On v. Amore Food Group Inc., 2012 HRTO 1756

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ha Phuoc On

Applicant

-and-

Amore Food Group Inc., Nancy Walters and Maria Caruso

Respondents

INTERIM DECISION

Adjudicator: Denyse Diaz

Date: September 18, 2012

Citation: 2012 HRTO 1756

Indexed as: On v. Amore Food Group Inc.

APPEARANCES

Ha Phuoc On, Applicant

Self-represented

Amore Food Group Inc., Nancy Walters and Maria Caruso, Respondents

No one appearing

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 in employment on the basis of race and colour.

2The Tribunal issued a Case Assessment Direction (“CAD”) dated August 25, 2011, 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 respondents were 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 respondents’ actions and the grounds cited.

4The summary hearing was held on January 17, 2012, by teleconference. Only the applicant participated.

Background

5The applicant, who self-identifies as a Vietnamese, and as colour “yellow”, began working for the corporate respondent as a dishwasher on February 4, 2009. According to the applicant, on April 29, 2009, he got into an altercation with another worker. Shortly after the incident his supervisor informed him that he was going to give him a written warning because of the incident. During the investigation which took place the same day, the applicant swore continuously in the presence of the supervisor, who asked him to stop. The applicant continued to swear and the supervisor asked him to go home. The applicant reports that he asked his supervisor why he was being sent home and was told that it was because he was “violent”. The applicant asked the supervisor for the written warning and was told that the supervisor did not have time to do so. The applicant did not receive an answer to his query of how much time would be required to complete this task. So he asked, “Why don’t you answer me? You’re biased, right?” The supervisor allegedly said, “Yeah I bias”.

6The applicant returned some work supplies to his supervisor on that day. Based on his subsequent conversation with his supervisor, the applicant believed that his supervisor thought he was leaving his job. However, when the applicant left the supervisor told him to return the next day. When the applicant returned on April 30, 2009, the supervisor told him that after speaking with Maria Caruso, the Human Resources Manager, he was on probation and he was being let go. He repeatedly asked his supervisor for a reason why he was fired and was told he was “violent”. He then reminded the supervisor of an earlier incident when he and his co-worker were involved in another altercation, where he believed the co-worker was violent but was not fired.

7The applicant made a claim to the Ministry of Labour (“Ministry”) for unpaid wages, vacation pay, termination pay and severance pay against the corporate respondent. The individual respondent, Nancy Walters (“ESA officer”), an Employment Standards Officer with the Ministry, assessed that the applicant was not entitled to receive any additional payment. The applicant is alleging that his claim was denied because of his race and colour.

8The applicant was asked to provide additional information that would show that he has experienced discrimination contrary to the Code as alleged in his Application. He submitted that although he was not aware of their ethnic identity, both his supervisor and his co-worker are white. He further submitted that although no one ever called him “yellow” or “Vietnamese”, the fact that he was fired after the altercation, while his “white” co-worker who previously had physically assaulted him was not, is proof that he was discriminated against.

9He was asked if he could think of any other thing that happened at work that might show discrimination contrary to the Code. He could not provide any. He stated that he did not do anything wrong and was unfairly treated. He said that for this reason racial discrimination must be “implied”.

10The applicant further submitted that the ESA officer “corroborated” with the corporate respondent and the individual respondent Maria Caruso and discovered that he was Vietnamese, and for this reason did not find in his favour. He could not state how he would prove this assertion and could only “assume” that she discriminated against him because of his race and colour.

Law and Analysis

11In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9 the Tribunal explained the approach to whether an application has a reasonable prospect of success:

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 a legal analysis and whether what the application 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 is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

12As noted in the CAD, the Tribunal does not have the power to deal with all claims of unfairness. The Tribunal only deals with applications alleging a violation of the Code, which prohibits discrimination or harassment on specific grounds. To succeed, the applicant must establish that the respondents treated him differently as compared to others based on his race and colour. The issue in the summary hearing is whether there is no reasonable prospect that evidence the applicant has or is reasonably available to him would show a link between his allegations and the grounds of race and colour.

13The assertion that a person is of a certain race and colour is not enough by itself to establish discrimination under the Code. To succeed, an applicant must be able to show that unfair treatment occurred at least in part because this Code-protected ground was a factor in that unfair treatment.

14With respect to the allegations that the corporate respondent discriminated against him on the basis of race and colour, the applicant was able to point to evidence of conversations with his supervisor, and alleged differential treatment from a co-worker by this supervisor and the HR manager. The allegations, if accepted as true (and I make no finding on whether or not they are), would be enough to establish the link between the applicant being fired and his race and colour. The applicant has pointed to evidence that he has or is reasonably available to him that arguably could support a finding, assuming the evidence is accepted, that his termination amounts to racial discrimination for which the corporate respondent is vicariously liable for.

15The applicant was unable to point to any evidence which would suggest that the ESA officer failed to find that he was owed any payment from the corporate respondent because his race and colour were a factor.

Conclusion

16The applicant was able to point to evidence that could establish that the corporate respondent and the HR manager personal respondent, discriminated against him or treated him differently as compared to others based on his race and colour. I therefore cannot conclude that there is no reasonable prospect that this Application as against them will succeed.

17I also find that the applicant has failed to point to any evidence that he has or that is reasonably available to him that would establish that the individual respondent, Nancy Walters discriminated against him or even treated him differently as compared to others based on his race and colour. For this reason I conclude that there is no reasonable prospect that this Application as against her will succeed.

Order

18The Application against Nancy Walters is dismissed.

19The Application against Amore Food Group Inc. and Maria Caruso will proceed to the next stage of the process. Amore Food Group Inc. and Maria Caruso are to file a Response to this Application within 21 days of the date of this decision.

20I am not seized of this matter.