Malcolm Grant v. Bombardier Inc., 2012 HRTO 578

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Malcolm Grant Applicant

• and-

Bombardier Inc. Respondent

DECISION

Adjudicator: Ian R. Mackenzie Date: March 20, 2012 Citation: 2012 HRTO 578 Indexed as: Grant v. Bombardier

WRITTEN SUBMISSIONS

Malcolm Grant, Applicant: Self-represented Bombardier Inc., Respondent: Carolyn Picard, Representative

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 age and reprisal. The applicant alleges that he was not considered for positions with the respondent because of his age and because he had filed an application against the respondent.

2In a Case Assessment Direction (CAD) issued on November 8, 2011, the Tribunal ordered a summary hearing to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. Summary hearings are normally conducted by teleconference call. The applicant requested that the hearing be done in writing. The respondent did not object. In a CAD issued on December 16, 2011, I granted the request to conduct the summary hearing in writing.

3The November 8, 2011 CAD also directed the respondent to provide documentation to support its assertions in its Response to the Application.

4The respondent provided an amended Response on November 29, 2011.

5The applicant filed a Request for an Order during a Proceeding (RFOP) after written submissions were received from both parties. In the RFOP he submitted that the respondent should not be permitted to change its Response and to rely on information it had not disclosed in its original Response. The respondent did not provide any submissions in reply to the RFOP. I have addressed this RFOP below.

Background

6The applicant is a 55-year old former employee of the respondent. He was laid off in 2002. He resigned from Bombardier in 2004. In 2008, the applicant filed an Application against the respondent, alleging that he had suffered a reprisal under the Code. The Application was dismissed in a decision issued in 2009, 2009 HRTO 965. The adjudicator concluded at paras. 8-11:

It is clear from the terms of section 8 that a claim of reprisal cannot stand on its own, absent any attempt to claim or enforce a right under the Code, institute or participate a proceeding under the Code or refuse to infringe the right of another person.

The Tribunal does not have a general power to evaluate employment relationships, but hears only applications that allege violations of the Code. See: Matthews v. Stanley, 2008 HRTO 372. The Code prohibits discrimination in employment on the grounds of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability. None of the applicant’s submissions claim that he is a person who belongs in any of the protected grounds listed in the Code, whose right to equal treatment has been violated based on one of the identified grounds.

Even if section 8 is broad enough to protect against reprisals individuals who honestly, but mistakenly, believe they have suffered discrimination under the Code, it cannot apply where the applicant fails or refuses to identify what ground of discrimination he believes applies to him.

I am satisfied that the applicant has not raised issues that are in the Tribunal’s power to decide.

7A reconsideration request of this Decision was dismissed: 2009 HRTO 1324.

8In 2011, the applicant filed this Application alleging that he has not been considered for jobs that he has applied for because of his age and the fact that he filed an Application in 2008.

9The respondent states that the applicant applied for four positions since 2008. One position was filled internally by recalling employees on the recall list (as required by the relevant collective agreement). The postings for two positions were cancelled and no one was hired. The posting for one position was cancelled and then re-posted nine months later. The applicant did not apply for the re-posted position. The respondent states that it has not interviewed any external candidates for the postings that the applicant applied for.

Submissions

10The applicant submitted that the respondent should not be permitted to amend its Response. He submitted that the respondent was retroactively changing its position to fit the documentation that was available. He submitted that the respondent should have submitted an RFOP requesting permission of the Tribunal to amend its Response. The applicant submitted that the respondent should have put its full defence forward in its initial Response.

11The applicant submitted that he had registered with the automated job posting system and should have received notice of reposted positions. He contends that his application was buried by the respondent. He also states that an email rejection notice he received with regards to one of the positions did not mention that the posting was cancelled. The email informing him that he was not selected referred to his experience and qualifications.

12He also submitted that the addition of the word “junior” to the job title of Junior Structures Design Engineer was discriminatory towards older applicants.

13The applicant also alleges that his resume was retained by the respondent in its data base and considered for other positions. He alleges that he was not contacted by the automated system for other jobs that he was qualified for. He also submitted that the Professional Engineers of Ontario had confirmed that the respondent had hired a number of recent engineer graduates. The applicant also provided a seniority list that listed recent external hires for one of the positions.

14The applicant submitted that the only new factors relating to his applications for employment since the 2009 HRTO decision were his 2008 Application and that he has now passed the respondent’s early retirement age limit of 55.

15The respondent submitted that the Tribunal does not have the power to address allegations of unfairness. In addition, bald allegations of discrimination or reprisal are not sufficient. The respondent stated that the applicant must also have applied to a position in order to claim discrimination or reprisal. It was the responsibility of the applicant to apply for positions that he believed he was qualified for. The respondent also submitted that the title “junior” refers to the ranking of the position and its pay grade.

Decision

16The applicant has alleged two grounds of discrimination: age and reprisal for exercising his rights under the Code. To succeed in his Application, the applicant must be able to prove, on a balance of probabilities, a link between the alleged actions of the respondent and a ground of discrimination under the Code: Dabic v. Windsor Police Services, 2010 HRTO 1994, at para. 9. He must also be able to establish that the respondent intended to reprise against him for exercising his rights under the Code: Noble v. York University, 2010 HRTO 878, at para. 31.

17The applicant submitted that the respondent should not be permitted to submit a revised Response without first receiving the permission of the Tribunal. The November 8, 2011 CAD required the respondent to provide further documentation to support its assertions contained in its original Response.

18As noted in Taylor-Cole v. Orangeville Police Association, 2011 HRTO 2285 at para. 14:

It must be remembered that the summary hearing process is intended to dismiss – typically at an early stage, before relevant documents, witness lists and witness statements have been exchanged by the parties – only those applications which would have no reasonable prospect of success if they were to proceed to a hearing on the merits. It is not intended as a mechanism by which to dismiss applications on the basis of technical deficiencies in the pleadings. Indeed, one of the central purposes of the summary hearing process is to afford the applicant an opportunity to point to the evidence by which she intends to establish a link between the disadvantageous treatment complained of in the application and a prohibited ground of discrimination under the Code: Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 9-10. In describing the evidence by which she intends to prove that her rights under the Code have been infringed, it is not uncommon for an applicant during a summary hearing, particularly summary hearings which take place at an early stage in the Tribunal’s process, to refer to particulars or factual allegations that are not contained in the application. Typically, these allegations are taken into account by the Tribunal in determining whether the application ought to be dismissed as having no reasonable chance of success …

19A similar observation can be made in respect of respondents. This summary hearing has occurred before any disclosure of arguably relevant documents. Respondents are permitted to rely on documents and statements not reflected in the original Response filed with the Tribunal. In any event, the amended Response is not significantly different from the original Response.

20After reviewing the information filed by the respondent, I have concluded that the applicant has not demonstrated that his Application has a reasonable prospect of success. The applicant is no longer an employee of the respondent and is therefore considered to be an external candidate in any job postings. It is the case that either internal candidates were selected for the positions the applicant applied for, or the job posting was cancelled. It is therefore not possible for the applicant to demonstrate that he was not hired for these positions because of his age or a reprisal.

21His statement that he should have been considered for other positions because he had requested this option in his online profile is not an allegation of discrimination. The Tribunal does not have jurisdiction to address general concerns about fairness. The applicant has not shown what evidence is available to show that he was not considered for other positions because of reprisal or age.

22His allegation that one of the job postings used “junior” in its title was discriminatory is not related to his original Application. This was for a position that he did not apply for when it was re-posted. In any event, the word was clearly used to denote the position of the job within the job hierarchy and is not a reference to age.

23Accordingly, the Application is dismissed.