Tomar v. Toronto Transit Commission, 2013 HRTO 1790

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rajiv Tomar

Applicant

-and-

Toronto Transit Commission

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: October 24, 2013

Citation: 2013 HRTO 1790

Indexed as: Tomar v. Toronto Transit Commission

APPEARANCES

Rajiv Tomar, Applicant Self-represented

Toronto Transit Commission, Respondent Lucy Siraco, Counsel

1This is an 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 race, colour and place of origin.

The Application

2The applicant, who identified himself as a brown man from India, stated that he received a conditional offer of employment with the respondent as a transit operator by letter dated November 26, 2009, which he submitted with the Application. The conditions were as follows:

1. Maintaining an acceptable Driver’s Abstract;
2. Satisfactory results on a Criminal Records Search;
3. Satisfactory proof of a Grade 12 secondary school diploma or the equivalent;
4. Satisfactory results on Reference Checks;
5. Satisfactory results on a Job Match Pre-Placement Medical Assessment; and,
6. Successful Completion of the Operator Training Program.

3The applicant stated that he fulfilled the first five conditions and, as a result, received a confirmation letter from the respondent, dated July 21, 2010, which he also included with the Application. The confirmation letter advised the applicant that he may have to wait between 12 and 16 months to begin his employment.

4The applicant stated that he waited to be contacted to commence training , but heard nothing further from the respondent. On July 30, 2012, the applicant heard on a radio program that the respondent was hiring 500 new operators. This prompted the applicant to contact the respondent to inquire about his own employment. The applicant spoke to a human resources manager, to whom he faxed the letter of July 21, 2010, but did not receive any return call or e-mail message. The applicant was eventually able to reconnect with the human resources manager who informed him that the respondent did not issue such letters. The human resources manager allegedly advised the applicant that she would speak to a colleague and call him back. The applicant stated that he never heard back from the human resources manager or anyone else from the respondent after that conversation, which occurred in November 2012. The applicant stated that he was treated differently and subjected to discrimination.

Summary Hearing

5By Case Assessment Direction dated April 23, 2013, the Tribunal ordered a summary hearing for this Application to determine whether it should be dismissed because it has no reasonable prospect of success. The Tribunal held the summary hearing by teleconference on August 20, 2013.

Submissions

6The applicant referred to a Decision of the Tribunal that the respondent included in its book of authorities: Bartley v. Cott Corporation, 2012 HRTO 630. The applicant submitted that in that Decision the Tribunal set out the following test for establishing a prima facie case of discrimination in a hiring or promotion case:

• The complainant was qualified for the particular employment;
• The complainant was not hired; and
• Someone no better qualified but lacking the distinguishing feature which is the gravamen of the human rights complaint subsequently obtained the position.

7The applicant submitted that the evidence established that he was qualified to proceed to operator training, but was not selected for it. The applicant conceded that he had no knowledge of the qualifications of the other candidates or whether the respondent actually conducted training sessions. The applicant submitted that the communications with the respondent after July 30, 2012 were suspicious. The applicant submitted that the only explanation for his failure to advance to the operator training was discrimination and asked rhetorically “What else could it be?”.

8The respondent submitted that it interpreted the Bartley decision, above, differently than the applicant. The respondent submitted that the applicant did not in any event establish he met the conditions set out in the letter of November 26, 2009. In particular, the respondent submitted that the applicant did not establish that he satisfied the condition regarding reference checks. The respondent stated that the applicant did not receive a satisfactory reference check and that it communicated this to the applicant in 2010. In that regard, the respondent pointed to e-mail correspondence in June and July of 2010 that indicates that the respondent was unable to get complete information from one of the applicant’s references and was unable to contact others. The messages indicate that the organization conducting the reference checks for the respondent asked the applicant to assist in connecting with his references.

9The respondent submitted that the applicant did not establish that his Application has a reasonable prospect of success. The respondent submitted that the applicant did not point to evidence linking the respondent’s actions to Code grounds, as is required by the Tribunal’s jurisprudence. The respondent submitted that the letters the applicant received from the respondent do not on their face establish that the applicant met all the criteria to proceed to training.

10In reply, the applicant submitted that he met the first five criteria set out in the conditional offer of employment and that only training was left to complete.

Analysis and Decision

Reasonable Prospect of Success

11Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

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.

12In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 8-9:

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.

13The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201 and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as disability or family status. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. At the summary hearing stage, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

14At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.

15The criteria applicable to hiring and promotion cases are not restricted to the three part test set out in Bartley, above, at paragraph 14. The Tribunal’s jurisprudence indicates that an applicant need not adduce any particular kind of evidence in such a case, but must be able to establish a link between the decision not to hire or promote him or her to a Code ground. See Nelson v. Lakehead University, 2008 HRTO 41 and Thambipillai v. Toronto District School Board, 2012 HRTO 843. This evidence can include, but is not limited to, the criteria described in Bartley, above.

16In my view, the applicant has not pointed to evidence that he has or is reasonably available to him that would link the respondent’s decision not to advance him to the transit operator training program to a prohibited Code ground. The letter of July 21, 2010 from the respondent to which the applicant referred does not, with respect, indicate that he met all of the requirements of the conditional offer of employment. Rather, the letter simply informed the applicant that he remained a candidate for employment, but that his training may be delayed by a year or more. In addition, the applicant did not address the issues the respondent pointed to regarding contacting his references.

17In any event, the applicant, while obviously unhappy that he was not selected for training, pointed to no evidence that his failure to advance was linked to a Code ground. The applicant pointed to his interactions with a human resources manager in the respondent’s employ who did not provide any clarification regarding his candidacy and ultimately stopped communicating with him altogether. Assuming these facts to be true, it is easy to see why the applicant found the respondent’s communication with him to be unsatisfactory and discourteous. However, the applicant pointed to no evidence that would connect his unsatisfactory experience to a Code ground. The applicant also did not indicate how this experience amounts to evidence connecting the decision not to select him for training to a Code ground. While I appreciate that in hiring or promotion cases information and documents regarding the decision will generally be held by the respondent, an applicant must still be able to point to some evidence that could establish a link between the respondent’s decision and a Code ground. See Patterson v. Mississauga (City), 2013 HRTO 395. Bare assertions and rhetorical questions do not suffice. In my view, the applicant has not provided any basis for concluding that he could prove a link between the respondent’s actions and a Code ground.

18For the foregoing reasons, I find the Application has no reasonable prospect of success. The Application is dismissed.