Erica McMaster v. Ubisoft Toronto, 2011 HRTO 627

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Erica McMaster

Applicant

-and-

Ubisoft Toronto

Respondent

DECISION

Adjudicator: Maureen Doyle

Date: March 30, 2011

Citation: 2011 HRTO 627

Indexed as: McMaster v. Ubisoft Toronto

APPEARANCES

Erica McMaster, Applicant ) Self-represented

Ubisoft Toronto, Respondent ) Hadiya Roderique, Counsel

1This is an Application filed on March 24, 2010, 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 that the respondent discriminated against her in employment on the basis of family status.

2Following a review of the Application, and a request by the respondent that a Summary Hearing be held pursuant to Rule 19A of the Tribunal’s Rules of Procedure, a Case Assessment Direction (“CAD”) was issued on January 26, 2011, directing that a Summary Hearing take place. The Summary Hearing was held on March 28, 2011.

DECISION

3For the reasons that follow, I find that this matter has no reasonable prospect of success.

ANALYSIS

Summary Hearings

4In a summary hearing, the issue 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 a part thereof will succeed. This is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

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.

5In Dabic v. Windsor Police Service, 2010 HRTO 1994, 2010 HRTO 1994 (‘Dabic”), at paras. 8 and 9, 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.

Application to the Facts

6The applicant states that she has completed studies in digital animation and that she was seeking an internship opportunity. She read a newspaper article about the respondent’s business, which she says indicated that they had received a government grant to start up their business in Toronto. She states that the newspaper article indicated that the grant was given with a view to creating jobs for qualified workers in Ontario. Upon reading the article, she sent in an application, consisting of a resume and portfolio, seeking an internship opportunity. She confirmed that in sending in her application, she was not responding to a job advertisement.

7She alleges that her mother called the respondent company to check the status of her application and spoke with someone from the company. She alleges that her mother advised the person that her daughter had been to college and that this had entailed great sacrifices as they did not have significant financial resources, and that it was difficult to find an internship. The applicant alleges that her mother advised that the mother was in receipt of Ontario Disability Support Plan (“ODSP”) benefits and that the mother was disabled. She alleges that the individual at the respondent company told her mother that the applicant was “culturally preconditioned” to fail. She submits that this was an assumption made by the individual at the respondent company due to the fact that she is poor. She states that it is unfair because an assumption has been made about her without even giving her a chance.

8In explaining how she feels the respondent has violated the Code, she states that it is not because of her status in a parent-child relationship, but rather because she has no income of her own and her family is poor.

9The respondent argues that this matter falls into both categories of cases which, according to Dabic, may be dismissed at a Summary Hearing. First, the respondent states that if all of the applicant’s allegations are true, what she says cannot be considered to amount to a Code violation. Second, she submits that there is no reasonable prospect that the applicant will be able to prove, on a balance of probabilities, that her Code rights were violated as it is unlikely that the applicant’s evidence will show a link between the event and the alleged prohibited ground of family status.

10The respondent cites Rafiq v. Scotia Capital, 2010 HRTO 697, Antropov v. Toronto District School Board, 2010 HRTO 305, and Tahna v. Bombardier Aerospace Regional Aircraft, 2010 HRTO 1425, and submits that the evidence the applicant wishes to call will be insufficient to establish that she was a victim of hiring on the basis of family status. Also, citing the test for establishing discrimination in a hiring decision from Shakes v. Rex Pak Limited (1981), 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001 (Ont. Bd. Inq.), the respondent submits that subsumed into the question of whether the applicant was qualified for the position is the question of whether or not there was employment available. In this case, there is no dispute that the applicant was not responding to an advertisement, but rather was “cold calling” the respondent after having seen a newspaper article. There were no internship positions advertised or available and therefore, the applicant will be unable to demonstrate that another individual lacking the applicant’s distinguishing feature was given an internship over the applicant. The respondent submits, therefore, that the alleged conduct bears no relationship to any actual employment opportunity.

11The respondent also cites Garcia v. H.J. Heinz Company, 2010 HRTO 990, and submits that it has provided credible reasoning for not hiring the applicant, namely that no interns were being hired at the time.

12The respondent also takes the position that there is no reasonable prospect of success as the applicant cannot demonstrate a link between the respondent’s failure to hire her and her family status, as she was not a participant in the telephone call and the respondent would call evidence from the employee who spoke with the applicant’s mother as well as two employees who were seated beside her during the course of the phone conversation and heard what the employee said. The respondent asserts that all of its witnesses will refute the applicant’s mother’s account of what the employee allegedly said during the telephone conversation.

13Further, the respondent submits that the applicant’s summary of events indicates that she is not claiming discrimination on the basis of family status and her status as a daughter, but rather due to conclusions she alleges the respondent reached due to her financial situation. The respondent notes that poverty and social standing are not a ground of discrimination prohibited in employment according to the Code, and the claim of discrimination contrary to the Code must fail. The applicant does not seek to demonstrate discrimination in hiring due to the fact at she is in a parent-child relationship.

14Discrimination in employment is addressed at section 5(1) of the Code:

Employment

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

15The power of the Tribunal is limited to dealing with applications alleging a violation of the Code, which prohibits discrimination on specific grounds. It does not have the power to deal with all claims of unfairness or all disputes between parties.

16Section 10(1) of the Code defines family status as “the status of being in a parent and child relationship”. The Application does not make allegations which relate to the applicant’s family status. Rather, the applicant has clearly stated that her allegation is that she was discriminated against on the basis of her family’s financial status. It is not her status as a daughter that she alleges was significant for the respondent but rather her claimed status as a person of limited financial means.

17Accordingly, I find that the applicant’s allegations do not establish the necessary link between the respondent’s alleged actions and the ground of family status. The applicant’s allegations, even if true, would not constitute discrimination because of family status and, consequently, the Application has no reasonable prospect of success.

18Given my finding that there are no allegations that would connect the alleged mistreatment of the applicant with her family status, I do not find it necessary to consider the respondent’s further submissions regarding dismissal of this matter.

19I find that there is no reasonable prospect that the Application will succeed and it is dismissed.