Jiang Zhao v. Toronto Community Housing Corporation, 2012 HRTO 2187

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jiang Zhao

Applicant

-and-

Toronto Community Housing Corporation

Respondent

DECISION

Adjudicator: David A. Wright

Date: November 22, 2012

Citation: 2012 HRTO 2187

Indexed as: Zhao v. Toronto Community Housing Corporation

APPEARANCES

Jiang Zhao, Applicant

Richard Miller, Counsel

Toronto Community Housing Corporation, Respondent

Christina Henderin, Counsel

Introduction

1The applicant applied for a position with the respondent as a custodial maintenance person, after doing a similar job for the respondent through a third-party contractor. His résumé was screened by the hiring committee together with approximately 200 other applicants, and he did not obtain an interview. Thirty-two people were hired, some of whom were younger and at least one of whom was older than the applicant, who was 53 years old at the relevant time. The applicant alleges that he has been discriminated against because of his age. The issue in this Decision is whether the Application should be dismissed on the basis that it has no reasonable prospect of success, without requiring disclosure from the respondent.

BACKGROUND

2In November 2010, the respondent posted the position of Custodial Maintenance Person 1 (“CMP1”). The respondent states that it received over 200 applications for this position. The hiring committee screened these applications, pursuant to policy, according to how well an applicant’s résumé reflected the requirements for the position. It says that the hiring committee would not have been aware of the ages of the individuals whose résumés it was evaluating, and it treated individuals who worked on its properties through third-party contractors in the same manner as other outside applicants. At the end of the competition, the respondent says, approximately 32 individuals were hired who ranged in age from 25 to 62 years old.

3The applicant had been working as a maintenance person since June 2009 at two of the respondent’s buildings. He was hired and paid by an independent contractor, BiView Building Services. The majority of the work he did in this position was similar to the job of a CMP1. The applicant identifies three people who he believes are no better qualified than him, including some he worked with, who were hired in the competition. There is nothing other than speculation that the respondent’s records might show something different to suggest that the hiring committee knew the applicant’s age or in fact gave preference to people who worked for contractors.

4The respondent filed a Request for Summary Hearing shortly after filing its Response. The Request was granted and a summary hearing was directed by Case Assessment Direction dated March 21, 2012. The summary hearing was held on July 5, 2012.

ANALYSIS

5The approach on a summary hearing was set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, 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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

6This case is of the second type. The issue at the summary hearing stage is whether there is no reasonable prospect that the applicant can prove a link between his age and the decision not to grant him an interview for the CMP1 position.

7The applicant emphasizes two principal facts in arguing that a link can be made to the ground of age. First, he says, he had a year and a half of work experience for the respondent through his work for BiView, and the failure to grant him an interview in such circumstances raises particular concerns about age-based discrimination since he was obviously qualified for and familiar with the work. Second, he has identified three individuals who are younger than him and who were hired, giving rise to a concern about age discrimination. He argues that this is all that should be required of an applicant at this stage of a case alleging discrimination in hiring, noting that he requires disclosure of résumés, e-mails and documentation only in the hands of the respondent to put forward the evidence to show that age was a factor in the respondent’s decision.

8The applicant relies heavily upon the test for prima facie case in hiring and promotion cases originally set out in Shakes v. Rex Pak Ltd. (1981), 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001, which suggests that a prima facie case is established if an applicant shows (1) that he or she was qualified for the particular employment; (2) that he or she was not hired; and (3) that someone no better qualified but not identified with the ground alleged subsequently obtained the position. This test then suggests that the respondent must provide evidence to rebut an inference of discrimination. The applicant argues that since he has provided a credible basis to meet three of these elements, the Application must proceed past the summary hearing stage. In light of the fact that the applicant is qualified, was not hired, and others who are younger than him were hired, this Application must proceed, he says. He suggests that Girdharrie v. Cardinal Fasteners, 2012 HRTO 430, at para. 15 supports this position.

9Various cases have expressed concern about the use of the traditional prima facie case analysis as a rigid test in Ontario’s current human rights system. For detailed discussions see Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482, at paras. 56-62 and Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, at paras. 12-29. I have previously stated my view that the concept of prima facie case is largely unhelpful in the context of summary hearings: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 18. Moreover, other cases have emphasized that the Shakes test is not a rigid approach that defines a prima facie case in every hiring case, for example Canada (Human Rights Commission) v. Canada (Attorney General), 2005 FCA 154, at paras. 25-30 and the cases it cites.

10In considering whether an applicant’s allegations of discrimination in hiring have no reasonable prospect of success, the Tribunal has generally taken an approach that looks at the full context and the parties’ theories of the case rather than narrowly evaluating whether the applicant alleges facts that could satisfy each element of the Shakes test. In Diab v. Ontario Lottery and Gaming Corp., 2011 HRTO 2093, for example, the Tribunal looked at all the circumstances and found that the applicant had not alleged anything about the facts of the particular competition that was out of the ordinary or suspect and required the respondent to provide an explanation for its decision. In Asseli v. Community Living Ajax Pickering Whitby, 2012 HRTO 187, in contrast, after looking at all the facts, the Tribunal determined that there were various factors, including the applicant’s allegations that she was more qualified than the successful candidate, evidence about the experiences of other employees, and the overall racial makeup of the workplace, that supported the proposition that the Application had a reasonable prospect of success. In Girdharrie, above, the applicant was an employee with nine years’ seniority who was laid off at the same time as a much more junior, younger employee with much less experience was given a permanent job. In all these circumstances, the Tribunal concluded that an assessment of credibility and the facts was necessary.

11In my view, the technical application of the Shakes criteria suggested by the applicant does not reflect the analysis to be applied on a summary hearing. Rather, the analysis should consider all the circumstances in light of an understanding of discrimination and how it may be proven through circumstantial evidence. As set out in Diab, the issue is whether there is anything about the circumstances of the particular competition that is suspect or may be out of the ordinary and requires the respondent to provide an explanation for and/or disclosure to justify its decision.

12In this case, the job in question was not specialized. It was a general maintenance position in a very large organization. Many people can be expected to have met the qualifications. The respondent made the decision that it would not give any priority to individuals who had worked for it in the past through an independent contractor, a decision that is not alleged to raise any human rights concerns. The respondent had individuals on its hiring committee screen the large number of résumés that were received, and there is nothing beyond speculation to suggest that any of the individuals on that committee knew the applicant or were aware of his age. The respondent hired 32 people, at least one of whom was older than the applicant, and at least three of whom were younger than him. There is no basis other than speculation and the applicant’s view that his prior experience working on TCHC property should have been enough to give him an interview to suggest that the screening process was a pretext for age.

13In particular, given that many people would have met the qualifications and that at least one person older than the applicant was hired, there is nothing about the circumstances of this competition that requires further explanation or disclosure. It is clear that behind the Application is the applicant’s view that priority should have been given to individuals who had worked for the respondent through an independent contractor. However, this is not a human rights issue and there is nothing other than speculation to suggest that the applicant’s age was a factor in how the respondent screened the applicant’s résumé in relation to the many other people who applied for this position. There is no reasonable prospect that the applicant can prove that age was a factor in the screening decision.

DECISION

14The Application is dismissed on the basis that it has no reasonable prospect of success.