Tai Q. Tran v. Welcome Pharmacy (Queen) Ltd., 2012 HRTO 1445

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tai Q. Tran

Applicant

-and-

Welcome Pharmacy (Queen) Ltd. operating as Parkdale Guardian Drugs,

Angelina Lam and Andrew Ng

Respondents

DECISION

Adjudicator: Douglas Sanderson

Date: July 24, 2012

Citation: 2012 HRTO 1445

Indexed as: Tran v. Welcome Pharmacy (Queen) Ltd.

APPEARANCES

Tai Q. Tran, Applicant

Ayoob Khan, Representative

Welcome Pharmacy (Queen) Ltd. operating as Parkdale Guardian Drugs,, Respondents

Self-represented

Introduction

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 with respect to employment because of ancestry, place of origin, ethnic origin and sex.

2The hearing of this matter took place on March 5, 2012 and the parties were able to complete their evidence on that date. The parties agreed to make their arguments by written submissions, the last of which the applicant filed with the Tribunal on April 13, 2012.

3The applicant identifies himself as a Vietnamese man. He is a pharmacist and has been qualified to practice as a pharmacist in Ontario since 1989. The organizational respondent is a pharmacy operating in the Parkdale area of Toronto, as well as other locations in Toronto. The individual respondents, Mr. Ng and Ms. Lam, are the co-owners of the organizational respondent and are also pharmacists.

Application and Responses

4In his Application, the applicant stated that on April 9, 2009 he inquired of Ms. Lam regarding when the May schedule would be posted. Ms. Lam replied that his co-worker, Emily Valenton, who was of Filipino origin, had requested more hours and her request was being considered. The applicant stated that Mr. Ng called shortly before closing that evening and informed him that his employment was terminated effective immediately without providing an explanation. The applicant asserted that he has a number of years’ seniority over Ms. Valenton and therefore asked for an explanation, but was not provided with a substantive answer.

5In the Response on behalf of the organizational respondent and Mr. Ng, the respondents stated that the applicant was a competent pharmacist and his ability to speak Vietnamese was valuable given the number of Vietnamese people in Parkdale. However, he lacked customer service skills and was not liked by the technicians with whom he worked. The applicant also did not cash several pay cheques, totalling over $21,000.00, which caused administrative problems and a new cheque had to be issued to cover the cheques. Consequently, they did not hire him to replace the full time pharmacist, Ms. Thomas, when she died in August 2008. Rather, they hired Ms. Valenton who had trained in their Parkdale location commencing in November 2006 and received her license in October 2007. Ms. Valenton had been on maternity leave until November 2008 and returned to work part time for the respondents, but also worked at other pharmacies. Ms. Valenton eventually approached the respondents and asked to work full time at Parkdale. The respondents considered the decision and decided to make Ms. Valenton the full time pharmacist. As a result, they no longer had sufficient work for the applicant.

6In Ms. Lam’s Response, she stated that she spoke to the applicant a few months after he started working regarding his attitude towards customers, as well as his habits regarding the photocopying of prescriptions and his use of the telephone and computers. Ms. Lam stated that the respondents were hopeful that the applicant would attract Vietnamese clients. The applicant’s attitude did not change; therefore, they decided to give more hours to Ms. Emily Valenton, another pharmacist. Ms. Lam also noted that a complaint to the College of Pharmacists was lodged regarding an alleged refusal to fill a prescription attributed to the applicant.

Evidence

7The applicant stated that he was unaware of any performance issues and had never been disciplined for customer service issues. In that regard, he described himself as a straightforward and strict pharmacist who provided counsel as needed and would only raise his voice if a customer was hard of hearing. He stated he was not flawless, but would only be uncooperative if asked to do something improper. He acknowledged making some patients wait in order to check prescriptions when he had not done so in advance, but stated this was “not a crime” or a legal issue.

8He was not aware that some patients would leave the store without their prescriptions, as stated in the witness statements of two of the respondents’ witnesses, or that the pharmacist technicians did not enjoy working with him, which was put to him in cross examination. The applicant stated that he had not been a party to the complaint to the College of Physicians, which was in any event resolved years ago.

9The applicant acknowledged that Ms. Valenton was a capable pharmacist, but he had practised for longer and had more seniority. He noted that she had trained under him. The applicant’s evidence was that the clientele in Parkdale is largely Vietnamese and Filipino. Both technicians were Filipino and would converse with Filipino clients in their language and also between themselves. The applicant asserted that he felt left out of conversations, but in cross examination agreed that he had “no particular feelings” about this and therefore did not complain.

10The applicant testified that Mr. Ng called him on April 13, 2009 and informed him not to come back to work, although he was scheduled to work to the end of the month. The applicant called Mr. Ng back to get an explanation for the decision. According to the applicant, Mr. Ng informed him to the effect that the applicant was a great pharmacist, but they were “trying to make the schedule”.

11The applicant stated that the respondents have four locations and tend to hire employees based on ethnicity. For example, the applicant explained that the respondents have a location on Roncesvalles Avenue, which is a Polish area. Consequently, the respondents hire Polish speaking personnel to work at that location, including the majority of the pharmacists. The applicant stated that there is a large concentration of Filipino speaking people in the area around the Parkdale location. Accordingly, Ms. Valenton had an advantage over the applicant because she speaks Filipino and would attract Filipino customers. The applicant suggested that the respondents could have given her full time hours at another location.

12The applicant stated that he felt humiliated and that his dignity was crushed. Fortunately, he was able to find another position within a week of his dismissal that paid better and replaced his hours of work.

13In cross examination, the applicant acknowledged that there was a period during which he did not cash his paycheques. The applicant explained that he did not have access to the safe to collect his cheques and no one brought them to him. He had to “beg” the technicians, who had access, to get his cheques for him. Four or five of the cheques were missing. He therefore asked for new cheques. The respondent produced a replacement cheque for over $20,000.00. The applicant acknowledged that he worked about 10 hours per week and payday was every two weeks; therefore, that amount reflected many uncashed cheques. The applicant agreed that he sometimes photocopied prescriptions for patients, upon request, but always marked them as copies.

14Mr. Ng testified that the respondents hired the applicant in March 2007 as a part time pharmacist. Mr. Ng stated that the applicant’s ability to speak Vietnamese was considered beneficial because there was a large Vietnamese community in the area. The Vina Pharmacy, a competing pharmacy in the neighbourhood, was Vietnamese speaking and Mr. Ng’s observation was that most Vietnamese customers patronized that store. The intention had been to attract Vietnamese customers by having a Vietnamese speaking pharmacist at the Parkdale location. Unfortunately, the applicant did not attract customers. To the contrary, the applicant’s co-workers informed Mr. Ng that the applicant proved to have difficulty dealing with clients and with his co-workers. They also informed Mr. Ng that he would photocopy prescriptions for no reason, sometimes used questionable practices (e.g., having pills on his hands), would make technicians and patients wait and was not helpful to customers. Mr. Ng also noted that the applicant did not cash his paycheques for about six months. The respondents increased the wages of all their pharmacists from $40.00 to $41.00 per hour in 2009.

15Mr. Ng’s evidence was that when Ms. Thomas passed away the applicant’s hours expanded. Ms. Valenton, who the respondents trained as an intern, was on maternity leave at the time. Mr. Ng noted that the respondents do not only train Filipino interns and hire employees from a wide variety of backgrounds. After considering the decision, including consulting with the other employees at the pharmacy, the respondents concluded that Ms. Valenton was a good fit. Mr. Ng also stated that Ms. Valenton’s availability also better matched their needs. The applicant had not requested the full time position, but Mr. Ng stated that they likely would not have offered him the position if he had.

16In cross examination, Mr. Ng agreed that he tried to hire employees who could speak the languages of the ethnic groups where the respondents’ stores are located, to better serve the customers and attract business. For example, he hired Polish speaking employees for the pharmacy located on Roncesvalles Avenue, where there is a sizable Polish community.

17Mr. Ng acknowledged that he did not discipline the applicant for failing to cash his paycheques or for customer service issues.

18Mr. Ng agreed that the respondents had no intention of hiring the applicant as a full time pharmacist. Mr. Ng stated that the respondents do look to hire interns who trained with them because they are familiar with their training and the interns become familiar with the store, which means they fit in easily. Mr. Valenton did not work with the respondents immediately, but it was their intention to hire her if a position came available.

19Mr. Ng agreed that the applicant called him back for an explanation after he informed the applicant of the termination of his employment, whereas his witness statement indicated that the applicant did not ask for one. Mr. Ng stated that he responded to the effect that the respondents had insufficient work to continue the applicant’s employment.

20Ms. Lam testified that she hired Ms. Valenton as an intern and asked her to work for her after she completed the internship, assuming she was successful in obtaining her licence. Ms. Lam stated that she wanted pharmacists that she knows and trusts. According to Ms. Lam, Ms. Valenton promised to work for her when she completed her internship. When Ms. Thomas passed away, Ms. Valenton was on maternity leave; therefore, the respondents gave the applicant more hours. Ms. Lam’s intention, however, was to ask Ms. Valenton to work as a full time pharmacist.

21Ms. Lam did not consider the applicant for the full time position. The technicians who worked with him advised her that he photocopied prescriptions that had already been filled, which was inexplicable to her and potentially problematic. Ms. Lam spoke to the applicant about this and he stated that he made copies for customers. Ms. Lam, however, understood that he copied prescriptions when the customer was not present. Ms. Lam stated that the technicians “always complained about him”. The complaints included that the applicant spoke very loudly, did not help customers when the technicians were busy and waited until the last minute to check prescriptions. Ms. Lam stated that she did not address customer complaints directly, but reminded the applicant to be nice to customers. Ms. Lam was of the view that a customer complaint to the College of Pharmacists came about because the applicant did not supervise the technicians adequately.

22In cross examination, Ms. Lam acknowledged that she had always intended to hire Ms. Valenton if she successfully completed her training. She explained that she made no commitment to Ms. Valenton, but did want her to come back to work for her, given the major investment made into her training. She denied, however, that the decision to hire Ms. Valenton was because she is a woman and of Filipino ancestry.

23Mr. Lam acknowledged that the applicant explained that he copied prescriptions for customers, on request, and that customers are entitled to receive a copy of their prescriptions. The applicant’s representative put to Ms. Lam that no pharmacists help the technicians in their duties, to which Ms. Lam responded that the applicant made extra work for them by waiting to the end of the day to check and count prescriptions, which added to closing procedures. She acknowledged that she informed the College of Pharmacists that the issue had been the result of a misunderstanding between a customer and a technician of which the applicant had been unaware at the time.

24Max Adalin is a pharmacist technician who has worked for the respondents for about 15 years at the Parkdale location and for about five years in the same location when it was a Shoppers Drug Mart. In his tenure with the respondents he worked successfully with pharmacists from a variety of different ethnic backgrounds and considered his co-workers to be like family. Mr. Adalin is of Filipino ancestry, as is the other technician, and he stated that they would speak softly in Filipino to each other, which he did not believe bothered anyone. Mr. Adalin stated that the store employs a multinational group of employees, including Vietnamese employees in the post office and front cash.

25Mr. Adalin stated that he observed the applicant photocopying prescriptions. He did not know why the applicant would do this and no other pharmacist followed such a practice. Mr. Adalin explained that the applicant’s practice concerned him and, as he cares about the pharmacy, informed Mr. Ng. Mr. Adalin stated that the applicant made more work for him in preparing prescriptions for customers. For example, the applicant would crumple bags for prescriptions, rather than ensuring that it looked nice for customers. Mr. Adalin had concerns regarding the customer service the applicant provided. He stated that customers would sometimes come to him, rather than the applicant, and he would have to bring them to the applicant. Mr. Adalin testified that when he was busy, customers would leave without receiving their prescriptions because they did not want to speak to the applicant. One customer refused to take the applicant’s advice. Mr. Adalin stated that the applicant tended to speak in a loud voice. Customers would sometimes complain to him about the applicant and he passed these complaints on to Mr. Ng and Ms. Lam. Mr. Adalin testified that the applicant did not help out much, spending a lot of time counting prescriptions that had been filled and leaving Mr. Adalin to do most of the prescription counts. He noted that none of the pharmacists with whom he worked assisted with closing procedures.

26Mr. Adalin stated that he found working with the applicant stressful and informed Mr. Ng that he was tired of working with the applicant and did not know how long he would be able to do so. By contrast, Mr. Adalin stated that Ms. Valenton works hard and helps with prescription counts and enters prescription counts onto the computer.

27David Henderson is the front store manager at the respondents’ Parkdale location. He has worked at that location since the respondents took over the store and for five years previous to that, when it was a Shoppers Drug Mart store. He is responsible for hiring and firing some of the staff, although he will sometimes consult with Mr. Ng. In that regard, Mr. Ng has not directed him to hire people of any particular ethnicities and over the years he has hired employees from a multitude of ages, nationalities and both men and women. The criteria he applies when hiring is the ability to perform the functions of a job and the ability to work with others. Mr. Henderson stated that he is not responsible for the pharmacy, but is familiar with it. He observed that the pharmacy staff did not enjoy working with the applicant. He overheard customers complaining about the applicant’s loud voice. Mr. Henderson testified that some customers would enter the store, see the applicant, immediately leave and return when the applicant was not working.

28Mr. Henderson testified that he does not hear complaints about Ms. Valenton. He described her as calm when she counsels customers and the staff works well with her. Mr. Henderson denied that the decision to hire Ms. Valenton was related to her ethnicity. In his experience, the respondents expect to have interns return after spending time and money to train them and they usually wish to return. Pharmacists who trained at the store as interns know the store and its systems and are familiar with the customers and co-workers. According to Mr. Henderson, hiring Ms. Valenton was a “total natural”.

29Mr. Henderson testified that he is responsible for dispersing paycheques, which is usually done on the Monday of the pay period. Cheques are distributed as employees come into work. Cheques for night shift employees are distributed by an employee with access to the safe. Mr. Henderson stated that he usually gave the applicant his cheque on Friday. The applicant did not cash his cheques for a long time and the respondents had to reissue them. Mr. Henderson understood that the applicant received the cheques, but they became stale dated. His evidence was that he occasionally gave the applicant more than one cheque at a time, but not often. In cross examination, he agreed that he did not know the precise number of pay cheques he gave to the applicant, but stated it was “quite a few”. In re-examination, he stated that he had not seen unclaimed paycheques in the safe.

Submissions

30The applicant’s submissions focussed on his unblemished record as a pharmacist and the fact that the respondents did not discipline him or engage in corrective action regarding the various issues on which they relied to explain the decision to terminate his employment. The applicant submitted, to the contrary, the respondents commended him for being “the best pharmacist”. Further, the applicant provided explanations for some of his impugned behaviours, i.e., not cashing paycheques, speaking loudly and photocopying prescriptions, which he submitted were not rebutted by the respondents. The applicant submitted that Mr. Ng and Ms. Lam admitted that they did not have any issues with the applicant as a pharmacist. Ms. Lam admitted that she did not address any of the behaviours attributed to the applicant in the respondents’ Responses. The applicant submitted that Mr. Ng admitted that his Response and Witness Statements were contradictory because his Response stated that the decision to hire Ms. Valenton came after careful consideration and consultation, while the witness statement indicated that the respondents always intended to hire her. Similarly, Mr. Ng’s testimony that the applicant called him back on April 13, 2009 to seek an explanation for his dismissal contradicted his witness statement, which stated the applicant did not make such a request. Ms. Lam admitted that she “exonerated” the applicant regarding the complaint to the College of Pharmacists.

31The applicant submitted that Mr. Adalin testified that no pharmacist assisted with closing procedures and did not testify regarding a customer complaint described in his witness statement.

32The applicant submitted Mr. Henderson admitted he could not say how many cheques he had given the applicant or how many may have been cashed. The applicant noted that it was put to Mr. Henderson that he was untruthful when he testified that he overheard customers complaining about the applicant.

33The applicant relied upon Ontario (Human Rights Commission) v. Simpson-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 for the definition of adverse effect discrimination the Supreme Court of Canada set out in that decision, quoting from the headnote. The applicant submitted that the only defence offered by the respondents was that they did not intend to discriminate against the applicant. The applicant further submitted that there was no defence to the adverse effect that termination of employment had on the applicant. The applicant also relied upon Bageya v. Dyadem International, 2010 HRTO 1589 for the principles to be applied in assessing allegations of racial discrimination.

34The respondents pointed to the multinational makeup of its staff and submitted that hiring Ms. Valenton full time and the termination of the applicant’s employment was a business decision. In that regard, the respondents submitted that the applicant may have an unblemished record insofar as the College of Pharmacists is concerned, but was not a good team player and would inconvenience customers and co-workers. The applicant engaged in unusual practices, such as not cashing his paycheques, which caused a reconciliation issue and required the respondents to issue a cheque for $21,229.18 to cover un-cashed paycheques. The applicant’s practice of photocopying prescriptions remained suspicious. The applicant also tended to raise his voice when frustrated. The complaint to the College of Pharmacists demonstrated a lack of communication with the technicians and customers. The applicant was acceptable as a part time pharmacist, but not in a full time capacity.

35By contrast, the respondents submitted that Ms. Valenton demonstrated that she was a good team player and was well received by her peers. Ms. Valenton worked part time for the respondents until her maternity leave because there was not enough work to hire her full time. After Ms. Thomas’ death, the respondents asked Ms. Valenton to return on a part time basis to cover some of her hours. Ms. Valenton eventually asked for full time employment, to which the respondents agreed after careful consideration and consulting with the pharmacy technicians. As a result, there was insufficient work for the applicant and they terminated his employment.

36The respondents pointed out that having Vietnamese speaking employees in the Parkdale store was beneficial because of the large Vietnamese community in the area. The respondents submitted that they did not breach the Code in their conduct towards the applicant.

Analysis and Decision

37Section 5 of the Code states as follows:

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, gender identity, gender expression, age, record of offences, marital status, family status or disability.

38In Phipps v. Toronto Police Services Board, 2009 HRTO 877, the Tribunal summarized the principles that apply in cases involving allegations of racial discrimination as follows at paragraph 16:

a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;

(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant;

(c) The prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element;

(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and

(e) Racial stereotyping will usually be the result of subtle unconscious beliefs, biases and prejudices.

Radek v. Henderson Development (Canada) Ltd. (No. 3) (2005), 52 C.H.R.R. D/430, 2005 BCHRT 302 at para. 482; Pritchard v. Ziedler (2007), CHRR Doc. 07-527 (Sask. H.R.T.).

39In this case, as in Phipps and many other cases dealing with allegations of discrimination, there is no direct evidence that race was a factor in the respondent’s actions towards the applicant. Accordingly, whether the applicant was subjected to racism can only be determined based on circumstantial evidence. In Phipps, the Tribunal also set out the principles to be applied in circumstantial evidence cases, as follows:

1. Once a prima facie case of discrimination has been established, the burden shifts to the respondent to provide a rational explanation which is not discriminatory.

2. It is not sufficient to rebut an inference of discrimination that the respondent is able to suggest just any rational alternative explanation. The respondent must offer an explanation which is credible on all the evidence.

3. A complainant is not required to establish that the respondent’s actions lead to no other conclusion but that discrimination was the basis for the decision at issue in a given case.

4. There is no requirement that the respondents' conduct, to be found discriminatory, must be consistent with the allegation of discrimination and inconsistent with any other rational explanation.

5. The ultimate issue is whether an inference of discrimination is more probable from the evidence than the actual explanations offered by the respondent.

In determining whether the inference of racial discrimination is more probable than the explanations offered by the respondent officer, I also need to be mindful of the nature of racial discrimination as it is understood today and that it will often be the product of learned attitudes and biases and often operates on an unconscious level: Nassiah v. Peel (Regional Municipality) Services Board, 2007 HRTO 14.

40The applicant submitted that this was a case of adverse effect discrimination, i.e., where an employment rule that is non-discriminatory on its face had an adverse effect on an employee because of a prohibited ground of discrimination. The applicant, however, did not identify any workplace rule that the respondents relied on or applied that had an adverse effect on the applicant. I find the decision to hire Ms. Valenton on a full time basis and to dismiss the applicant had no connection to any workplace rule the respondents may have promulgated (again, there was no evidence regarding any of the respondents rules or policies); therefore, the concept of adverse effect discrimination has no applicability in this case.

41The applicant has the initial evidentiary onus of establishing, on a balance of probabilities, a prima facie case that the respondent discriminated against her because of her race or colour. A prima facie case of discrimination “is one which covers the allegations made and which, if believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent…”. See Ontario (Human Rights Commission) v. Simpsons-Sears Ltd., 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536 at paragraph 28.

42In my view, the fact that a person of a different race, ancestry or ethnicity was selected over the applicant is not proof, in itself, of discrimination. However, given the applicant’s greater experience and longer service as a pharmacist with the respondents, I am satisfied that the applicant has established a prima facie case of discrimination that requires the respondents to provide a non-discriminatory reason for their actions. I find, however, that the respondents have provided a credible non-discriminatory explanation for their decisions that led to the termination of the applicant’s employment.

43The respondent’s evidence was that they hired the applicant in the hopes that having a Vietnamese speaking pharmacist would attract customers from the Vietnamese community in the Parkdale area. That hope did not materialize and, instead, they heard from Max Adalin, a long serving employee, that the applicant was alienating both customers and co-workers and was photocopying prescriptions for no apparent reason. I found Mr. Adalin to be credible as he gave his evidence in a straightforward manner without exaggeration. Mr. Adalin’s evidence was balanced and included admissions that did not assist the respondents, despite not being cross-examined. Mr. Henderson’s evidence confirmed Mr. Adalin’s observations. Mr. Henderson also testified in a straightforward manner without embellishment. His testimony was not disturbed in cross examination. The applicant’s evidence was that he was unaware of customer service issues, in particular that some customers avoided dealing with him. The applicant’s evidence also indicated that his primary concern was to meet the technical requirements expected of pharmacists and was not particularly concerned with ensuring a good customer experience. Consequently, I find the respondents had legitimate and honestly held concerns about the applicant’s interaction with customers and co-workers.

44The applicant acknowledged that the respondents had to issue a cheque to the applicant for over $20,000.00 to cover un-cashed or missing paycheques. The evidence regarding the applicant’s normal weekly hours of work and rate of pay indicate that this amount reflects roughly the amount the applicant earned in a year working for the respondents. The applicant stated that cheques went unclaimed because he had to “beg” co-workers to retrieve them and four or five of the cheques were missing. There was no evidence, however, that anyone ever refused to provide his cheques to him when asked, which means, on his account, that, except for the four or five missing cheques, if the applicant did not receive his cheques it was because he did not pursue getting them.

45Mr. Henderson’s evidence was that he gave the applicant his cheques and noted that unclaimed cheques did not accumulate in the safe, although he did give the applicant more than one cheque at a time infrequently. The amount paid to cover the un-cashed cheques indicates that far more than four or five cheques were outstanding. Distributing pay cheques was one of Mr. Henderson’s regular duties and I accept that he was aware of the number of cheques in the safe and I find he gave the applicant his cheques, including more than one cheque at a time on a few occasions. This is consistent with the applicant’s evidence that indicates he was not proactive in retrieving his cheques. Accordingly, I find that the most likely explanation for the backlog of un-cashed cheques was that the applicant received his cheques, but did not cash them. The respondents did not consider that the applicant’s failure to cash his cheques warranted discipline. Nonetheless issuing a cheque to cover the applicant’s un-cashed cheques was an unnecessary inconvenience and they clearly found this behaviour to be an odd exercise of judgement, which informed their overall view of him as an employee. I cannot find they were unjustified in this assessment.

46The incident that resulted in the complaint to the College of Pharmacists occurred in August 2008, based on Ms. Lam’s response to the College. In both the response to the College and in her testimony, Ms. Lam stated that the applicant had not done anything wrong and described the incident as a misunderstanding. Ms. Lam, however, was clearly not pleased that she was required to respond to the complaint at all and believed a lack of supervision on the applicant’s part led to the complaint. It was also apparent that Ms. Lam was not entirely convinced by the applicant’s explanation regarding his practice of photocopying prescriptions. Ms. Lam’s perception of these matters does not seem to have been entirely fair to the applicant, but I am unable to conclude that the applicant’s ancestry, place of origin, ethnic origin or sex was a factor in the formation of that perception.

47The respondents clearly did not consider the applicant’s behaviour to be sufficiently serious to merit corrective action. It may have been preferable, from a human resources management or evidentiary perspective, for the respondents to take documented corrective action regarding the applicant’s behaviour. The evidence was, however, that the respondents considered him adequate for part time work and to take on additional hours after Ms. Thomas died, notwithstanding his shortcomings. Although prudent, there is no requirement to take corrective action, and the fact that the behaviour went unaddressed does not mean that it did not occur. In any event, the respondents did not dismiss the applicant because of his performance and behaviour at work. Rather, the respondents dismissed the applicant because they had insufficient work for him after they made Ms. Valenton a full time pharmacist, a position for which they had concluded the applicant was not suited based on his work history. I find that the respondents reached this conclusion for non-discriminatory reasons.

48The respondents also presented cogent explanations for hiring Ms. Valenton. They were involved in her training and were confident in her abilities. She was familiar with the respondents’ operations and also the employees and customers of the Parkdale store. The respondents knew her to have good customer service skills. Once the respondents hired Ms. Valenton on a full time basis, they no longer required the applicant’s services. The applicant submitted that the respondents provided contradictory reasons for hiring Ms. Valenton because they stated that they had always intended to hire her from the time she was an intern, which was contradicted by their evidence that they carefully considered the decision before offering her the full time position in April 2009. I do not find the respondents’ explanation to be contradictory. The respondents evidence was that they intended to hire Ms. Valenton when she began as an intern, but no commitment was given and her future hire was contingent on her completing her training and there being an open position. When a full time position became available, the respondents’ un-contradicted evidence was that they took time to consider the decision to hire her full time and to consult with their employees, who worked with her, in order to confirm that Ms. Valenton was indeed a good choice for the position. There is nothing mutually exclusive or contradictory about having a standing intention to hire someone, but then carefully considering the decision when the opportunity to do so arises.

49Throughout the hearing, the applicant placed significant emphasis on the respondents’ practice of hiring employees who speak the language of the ethnic groups who live near their stores. The applicant testified that Ms. Valenton had an advantage over him because she spoke Filipino in a neighbourhood where there are many Filipino speakers. The evidence, however, was that the applicant’s ability to speak Vietnamese was also valuable because there are also a large number of Vietnamese speaking people in the Parkdale area. I find that language was not the reason the respondents decided to hire Mr. Valenton and dismiss the applicant.

50In any event, language is not a prohibited ground of discrimination (see for example, Howard v. 407 ETR Concession, 2011 HRTO 1511 and Chau v. Olymel S.E.C\L.P, 2009 HRTO 1386). Accordingly, there is nothing per se discriminatory about hiring an employee because he or she can speak a language that will enhance his or her ability to perform the duties of a position. The Tribunal, however, has found that language can be so inextricably linked to one’s place of origin that it can be a proxy for race, ethnicity or place of origin. The Ontario Board of Inquiry found a violation of the Code in Espinoza v. Coldmatic Refrigeration of Canada Inc. (1995), 1995 CanLII 18164 (ON HRT), 29 C.H.R.R. D/35 (Ont. Board of Inquiry) where Spanish speaking employees from South and Central America were treated differently and ridiculed for using their common language. In such circumstances the Code may prohibit discrimination linked to language. Therefore, the onus is on the applicant to present evidence that could lead to a finding that the respondents used language as a proxy for his ancestry, place of origin or ethnic origin. I find the applicant provided no such evidence.

51The applicant also placed a great deal of emphasis on Mr. Ng’s admission that the applicant called him back on April 13, 2009 to request an explanation for the decision to dismiss him because it contradicted Mr. Ng’s witness statement that indicated the applicant did not ask for an explanation. The applicant submitted that this undermined the respondents’ reasons for dismissing the applicant. Mr. Ng’s testimony was not consistent with his witness statement on this point, but this inconsistency, regarding an issue that is not in my view material, does not impeach the respondents’ evidence regarding their decision to terminate the applicant’s employment. Mr. Ng’s evidence was that when asked for an explanation he informed the applicant that the respondents did not have sufficient work for him. This answer was consistent with Mr. Ng’s witness statement, his Response, Ms. Lam’s evidence and the applicant’s testimony regarding the explanation he received.

52Losing his job with the respondents was clearly a shock and an affront to the applicant, but I am satisfied that the respondents made a legitimate business decision and that the applicant’s ancestry, place of origin, ethnic origin or sex was not a factor in the decision not to select him for the full time position or to terminate his employment.

53The application is dismissed.