HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rakesh Kumar Applicant
-and-
ACCES Employment Services Respondents
DECISION
Adjudicator: Leslie Reaume Date: January 6, 2011 Citation: 2011 HRTO 38 Indexed as: Kumar v. ACCES Employment Services
Appearances
Rakesh Kumar, Self-represented Applicant
ACCES Employment Services, A. Adam, Counsel Respondent
INTRODUCTION
1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended, (the "Code") alleging discrimination on the basis of race, colour and ethnic origin. The applicant alleges that he was mistreated in his interactions with the respondent in his efforts to register for a program designed to assist internationally trained engineers.
2By Case Assessment Direction ("CAD") dated September 29, 2010, the Tribunal, on its own initiative, directed that the matter be scheduled for a Summary Hearing pursuant to Rule 19A of the Tribunal's Rules of Procedure. It stated as follows at para. 3:
In my opinion, the most appropriate procedure, given the issues raised in the Application, is to hold a summary hearing on whether the Application has a reasonable prospect of success. Accordingly, the Tribunal will schedule a ½ day summary hearing by teleconference. The applicant will make his argument first. He shall be prepared to explain how he can prove, on a balance of probabilities, that he experienced discrimination on the basis of race, colour and/or ethnic origin, and the evidence he would use to establish that.
3The CAD also directed the respondent to disclose to the applicant any records relating to the incidents in question that had not already been provided to the applicant. The Summary Hearing was held by teleconference on January 5, 2011.
4Following the CAD the parties filed a number of documents for consideration as part of the Summary Hearing. The applicant filed his ICAS Assessment report which establishes the Canadian equivalency of his engineering degrees (Bachelor and Masters degrees). The respondent filed a letter dated October 21, 2010 containing an incident report involving a complaint about the same circumstances which was made directly to the respondent by the applicant; a letter dated November 2, 2010 containing the documents from the applicant's file, and a letter dated December 23, 2010 attaching the cases the respondent intended to rely on.
ANALYSIS
Summary Hearings
5The summary hearing process is described in Rule 19A of the Tribunal's Rules of Procedure. The issue in a summary hearing 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 part of the Application will succeed.
6In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, 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.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
Application to the Facts
7The respondent is an organization, funded by the Ministry of Training, Colleges and Universities, to provide employment assistance services to newcomers to Canada. The Engineering Connections program, which the applicant attempted to participate in, is funded by the Ministry of Citizenship and Immigration and is designed to give engineers with international training an understanding of Canadian business culture and assist them in the activities associated with finding work in their field.
8The applicant is a landed immigrant. He states that on or about June 16, 2010, while he was searching the respondent's website, he discovered that an information session was being held that afternoon. He attempted to get to the session, but despite his best efforts he arrived too late to participate. The essence of the applicant's claim is that he was mistreated by one particular employee of the respondent organization who is described as making it difficult for the applicant to access the respondent's services.
9The applicant admits that on the day of the information session, he was permitted to register with the agency and meet with a councilor to discuss the respondent's services. He alleges that only because he persisted in asking about the Engineering Connections program, was he ultimately permitted to file an application. The applicant also undertook to provide two required documents by email: his resume and official assessment of his engineering credentials.
10The resume was received, however there were subsequent email exchanges between the applicant and the office of the respondent as both awaited confirmation of the assessment of the applicant's engineering credentials. Ultimately, the applicant was informed that he was not chosen for the program, at that time, because the assessment had not yet been received. According to the applicant, his assessment arrived the day after he received notice that he would not be registered in the program. The applicant states that he subsequently discovered an expedited route for securing the assessment of his credentials and he blames the respondent for not advising him of this fact earlier.
11When he was asked what evidence he had to support his allegations of discrimination, the applicant responded that he viewed himself as having been mistreated by the respondent and discouraged from filing an application. In his view, the person he interacted with was not very good at his job and he suspected the reason behind this treatment was nepotism and discrimination. The applicant admitted that he had no evidence beyond his own suspicions to support his allegations.
12Even if I accepted the applicant's allegations, there is no evidence to connect the applicant's experience to the prohibited grounds of race, colour and ethnic origin.
13Accordingly, there is no reasonable prospect that the Application will succeed and it is dismissed.
Dated at Toronto, this 6^th^ day of January, 2010.
"signed by"____________
Leslie Reaume
Vice-chair