Tan Nguyen v. Essex-Windsor EMS (Corp. of the County of Essex), 2011 HRTO 2318

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tan Nguyen

Applicant

-and-

Essex-Windsor EMS (Corp. of the County of Essex)

Respondent

decision

Adjudicator: Keith Brennenstuhl

Date: December 28, 2011

Citation: 2011 HRTO 2318

Indexed as: Nguyen v. Essex-Windsor EMS (Corp. of the County of Essex)

1The applicant alleges that the respondent discriminated against him contrary to the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”) on the basis of disability, place of origin and ethnic origin in respect of goods, services or facilities as well as reprisal.

BACKGROUND

2The respondent provides pre-hospital emergency care for patients in the Essex-Windsor area. It employs approximately 155 full-time and 86 part-time paramedics who are represented by the Canadian Union of Public Employees.

3St. Clair College (the “College”) is an unrelated school which provides an educational two year course for students to obtain a Paramedic Program Diploma. Some of the respondent’s paramedic employees teach at the College during their time-off and have an employment contract directly with the College.

4The College has an agreement with the respondents which permits students to ride along with two paramedics so that the students can obtain practical experience (the “Practicum”). This occurs during the last three terms of the course for a total of 400 hours. During these Practicums students are permitted to provide patient care under the supervision of the paramedics who act as preceptors.

5Prior to these Practicums students are required to sign a “Student Letter of Agreement” which stipulates that the preceptors may complete a detailed survey that will not be shared with the College or the student. The respondent indicates that it utilizes these surveys to determine whether the student should be considered for employment with the respondent.

6In June 2009 the respondent decided that it would hire 30 part-time paramedics. The applicant expressed his interest in a part time position having graduated from the Paramedic program with the highest academic marks in his class.

7The respondent decided it would not consider offering the Applicant employment. According to the respondent, notwithstanding his superior academic marks, based on the applicant’s Practicum survey, the applicant was not able to apply his skills in the field to provide timely and proper patient care.

CASE ASSESSMENT DIRECTION

8By way of a Case Assessment Direction dated October, 24, 2011, (“CAD”) I indicated to the parties that on November 15, 2011, the first day of the hearing, I would hear the applicant’s evidence only, that the respondent would be given the opportunity to cross-examine the applicant with a further opportunity for the applicant to provide additional testimony in reply evidence. I also indicated that at the conclusion of the applicant’s evidence, I would be requesting the parties to make submissions based solely on the applicant’s evidence as to whether the Application has a reasonable prospect of success. As for the concept of reasonable prospect of success I referred the parties to the Tribunal’s Decision in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 and I provided copies of that Decision to the parties.

DECISION

9Having reviewed the materials filed by the parties, including witness statements, having heard the applicant’s evidence including the respondent’s cross-examination of the applicant as well as his reply evidence and having heard argument from the parties, I concluded that there was no reasonable prospect that the applicant could prove discrimination or reprisal within the meaning of the Code and accordingly I dismissed the Application with written reasons to follow.

The Application

10The applicant identifies as Vietnamese and indicates that he speaks with a stutter. I would observe that his stutter is almost imperceptible. In any event, for the applicant to succeed in this Application, he must establish, on a balance of probabilities, that his Vietnamese heritage and/or his stuttering was a factor in the respondent’s actions resulting in differential treatment and/or the respondent intended to reprise against him for asserting Code rights. For the purpose of this decision I will assume, without deciding, that the applicant’s stutter may amount to a disability under the Code.

11The applicant alleges that during class at the College on November 18, 2008, one of his instructors, who was a paramedic, made some disparaging remarks. By way of example the instructor allegedly remarked: “There’s a person in the class who is degrading our program”; “Word gets around and this student won’t get a job in the vicinity”; “Can you believe that he put his feet with no shoes up on a couch in the base lounge”; “Can you fuckin believe there’s a person in this class who doesn’t know how to wash an ambulance”. The applicant asserts that these remarks were directed at him.

12Even if these types of remarks were uttered by the instructor, given that the class had over 20 students and given that the comments do not identify the applicant, it is not apparent that it was the applicant who was being targeted by the remarks. Furthermore, even if these remarks were directed at the applicant as he asserts there is no evidence that the applicant’s Vietnamese heritage or his stuttering or both was a factor in the instructor’s actions. Moreover, it is my view, that the respondent cannot be held responsible for matters that transpired during class at the College even if the instructor was also a paramedic employed by the respondent.

13The applicant alleges that in early November 2008 a certain paramedic referred to him as a “retard” and a “dumb fuck”. The applicant did not himself hear these remarks. It was reported to the applicant by a fellow student that these remarks were made by a paramedic in the presence of the fellow student. The applicant did not identify who this paramedic was. I am not inclined to give this evidence any weight not only because it is hearsay and cannot be tested through cross-examination as the originator of the remarks is unknown to the applicant, but because the applicant cannot provide any context for these remarks or other particulars that would suggest that these remarks were somehow inspired by the applicant’s heritage or his stutter.

14The applicant alleges that several paramedics when meeting the applicant for the first time greeted him with the words “I have heard all about you.” The applicant did not identify these paramedics. Again, he provided no context for this type of greeting although he looked on it negatively. The applicant could not demonstrate how this type of greeting was linked to either his heritage or his stutter.

15The applicant alleges that in April, 2009 he was referred to as an “asshole”. In the narrative portion of his application the applicant writes: “I was told by a fellow student that a certain professional paramedic of considerable influence had referred to me as an asshole to another professional paramedic. The professional paramedic who heard that degrading comment happened to be a friend, though, of a student I know and had told the student about the comment concerning me.” Even if one were to discount the fact that this is hearsay evidence, I’m not satisfied that referring to someone as an “asshole”, in the absence of any context, is a breach of the Code.

16The applicant alleges that in November 2008 he was referred to as mentally retarded. In his narrative the applicant writes: “In November of 2008, a friend of mine was volunteering in Amherstburg to help the paramedics there. While there, one of the paramedics asked my friend if I was mentally retarded. At that time, Amherstburg had not amalgamated with the Essex-Windsor EMS.” Again there are no particulars. The applicant was not able to identify the paramedic who allegedly asked the question. Moreover, in my view, the respondent cannot be held responsible for the actions of a paramedic employed by another organization.

17The applicant alleges that in July 2009 he was yet again referred to as mentally retarded. His narrative reads in part: “…a paramedic graduate friend of mine was at a bar in Amherstburg talking to the bartender who was his friend. An Essex-Windsor EMS paramedic working in Amherstburg who was also in the bar approached my friend and asked him in front of the bartender if I was mentally retarded.” As with the other incidents, this allegation is vague, lacking in detail and is without context. The applicant provided no evidence linking the EMS paramedic’s comment to the applicant’s heritage or his stutter.

18The applicant alleges that two “professional paramedics” tried to influence the paramedics charged with evaluating the applicant’s performance during his Practicums. The applicant states in his narrative: “The two professional female paramedics then began to prejudice the paramedics who were in charge of fairly evaluating me by telling them that I was a liar, had no integrity and was slow. I could not hear any of this conversation myself, being in the back of the ambulance, but when the two female paramedics departed, Nate told me exactly what they had to say about me…”. Whether these alleged remarks could be linked to the applicant’s heritage or his stutter is moot; the evidence is simply not reliable. The applicant did not propose to call Nate as a witness to confirm what he had allegedly heard, which on its own compels me to draw a negative inference as to the reliability of the evidence. More striking, however, is the fact that the applicant testified, quite emphatically, that while in the back of the ambulance he in fact heard the impugned remarks himself and that Nate was not the instrument through which he learned of the remarks. Given the serious contradiction in this evidence, I give it no credence.

19Although not referred to in his narrative, the applicant did allege in response to a later question in his Application that he was referred to as an “Asian” which presumably the applicant found derogatory. The applicant, however, provided no context for this remark, did not identify when or where this remark was made or who made it. During his testimony the applicant had every opportunity to elaborate on this allegation but the applicant failed to even mention it. In my view, the evidence is insufficient to support the allegation that the applicant was addressed as an “Asian”.

20The applicant alleged reprisal. In my earlier CAD I indicated that a successful claim of reprisal requires an applicant to show that it was the intention of a respondent to take actions in reprisal for asserting Code rights. The applicant did not address the issue of reprisal in his testimony. He failed to provide any evidence relating to reprisal or provide any evidence that would be available to him to establish reprisal. Under these circumstances I find that there is not a reasonable prospect that the applicant can successfully establish reprisal.

21The applicant’s ultimate complaint is the fact that he was not considered for employment by the respondent once he finished his course at the College even though he graduated at the top of his class. The applicant asks me to infer, based on the poisoned environment that he had allegedly endured during his studies and his Practicums that the respondent’s decision not to consider him for employment was related at least in part to his stutter and his Vietnamese heritage.

22I commend the applicant for the hard work he put into his studies and for his high academic achievement. Furthermore, I appreciate the expectations that he held on completion of his course with respect to employment with the respondent. However, the applicant has failed to demonstrate on a balance of probabilities that the decision to not consider him for employment was in any way related to his heritage or his stutter. The evidence that he has put forward simply does not hold up to scrutiny for the reasons I have provided.

23The evidence is that the respondent’s decision not to consider the applicant for employment was based on the applicant’s Practicum survey results. These results indicated, among other things, that the applicant was not able to apply his skills in the field to provide timely and proper patient care. The applicant has not provided any evidence that links the respondent’s decision to the applicant’s stutter or his ethnic origin.

The Applicant’s Witnesses

24The applicant proposed to call a number of witnesses to testify on his behalf and he filed will say statements for each of them. I did not find it necessary to hear from any of these witnesses given their proposed evidence as set out in their respective will say statements. Typically, at a summary hearing, the question for the Tribunal is whether there is or may be evidence capable of supporting a claim under the Code. Evidence itself is not generally taken at a summary hearing, but rather the nature of the proposed evidence is evaluated to determine if it would be capable of establishing a reasonable prospect of the application succeeding. In other cases when a general evaluation of the evidence that has been called and is proposed to be called makes it clear that the Application has no reasonable prospect of success; the Application should be dismissed. See Pellerin, above, at paras 18 and 20.

25The salient witness was to be the applicant’s friend, J. L., who was the applicant’s classmate at the College. Like the applicant, on graduation J. L. sought employment with the respondent. The respondent did not hire him.

26Except for one instance, it was J. L. who allegedly heard derogatory remarks or questions about the applicant and it was J. L. who relayed this information to the applicant. This information, in large part, became the basis of the Application.

27In reviewing J. L’s will say statement, I noted that his proposed evidence, rather than supporting the applicant’s claim, contradicted key aspects of the applicant’s claim. For example, the applicant’s evidence was that “a certain paramedic” called him a retard and dumb fuck and that J. L. would be able to identify this particular paramedic. However, J. L‘s statement indicates that he “will verify he heard, Tan referred to as a retard and dumb fuck by paramedics” (emphasis mine). There is no indication that J. L. could or would identify the “certain paramedic” or, indeed, the “paramedics” he referred to in his statement.

28The applicant testified that a “professional paramedic” called him an “asshole” and that J. L. would be able to identify this person. When pressed to name this person, the applicant identified a female named D. L. In fact, it would appear that J. L. does not know who called the applicant an asshole. J. L’s statement reads that he “knows who heard a paramedic call Tan an asshole and will verify his name.” It would appear therefore that J. L. could not identify the person who allegedly called the applicant an asshole but rather could only verify the person who overheard the comment. Under these circumstances it is not feasible that the applicant could know or could identify the person who allegedly called him asshole.

29The applicant testified that J. L., while in a bar in Amherstburg, was asked by an Amherstburg EMS employee whether the applicant was mentally retarded. J. L‘s statement, however, indicates that while in the Amherstburg bar he overheard a Essex-Windsor EMS employee describe the applicant as mentally retarded (emphasis mine). Again the evidence proposed to be given by J. L. was not consistent with the applicant’s testimony and undermines the applicant’s claim.

30Notwithstanding the problems and inconsistencies I have identified in J. L.’s proposed testimony, even if this testimony had been able to establish that some of the alleged derogatory comments had been made, there is nothing at all to suggest that the testimony would have or could have established a connection between the alleged comments and any Code protected grounds.

31The proposed evidence of the applicant’s other witnesses as outlined in their respective witness statements was extremely vague, lacked any particulars and in many cases would only serve to confirm matters not in contention, such, as the fact that the applicant stutters. In some instances the evidence was to be that the witness heard derogatory remarks about the applicant absent any details as to what those remarks were, who made them, when they were made and the context in which they were made. In other cases the proposed evidence lacked any evidentiary value in that it consisted of rumours and innuendos. The proposed evidence was often irrelevant to the issues before me and related to matters outside the jurisdiction of the Tribunal.

32For these reasons the Application is dismissed as having no reasonable prospect of success.