HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Richard Banigan Applicant
-and-
Sheridan College Institute of Technology Respondent
DECISION
Adjudicator: Jay Sengupta
Indexed as: Banigan v. Sheridan College Institute of Technology
APPEARANCES
Richard Banigan, Applicant ) On His Own Behalf
Sheridan College Institute of Technology, ) Brenda Bowlby, Counsel Respondent )
1This is an Application filed 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 discrimination in respect of employment on the basis of age and association with a person identified by a Code ground and reprisal.
2Upon receipt of the Application, the Tribunal directed that the respondents provide a brief explanation of why the applicant did not receive interviews for the three positions that he says he applied for in his Application. A summary hearing was also scheduled. The purpose of the summary hearing was to hear the parties’ submissions on two question:
(a) whether some or all of the allegations in the Application are outside the jurisdiction of this Tribunal pursuant to s.53(8) of the Code, and,
(b) with respect to the matters found to be within the jurisdiction of the Tribunal, whether the Application should be dismissed as having no reasonable prospect of success.
3A summary hearing teleconference call was scheduled for November 21, 2011. The teleconference was converted to an in person hearing at the request of the applicant.
4For the reasons that follow, this Application is dismissed.
ANALYSIS AND DECISION
5Section 53(8) of the Code reads as follows:
No application, other than an application under subsection (3) or (5), may be made to the Tribunal if the subject-matter of the application is the same or substantially the same as the subject-matter of a complaint that was filed with the Commission under the old Part IV.
6Rule 19A.1 reads 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.
7In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 7-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:
A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.
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.
8The applicant alleges that he experienced discrimination in respect of employment on the basis of age, association with a person identified by a Code protected ground, and reprisal. Specifically, he alleges that he was not interviewed for three positions that he applied for with the respondent college for discriminatory or retaliatory reasons.
9In his oral submissions, the applicant explained that his claim of discrimination against the respondent college arose out of events that began in 1984. He described, at some length, how his employment with the college ended, his attempts to get the college to reverse a termination decision he clearly disagreed with, and his subsequent filing of a complaint with the Ontario Human Rights Commission on the ground of association with a person or persons identified by a Code ground, specifically citing the fact that his wife and several members of his family are black.
10When asked to address the question of whether some of the issues raised in this Application were outside the Tribunal’s jurisdiction by virtue of s. 53(8), the applicant said that even though events that took place in the period between 1984 and the job applications dating from 2009 and 2010 that were referenced in the present Application have been “put aside and ignored”, it does not mean that the events did not happen.
11The respondent points out that the applicant brought a number of historical issues before the Tribunal under the Code’s transitional provisions. The Tribunal dismissed parts of Application TR-0467-09 and the remainder of the Application was withdrawn by the applicant.
12Accordingly, any portions of this Application that deal with matters that were the same or substantially the same as the subject matter of the complaints at the Commission and, subsequently, Application TR-0467-09, will not be dealt with as part of this Application as they fall outside the jurisdiction of the Tribunal by virtue of s. 53(8).
13With respect to the balance of the Application, although the applicant was given an opportunity to do so, he was unable to point to any evidence that he could present that would prove a link between the respondent’s actions, the grounds cited in the Application, or an intention to reprise.
14The respondent provided written and oral submissions on its handling of the three positions for which the applicant submitted applications for employment:
(a) For the position of Dean of the School of Community and Liberal Studies, the applicant submitted his employment application when the respondent had concluded its first round of interviews and had embarked on a second round from select candidates emerging from the first set of interviews. The college did not seek out additional candidates after the first round of interviews.
(b) For the position of Dean of the School of Arts, Animation and Design, the applicant was not one of five applicants selected for interviews because, like six other applicants, he did not meet the minimum required qualification of having recent administrative experience in a post-secondary institution that focused on the arts.
(c) For the position of Professor of English and Communications, a listed requirement for the position was that the candidate had to have a Masters degree in English. As a person without that minimum required qualification, the applicant was screened out of the process.
15The applicant, for his part, merely reiterated his position that the link is obvious. He points out that he is 69 years of age, his wife is black and he has filed human rights complaints about the respondent. He believes that he is highly qualified and suggests, in fact, that he is better qualified than most people working in the college sector.
16The applicant indicated that it is remarkable that the only job he has managed to get in the college sector since 1985 is a fixed term contract with Humber College. He holds strongly to the view that his applications for employment have been consistently ignored by the respondent college and other institutions in the sector since 1985 for reasons relating to Code grounds. In fact, he suggested that he would continue to apply for employment and every time his application for employment did not result in an interview being granted, he would file a human rights application until “justice was done”.
17While these may be strongly held views that the applicant has adhered to over a number of decades, his assertions alone, in the absence of any type of evidence, do not establish a link between the respondent’s actions, the grounds of the Code cited by the applicant, or an intention on the part of the respondent to reprise against the applicant.
18In my view, there is no reasonable prospect that the applicant will succeed in establishing a breach of the Code in respect of his allegations. Accordingly, the Application is dismissed.
Dated at Toronto this 2nd day of December, 2011.
”signed by”____________
Jay Sengupta
Vice-chair