Li v. Lazar Yitzchok/Lazar Gourmet, 2013 HRTO 1307

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chu Wing (James) Li

Applicant

-and-

Lazar Yitzchok/Lazar Gourmet

Respondent

DECISION

Adjudicator: Naomi Overend

Date: July 26, 2013

Citation: 2013 HRTO 1307

Indexed as: Li v. Lazar Yitzchok/Lazar Gourmet

APPEARANCES

Chu Wing Li, Applicant

Doug Wilkins, Counsel

Lazar Yitzchok/Lazar Gourmet, Respondent

Andrew Zabrovsky, Counsel

Introduction

1The applicant, James Li, applied for a job with the respondent company, and received a telephone call from the company’s controller. The applicant states that he was offered an interview on that call, and was in the process of arranging an interview, when the controller hung up on him mid-conversation. The applicant tried calling the respondent back, but states that he was again hung up when the controller recognized his voice.

2The applicant filed this Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of disability. He states that the call was terminated prematurely once the controller heard him speaking, thus denying him the opportunity to interview for the position for which he applied. He was born with cerebral palsy and this has affected his speech.

3The respondent denies that the applicant was offered an interview, and that the controller determined during this call that the applicant was not a suitable candidate. The controller denies hanging up on the applicant on the first call, or receiving a second call from the applicant.

4For the reasons set out below, I accept that the applicant was offered an interview, but that this offer was effectively rescinded once the respondent became aware of the applicant’s speech impediment. I find that this amounts to discrimination on the basis of disability.

Decision and analysis

The Nature of the Applicant’s Disabilities

5The applicant identified as having a number of disabilities, two which are relevant to this proceeding: namely, cerebral palsy and bi-lateral hearing loss. The applicant testified that the cerebral palsy affects him in a number of ways, including his speech and the motor control in his hands. The applicant testified that his bi-lateral hearing loss makes it difficult for him to hear in certain circumstances.

6The applicant submitted documents prepared by his doctor and psychologist in support of his application to the Ontario Disability Support Program, which outlined these (and other) disabilities. Moreover, his disabilities were evident when he testified. He frequently had to ask to have questions repeated to him because he could not hear them, and found it easier when counsel used the microphones in the hearing room, and when he was able to read the lips of the person asking the question.

7Moreover, the applicant’s speech, although understandable, was clearly affected. Sometimes his speech was slurred and difficult to understand, his tone went up and down as he spoke, and he had to sometimes repeat partially completed phrases in order to finish his sentence or convey his thoughts. I was able to observe that the applicant’s cerebral palsy made speaking more difficult, and that it affected his speech.

8Counsel for the respondent suggested in argument that the applicant’s speech impediment would not be obvious to someone who did not know him. I do not agree with this suggestion. An individual hearing the applicant for the first time might not know the underlying cause, but they would understand that the applicant had an impediment which made his speech more laborious and difficult to understand.

9Likewise, the impact of the cerebral palsy on the applicant’s hand movements was discernible when he navigated the document books on the witness stand. I have no difficulty accepting that this would make him write things down more slowly.

The Incidents

10The parties do not dispute that the respondent placed a brief ad in the Toronto Star for an accounting clerk on December 21, 2011. They also agree that the applicant submitted a resume and covering letter for the position shortly thereafter, and that an employee with the respondent phoned the applicant on December 22, 2011, having reviewed his application.

11There was some difference of opinion about who called from the respondent. The respondent took the position that it was Prem Nauth, the company’s controller; while the applicant said he spoke with a woman, whose name he did not get or, at least, remember. The successful candidate for the position, Anna Gavrilova, testified that the person she spoke with on December 23, 2011 was Mr. Nauth.

12When Mr. Nauth testified in these proceedings, I was able to observe he had a soft-spoken and relatively high-pitched voice. A person hearing him speak over the telephone might mistakenly believe they were speaking to a woman. During cross-examination the applicant’s counsel did not challenge Mr. Nauth’s testimony that he was the person who phoned and spoke with the applicant on December 22, 2011. I accept Mr. Nauth’s testimony in this regard.

13Likewise, the applicant did not challenge the successful candidate’s evidence that she applied for the position and received a call from Mr. Nauth on December 23, 2011. She was invited in for an interview and was hired that day or the next.

The Applicant’s Position

14The applicant testified that he received a phone call from the respondent’s representative (whom I will refer to as Mr. Nauth from this point forward) on December 22, 2011. His phone records show that the call commenced at 2:40 p.m. and was less than three minutes in length. He said that Mr. Nauth indicated that he was calling about the accounting clerk position he had applied for.

15The applicant’s testimony was not clear on the sequence of events. That is, there was some confusion in the applicant’s testimony with respect to whether he was advised at the outset of the call that he was being called to arrange an interview, and then asked questions, or whether he was asked questions and then advised he was being invited to the respondent’s offices for an in-person interview.

16In any event, the applicant testified that he was asked a few general questions, such as whether he was familiar with ACCPAC (accounting software) and general ledgers, and he answered in the affirmative. He said this part of the conversation involved very little talking on his part.

17The applicant’s testimony is clear with respect to the last part of the conversation, which he said involved making arrangements for the interview, which was to take place the following day. He testified that at this point, it was necessary for him to talk to Mr. Nauth, and that his speech and hearing impairments became manifest. He said it was necessary for him to ask Mr. Nauth to repeat the information. In addition, as he was writing it down, slowly, on account of his disability, he repeated some of the information out loud a few times. The applicant testified that he asked Mr. Nauth for information such as whether the respondent facility was serviced by a bus route and the spelling of the street name (“Champagne”). It was following the request that the respondent spell Champagne that the caller said something to the effect of “this is ridiculous” and hung up the telephone mid-conversation.

18The applicant testified that the conversation seemed very short to him. His phone records indicate that it lasted less than three minutes.

19Approximately 23 minutes later (according to the phone records), the applicant called the number on his call log, and asked to speak with the person responsible for the accounting clerk position. He testified that the receptionist put him through to the person he had been speaking to previously and when he identified himself, Mr. Nauth told him that he would have to wait. At that point the phone was again disconnected.

20No one attempted to call him further. The applicant made one further attempt to call the respondent on January 19, 2012 to inquire about the position. He was advised by the person answering the phone (whom he believed to be the receptionist) that the position was filled. She then terminated the call.

The Respondent’s Position

21Mr. Nauth testified that the respondent often received 50-100 applications for advertised positions, but did not say that this is how many applications were received for this particular competition. Likewise, he testified that he would typically contact 4-5 individuals to be interviewed, but again did not specify how many individuals were contacted for this position. Finally, he testified that he was authorized to hire staff, but would review incoming applications with the president of the company, Sylvia Bieluk, something he recalled doing with respect to this competition.

22With respect to the applicant’s candidacy, Mr. Nauth testified to the following:

• Ms. Bieluk thought he should contact the applicant for two reasons: (1) he lived relatively close to the respondent’s offices (apparently, the previous accounting clerk left because the job was too far from his or her home); and (2) he had previously worked for Walmart, which was a respected company.
• He called the applicant and asked him a series of questions in five areas. Among the questions he asked were “How do you post invoices?” and “How do you do a cheque run?”
• He said that he would have conducted a similar interview with the successful candidate.
• The applicant’s answers were vague and he seemed disinterested in answering his questions.
• He was of the view that the applicant did not have the requisite accounting experience to do the job.
• In response to cross-examination questions about the nature of the applicant’s answers, Mr. Nauth testified that he takes on average 100 telephone calls a day and cannot remember the specific answers the applicant gave or why he was left with the impression that the applicant did not have the requisite skills.
• He did not offer the applicant an interview.
• Instead, he recalls telling the applicant that he would not be suitable for the position and said good-bye. He did not hang up on the applicant mid-conversation.
• In any event, even if he had determined that the applicant was a suitable candidate, he would not offer the applicant an interview on the screening call. It was his practise to speak to Ms. Bielak after the call to determine who would be called in for an interview.
• Interviews are offered on a second call, not the first screening call.
• He did not notice anything unusual about the applicant’s voice or speech; nor did he recall the applicant asking Mr. Nauth to repeat himself.
• He did not speak to the applicant when the applicant called back that day.

23Mr. Nauth testified that he hired another individual who had more accounting experience to fill the position. Some of the less critical elements of Mr. Nauth’s testimony were echoed by Ms. Bielak, but she did not take part in or over-hear the conversations, nor did she testify that Mr. Nauth repeated any portion of the conversations to her.

Findings

24In determining credibility, I have not placed any reliance on the relative demeanour of the two witnesses to the conversation. There was nothing about the manner in which they testified that suggested they were being dishonest about what they were saying. Rather, I rely on the following three principles found in the British Columbia Court of Appeal’s judgment in Faryna v. Chorney, 1951 CanLII 252 (BC CA), [1951] B.C.J. No. 152:

• Individuals can have a sincere belief in a mistaken set of facts;
• An adjudicator must look at the “[o]pportunities for knowledge, powers of observation, judgment and memory” among other factors; and
• An adjudicator must examine whether the evidence is in “harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.”

25Counsel for the respondent submitted that I should discount the applicant’s testimony because there were significant discrepancies between the applicant’s testimony and the narrative in his Application, as well as the summary of his anticipated testimony. With respect to the latter, I am less inclined to rely on minor discrepancies given the absence of detail in these statements, and the fact that the person writing this witness statement was not the applicant, but his counsel.

26With respect to the Application, the applicant makes no reference in his narrative to the respondent asking him any questions on the call, and says that the person calling from the respondent “immediately” offered him an interview for the job, which was rescinded when the applicant started talking. In contrast, the applicant testified that he was asked questions with respect to his familiarity with certain accounting practices and software, which was followed by the attempts to arrange an interview.

27Likewise, the respondent points out that the applicant’s testimony that Mr. Nauth said “I don’t have time for this” and expressed impatience about the amount of time it was taking for the applicant to write down the information about the location of the interview, was not reflected in the Application. The narrative only states: “After I began to speak, the Respondent’s Agent suddenly and abruptly disconnected the call.”

28I would note there was also a discrepancy between the Response and the testimony of the respondent’s witness, Mr. Nauth. The Response states that the offer of the interview was “rescinded” after it appeared that the applicant appeared “disinterested” in the position. In contrast, Mr. Nauth, testified that he had not offered the applicant an interview – indeed, would not have an offered an interview on that first call – so that it was not necessary to “rescind” it.

29It is not uncommon for pleadings to not fully reflect what the witnesses to an event observed and/or heard, because it is often not the witness who prepares the pleading. However, Mr. Nauth was cross-examined about this key discrepancy and did not suggest at any stage that the Response was inaccurate. In re-examination, when asked who wrote the Response, he answered that although he did not write the Response, the lawyer “took his words and wrote them down.”

30I am not prepared to make global assessments of credibility of either the applicant or Mr. Nauth on the basis of these discrepancies. I am also not prepared to make global findings with respect to the reliability of the applicant’s evidence based on his disabilities.

31The respondent briefly cross-examined the applicant on a psychologist’s report that suggested that the applicant may have problems with his “working memory.” I advised counsel that unless he was planning to call expert testimony with respect to what is meant by this specific term, and whether it impacts on an individual’s ability to recall events, I would not permit that line of questioning. This was not pursued.

32The respondent suggested that perhaps the applicant’s hearing difficulties made him mishear what Mr. Nauth said and did. However, the applicant said that he had the volume of his phone receiver turned up high and there was no ambient noise in the background interfering with his ability to hear. He said that he asked for clarification when he did not understand something and that it was that request, in part, that appeared to have resulted in the call being terminated. Moreover, Mr. Nauth denied that the applicant appeared to have any trouble hearing him. I am not prepared to discount the reliability of the applicant’s testimony on the basis of his hearing impairment.

33With respect to the specific facts, both the applicant and Mr. Nauth agree that Mr. Nauth asked what might be described as screening questions. This is consistent with the successful candidate’s evidence as well. I accept that such questions were asked.

34Mr. Nauth said he asked questions in five key areas, including questions about how the applicant would undertake certain tasks. This is not consistent with the testimony of the successful candidate who said she was asked what modules of ACCPAC she used, but was not asked how she did certain tasks. It seems improbable that Mr. Nauth would go into that kind of detail given that he was also going to conduct an in-person interview of the candidates. It is also inconsistent with the length of the call, which everyone acknowledges was less than three-minutes in length. I accept the applicant’s evidence that he was asked whether he was familiar with ACCPAC and had experience doing certain accounting tasks.

35Mr. Nauth’s testimony that the applicant seemed disinterested and evasive in answering the questions is also problematic. The applicant had been unemployed for some time at this point, and the evidence was that he was actively receiving job search services from Epilepsy Toronto. He also went to the trouble of photographing the phone immediately after the call was terminated in order to record the number, and his phone records show he called the respondent back. These are not the actions of someone who is “disinterested.”

36Mr. Nauth testified that he did not offer the applicant an interview in light of the applicant’s problematic responses to the screening questions. Indeed, he went further and said he would not offer an interview on this initial call because it was his practise to consult with the president of the company before making a second call to the candidates who were to be invited for an interview. This evidence is contradicted by the evidence of the successful candidate, who testified that she was offered an interview at the end of the initial call with Mr. Nauth.

37The applicant specified in his Application that he was offered an interview for the following day. This applicant’s evidence with respect to the timing of the proposed interview time is consistent with the timing of the successful candidate’s interview. At the time he filed, the applicant had no information, other than his own experience, from which to “concoct” such a detail. That is, the applicant would have had no disclosure from the respondent and so would have had no idea of the timeframe for interviews. Either the applicant “guessed” correctly or he was offered an interview.

38This evidence is consistent with the admission in the Response that an interview had been “rescinded.” Even if no such admission had been made, I would be prepared to accept the applicant’s evidence that he had been offered an interview during this phone call with Mr. Nauth. The evidence is unclear about whether this was offered at the outset of the call, or after the initial screening, but in any event, little turns on that aspect of the timing.

39I also accept the applicant’s evidence that he was discussing the details of directions to the respondent’s premises when the call was terminated. Given that I have specifically rejected Mr. Nauth’s testimony that he did not offer the applicant an interview, I must also reject his testimony that he terminated the call by advising the applicant that he did not think he would be suitable for the position and then said good-bye to him.

40I also accept the applicant’s evidence that Mr. Nauth hung-up on him. This is consistent with the applicant’s action of photographing the screen of his telephone as well as looking up the number from which the call was received and calling that number back. This behaviour would be odd if the call had proceeded as Mr. Nauth testified it did.

41With respect to why Mr. Nauth hung up the phone on the applicant, I am prepared to draw the inference that it was because he was frustrated or irritated with the length of time the applicant was taking to understand and write down the directions to the respondent’s premises. I am also prepared to draw the inference that by this time, Mr. Nauth would have had recognized that the applicant had a speech impediment.

42I accept the applicant’s testimony that he did not have to say much in the early part of the conversation with Mr. Nauth – and that his speech impediment may have gone unnoticed – but that when it came time to get directions, he was required to do more talking. Moreover, the process of getting directions was drawn out by his need to have the information repeated, and the speed at which he was able to write the information down.

43I also accept that Mr. Nauth had reason to believe that the difficulties the applicant was experiencing in speaking were the result of a speech impediment. Mr. Nauth testified in cross-examination that he did not notice anything about the applicant’s voice. He insisted that the volume of his speech did not go up and down, that the applicant did not stutter and did not repeat himself. Indeed Mr. Nauth said that he understood the applicant “clearly.” As I found earlier, the applicant’s speech was obviously affected by his disability. Mr. Nauth’s denial that he could detect any issue with it serves only to undermine his credibility with respect to what transpired on this call.

44It is not necessary for the applicant to demonstrate that Mr. Nauth knew that his speech impediment was caused by the congenital condition of cerebral palsy. “Disability” is defined in section 10(a) of the Code to include “any degree” of “speech impediment.” Hearing impediments are likewise included.

45With respect to the second call made by the applicant that day, I am prepared to accept that he was put through to Mr. Nauth when he asked to speak to the person responsible for the accounting clerk position. He testified that he recognized the voice. On the basis of the credibility assessments I have made with respect to the first call, I am not prepared to accept Mr. Nauth’s denial.

46I am also prepared to accept the applicant’s evidence that the phone call was terminated shortly after Mr. Nauth picked up the phone, and make the inference that Mr. Nauth hung up the phone when he recognized the applicant’s voice.

47In summary, I accept that the applicant has a disability, and that he experienced adverse treatment when the offer of a job interview was abruptly withdrawn and the phone hung up on him during the initial and follow-up calls with Mr. Nauth. The respondent has not called plausible evidence to rebut the applicant’s evidence that he was subject to adverse treatment.

48I accept also that the applicant has demonstrated that his disability was a factor (perhaps the only factor) in this treatment of him. The respondent has not called evidence to establish that there was another, non-discriminatory explanation for the treatment. In light of this, I find that the applicant has met his onus of establishing, on a balance of probabilities, discrimination with respect to employment on the basis of disability.

remedy

49The breaches for which I am awarding a remedy are (1) the respondent’s decision to not interview the applicant; and (2) its disrespectful treatment of him on the two telephone calls.

50Counsel for the applicant suggested that the applicant was also entitled to damages for not being hired. He acknowledged that the successful candidate had better credentials and recent work experience (which the applicant did not), but speculated that the applicant might have been hired before the respondent had a chance to review the successful applicant’s resume. However, the applicant was invited in for an interview on December 23, 2011, and Ms. Gavrilova applied and had her pre-interview with Mr. Nauth on December 23, 2011. I am not prepared to find that the applicant would have been hired prior to the respondent reviewing Ms. Gavrilova’s application for the job.

51The applicant sought $5,000-$10,000 in compensation for the injury to his dignity, feelings and self-respect. The applicant testified that he was angry and frustrated about this experience and the fact that this took place three days before Christmas compounded his feelings. He testified that he tried to talk about his anger and frustration with the people at Epilepsy Toronto, which is recorded in notes taken by them, but that their attitude was “Life goes on; don’t do anything about it.” In his Application, the applicant expressed the impact in the following manner:

As a person with a congenital disability, I have been dealing with being ‘different’ all of my life. Sometimes, people may treat me nicely. Other times, people will treat me harshly or as if I am incompetent. In both cases, many people will not take the time to get to know me. It appears to me that it is easier for many people to stereotype me and prejudge me based on my external appearance. On my view, the Respondent did just that.

… It is also worth noting that I was proud and excited to receive the Respondent’s job offer of a job interview.

When the Respondent disconnected our telephone calls, I knew that I had been judged based on their perception of my disability and not based on the merits of my job application. …

I am used to discrimination, but I was devastated and depressed by the fact that the Respondent did not take the time to talk with me or to make a true assessment of the value I could create for their business. Since I cannot hide my disability, the Respondent’s actions made me feel worthless and hopeless. I asked myself, will I ever get past the interview stage if I can’t even get my foot in the door; will everyone ignore my skills and experience; will I always be treated this way; am I employable? … I’m not sure I can explain how insulting and hurtful it was to have my hopes dashed in the manner I described and knowing full well that the treatment I received was based on stereotypical images of people with disabilities.

52The applicant testified that the long term impact on him was that he was afraid of applying for jobs and people turning him down or hanging up on him. He asked for Epilepsy Toronto’s help in making the initial contact with employers, but was turned down, saying that he had to look for himself. Eventually, he decided to start his own business instead of continuing to engage in a job search.

53Counsel for the applicant provided cases in which the respondent had been found to have discriminated in the interview phase or, in one case, on the second day of training for a job, after an offer had been made. In these cases, the applicant received in the range of $4,000-$5,000.

54This case is somewhat different in that the act of the respondent, in hanging up mid-conversation, was objectively more demeaning to the applicant. Moreover, in light of his lifetime experience of being treated differently, the impact of the incidents on the applicant was magnified. In my view, an award of $8,000.00 would more appropriately compensate the applicant for the damage to his dignity and self-respect.

55The Tribunal has the authority under s. 45.2(1) of the Code to direct a respondent to do anything that would “promote compliance with this Act.” The applicant asks that the respondent be required to do basic human rights training.

56The respondent is a small company. However, I heard no evidence about the company’s operations or interactions with its staff, other than the President, Sylvia Bielak, saying she hired persons with disabilities and recent immigrants from a broad array of countries. Ms. Bielak testified that she and Mr. Nauth are responsible for the human resources decisions of the company.

57It would, therefore, be appropriate for these two individuals to take human rights training, as suggested by the applicant, in the form of the Human Rights 101 course offered by the Ontario Human Rights Commission (available at www.ohrc.on.ca/hr101).

order

58The Tribunal orders as follows:

1. Within 30 days of the date of this Decision, the respondent shall pay the applicant $8,000.00 in monetary compensation for injury to dignity, feelings and self-respect.
2. The respondent is liable to pay the applicant post-judgment interest on any the monetary compensation set out above not paid within 30 days from the date of this Decision.
3. Within 60 days of this Decision, Sylvia Bielak and Prem Nauth shall complete the Ontario Human Rights Commission’s Human Rights 101 course, and confirm in writing to the applicant’s counsel that they have done so.