Barreto v. Gap Inc., 2011 HRTO 403

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adolfo Barreto

Applicant

-and-

Gap Inc. and Collin Kennedy

Respondents

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: February 24, 2011

Citation: 2011 HRTO 403

Indexed as: Barreto v. Gap

APPEARANCES

Adolfo Barreto, Applicant ) Karla Barreto, Agent

Gap Inc. and ) Meighan Ferris-Miles, Counsel

Collin Kennedy, Respondents )

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 with respect to employment on the basis of age. The applicant alleges that he was taken advantage of during the course of his dismissal by the respondents because of his age.

2There is little disagreement about the facts. The applicant was a sale associate for the respondent company. He was confronted by Mr. Kennedy, a Loss Prevention Officer, with allegations that he had misused his employee discount card. The applicant admitted that he had misused the card, signed a repayment agreement for approximately $3000.00 and was dismissed. The applicant alleges that he was pressured to make the admissions orally and in writing and to sign a repayment agreement. He alleges that he made several requests to Mr. Kennedy that he have an opportunity to speak with his parents. The respondent argues that the applicant was 18 years of age at the time, the meeting was conducted appropriately and the applicant signed the repayment agreement voluntarily.

3By Case Assessment Direction dated October 18, 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 age, and the evidence he would use to establish that.

4The Case Assessment Direction also directed the parties to deliver to each other and file with Tribunal copies of any further documents or cases they intend to rely upon no later than seven days prior to the teleconference. The Summary Hearing was held by teleconference on February 23, 2011.

5The applicant did not file material other than the Application. The respondents were not required to file a response; however, they filed submissions on February 17, 2011 for use at the Summary Hearing. The applicant participated on the call along with his mother, Karla Baretto. The respondents appeared through counsel.

ANALYSIS

Summary Hearings

6The 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.

7In 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

8The question here is whether the applicant has no reasonable prospect of demonstrating that his age was a factor in either the termination of employment or the process by which the termination was carried out.

9The applicant submits he will testify to the following: (1) he believed he was being pressured by Mr. Kennedy to make admissions and sign a repayment agreement during the meeting because of his youth and inexperience; (2) he was living at home at the time and requested the opportunity to speak with his parents before he signed the agreement admitting to serious allegations of theft; (3) Mr. Kennedy implied that if he did not sign the agreement during the meeting, there was a possibility that further investigation would result in the applicant having to repay more money; and (4) he was pressured by Mr. Kennedy to include a paragraph in the statement confirming the voluntary nature of the statement he was making.

10In my view, proof of these allegations may establish a link between the applicant’s age and his dismissal.

11The respondents have not had an opportunity to fully respond to the allegations although they indicate that their witnesses will dispute this evidence. Issues of credibility should be resolved by the vice-chair or member hearing the case on the merits. In addition, most of the evidence, which relates to the decision to terminate the applicant’s employment, and how the termination ought to be carried out, is in the possession of the respondents.

12I cannot find at this stage that the application has no reasonable prospect of success. Accordingly, the Application will proceed. The respondents have 35 days from the date of this Interim Decision to file their Response(s).

13I am not seized of this matter.