HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Derrick Shaw
Applicant
-and-
Robin Cox
Respondent
DECISION
Adjudicator: Denyse Diaz
Indexed as: Shaw v. Cox
APPEARANCES
Derrick A. Shaw, Applicant
Self-represented
Robin Cox, Respondent
Jason Green, Counsel
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, colour, ethnic origin, disability, gender identity and age. At the Summary Hearing the applicant indicated that the grounds were age, race and gender.
2The respondent, Robin Cox, is the Chair of the English and ESL School at Centennial College of Applied Arts and Technology (the “College”).
3The Tribunal issued a Case Assessment Direction (“CAD”) dated September 15, 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 on the basis that there is no reasonable prospect that it will succeed.
4The 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 respondent’s actions and the grounds cited, given the explanation of events in the Response.
5The summary hearing was held on February 17, 2012 by teleconference. All of the parties participated.
The Applicant’s position
6The applicant was employed as an English and ESL instructor for the 2010 Fall semester in the School of Advancement at the College. He self-identifies as a “black male”. He was first hired under an employment contract in September 2010, which ended in December 2010.
7The applicant alleges that the respondent did not renew his employment contract for the winter session because she had discriminated against him based on his age, race and gender. He reports that in December 2010 when he questioned the respondent’s decision, he was advised that he was unsuitable to teach the class and that she had observed minor class management issues. He asserts that the respondent did not spend sufficient time in the classroom to conduct a fair and complete assessment, and in her written assessment she also questioned whether he had a lesson plan. He believes that if he was of “Caucasian ethnicity” the respondent would have approached him more “sympathetically”. He also asserted that because the majority of English teachers were not visible minority males, it could be interpreted as evidence of “possible” bias against “visible minority males”.
8The applicant was asked what evidence he intended to rely on that would show that he has experienced discrimination contrary to the Code as alleged in his Application. The applicant indicated that he had filed a Request for an Order During Proceedings, requesting a “Statistical Comparative Analysis of new hires/ non renewed English Professors (2006-2011) @ Centennial College School of Advancement”. He is of the belief that this analysis would show that Ms. Cox, as Chair of English and ESL School has a bias against visible minority males in hiring and rehiring.
9He was asked if he could think of any other thing that happened between him and Ms. Cox work that might show discrimination contrary to the Code. He could not provide any. He stated that the unfair treatment he received from Ms. Cox along with the data he wanted produced, can allow a person to “draw inferences” that she discriminated against him because of his age, race and gender.
Respondent’s Position
10The respondent denies that she breached any Code grounds when she decided not to offer the applicant another “fixed-term contract” for the Winter. The respondent stated that she interviewed the applicant for the position as a “sessional partial load instructor” for a developmental English course, in the ESL and English program. This course was designed to help international students improve their oral, written and reading skills and ran three times a week for a total instruction time of 8 hours. Ms. Cox hired him without interviewing other candidates.
11Ms. Cox claims that her decision to not offer Mr. Shaw another contract was based on several factors. These include that he was disorganized, maintaining few records of his work; he continuously relied on a Coordinator who was assigned to initially familiarize the applicant with the curriculum and proper assessment techniques; he was essentially unable to use a computerized voice program which was intended to develop the students’ verbal skills; he was apparently unaware that Ms. Cox would be visiting his classroom to observe his teaching methods on a specified date, although he was previously notified; he had very poor class management, which she observed; he failed to prepare and submit a lesson plan, as required; he failed to attend his scheduled feedback session, and; he failed to reschedule the session although advised to do so.
12The respondent also claims the applicant did not contact her following his missed session until near the end of the term to ask about obtaining a new contract and only arranged to meet with her when he was told that he was not going to be offered another one. Ms. Cox further claims that in the discussion and subsequent e-mails the applicant admitted his deficiencies and undertook to improve his performance.
13Ms. Cox hired the applicant directly, after an in person interview and she also refused to renew his contract within a three month period. She argues that if she was concerned about his age, race or gender she would not have hired him and would have continued interviewing other persons who had applied for the position.
Law and Analysis
14In 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.
15As noted in the CAD, the Tribunal does not have the power to deal with allegations 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 be able to prove, on a balance of probabilities, a link between the respondent’s alleged actions and a Code ground. 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 age, race and gender.
16The assertion that a person is of a certain age, race and gender 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.
17In the Response filed it appears that Ms. Cox has offered a reasonable, non-discriminatory explanation for her decision to not offer another contract to Mr. Shaw. The applicant at the Summary Hearing was unable to point to any evidence that he has or is reasonably available to him that arguably could support a finding that Ms. Cox’s refusal to offer him another employment contract amounts to discrimination based on age, race or gender.
18The applicant is seeking the creation and disclosure of a statistical analysis of new hires/non renewed English Professors over a five year period, which he believes could allow someone to “infer” that the respondent violated the Code. In my view there is an insufficient basis on which to order the creation and disclosure of such a document. The theory that this may provide support for the applicant’s case is entirely speculative, or in other words it is a “fishing expedition”. The applicant also is relying on his anecdotal information that most of the instructors in the English department were not visible minority males. Even if that was true, there are a number of factors which could explain this, which were not considered by the applicant.
19The applicant also did not point to any evidence to support his allegation that Ms. Cox discriminated against him because of his age. Even in his application he indicated age was “possibly” one of the factors.
20In Abdul v. York University, 2011 HRTO 1851, at para. 17, the Tribunal stated:
The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.
While Mr. Shaw may genuinely believe that he was unfairly treated, his allegations are based on assumptions, which have no evidentiary basis to prove that he was discriminated against on the basis of a Code-related ground.
21For these reasons I 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 respondent, Robin Cox discriminated against him or even treated him differently as compared to others based on his age, race and gender. On these facts, I find that there is no reasonable prospect that this Application will succeed.
Order
22The Application is dismissed.
Dated at Toronto, this 15th day of October, 2012.
”signed by”
Denyse Diaz
Member