Felix v. Canadian Tire Corporation, 2014 HRTO 1615

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Hans Harry Felix

Applicant

-and-

Canadian Tire Corporation

Respondent

DECISION

Adjudicator: Brian Cook

Date: October 31, 2014

Citation: 2014 HRTO 1615

Indexed as: Felix v. Canadian Tire Corporation

APPEARANCES

Hans Harry Felix, Applicant

Self-represented

Canadian Tire Corporation, Respondent

Laurie Jessome, Counsel

1This Application alleges discrimination with respect to employment because of race, colour, ancestry, place of origin, citizenship, ethnic origin, record of offences, and reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application included allegations about a period of a contract of employment between the applicant and the respondent Canadian Tire Corporation in 2010. Those allegations included allegations or discrimination against Procom IT Staffing and Stephen Cornfield.

3The Application also included allegations about a hiring process in 2013 when the applicant was interviewed but not hired by Canadian Tire Corporation.

4After reviewing the Application, the Tribunal noted that the events relevant to the allegations about the contract of employment in 2010 occurred more than one year before the Application was filed and that that aspect of the Application might be untimely. The Tribunal asked for the submissions on this issue.

5In Interim Decision 2014 HRTO 436 the Tribunal dismissed the allegations relating to the events in 2010 because they were out of time and the applicant had not established a good faith explanation for the delay.

6The Interim Decision directed that the remaining allegations related to the 2013 job interview process would proceed to the next stage of the Tribunal’s process.

7A hearing was scheduled for October 27, 2014. The Notice of Hearing advised the parties of the date by which they were required to file documents and a statement of the anticipated evidence from any person the party wished to call as a witness.

8The respondent filed its hearing documents and witness statements for its anticipated witnesses. The applicant did not file any documents or witness statements.

9The respondent also filed a Request for Order During Proceedings asking the Tribunal to declare the applicant to be a vexatious litigant.

10On October 3, 2014, the applicant sent an email seeking an adjournment of the hearing scheduled for October 27, 2014. This request was “due to a family issue which I might be needed in Haiti the week prior or during the period of time.”

11In a Case Assessment Direction dated October 16, 2014, I directed that the hearing scheduled for October 27, 2014 be changed to a summary hearing by telephone conference call to determine if the Application should be dismissed because it may have no reasonable prospect of success. The October 27, 2014 hearing proceeded on that basis.

CLARIFICATION OF THE RESPONDENTS

12At the outset of the hearing, the status of Procom IT Staffing was clarified. It was a respondent identified in the original Application. At the hearing, it was clarified that the allegations about this respondent were limited to the alleged events in 2010 and that it had nothing to do with the 2013 hiring process. Since the allegations about 2010 have already been dismissed by the Tribunal the applicant agreed that Procom IT Staffing should be removed as a respondent. At the end of the telephone conference call hearing, I discovered that Stephen Cornfield was also on the conference call and that he was not represented by counsel for the remaining corporate respondent. It was clarified that Mr. Cornfield’s involvement was also limited to the alleged events in 2010. On this basis, the applicant agreed that Mr. Cornfield should also be removed as a respondent.

13The Application as against Procom IT Staffing and Stephen Cornfield is dismissed on the basis that the Tribunal has earlier dismissed the allegations against them as untimely.

ALLEGATIONS ABOUT THE 2013 HIRING PROCESS

14The respondent retained a third party consulting firm to develop a short list of candidates for positions to be filled. The applicant was one of approximately 15 people selected for an interview. He was interviewed by two people. According to the applicant, both of these people are Black men of African descent. The applicant was not offered a position after the interview. According to the respondent, this is because he did not do well in the interview.

15In the Application, the applicant alleged that the interview process was discriminatory. He elaborated on this allegation during the summary hearing. He said that he believes that the respondent knew that it was not going to hire him but wanted to interview him so that it could further discriminate against him. The applicant indicated that the fact that two Black men were assigned to interview him is evidence of this. He indicated that in his experience, it is very unusual for an interview panel to consist of only Black men. From his experience and from information he has obtained from the Internet, he believes that it is a common trick for employers who intend to discriminate during a hiring process on the basis of race and colour to use people of colour to conduct the interviews.

16The applicant conceded that nothing else happened or was said during the interview process that caused him to believe that the interview process was discriminatory on the grounds of race, colour, ancestry, place of origin, citizenship, or ethnic origin.

17The allegations about these grounds of alleged discrimination appear to rest entirely on a theory that the applicant has developed about the significance of the fact that the two people who interviewed him were Black men. Since these two individuals interviewed a number of other people, acceptance of the applicant's theory would require the Tribunal to accept that the entire interview process was constructed in order to discriminate against one of the interviewees who, according to the applicant, the respondent had no intention of hiring. The applicant did not identify any evidence that he would produce that would substantiate either his general theory or his allegation that it was in operation in this instance.

18I find that there is no reasonable prospect that the applicant could establish that either the 2013 hiring process or the decision to not offer him a position in 2013 had anything to do with his race, colour, ancestry, place of origin, citizenship, or ethnic origin.

REPRISAL

19Section 8 of the Code provides:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

20In determining whether reprisal contrary to section 8 has occurred, the Tribunal has followed the principles set out in Noble v. York University, 2010 HRTO 878 at paragraphs 30 and 31:

The prohibition against reprisal is an important provision in the Code. Its purpose is to ensure that individuals may “claim and enforce” the fundamental rights embodied in the Code without fear or intimidation. It protects the integrity of the process before the Tribunal, as well as in other complaint procedures that may be established under human rights policies. An individual need not prove that their rights have in fact been infringed to claim protection of section 8. As the Court has said, “Without a strict prohibition against reprisals, the purposes and effectiveness of the statute would be significantly diluted.” See: Jones v. Amway of Canada Ltd. (2002), CHRR Doc. 02-177 (Ont. Sup. Ct.), at para. 4.

In order to prove reprisal, a complainant (now an applicant) must establish that the respondent engaged in an action, or threat, which was intended as a retaliation for the claiming or enforcement of a right under the Code. Unlike an allegation of discrimination, where intention is not a necessary element to prove a violation, where reprisal is alleged, the complainant must establish that the action was taken with an intent to punish or retaliate. See: Jones, supra; Jones v. Amway of Canada Ltd., 2001 CanLII 26217 (ON HRT), Ketola v. Value Propane Ltd., 2002 CanLII 46510 (ON HRT); Moffatt v. Kinark Child & Family Services (1998), 1998 CanLII 29857 (ON HRT), 35 C.H.R.R. D/205 (Ont. Bd. Inq.).

21In the present case, the applicant alleges that the decision to not offer him the position was made in reprisal for his earlier assertion of his human rights in 2010. The evidence that he identified in support of this allegation is that the name of a co-worker who was involved in the events in 2010 came up during the interview. Specifically, the applicant alleges that during the interview process, one or both of the interviewers asked him if he knew one of the people who the applicant had named in his 2010 complaint. At the summary hearing, the applicant indicated that this person had falsely accused him of sexual harassment in 2010 and that this false accusation was part of the discrimination he experienced in 2010. The applicant alleges that during the interview in 2013, this person’s name came up twice, along with questions about his ability to be a good team player. At the hearing, the applicant indicated that he deflected these questions. He indicated that he believes that one or both of the interviewers knows the person in question or may be a friend of hers and that she is no longer employed by the respondent. He believes that the fact that her name came up is evidence that the reason he was not offered the position in 2013 was reprisal for having raised allegations of human rights issues in 2010.

22The respondent does not dispute that the co-worker’s name came up during the interview. The respondent says that the applicant had put his prior 2010 employment in his resume so that it is not surprising that there were questions relating to that earlier period of employment. The respondent confirms the applicant’s information that he deflected questions about the co-worker during the interview. The respondent says that the interviewers had not talked to any other employee or past employee about the applicant before the interview but after the interview, and after the decision was made not to offer him a position, they both learned that there had been issues relating to the applicant’s previous employment.

23It is apparent that a number of issues arose in 2010 in the course of the applicant's four month contract. The applicant made accusations and it appears that accusations were made against him.

24Section 8 does not prevent an employer from refusing to offer employment to an employee with whom the employer had earlier issues, even if the person raised Code-related issues in respect of those issues. Section 8 applies to prevent the employer from refusing to hire a person in retaliation for having raised previous Code-related issues. It does not prevent the employer from refusing to hire a person because there were previous personnel issues with that person. Section 8 is certainly not intended to give a person an advantage in a subsequent job competition only because that person had previously raised Code-related issues with the employer and to require the employer to hire the person.

25In this case, the only evidence identified by the applicant in support of his allegation of reprisal is that a co-worker’s name came up during the interview and that one or both of the interviewers knew the co-worker. I do not see how this evidence, if true, could lead to a finding that the respondent refused to hire the applicant because he had earlier raised Code-related issues.

SHOULD THE APPLICANT BE DECLARED A VEXATIOUS LITIGANT?

26The Tribunal’s Rules allow it to control its own process. The Tribunal has found that in exceptional circumstances, it has the power to declare a person to be a vexatious litigant and to prevent an applicant from filing an Application without first obtaining consent of the Tribunal. See Drenic v. Governing Council of the Salvation Army, 2010 HRTO 1667, and Abdul v. University of Toronto, 2011 HRTO 2299.

27The result of a person being declared a vexatious litigant is that the person must obtain leave of the Tribunal before filing an Application.

28In Hiamey v. Conseil scolaire de district catholique Centre-Sud, 2012 HRTO 1331, at paragraphs 27 and 28, the Tribunal Vice-chair reviewed some of the factors to be applied when determining whether a person is a vexatious litigant:

The seminal decision on the factors that Courts have considered in determining whether an individual is a vexatious litigant were described by the Ontario Court of Appeal in Foy v. Foy (No.2) (1979), 1979 CanLII 1631 (ON CA), 26 O.R. (2d) 220. These factors are summarized in the decision of Lang Michener Lash Johnston v. Fabian, [1987] O.J. No . 355 (H.C.):

(a) the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction constitutes a vexatious proceeding;

(b) where it is obvious that an action cannot succeed, or if the action would lead to no possible good, or if no reasonable person can reasonably expect to obtain relief, the action is vexatious;

(c) vexatious actions include those brought for an improper purpose, including the harassment and oppression of other parties by multifarious proceedings brought for purposes other than the assertion of legitimate rights;

(d) it is a general characteristic of vexatious proceedings that grounds and issues raised tend to be rolled forward into subsequent actions and repeated and supplemented, often with actions brought against the lawyers who have acted for or against the litigant in earlier proceedings;

(e) in determining whether proceedings are vexatious, the court must look at the whole history of the matter and not just whether there was originally a good cause of action;

(f) the failure of the person instituting the proceedings to pay the costs of unsuccessful proceedings is one factor to be considered in determining whether proceedings are vexatious; and

(g) the respondent's conduct in persistently taking unsuccessful appeals from judicial decisions can be considered vexatious conduct of legal proceedings.

29It is not necessary that all of these factors be present in order for an individual to be declared a vexatious litigant. In order to declare the applicant to be a vexatious litigant, I must be satisfied on an objective standard that the applicant has persistently and without reasonable grounds, instituted vexatious proceedings or conducted himself in a vexatious manner during the proceedings.

30The respondent’s request in this case rests on the number of Applications the applicant has filed with the Tribunal and also on his conduct in respect of his dealings with the respondent in this case.

31The respondent notes that there is a record on of fourteen Applications filed by the applicant against different respondents. The present Application is the only one against the respondent in this case. The respondent notes that none of the Applications has led to a finding that the applicant experienced discrimination contrary to the Code. The majority have been dismissed because they were not filed in time.

32The respondent notes that there have been concerns about the applicant’s conduct. In Felix v. Shoppers Drug Mart, 2011 HRTO 89, the Application was dismissed as an abuse of the Tribunal’s process because of the applicant’s offensive conduct towards the respondents and the Tribunal and his refusal to follow directions of the Tribunal.

33The respondent asserts that in the present case, the applicant’s communications with the respondent have been inappropriate. He has been rude and made various threats related to his intention to litigate his complaints.

34In my view, it is not appropriate for the Tribunal to declare the applicant to be a vexatious litigant at this time. While he has filed a large number of Applications, for the most part these have involved different respondents. The applicant has asked for a reconsideration of some of the decisions that have dismissed Applications, but it does not appear that the applicant has inappropriately continued to pursue matters that have been determined and decided.

35The tone of the applicant’s communications with the respondent has sometimes been inappropriate but not to the degree demonstrated in 2011 HRTO 89. The applicant has not disregarded orders of the Tribunal in the present case.

36For these reasons, the respondent’s request that the applicant be declared a vexatious litigant is denied at this time.

ORDERS

37The Application against Procom IT Staffing and Stephen Cornfield is dismissed because the allegations respecting them were dismissed in Interim Decision 2014 HRTO 436.

38The Application against Canadian Tire Corporation is dismissed on the basis that there is no reasonable prospect that the applicant could show that the infringement of his Code-protected rights that he alleges occurred.

39The respondent’s request that the applicant be declared a vexatious litigant is denied at this time.