Macyshyn v. OPGI Management Limited Partnership, 2011 HRTO 2154

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Zenon Macyshyn

Applicant

-and-

OPGI Management Limited Partnership

Respondent

INTERIM decision

Adjudicator: Naomi Overend

Date: December 8, 2011

Citation: 2011 HRTO 2154

Indexed as: Macyshyn v. OPGI Management Limited Partnership

APPEARANCES

Zenon Macyshyn, Applicant ) Self-represented

OPGI Management Limited Partnership, ) Robb A. Macpherson, Counsel

Respondent )

1A summary hearing was held 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. The Application was served on the respondent at the same time as the Case Assessment Direction notifying the parties of the summary hearing. The respondent was advised that it was not necessary to file a Response at that time.

2This Application arises from a job interview for a cleaner position with the respondent. The applicant alleges that he advised the person conducting the first round of interviews that he had learning disabilities. He asserts that this round of interviews went well, but at the end of the second round of interviews, he was asked a question that was unrelated to the job, and which he could not answer because of his disability/disabilities. He believes that his failure to get the job was the direct result of not answering this question.

3The applicant alleges that the question and reliance thereon in the hiring process discriminated against him on the basis of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended.

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 his position and added further particulars to his Application. He alleges that he had a successful first interview by Frank Puzo after he identified that he had disabilities that affected his “memory and mind use.” At the end of the first interview he alleges he was told that he would be recommended for the position to the general manager, who would also be interviewing him.

8According to the applicant, the second interview went well during the portion that related to the job. He alleges he was asked a number of scenerios and asked to explain his job experience in the area, all of which he was able to answer. At the end of the interview, however, he alleges the general manager asked him “Is the glass half empty or half full?”

9The applicant states that he paused after being asked that and then eventually said he was unable to answer the question. The applicant alleges that his inability to answer was because the question requires “too much thinking”, which he is unable to do because of his disability.

10During his oral submissions, I asked him to explain more precisely the nature of his disability, but he was only able to answer that it had to do with his memory and working memory. He said that he had gone through three days of testing and has the report from that. I asked if he was planning to call any expert testimony on this link between his claimed disability and his alleged inability to answer the question and he said he would if he was told he should.

11As a layperson, it is not entirely clear to me why a difficulty with memory would make the applicant unable to answer abstract questions (as opposed to concrete, job-related questions), but, in the absence of either the psycho-educational report or expert testimony, I cannot state with confidence that that applicant would be unable to establish the link.

12At this point that the applicant has satisfied me that he may be able to make a link between the events alleged to have occurred and the ground upon which he made the claim. I cannot find, therefore, that there is no reasonable prospect that his Application will succeed. The Tribunal will continue to process this Application.

13The respondent, at the direction of the Tribunal, has not filed a Response, so it is not clear what its position might be in terms of some of the relevant facts, such as what questions were asked, what answers the applicant gave, why he was the unsuccessful candidate, whether he advised the respondent personnel at his interview that he had learning disabilities and, if so, what they understood those learning disabilities to be.

14The respondent is therefore directed to file a Response within 42 days of the date of this Interim Decision in which it sets out its response to the brief factual allegations made by the applicant and addresses the issues set out in paragraph 13 above.

15I am not seized of this matter.