his race, colour, place of origin or ethnic origin. .

15The applicant must be able to show that the respondent has treated him differently as compared to others based on his race, colour, place of origin and/or ethnic origin for his Application to be successful. He has not, however, been able to identify any evidence which would, if proven, establish a connection between the termination of his employment and/ or the alleged differential treatment of him by the respondent and his race, colour, place of origin and/or ethnic origin. Without such evidence, his Application cannot succeed.

16I find that there is no reasonable prospect that the Application will succeed and it is dismissed.