Martin v. White Shark Ltd., 2012 HRTO 975

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Andrew Martin

Applicant

-and-

White Shark Ltd. and Roger Singh

Respondents

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: May 15, 2012

Citation: 2012 HRTO 975

Indexed as: Martin v. White Shark Ltd.

APPEARANCES

)

Andrew Martin, Applicant ) Self-represented

)

)

White Shark Ltd. and Roger Singh, Respondents ) No one appearing

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (‘the Code”), in which the applicant alleges that the respondents discriminated against him on the basis of race, colour, and ethnic origin with respect to employment. The applicant self-identifies as an African-American Rastafarian man of Jamaican origin.

2Although in his Application the applicant also indicated that he had been subject to sexual solicitations or advances, during the summary hearing he clarified that he was not claiming that he had been discriminated against in this manner. Rather, he ticked off the box for sexual solicitation or advances because he intended to indicate that the respondents had unjustly accused him of sexual harassment.

3A summary hearing was held in this matter on the Tribunal’s own initiative on May 11, 2012. Pursuant to Rule 19A of the Rules of Procedure, a summary hearing is to determine whether an Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed. If, following a summary hearing, the Tribunal finds that an application has no reasonable prospect of success, it will be dismissed. In the absence of such a finding, the Application will continue to be processed by the Tribunal.

4The applicant participated in the summary hearing. The respondents, who received notice of the summary hearing, did not attend the hearing.

5The applicant submits that he worked for the respondents as a Production Agent and/or a Crew Leader from October 2009 until the respondents terminated his employment in April 2011. The applicant submits that the respondents terminated his employment on April 7, 2011 on the stated basis that he had been observed sexually harassing a young woman by yelling at her from his company vehicle while he was working on April 4, 2011. The applicant vehemently denies that he engaged in the behaviour in question. Moreover, he submits that the decision to terminate his employment was because of his race, colour and/or place of origin.

6In particular, the applicant contends that his race, colour and/or ethnic origin played a role in the fact that the respondents were quick to believe that he had engaged in the misconduct in question – and to terminate his employment on that basis – without even asking the applicant about the alleged incident. By contrast, the respondents did ask the applicant’s Caucasian co-worker on the day in question about what had happened.

7The applicant further submits that even though the April 4, 2011 complaint that led to his dismissal states that “two of [the corporate respondent’s] male employees seemed to be enjoying yelling at and apparently taunting a young woman … who was trying to cross the street,” the applicant was the only one who was dismissed by the respondents because of the alleged incident. The Caucasian employee he was working with on the day in question was not dismissed. Moreover, the applicant submits that it was actually his Caucasian co-worker who would hang out of the vehicle window and call out to women on the street, not the applicant. The applicant submits that these facts support his claim that the termination of his employment was based on his race, colour and/or ethnic origin.

8The applicant submits that he also intends to prove that the decision to terminate his employment was based in whole or in part on his race, colour and/or ethnic origin by presenting evidence that the respondents tended to treat misconduct by their Caucasian employees more leniently than misconduct by African-American employees.

9In addition, the applicant submits that the fact that the respondents have unfairly perceived and/or attempted to characterize the applicant as “aggressive”, including in its Response to the Application, illustrates a racial bias against the applicant. The applicant submits that this supports his claim that the respondents’ decision to terminate his employment was motivated in part by his race, colour and/or ethnic origin.

10At this stage, it is not appropriate to make any factual or legal findings with respect to the applicant’s allegations. Suffice it to say that, having heard and considered the applicant’s allegations, 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 grounds of race, colour and/or ethnic origin. The Application will therefore continue in the Tribunal’s process.

11During the summary hearing, in explaining how he intended to prove that the decision to terminate his employment was linked to his race, colour and/or ethnic origin, the applicant provided further particulars that do not appear to be contained in the Application. In addition to certain allegations outlined above (which is not intended to be, and is not, an exhaustive recital of all of the issues and/or allegations in this matter), the applicant submits that the respondents frequently imitated his Jamaican slang in a patronizing manner.

12The Tribunal directs the applicant to put any particulars which are not already contained in the Application, whether or not referred to above, in writing and to deliver them to the respondent and file them with the Tribunal within 14 days of the date of this Decision. The respondent may respond in writing to these additional allegations within 14 days of receipt. The applicant may file his written reply to the response to the allegations in question within 14 days of receiving it.

DIRECTIONS

13The Application will continue in the Tribunal’s process.

14The applicant is required to put the additional particulars that he raised during the summary hearing in writing so that the respondents are fully aware of the case against them. The applicant is directed to send such written particulars to the respondents and the Tribunal within 14 days of the date of this Interim Decision.

15The respondents are directed to respond in writing to the additional particulars within 14 days of receiving the above-noted materials from the applicant and to send their responses to the applicant and the Tribunal.

16The applicant may reply to the respondents’ response(s), if he wishes to do so, within 14 days of receiving the response(s).

17I am not seized of this matter.