Exil v. Liberte Brand Products, 2012 HRTO 382

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jean Exil

Applicant

-and-

Liberte Brand Products, Inc. and Sylvia McKinnon

Respondents

DECISION

Adjudicator: Sheri D. Price

Date: February 27, 2012

Citation: 2012 HRTO 382

Indexed as: Exil v. Liberte Brand Products

APPEARANCES

Jean Exil, Applicant ) Self-represented

Liberte Brand Products, Inc. and Sylvia )

McKinnon, Respondents ) No one appearing

INTRODUCTION

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (‘the Code”) in which the applicant alleges that the respondents discriminated against him on the basis of race, colour, place of origin, ethnic origin, and citizenship with respect to employment.

2Pursuant to a Case Assessment Direction dated October 25, 2011, the Tribunal directed that a summary hearing be convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that the Application or part of the Application will succeed.

3The summary hearing was held by teleconference on February 17, 2012. The applicant was given an opportunity to explain how he could prove his allegations that the respondents discriminated against him on the basis of race, colour, place of origin, ethnic origin, and citizenship with respect to employment. The respondents did not attend the summary hearing.

4For the reasons that follow, I find that the Application has no reasonable prospect of success. The Application is dismissed accordingly.

BACKGROUND

5The facts upon which this Decision is based, are the facts as asserted by the applicant.

6The applicant self-identifies as a Black man from Haiti.

7The applicant applied to the corporate respondent for employment as a general labourer. The personal respondent, a Human Resources Generalist with the corporate respondent, telephoned the applicant on or about July 13, 2011 to conduct a telephone interview for the position in question. However, the applicant was unable to speak to the personal respondent when she first called because he was on the other line with his mother, who was very ill, long distance. Later that day, the applicant emailed and telephoned the personal respondent, explaining why he had been unable to speak to her when she had first called, and asking the personal respondent to call him back with respect to the general labourer position.

8The personal respondent did call the applicant back the following morning and gave him a five to ten minute telephone interview for the general labourer position. At the end of the telephone interview, the personal respondent told the applicant that she would be conducting telephone interviews of some other candidates and that she would call the applicant back if he were selected for an in-person interview.

9The personal respondent subsequently called the applicant to invite him to an in-person interview at the corporate respondent’s offices on July 19, 2011.

10The applicant met with the personal respondent when he attended for the in-person interview on July 19, 2011. The applicant submits that the personal respondent interviewed him for 10 to 30 minutes during which time the applicant and the personal respondent spoke about the position and the applicant’s past work experience. Following this, the personal respondent told the applicant that she was going to find out if the supervisor was available to give the applicant a tour of the plant.

11The applicant submits that the personal respondent left him alone in a room for five to 10 minutes before returning and telling him that the supervisor was not available to give the applicant a tour of the plant at that time. The applicant submits that the personal respondent sat down in the room with him but did not speak to him. The applicant submits that he felt uncomfortable sitting in a room with the personal respondent not talking, and so he initiated a conversation with her. The applicant asked the personal respondent some questions about her experience working with the corporate respondent, which she answered. The applicant states that the personal respondent also asked him some questions about where he was from (the applicant had previously told the personal respondent that he was from Haiti) and about how his mother was doing (the applicant had previously told the personal respondent that his mother was very ill).

12The applicant submits that after about five minutes, the personal respondent told the applicant that she wanted to find out if the supervisor was now available to give the applicant a tour of the plant. The applicant submits that, after one or two minutes, the personal respondent returned to the room where the applicant was waiting and told the applicant that the supervisor was not yet available to give the applicant a tour of the plant, but that he was going to come and get the applicant as soon as he was available. The applicant submits that the personal respondent then left him alone in a room by himself to wait for the supervisor.

13The applicant submits that he waited for about one or two minutes before the supervisor arrived and took the applicant on a tour of the plant. After the tour, the applicant and the supervisor sat down and talked for a couple of minutes about the corporate respondent’s business and the supervisor’s involvement with it. During that conversation, the applicant told the supervisor that he wanted to see the personal respondent before he left so that he could find out when she would make a final decision about the general labourer position. According to the applicant, the supervisor told him that he could not meet with the personal respondent again, but that if he had not heard from her within a couple of days, then the applicant should call the personal respondent to find out the final decision.

14On July 21, 2011, having not heard from the respondents following his July 19, 2011 interview, the applicant emailed the personal respondent asking for her final decision about the general labourer position. The personal respondent did not respond to the applicant’s email.

15On July 22, 2011, the applicant telephoned the personal respondent. He did not reach her, but he left her a message asking for her final decision on the job in question. Again, the applicant received no response to his inquiry.

16A few days later, on July 27, 2011, the applicant sent a letter to the personal respondent accusing her of racism and discrimination and informing her that he intended to bring this Application under the Code.

17The respondents responded to the applicant’s July 27, 2011 letter by denying that they had discriminated against the applicant. The respondents also told the applicant that the personal respondent had not responded to the applicant’s July 21 and 22, 2011 inquiries because she had been too busy to get back to him. The applicant does not accept this explanation.

18The applicant contends that the respondents discriminated against him when the personal respondent left him alone in a room on July 19, 2011 during the interview process; when the personal respondent failed to respond to the applicant’s July 21, 2011 email and his July 22, 2011 telephone message; and when they decided to hire someone other than the applicant to fill the general labourer position.

ANALYSIS

19The Tribunal’s power to hear and determine human rights applications is based on the Code, which, among other things, prohibits discrimination with respect to employment on the basis of the grounds set out in the Code. The Tribunal does not have the power to remedy mistreatment, discrimination, or harassment which is not based on a prohibited ground in the Code. Thus, in order to succeed in his Application, the applicant would have to prove not only that he was mistreated by the respondents during the interview and/or hiring process, but that such mistreatment was linked to a prohibited ground in the Code.

20The applicant explains that he felt that it was rude and disrespectful for the personal respondent to have left him alone in a room, particularly since the personal respondent did not have anything else she had to do at the time (as evidenced by the fact that at one point while he was waiting in the room alone, the applicant allegedly saw the personal respondent in the hallway “doing nothing”). The applicant may very well feel this way. However, whether or not the personal respondent had a legitimate need to leave the applicant alone, in my view, the applicant has no reasonable prospect of success in proving that being left alone in a room for a few minutes constituted the sort of disadvantageous treatment required in order to establish a claim of discrimination.

21Even if the applicant could establish that the personal respondent treated him in a disadvantageous manner by leaving him alone on July 19, 2011, there is no evidence upon which the Tribunal could conclude that this or any of the respondents’ other actions were linked to the applicant’s race, colour, place of origin, ethnic origin, and citizenship – a link that the applicant would have to establish in order to prove that the respondents infringed his rights under the Code.

22The applicant asserts that when the personal respondent learned, upon seeing him for the first time on July 19, 2011, that the applicant was Black, the personal respondent wanted to avoid being in a room with the applicant. However, there is no evidence to prove that allegation. There are no facts alleged about what the personal respondent said or did, for example, that, if proven, would allow the Tribunal to conclude that the personal respondent left the applicant alone in a room because he was Black. Moreover, even if the personal respondent did not have to leave the applicant alone (i.e. because she needed to go do something), that is not evidence that the personal respondent left the applicant alone because he was Black.

23Nor are there any facts alleged that, if true, could support a finding that the personal respondent failed to respond to the applicant’s July 21, 2011 email or his July 22, 2011 telephone message in whole or in part because of the applicant’s race, colour, place of origin, ethnic origin, or citizenship. The applicant submits that the fact that the personal respondent called him three times before she found out on July 19, 2011 that he was Black (twice when she was attempting to interview the applicant by telephone; and a third time to invite him to an in-person interview) is evidence that the personal respondent’s failure to communicate with the applicant after July 19, 2011 was based on the applicant’s race, colour, place of origin, ethnic origin, or citizenship. However, I cannot agree.

24In the absence of anything more, the mere fact that the personal respondent failed to respond to the applicant’s July 21 and July 22, 2011 inquiries after learning that the applicant was Black is not a sufficient evidentiary basis upon which to conclude that the personal respondent failed to respond to the applicant’s inquiries because he was Black.

25Finally, the applicant has no reasonable prospect of success in proving that the respondents’ decision to hire another candidate for the general labourer position was based in whole or in part on the applicant’s race, colour, place of origin, ethnic origin, or citizenship.

26The applicant submits that the respondents acknowledged that he was very well qualified for the job in question and that this shows that the decision not to hire him must have been based on his race, colour, place of origin, ethnic origin, and/or citizenship. However, the mere fact that the applicant was not hired for a job for which he was well qualified is not a basis upon which to conclude that the applicant’s race, colour, place of origin, ethnic origin, and/or citizenship played a role in the respondents’ decision to hire another candidate. There are simply no facts alleged that, if proven, would allow the Tribunal to find that the respondents’ hiring decision was based in whole or in part on discriminatory grounds under the Code.

27The applicant may honestly believe that the respondents treated him as they did because he is Black or otherwise because of his race, colour, place of origin, ethnic origin, and/or citizenship. However, the applicant’s belief that the respondent mistreated him on the basis of such prohibited grounds is not evidence that the respondents did so. It is not open to the Tribunal to make a finding of discrimination or harassment based only on the applicant’s assertions, feelings or beliefs. The Tribunal cannot find that the respondent discriminated against the applicant unless there are facts alleged that, if true, would allow the Tribunal itself to conclude that the respondents’ actions towards the applicant were linked to a prohibited ground of discrimination under the Code. There are no such facts alleged in this case.

28The applicant’s claim that the respondent discriminated against him with respect to employment on the basis of his race, colour, place of origin, ethnic origin, and/or citizenship therefore has no reasonable prospect of success and must be dismissed.

ORDER

29The Application is dismissed.