HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rotimi Otubela Applicant
-and-
Primary Response (Ontario) Inc., S/O MacDonald, Robert Perry, Mayer Berger and Yvonne MacDonald Respondents
DECISION
Adjudicator: Michael M. Lerner Date: March 22, 2012 Citation: 2012 HRTO 562 Indexed as: Otubela v. Primary Response (Ontario) Inc.
APPEARANCES
Rotimi Otubela, Applicant (Self-represented) Primary Response (Ontario) Inc., and Yvonne MacDonald, Respondents (Yvonne MacDonald, Representative) Mayer Berger, Respondent (Self-represented) S/O MacDonald, Respondent (Did not appear) Robert Perry, Respondent (Did not appear)
1This is an Application filed under s.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 race, colour, ancestry, place of origin and ethnic origin.
2In a Case Assessment Direction dated September 13, 2011, the Tribunal, on its own initiative, directed the matter be scheduled for a summary hearing pursuant to Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure which read as follows:
19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure of witness statements.
3The process to be followed in a summary hearing was set out in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:
[8] 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.
[9] 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.
4The applicant alleges that he was dismissed as a probationary employee of the corporate respondent where he was employed as a security guard at the Trafalgar Campus of Sheridan College.
5The respondents deny that the applicant’s employment was terminated. They maintain that he was offered an alternate position due to a contractual conflict between Sheridan College and the corporate respondent that prevented his continued employment at the Trafalgar Campus.
6Furthermore, they state that while the facts that relate to the incidents that are alleged to give rise to the allegations of discrimination are essentially admitted, there is no link between that conduct and a Code ground.
7I have concluded that when Rule 19A.1 and Rule 19A.2 are applied to the facts of this case, this Application has no reasonable prospect of success and there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that his Code rights were violated.
BACKGROUND
8The summary hearing was initially scheduled for February 15, 2012 to be conducted by conference call.
9Prior to the hearing, the applicant advised the Tribunal that he would be seeking an adjournment to allow him to secure counsel to represent him in this matter. The respondents confirmed that they objected to the adjournment request.
10Rather than rule on the adjournment request prior to the summary hearing, I directed that the adjournment request be treated as a preliminary matter at the commencement of the summary hearing on February 15, 2012. After hearing from the parties, I granted the adjournment, pre-emptory upon the applicant, to March 2, 2012 in order, amongst other things, to permit the applicant to retain counsel.
11In the course of submissions with respect to the adjournment request on February 15, 2012, I was advised that there was a matter pending in the Small Claims Court that was related to the pending application before the Tribunal. I ordered that the Tribunal be provided with a copy of the pleadings in those proceedings to determine the nature of those proceedings and, more specifically, as to whether the Application before the Tribunal ought to proceed.
12The Claim in the Small Claims Court is to enforce an agreement between the applicant and the corporate respondent purportedly addressing a settlement of the issues that are now before the Tribunal. The Claim in the Small Claims Court does not require an adjudication on the merits of the allegations of discrimination but is to enforce the alleged agreement between the parties settling all issues.
13Given the nature of the proceedings in the Small Claims Court, I had no difficulty in concluding that this Application before the Tribunal ought to proceed as it would be the only consideration of the merits of the allegations of discrimination as it relates to these parties.
14At the commencement of the hearing on March 2, 2012, I was advised that the applicant had sent additional correspondence to the Tribunal, copied to the respondents. I did not have the documentation before me. I was advised by the parties that the new correspondence raised new issues and/or was in the form of an argument as to why the matter ought not to proceed.
15Neither party requested an adjournment nor did the applicant ask that the hearing be delayed until such time as I had the opportunity to read that which he had forwarded. In these, circumstances, I elected to proceed.
THE APPLICATION
16The applicant raises four separate incidents that he maintains are evidence of discrimination on one or more of the prohibited grounds as set out in paragraph 5 of his Application. All of the incidents occurred between July 28, 2010 and October 18, 2010 when the applicant states he was wrongfully dismissed.
17Although the applicant maintains that he was wrongfully dismissed on October 18, 2010, he conceded that he has never been advised, either orally or in writing, by the corporate respondent that his employment has been terminated. In fact, the applicant readily acknowledges that, on that day, he was advised that it was necessary to relocate him as he was a student at the Trafalgar Campus of Sheridan College and for him to be employed in the capacity, as a security officer at the institution where he was a student, breached an agreement between the college and the corporate respondent.
18The applicant acknowledges that he was offered an alternate placement that he declined.
THE FIRST INCIDENT
19The applicant had been deployed to a location on campus and, after completing his task, was unable to find his way back to the security base office. He radioed the base office to request directions back to base. Notwithstanding the directions that were provided, the applicant was still unable to find his way back and sought further directions. The applicant alleges that he overheard a conversation between Security Operative “McDonald” and Security Officer “Habib” during which time “McDonald” is alleged to have said that the applicant did not understand English. The applicant’s position is that comment is evidence of discrimination based on race and/or ethnic origin.
20The applicant did not know either “McDonald” or “Habib” personally. He testified that he obtained the names upon overhearing a conversation on his two-way radio and made a note of the names in his duty book. He took no further steps to positively identify these individuals upon his return to the security base office or at any other time. He relies solely upon what he purported to overhear in the alleged conversation.
21The applicant is unable to identify the individual who made the offending statement or, the individual to whom the statement was made notwithstanding he apparently worked with these individuals. He took no steps to report the incident to his superiors.
22Not only does the Corporate Respondent deny the statement, it states it never had employees by the name of “McDonald “or “Habib” posted at the Trafalgar Campus of Sheridan College, nor had individuals with those surnames ever been in their employ.
23I have considered the circumstances surrounding the applicant hearing the offending statement, including his failure to take any steps to identify the individuals, his failure to report the incident, the presumption that the applicant worked with one or both and the respondent’s information with regard to employees with the same last surname. Based upon these considerations, I find that there is no reasonable prospect that the allegations related to this incident can succeed.
THE SECOND INCIDENT
24The applicant was criticized for improperly securing the doors to the Office of the President. In the course of the criticism, he was advised that such carelessness is cause for dismissal. It was subsequently determined that the applicant was not the person responsible for failing to secure the office. It is the applicant’s position that being falsely accused of failing to secure the President’s Office is, of itself, evidence of discrimination because he is black.
25The applicant acknowledged that any other security operative would have received the same treatment if it was thought that individual had done what had erroneously been attributed to him.
26The respondent does not deny this incident occurred. It contends that there is no link between the incident and an allegation of discrimination.
27While it may have been unfair for the respondent to criticize the applicant before it could conclusively establish that he was responsible for failing to secure the President’s Office, his admission that any other employee would have been treated similarly in the same circumstances, without a corresponding allegation that he was subject to unfair discipline, is sufficient to establish this Application on this issue has no reasonable likelihood of success.
THE THIRD INCIDENT
28Two individuals of unknown identify were observed to be in the vicinity of a campus building on surveillance cameras in the security base office. These individuals were presumed to be trespassers. The applicant was dispatched to the location to investigate and, if appropriate, to have the suspects leave.
29Upon arrival, he described the individuals as “one black person and one white person.” As he approached, he directed them to leave and they began to do so. He watched as they left the property without further conversation or incident. He did not ask for identification as he deemed it unnecessary as they had complied with his order.
30Upon his return to the security base, he was chastised for not demanding that the individuals identify themselves. He admits he stated, “I know how black people react to harassment and confrontation, and I did not wish to press the issue for fear of escalating the situation.” He does not attempt to connect this incident with an allegation of discrimination. The position of the employer in inquiring why he did not ask these individuals to identify themselves and criticizing him for not doing so is not unreasonable. There is nothing in this incident that has any reasonable prospect of success of establishing discrimination should this matter proceed to a full hearing.
THE FOURTH INCIDENT
31Finally, the applicant alleges the circumstances surrounding his “dismissal” are evidence of discrimination. The parties agree upon all relevant facts from the time that the applicant reported to work on October 13, 2010 to the subsequent meeting on October 18th when he was offered an alternate placement.
32The details are not of significance. What is important is that the applicant acknowledges that he was never “dismissed” and agrees that an alternate placement was offered with an explanation as to why that was necessary.
33More importantly, at no time during the consideration of this incident, did the applicant even raise the issue of discrimination and when specifically asked to identify the elements of discrimination upon which he intended to rely, he stated that all of the circumstances demeaned him and were discriminatory. I cannot agree. There is nothing the applicant can point to support his allegation and there is no prospect of success on this incident.
34At the commencement of the hearing, I asked the applicant to explain to me the purpose of the summary hearing and what he needed to prove. I am satisfied that the applicant understood the summary hearing process and the burden upon him to convince the Tribunal that his application had a reasonable chance of success. He has failed to do so.
35The applicant was given an opportunity to link the conduct of which he complains to his any of the prohibited grounds. He was unable to do so.
36There is no reasonable prospect that the Application will succeed and it is therefore dismissed.
Dated at Toronto, this 22nd day of March, 2012.
”signed by”
Michael Lerner, Member