Boily v. Brock University, 2014 HRTO 1064

Case Summary

The applicant alleged discrimination in employment on the basis of disability after the respondent university failed to interview him for a position. The respondent requested a summary hearing, arguing the application had no reasonable prospect of success. The Tribunal found that while the applicant may have been treated unfairly or felt suspicious due to past disputes, he failed to point to any evidence linking the decision not to interview him to his disability. The application was dismissed.

Gerry Boily

Applicant

-and-

Brock University

Respondent

Adjudicator: Douglas Sanderson

Date: July 21, 2014

Citation: 2014 HRTO 1064

Indexed as: Boily v. Brock University

APPEARANCES

Gerry Boily, Applicant

Self-represented

Brock University, Respondent

Brenda Bowlby, Counsel

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.

Background

2The applicant states that he applied for the position of “Advising and Retention Officer” that the respondent posted on November 26, 2012. The applicant asserts that he was qualified for the position, but was not offered an interview. The applicant states that he believes the respondent did not offer him an interview because he advised the respondent that he has disabilities and requested accommodation along with his job application. The respondent acknowledges that it did not offer the applicant an interview for the position in question, but states that the applicant’s disability was not a factor in the decision. Rather, the respondent states that it offered interviews to three candidates that it believed had better qualifications that the applicant. The respondent filed copies of the other candidates’ resumes, along with an explanation regarding why the respondent concluded that they were more qualified that the applicant.

Summary Hearing

3By Case Assessment Direction of September 23, 2013, the Tribunal granted the respondent’s request for a summary hearing to determine whether the Tribunal should dismiss the Application because it has no reasonable prospect of success. The Tribunal held the summary hearing by teleconference on July 9, 2012.

Analysis and Decision

Reasonable Prospect of Success

4Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

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.

5In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments about summary hearings at paragraphs 8-9:

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.

6The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201 and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these grounds was a factor in the treatment the applicant experienced. At the summary hearing stage, the Tribunal does not determine whether the applicant is telling the truth or assesses the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

7At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to the applicant to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.

8In both his Reply and during the summary hearing, the applicant submitted that the respondent’s policy on Employment Equity indicates a goal of increasing the range of applicants for positions to reflect the diversity of the pool of qualified candidates and to creating a workforce that is representative of the pool of potential candidates available for recruitment. The applicant submitted that in light of this goal it would be reasonable to expect the respondent to interview qualified candidates from disadvantaged groups, such as himself. The respondent also stated that the respondent’s hiring policy indicates that it will select between two and five candidates to interview for vacancies. The applicant submitted that it would have been appropriate for the respondent to interview more candidates in order to have a deeper pool to draw from. I asked the applicant whether the following statement in his Reply: “I understand that I may not have been the best candidate relative to all of the candidates but I believe that I should have qualified for an interview” was an admission that the candidates selected for interviews were more qualified than he. The applicant responded to the effect that he may not have been the best candidate to be hired, but deserved an interview.

9The applicant also pointed to his history with the respondent, noting that he has worked for the respondent as a Teaching Assistant, a unionized position, since 2005. The applicant stated that he has had a number of disputes with the respondent regarding his employment that were dealt with in the grievance/arbitration process.

10I agree with the respondent’s submission that nothing in the policies the applicant cited created an obligation to interview the applicant. The applicant may well be suspicious of the respondent in light of the apparent history between the parties, but he did not point to any evidence that he has or that is reasonably available to him that would establish a link between the respondent’s decision not to grant him an interview and his disability. In these circumstances the Application has no reasonable prospect of success.

11The Application is dismissed.

Dated at Toronto, this 21st day of July, 2014.

“Signed by”

Douglas Sanderson

Vice-chair