Mauricio Larromana v. Collectcorp Inc., 2013 HRTO 144

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Mauricio Larromana

Applicant

-and-

Collectcorp Inc.

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: January 28, 2013

Citation: 2013 HRTO 144

Indexed as: Larromana v. Collectcorp Inc.

APPEARANCES

Mauricio Larromana, Applicant

Self-represented

Collectcorp Inc., Respondent

Jordan Waltman, Counsel

Introduction

1A summary hearing was held to determine whether this Application should be dismissed in whole or in part, on the basis that there is no reasonable prospect that it would succeed. This Application alleges discrimination with respect to employment because of race, age and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant advised at the summary hearing that he was not pursuing the ground of disability.

2Although the Tribunal directed that a summary hearing be held on its own initiative, it did so after the Application was served and a Response and Reply were filed. After the parties attended mediation, the Tribunal issued a Case Assessment Direction (“CAD”) notifying the parties of the summary hearing.

3The CAD also advised the parties that it would deal with the respondents’ request to remove the individually named respondent.

decision and Analysis

Removal of Respondent

4The applicant named one of the managers who interviewed him, Rick Acaster, as an individual respondent to his Application. At the summary hearing, he acknowledged that the corporate respondent was vicariously liable for Mr. Acaster, who was acting in the course of his employment. Accordingly, the applicant stated that he had no problem consenting to the removal of this individual. I issued an oral ruling at the summary hearing removing Rick Acaster as a respondent to this Application.

No Reasonable Prospect of Success

5Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

6Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

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.

7In this case, the focus was on whether the applicant had evidence reasonably available to him that could show a link between the failure to get the job for which he was interviewed and the grounds of age and race. As the Tribunal noted 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 and that there must be a basis for the allegations beyond mere speculation.

Age

8With respect to the ground of age, the applicant indicated that he would testify that his age would have been apparent to those interviewing him and that, during his interview, he was able to see the current employees of the respondent, who appeared to be younger than him.

9The applicant did not indicate that he was asked any age-related questions at the interview or that the respondents made any inappropriate comments about age. However, he points to a blog which appears to be about the company, in which the commentator states that the respondent “relies heavily on word of mouth to find new agent blood.”

10The applicant refers to the Oxford online dictionary, which has a definition of the term “new (or fresh) blood” and the term “young blood” to draw the connection between “new” and “young” (i.e., age). However, the link is not clear to me given that in this same grouping of definitions, the terms “taste blood” and “of the blood (royal),” as well as other equally unrelated terms appear. That is, the only link between these disparate terms is that they have the word “blood” in them.

11Even more problematic is the fact that the respondent states that the blog in question is not authored by a Collectcorp employee, but by an outside commentator. The applicant relies on the fact that the commentator quotes a senior employee of Collectcorp, but this in relation to another issue (even assuming I had evidence on which to find that this quote was accurately reproduced). In the absence of the respondent adopting this statement, I do not see how this is reliable evidence of the respondent’s position on the recruitment of staff.

12Given that the applicant was 59 at the time of the interview in question, there is nothing remarkable about the fact that the employees he observed were generally younger than him. In his Application, he acknowledges that Rick Acaster, the person interviewing him, was not younger. He states that his age would have been apparent at the interview, but it also would have been apparent to the person at the job fair to whom he submitted his application. The applicant does not dispute the respondent’s assertion that he was not screened out at this stage, but selected to participate in an interview.

13The applicant argues that he has established a prima facie case of discrimination on the basis of the test set out in Shakes v. Rex Pak Ltd. (1981), 1981 CanLII 4315 (ON HRT), 3 C.H.R.R. D/1001. In fact, the applicant has not pointed to any evidence that would establish the third part of that test, which is that “someone no better qualified but not identified with the ground alleged subsequently obtained the position.” He says that it is up to the respondent to disprove this. I disagree that in a hiring case, all the applicant is required to do is show that he was qualified and not hired in order to place the burden on the respondent of proving that its hiring decision was non-discriminatory.

14In any event, in determining whether the applicant has no reasonable prospect of success, this Tribunal has “generally taken the approach that looks at the full context and the parties’ theories of the case rather than narrowly evaluating whether the applicant alleges facts that could satisfy each element of the Shakes test.” See Zhao v. Toronto Community Housing Corporation, 2012 HRTO 2187 at para. 10.

15For the above reasons, I find that the applicant has no reasonable prospect of success in demonstrating his age was a factor in the decision to not hire him.

Race

16The applicant self-identifies as Hispanic. When he states he was discriminated against on the basis of race, what the applicant appears to mean is that he experienced differential treatment on the basis of his Hispanic background. The applicant submits that his background was a factor because he was asked a question in the interview about speaking Spanish to a potential caller (the respondent is a collection agency), which was not listed as one of the requirements of the job.

17The respondent acknowledges that the applicant was asked about his ability to take a call in Spanish (and that it was not a requirement of the position), but submits that his ability to do so would have been a positive attribute given the nature of the client group. Whether or not the ability to speak Spanish was a positive attribute (or, alternatively, whether it was an inappropriate reference to the applicant’s ethnicity and/or race) is not something that can be determined at this stage. The Tribunal has not heard the respondent’s evidence, nor has the applicant had an opportunity to test it.

18Accordingly, I cannot conclude at this stage in the proceeding that the applicant has no reasonable prospect of success of demonstrating that he was not hired for the position in question because of his Hispanic background. The Application can proceed on the enumerated ground of race.

19Pursuant to Rule 19A.6, it is not necessary to provide further reasons for not dismissing the Application at this stage. This Interim Decision is not a final determination of the question whether the Application has no reasonable prospect of success. That question may be raised by the respondent or the Tribunal itself if it is appropriate to do so at the hearing.

NEXT STEP

20As the parties have already participated in mediation, the next stage is to schedule a hearing. A Notice of Hearing will be sent to the parties in due course.

order

21In sum, I have made the following orders/directions:

a. Rick Acaster is removed as an individual respondent to this Application;

b. The allegations concerning the grounds of disability and age are dismissed; and

C. The Application may proceed on the ground of race.

22I am not seized of this matter.