Human Rights Tribunal of Ontario
B E T W E E N:
Siarhei Stalmakh
Applicant
-and-
Loblaws Supermarkets Ltd. and Bridgitte Daniels
Respondent
DECISION
Adjudicator: Mary Truemner
Indexed as: Stalmakh v. Loblaws Supermarkets Ltd.
APPEARANCES BY
Siarhei Stalmakh, Applicant ) Self-represented
Loblaws Supermarkets Ltd. )
and Bridgitte Daniels, Respondent ) Zoe King, Counsel
[1] The purpose of this Decision is to decide whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed in accordance with Rule 19A.1 of the Tribunal’s Rules of Procedure.
BACKGROUND
[2] On July 22, 2010, the applicant, who self-identifies as a “citizen of Belarus, Belarusian, permanent resident of Canada”, filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents reprised and discriminated against him with respect to employment because of his place of origin and citizenship. The personal respondent is a human resources manager for the corporate respondent and appears to be the person with whom the applicant communicated with respect to his efforts to have his experience recognized.
[3] The Application describes the applicant’s frustration in not being transferred from one store owned by the corporate respondent called Maxi Gatineau to another called Loblaws Gloucester so that he was out of work for a brief period of time, and then the respondents refused to recognize his experience with the Maxi Gatineau store in determining seniority for the scheduling of shifts and eligibility for certain benefits at the Loblaws Gloucester store. The respondents instead took the position that the applicant was “hired from scratch” at the Loblaws Gloucester store.
[4] The Application states that another candidate for a position at the Loblaws Gloucester store was selected after the applicant, but began work one week sooner. This other employee is described as a Canadian citizen. It would appear that the applicant believes that the Canadian citizen who although had a start date one week sooner than the applicant, should not have seniority over the applicant because the applicant had been selected earlier than him. It appeared that the other employee’s status of being a Canadian citizenship was the only reason for which the applicant is alleging discrimination because of citizenship and place of origin. The Application is not clear about reasons for alleging reprisal.
[5] On May 19, 2011, the Tribunal issued a Case Assessment Direction, which directed that a summary hearing be held by teleconference to determine whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.
[6] On October 17, 2011, the Tribunal issued a Notice of Summary Hearing to the parties which informed them that the hearing was scheduled for December 1, 2011.
[7] The summary hearing took place by conference call as scheduled, and the parties made submissions. The applicant withdrew his allegation of reprisal.
ANALYSIS AND FINDINGS
[8] Rule 19A.1 of the Tribunal’s Rules of Procedure provides:
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.
[9] Furthermore, in [Dabic v. Windsor Police Service, 2010 HRTO 1994](https://www.minicounsel.ca/hrto/2010/1994), the Tribunal made the following comments at paras. 8-10:
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.
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.
In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
[10] With respect to the allegation of discrimination because of place of origin and citizenship, the applicant confirmed at the summary hearing that his allegations are directed at the allegedly differential treatment as between himself and the employee described in the Application as a Canadian citizen. He explained that he felt that he should have seniority over the Canadian citizen, not because the applicant had previous experience at another Loblaws store, but because the corporate respondent selected him sooner than the Canadian citizen to work at the second Loblaws store. The applicant felt that it was immaterial that his start date was one week after the Canadian citizen’s start date. The applicant had no documents or intended evidence to establish what the corporate respondent’s practice is with respect to determining an employee’s seniority, (if it is something other than an employee’s start date). He had no documents or intended evidence to prove his theory that seniority should be established on the basis of when the corporate respondent tells a job applicant that he or she is successful rather than the first day of employment.
[11] The only evidence that the applicant has to establish discrimination because of citizenship and place of origin is the circumstantial evidence that he is from Belarus and not a Canadian citizen, whereas the person with scheduling seniority is a Canadian citizen. The applicant says that the person doing the scheduling would know what his citizenship and place of origin are because they are indicated on his resume to which the scheduler would have access. When I asked for clarification about the basis of his allegation, that simply having a different place of origin and citizenship from the person granted seniority is enough to establish discrimination, the applicant clarified that it did. The applicant said that if the other employee had been a woman but not a Canadian citizen, then he would have alleged discrimination because of sex.
ORDER
[12] In my view, there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that his Code rights were violated. The applicant has no evidence to demonstrate that any date other than an employee’s start date is how seniority is measured. Beyond alleging that he and the Canadian employee have different places of origin and citizenship, the applicant has not demonstrated that there is a reasonable prospect that evidence he has or that is reasonably available to him can show a link between the respondents’ treatment of him with respect to seniority and his place of origin and citizenship.
[13] Accordingly, the Application is dismissed.
Dated at Toronto, this 13^th^ day of January, 2012.
“signed by”
Mary Truemner
Vice-chair```