Stephenson v. Nestle Canada Inc., 2014 HRTO 1679

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carl Stephenson

Applicant

-and-

Nestle Canada Inc.

Respondent

DECISION

Adjudicator: Keith Brennenstuhl

Date: November 20, 2014

Citation: 2014 HRTO 1679

Indexed as: Stephenson v. Nestle Canada Inc.

APPEARANCES

Carl Stephenson, Applicant

Self-represented

Nestle Canada Inc., Respondent

Andrew Zabrovsky, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of colour.

2Pursuant to a Case Assessment Direction dated August 18, 2014, the Tribunal directed that a summary hearing be convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect of success that the Application will succeed.

3A summary hearing was held on November 5, 2014. Both parties made oral submissions at the hearing by teleconference.

4For the reasons set out below, the Application is dismissed as it has no reasonable prospect of success.

BACKGROUND

5The applicant alleges that his employment with the respondent was terminated because of his colour.

6In June 2013 the applicant was hired by the respondent as a full time Production Associate, subject to successfully completing a 60 day probationary period. On August 15, 2013 he was informed that he had not passed his probation and that his employment was terminated. There was no reason given for the termination other than that “the fit within the Nestle organization is not suitable for continued employment.”

ANALYSIS AND DECISION

7In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 - 10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

8Other than alleging that the applicant had a feeling that his colour played a part in his termination the applicant could point to no evidence that would make a link between his termination and the ground claimed. He claimed that at times during the course of his employment management spoke to him in an “unprofessional manner”, that management gave him “the cold shoulder” and that management refused to accommodate his aching back, leaving him with the impression that his colour was a factor in his poor treatment. However, when pressed to provide what proposed evidence he could point to that would support the conclusion that colour was a factor in his termination he indicated that “I don’t have a clue as to why I was let go.” He suggested that “my complexion may be a problem” and that “maybe they have problems at home and they take it out on individuals at work”. The applicant stated that he had no evidence that he was mistreated because of his colour but like the wind he could feel it even if it cannot be seen.

9In my view, the applicant’s assertion that his colour was a factor in his termination is mere speculation.

10As 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 the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

11I understand that the applicant may question his termination given the respondent’s rather vague reason for terminating him - he does not fit in. Nevertheless, it is no more than a bald assertion and speculation on the applicant’s part that his termination was, in fact, related to his colour. The applicant may sincerely believe that his colour was a factor in his termination. However, the Tribunal repeatedly has said that an applicant’s belief, even if honestly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leone v. Ontario (Attorney General), 2014 HRTO 311.

12During the course of the summary hearing the applicant stated that the respondent had recently terminated a number of persons of colour. Absent something more, however, simply hiring and terminating some individuals of like colour to the applicant is not evidence that the applicant can point to that would establish that there may have been a breach of the Code when the respondent ended his employment. See, Wasty v. Lone Wolf Real Estate Technologies, 2013 HRTO 957.

13The applicant cannot point to any proposed evidence or any evidence that may be reasonably available to him to support an inference that his termination was contrary to the Code. Without such evidentiary basis, the Application has no reasonable prospect of success.

ORDER

14The Application is dismissed as it has no reasonable prospect of success.