HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Richard Clarke

Applicant

-and-

Coutts Information Services Limited

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: May 6, 2013

Citation: 2013 HRTO 754

Indexed as: Clarke v. Coutts Information Services Limited

appearances

Richard Clarke, Applicant ) Self-represented

Coutts Information Services Limited, ) Sari L. Springer, Counsel

Respondent ) )

INTRODUCTION

1The 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. The respondent filed a Response, which denied the allegation of discrimination.

2The parties attended a hearing of the merits of the Application where they had the opportunity to call witnesses, present documents, and make submissions. I have decided after hearing the applicant’s evidence to dismiss his Application because it has no reasonable prospect of success. The following are my reasons for the dismissal.

BACKGROUND

3In May 2009, the respondent, which is a United States-based company, hired the applicant, who lived in the U.S., to be the Director of Operations at its office in Niagara Falls, Ontario. The applicant started his position on June 1, 2009 and was fired on June 17, 2009.

4On January 8, 2010, the applicant filed his Application with the Tribunal. He alleged that during his second week on the job, the Human Resources Manager asked him for his date of birth and expressed surprise when he told her that he was 64 years old. He also alleged that the next day, he was involved in a debate with the in-house counsel about an ethical issue, in which, among other things, she stated, “Don’t go there with me, you will lose,” and he stated, “I’m a staunch conservative, on the order of Mike Huckabee.” He further alleged that during his third week on the job, his immediate supervisor and the Human Resources Manager called him into a meeting and terminated his employment, but refused to provide him with a specific reason for the termination.

5The applicant stated that he believed that the termination was discriminatory for the following reasons:

It is my opinion that when [the Human Resources Manager] determined my age, she sought counsel from [the in-house counsel] who then determined (with others) to not invest any further in my employment as I would be too old to see them through longer term plans.

(…)

In the 12 working days I was with Coutts, I made no changes or alterations to policy or procedure. I held no meetings with the… staff where my opinions or feelings could have been misconstrued. Thus, I cannot believe anything but age is the single determining factor in my contract cancellation.

6On March 31, 2010, the respondent filed its Response to the Application. The respondent admitted that its Human Resources Manager asked the applicant for his date of birth, but stated that the only reason that she asked was because his date of birth was either left blank or was difficult to read on forms that he had been asked to fill out. The respondent denied that the Human Resources Manager was surprised that the applicant was 64 years old.

7The respondent stated that it terminated the applicant’s employment during his probationary period for a non-discriminatory reason, namely, his problematic and concerning management style. Specifically, the respondent stated that in a short space of time, the applicant had expressed strong personal opinions about issues such as religion and marriage, and discriminatory views about women, aboriginal people, and same sex relationships, which had the potential to create internal and external conflict.

8The respondent stated that a few days after the applicant started, employees began approaching its Human Resources staff to report incidents involving him. The respondent stated that its Human Resources staff questioned both the employees and the applicant about the incidents, and then forwarded the information to the applicant’s immediate supervisor, who concluded, based on that information, his own experience with the applicant, and feedback from other senior managers, that the applicant’s employment should be terminated.

9The hearing took place on July 10, 2012. The applicant only called himself as a witness. After he completed his testimony-in-chief, the respondent decided not to cross-examine him, and requested that the Tribunal dismiss the Application on a preliminary basis because it had no reasonable prospect of success.

10Prior to hearing the parties’ submissions on this issue, pursuant to Rule 1.7 of the Tribunal’s Rules of Procedure, I provided the applicant with an opportunity, which he undertook, to cross-examine two of the respondent’s witnesses: Michelle Caza, who was the Human Resources Manager, and Mark Edmonson, the Vice President of Global Operations, who was the applicant’s immediate supervisor. I also allowed him to testify in reply to the testimony of these two witnesses.

11The parties then made oral submissions on whether the Application should be dismissed because it had no reasonable prospect of success. After the parties completed their oral submissions, because the applicant was self-represented and I had some concerns that his submissions were inadequate, I provided him with the opportunity to file written submissions, as well. Both parties then filed written submissions after the hearing.

EVIDENCE

12The applicant testified that during the hiring process in the spring of 2009, he was interviewed in the respondent’s Niagara Falls office by Ms. Caza, Mr. Edmonson, and one other person, and in the respondent’s Tennessee office by five executives, including the President.

13The applicant testified that he started work on June 1, 2009. He stated that during his first week at work, he spent most of his time with Mr. Edmonson, who, among other things, introduced him to staff in the office in a town hall style of meeting. He stated that he also made a brief visit to the respondent’s office in New York State. He stated that Mr. Edmonson told him that for the first three months of his job, he should only observe, listen and learn.

14The applicant testified during this second week at work, he spent most of his time with the Director of Logistics. However, he stated that on June 9 or 10, 2009, Ms. Caza came into his office and told him that his date of birth was unclear on a form, so she called the Financial Controller, and asked him how old the applicant was. The applicant stated that he told Ms. Caza his date of birth, and in response, she expressed surprise that he was 64 years old.

15In cross-examination, Ms. Caza denied that she asked the Financial Controller how old the applicant was. Rather, she stated that the applicant’s date of birth was missing on one form and unclear on another, so she asked the Financial Controller if he had the key to a locked payroll office where other forms that had been filled out were kept. She stated that he told her that he did not have the key, and that she should speak directly with the applicant. When asked why she approached the Financial Controller rather than the applicant, Ms. Caza stated that she wanted to get access to the Payroll Coordinator’s office. She added that the applicant might have been behind closed doors meeting with Mr. Edmonson, but upon further questioning, she admitted that Mr. Edmonson was not in the office that week, and that she could have checked whether or not the applicant’s door was open.

16The applicant testified that he then attended a dinner with other staff, including the respondent’s in-house counsel. He stated that he became involved in a debate about an ethical issue, and the in-house counsel said to him, “Don’t challenge me, you will lose.” He stated that the in-house counsel expressed significant animus towards him. He stated that he believes that the in-house counsel knew his age from Ms. Caza, and then contacted the respondent’s head office in Tennessee and told the President and other executives that the applicant was too old and that they needed to get rid of him.

17In cross-examination, Ms. Caza denied that she discussed the applicant’s age with anyone else. She stated that the only time that his age came up was when she was processing his forms.

18The applicant testified that on June 11, 2009, Mr. Edmonson told him that he was glad he was getting his nose into things, and that he was exactly the person whom the respondent was looking for. However, he stated that on June 17, 2009, Ms. Caza called him into an office where Mr. Edmonson was waiting for him with a letter, and that Mr. Edmonson informed him that his employment was terminated. He stated that neither Mr. Edmonson nor Ms. Caza would provide him with a reason for the termination.

19In cross-examination, Mr. Edmonson denied that the respondent’s President had twisted his arm to fire the applicant because he was too old. He stated that he had engaged in a lengthy process to hire the applicant, and decided that his employment should be terminated solely because he had made inappropriate and discriminatory comments, which were significant in number and serious in nature. He stated that he commissioned an investigation, which disclosed that the applicant had failed to respond to “good morning” from front line staff, had made a comment to a number of employees that Sunday was God’s day, had licked his lips in a derogatory manner with a cleaner, had expressed the view that only women should be librarians, had made inappropriate comments to staff in his visit to the office in New York State, and had made inappropriate comments about women. He also stated he himself had heard the applicant state that aboriginal people live on reservations, drink all the time, and live off the state, and that he opposed same sex relationships. He further stated that after the termination, he checked the applicant’s emails and found one referring to female employees as “concubines”.

20In his reply testimony, the applicant admitted that he stated that no one should work on Sundays because it is the Lord’s Day, but denied that his statement was an affirmation or confirmation of anything. He also admitted that he licked his lips in front of the cleaner, but stated that it was because she was deaf and he was asking her in sign language if she could read lips. He also admitted that he made a comment about aboriginal people. He stated that an aboriginal truck driver had told him that he was glad that he had a job because his uncles sat around the reservation drinking all day. He stated that he relayed what the truck driver had said to Mr. Edmonson, and commented that it was too bad that the government allowed this to happen. He denied that he made any comments about same sex relationships. He admitted that he used the word “concubine”, and stated that it merely refers to women servants who are involved with their bosses. He stated that he had a legitimate concern that there were female employees in the office who were in relationships with their bosses.

ANALYSIS

21Rule 19A of the Tribunal’s Rules 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. Typically, summary hearings are held at a relatively early stage in the Tribunal’s process and involve receiving the applicant’s submissions on his or her legal theory and what evidence he or she anticipates calling at the merits hearing in support of the allegations. However, the principle that an application can be dismissed because it has no reasonable prospect of success is not limited to the initial early stage of the Tribunal’s process, and can be heard after the applicant presents his evidence at the hearing, as in the case at hand. See Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 at para. 18.

22The approach to deciding whether an application has a reasonable prospect of success was explained in Dabic v. Windsor Police Service, 2010 HRTO 1994 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.

23The 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.

24In his submissions, the applicant stated that his Application has a reasonable prospect of success. He stated that the respondent would never explicitly document that it terminated his employment because of his age, but that an inference can be drawn from the circumstantial evidence that his age was the reason for the termination. Specifically, he stated that Ms. Caza was unable to offer a credible explanation why she went to the Financial Controller rather than him to confirm his age, that she expressed astonishment that he was 64 years old, that his routine conversations with staff were turned into “concerns” and “complaints”, and that Mr. Edmonson viewed him as incorrigible.

25In its submissions, the respondent stated that the Application does not have a reasonable prospect of success. The respondent stated that the applicant’s theory of discrimination is that he had a suspicious interaction with Ms. Caza about his age, which was followed by an argument that he had with the in-house counsel at a staff dinner, which resulted in the in-house counsel pursuing the termination of his employment with the respondent’s head office, and using his advanced age, which she had been told by Ms. Caza, as the catalyst to do so. The respondent stated that Ms. Caza provided credible testimony why and how she sought the applicant’s date of birth, and denied that she discussed his age with anyone else, and that Mr. Edmonson provided credible testimony about the non-discriminatory reasons for terminating the applicant’s employment. As such, the respondent stated that the applicant’s allegation of age discrimination is based exclusively on speculation and bald assertions and has no evidentiary foundation whatsoever.

26I am cognizant that age discrimination, as with many other grounds protected under the Code, may be covert and subtle, and that motive or intent is not required to prove discrimination. See, for example, Gazankas v. Red Lake (Municipality), 2013 HRTO 198 at para. 19. I am also cognizant of the fact that the respondent may have information about the reasons for its actions, including evidence of discrimination, which is not accessible to the applicant. For that reason, I directed the respondents to call Ms. Caza and Mr. Edmonson as witnesses and provided the applicant with an opportunity to cross-examine them.

27After hearing the applicant’s evidence, the cross-examination of Ms. Caza and Mr. Edmonson, and the parties’ submissions, I am not satisfied that that the applicant established that his Application has a reasonable prospect of success. In my view, there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that his age was a factor in the termination of his employment.

28The applicant has an elaborate theory of age discrimination, but it is based on speculation rather than evidence that the applicant has or that is reasonably available to him. In his testimony-in-chief and his cross-examination of Ms. Caza and Mr. Edmonson, the applicant established that Ms. Caza found out that he was 64 years old, that he then had an argument about an unrelated issue with the respondent’s in-house counsel, and that Mr. Edmonson then terminated his employment, but he did not present any evidence that shows, or point to any evidence that is reasonable available to him that would show, that he has a reasonable prospect of establishing a nexus between these facts.

29I disagree with the applicant that his cross-examination of Ms. Caza and Mr. Edmonson showed that he has a reasonable prospect of establishing such a nexus. Ms. Caza provided a reasonable explanation why she approached the Financial Controller and then the applicant for his date of birth, and her denial that she discussed the applicant’s age with anyone else was not shaken. Mr. Edmonson also provided several plausible reasons for terminating the applicant’s employment, and his denial that the applicant’s age was a factor in the termination was not shaken.

30I agree with the applicant that viewing an older employee as “incorrigible” may be connected to age, but aside from making a bald statement, the applicant did not explain, and I do not see, how he has a reasonable prospect of establishing that Mr. Edmonson’s decision to terminate his employment, rather than warning or coaching him, was connected to his age. I also agree with the applicant that he has a reasonable prospect of establishing that some of the reasons for terminating his employment were unfounded. However, in view of some of his admissions, he did not establish that he has a reasonable prospect of establishing that all the reasons for terminating his employment were unfounded, and, more importantly, that his age was a factor in the termination.

31For all the above reasons, I find that the Application does not have a reasonable prospect of success.

ORDER

32The Application is dismissed.