Nabil Diab v. Ontario Lottery and Gaming Corporation, 2011 HRTO 2093

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nabil Diab

Applicant

-and-

Ontario Lottery and Gaming Corporation

Respondent

Decision

Adjudicator: Naomi Overend

Date: November 18, 2011

Indexed as: 2011 HRTO 2093

APPEARANCES

Nabil Diab, Applicant ) Self-represented )

Ontario Lottery and Gaming Corporation, ) Andrew Zabrovsky, Counsel

Respondent )

1The applicant filed an Application with the Tribunal alleging discrimination in employment on the basis of race, colour, place of origin, ethnic origin and age, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). His Application alleges that the failure of the respondent to hire the applicant for any of the six jobs for which he applied was discriminatory.

2The applicant was unable to provide adequate particulars for five of the six job competitions, and the Summary Hearing only concerned itself with the competition for Vice President, Policy, Planning & Continuous Improvement.

3Following receipt of the Application, the respondent filed a Request for Order During Proceedings (Form 10), in which it requested further particulars and setting out its objection to the absence of any information on which it could respond. The Case Assessment Direction (CAD) from that Request noted that the Tribunal would give consideration to whether a summary hearing was appropriate once the respondent filed its Response and the applicant was afforded the right to file a Reply.

4The Tribunal reviewed the pleadings and on September 16, 2010 issued a second CAD in which it directed that the matter be scheduled for a Summary Hearing, pursuant to Rule 19A of the Tribunal’s Rules of Procedure. This Rule reads, in part, 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.

5As part of this second CAD, the Tribunal directed the respondent to provide to the applicant “any written evaluation or scoring of his application” (if this was done) for the position at issue. In response to this direction, the respondent advised that there was no written evaluation or scoring done on the applicant’s application or “regarding the applications of the numerous other applicants who were not contacted for an interview.” More recently, the respondent disclosed there were 187 applicants for that position.

6Prior to the teleconference, the applicant filed a Request for Order During Proceedings, in which he requested production of the resume of the person who was the successful candidate. The respondent did not provide the resume, which it said contained “personal information” as that term is defined in the Freedom of Information and Protection of Privacy Act, R.S.O. 1990, Ch. F.31, but did provide him with a summary of the information contained in that individual’s resume.

7The applicant responded to the respondent’s Response to the Request for Order by indicating that he believed the Tribunal should commence a “thorough investigation” of the information contained in the summary of the successful applicant’s resume” because it suggested that this candidate started his career at too high a level. He appeared to be asking for further information, not just concerning this individual, but the short-listed candidates as well, but did not put this in a Request for Order, and did not pursue this.

8Shortly before the Summary Hearing, the respondent provided a copy of the applicant’s application package (i.e., his resume and covering letter) for the job competition, as well as a copy of the job posting for the position at issue. The applicant did not object to this information being included as part of the materials before me and I accordingly accept that these are accurate copies of the relevant documents.

9The Summary hearing was held on November 3, 2011, via teleconference. At the teleconference, the applicant asked to tape record the proceedings. The respondent objected to this occurring and before I had a chance to rule on this issue, the applicant withdrew his request.

DECISION

10The Application does not have a reasonable prospect of success and is dismissed.

ANALYSIS

11The issue that Rule 19A directs the Tribunal to determine is whether the Application has “a reasonable prospect of success.” In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal provided the following guidance at para 8 and 9:

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.

12In both his later written submissions and in his oral submissions at the Summary Hearing, the applicant posited that either he was the victim of discrimination or, in the alternative, that the respondent was only interested in hiring its friends. The applicant bases the alternative theory on the absence of what he calls an “official screening procedure.” He, in turn, bases the conclusion that there was no official screening procedure on the fact that the respondent advised him that it did not score the applications it received.

13With respect to the applicant’s alternative theory, it is not necessary for me to determine whether the applicant’s logic and conclusions are sound, but rather whether this alternative theory, even if proven, could constitute discrimination contrary to the Code. The applicant appears to be arguing that the respondent was sloppy or unprofessional in its evaluation of the applications because it already had someone in mind for the position. Even if the applicant was able to prove this at a hearing, this allegation does not amount to a violation of the Code and would have no prospect of success.

14On the other hand, the applicant’s primary allegation – that, by reason of his race, colour, place of origin, ethnic origin (which he self-identifies as “Middle Eastern”) and his age (over 50) his application for the position was disregarded – would amount to a violation of the Code if proven. The question then is whether the applicant has a reasonable prospect of success with respect to proving the link between the grounds alleged and the event in question.

15In his Application, the applicant states that he felt there was discrimination because he is a Ph.D. candidate in Business Administration and had over 30 years experience in business. In other words, he felt he was amply qualified for the position, yet did not get invited for an interview.

16The applicant makes no specific link in his Application to why he felt his Middle-Eastern background was a factor in the respondent’s decision not to offer him an interview, but does state with respect to age: “The perceived notion that people over 50 are not capable or enthusiastic enough to work well. I can’t see why else I wasn’t hired.”

17The respondent takes issue with the applicant’s assertion that he was fully qualified for the position. It states that the applicant did not have the requisite “university/graduate degree in business or related discipline” because the applicant was (and continues to be) only a candidate for a business degree at the time he applied. The applicant points to the fact that he has an undergraduate degree in computer science and mathematical statistics, which he states is a “related discipline.”

18It is not necessary for me to determine whether the respondent unfairly excluded him from consideration because it did not perceive the applicant’s undergraduate degree to be in a related discipline. As this Tribunal points out in Abdul v. York University, 2011 HRTO 1851, at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

19The applicant further relies on the fact that he has over 30 years related experience, but that much of it relates to overseas experience (in particular, in the Middle-East). Assuming for the moment that he is correct in stating that this experience was related to the criteria set out in the job posting, the oldest date on his resume is 1990. It would simply not be possible to ascertain from reading his application package that he, in fact, had over 30 years experience. At the time, what was apparent from the resume is that the applicant had 20 + years working experience.

20Viewed as a whole, the applicant’s evidence concerning this competition does not, on its face, suggest that the respondent’s decision to not interview him was out of the ordinary or suspect. That is, there is nothing about the alleged facts of this particular competition that requires the respondent to provide an explanation for its decision.

21Turning from the specific to the general, the applicant points to a study of online job postings conducted by researchers at the University of British Columbia (which he incorrectly attributes to the University of Toronto). This study found that applicants with English names were more likely to be interviewed than candidates with Chinese, Indian or Pakistani names when resumes with identical experience were submitted.

22Leaving aside the fact that this study did not deal with persons with Middle-Eastern names, the problem for the applicant is that it only shows a propensity among employers in general (the specific employers are not identified) and not the respondent. In the absence of anything specific about the applicability of this study to the respondent, I do not see how its findings relate to whether this applicant was discriminated against with respect to this employer. That is, it cannot make the link where there is otherwise no evidence of a link.

23Finally, with respect to the applicant’s age, the applicant is hampered in making this assertion by the absence of any information identifying his age on the application package sent to the respondent. He does not set out his date of birth or the date when he received his degrees. Moreover, his professional experience shows that he worked between 1990-2005 for a company and then set up a consulting company between 2005 and the present. A person carefully reading his resume would see that he worked for Unisys Computers before that, but there is no timeframe offered. There is nothing in his resume to indicate dates such that his age might be discerned.

24Moreover, the respondent advises that the successful applicant was 50. I agree with the respondent’s submission that the applicant’s assertion that age must have been a factor is nothing more than a bald assertion.

25In light of the failure of the applicant to set out evidence he proposes calling (should this matter proceed to a hearing) on which the Tribunal might be able to connect his allegations with the prohibited grounds of race, colour, ethnic origin, place of origin or age, there is no reasonable prospect that the Application will succeed. The Application is, accordingly, dismissed.