Timothy Ogilvie v. J.W. Marriott Resort – The Rosseau, Minett, Ontario, 2014 HRTO 1355

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Timothy Ogilvie

Applicant

-and-

J.W. Marriott Resort – The Rosseau, Minett, Ontario

and Jessica Madill

Respondents

DECISION

Adjudicator: Douglas Sanderson

Date: September 12, 2014

Citation: 2014 HRTO 1355

Indexed as: Ogilvie v. J.W. Marriott Resort – The Rosseau, Minett, Ontario

APPEARANCES

Timothy Ogilvie, Applicant

Self-represented

J.W. Marriott Resort – The Roseau, Minett, Ontario and Jessica Madill, Respondent

Shaun Crymble, Representative

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.

2In the Application, the applicant sets out several complaints he had regarding his employment with the organizational respondent, including health and safety issues, working conditions, pay and opportunities for advancement. The applicant did not indicate which prohibited ground of discrimination was the basis for the respondents’ alleged discrimination. The organizational respondent operates a hotel and spa and the individual respondent is the organizational respondent’s Human Resources Director.

Summary Hearing

3By Case Assessment Direction (“CAD”) dated March 12, 2014, the Tribunal ordered a summary hearing to determine whether the Tribunal should dismiss the Application because it has no reasonable prospect of success. The Tribunal noted that the Tribunal does not have a general power to deal with allegations of unfairness and that an applicant must be able to show a link between a respondent’s alleged actions and one or more prohibited ground of discrimination. The Tribunal held the summary hearing on July 17, 2014 by teleconference.

Submissions

4At the outset of his submissions the applicant began to recount his allegations, set out in the Application, regarding how he took over a “lead” position for an absent co-worker, but did not receive additional pay for accepting this responsibility and was not offered the position when the co-worker later resigned his employment. I asked the applicant how this allegation was related to a Code ground and he responded that it “could be” related to age. When I further asked the applicant whether he could point to any evidence or anything that had occurred that would suggest that his age explained the respondents’ behaviour, he candidly acknowledged that he did not. Upon further reflection, the applicant submitted that he is 62 years of age and financially independent. He submitted that, in his view, the respondents took advantage of him because he was dependable and willing to work extra hours. The applicant submitted that he feels that the respondents did not want him in a management position because of his age and feels that they made up excuses to keep him out of the lead position. The applicant noted that he has asked for the promotion several times and that everyone working for the respondent is younger than he. The applicant submitted that his other allegations were not connected to his age and would only pursue his allegations regarding the lead position.

Analysis and Decision

Reasonable Prospect of Success

5Rule 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.

6In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 8-10:

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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

7The 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 race, colour or ethnic origin. 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. At the summary hearing stage, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

8At 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 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 his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.

9As noted above, the applicant did not identify a prohibited ground of discrimination in his Application. When asked to indicate how his allegations are connected to a Code ground he submitted that his allegations regarding the lead role were linked to his age. The applicant, however, pointed to no evidence that would connect the respondents’ actions to his age and acknowledged that he had none. The applicant went to state that he felt that he was not promoted to the lead position because of his age, but such speculation is not sufficient to link the respondents’ actions to his age. In these circumstances, I find the Application has no reasonable prospect of success.

10The Application is dismissed.