HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Jean-Pierre Malela Kinzonzi Applicant
-and-
Ottawa Association of Community Organizations for Reform Now Respondent
DECISION
Adjudicator: Paul Aterman
Indexed as: Kinzonzi v. Ottawa Association of Community Organizations for Reform Now
APPEARANCES
Jean-Pierre Malela Kinzonzi, Applicant Self-represented
Ottawa Association of Community Organizations for Reform Now, Respondent Judy Duncan, Representative
1This Decision explains why this Application, which alleges discrimination with respect to employment because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), has no reasonable prospect of success and must be dismissed.
2The Tribunal conducted a summary hearing by teleconference on August 18, 2014.
3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The 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.
4The Tribunal cannot address general allegations of unfairness unrelated to the Code. Many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant financial and emotional damage. However, the Tribunal’s jurisdiction is limited to claims of discrimination under the Code. Discrimination under the Code generally involves an allegation of unfair treatment because of one or more of the grounds listed in the Code. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code were a factor in the treatment the applicant experienced.
5The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this 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. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that they have experienced discrimination.
6The 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 allegedly experienced by the applicant with the applicant’s personal characteristics. Support for that connection may come in a variety of forms: comments alleged to have been made by the respondent, the timing of certain events, or comparisons with how other people were treated. These are just some examples of the circumstances, which are often contained in the narrative to an application, that 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 beliefs, the application may be found to have no reasonable prospect of success.
7In a summary hearing, the parties are given an opportunity to make submissions, usually on a telephone conference call. These submissions are often helpful in clarifying the nature of the allegations and the evidence that the parties intend to bring forward if the application were to proceed to a hearing on the merits.
8The 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.
9Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this particular case.
10The respondent is a non-governmental organisation engaged in social justice advocacy. It advertised vacancies for the position of Community Organiser on both a part-time and full-time basis. The advertisement did not list any formal qualifications for the positions. It simply stated:
What does it take to be an ACORN Canada Organizer?
- Passion and dedication to social justice
- Excellent communication skills
- Strong work ethic and willingness to learn
- Ability to work independently and in a team
11The applicant is visually impaired. He responded to the advertisement and was invited by the respondent to attend a group interview followed by an individual interview. The applicant alleges that he was one of 24 people who attended the interview. The group stage consisted of each participant introducing themselves, explaining their background and stating why they wanted to work for the respondent.
12He alleges that after these introductions, an employee of the respondent spoke about the respondent’s mandate and mission. She then asked those participants who were still interested in being employed to stay for an individual interview. The applicant maintains that he was one of 14 participants who decided to stay.
13He alleges that when his turn came he went into the employee’s office. A discussion took place, but it was not an interview aimed at assessing his suitability for the job. Rather, the employee just verified the information on his resume and asked if he was looking for part-time or full-time work. The applicant states that he said he was interested in full-time work, was available to start right away and asked if he would need any accommodation relating to his disability. He explained that he could use software installed on his laptop that assists him in using his computer despite being visually impaired or that he could bring the software to work and have it installed on the respondent’s computers. He maintains that he was told that this would not be necessary as the work of a Community Organiser consists of speaking to people on the phone and going door to door to talk to community members as part of its outreach program.
14The discussion ended. The applicant asked the employee to show him to the elevator because he was not familiar with the building and, because of his disability, needed assistance in finding it. She accompanied him to the elevator. A week later he sent the employee an email asking what was happening as a follow up to the interview. She responded as follows:
I thank you very much for being a part of the interview process. It was a tough decision and regretfully we will not be able to offer you a position at this time. We will keep your resume on file for future positions if they become available.
15The applicant maintains that when he asked the employee to accompany him to the elevator the respondent decided not to employ him. He alleges that the fact that he asked for help due to his disability caused the respondent to reject his application for employment.
16During the teleconference hearing I explained to the applicant the distinction between evidence that could support a finding he was discriminated against and his assumptions or beliefs about the respondent’s motivations dealing with his request for employment.
17The applicant indicates that there is no direct evidence of discrimination. He argues that I should draw an inference that he was discriminated against because of the circumstances surrounding his treatment. The relevant circumstances are:
- That his academic qualifications do not make him overqualified for the job, as many of the other participants in the group interview had a similar level of academic qualification;
- He performed just as well as anyone else in the group interview;
- The individual interview he had did not examine his suitability for the job and was limited to verifying information he had already provided on his resume;
- What distinguishes him from other candidates is his disability but there is nothing about the job that he would not be able to do because of his disability; and
- His request to be accompanied to the elevator when he left the interview caused the respondent’s employee to make a discriminatory decision that he was not suitable for the job.
18As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17:
The 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 or the intention by a respondent to commit a reprisal for asserting one’s Code rights.
19In my view the evidence the applicant relies upon does not support an inference that the respondent’s decision-making was tainted by discrimination. The applicant relies on his perception of how the interview unfolded and he points to no extrinsic sources that might support his perception. His conclusion that when he asked to be shown to the elevator the respondent’s employee decided not to hire him because of his disability is an expression of his subjective perception that is unsupported by any evidence.
20In the course of the teleconference hearing the applicant asked that the respondent explain whom it had hired as a result of the interviews and why it had made the choices that it did. I explained to the applicant that the purpose of the hearing was not for the respondent to justify its choices, but rather for him to show whether there was any evidence he could bring forward that his disability was a factor in the choice not to employ him. The applicant indicated that the evidence of discrimination lies in the sequence of events he described, combined with the fact that he has a disability.
21As I indicate above, the sequence of events and the fact that the applicant is disabled do not, in and of themselves, support an inference of discriminatory conduct. There needs to be evidence to support the applicant’s interpretation of the events.
22In the absence of any evidence to support his theory, the applicant’s claim that the respondent’s treatment of him was because of his disability is simply speculation. This is not sufficient basis to satisfy the onus in a summary hearing of highlighting evidence that links the alleged discriminatory conduct to a prohibited ground under the Code. I accept that he holds a sincere belief that he was discriminated against because of disability, but the Tribunal adjudicates applications on the basis of evidence and not belief. As the applicant has not pointed to any evidence that could link the respondent’s refusal to employ him to any prohibited ground of discrimination under the Code, I conclude that the Application has no reasonable prospect of success.
order
23The Application is dismissed.
Dated at Toronto, this 26^th^ day of August, 2014.
« Signed by »
Paul Aterman
Vice-chair