HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bebeth Buyombo Asseli

Applicant

-and-

Community Living Ajax Pickering Whitby

Respondent

-and-

Canadian Union of Public Employees, Local 2936-08

Intervenor

INTERIM DECISION

Adjudicator: Mary Truemner

Date: January 25, 2012

Citation: 2012 HRTO 187

Indexed as: Asseli v. Community Living Ajax Pickering Whitby

APPEARANCES

Bebeth Buyombo Asseli, Applicant ) Self-represented

Community Living Ajax ) Paula M. Rusak, Counsel Pickering Whitby, Respondent )

Canadian Union of Public Employees, ) Elizabeth Nurse, Counsel Local 2936-08, Intervenor )

Introduction

1The applicant describes herself as African Black from the Democratic Republic of Congo. This Application arises from the applicant’s failed attempt to obtain a full-time position at her workplace that was instead offered to a White woman whom the applicant describes as less senior than herself and less qualified for the position. The applicant alleges that the respondent discriminated against her on the basis of race, colour, ancestry, place of origin and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondent filed a Response which states that the successful candidate had more experience than did the applicant. As well, the respondent claims that the applicant failed to establish that she met the educational requirement for the position.

3Pursuant to a Case Assessment Direction (“CAD”) issued on August 9, 2011, a summary hearing was held by way of teleconference on December 14, 2011. The purpose of the summary hearing was to determine whether this Application should be dismissed in whole or in part, on the basis that there is no reasonable prospect that it will succeed. Because the Canadian Union of Public Employees, Local 2936-08, (the “union”), of which the applicant is a member, filed a Request to Intervene in the Application, it was also present at the summary hearing.

4This Interim Decision deals with whether the Application should be dismissed and the union’s Request to Intervene.

Whether there is no reasonable prospect that the Application will succeed

5Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

6The issue that Rule 19A requires me to determine is whether the Application has no reasonable prospect of success. If a finding is made that the Application has no reasonable prospect of success, then it is dismissed. In the absence of such a finding, the Application continues to proceed through the Tribunal’s procedure.

7In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal stated:

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.

8At the summary hearing, the applicant explained that she applied to the respondent, her employer, for a position as an overnight residential counsellor in April 2008. She said that the successful candidate is White, and had been promised the position before the interview because she was the supervisor’s friend. She said that the successful candidate will testify and will say that she was not required to provide much in terms of references and proof of credentials because she was offered the job on the basis of her good relationship with the supervisor.

9The applicant said that the respondent again preferred another candidate over her in June 2009 for a position as a vocational counsellor. The successful candidate is White, and, the applicant alleges, obtained the position because she was the supervisor’s friend. The applicant says that the successful candidate was promised the job before interviews for the position took place.

10I asked the applicant what she meant by “friend” when she referred to the successful candidates and their relationships with the supervisor. While she did not know if the successful candidates socialized with the supervisor, she felt that there was an element of favouritism; otherwise, they would not have been promised the positions prior to the selection process. I asked if the applicant was a “friend” of the supervisor and she said that she was, but clarified that she meant that she was not an enemy and had a cordial relationship. It was not clear to me that the applicant meant that there was any difference between her relationship with the supervisor and the relationships the successful candidates had with the supervisor, other than the supervisor had allegedly favoured the successful candidates in conflict with the way an unbiased job competition would progress.

11In more detail than provided in her Application, the applicant also described her failure to obtain the position of residential counsellor posted in July 2010. She said that she intends to produce a witness, a fellow employee, who will say that the successful candidate, a White woman, told this witness and other fellow employees that she had been promised the job by the supervisor before interviews had been conducted. This supervisor was subsequently part of a three-person panel which interviewed the candidates. The applicant’s intended testimony will describe the work experience that she and the successful candidate had, including experience working with clients with behavioural problems, and will allegedly show that the respondent’s proposed evidence (that the successful candidate was more qualified than the applicant) is untrue.

12With respect to the position in the Response that the applicant had not demonstrated her educational credentials while the successful applicant had, the applicant will testify that the respondent had not asked for proof of her educational credentials with respect to the July 2010 position. Only later, in the context of her application for a position posted in September 2010, did the respondent ask the applicant to provide the required educational credentials. The successful candidate for that position was a Black woman from Africa. The applicant says this woman will testify that she did not have the required educational credentials but was offered and accepted the job anyway. The applicant argues that the reason this woman was chosen is because the respondent wanted to cover up its racist hiring practises given that the applicant had filed a grievance alleging racism just prior to the offer to the Black candidate. The applicant says that of the 19 employees now working at the home where the two positions she sought became available in 2010, only this one employee is Black.

13The applicant admits that there are Black, African-Canadians working for the respondent, but she states that the respondent generally has few Black employees with full-time positions, and those who have them had to advocate very hard, proving their credentials and offering references. She says that some will testify to this effect, and at least one White employee will testify that she obtained, without even an interview, a full-time position instead of a qualified Black employee who had seniority over the White employee.

14At this stage, it is not appropriate to make any findings with respect to the applicant’s allegations or the respondent’s defence. The applicant has made allegations that she was treated differently because of her race, colour, ancestry, place of origin and ethnic origin. She has identified specific incidents of alleged discrimination and referenced evidence she claims is available for the hearing.

15For example, if (as she explained at the summary hearing) the applicant’s evidence she plans to adduce at the hearing establishes that she was more qualified than the successful candidates, and that the respondent made its decisions about to whom it would offer positions prior to scoring tests or checking education credentials, then the respondent’s reasons in its Response for offering the positions to other candidates will be significantly weakened, and the respondent will have to address the circumstantial evidence that White candidates were preferred over the applicant. While I make no findings as to the merit of the Application, it is sufficient to say, at this point, that the applicant has satisfied me that she may be able to adduce evidence to establish a link between the events alleged to have occurred and the grounds upon which she made her claim. I cannot find that there is no reasonable prospect that this Application will succeed, and the Application is not dismissed.

Request to Intervene

16The applicant’s union seeks to intervene with full party status because the remedies sought by the applicant relate to the Collective Agreements for its full-time and part-time employees. At the summary hearing, the union clarified that it may also be of assistance with respect to some of the factual differences between the parties.

17The respondent has no objection to whatever role the union wishes to play. The applicant did not oppose the union’s Request to Intervene.

18The Tribunal has found on numerous occasions that a union nearly always has an interest in an application brought by a member of one of its bargaining units and that, absent exceptional circumstances, it will be granted intervention status when it so requests it. See, for example, Bishop v. Grand Erie District School Board, 2011 HRTO 1998.

19In this case, the remedies the applicant seeks have the potential to affect the Collective Agreements for the union’s members, and some of the facts relate to grievances filed by the union on behalf of the applicant, grievances which have since been withdrawn. I find that the union does have an interest in this Application. Accordingly, the Request to Intervene is granted and the union has full party status. The style of cause is amended.

Next Steps

20Mediation was attempted by the parties; therefore, the next step is a hearing. Given new factual particulars provided by the applicant during the summary hearing, the Tribunal directs the applicant’s and the respondent’s attention to Rule 16 and also to Rule 17 of the Tribunal’s Rules of Procedure which requires them to summarize what their witnesses will say at the hearing. The parties should take steps to ensure that the factual allegations upon which they intend to rely at the hearing are set out in the summary of what their witnesses are expected to say at the hearing. The applicant is reminded that she is also considered a witness so that she must provide a summary of what she will say as well, particularly in the circumstances where she has raised facts at the summary hearing which were not in her Application. The parties must ensure that they meet the timelines set in those Rules, timelines that will depend upon the date for which the hearing is scheduled.

21The union is permitted to wait 10 days after receiving the other parties’ summaries of what their witnesses are expected to say before filing any documents and witness summaries of its own.

22The Notice of Hearing will provide other information on how the parties are to prepare for the hearing, and the parties are encouraged to read the Tribunal’s Plain Language Guides and its Rules on its website (www.hrto.ca).

23I am not seized of this matter.