Bill (Bela) Gazsi v. Cascades Recovery Inc., 2012 HRTO 1899

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bill (Bela) Gazsi

Applicant

-and-

Cascades Recovery Inc.

Respondent

DECISION

Adjudicator: Alison Renton

Date: October 5, 2012

Citation: 2012 HRTO 1899

Indexed as: Gazsi v. Cascades Recovery Inc.

APPEARANCES

Bill (Bela) Gazsi, Applicant ) Self-represented )

Cascades Recovery Inc., Respondent ) Carissa Tanzola, Counsel

1The applicant filed an Application with the Tribunal under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on September 2, 2011, alleging discrimination in employment on the basis of age.

2The respondent filed a Response as well as a Request for Summary Hearing (“the Request”). The applicant filed a Reply, alleging that he was also discriminated against on the basis of sex (gender) as well as a Response to a Request for Order During Proceedings.

3The Tribunal issued a Case Assessment Direction dated December 19, 2011 (“the CAD”) granting the respondent’s Request. The Tribunal stated that a half-day summary hearing by teleconference would be held and stated that the applicant would proceed first to make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which he will prove a link between the respondent’s actions and the grounds cited.

4The Tribunal issued a Notice of Summary Hearing dated January 11, 2012, scheduling the Summary Hearing for March 26, 2012. This was rescheduled to April 11, 2012, as the respondent was not available on the previously scheduled date. Both parties participated in the hearing. During the hearing, the Tribunal heard first from the applicant, then the respondent, and then heard reply submissions from the applicant. The submissions made during the summary hearing as well as the materials filed by the parties have been considered by the Tribunal.

the applicant’s submissions

5The applicant alleges that he applied for a position of accounting manager with the respondent, which had been advertised on the internet. He received one interview, in July 2011, and then a second interview in August 2011, which, he claims, demonstrates that he was qualified for the position. During the second interview, he alleges that the hiring manager asked him what year he graduated from university, and the applicant told her 1982. Initially, the applicant alleged that a “Maria”, the hiring manager, asked this question. After receiving the respondent’s Response and Request, and hearing their submissions during the Summary Hearing, the applicant stated that he got the name wrong on the Application and it should have been Ms. Ferraro rather than “Maria”. The applicant alleges that Ms. Ferraro, a female, is younger than he is.

6The applicant did not get the position, and he submitted that he “feels” that he did not receive it because of his age and sex (gender). Specifically, he alleges that Ms. Ferraro disqualified him because he is “a bit older” and male and he suggests that Ms. Ferraro already had in mind the female accounting manager to promote. The applicant learned from the respondent’s materials that the person who was subsequently hired for the position was also female and somewhat younger than the applicant.

7The applicant asserts that he was qualified for the position and he reviewed his qualifications against the requirements for the position. He asserts that he cannot determine whether the incumbent was also qualified, or younger, unless he has the opportunity to cross-examine her during a hearing. Otherwise, he asserts, he has no way of proving whether she is younger or older than he is, or more pr less qualified. During the interview, Ms. Ferraro did not ask him about being dynamic, in response to the respondent’s position as to part of the reason why the applicant did not ultimately receive the position

8The applicant takes issue with the timing of the respondent’s internal posting. He questions why the internal posting, which was produced by the respondent, shows an original date of “10/30/09” and a revised date of “05/12/10”, and asserts that the internal posting should show the date that it was posted. He also questions why the respondent would interview a number of external candidates when it was restructuring and submits that it could have posted the position internally rather than externally.

the respondent’s submissions

9In its materials, the respondent denies that the applicant was discriminated against. It disputes that the applicant was asked the year that he graduated from university and notes that there was no “Maria” involved with the hiring process, although there is a “Maria” in the accounting department. Anna Ferraro, a manager, was involved in the second interview. The respondent submits that even if the applicant was asked what year he graduated, this does not determine the applicant’s age and is not, in and of itself, discriminatory. The respondent notes that the applicant’s résumé, which he provided as part of his application for employment, listed his work experience in chronological order starting in 1989.

10The respondent submitted that as part of its selection process, it was looking for a candidate who was dynamic, with the right fit, as the respondent’s former accounting manager (“the manager”) had been demoted and would be reporting to the new accounting manager. The respondent submits that around the same time as it was interviewing candidates for the accounting manager position, it purchased a facility in southwestern Ontario which also had an accounting manager.

11After interviewing a number of candidates, including the applicant, the respondent determined that none of the candidates were suitable for the position. Because of the acquisition of the new facility, the respondent decided to internally post for a new accounting manager. Ultimately, a female was promoted to the accounting manager position and a male, who was the accounting manager at the newly acquired facility, was provided with additional duties. Both internal accounting managers were qualified and not substantially younger than the applicant.

12It is not sufficient, the respondent submits, for the applicant to claim that he needs to cross-examine the incumbent to determine if she was qualified for the position. The applicant could have obtained information about the incumbent by asking the respondent, or requesting that the Tribunal order the respondent to produce information about the incumbent.

LAW AND ANALYSIS

13Rule 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.

14In 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.

15Based on the Application, the relevant provisions of the Code are as follows:

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

10(1) In Part I and in this Part,

“age” means an age that is 18 years or more;

23.(2) The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

(3) Nothing in subsection (2) precludes the asking of questions at a personal employment interview concerning a prohibited ground of discrimination where discrimination on such ground is permitted under this Act.

16In 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 Macyshyn v. Toronto Catholic District School Board, 2011 HRTO 1068.

17In this case, I find that the applicant has not been able to point to any evidence that could establish a link between his allegations of discrimination during the interview process and the Code, even assuming his allegations to be true. Even if Ms. Ferraro did ask the applicant what year he graduated, in this context, it does not amount to a violation of the Code. The answer to this question does not, by itself, identify the applicant’s age. The applicant, on his résumé, provided his work experience from 1989 onwards which, by itself, would have given the respondent a general idea of the applicant’s age. Furthermore, to the extent that the comment was made, it was made during an in-person interview after Ms. Ferraro had the opportunity to see the applicant.

18During the Summary Hearing, the applicant stated that he “feels” that he was discriminated against because he was male and “a bit older” and that Ms. Ferraro, a female, had in mind another female to promote. This bald assertion, without more, is not sufficient to allow the Application to proceed. As stated in Lunar v. Canadian Real Estate Investment Trust, 2012 HRTO 28, at para. 13, in which an applicant alleged that a younger person was hired to replace her:

With regards to age, her only allegation is that a younger person was hired to replace her. Even if the applicant was able to establish that the person hired to replace her was younger than she, this single fact would not be a sufficient basis on which the Tribunal could draw an inference that the respondent’s treatment of her was based on her age. A simple difference in age from the person subsequently hired is not sufficient to demonstrate age discrimination. The applicant must make more than a bald allegation of discrimination.

19Furthermore, other than questioning the dates of the internal posting and stating that Ms. Ferraro did not ask him questions about being “dynamic”, the applicant does not suggest that the respondent’s failure to hire him, restructure its existing accounting arrangements upon the purchase of another facility, and post the position internally was a scheme designed to prevent him specifically from getting the position.

20Finally, regarding the applicant’s position that he does not know whether or not the incumbent is qualified and that he could only obtain this information from cross-examining her, again I find that the applicant’s bald assertion to be lacking in substance. As the Tribunal explained in Preddie v. Saint Elizabeth Health Care, 2011 HRTO 2098, at para. 25, while discrimination based on various grounds can be subtle and hard to detect, an applicant must nevertheless provide some reasonable basis for making allegations of such discrimination. It is not sufficient to claim discrimination as a member of a group protected under the Code and to look to a hearing process before the Tribunal as the means to discover whether such discrimination occurred; there must be some reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the events alleged and a prohibited ground. In this case, the applicant has not suggested any evidence that he has or that would reasonably be available to him to show a link between the events alleged and the prohibited grounds raised in his Application.

21Accordingly, for the reasons set out above, the Application has no reasonable prospect of success and is therefore dismissed.