HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sadat Wasty

Applicant

-and-

Lone Wolf Real Estate Technologies

Respondent

DECISION

Adjudicator: Ruth Carey

Date: May 30, 2013

Citation: 2013 HRTO 957

Indexed as: Wasty v. Lone Wolf Real Estate Technologies

APPEARANCES

Sadat Wasty, Applicant

Self-represented

Lone Wolf Real Estate Technologies, Respondent

Dave Furness and Christina Rau, Representatives

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 and disability.

2By Case Assessment Direction (CAD) dated February 27, 2013, the Tribunal scheduled this Application for a summary hearing on the basis that “it appears the applicant may be unable to prove a link to the grounds alleged”.

3The hearing took place by teleconference on May 27, 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 describes himself in his Application as a brown coloured man who has been diagnosed with chronic depression. The respondent develops software primarily for real estate brokerages and has offices in both Canada and the United States. The applicant was hired by the respondent as a senior software developer effective November 12, 2012. His employment was subject to a three month probationary period and he was terminated within that period, on January 18, 2013. The Application alleges that the termination of the applicant’s employment was discriminatory.

13During the summary hearing the applicant stated that he believes the termination was primarily as a result of his mental health issues. He believes this is the case because no one ever criticised his performance or told him he was doing a poor job. As a result, he thinks there must be some other reason for the termination. The applicant states that he never told his supervisors or anyone in management that he had a disability, but he took his medication daily at the workplace and was observed doing so. A colleague asked him why he was taking pills and he answered at the time, but he did not say during the summary hearing what his answer was. He further states that because he was in his probationary period he did not want to give management a reason for terminating his employment. Finally, the applicant states that he attended daily meetings of his team and is pretty sure his disability-related short term memory loss would have been evident during those meetings.

14The applicant filed with his Application detailed notes he made concerning the work he did for the respondent. The notes indicate that there were several incidents where work he thought completed was returned to him because additional work was needed. The applicant concedes this was the case and that maybe he experienced problems completing some tasks.

15The respondent states that the applicant’s employment was terminated because his skill sets were not at the level it was expecting for someone in the role of senior developer. On the same day that the applicant was terminated for performance issues the respondent learned of inappropriate instant text messages allegedly sent by the applicant to a colleague, but that was not the basis of the decision to terminate. The respondent also states that no one knew the applicant had a disability.

ANALYSIS

16Subsection 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.

17To 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.

18During the course of the summary hearing the applicant said nothing about why he believes race and colour were involved in his termination. In the Application he states he was not sure it was, but it could be related to race because another brown person was terminated after he was hired, and shortly before his termination the respondent hired another brown person.

19Absent something more, simply hiring and terminating some individuals of like race to the applicant is not evidence the applicant can point to that would establish there may have been a breach of the Code when the respondent ended his employment. It is not open to the Tribunal to make a finding of discrimination based only on the applicant’s assumptions or speculation.

20With respect to the applicant’s disability, it is theoretically possible that the respondent came to believe the applicant was disabled and that belief played a part in the decision to terminate his employment. However, the applicant cannot point to any proposed evidence or basis for an inference that would support the conclusion that was the case. Without such an evidentiary basis, the Application has no reasonable prospect of success.

ORDER

21The Application is dismissed.