Campbell v. Intercon Security Limited, 2013 HRTO 1069

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Donald Campbell Applicant

-and-

Intercon Security Limited Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: June 17, 2013

Citation: 2013 HRTO 1069

Indexed as: Campbell v. Intercon Security Limited

APPEARANCES

Donald Campbell, Applicant Self-represented

Intercon Security Limited, Respondent David Whitten and Daniel Chodos, Counsel

Introduction

1The applicant is employed by the respondent as a security guard. He is currently 67 years of age. The respondent provides security personnel to one of the large bank towers in downtown Toronto and the applicant has worked at that location for some time. He usually is assigned to one of the security desks in a main public area of the building.

2In February 2012 the building was for sale. On February 23, 2012 a group from a prospective buyer toured the building. The applicant was told that he would be replaced for the morning by a security supervisor who is a person in his 20’s. This person is referred to as “W” in this Decision. The applicant alleges that the decision to replace him with a younger person on February 23, 2012 was discriminatory.

3After receiving the Application, the Tribunal concluded that it was not clear how the applicant would be able to prove that the decision to replace him on February 23, 2012 was discriminatory. In a Case Assessment Direction dated March 15, 2013, the Tribunal directed, on its own initiative, that a summary hearing be held to determine if the Application should be dismissed as having no reasonable prospect of success. The Application was delivered to the respondent, but it has not been required to file a Response.

4The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure. In a summary hearing, the issue 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 a part thereof will succeed.

5In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

6The summary hearing was scheduled for June 11, 2013. It was originally scheduled as a telephone conference call hearing but at the request of the applicant, this was converted to an in person half-day hearing.

Evidence That The Applicant Would Expect To Call At A Hearing

7The applicant was asked to explain the evidence that he expects would come out a hearing if the Application were to proceed to a hearing on the merits.

8The applicant indicated that although he was re-assigned on February 23, 2012, he actually ended up back at his regular desk because W, the supervisor who was assigned to his regular desk, had to leave to respond to an emergency. As a result, he was at his desk when the group from the prospective buyer went by. He noted that everyone in the group was young, and they all seemed to be in their 20s and 30s.

9The next day, W told him that W felt that the applicant should not have been replaced at the desk on February 23. W said that if it happened again, he would go to the Human Resources department with the applicant. As the applicant was leaving the workplace on February 24, he encountered a co-worker who told him that the applicant had been replaced on February 23 because of the applicant’s age. The co-worker is in his mid-20s.

10The applicant said that about two weeks later, he had a meeting with the manager who had made the decision to replace him on February 23. The applicant emphasized at the hearing that he has always had a good working relationship with the manager and that he holds her in high regard. The manager told him that it had been decided that it was preferable to have a supervisor at the desk for the February 23 tour and that this was the reason for the re-assignment.

11The applicant said that several months later, another person in the respondent’s management made a comment about the bank tower wanting “fresh faces” on security desks and the applicant took this to be a reference to age.

12The applicant said that he has had continuing discussions with W about W’s knowledge of what transpired on February 23. He said that a few weeks ago, W gave him a typed statement although W refused to date or sign the statement. The statement indicates that on February 23, W was told by the respondent’s manager that a person (who is named in the statement) in a senior position with the bank tower management (e.g. the respondent’s client) had requested of the manager that the applicant be removed from his regular desk for the duration of the tour and that the reason for the request was that “Security Guard Campbell was old and short and did not provide enough presence at the desk.”

13The applicant was asked if W was willing to attend a hearing on the applicant’s behalf. W has indicated that he does not want to attend a hearing. The applicant indicated that he may be forced to subpoena W and that he expects W to testify that the written statement that the applicant has produced was composed by W and that the contents of the statement are true.

14Counsel for the respondent objected to the statement produced by the applicant. Counsel noted that the document was produced just before the hearing and that the respondent had not had an opportunity to investigate. Counsel also noted that the applicant has filed a number of packages of documents, consisting mostly of notes that the applicant has made and that the statement from W was not mentioned in any of the earlier packages.

15The applicant was asked about this and he said that he had been unable to get any written statement from W until very recently and that he had not wanted to mention the information from W until he could get a statement. He had been hoping that W would agree to sign the statement.

16The applicant said that in addition to the statement, he understands from W that W sent a report or email close in time to the events on February 23. The report or email was sent by W to senior management of the respondent and the applicant believes that this document included reference to the conversation mentioned in the more recent unsigned statement that the client wanted the applicant removed because he was too old.

17The applicant said that this document, which he believes exists as a result of his conversations with W would provide evidence to support his allegation of age-related discrimination. This is a document that is in the control of the respondent and he has no opportunity to access it or ask that the respondent produce it at this stage in the proceedings.

18In his submissions at the hearing the applicant also mentioned age-related discriminatory comments that he alleges have been made to him by a co-worker. However, he clarified that these comments are not related to the events alleged in the Application, which is limited to his re-assignment on February 23, 2012.

Conclusions

19In a summary hearing, an Application can only be dismissed if there is no reasonable prospect that it could succeed. The applicant alleges that he was replaced on his desk by a younger person because the respondent did not want him at his desk for the tour by the prospective buyers because he is old. If this allegation were true, it would be prima facie evidence of discrimination. The issue in this case is how the applicant is going to be able to prove that the allegation is in fact true. At a summary hearing, the applicant is not required to actually prove the allegation. He is only required to point to the evidence that he has in his possession and/or the evidence that he believes will be available at the hearing that will support his allegations.

20In this case, the applicant states that he anticipates that W will testify at a hearing and provide testimony that is consistent with the information set out in the statement that the applicant says W gave to him only recently. He also believes that further support may be available in an email or report that W sent around the time of the alleged incident.

21It is far from clear that W will in fact testify at the hearing in the manner that the applicant anticipates. I note that even if he does, the information in the statement may not be consistent with the applicant’s account of what occurred. As well, any eventual decision on the merits of the Application will be based on all of the evidence. However, at this stage in the process, I am satisfied that it cannot be said that there is no reasonable prospect that the applicant will be able to show that he experienced discrimination on the basis of age in respect of the decision to replace him at the desk on February 23, 2012.

22The Tribunal will continue to process the Application. The next stage in that processing is for the respondent to file a Response to the Application. That Response shall be filed within 35 days of the date of this Interim Decision. The applicant may file a Reply after he receives the Response. The applicant is directed to wait until he receives the Response before filing any further documents with the Tribunal in regard to this Application.

DECISION

23The Decision is not dismissed at this time. The respondent shall file a Response to the Application.