Tom Jackson v. Windsor Welding Institute, 2014 HRTO 748

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tom Jackson

Applicant

-and-

Windsor Welding Institute, Donna France and Rob Neely

Respondents

DECISION

Adjudicator: Jo-Anne Pickel

Date: May 26, 2014

Citation: 2014 HRTO 748

Indexed as: Jackson v. Windsor Welding Institute

APPEARANCES

Tom Jackson, Applicant

Self-represented

Windsor Welding Institute, Donna France and Rob Neely, Respondents

Craig Allen, Counsel

Introduction

1In his Application, the applicant claimed that the respondents discriminated against him because of his age and disabilities contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Specifically, he claimed that the respondents refused to accept him into a welding program offered by the Windsor Welding Institute (“Institute”) because of his age, as well as the fact that he takes Percocet and wears bifocals. The respondents denied that they violated the Code. They claimed that they refused the applicant admission into the welding program due to his allegedly verbally abusive behaviour when he confronted the personal respondents about his admission into the program.

2The hearing took place March 6, 2014. I heard testimony from the applicant as well as both personal respondents.

3For the reasons set out below, I find that the applicant has not met his onus of establishing discrimination on a balance of probabilities.

FActual background

4The Institute is a private career college regulated under the Private Career Colleges Act. The personal respondents are the co-owners of the Institute. They are also the primary instructors at the Institute.

5The applicant received approval for funding through a provincial government program called “Second Career”. Among other things, the program provides laid-off workers with financial support to enroll in training programs to help them pursue new careers. The applicant’s funding was facilitated through a second career facilitator at a community college in Windsor.

Attendance at Open House

6The applicant attended an open house at the Institute in January 2013. The Institute runs open houses to provide information to prospective students. During an open house, prospective students receive a form letter advising that they have been accepted into one of the Institute’s programs. The letter is intended to assist students in gaining financial assistance in the event that they are in fact admitted into one of the Institute’s programs. As such, the letter could be seen as a conditional acceptance which is later confirmed once the Institute is satisfied that the applicant meets all conditions of acceptance.

7Each student is also provided with a questionnaire to fill out at the open house. The questionnaire asks prospective students for their contact information, their gender, how they heard about the Institute, the last grade of schooling they completed, whether they have previous welding experience and their employment status. The questionnaire also asks prospective students for their age and whether they wear prescription eye glasses. The questionnaire has a section at the bottom that is identified as “office use only” and which states “results of interview”. It is common for the Institute’s owners to write comments in this section at the end of the open house or sometime thereafter.

8During the open house in January 2013, Mr. Neely provided prospective students with information about the Institute. He also provided them with a tour of the Institute. The applicant testified that, during the tour, Mr. Neely asked him if he wore bifocals. He testified that Mr. Neely told him that people who wear bifocals cannot see to weld. The applicant replied that he had spoken to his optometrist who said he would work with him to ensure he could see properly to weld. The applicant also testified that Mr. Neely commented to him that after a long day of welding he was going to find himself really sore. The applicant replied that, if he was really sore, he could take a Percocet. The applicant said that he thought nothing of making this statement because his doctor had given him a prescription for Percocet and he only took a low dose intermittently.

9Among other things, on his questionnaire, the applicant indicated that he wears prescription eyeglasses and that he was 63 years old. The notes in the “office use only” section state:

• want to tell on AC Metal about CWB
• has had WSIB problems with wrists
• age
• went to college for business last 4 years
• has bi-focals
• on Perkacet…… (sic)

10The form also has the following notations: “Apr 2 start to: Angelique Employment Option” with the contact information for the applicant’s second career facilitator. There is also a note that states “January 28 @ 3 pm or so came without appt.”

January 28, 2013 Telephone Conversation

11After the open house, the applicant’s second career facilitator proceeded to complete the paper work to secure his funding through the Second Career program. The applicant’s second career facilitator contacted the Institute on January 28, 2013 to determine the sum that needed to be paid and the entity to which the cheque should be made.

12It is at this point that the applicant’s testimony diverges significantly from the testimony provided by the personal respondents. Unfortunately, neither party called the applicant’s second career facilitator to testify. Much of the dispute between the parties centers on exactly what the personal respondents said to the applicant’s second career facilitator during the January 28, 2013 telephone conversation. It would have been of great benefit to the Tribunal if one of the parties had called the second career facilitator as a witness. The applicant advised at the hearing that his second career facilitator had moved to Quebec. As I advised the parties at the hearing, due to the importance of her testimony, the Tribunal would have permitted her to testify by telephone. Neither the applicant nor the respondents pursued this option. Neither party sought to schedule a second day of hearings to hear testimony from the second career facilitator. Both parties were content to proceed based on the evidence called at the hearing.

13The applicant testified that his second career facilitator told him that Ms. France told her on the phone that the Institute was withdrawing his acceptance because too many “red lights” went off during his tour of the Institute. In his Application, the applicant stated that his second career facilitator told him that the Institute did not find him to be a suitable candidate, that Ms. France had reservations about him and that a letter would follow.

14By contrast, the personal respondents denied that they told the applicant’s second career facilitator that they were withdrawing his acceptance to the Institute. Ms. France testified that she and Mr. Neely had agreed to give the applicant a start date of April 2, 2013. I note that her testimony on this point is consistent with the “April 2 start” notation on the questionnaire that the applicant filled out.

15Both personal respondents testified that they had discussed the applicant’s admission and that they agreed that three issues needed to be addressed before his start date. First, because the applicant wore bifocals, they wanted him to provide them with a copy of the results from a current eye exam. Mr. Neely testified that the Institute has had numerous students over the years who have had difficulties welding with bifocals. Ms. France testified that they also wanted to make sure that the applicant obtained approved safety glasses for use in the shop. Second, the personal respondents wanted to ensure that the applicant had discussed his use of Percocet with his family doctor to confirm that the medication would not affect his ability to weld safely. Both testified that they wanted the applicant to get a letter from his doctor to confirm that his medication did not pose any safety risks. Third, the personal respondents wanted to get written confirmation that the applicant had completed education at least at the Grade 12 or equivalent level since this is a pre-requisite for their welding courses.

16According to the personal respondents they agreed that they would set out these three issues in a letter and send it to the applicant’s second career facilitator. Both personal respondents testified that Mr. Neely spoke to the applicant’s second career facilitator when she called. Both testified that Mr. Neely did not tell the second career facilitator that they were withdrawing the applicant’s acceptance. Both testified that Mr. Neely told the applicant’s second career facilitator that they had three concerns that they needed to have addressed and that they would be sending her a letter setting them out. Mr. Neely did not dispute that he may have used the term “red lights” but both personal respondents testified that they had not withdrawn the applicant’s acceptance at this point but instead wanted him to address their three concerns.

Applicant’s Attendance at the Institute After the Telephone Call

17Immediately after the telephone discussion between Mr. Neely and the applicant’s second career facilitator, the applicant decided to go to the Institute to find out what was going on with his application. The applicant testified that, when he arrived at the Institute, Mr. Neely was having a smoke in the parking lot. The applicant asked Mr. Neely about the “red lights” that his second career facilitator had mentioned. According to the applicant, Mr. Neely replied that during the open house the applicant had mentioned taking Percocet. At this point, Mr. Neely unlocked the door to the Institute to let the applicant in. The Institute was closed because courses were in progress at the time the applicant attended. When Mr. Neely opened the door, he shouted “he’s here”. The applicant testified that he heard Ms. France say that Mr. Neely knew better than to let people in on non-visitor days. Ms. France testified that the applicant had arrived unannounced and without warning while she was teaching students.

18The applicant testified that, when he asked Ms. France about the red lights, Ms. France said “you take Percocet and it’s our experience that people who take Percocet can’t think right. It basically makes you retarded.” The applicant stated that he and Ms. France went back and forth arguing about the issue. He told her that he had a prescription and that he could only take a maximum of one pill per day. He told Ms. France that she was in effect calling him a drug addict. The applicant testified that the respondents never asked for any medical documentation regarding his prescription. The applicant admitted into evidence a letter from his doctor prepared after he filed his Application with the Tribunal. The letter indicates that the applicant used Percocet only intermittently and at a low dose. The letter indicates that the dose does not affect him cognitively.

19According to the applicant, Ms. France also referred to the fact that he wore bifocals and she said that people who wear bifocals cannot see to weld. In response, the applicant said that he had discussed the issue with his optometrist and that his optometrist would work with him to ensure he could see properly to weld. The applicant admitted into evidence a letter from his optometrist, prepared after his Application to the Tribunal was filed, which indicates that he would be able to weld without glasses.

20The applicant testified that, at some point during his discussion with the personal respondents, Mr. Neely slammed his fist down on the desk and said “at your age we don’t think you could take the rigours of this course”. At this point, according to the applicant, Ms. France said “Rob, shut your mouth you know that your comments get you in trouble.” The applicant stated that he then said “I think I’ve been discriminated against here.” He testified that Ms. France then said “you can’t use language like that here – you can leave”. The applicant stated that he did a quick mental inventory to figure out what he had said that may have been improper. He asked Ms. France what word she was referring to and Ms. France said “the D word”. The applicant testified that he realized that Ms. France was referring to his reference to “discrimination”. The applicant then said he thought he needed to get a lawyer and left.

21The testimony from the personal respondents about the applicant’s attendance at the Institute differed significantly from the applicant’s testimony. Ms. France testified that the applicant immediately accused her and Mr. Neely of discrimination when he arrived at the Institute. She testified that the applicant said that it was discriminatory for them not to accept him into the welding program. When she asked “how?”, he said “I’m not some drug addict.” According to Ms. France, she replied that he had not called the applicant a drug addict. She testified that she told the applicant only that the respondents wanted to be informed of possible adverse side effects due to their safety concerns. Ms. France testified that she did not know anything about Percocet at the time of the applicant’s attendance at the Institute on January 28, 2013. I note that this contradicted Mr. Neely’s testimony on this point. Mr. Neely testified that, after the open house, he and Ms. France conducted online research to find out more about Percocet.

22According to Ms. France, after she said that she was not implying that the applicant was a drug addict, he said “then it’s my age”. Ms. France stated that she told the applicant it was not his age and told him that the Institute had students who were older than he was. When I asked her to provide more details as to how many older students attended the Institute, Ms. France testified that only one other student was older than the applicant but that many of the Institute’s students are in their forties and fifties.

23Mr. Neely also denied that the applicant’s age was a factor in the respondents’ treatment of his application. When I asked why he noted “age” in his notes at the bottom of the applicant’s questionnaire, Mr. Neely said he was not sure why he wrote it down. He stated that the notes were just his personal notes. He said he often makes notes to remind himself of who people are since he meets many prospective students at the Institute’s open houses. Mr. Neely stated that he may have twisted his words due to the fact that he also speaks French. According to Mr. Neely, many older students have a difficult time dealing with the physical demands of the job. Mr. Neely stated that, as someone in his forties, even he finds these physical demands harder to take than when he was younger. Mr. Neely testified that he likely would have raised the age issue with the applicant at some point after he was accepted to make sure that he could handle the physical demands of the course.

24The Institute has a policy that requires students to report to their instructor all medical problems or medications that might affect their class performance. Ms. France testified that it is her usual practice to require students to get notes from their doctors if they are taking medication that may affect their performance. Both personal respondents testified that they ask for these notes in order to cover themselves in case of any future problems. In her testimony, Ms. France pointed out that one of the Institute’s flyers states that prospective students should not be intimidated by returning to school and that the Institute trains all ages from 18-70.

25Ms. France testified that she found the applicant to be intimidating when he attended the Institute on January 28, 2013. She said that the applicant was standing over her and raising his voice that day. She also testified that she felt like the applicant was not listening to her. Ms. France testified that she did tell Mr. Neely to stop talking at one point because she felt like the applicant was twisting their words. Ms. France testified that she felt there had been a misunderstanding. According to Ms. France, she told the applicant that she would put together a letter and send it to his second career facilitator and they could go from there. She also stated that she asked the applicant to leave repeatedly. She said that, before the applicant left, he said “you’re messing with the wrong guy – I’m going to sue.” Ms. France testified that, after the applicant left, she told Mr. Neely that they could not accept the applicant as a student due to his conduct. She felt that, if the applicant reacted the way he did to what she saw as a misunderstanding, she questioned what he would be like as a student. She testified that she would have been the applicant’s lead instructor if he had been admitted to the Institute.

26The applicant denied becoming aggressive when he attended at the Institute. He said that he was a trained union steward and that he was simply “firing points back” at the personal respondents. For every point they made, he would fire another point at them. He conceded that he may have been “argumentative” but not angry. He stated that, as a union steward, he learned that anger does not get you anywhere. When asked about a reference to his being “furious” in an e-mail sent by his second career facilitator to Ms. France shortly after the applicant left the Institute, the applicant denied that he was furious while at the Institute. He said that he was argumentative while at the Institute and furious later.

27The applicant also denied that Ms. France had mentioned anything about a misunderstanding and not having withdrawn his acceptance. He also denied that the respondents told him they just wanted him to address their three concerns. Finally, he denied that the respondents mentioned having students who were older than he was.

Withdrawal of Acceptance Letter

28Immediately after the applicant left the Institute, Ms. France began to make notes for a letter she would send to the applicant’s second career facilitator advising that the Institute was withdrawing his acceptance.

29The following day, Ms. France forwarded a letter to the applicant via his second career facilitator. The letter stated that the respondents were withdrawing their previous acceptance of the applicant. It set out the respondents’ version of the events that had taken place the day before. The letter ended by stating that Ms. France could not tolerate the aggressive and bullying behaviour the applicant had displayed and therefore could not accept him as a student.

APPLICABLE LAW

30Under s. 1 of the Code, every person has a right to equal treatment with respect to services without discrimination because of a number of grounds including age and disability.

31The applicant bears the onus of establishing discrimination on a balance of probabilities. To successfully establish discrimination, an applicant must prove that it is more probable than not that one or more Code grounds were a factor in the respondent’s actions. See Peel Law Association v. Pieters, 2013 ONCA 396 at para. 83 and Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 109. If an applicant makes out a prima facie case of discrimination, the evidentiary burden shifts to the respondent to provide a rational explanation which is not discriminatory. It is not sufficient to rebut an inference of discrimination that the respondent is able to suggest just any rational alternative explanation. The respondent must offer an explanation which is credible on all the evidence. See Shaw v. Phipps, 2010 ONSC 3884 at para. 77, upheld 2012 ONCA 155. If the respondent does call evidence providing an explanation, the burden of proof remains on the applicant to establish that an inference of discrimination is more probable from the evidence than the explanations offered by the respondent. See Shaw v. Phipps at para. 77.

32The outcome of this Application turns in some measure on the relative credibility of the applicant and the respondents’ two witnesses. Where it was necessary to resolve a conflict in the evidence in order to arrive at my determinations, I have indicated my reasons for doing so. In assessing credibility and reliability in this case, I have applied the traditional test set out by the British Columbia Court of Appeal in Faryna v. Chorny, 1951 CanLII 252 (BC CA), [1952] 2 D.L.R. 354. As such, I have considered the extent to which each witness’ testimony was in harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable.

Findings

33The issue I have to determine in this case is whether the applicant’s age and/or disabilities were factors in the respondents’ withdrawal of his acceptance to the Institute.

34The applicant takes the position that the respondents withdrew his acceptance before he attended the Institute on January 28, 2013. He takes the position that they informed his second career facilitator that his acceptance was withdrawn during their telephone call with her. He submits they withdrew his acceptance due to his age, his use of Percocet and the fact that he wears bifocals.

35The respondents take the position that they did not withdraw the applicant’s acceptance until he attended at the Institute after the telephone call with his second career facilitator. They submit that the only reason that they withdrew his acceptance was his aggressive and bullying behaviour and that his age and disabilities were not factors in their decision. I note that the respondent did not dispute that the applicant’s use of Percocet and bifocals were disabilities within the meaning of the Code.

36A key factual issue in this case is the timing of when the respondents withdrew the applicant’s acceptance to the Institute. That is, whether the respondents had in fact withdrawn the applicant’s acceptance prior to his attendance at the Institute on January 28, 2013. On this point, the applicant provided the hearsay testimony set out above that his second career facilitator told him that the respondents had told her on the telephone that they had withdrawn his acceptance. Meanwhile, I received direct testimony from Mr. Neely that he did not tell the applicant’s second career facilitator that the respondents had withdrawn the applicant’s acceptance. Mr. Neely testified that he told the second career facilitator that the respondents had concerns that needed to be addressed and that they would be setting them out in a letter. I also heard testimony from Ms. France that supported this version of the discussion. She testified that she and Mr. Neely had discussed the applicant’s situation and decided to proceed in this way.

37The Tribunal has the power to admit hearsay evidence but this form of evidence is usually given less weight than credible direct oral evidence. This is primarily because the person making the statements at issue is not under oath, nor is he or she available for cross-examination. In this case, the applicant sought to rely on what his second career facilitator told him about what the personal respondents said on the telephone. This scenario illustrates the potential frailties of hearsay testimony and why such testimony is usually accorded less weight. It is possible, as submitted by the applicant, that Mr. Neely did tell the second career facilitator that the respondents were withdrawing his acceptance. However, it is also possible that the second career facilitator misunderstood what Mr. Neely told her on the phone. Alternatively, she may have miscommunicated to the applicant what Mr. Neely told her. In the further alternative, it is possible that the applicant misunderstood what his second career facilitator told him that Mr. Neely had told her. Without direct testimony from the second career facilitator, and an opportunity for the respondent to cross-examine her, it is difficult for the Tribunal to determine which scenario is most likely.

38In the circumstances of this case, I must accord the applicant’s hearsay testimony as to what was said in the telephone conversation less weight than the direct testimony from Mr. Neely. I find Mr. Neely’s testimony credible on the evidence before me. As noted above, his testimony is consistent with the notation on the questionnaire about an “Apr. 2 start”. This notation suggests that the respondents intended to offer the applicant an April 2^nd start date for the program.

39Based on the evidence at the hearing, I find it more probable than not that the respondents did not in fact advise the applicant’s second career facilitator on the telephone that they were withdrawing the applicant’s acceptance. I find it more probable than not that the respondents decided to withdraw the applicant’s acceptance after his attendance at the Institute that day.

40The primary evidence that would support the applicant’s position that the respondents withdrew his acceptance due to his age and/or disabilities are the notations on the questionnaire that he filled out. As noted above, Mr. Neely made notations on the questionnaire about the applicant’s age, the fact that the applicant wears bifocals and his use of Percocet.

41I must begin by noting that I have some concerns with the testimony given by the personal respondents in this case. I am concerned about the fact that Ms. France testified that she did not know what Percocet was at the time that the applicant visited the Institute on January 28, 2013. I find it more likely than not that, as testified by Mr. Neely, she and Mr. Neely had conducted research about the medication and that their concerns arose from this research. I do not find it credible that the personal respondents would have had serious concerns about the applicant’s Percocet use if, as claimed by Ms. France, they knew nothing about Percocet or its potential side effects. As a result, I find it more likely than not, that the personal respondents knew what Percocet was and developed their concerns due to the internet research they had conducted.

42I am also concerned about Mr. Neely’s attempts to explain the notes on the questionnaire about the applicant’s age. The notation simply says “age”. I do not find it credible that the notation might be misunderstood due to the fact that Mr. Neely speaks French as well as English. The word “age” is the same in English and in French. In addition, I do not find it credible that Mr. Neely made the notes simply to remind himself who the applicant was. I find it more likely than not that Mr. Neely made the notes about the applicant’s age for the same reason he made the notes about the applicant’s use of Percocet and his bifocals: because he was concerned about the applicant’s age. Mr. Neely did not seriously dispute this at the hearing. As noted above, he testified that even he has felt that it is more difficult to handle the physical demands associated with welding as he has gotten older. For these reasons, I find it more likely than not that the personal respondents were concerned about the applicant’s age in addition to his use of Percocet and the fact that the applicant wears bifocals.

43However, this fact alone does not inevitably lead to the conclusion that the respondents withdrew the applicant’s acceptance because of these concerns or “red lights”. On a balance of probabilities, I accept the respondents’ testimony that they wanted the applicant to follow up and provide more information with respect to the Percocet and the bifocals. With respect to the Percocet use, the respondent does have a policy requiring that students inform them of any medication that might affect their class performance. On balance, I find it more likely than not that the respondents were following their usual practice of requiring further information from the applicant’s doctor in order to cover themselves in case of any problems. As for the applicant’s bifocals, I am not persuaded that the respondents withdrew the applicant’s acceptance for this reason. It seems more likely to me that, as with the medications, they wanted the applicant to follow up to provide them with the results of an eye exam confirming his ability to see properly to weld. Finally, although I find it likely that the respondents were concerned about the applicant’s age; I find that the evidence as a whole does not support a finding that they withdrew his acceptance for this reason. While the Institute does not have many students as old as the applicant, the testimony of the personal respondents that they had at least one student older than the applicant was not challenged at the hearing.

44Meanwhile, on the evidence before me, I find that the applicant attended at the Institute after the phone call with his second career facilitator with the belief that the respondent had withdrawn his acceptance due to certain “red lights”. It may well be that the parties were not communicating well due to an emotional reaction on both sides. Whether the applicant’s demeanour was argumentative or abusive or somewhere in between, it is clear on the evidence that he was intent on confronting the personal respondents about what he believed was their withdrawal of his acceptance. Otherwise, the applicant would not have immediately driven down to confront the respondents. He would have instead waited for the letter that his second career facilitator told him they would send. The applicant did not wait for the letter but instead attended at the Institute even though it was closed due to ongoing classes. This set of factors indicates that the applicant was determined to confront the personal respondents and that his demeanour would have carried with it some degree of anger or emotion.

45Since I have found that the evidence does not support the position that the respondents had in fact withdrawn the applicant’s acceptance before he attended at the Institute, I find it more likely than not that they withdrew his acceptance due to his demeanour when he attended at the Institute. The only factor that changed after the applicant’s attendance at the Institute was his demeanour during this visit.

46I find that the respondents have offered an explanation for the withdrawal of the applicant’s acceptance which is credible on all the evidence. Based on the evidence before me, I find that the applicant has failed to satisfy his onus of establishing that is more likely than not that the respondents withdrew his acceptance due to his age and/or disabilities rather than because of his confrontational demeanour when he attended at the Institute. For this reason, I must dismiss his Application.

Order

47The Application is dismissed.