Loose v. Ontario (Education), 2012 HRTO 2125

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dirk Loose

Applicant

-and-

Her Majesty the Queen in Right of Ontario

as represented by the Minister of Education

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: November 9, 2012

Citation: 2012 HRTO 2125

Indexed as: Loose v. Ontario (Education)

APPEARANCES

Dirk Loose, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Education, Respondent

Jonathan Rabinovitch, Counsel

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 with respect to employment because of age.

2In the Application and the Reply, the applicant stated that he had worked under contract with the respondent’s Provincial Schools Branch from February 2007 to June 2009. He stated that for much of that time he worked as a support analyst regarding Trillium/OnSIS software. In October 2011, he responded to an advertisement placed by the respondent for the position of Trillium/OnSIS support analyst. The applicant followed up with the manager responsible for hiring for this position, who informed the applicant that he was not selected for an interview. Although the hiring manager did not know the applicant from his earlier work with the respondent, the applicant concluded that, given his experience, the only explanation for rejecting him as a candidate was his age. The applicant’s date of birth was October 9, 1955.

3The respondent filed a Response along with a Request for Summary Hearing. The respondent acknowledged that the applicant applied for a publicly-posted position, but submitted that the Application does not set facts that could establish a violation of the Code. Rather, the applicant merely stated a subjective belief that the respondent discriminated against him because of age.

4The respondent noted that the applicant was one of 30 people who responded to the job advertisement, of whom six were selected for interview. The respondent did not interview the applicant, but denied that his age was a factor in the decision to interview him. The respondent asserted that the curriculum vitae ("CV") and cover letter the applicant submitted gave no indication of his age; therefore, his age was unknown to those responsible for hiring. The applicant stated that the respondent decided not to interview the applicant for reasons other than age, but did not specify what those reasons were.

5By Case Assessment Direction (“CAD”) dated April 10, 2012, the Tribunal ordered a summary hearing to determine whether the Application should be dismissed because it has no reasonable prospect of success. The hearing was conducted by telephone conference on July 18, 2012.

Submissions

6The applicant submitted that he had performed the position for which he applied in his earlier contract work with the respondent. He submitted that he had helped develop the job description for both the Trillium information system and the OnSIS system and his work for the respondent had been well received. Consequently, he was surprised when he was not offered an interview. He understood that the respondent eventually hired someone from outside the education system who could not have the skills the applicant possessed regarding the systems involved. The applicant acknowledged that the hiring manager had no knowledge of his age. However, the applicant submitted that the respondent's explanation that the applicant was not interviewed “for reasons other than age” implied that someone else who was aware of his age was involved in the hiring process. The applicant theorized that the superintendent to whom the applicant would have been known participated in candidate selection.

7The respondent reviewed several of the Tribunal's decisions regarding the evidence an applicant must point to in order to avoid a finding that his or her Application has no reasonable prospect of success. The respondent submitted that an applicant must point to objective facts that could support a finding of a Code violation and cannot rely upon subjective suspicions or speculation. The respondent submitted that the applicant had not advanced any material facts to support his allegations of age discrimination. Rather, the applicant speculated that the respondent took steps to ascertain his age and declined to hire him because of his age. The respondent submitted that the applicant pointed to no evidence to support these allegations and relied on his subjective belief, which is insufficient pursuant to the Tribunal's jurisprudence.

Analysis and Decision

8The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paragraphs 8-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

9For the purposes of this summary hearing, the applicant was required to point to evidence that he has or is reasonably available to him that would indicate that his age was a factor in respondent's decision not to interview him. The Tribunal’s jurisprudence is clear that bare assertions or speculation are insufficient to avoid a finding that an Application has no reasonable prospect of success. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at paragraph 22. The mere fact that the successful candidate is older or younger than the applicant is insufficient foundation for an age discrimination allegation without evidence linking the hiring decision to the applicant's age. Lunar v. Canadian Real Estate Investment Trust, 2012 HRTO 28, at paragraph 13, and Zholudev v. EMC Corporation of Canada, 2012 HRTO 626, at paragraphs 24, 32 and 55.

10In my view, the applicant's position is entirely speculative. The applicant conceded that the hiring manager did not know his age and he pointed to no evidence that his CV or cover letter revealed his age. The respondent submitted that it did not interview the applicant for “reasons other than his age”. The applicant submitted that this explanation implied that personnel who knew the applicant's age must have been involved in the process. With respect, I do not see how respondent's explanation could lead to this conclusion. The applicant pointed to nothing that would support this conclusion other than his own conjecture and speculation. Consequently I find that the applicant pointed to no evidence that he has or is reasonably available to him that the respondent was aware of his age when it decided not to offer him an interview. The applicant also did not point to any evidence regarding the ages of the candidates the respondent interviewed. While differences in age among candidates are not sufficient in itself to establish age discrimination, it is necessary in my view for an applicant to establish that his age distinguished him from the other candidates. In these circumstances, I find the applicant has no reasonable prospect of establishing that his age was a factor in the decision not to offer him an interview.

Order

11The Application is dismissed.