Rutledge v. The Travel Corporation (Canada), 2013 HRTO 1634

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Paul Rutledge

Applicant

-and-

The Travel Corporation (Canada)

Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee

Date: September 27, 2013

Citation: 2013 HRTO 1634

Indexed as: Rutledge v. The Travel Corporation (Canada)

WRITTEN SUBMISSIONS

Paul Rutledge, Applicant ) Self-represented

The Travel Corporation (Canada), ) Thomas Stefanik, Counsel

Respondent )

INTRODUCTION

1The purpose of this Interim Decision is to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success. The parties attended a summary hearing where they had the opportunity to make oral submissions, which addressed this issue.

BACKGROUND

2On December 20, 2012, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against him with respect to employment because of his age. Specifically, he alleged the following:

1. He is 50 years old and has 16 years of travel sales experience.

2. He attended an all-day job interview for the position of call centre agent with the respondent. Six candidates were present: two older candidates (including him) and four young candidates.

3. After the first part of the interview process, the respondent’s representatives took the four young candidates out of the room to continue with the interview process, but told him and the other older candidate (“Adolpho”) that they were no longer being considered for a position.

4. He asked the respondent’s representatives to provide a reason for excluding him and the other older candidate from the process, but they refused to provide a reason and denied that it was because of his age or work experience.

3On March 27, 2013, the respondent filed a Response which denied the allegation of discrimination. Specifically, the respondent stated the following:

1. The applicant applied for a call centre role as a sales agent, which would primarily involve dealing with United States travel agents and taking calls from the United States.

2. The applicant attended an interview with four other candidates. All five candidates were asked the same questions.

3. The applicant did not make it to the next round for consideration because his answers did not meet the requirements of the position, his answers were unclear, and some of his answers were not responsive to the questions.

4. The respondent’s representative subsequently informed the applicant by email that the other candidates answered the questions in a much more satisfactory manner than he did.

4On June 26, 2013, the Tribunal issued a Case Assessment Direction, which directed that a summary hearing be held to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success. A summary hearing by teleconference took place on September 24, 2013.

ANALYSIS

5The Application relates to ss. 5 and 9 of the Code, which provide:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

(...)

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

6Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”) at paras. 8-10:

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.

7The 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. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

8I am also mindful of the Ontario Court of Appeal’s recent decision in Peel Law Association v. Pieters, 2013 ONCA 396, where the Court, in discussing the burden of proof and the shifting of the evidential burden, stated at paras. 72-74 and 77:

(...) The question whether a prohibited ground is a factor in the adverse treatment is a difficult one for the applicant. Respondents are uniquely positioned to know why they refused an application for a job or asked a person for identification. In race cases especially, the outcome depends on the respondents’ state of mind, which cannot be directly observed and must almost always be inferred from circumstantial evidence. The respondents’ evidence is often essential to accurately determining what happened and what the reasons for a decision or action were.

In discrimination cases as in medical malpractice cases, the law, while maintaining the burden of proof on the applicant, provides respondents with good reason to call evidence. Relatively “little affirmative evidence” is required before the inference of discrimination is permitted. And the standard of proof requires only that the inference be more probable than not. Once there is evidence to support a prima facie case, the respondent faces the tactical choice: explain or risk losing.

If the respondent does call evidence providing an explanation, the burden of proof remains on the applicant to establish that the respondent’s evidence is false or a pretext.

The shifting of the evidential burden does not put the respondents in the position of having to prove a negative. Rather, it puts them in the position of having to call affirmative evidence on matters they know much better than anyone else – namely, why they made a particular decision or took a particular action. [Emphasis added.]

9Although in this instance the Court was dealing with a race discrimination case involving a request for identification from two Black men, in my view, the same principles apply to cases, such as the one at hand, where the applicant is alleging that he was subjected to discrimination because of age in a job competition.

10The focus at the summary hearing was on the second branch of the Dabic test, namely, whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that the respondent discriminated against him because of his age when it excluded him from further consideration in a job competition process.

11In his submissions, the applicant stated that his Application has a reasonable prospect of success because he has evidence which will prove a link between the respondent’s actions and his age. For the most part, he repeated the factual allegations set out in his Application. However, he also stated that the young candidates who were allowed to continue in the interview process were mostly in their early twenties and were all under 30 years old, while both he and the other candidate who was excluded were over 50 years old. In response to the Tribunal’s questions, the applicant had no theory as to why the respondent would discriminate against a candidate who is middle-aged, but not elderly or close to retirement.

12In its submissions, the respondent stated that the Application does not have a reasonable prospect of success. The respondent stated that, even if the evidence that the applicant pointed to was accepted by the Tribunal, it would not be enough to establish that the respondent discriminated against him because of his age. The respondent stated that, at best, the evidence would establish that the respondent treated the applicant unfairly in a general, non-Code-related sense. The respondent also stated that the fact that the applicant has no theory has to why the respondent would discriminate against a candidate who is 50 years old and has experience in the travel industry is an additional reason why the Application has no reasonable prospect of success. The respondent further stated that it did not know what the ages of the candidates in the competition were.

13In his submissions in reply, the applicant stated that the respondent did, in fact, know the ages of all the candidates because its representatives asked them their ages during the first part of the interview process.

14In its submissions in response to this point, the respondent denied that its representatives asked any candidate their ages during the interview process. The respondent also stated that this new factual allegation was not raised in the Application or the applicant’s initial oral submissions, and that it is nothing more than a last minute attempt to avoid the prospect of having his Application dismissed on the basis that it has no reasonable prospect of success.

15I now turn to my decision on this issue. At this preliminary stage, the applicant has satisfied me that there is a reasonable prospect that evidence that he has or that is reasonably available to him can show a link between the respondent’s action and his age. He pointed to evidence that he and another candidate over 50 years old were excluded from a job competition process, while three young candidates in their early twenties and no less than 30 years old were allowed to continue in the process, and that he has 16 years of work experience relevant to the position in the competition, which none of the young candidates could have had. I disagree with the respondent that pointing to such evidence is insufficient to establish that the Application has a reasonable prospect of success. I appreciate that there may be credibility or reliability issues with respect to the evidence that the applicant has or that is reasonably available to him, and that the respondent may have a non-discriminatory explanation for excluding him from the process (his performance during the interview), but, in my view, the appropriate forum to properly assess and weigh this evidence is at a merits hearing. I also appreciate that the fact that the applicant is middle-aged, rather than elderly or close to retirement, may weigh against his allegation that he was discriminated against because of his age, but again, my view is that the appropriate forum to consider this is at a merits hearing where it can be assessed and weighed in the context of the totality of the evidence.

16In his Application, the applicant indicated that he is agreeable to trying mediation, but in its Response, the respondent did not. If the respondent is now agreeable to trying mediation, it should contact the Tribunal’s Registrar within one week of the date of this Interim Decision. If the respondent does not contact the Registrar or notifies the Registrar that it is not agreeable to trying mediation, the Tribunal will schedule a two-day merits hearing.

17During the summary hearing, the applicant also stated that he does not have the surname or contact details of the other older candidate (“Adolpho”), and that the respondent, who does, should therefore call him as a witness at the merits hearing. The respondent has no obligation to call this person as a witness. I appreciate that the applicant is a self-represented layperson, and therefore provide him with the following information.

18If the applicant wants to call this or any other candidate as a witness, he may deliver to the respondent and file with the Tribunal a Request for an Order During Proceedings (Form 10), which requests that the respondent produce the candidate’s full name and any of the candidate’s contact details (address, telephone number, email, etc.) that it has in its possession. In its Response to the Request, the respondent may consent to or oppose producing such information. If the respondent opposes producing such information, the Tribunal will decide whether the information should be produced.

19I also draw the applicant’s attention to the Guide to Preparing for a Hearing before the Human Rights Tribunal of Ontario (the “Guide”), which can be found on the Tribunal’s website: http://www.hrto.ca/hrto/. The Guide states at pp. 5-6:

Each party is responsible for making sure that a witness the party wishes to call to give evidence, shows up on the dates scheduled for hearing the application.

If a party is concerned that a witness may not attend to give his or her evidence at the hearing, or if the party wants added assurance that a witness will come to the hearing, it can summon the witness. It must do so by contacting the HRTO to get a signed Summons to Witness (Form 24). Sometimes a witness wants a Summons in order to be able to be absent from work.

The Summons will be signed by a HRTO adjudicator but will otherwise be blank. The party must complete the Summons to Witness by filling in the following information:

• The name of the witness;

• The address of the witness;

• The date, time and location of the hearing;

• Any documents that the witness must bring with him/her;

• The date the summons was completed; and,

• The name, address and telephone number, and Law Society of Upper Canada Number (for lawyers and paralegals) of the person issuing the summons.

Delivery of the Summons to the witness is the responsibility of the party who wants to summon the witness. The Summons must be served on (given to) the witness in person. The witness is entitled to be paid $50/day for each they are needed to attend and a travel allowance ($3.00/day if the hearing is in the city or town in which the witness lives; if the hearing is within 300 km of where the witness lives, $0.24/km for the distance between the witness’ residence and where the hearing is being held; and if more than 300 km, the minimum return air fare plus $0.24 each way from the witness’ home to the airport and the airport to the hearing). The witness is entitled to get their attendance money, in cash, at the time they are served with the Summons. A witness who is summoned but does not attend at the hearing, or produce the documents or things specified in the Summons, without lawful excuse, may be subject to contempt proceedings in the Superior Court of Justice.

ORDER

20The Tribunal makes the following orders and directions:

1. The Application has a reasonable prospect of success and will proceed to either a mediation or a merits hearing.

2. If the respondent is agreeable to trying mediation, it should contact the Tribunal’s Registrar within one week of the date of this Interim Decision.

3. If the respondent does not contact the Registrar or notifies the Registrar that it is not agreeable to trying mediation, the Tribunal will schedule a two-day merits hearing.

4. If the applicant wants to call any of the other candidates as a witness at the merits hearing, he may deliver to the respondent and file with the Tribunal a Request for an Order During Proceedings (Form 10), which requests that the respondent produce the candidate’s full name and any of the candidate’s contact details (address, telephone number, email, etc.) that it has in its possession. The respondent may then file a Response to the Request.

5. The applicant should review the Guide to Preparing for a Hearing before the Human Rights Tribunal of Ontario for guidance on how to call witnesses at the merits hearing.

21I am not seized of this matter.