Mason v. Clearlane Investments Inc., 2012 HRTO 2155

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Matthew Mason

Applicant

-and-

Clearlane Investments Inc. o/a The Quail and Firkin

Respondent

DEcision

Adjudicator: Jennifer Scott

Decision Date: November 15, 2012

Citation: 2012 HRTO 2155

Indexed as: Mason v. Clearlane Investments Inc.

APPEARANCES

Matthew Mason, Applicant ) Self-Represented

Clearlane Investments Inc. ) David Myers, Representative

) 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 sex.

2The hearing took place on November 9, 2012. The Tribunal heard the applicant’s evidence and the evidence of Sean Redican, the applicant’s co-worker during his employment. At the conclusion of the applicant’s case, the Tribunal asked for the parties’ submissions as to whether the Application had a reasonable prospect of success. This is the decision on that question.

FACTUAL BACKGROUND

3The applicant was employed as a busser by the respondent, Clearlane Investments Inc., operating as the Quail and Firkin, from May 2008 to February 2011. In this position, the applicant took orders, cleared tables and assisted table servers and bartenders with their work.

4After one year of employment, the applicant was promoted from the day shift to the night shift. This change in shift resulted in a significant increase in his overall income.

5For the most part, men and women held different jobs for the respondent. Men worked as kitchen staff and bussers. Women held the jobs of table servers and bartenders. The gender make-up of these positions is confirmed in a staff summary dated November 30, 2010, prepared by the respondent.

6Not surprisingly, bartenders and table servers earned more income than bussers because they received a higher tip percentage. This fact is not disputed by the respondent.

7At no time during his employment, did the applicant express an interest in the table server or bartender positions.

8The applicant resigned his employment in February 2011.

9The Application was filed on February 16, 2012. The applicant alleges the practice of placing women in the positions of table server and bartender discriminated against him because of his gender because it denied him the opportunity to earn more income and devalued him by relegating him to a lower-ranked position.

DECISION

10The Application does not have a reasonable prospect of success and is dismissed.

ANALYSIS

11The issue before the Tribunal is whether the Application has a reasonable prospect of success. In determining this question, the Tribunal will consider one of two questions. Does the allegation of discrimination amount to a Code violation at law; or, can the applicant draw a link between the claim and the alleged prohibited ground of discrimination? The meaning of “reasonable prospect of success” is explained more fully in the case of Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras 8 - 9:

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.

12In this case, the issue is whether the applicant can show a link between his gender and the denial of the table server or bartender positions.

13The applicant has failed to establish that he was disadvantaged by the practice of putting women in the bartender and table server positions because he never applied for or expressed an interest in being promoted to these positions. The applicant applied for the position of busser and never indicated an interest in any other position.

14Although the positions of table server and bartender were held predominately by women, that practice was not absolute. Mr. Redican was a busser at the time of the applicant’s employment. He also held the position of second bartender even though he too never expressed an interest in that position. Another employee, Ben Young, was hired as a busser and later became a bartender.

15Proving discrimination is not a theoretical exercise. One must be disadvantaged on the basis of a prohibited ground of discrimination in order to have recourse to the Code. In this case, the applicant is complaining about a practise that he was not affected by during his employment.

16The applicant claims he did not express interest in the table server/bartender positions because he was afraid of retaliation. He stated employees at the respondent were terminated without just cause. While that may or may not be so, there is no evidence that employees were terminated when they asked for promotions. The applicant conceded that he had no evidence that anyone was terminated after requesting a promotion.

17The applicant has failed to establish that he was disadvantaged by the practice of placing women in the positions of bartender and table server because he never expressed interest in these positions and therefore was not denied these positions because of his gender. For this reason, the Application is dismissed.