DeFazio v. Ottawa (City), 2011 HRTO 440

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nicholas DeFazio

Applicant

-and-

City of Ottawa

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: March 1, 2011

Citation: 2011 HRTO 440

Indexed as: DeFazio v. Ottawa (City)

APPEARANCES

Nicholas DeFazio, Applicant ) Patrick DeFazio, Representative

City of Ottawa, Respondent ) Beth Turner, Counsel

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 names the City of Ottawa as the respondent. He alleges discrimination in respect of employment on the basis of ethnic origin.

2The allegations concern an application for employment made by the applicant for a job as a part-time dispatcher at the Ottawa Fire Department. He alleges that because his first language is English, he received differential treatment and was not hired for the position.

3The respondent municipality seeks dismissal of the Application on the basis that it is outside the jurisdiction of the Tribunal. It bases its request on the argument that language is not a protected ground under the Code and that the Application does not disclose a prima facie allegation of a breach related to the ground identified in the Application, namely ethnic origin. The applicant opposes the Request to dismiss.

4A half day summary hearing was held to hear the submissions of the parties on whether the allegations in the Application raise an arguable claim of discrimination under the Code on the basis of ethnic origin. The applicant was represented by his grandfather and the respondent municipality by counsel.

5For the reasons that follow, the Application is dismissed

6The Tribunal’s jurisdiction is based on the Code, which prohibits discrimination in respect of employment on the basis of grounds listed in the Code. The Tribunal does not have a general power to inquire into claims of unfairness outside areas or grounds identified in the Code.

7In this Application, the applicant alleges that he experienced discrimination on the basis of ethnic origin. The applicant states that his ancestry is English, as is his mother tongue. His claim of discrimination is based on his allegation that French speaking candidates for the position for which he applied were treated differently, in that not all French speaking candidates were required to take an English language competency test, while he, as an English speaking candidate, was required to take a French language competency test.

8The arguments raised at the hearing reinforced the same themes raised in the Application documents.

9The respondent argues, and I accept, that the Application does not disclose an arguable claim of discrimination in respect of employment on the basis of ethnic origin or any other Code ground.

10The allegations raised by the applicant can more accurately be characterized as complaints about unfair treatment as opposed to a violation of the Code. In my view, the applicant’s assertion that because his first language is English, he was required to take a language competency test, focuses not on his ethnic origin, but rather on his ability to speak a language required for the adequate performance of the job being applied for.

11The respondent cites the decision of the Tribunal in Taylor v. Oraclepoll Research Ltd., 2009 HRTO 2089, in which the Tribunal held that a person’s failure to get a job because of an inability to speak a particular language was not a matter within the Tribunal’s jurisdiction unless a Code ground was also engaged.

12Language can have a connection to ethnic origin or place of origin or ancestry and in certain circumstances can found a Code complaint. See Espinoza v. Coldmatic Refrigeration of Canada (March 31, 1995), unreported (Ont. Bd. of Inq. and Gajecki v. Surrey School District (No. 36) (1989) 1989 CanLII 9057 (BC HRT), 11 C.H.R.R. D/326 (B.C.C.H.R.). The Ontario Human Rights Commission’s Policy on Discrimination and Language provides examples from the caselaw in this area as follows:

A teacher, originally from Poland, was on a school board's substitute teacher's list from which individuals are selected for short-term assignments. A period of time went by when he was not selected from this list for temporary assignments. The teacher learned that a note had been attached to his file which said that he did not speak English. The teacher filed a human rights application, and at a hearing before the Tribunal, the respondent indicated that the note should have stated that the complainant spoke English with an "accent" and therefore should not be assigned to substitute for teachers in English or Social Studies classes. The Tribunal ruled that the teacher was discriminated against because of his accent which is directly related to his ancestry or place of origin.

There can also be situations in which the issue of fluency in a language or a person's accent in speaking a particular language, can be used to mask discrimination based on race

13However, in the circumstances of this Application, the applicant has not explained the link between the requirement that he take a test to establish his ability to communicate in French and his ethnic origin. As there is no link between the allegations and the ground of ethnic origin identified in the Application, the Application is dismissed.

14On October 13, 2010, the applicant filed a Request to Amend his Application to include an allegation of reprisal concerning a separate, subsequent job competition. In the event that the applicant wishes to pursue the allegations of reprisal, it is open to him to file a separate Application.