HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
William Murrell
Applicant
-and-
The Community Network
Respondent
DECISION
Adjudicator: Paul Aterman
Indexed as: Murrell v. The Community Network
APPEARANCES
William Murrell, Applicant
Self-represented
The Community Network, Respondent
Siobhan O’Brien, Counsel
Introduction
1The applicant in this case was hired on a trial basis by the respondent. His job was to make cold calls to small businesses to arrange visits to those businesses by the respondent’s sales representatives. They in turn would try to sell advertising space to these businesses. The applicant’s employment lasted seven days.
2The applicant alleges that the respondent made a decision not to hire him permanently because of his disability and his age. That is why he has brought 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 on those grounds. The applicant self-identifies as visually impaired. He was 55 years old at the time he was hired by the respondent on March 21, 2011.
3The respondent denies any discrimination. It says it did not hire the applicant because he has a rude and unprofessional manner that makes him unsuitable for telephone sales.
4The Application was heard on February 5, 2013. The applicant testified and also relied on documents that he had submitted on filing his Application. The respondent called two witnesses: its sales manager, David Burtyn, and its general manager, Ashif Manji. The respondent also introduced documents in the form of recordings and transcripts of a series of voice mails left by the applicant for Mr. Burtyn, as well as a letter written to the Tribunal dated November 29, 2011. At the applicant’s request the Tribunal provided a CCTV magnifying device to enable the applicant to refer to documents during the hearing.
5For the reasons that are set out below I conclude that there was no discrimination in the respondent’s decision not to hire the applicant. The Application is dismissed.
the evidence
Uncontested facts
6There was no dispute between the parties about the background to this case, which I will now outline. The respondent is in the business of selling advertising space to small- and medium-sized businesses. The advertisements it sells are targeted at local markets and are displayed on television screens in places such as pharmacies, doctor’s offices, hospitals and other high-traffic areas. In order to make sales the respondent hires appointment setters to make cold calls to prospective customers. They are required to follow a script on their calls. The appointment setter’s goal is to persuade a prospective client to book a visit from one of the respondent’s sales representatives. Appointment setters work solely on commission. If the sales representative makes a sale after a visit, then the appointment setter who arranged the visit gets a commission of 10 per cent of the value of the sale.
7The respondent employs between 12 and 15 appointment setters at any given time. The work can be gruelling: appointment setters have to meet targets both in terms of the number of calls made and sales leads secured, and their income consists wholly of commissions. Not everyone responds graciously to being cold-called. As a result, there is a lot of turnover and the respondent frequently advertises for new appointment setters.
8The respondent’s practice is to hire appointment setters on a trial basis. The trial period does not have a fixed duration. It ends when the respondent is satisfied that the prospective appointment setter has the right telephone manner and a thick enough skin to do the job. This may be clear after the first day or it may take several days. During the trial period appointment setters are paid $75 per day and can also keep any commissions they earn, but once the trial period ends they only make money on commission.
9The design of the respondent’s office is an open plan, with appointment setters seated at desks separated by low dividers. There are a few desks situated close to Mr. Burtyn’s that are set aside for appointment setters working on trial. This is so that he can assess them and provide advice and coaching as they learn the job.
10In March 2011 the applicant answered one of the respondent’s advertisements for appointment setters and on March 17 he spoke to Mr. Burtyn by telephone. Mr. Burtyn invited the applicant to come in on Monday March 21 to start work on a trial basis. He told the applicant at that time that this was an opportunity for them both to see if the fit was right.
11During this conversation the applicant explained to Mr. Burtyn that he is visually impaired and needs to work with a CCTV device, which magnifies documents so that he can read them. He told Mr. Burtyn that he would supply his own device, that it was small and would not take up much space. Mr. Burtyn indicated that this would not be a problem.
12On the applicant’s first day at work Mr. Burtyn remarked on the size of the CCTV device and said that it was bigger than the applicant had described. Nonetheless, the device was installed on a desk opposite Mr. Burtyn’s and the applicant started work.
The applicant’s evidence
13The applicant testified that when his CCTV equipment was installed on his first day at work, Mr. Burtyn stated that he did not understand how the device worked or how it could help the applicant. He stated that he told Mr. Burtyn he intended to use a handwritten version of the script which he had prepared in large letters, as it was too difficult for him to read the font on the printed version of the script. Mr. Burtyn had no objection to this. It was also agreed that the applicant would not have to enter data on calls into the respondent’s computer system and that this would be done for him, as he would have had difficulty using the respondent’s equipment.
14The applicant testified that his progress was slow on the first day. Although he has experience in telephone sales, he had not worked in the field for three or four years and had to get used to it again. The applicant acknowledged that at times he was told by Mr. Burtyn that he needed to speed up and to stick to the script. He states that he improved over the course of the week. His fourth day at work, Thursday March 24, was designated by the respondent as a “bonus” day, on which appointment setters who booked more than 5 leads would be paid $10 for each lead. The applicant booked seven.
15The applicant’s evidence is that by Friday he had booked 14 leads. He stated that at the end of the day, as he was leaving, he had a conversation with Mr. Burtyn in which he was told that as of Monday he would no longer be working on a trial basis, and would move to commission only. The applicant stated that a few times in the course of the week and after he had confirmed sales leads, he had asked Mr. Burtyn “Now do you believe that this thing works?”, referring to the CCTV. He maintained that Mr. Burtyn would say no, and that this was an indication that he did not want the applicant to use the CCTV device.
16The applicant stated that he worked from Monday through Wednesday of the following week. He testified that he was given lists of prospective clients who had already been called, rather than fresh leads, and that making these follow-up calls limited his scope for securing leads. At the end of Wednesday Mr. Burtyn asked him how many leads he had secured that day, and he told him three. He stated that Mr. Burtyn then asked him for his home phone number and he provided it to him, thinking nothing more of this request.
17The applicant testified that on Wednesday evening Mr. Burtyn telephoned him and told him not to come in on the following day. He asked why and was told that Mr. Burtyn wanted to give other potential appointment setters a trial. The applicant was told to phone Mr. Burtyn the next day to see if he would be required on Friday. He did so. He stated that he was again told not to come in, but to call on Friday to see if he would be given work on the following Monday.
18The applicant testified that he called Mr. Burtyn at work on Friday and asked if he still had a job. He claimed that he was not given a clear answer and Mr. Burtyn told him that he would speak to him later. He stated that Mr. Burtyn then telephoned him on Friday evening. The applicant maintained that his tone during the conversation was inquisitive, but that Mr. Burtyn perceived it as aggressive. He stated that at some point during the conversation Mr. Burtyn told him to come in and pick up his CCTV. The applicant maintained that he knew then that he was terminated, but that he said nothing as he did not want, as he put it, “to burn any bridges” with the respondent.
19The applicant stated that he called Mr. Burtyn several times over the week-end of April 2-3, and that Mr. Burtyn would hang up on him. The applicant described this as “provocation”, and that he left a series of voicemail messages for Mr. Burtyn. The applicant maintained that the intent of the messages was to say that he wanted to work and that he deserved to know whether he had a job or not.
20The applicant testified that about two weeks later he went to the respondent’s offices to pick up the CCTV and had a pleasant conversation with Mr. Burtyn. He was given a cheque for $260 which represented the sales commission on one of his leads. The applicant claimed that Mr. Burtyn told him that he had made 11 leads, three less than the 14 he believes he made. The applicant stated that Mr. Burtyn told him that he had not made the decision to let the applicant go, and that it had been someone else.
21The applicant’s evidence is that about a month later he called Mr. Burtyn to ask if he was owed any further money from the leads that he had made. When he was told there was not, he asked to see records of his leads and asked to speak to the person who had decided to terminate his employment. Both requests were refused.
22The applicant stated that over the next three to four months he called the respondent and that his tone became more aggressive. He testified that he repeatedly told the respondent he would pursue a remedy under the Code.
23When I asked him why he thought he had been discriminated against, the applicant answered that Mr. Burtyn was uncomfortable with his use of the CCTV, and that he regarded the applicant as not fitting into the work environment because he was older than the other appointment setters. The applicant said that this discomfort led the respondent to manufacture reasons not to hire him.
24In cross-examination, recordings of four voicemails were played to the applicant. They were made within minutes of each other on the evening of Sunday April 3. The applicant agreed that they were all voicemails left by him for Mr. Burtyn. The tone of the voicemails is aggressive and at times abusive. The content is generally a mix of requests by the applicant for an explanation as to why he was being terminated, claims that he had performed well on the job and warnings that this matter would end up before the Human Rights Commission.
25The applicant agreed that the tone and content were unprofessional, but asserted that he was provoked by Mr. Burtyn’s refusal to answer the phone and speak to him.
The respondent’s evidence
Evidence of David Burtyn
26Mr. Burtyn testified. He stated that as sales manager his job included responsibility for hiring, training and managing appointment setters. He indicated that at any given time there would usually be one or two appointment setters working on a trial basis, and never more than four at a time.
27He stated that when the applicant started his performance was adequate, but he had to be reminded to stick to the script. He maintained that by the end of the first week he was not yet sure whether he would hire the applicant, and asked him to come in on the following Monday. Mr. Burtyn stated that the applicant worked Monday March 28 and Tuesday March 29, and would have been paid the daily rate as a trial appointment setter on those days. He acknowledged that the applicant complained to him about being given lists of prospective clients who had already been called, but explained that this was the procedure the respondent used with trial appointment setters, as it wants to avoid the risk of having inexperienced employees “burn” new leads by not handling them properly. He testified that he explained this to the applicant.
28At the end of the day on Tuesday he told the applicant not to come in the following day, as he wanted to observe the work of other trial appointment setters. He explained that this is normal practice for the respondent, given the high turnover and the need for the respondent to try to find the right people at the outset.
29He testified that in the afternoon of the next day he called the applicant at home and told him not to come in on Thursday March 31. Again he wanted to vet the work of other trainees. The same conversation was repeated on Thursday, but this time the applicant was clearly unhappy with what he was being told. Mr. Burtyn stated that he ended the conversation by telling the applicant to call him on Friday in order to discuss his schedule for the following week.
30Mr. Burtyn’s evidence is that the applicant called him twice on Thursday, around 11 p.m. and then around midnight. On the first call the applicant protested about not being called in and Mr. Burtyn claims that he told the applicant that it was standard procedure for him to test other appointment setters. On the second call the applicant was more irate and asked Mr. Burtyn who had made the decision not to call him in for work. He stated that the applicant claimed this was related to his disability. Mr. Burtyn maintained that he told the applicant to call him on Friday for his schedule for the following week. He testified that the applicant did not call him on Friday.
31Mr. Burtyn stated that on arriving at work on Monday April 4 he had a number of voicemail messages waiting for him. These had been left by the applicant on the previous day. He identified them as the voicemails introduced into evidence. Mr. Burtyn testified that he was confused by the voicemails, as he had not told the applicant that he had been terminated. He also denied having told the applicant to come in and pick up his CCTV device in any of their conversations.
32Mr. Burtyn testified that after listening to the voicemails he brought them to the attention of Ashif Manji, the general manager. They agreed that the applicant would not be hired as an appointment setter because of his aggressive manner. He stated that this was a decision taken because of concerns about how the applicant might deal with customers, and also because of concerns about how he might behave in the workplace towards fellow employees or the respondent’s managers.
33Mr. Burtyn stated that after this decision was taken the applicant called him, either that day or the next. He testified that he told the applicant he would not be hired and they made arrangements for the applicant to come in and pick up his CCTV device.
34Mr. Burtyn denied ever having made any disparaging comments about the applicant’s need to use the CCTV. He stated that the respondent had employed a blind person who came to work with a guide dog. That employee worked for 9 months and left on her own terms. Mr. Burtyn also denied that the applicant’s age was a factor in not hiring him. He stated that the respondent has employed staff who are about the same age as the applicant and that one staff member currently employed is in his 60s.
35On cross-examination by the applicant, Mr. Burtyn maintained that the applicant had wrongly drawn the conclusion that he had been terminated from the fact that he was asked not to come in for several days in a row.
36The applicant suggested to him that it would have cost the respondent nothing to keep him employed, as it only pays commission on successful sales. Mr. Burtyn’s response was that there are overhead costs to the respondent in keeping unproductive or unsuitable appointment setters.
Evidence of Ashif Manji
37As general manager Ashif Manji testified that he is responsible for the overall operations of the respondent’s office in Ottawa. He testified that the job of appointment setter is difficult and many are not suited to do this kind of work. There is pressure to make between 100-300 calls every day and many prospective clients offer rude responses to unsolicited calls. He confirmed that turnover among appointment setters is high and that most do not make it through the trial period, which generally lasts a week. Some quit and others are found to be unsuitable by the respondent.
38Mr. Manji testified that he was not involved in the decision to offer the applicant a trial as an appointment setter, nor was he involved in monitoring the applicant’s performance. He stated that he did recall how the applicant performed, as he sits in the sales room. His recollection was that the applicant’s performance was acceptable.
39Mr. Manji stated that his direct involvement began when David Burtyn came to him with a concern about the voicemails he had received. He stated that it was clear to him that Mr. Burtyn felt he was being harassed. He added that as general manager he is responsible for the respondent’s relations with customers and for the health and safety of all employees. Mr. Manji stated that the applicant’s tone and the kind of language he used on the voicemails led him to conclude that the applicant should not be hired. Having made that decision he took the applicant’s phone number from Mr. Burtyn, told him to have no further dealings with the applicant, and called the applicant. He states that he told the applicant to stop calling Mr. Burtyn.
40Mr. Manji testified that the applicant then began calling him and harassing him. He stated that the applicant phoned him on his cell phone a number of times over the next few days. He also recalled that at one point the applicant phoned him at around 6 a.m.. Mr. Manji stated that over the course of the next five to six months the applicant phoned the company office between 50-60 times. The calls were made to the general line and he testified that the receptionist would recognise the applicant’s number and would not answer the calls.
41Mr. Manji stated that when the respondent filed its Response to the Application the applicant again called him, but he refused to speak to him. Mr. Manji testified that the respondent then wrote a letter to the Tribunal which states that the applicant repeatedly called the company office and that he was asked to stop as the matter would be resolved by the Tribunal. The letter is dated November 29, 2011 but the body of the letter includes the following sentence:
We would like to advise you since we have submitted the respondent application; [sic.] Mr. Murrell has now escalated by calling our offices several times today December 6th, 2011.
42In cross-examination Mr. Manji explained the discrepancy in the dates as a typographical error. Upon being asked by the applicant why he had not complained to the police if he was concerned about the applicant’s numerous calls, he stated that he regarded the calls as a nuisance but not as a sufficient threat to warrant involving the police.
submissions
43The applicant argued that he completed the trial period successfully and became an employee of the respondent as of the Monday of his second week at work. He maintained that the respondent’s calls to him repeatedly telling him not to come in to work amount to what he termed constructive dismissal. He claimed that Mr. Burtyn was uncomfortable with his disability and this is why he provoked the applicant into making aggressive calls. These, in turn, were used as a pretext to fire him.
44He argued that his evidence was believable, while Mr. Burtyn and Mr. Manji were evasive and unreliable in their testimony. In that regard he argued that Mr. Burtyn was untruthful in denying that he told the applicant he was terminated before the applicant left the series of voicemail messages. He stated that his voicemail reference to coming in and picking up his CCTV device only makes sense if Mr. Burtyn had told him earlier that his services were no longer wanted.
45The respondent argued that the applicant was not an employee. Rather, he was hired on a trial basis and the respondent decided not to employ him when it became clear that his behaviour was unsuitable. The respondent maintained that the applicant cannot prove discrimination by simply pointing to his disability, age and the respondent’s decision not to hire. He has to establish that disability and/or age were factors in that decision. The respondent maintained that the applicant had introduced evidence about a single comment that Mr. Burtyn had made regarding the size of the CCTV device, and that this comment was not discriminatory. It argued that no evidence was introduced regarding age discrimination.
46The respondent argued that the evidence of its witnesses is more consistent with the documentary evidence and with what a reasonable observer would expect to have taken place than the applicant’s evidence. The respondent argued that the applicant mistook the decisions not to have him work while other appointment setters were on trial for a decision not to hire him at all. It maintained that once the applicant made this mistake he began a campaign of harassing phone calls and that is what led the respondent to decide not to hire him.
analysis and decision
47The issue in this case is whether the applicant was discriminated against on the basis of disability or age or both when the respondent took its decision not to hire him as an appointment setter.
The applicable law
48The relevant sections and excerpts of the Code read as follows:
- (1) Every person has a right to equal treatment with respect to employment without discrimination because of… age [and]…disability.
(…)
No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
(1) In Part I and in this Part,
“age” means an age that is 18 years or more;
“disability” means,
(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury…and, without limiting the generality of the foregoing, includes…blindness or visual impairment…or physical reliance on a…remedial appliance or device
49The applicant has the onus of proving that it is more likely than not that a violation of the Code occurred. To do this the applicant must bring forward clear, convincing and cogent evidence. See: F.H. v. McDougall, 2008 SCC 53 at para. 46.
50The applicant has to establish a prima facie case of discrimination. A prima facie case is one which covers the allegations made and which, if they are believed, is sufficient to justify a finding in the applicant's favour in the absence of an answer from the respondent. See Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (SCC), [1985] 2 S.C.R. 536. Here there is no dispute as to the applicant’s age or that he is visually impaired. The applicant must prove that he received adverse treatment and that his age or his disability was a factor in the adverse treatment. See, for example, Communications, Energy & Paperworkers' Union of Canada (CEP), Local 789 v. Domtar Inc., 2009 BCCA 52 at para. 36. If the applicant can make a prima facie case of discrimination, then the respondent must establish, on a balance of probabilities, that there are defences or exemptions under the Code.
51This Application turns on the credibility of the competing accounts put forward by the parties. The approach to assessing credibility is set out in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354 (BCCA). At p. 356-357, the British Columbia Court of Appeal stated:
…Opportunities for knowledge, powers of observation, judgment and memory, ability to describe clearly what he has seen and heard, as well as other factors, combine to produce what is called credibility.
The credibility of interested witnesses, particularly in cases of conflict of evidence cannot be gauged solely by the test of whether the personal demeanor of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of the witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions (…) Again, a witness may testify to what he sincerely believes to be true, but he may be quite honestly mistaken.
52The Tribunal has also noted that the following are factors in assessing credibility: the motives of the witnesses, the relationship of the witnesses to the parties, the internal consistency of their evidence, and inconsistencies and contradictions in relation to other witnesses’ evidence. See Cugliari v. Telefficiency Corporation, 2006 HRTO 7.
The law applied to the evidence
Mr. Burtyn’s alleged discomfort with the applicant’s disability and age
53The applicant’s case rests on his claim that Mr. Burtyn did not hire him because he was uncomfortable with his disability and his age. This is not supported by the evidence.
54Mr. Burtyn acknowledged that on the applicant’s first day at work he remarked that the CCTV device was bigger than the applicant’s description of it over the phone. The applicant also claimed that Mr. Burtyn repeatedly said that he did not understand how the CCTV device works or how it could assist the applicant. Mr. Burtyn denies having made these remarks.
55I find it is more likely than not that Mr. Burtyn did not make those remarks. By the applicant’s own account Mr. Burtyn was aware of and accommodated his disability. Mr. Burtyn was not asked by the applicant to do much in the way of accommodation, but he complied readily with what he was asked to do.
56He told the applicant that that there was no problem in bringing his CCTV device to work. Although Mr. Burtyn commented on the size of the device, the applicant’s own evidence was that he did not see this remark as discriminatory, and that once it was installed there was no issue around its use. Mr. Burtyn made it clear that there was no problem with the applicant using his own handwritten script. He also directed that someone would assist the applicant by entering data on sales leads into the computer system on the applicant’s behalf.
57Further, as was evident during the hearing, there is nothing complicated about the CCTV device. Documents are placed on the reader and it is readily apparent that the text is magnified on the screen. I do not accept that Mr. Burtyn would have been mystified as to how the CCTV works or questioned whether the applicant needed it.
58The applicant did not challenge Mr. Burtyn’s evidence that the respondent had earlier employed a person with a visual impairment who was assisted by a service animal. He pointed to no other evidence that Mr. Burtyn was uncomfortable with his disability.
59As to his age, there is an allegation at A34 of Tribunal Form 1-A filed by the applicant to the effect that he was told “You are old enough to be my father”. It is not clear who is alleged to have said this. The applicant did not mention age discrimination at all when giving his evidence. Only when I asked him about this aspect of his Application did he mention his belief that Mr. Burtyn was uncomfortable with his age, but he provided no particulars to support this assertion.
The respondent’s reasons for not hiring the applicant
60The respondent’s case rests on its claim that the applicant was not hired because the applicant left a string of abusive voicemails for Mr. Burtyn after being told not to report for work on the three last days of the second week. The respondent’s claim is that no decision about the applicant’s future employment had been taken until he demonstrated his lack of suitability for telephone sales by leaving aggressive messages.
61There is a basic inconsistency in the respondent’s claim. The transcript of the last in the series of voicemails reads as follows:
Well David I just watched “Jackass 3.” So, I haven’t seen Jackass 4 yet, but I think you could probably write the movie for that. Jackass 4, What the Fuck is going on. Bill Murrell wants to work. I am totally available, totally considerate. I want to work, I want a job and somebody above just decides that Bill Murrell is not going to work. Well I want to talk to that person. And guess what? If I don’t talk to that person I will definitely talk to that person. It will be in front of a panel at the Human Rights Commission. This is bullshit. Absolute fucking garbage. You know it, I know it. And guess what? Yeh, I’ll go up and show up when I want. You don’t tell me what time to show up. I’ll show up, not at 5:00, whenever I feel like it, and pick up my machine and I’ll be a perfect gentleman 100%. But you have to look at me straight in the face. And guess what, that’s not going to be very comfortable.
62The wording of this voicemail was put to Mr. Burtyn. He continued to maintain that the applicant’s belief that he had been told at this stage that he would not be hired was a product of the applicant’s misinterpretation. He asserted that the applicant mistook being told not to report for work over the course of that week for a decision that his services were no longer required at all.
63It is more likely than not that the reference above to a specific time at which the applicant has been told by Mr. Burtyn to come in and pick up his CCTV device reflects an earlier conversation they had in which the applicant was told he would not be hired. I do not believe that the applicant would have manufactured this level of detail about picking up his CCTV if he had not already been told that his time with the respondent was over.
64I think it is more likely than not, as the applicant maintains, that the decision not to hire him was communicated during the last conversation he had in the series of phone calls with Mr. Burtyn about whether the applicant would report in for work in the second week.
65I accept the respondent’s position that by the end of the applicant’s first week of work it had not yet decided to hire him . He was still on trial during the second week. While there is a dispute as to when and how many calls were exchanged between the applicant and Mr. Burtyn in the second week, both parties agree that the applicant was told by Mr. Burtyn on more than one occasion not to come in, as he wanted to observe the performance of other trial appointment setters. This supports Mr. Burtyn’s account that he had not yet made up his mind to hire the applicant and still wanted to see if he could find anyone who could do the job better.
66I accept Mr. Burtyn’s evidence that this decision was standard practice and that the applicant was in no way being singled out by this decision. The applicant did not challenge this in cross-examination. In addition, Mr. Burtyn’s evidence on this point is consistent with his evidence and that of Mr. Manji about the nature of the business, the high turnover of appointment setters and the need for a trial period.
67However, I can see why this would have been frustrating for the applicant. I accept that he wanted to work and believed he was able to do the job. It appears that the applicant’s frustration increased by being told by Mr. Burtyn on at least two occasions that week to phone back the next day. The applicant’s employment future was being dealt with in instalments of 24 hours. The applicant’s own evidence is that by the time he spoke with Mr. Burtyn at the end of the week, Mr. Burtyn perceived his tone to be aggressive.
68The applicant maintains that as the last call went on it became clear to him that he was being terminated. He says this because Mr. Burtyn told him to come in and pick up his equipment. Mr. Burtyn denies this part of the conversation occurred. He says that he told the applicant to call him again to find out his schedule for the following week and that he only told the applicant that he would not be hired after he heard the string of abusive voicemails on the following Monday. Mr. Manji’s evidence supports Mr. Burtyn’s.
69However, the applicant’s evidence at the hearing is consistent with the earlier documentary evidence in the form of the voicemails. The transcripts of the voicemails suggest that the applicant understood that he would not be hired, and the most specific indication of this is the excerpt referred to above when the applicant talks about coming in to pick up his CCTV device. The consistency of the applicant’s account with the documentary evidence contrasts with Mr. Burtyn’s inability to explain why the applicant would refer to picking up his CCTV. On this point I prefer the applicant’s account that it was during this last call that he was told he would not be hired.
The applicant has not made out a prima facie case
70Notwithstanding this gap in the respondent’s case, the applicant has not shown that discrimination was a factor in the decision not to hire him.
71Although I accept the applicant’s account as to when he learned of the decision not to hire him, he has not pointed to evidence that supports his claim that Mr. Burtyn or the respondent were uncomfortable with his disability or age and that these were factors in deciding not to take him on as an appointment setter. He did not point to evidence of discrimination during calls he had with Mr. Burtyn about scheduling. In addition, as I indicated in paragraphs 55-59 above, he did not bring forward evidence of discrimination in the seven days that he worked for the respondent. For these reasons I conclude that the applicant has not made out a prima facie case of discrimination
72By his own account, the applicant’s tone in the last conversation he had with Mr. Burtyn was perceived as aggressive. The applicant testified that, while his intention in speaking to Mr. Burtyn about whether he would be scheduled again was “inquisitive”, he understood that Mr. Burtyn interpreted it as aggressive. When cross-examined about this exchange he again stated that he was being inquisitive, but then he also added that he “was on the offensive” during that conversation.
73This may have led the respondent to decide that the applicant was unsuitable for the job. However, I do not need to come to a firm conclusion as to why the respondent did not hire him because the applicant has not made out a prima facie case and his Application is dismissed.
order
74The Application is dismissed.
Dated at Toronto, this 19th day of March, 2013.
“Signed by”
Paul Aterman
Vice-chair