Sikora v. Sofina Foods Inc., 2013 HRTO 1053

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Miroslaw Sikora

Applicant

-and-

Sofina Foods Inc.

Respondent

DECISION

Adjudicator: Jay Sengupta

Date: June 12, 2013

Citation: 2013 HRTO 1053

Indexed as: Sikora v. Sofina Foods Inc.

APPEARANCES

Miroslaw Sikora, Applicant Self-represented

Sofina Foods Inc., Respondent Barry Brown, Counsel

Introduction

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 with respect to employment because of race, place of origin, citizenship, ethnic origin and age. Specifically, the applicant alleges that he was subjected to discrimination because he does not speak Vietnamese. He says that because he did not speak Vietnamese, he was singled out, treated differently than other workers by being ignored and not spoken to by supervisors, not provided with equal opportunities, including being denied training opportunities, and his employment was terminated.

2The respondent denies the allegations. It says the applicant was terminated during his 90 day probation period as a result of unsatisfactory performance. The respondent says he was warned about the issues with his performance and did not improve. The respondent also says he did not raise any issues with respect to discrimination while employed by the company.

3The respondent filed a request for a summary hearing on June 13, 2012 on the basis that the Application did not have a reasonable prospect of success. The respondent argued that, even if true, the allegations did not constitute a breach of the Code and there was no reasonable prospect that the applicant could show a link between his allegations and the Code.

4On August 21, 2012, the Tribunal refused the respondent’s request for a summary hearing.

5The matter was scheduled for a hearing in March, 2013. At the outset, the respondent renewed its request that the Application be dismissed on a summary basis and argued that although a similar request had previously been denied, the Tribunal now had the added benefit of having all documents the parties intended to rely upon and the applicant’s witness statement before it. I heard submissions from the parties regarding that request.

6For the reasons that follow, the Application is dismissed.

DECISION

7The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is whether the 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.

8In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal provided the following guidance:

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.

9As the Tribunal explained further in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

10In Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, the Tribunal made the following observation regarding when the issue of dismissal for no reasonable prospect of success could be considered:

Typically, summary hearings are held at a relatively early stage in the Tribunal’s process and do not involve calling witnesses. Summary hearings typically involve receiving the applicant’s submissions on his or her legal theory and what evidence he or she anticipates calling at the merits hearing in support of the allegations. In my view, the principle that an application should be dismissed because it has no reasonable prospect of success is not limited to the initial early stage of the Tribunal’s process.

11The respondent characterized its request as one seeking dismissal on both the basis of the applicant not having established a prima facie case as well as pursuant to the Tribunal’s Rules governing summary hearings.

12Having reviewed the written materials filed by the applicant, including his detailed witness statement and having heard oral submissions from the parties, I find that the applicant has not satisfied me that there is any reasonable prospect that the Application will succeed.

13The applicant alleges discrimination on the basis of race, place of origin, citizenship, ethnic origin and age. He self identifies his race as being white European, his place of origin as Poland, his citizenship as Polish Canadian, his ethnic origin as Polish and indicates he is 52 years old.

14He says that he felt he was isolated and the supervisors who were of Vietnamese origin did not talk to him, singled him out and treated him differently by not training him and pointing out his mistakes. He also alleges that his employment was terminated because of the Code grounds identified by him.

15He argues that in those ways he experienced differential treatment, that resulted in him being disadvantage. However, in making this argument, he provided me with a number of examples that served only to undercut his position. In his submissions, the applicant cycled between various grounds of discrimination, relying on a different ground of discrimination when a previously asserted ground did not appear to make sense or fit his narrative.

16For example, although he says he was singled out for mistakes made because of his inability to communicate in Vietnamese, he also says he had to stand up for a co-worker who was similarly poorly treated who happened to be Vietnamese-speaking. When asked to address this apparent discrepancy, the applicant indicated it must have been because he is of Polish origin.

17In respect of being denied training opportunities, he says he was not trained on how to operate a machine he referred to as a “matrix” despite having been there for three months. He says that two others that began work with him had received the instructions and training from the same supervisors of Vietnamese origin.

18However, it is clear from his own written materials that one of the workers who did receive the training in question was a woman who was herself also of Polish origin and who, like the applicant, did not speak Vietnamese. When asked to address this discrepancy in his argument, the applicant indicated it was likely because he was not Canadian born or because of his age. This despite his admission that those who were in the position of providing the training were themselves not Canadian born.

19Although he alleges that the respondent’s termination decision was tainted by discriminatory considerations, a review of his written materials and witness statement show that his assertions are unsupported by any cogent supporting evidence.

20To succeed in his Application the applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination in this case, the applicant must prove a link between the alleged discriminatory actions and the Code grounds he has identified.

21Apart from his bald assertions that race, place of origin, citizenship, ethnic origin and age were factors, the applicant was unable to point to any evidence that would be available to him that would show a link between the actions he complains about and the various prohibited grounds that he has pleaded.

22Accordingly, the Application is dismissed.