Patry v. Alpine Access Canada Inc., 2013 HRTO 839

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Joanne Patry

Applicant

-and-

Alpine Access Canada Inc.

Respondent

DECISION

Adjudicator: Maureen Doyle

Date: May 16, 2013

Citation: 2013 HRTO 839

Indexed as: Patry v. Alpine Access Canada Inc.

APPEARANCES

Joanne Irene Patry, Applicant

Self-represented

Alpine Access Canada Inc., Respondent

Naomi Calla and Brian Mulroney, Counsel

Introduction

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 disability.

2The respondent denies any discrimination and filed a Request for a Summary Hearing.

3On September 21, 2012, the Tribunal issued a Case Assessment Direction (CAD) in which it granted the respondent's request and directed the applicant to be prepared to point to the evidence upon which she would rely to prove a link between the respondent's actions and the grounds cited. It also directed her to be prepared to respond to the arguments made by the respondent in its Request for a Summary Hearing.

4The Summary Hearing was convened by teleconference on April 29, 2013, and all parties participated.

DECISION

5For the reasons that follow I find that this matter has no reasonable chance of success and the Application is dismissed on that basis.

Summary Hearings

6In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed. It is outlined in Rule 19A of the Tribunal's Rules of Procedure:

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.

7In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

Application to the Facts

8The applicant applied for a job as a Customer Service Sales Agent with the respondent, but alleges that she was not hired due to her disability.

9The position for which the applicant applied was a home-based job in which the successful candidates would provide customer service and sales by telephone.

10In its Request for a Summary Hearing, the respondent stated that on January 19, 2012, the applicant sent an email to the respondent, inquiring into whether any jobs were available. The respondent provided a copy of her email in which she indicated that she was housebound, due to her asthma, and stated that working as a "remote call center agent from home" would be "perfect" for her.

11The respondent indicated that it did not have positions available for the applicant in January 2012, but that it contacted her on March 31, 2012 and invited her to apply for employment.

12The applicant subsequently applied for employment with the respondent and participated in a first interview, which was a group interview with 20 people. At the conclusion of the first interview, she was awarded a second, one-on-one, telephone interview. The applicant alleges that she was asked three questions at the second interview, including a question regarding her reasons for applying for the position. She alleges that she advised that she had asthma and a chronic cough, the latter being under control, and that work at home was ideal for her as it permitted her to avoid working in buildings with "air conditioning or ventilation". She states that this was the final question and answer in the second interview. She states that she was later advised that she was not a successful candidate. She feels that the interview did not last as long as it was supposed to last. She alleges that though the respondent advised her she was not a successful candidate because the company was looking for specific qualifications, she considered this to be "a lie" since they had given her a first and second interview based on her qualifications. She "deduced from this that they refused me the job based on my health issues".

13Following receipt of the email advising her that she was not successful, the applicant wrote to the respondent stating that she was not sure why her qualifications were not suited to the position and asking for further explanation. The respondent provided a copy of their email in response to her query, stating in part as follows:

Unfortunately, we are unable to provide individual feedback to candidates who were not chosen for employment with Alpine Access.

From the thousands of applications we receive each day, we must identify and select only a small percentage of those who most closely match the exact pattern of qualifications, previous related work experience, and skill-sets required by our specific positions. Our experience has taught us that this is an essential step to ensure a productive match for both the applicant and Alpine Access.

Although your background and credentials are considerable, we have selected other candidates whose current qualifications more closely match our program requirements. We do appreciate your interest and wish you the best of luck in your job search.

14At the summary hearing, the applicant also alleged that the woman conducting the second interview called her by the wrong first name at the commencement of the call, and she concludes that "from the start, the interview was doomed". She asserted that the interviewer had the wrong information before her and that she simply heard the applicant state she had a chronic cough, and ended the interview.

15The respondent asserts that it was a very competitive job competition, with 2,392 applications for 104 positions. It asserts that of the groups of 20 who participated in the first set of interviews, 50% advanced to a one-on-one telephone interview. It asserts that 564 candidates were unsuccessful in the second round of interviews. It asserts that at the conclusion of the applicant's one-on-one telephone interview the interviewer posted her notes indicating that the applicant provided long-winded answers and lacked relevant sales experience. It asserts that though the applicant had met the basic requirements of the posting, and had proceeded to the second interview, she was judged not able to give the clear and concise answers to customers expected of a Customer Service Sales Agent, and she lacked the necessary sales experience. The respondent asserted that the applicant was one of many unsuccessful applicants and the fact that she "deduced" she was unsuccessful due to her disability is not evidence establishing a link between the decision not to hire her and her disability.

16The respondent cited Exil v. Liberte Brand Products, 2012 HRTO 382, where the Tribunal considered allegations from an applicant who identified himself as a Black man from Haiti. There, the applicant alleged that he had a telephone job interview with the respondent and that the respondent discriminated against him after a second, in-person interview. At paragraphs 26 and 27, the Tribunal stated as follows:

The applicant submits that the respondents acknowledged that he was very well qualified for the job in question and that this shows that the decision not to hire him must have been based on his race, colour, place of origin, ethnic origin, and/or citizenship. However, the mere fact that the applicant was not hired for a job for which he was well qualified is not a basis upon which to conclude that the applicant's race, colour, place of origin, ethnic origin, and/or citizenship played a role in the respondents' decision to hire another candidate. There are simply no facts alleged that, if proven, would allow the Tribunal to find that the respondents' hiring decision was based in whole or in part on discriminatory grounds under the Code.

The applicant may honestly believe that the respondents treated him as they did because he is Black or otherwise because of his race, colour, place of origin, ethnic origin, and/or citizenship. However, the applicant's belief that the respondent mistreated him on the basis of such prohibited grounds is not evidence that the respondents did so. It is not open to the Tribunal to make a finding of discrimination or harassment based only on the applicant's assertions, feelings or beliefs. The Tribunal cannot find that the respondent discriminated against the applicant unless there are facts alleged that, if true, would allow the Tribunal itself to conclude that the respondents' actions towards the applicant were linked to a prohibited ground of discrimination under the Code. There are no such facts alleged in this case.

17Though the applicant here asserts that because the respondent granted her a first and second interview, she had the necessary qualifications for the job and the only reason she did not get the job was her disability, she has not been able to point to evidence upon which she would be able to rely to establish a link between the respondent's decision not to hire her and her disability.

18The fact that the telephone interviewer called her by the wrong name at the outset of the call is not evidence which the applicant could rely upon to establish a link between the respondent's decision not to hire her and her disability. There are many reasons why the interviewer may have made this mistake at the start of the call. It is even possible that the interviewer did not have the right file in front of her, as the applicant asserts. The Tribunal does not have the general power to deal with allegations of unfairness, however, and the applicant has not been able to explain how the interviewer's error links the respondent's decision not to hire her to her disability.

19The applicant asserts that she had all of the necessary qualifications for the job and that is why she received two interviews, but she has not explained how she can prove that only people with all of the necessary qualifications were granted interviews nor has she even asserted that all job applicants with the qualifications for the job were hired. Further, she has not disputed the respondent's assertion that it was a highly competitive job competition and that there were many unsuccessful applicants, including applicants who had been granted a second interview.

20The applicant has not disputed the respondent's assertion that she wrote to the respondent in January 2012, disclosing the fact that she had asthma, nor has she disputed the respondent's assertion that she applied for employment in April 2012, at the respondent's invitation.

21Without more, the fact that the applicant revealed her disability in her answer to the interviewer's final question, and was subsequently denied the job, does not provide the evidentiary basis necessary to draw a link between the respondent's decision not to give her the job and her disability.

22In summing up, while it is clear that the applicant was unhappy with the fact that she was not hired for the position she sought, she has not pointed to evidence upon which she could rely to establish that the respondent treated her differently because of her disability. Without this, her Application cannot succeed and it is dismissed as having no reasonable prospect of success.

ORDER

23The Application is dismissed.