Danilov v. International Financial Data Services-Canada, 2012 HRTO 722

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Dmitriy Danilov

Applicant

-and-

International Financial Data Services-Canada and Marlee McNeil

Respondents

DECISION

Adjudicator: Andrew M. Diamond

Date: April 11, 2012

Citation: 2012 HRTO 722

Indexed as: Danilov v. International Financial Data Services-Canada

appearances

Dmitriy Danilov, Applicant ) Self-Represented

International Financial Data Services-Canada ) Peigi Ross, Counsel and Marlee McNeil, Respondents )

1This case is about the respondents’ decision not to hire the applicant. The applicant alleges that the respondents decided not to hire him because of his disability, which he identifies as anxiety disorder, contrary to section 5 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2On its own initiative, the Human Rights Tribunal of Ontario (“the Tribunal”) determined that this case was appropriate for a summary hearing. The summary hearing is intended to provide an opportunity for early determination of whether there is a reasonable prospect the application can succeed, as well as any other issues identified in the Tribunal’s Case Assessment Directions.

3For the reasons that follow, the Application is dismissed. In the circumstances, the Tribunal finds that there is no reasonable prospect that the applicant could establish a breach of section 5 of the Code as required by Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure.

THE FACTS

4The applicant immigrated to Canada from Russia on February 26, 2010. He has the equivalent of a Bachelors of Business Management from a university in Russia as well as work experience in a bank in Russia. In the fall of 2010, the applicant was using the services of ACCES Employment, a non-profit agency that assists job seekers from diverse backgrounds, who are facing barriers to employment, to integrate into the Canadian job market. On December 2, 2010, the individual respondent, on behalf of the corporate respondent, contacted the applicant to invite him to a job interview. The correspondence suggests that there was some urgency to fill the position in question. The interview apparently took place on December 7, 2010. At the conclusion of the interview, the applicant submits that the individual respondent advised him that he had passed the interview stage and that, subject to the formality of a background check, the corporate respondent would employ him.

5The respondents deny that a job offer was made; however, this summary hearing must proceed on the basis that the applicant would be able to prove that a conditional offer of employment was made, subject to the necessary background check as he alleges.

6On December 14, 2010, the individual respondent emailed the applicant on behalf of the corporate respondent to inform him that, in fact, a better candidate had been located and that he would not be offered a position with the corporate respondent. The applicant says that this decision must have been based on his disability. The applicant identifies his disability as being that he suffers from an anxiety disorder that in stressful situations, such as a job interview, manifests itself by impacting his “speaking ability and body language”.

7The applicant has provided the Tribunal with a report from a psychologist dated January 18, 2012, which states in part that:

Mr. Danilov is a 30-year-old single man who immigrated to Canada in February 2010 and has become anxious, frustrated and depressed in relation to his inability, as yet, to secure employment despite many efforts to improve his education, skills, and contracts and several employment interviews. His current symptoms appear directly related to his difficult life circumstances and are consistent with a diagnosis of Adjustment Disorder with Mixed Anxiety and Depressed Mood. He has no history of any other mental health condition. Under conditions where Mr. Danilov feels stressed, his speech is somewhat dysfluent. This dysfluency [a disorder in which a person repeats a sound, word, or phrase. Stuttering may be the most serious dysfluency] is likely due both to anxiety and a mild residual effects of his childhood stuttering. This dysfluency is noticeable and could be perceived by others as a disability. (Emphasis added).

8The applicant acknowledged in his submissions that he did not advise the respondents that he had a disability; however, he argues that a human resources expert should have training in psychology and with that training should have been able to identify the fact that he suffered from the anxiety disorder by observing his body language and hearing his speech.

9After the applicant was advised that he would not be getting the position the applicant attempted to correspond with the respondents to obtain an explanation as to why he did not get the job. The respondents did not reply. This failure to reply heightened the applicant’s suspicion as to why he was not hired.

HISTORY OF PROCEEDINGS

10In a Case Assessment Direction (“CAD”) dated December 1, 2011, the Tribunal directed, on its own initiative, that the matter proceed by way of a summary hearing pursuant to Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure.

11In the CAD, the Tribunal wrote:

In this case, the issue will be whether, assuming the [Applicant’s] allegations to be true, the allegations may reasonably considered to amount to a violation of the Code in light of the fact that the applicant did not tell the respondent that his behaviour was connected to a disability or ask for accommodation.

12The Tribunal held a summary hearing on February 28, 2012, during which it heard oral submissions from both parties.

ANALYSIS

13Section 5 of the Code states:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

14To establish a violation of section 5 of the Code, the applicant must show that the respondent’s failure to hire the applicant resulted, in some measure, from his having a disability.

15The issue before me in determining this summary hearing is whether the Application has a reasonable prospect of success within the meaning of Rule 19A.1. In other words, I must determine whether the applicant has a reasonable prospect of showing that the respondents’ decision not to hire the applicant was based in any way on the fact that the applicant had a disability.

16In essence, the applicant argues that the Code is engaged because he has a disability and that the respondents should have garnered this (although not told) and made their decision based on this.

17I appreciate that the applicant’s inability to find work in his field in his new country must be frustrating for him, and that this inability to find suitable work has allegedly resulted in him suffering from an Anxiety Disorder. However, I cannot accept the applicant’s argument that this disability was the basis for the corporate respondent not hiring him. First, there is no evidence that the respondents had any knowledge of the applicant’s disability before, during or after his job interview and furthermore, the applicant’s own argument is inconsistent with the decision having been made on the basis of his poor performance in the interview which was caused by his disability. In his submission, the applicant said that after the interview the individual respondent, who had conducted the interview, had advised him that he was to be hired. On the assumption that in fact this was said for the purposes of this Summary Hearing, such a statement is inconsistent with the respondent having denied him his employment based on his performance at that interview.

DECISION

18For these reasons, the Application is dismissed. I find that there is no reasonable prospect that the Application will succeed. In my view, there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that his Code rights were violated by the respondents.