Robert Hunter v. Garda Cash-In-Transit and Derek Parsons, 2013 HRTO 887

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Hunter

Applicant

-and-

Garda Cash-In-Transit and Derek Parsons

Respondents

DECISION

Adjudicator: Ruth Carey

Date: May 23, 2013

Citation: 2013 HRTO 887

Indexed as: Hunter v. Garda Cash-In-Transit

APPEARANCES

Robert Hunter, Applicant

Self-represented

Garda Cash-In-Transit, Respondent

Michelle Rolston and Jean-Sebastian Racine, Representatives

Derek Parsons, Respondent

Self-represented

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 race, colour, place of origin, citizenship, sex, sexual orientation, age and reprisal.

2By Case Assessment Direction (CAD) dated January 30, 2013, the Tribunal scheduled this Application for a summary hearing. The CAD said the summary hearing would address two questions:

• Can the applicant point to some proposed evidence that shows a link between the behaviour complained of and the grounds alleged?

• With respect to the reprisal claim, is there some proposed evidence that indicates the respondents’ behaviour was intentional and in retaliation for the applicant’s assertion of Code rights?

3The hearing took place by teleconference on May 14, 2013.

4The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal cannot address general allegations of unfairness unrelated to the Code. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code. 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.

6The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success. At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondents’ version of one or more of the facts.

7Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he was treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the facts or evidence the applicant is able to point to which tend to support the applicant’s belief that he has experienced discrimination.

8The 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.

9Support for that connection may come in a variety of forms: the timing of events; comments alleged to have been made by the respondents; comparisons with how other people were treated. These are just some examples of circumstances that can play a role in assisting the Tribunal in determining whether the application has a reasonable prospect of success. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application will be found to have no reasonable prospect of success.

10The primary focus in the summary hearing is on the applicant’s evidence. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events.

11The Tribunal is also mindful of the fact that in some cases the application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.

FACTUAL BACKGROUND

12The applicant self identifies as a Black, homosexual male who is fifty-four years old and born in Canada. He was employed by the corporate respondent to facilitate building and fleet maintenance. The personal respondent was one of his supervisors.

13The Application concerns a series of incidents that occurred in the workplace: one of the applicant’s pay stubs disappeared from his mail slot; his access card was removed from his desk; colleagues sent trucks for servicing without the applicant’s knowledge or when servicing was unnecessary resulting in a shortfall of available trucks and the applicant having to work outside his regular hours; there were “gay jokes and comments” in the workplace; the applicant was called about work issues outside of his regular hours of employment; one or more employees placed their hands on their holstered firearms while talking to him; and the applicant was not enrolled in the benefits plan after three months as promised. During the hearing the applicant added the following allegation: colleagues would pile up bins in front of his workspace blocking the applicant’s access to it. The applicant also alleges he was forced to resign his employment after three or four months because he could not put up with these kinds of incidents any longer.

ANALYSIS

14Subsection 5(1) of the Code states:

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, age, record of offences, marital status, family status or disability.

15To show that he experienced discrimination contrary to the Code, the applicant would have to show that he was treated differently because of one of the listed grounds.

16Subsection 5(2) sets out the right to be free from harassment in the workplace:

Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

17“Harassment” is defined in section 10 of the Code:

Harassment means engaging in a course of vexatious comment or conduct that is known or ought reasonably be known to be unwelcome.

18To establish harassment contrary to the Code, the applicant has to show that he was subjected to a course of conduct that is vexatious and that the comments or conduct is related to one of the listed grounds. In addition, the applicant must establish that the conduct or comment was known to be unwelcome to him, or that a reasonable person in all the circumstances would have known it was unwelcome.

19With respect to the allegations about discrimination on the grounds of sexuality the Application refers to “gay jokes and comments” but provides no other or further details. During the summary hearing I asked the applicant to elaborate and he said he overheard colleagues speculating that he was homosexual “because of the way I was dressed and kept the warehouse immaculate.” The applicant stated that he never complained to anyone about what he overheard and he provided no further details.

20In order for such comments to constitute harassment and a breach of the Code the applicant must be able to point to some evidence or other reason or inference that would indicate the speaker or speakers of the remarks ought reasonably to have known they would be unwelcome. The applicant did not point to any proposed evidence that this workplace is one where there is a common understanding that any remarks about sexuality are unwelcome. So absent evidence that the applicant complained about the remarks and the conduct continued, there is no reasonable prospect of success with respect to that part of the Application.

21During the course of the summary hearing I asked the applicant several times why he believes that the behaviour complained of, other than the overheard remark about his homosexuality, is connected to the grounds listed in his Application. He stated that the other employees were resentful because he did his job efficiently and well and jealous that he got the position over other colleagues who had applied. He also said that the workplace was a group environment where he was not part of the group because he “did what he was hired to do”. According to the applicant, his colleagues “built that place from the ground up” and reacted negatively to the applicant changing things and receiving praise from his bosses in Montreal for doing so. However, the applicant did not point to any proposed evidence that was related to his race, colour, place of origin, citizenship, sex or age.

22Assuming other employees were not subjected to the same treatment as the applicant, I can understand why he felt like an “outcast” as he put it. But it is not sufficient to point to evidence of differential treatment alone. Absent some proposed evidence or basis for an inference linking the behaviour complained of to the listed grounds, there is no reasonable prospect the Application can succeed.

The Reprisal Claim

23Section 8 of the Code states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

24The Tribunal set out the elements of a successful reprisal application in Noble v. York University, 2010 HRTO 878 at paragraphs 33 and 34, as follows:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

25The Application does not say that the applicant tried to claim or enforce his rights or that he refused to infringe someone else’s rights under the Code prior to the behaviour he complains of in the Application. During the summary hearing the applicant acknowledged that he never complained to the respondents about the overheard remark concerning his homosexuality; and he never raised concerns about race, colour, place of origin, citizenship, sex, or age with the respondents. As a result, there is no evidence that the behaviour complained of was retaliatory and in response to an attempt by the applicant to assert rights under the Code. Therefore, there is no reasonable prospect of success with respect to the reprisal claim in the Application.

ORDER

26The Application is dismissed.