Warda Lagin Merkail v. Mersen Canada Toronto Inc., 2014 HRTO 1444

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Warda Lagin Merkail

Applicant

-and-

Mersen Canada Toronto Inc.

Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: September 26, 2014

Citation: 2014 HRTO 1444

Indexed as: Merkail v. Mersen Canada Toronto Inc.

APPEARANCES

Mersen Canada Toronto Inc., Respondent

Theresa Ryan-Dowsett, Representative

BACKGROUND

1This Application, filed on February 14, 2014, alleges discrimination with respect to employment because of race, ancestry, place of origin, and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2By Case Assessment Direction dated June 10, 2014, the Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed.

3The summary hearing was conducted by teleconference on September 24, 2014. The applicant did not attend the summary hearing.

Summary Hearing Process

4The summary hearing process is described in Rule 19A of the Tribunal's Rules of Procedure 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.

5The Tribunal has held on many occasions that it does not have jurisdiction over general claims of unfairness unrelated to the Code. Discrimination under the Code generally involves an allegation of adverse treatment because of one or more of the grounds listed in the Code. Adverse treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code was a factor in the treatment the applicant experienced.

6The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. The Tribunal must decide whether there is likely to be sufficient direct or indirect evidence available to connect the adverse treatment allegedly experienced by the applicant with the grounds of discrimination alleged in the application.

7The Tribunal does not hear evidence on a summary hearing. As such, my decision on the summary hearing is based on the Application, the Response and the respondent's submissions at the summary hearing.

8Having 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 case as set out in this Application.

The Facts

9The applicant commenced employment with the respondent in 2007.

10On June 21, 2013, the respondent handed out employee assessment forms to all employees during its presentation of the Controlled Goods Program (the "Program"). Completion of the Program is a security requirement to allow companies to do business with the United States military.

11The Application states the assessment form gathered information about how long the applicant has been in Canada, where he is from, and the work that he has done. The applicant is from Iraq.

12The applicant completed the assessment form and returned it to the respondent. The respondent did not accept the form.

13The applicant's employment was terminated on June 28, 2013.

14The respondent collected the employee assessment forms in July 2013. The forms were in the control of one person, the quality manager. The applicant's form was not collected.

15The respondent states the applicant was terminated because of the downsizing that it undertook due to business losses between 2011 and 2014. The respondent states it experienced a 41 percent loss of business during this period, resulting in a 32 percent reduction in its employee complement. The number of employees went from 102 to 69. Since then, a further 12 employees have been terminated.

analysis

16As stated in the Case Assessment Direction, to succeed in an Application, an applicant must be able to link a respondent's actions with a Code ground.

17In this case, the applicant asserts that his place of origin was a factor in the decision to terminate his employment. The applicant believes his employment was terminated because the respondent thought his employment would jeopardize its chances of obtaining a contract with the United States military He makes this connection because of the respondent's request for information about his background on June 21, 2013, and the termination that followed shortly thereafter. It is on this basis that the applicant draws a link between the termination and a Code ground.

18The respondent's defence is that it terminated the applicant's employment because of a global downsizing that affected more than 40 percent of its workforce between 2011 and 2014. The respondent also submits it never had the applicant's information because it did not collect his assessment form.

19In my view, the issues raised in this case should be determined on the basis of evidence that is called by the parties. It is not the purpose of a summary hearing to hear evidence and make findings in relation to defences that are pled or documents filed in a Response. In reviewing the Application, I am unable to determine that it has no reasonable prospect of success.

ORDER

20The Application will proceed in the Tribunal's normal process.

21The respondent must advise the Tribunal within two weeks of the date of this decision whether it is prepared to mediate this matter, failing which the Application will be placed in the hearing queue.