HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Stanley Solomon
Applicant
-and-
Pollard Banknote Ltd.
Respondent
DECISION
Adjudicator: Alison Renton Decision Date: June 28, 2012 Citation: 2012 HRTO 1257 Indexed as: Solomon v. Pollard Banknote Ltd.
APPEARANCES
Stanley Solomon, Applicant Self-represented
Pollard Banknote Ltd., Respondent Lisa Carty, 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”), alleging discrimination in employment on the basis of race, ethnic origin, age, and reprisal.
2The Tribunal issued a Case Assessment Direction (“CAD”) dated January 30, 2012 in which it stated that, on its own initiative, the Tribunal would schedule a summary hearing by teleconference to determine whether the Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that it will succeed. The Tribunal advised that the respondent was not required, at this time, to file a Response.
3The Tribunal directed the applicant to make submissions about why the Application should not be dismissed as having no reasonable prospect of success and to point to the evidence on which the applicant would prove a link between the respondent’s actions and the grounds cited. No evidence or witnesses would be called during the summary hearing. The parties were directed to deliver to each other and file with the Tribunal copies of any further documents or cases they intended to rely upon no later than 14 days prior to the teleconference.
4The summary hearing was held on May 23, 2012 by teleconference. Prior to the summary hearing, the respondent filed submissions and case law upon which it intended to rely. The applicant did not file any additional material.
The Applicant’s Position
5The applicant asserts that he worked for the respondent for approximately four years, without any difficulties, until a new production manager was hired. Approximately five weeks after she was hired, the production manager raised several issues with the applicant including: 1) changing the PACE clock; 2) being unproductive during company time; and 3) changing his breaks from one 45 minute break to three 15 minute breaks (“the three issues”). Subsequent to these issues being raised, the applicant went off work for medical reasons and has not returned. In his Application, he indicated that he has found other employment.
6During the summary hearing, the applicant asserted that the production manager had no evidence against him pertaining to the three issues and he provided explanations in response to the three issues. He did not allege that he had been subjected to discipline or any adverse treatment about the three issues, other than that the three issues had been raised with him. He submitted that he was a good employee who had been left to manage the plant on several occasions when previous managers left the respondent.
7Specifically in response to the Tribunal asking how the allegations in his Application relate to the Code grounds of race, ethnic origin, age and reprisal, and how he could prove such assertions, the applicant submitted that he could only assume that the issues raised by the production manager were related to his age as he did not have any issues prior to her being hired. Further, the applicant submitted that several years prior to the production manager being hired and when he had not received a managerial position, he had been told by the plant manager that it was because the female staff, the average age being “40ish,” would not be able to take instruction from him, a younger 29 year old male. This allegation was not included in his Application and the applicant said, in response to a question from the Tribunal, that he was not seeking to amend his Application to include this allegation. He did not provide any information about the ages of the other employees working with the respondent. At the time of filing his Application, the applicant was 30 years old and asserted he was the youngest working in his department.
8The applicant stated that he could only “assume” and he “believed” that the issues the production manager raised with him were because of his age. Further, he self-identifies as “Native American” and alleged that he was the only “Native American” in the facility, which was the basis for his assertion for discrimination on the basis of race as well as ethnic origin as he did not know how he would prove discrimination on the basis of ethnic origin. He did not have any evidence to substantiate his allegation other than his “belief.”
9With respect to his claim of reprisal, and after the Tribunal read the definition of reprisal as set out in the Code and how the applicant was alleging he was discriminated against, the applicant stated that the biggest issue he had with the respondent is that the production manager did not have any proof or evidence to substantiate the three issues.
The Respondent’s Position
10The respondent clarified during the summary hearing that it had not alleged that the applicant was a bad worker and that issues raised with him pertained specifically to the three issues. The managerial position to which the applicant had previously applied occurred in 2008 which, the respondent submits, was not raised in the Application and would be an untimely allegation.
11The respondent submits that the Application should be dismissed as having no reasonable prospect of success. The applicant may allege that the respondent treated him unfairly with respect to the three issues, but those allegations do not relate to a Code ground.
Law and Analysis
12Rule 19A.1 of the Tribunal’s Rules of Procedure provides:
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.
13In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8-10:
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.
14Based on the Application, the relevant provisions of the Code are as follows:
- (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.
(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or an agent of the employer of by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
- Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
15In determining whether an Application has no reasonable prospect of success, an Application must at least contain sufficient facts that, if accepted as true, could reasonably lead to a finding of discrimination. Otherwise, an Application has no reasonable prospect of success at a hearing and will be dismissed. See the recent decision in Macyshyn v. Toronto Catholic District School Board, 2011 HRTO 1068.
16It is also important to keep in mind, as the Tribunal pointed out in Abdul v. York University, 2011 HRTO 1851, at para. 17:
The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.
17With respect to the applicant’s allegations on the basis of age, the applicant is unable to point to anything specific in relation to his assertion that the production manager discriminated against him on the basis of age. Indeed, he admits that his allegations are based upon assumptions and his belief that because he is the youngest in his department his age was a factor in why the production manager raised the three issues with him.
18The applicant specifically confirmed during the hearing that he is not seeking to amend his Application to include the comment that the plant manager allegedly said to him some years earlier that the female staff would not be able to take direction from him, a younger male. However, even if the allegation was accepted as true (and I make no finding on whether or not it was made), I do not accept that this would be enough to establish a link between the plant manager’s alleged comment, the production manager raising the three issues, and the applicant’s age. The plant manager’s alleged comments were made several years before the production manager raised the three issues, and were raised in a different context, the possibility of receiving a promotion, rather than the situation involving the production manager, a member of management, raising issues with the applicant, who is not a member of management.
19With respect to the applicant’s allegations on the basis of race and ethnic origin, again the applicant is unable to point to any specific evidence in relation to his assertion that the production manager discriminated against him on the basis of race and ethnic origin other than he is the only “Native American” in the workplace. As he submitted during the hearing, he included race as well as ethnic origin in relation to self-identifying as “Native American” as he did not know how he was going to be able to prove discrimination on the basis of ethnic origin.
20Clearly, the applicant believes that it was unfair for the production manager to raise the three issues without any evidence in support of them. However, claiming unfairness does not establish, on the facts of this Application, that there is a link between the three issues, the production manager raising them, and the Code grounds that the applicant has asserted. In my view, on these facts, the Application has no reasonable prospect of success on the grounds of race, ethnic origin or age. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389.
21With respect to reprisal, the Tribunal stated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 23, “Reprisal under s. 8 of the Code must be a reprisal for the assertion of human rights and there must be an intention to reprise for that reason”. See also Noble v. York University, 2010 HRTO 878 at para. 31.
22The applicant alleges that the respondent reprised against him because it did not have any evidence or proof against him with respect to the three issues. He has not provided any evidence to support that the raising of the three issues was related to him claiming or attempting to enforce a right under the Code. Further, he has not asserted that he raised a Code concern with the production manager or the respondent prior to the three issues being raised with him. Finally, the applicant has not been able to point to anything by either the respondent or the production manager to indicate an intention to reprise against him. On the facts as alleged by the applicant, there is no reasonable prospect that the respondent reprised against the applicant.
23Accordingly, I find that this Application has no reasonable prospect of success.
Order
24The Application is dismissed.
Dated at Toronto, this 28th day of June, 2012.
Signed by
Alison Renton
Vice-chair