HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Theresa Girdharrie Applicant
- and-
Cardinal Fasteners, A Division of Talbot Sales Inc., and Front Line Work Force Inc. Respondents
INTERIM decision
Adjudicator: Ian R. Mackenzie Date: February 29, 2012 Citation: 2012 HRTO 430 Indexed as: Girdharrie v. Cardinal Fasteners
APPEARANCES / wRITTEN SUBMISSIONS
Theresa Girdharrie, Applicant ) Samantha Seabrook, Counsel Cardinal Fasteners, Respondent ) D. Gordon Bent, Counsel Front Line Work Force, Respondent ) Aris Ablachim, Student-at-law
1Theresa Girdharrie filed an Application 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 age. A Notice of Hearing of the Application on the merits was scheduled for February 21-22, 2012. The respondents subsequently requested a summary hearing to determine whether this Application should be dismissed on the basis that there is no reasonable prospect that it would succeed. The request was granted by the Tribunal in a Case Assessment Direction (“CAD”) issued on December 28, 2011.
2The CAD stated that “having reviewed the materials in this file, it appears that the applicant may be unable to prove” a link between the alleged actions of one or both respondents and a Code ground of discrimination. The CAD directed the applicant to make argument about why the Application should not be dismissed as having no reasonable prospect of success, and also directed her to point to the evidence on which she will rely to prove a link between the actions of the respondents and the prohibited ground of age.
Background
3The applicant made allegations in her Application and further allegations in the course of the summary hearing. The respondents dispute the allegations. For the purposes of the summary hearing, I have assumed the allegations to be true.
4The applicant worked at Cardinal Fasteners from 2000 to 2005 through a personnel agency (Staff Plus Agency). Cardinal Fasteners is a supplier of packaged industrial fastener hardware products and services. The applicant worked as a packager. In 2005 she left employment with Cardinal Fasteners to pursue a training opportunity. In April of 2007, the applicant returned to work at Cardinal Fasteners through Staff Plus. In July of 2007, Cardinal Fasteners changed its personnel agency to Front Line. At the request of Cardinal Fasteners, employees with Staff Plus were transferred to Front Line.
5On October 5, 2009, the applicant was laid off from her job at Cardinal Fasteners. She was 58 years old at that time. She alleges that a co-worker who was 22 years old and had worked for two years with Cardinal Fasteners was not laid off and was hired as a permanent employee of Cardinal. She also alleges that Cardinal Fasteners consistently hired younger individuals as permanent employees.
6The applicant called Front Line on or about October 5, 2009 to advise that she had been laid off. She alleges that she told Front Line about her concerns that age was a factor in the lay-off decision and in the decision to offer a permanent position to the other employee. Front Line denies that it was made aware of the permanent hiring of the other employee until the filing of the Application.
7The applicant did not state her age in any of the documents she was required to provide to Front Line as part of her employment relationship. Front Line states that it was not aware of the applicant’s age until the filing of the Application.
Submissions
8The applicant submitted that a full hearing of the Application is necessary because the link between age and the termination of employment rested on an assessment of credibility and the weighing of circumstantial evidence. She submitted that there was no clear evidence of discrimination but that it was more likely than not that age was a factor in the decision to terminate the applicant’s employment.
9The respondent Front Line stated that it was not aware of the age of the applicant until the filing of the Application. It also states that it had no knowledge of or influence over Cardinal Fastener’s decision to hire or lay-off. The contract between Cardinal Fasteners and Front Line states that all hiring decisions are in the sole control and discretion of the client (Cardinal Fasteners).
10The respondent Cardinal Fasteners alleged that there were performance related concerns with the applicant. It submitted that it hired the other employee because she was a very fast worker, because of her positive attitude, and because of her experience on a particular packaging machine. It alleged that the applicant had a negative attitude.
11The respondent Cardinal Fasteners submitted that the Tribunal had no authority to examine general complaints of unfairness and that the applicant’s allegations were based on suspicions and perceptions.
Decision
12The issues to be addressed in a summary hearing can include the following:
a) assuming all the allegations to be true, can those allegations be reasonably considered to amount to a violation of the Code; and/or
b) is there a reasonable prospect that evidence the applicant has, or that is reasonably available to her, can show a link between an event and the alleged ground of discrimination (in this case, age).
See Dabic v. Windsor Police Service, 2010 HRTO 1994.
13It is not appropriate at a summary hearing for the Tribunal to make any factual or legal findings with respect to the applicant’s allegations. See Taylor-Cole v. Orangeville Police Association, 2011 HRTO 2285 at para. 11. For the reasons set out here, I am unable to conclude that the applicant has no reasonable prospect of success in establishing a link between the events alleged to have occurred and the Code protected ground of age. The Application will therefore continue in the Tribunal’s process.
14In determining whether the applicant can show a link between the proposed evidence and age discrimination, it is useful to examine what the applicant must establish in a full hearing on the merits to demonstrate a prima facie case. In hiring and promotion cases based on circumstantial evidence, the following elements have been found to be sufficient to establish a prima facie case of discrimination: Clennon v. Toronto East General Hospital, 2009 HRTO 1242 at paras 75-78 (“Clennon”):
a) that the applicant was qualified for the particular employment;
b) that the applicant was not hired; and
c) that a considerably younger employee who was no better qualified than the applicant subsequently obtained the position.
15The burden of establishing a prima facie case has been described as “not an onerous one”: Clennon at para. 77. The only fact not in dispute is that the applicant was not hired as a permanent employee. It is disputed that the applicant was not qualified and that the younger employee was no better qualified. It is therefore not possible to conclude that there is no reasonable prospect that the applicant will establish a prima facie case.
16If a prima facie case is established, the respondent can then provide evidence to show that it had a non-discriminatory reason for not offering the applicant the permanent position. The respondent has submitted that the applicant had a negative attitude and that there were issues relating to her productivity. It also alleges that the employee selected for the permanent position had a positive attitude. The applicant disputes this. Evidence will be required to come to any conclusion on these disputed facts.
17Accordingly, I cannot find that there is no reasonable prospect of success of the Application as against Cardinal Fasteners.
18The allegation against Front Line is that it was aware of the discriminatory conduct of Cardinal Fasteners and did not take appropriate action. In Couchie v. Ontario (Municipal Affairs and Housing), 2011 HRTO 689, at para. 75, the Tribunal concluded that the personnel agency had legal control over the applicant and on this basis it owed a legal duty not to condone the Ministry’s discrimination. The applicant was an employee of Front Line. It is contested whether or not, and to what extent, Front Line was aware of the circumstances of the lay off and the permanent hiring of the other employee. It is also disputed whether or not the applicant brought her concerns to the attention of Front Line. Front Line has also relied on its contract with Cardinal Fasteners that states that permanent hiring is at the sole discretion of Cardinal Fasteners. In a summary hearing it is not appropriate to make findings of fact when those facts are in dispute. In my view, in order to make a finding of no reasonable prospect of success, it must be both plain and obvious (assuming all the allegations to be true) that a respondent did not act contrary to the Code. In this case, it is not possible to reach that conclusion.
19Accordingly, I cannot find that there is no reasonable prospect of success of the Application as against Front Line.
20In her submissions, the applicant made allegations that are not contained in her Application. In light of the stage of these proceedings, the applicant is directed to provide a witness statement that includes all of her intended testimony within the time period specified in Rule 17 of the Tribunal’s Rules of Procedure.
21In her submissions, the applicant also made allegations that Cardinal Fasteners had offered permanent employment to young employees in other job categories. I have not considered these allegations in this decision. The issue of whether similar fact evidence is appropriate in the circumstances of this Application is an issue that can be addressed by the adjudicator assigned to hear the Application on the merits.
22The Tribunal orders:
a. The request to dismiss the Application is dismissed;
b. The applicant is required to provide a witness statement with the additional allegations within the time period specified in Rule 17; and,
c. The Application will be scheduled for a hearing.
23I am not seized.
Dated at Toronto, this 29th day of February, 2012.
”signed by”____________
Ian R. Mackenzie
Vice-chair