HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E eN:
Marvin Otto
Applicant
-and-
EFCC Accounting Systems Corp.
Respondent
DECISION
Adjudicator: Andrew M. Diamond
Indexed as: Otto v. EFCC Accounting Systems Corp.
APPEARANCES
)
Marvin Otto, Applicant ) On his own behalf
)
INTRODUCTION
1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on November 28, 2011, in which he alleges that the respondent discriminated against him with respect to employment because of his age. At the relevant time the applicant was 61 years of age.
2On February 9, 2012 the Tribunal issued a Case Assessment Direction directing that there be a summary hearing, for the Tribunal to determine, pursuant to Rule 19A, whether the Application should be dismissed for having “no reasonable prospect for success”.
3The summary hearing was scheduled for 9:30 am May 2, 2012. Due to an administrative error the call in number given for the hearing was incorrect and the respondent did not attend on the call and did not contact the Tribunal to advise that it could not connect with the hearing. The applicant was present on the call, and, as the onus in a summary hearing is on the applicant, I proceeded to hear his submissions. In the end, I have found that this Application has no reasonable prospect of success and as such there is no prejudice to the respondent arising from the failure to participate in the summary hearing.
FACTS AND ANALYSIS
3The nature of a summary hearing is discussed in Dabic v Windsor Police Services, 2010 HRTO 1994, at paras 8 and 9:
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.
4The underlying facts of the application are that the respondent was in desperate need of accounting services to rectify a number of outstanding corporate filings. The applicant was a 61-year-old unemployed accountant. The respondent hired the applicant on March 23, 2011 to start work the following day. The terms of the employment were that if the applicant remained employed by the respondent after a three-month probationary period he would receive a $16,000 raise in his annual salary.
5The applicant believes that he, as an older accountant was targeted to be hired by the respondent because of the respondent’s belief that older unemployed persons would work harder during the probationary period in order to secure long-term employment, as it is harder for older people to find work. The applicant submits that he is convinced that the respondent deliberately hired an older person with promises of a significant raise if they proved themselves in the short term but that in fact had no intention of continuing the employment past the three month probationary period. In the applicant’s words “I am convinced that she knew she had someone older who would work hard and had no intention of keeping me on once I had cleaned up the mess.” The applicant worked for the respondent for a total of six weeks.
6I have two difficulties with the applicant’s position. The first is, even if I accept the applicant’s allegation that he was hired because of his age, I do not see how he was discriminated against. The applicant had been unemployed for one year; he then obtained employment for six weeks. While I can understand his suspicion and disappointment that the job was not made permanent, I am having difficulty seeing how getting a job because of one’s age breaches the Code.
7However, even if I was satisfied that hiring someone because they are older discriminates against the person who got the job because of their age, as it could be seen as a breach of the Code in that they were treated differently because of a prohibited ground, however, the facts of this case do not support that allegation. The applicant was candid in advising that the respondent had had a revolving door of people in the accounting position that he held for six weeks, including the previous person who had only been employed by the respondent for six months, and whom the applicant admitted was much younger and perhaps too young and inexperienced to deal with the circumstances of the respondent. In other words the applicant’s own evidence does not support a link between the adverse conduct (not getting permanent/ forgoing other employment opportunities) and the prohibited ground (age).
8It may very well be that in hiring the applicant and promising him a significant raise at the end of the probationary period that respondent may not have been acting in good faith, however as the Tribunal has noted on many occasions including in the CAD issued in this case:
The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Human Rights Code.
9Having reviewed the submissions of the applicant as well as his anticipated evidence I am of the view that this Application does not have a
reasonable prospect of success if allowed to go to a full hearing and as a result the Application is dismissed.
Dated at Toronto, this 23rd day of August 2012.
“Signed by”
Andrew M. Diamond
Member