HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hassan Abbasi
Applicant
-and-
Sygenics Inc.
Respondent
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Abbasi v. Sygenics Inc.
APPEARANCES
Hassan Abbasi, Applicant
Allison Pyper, Counsel
Sygenics Inc., Respondent
Shaheynoor Talukder and Xiao Jin Chen, Counsel
Introduction
1The applicant, who has a physical disability, was employed by the respondent as a software developer for approximately one month. He filed an Application with this Tribunal under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against him by terminating his employment because of his disability.
2The purpose of this Decision is to decide whether the Application should be dismissed on a preliminary basis because it is has no reasonable prospect of success. The parties attended a hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed this issue. I have decided to dismiss the Application. The following are my reasons for the dismissal.
BACKGROUND
3The following facts are not in dispute. The applicant is a software developer who lives in Toronto, Ontario. He has a visible physical disability, specifically, permanent joint contractures resulting from Arthrogryposis Multiplex Congenita. Because of his disability, he needs to use a raised chair and table when he is working.
4The respondent is a technology company which is located in Brossard, Québec. The respondent’s president is Rajesh Vadavia. In January 2012, Iftikhar Ahmed, who is a businessman in the software industry, hired the respondent for a start-up project. Specifically, he began providing funding to the respondent to develop an accounting software program for him. This start-up project was the respondent’s main business activity.
5On August 9, 2012, the applicant posted an online ad, which stated that he was a software developer who was looking for a full-time opportunity, and set out his experience in the field. The ad also stated that he preferred to telecommute, but was willing to relocate to another city if required.
6On August 10, 2012, Mr. Ahmed sent the applicant an email, which requested that he send his résumé to him for consideration for a software developer position with the respondent. Between August 10 and 16, 2012, the applicant exchanged emails with both Mr. Ahmed and Mr. Vadavia, and participated in separate telephone interviews with them.
7During the interview process, the applicant told Mr. Ahmed about his disability. During the exchange of emails, they also discussed finding an apartment for the applicant to rent in Montréal. The applicant told Mr. Ahmed that his brother would come to Montréal to look for an apartment on his behalf. Mr. Ahmed told the applicant that Mr. Vadavia had an empty apartment, and the applicant responded that he would be interested in renting it.
8On August 16, 2012, Mr. Ahmed sent the applicant an email, which formally offered him the position, asked him to be ready to start work in Brossard in early September, and told him that Mr. Vadavia could rent the apartment to him for $475 per month.
9On August 18, 2012, the applicant’s brother communicated with Mr. Vadavia by telephone and email about coming to Brossard on August 21, 2012 on behalf of the applicant. In his email to Mr. Vadavia, he asked whether there was a standing/walk-in shower or a bathtub in the apartment, and that if there was a bathtub, arrangements might have to be made for the applicant to use it.
10On August 19, 2012, Mr. Vadavia sent Mr. Ahmed an email, which stated that they may have to find the applicant an apartment that had a standing shower and no bathtub, or make $2,000 to $3,000 in changes in the washroom in the vacant apartment that Mr. Vadavia owned. He further stated that such changes would not be a “big thing”, but if the applicant was occupying that apartment, it may be more difficult to terminate his employment if things were not working out.
11Mr. Ahmed sent Mr. Vadavia an email in response, which stated that he understood that the applicant could walk but not drive, but that he may have misunderstood.
12On August 20, 2012, the applicant sent Mr. Ahmed an email, which stated that there was a change in plans, and that he would be coming with his brother on August 21, 2012 to see the apartment. On August 21, 2012, Mr. Ahmed sent the applicant an email in response, which stated he was not sure of the extent of the applicant’s disability, but Mr. Vadavia’s apartment may not be suitable for him because it was a basement apartment with 8 to 10 steps leading down. He stated that he understood that the applicant was “mobile with difficulties”, which is why he suggested that he rent Mr. Vadavia’s apartment, but if accessing a bathtub was difficult, the steps would pose an even larger problem.
13On August 21, 2012, the applicant, his brother, and his sister-in-law arrived at the respondent’s office, and met with Mr. Vadavia and Mr. Ahmed. After some discussion, it was agreed that the applicant would work for the respondent as an independent contractor/telecommuter out of his home in Toronto, rather than as an employee in the office in Brossard.
14On September 4, 2012, the applicant began working for the respondent. He had two co-workers, V.O. and S.N., who had both started working with the respondent earlier in 2012.
15On September 19, 2012, Mr. Ahmed sent V.O., the applicant, and Mr. Vadavia an email, which stated that they would be involved in a conference call the following day with a representative of another company about a software engine, and that each of them would be called upon to ask questions to the representative. The applicant sent an email in response, which stated that the time was too short for him to prepare questions to ask.
16Mr. Ahmed then sent Mr. Vadavia a separate email, which stated that the applicant’s response was not helpful, and he had concerns that staff lacked productivity skills which resulted in a poor delivery schedule and higher costs. Mr. Vadavia sent an email in response, which stated that the applicant’s response was valid.
17However, on September 22, 2012, Mr. Vadavia sent the applicant an email, which stated that they needed to talk about what the applicant was doing and if he could start to be productive. He further stated that he wanted to review the applicant’s deliverables with him for the next week to ensure that there was no delay in deliverables.
18On September 29, 2012, the applicant sent a friend or relative an email, which stated that Mr. Vadavia was giving him too much work to do, and had complained about his work.
19On October 5, 2012, the applicant sent a friend or relative an email, which stated that Mr. Vadavia told him “bluntly” that even if he has to work 24 hours per day to get his work done, he should do it without complaint.
20On October 8, 2012, Mr. Vadavia sent the applicant an email, which notified him that his contract with the respondent was terminated. The letter explained that there was a lack of progress with respect to the tasks and deliverables assigned to him, and general inefficiencies associated with remote coordination of a fast moving development project. The letter went on to list the abilities that the respondent expected in a software developer, including being highly productive and completing assigned deliverables in a timely manner, and concluded that the applicant had not demonstrated that he had those abilities.
21The applicant sent Mr. Vadavia and Mr. Ahmed an email in response, which agreed that he sometimes delayed in providing deliverables to the respondent, but stated that he was new and that it takes time to adapt to a new work environment and settle in. He concluded by stating that one month of employment was too short a period of time to prove his calibre.
22On October 9, 2012, Mr. Vadavia sent the applicant another email which stated that the investors in the start-up project were unhappy that the respondent had failed to meet agreed upon milestones and deliverables for several months, and had reduced funding, which was an additional reason why the applicant’s employment was terminated.
23On November 29, 2012, the applicant filed an Application with this Tribunal under s. 34 of the Code, which alleged that the respondent discriminated against him with respect to employment by terminating his employment because of his disability. Specifically, he alleged that after Mr. Ahmed and Mr. Vadavia met with him for the first time on August 21, 2012 and saw the extent of his disability, they decided to terminate his employment.
24Following the termination of the applicant’s employment, but before the respondent filed a Response to the Application, the applicant re-posted his online ad seeking a software developer position. On January 5, 2013, not realizing that it was the applicant who had posted the ad, Mr. Ahmed sent him an email, which asked him to forward his résumé for a position developing financial management software.
25On February 9, 2013, the respondent filed a Response, which denied the allegation of discrimination. The respondent stated that it was aware of the applicant’s disability and his physical challenges prior to hiring him, and was ready and willing to provide him with a raised chair and table to work on if he worked out of its office in Brossard. The respondent also stated that the applicant’s employment was terminated for non-discriminatory reasons, namely, his difficulties in meeting the demands of the project that he was assigned to work on, and Mr. Ahmed’s decision to discontinue the project due to unattained milestones and deadlines. The respondent further stated that it did not hire anyone to replace the applicant after his contract was terminated.
26In May 2013, a new employee, A.B., began working for the respondent. He worked for the respondent until November 2013.
27In November 2013, Mr. Ahmed stopped providing funding to the respondent, and in March 2014, he ended his relationship with the respondent. The respondent terminated the start-up project, laid off the applicant’s two former co-workers (V.O. and S.N.), and became an inactive corporation.
28On July 4, 2014, the applicant filed a Request for an Order During Proceedings, which requested that Mr. Vadavia and Mr. Ahmed be added as respondents to his Application because the respondent’s legal counsel informed him by email on July 2, 2014 that, although the company has not terminated its status as a corporation, it “does not hold any assets and is not involved in any revenue generating projects.”
29On July 16 and 17 2014, Mr. Ahmed and the respondent and Mr. Vadavia filed separate Responses to the Request, which opposed the applicant’s request to add Mr. Ahmed and Mr. Vadavia as respondents to the Application. In his Response, Mr. Ahmed also denied that he was part of the respondent. Rather, he stated, he hired and paid the respondent to develop a software project for him. He stated that his relationship with the respondent ended because the respondent failed to submit a deliverable product to him.
30The hearing of the merits of the Application was scheduled to take place on December 11, 2014. In advance of the hearing, the parties complied with the Tribunal’s Rules of Procedure on disclosure of documents and witnesses. The Tribunal then issued a Case Assessment Direction (“CAD”), which directed the parties to provide oral submissions at the outset of hearing addressing whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success. Specifically, the CAD stated at para. 10:
In the case at hand, the preliminary issue to be addressed is whether there is a reasonable prospect that evidence that the applicant has or that is reasonably available to him can show a link between the termination of his employment and his disability.
31The hearing took place as scheduled on December 11, 2014. I heard the parties’ submissions on the preliminary issue, and reserved my decision.
ANALYSIS
Should the Application be dismissed on a preliminary basis because it has no reasonable prospect of success?
32The Application relates to ss. 5 and 9 of the Code, which provide:
5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
(…)
- No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.
33The Tribunal does not have the power to deal with or remedy general allegations of unfairness. The applicant must establish discrimination on the basis of one of the grounds alleged in the Code. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”) at para. 17.
34Rule 19A of the Tribunal’s Rules provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success was explained in Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”) at paras. 8 and 9:
In some cases, the issue… 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… 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.
35For the Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that the applicant could show discrimination on the basis of one of the grounds alleged in the Code. See Forde, above, at para. 17.
36Typically, summary hearings are held at a relatively early stage in the Tribunal’s process and involve receiving the applicant’s submissions on his or her legal theory and what evidence he or she anticipates calling at the merits hearing in support of the allegations. However, the principle that an application can be dismissed because it has no reasonable prospect of success is not limited to the initial early stage of the Tribunal’s process, and can be heard during the merits hearing. See Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 (“Pellerin”) at para. 18. In some cases, as in the case at hand, the Tribunal will hear submissions on this issue at the outset of the merits hearing, which is after the parties have disclosed and filed their witness statements and the documents that they intend to rely upon, but before they have formally presented their evidence.
37At this stage of the proceeding, the Tribunal must decide whether, based on the material provided by the parties, and applying its expertise, it is persuaded that there is no reasonable prospect the Application will succeed. When a general evaluation of the evidence that is proposed to be called makes it clear that the Application has no reasonable prospect of success, the Application should be dismissed. The Tribunal cannot make findings of fact with respect to the merits of the Application, but it is not prevented from assessing, on conflicting information, the likelihood that findings of fact to support the Application could be made after a full evidentiary hearing. Furthermore, the fact that an Application may raise issues of credibility is not, in and of itself, sufficient reason to decline to find that the Application has no reasonable prospect of success. See Pellerin, above, at para. 20, and Evans v. University of British Columbia, 2008 BCSC 1026 at para. 34.
38As per the Tribunal’s CAD, the focus of the parties’ submissions was on the second branch of the Dabic test, namely, whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that the respondent terminated his employment because he has a disability.
39In his submissions, the applicant denied that his Application has no reasonable prospect of success. His theory of discrimination is that when Mr. Ahmed and Mr. Vadavia met him for the first time on August 21, 2012 and saw his disability, they decided to terminate his employment because of his disability. He pointed to the following evidence, which, in his view, will prove a link between the respondent’s decision to terminate his employment and his disability:
Mr. Ahmed and Mr. Vadavia were “visibly shocked” upon seeing him in person on August 21, 2012.
They told him that they “absolutely had no idea” to what extent his disability affected him.
They asked him inappropriate questions about his disability, such as how long it had affected him and whether it was painful.
Although they had previously offered to rent him an apartment owned by Mr. Vadavia, they unilaterally decided that the apartment was not accessible and would not suit him without even showing it to him. In fact, he would have been able to use the washroom in the apartment with only slight alterations.
They asked him if he could work from his home in Toronto rather than in the office in Brossard.
They asked him if he could work on a contract basis instead of as an employee.
After discussing these points, Mr. Vadavia then seemed more interested in talking to his brother about unrelated business than to him.
On January 5, 2013, Mr. Ahmed inadvertently sent him an email, which showed that the respondent was trying to fill the position that he had vacated after being fired, and in May 2013, a new employee, A.B., began working for the respondent.
40In its submissions, the respondent stated that the Application has no reasonable prospect of success because the applicant’s allegations are based on speculation rather than evidence that he has or that is reasonably available to him that can show a link between the termination of his contract and his disability. In response to the specific points raised by the applicant, the respondent stated:
Mr. Ahmed and Mr. Vadavia were not shocked upon seeing the applicant’s disability on August 21, 2012. They were aware of his disability and his physical challenges prior to making the job offer on August 16, 2012 and prior to meeting him in person on August 21, 2012.
They denied that they told him that they told him that they had absolutely no idea to what extent his disability affected him. Again, they were aware of his disability and his physical challenges prior to making the job offer on August 16, 2012 and prior to meeting him in person on August 21, 2012.
They did not ask him inappropriate questions about his disability. Rather, Mr. Vadavia asked him questions related to accommodating his disability-related needs, such as the length of time he could sit for.
Their assessment that the apartment would not meet the applicant’s needs was based on the email from his brother which they understood to mean that he needed a walk-in shower, which the apartment did not have. In any case, the respondent had no obligation to provide housing to him.
They offered and the applicant agreed to work from home in Toronto rather than in the office in Brossard. In his online job ad, the applicant had indicated that he preferred to telecommute. They also understood that his brother and sister-in-law had limited time to assist him in looking for an apartment in Montréal because they had to return to India a few days later.
They offered and the applicant agreed to work as an independent contractor rather than an employee. The arrangement made sense because the applicant was working remotely from his home in another province, and the respondent was a start-up company that was trying to keep its administration as simple as possible free of interprovincial payroll and tax deduction issues.
Mr. Vadavia spoke with the applicant’s brother because he was present, and then came to Mr. Vadavia’s home for tea with the applicant after the meeting.
The respondent never tried to fill the position that the applicant had vacated after being fired. Mr. Ahmed had hired and funded other companies to develop the accounting software program for him, and that is what his January 5, 2013 email may have been in relation to. The respondent hired a new employee, A.B. in May 2013 for a different job than the applicant had performed (documentation as opposed to payroll integration). In any case, A.B. was hired seven months after the applicant’s contract ended.
41In my view, there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that his rights under Code were violated.
42As a general observation, I would point out that it is undisputed that when the respondent offered the applicant the software developer position on August 16, 2012, it knew that he had a disability. Furthermore, it is undisputed that the applicant’s disability-related accommodation needs in the workplace (a raised chair and table) were simple and inexpensive, and he is not arguing that the respondent terminated his employment because it did not want to accommodate his needs.
43The applicant’s theory of discrimination is that when Mr. Ahmed and Mr. Vadavia met him for the first time on August 21, 2012 and saw his disability, they changed their minds about employing him and decided to terminate his employment. The applicant did not clearly articulate his theory about how the discrimination played out, but he appears to be theorizing that they decided to terminate his employment because of discomfort with his disability based on prejudice, and/or an irrational view that he would be incapable of fulfilling the duties of the software developer position. I will deal with the evidence that the applicant pointed to in support of this theory in order.
44First, the applicant’s evidence is that Mr. Ahmed and Mr. Vadavia were “visibly shocked” upon seeing him in person on August 21, 2012, but he did not provide any details explaining how they were “visibly shocked”. Therefore, all that is before me is a vague assertion that they were “visibly shocked”.
45Second, the applicant’s evidence is that Mr. Ahmed and Mr. Vadavia told him at the meeting that they “absolutely had no idea” to what extent his disability affected him. However, the August 19, 2012 email exchange between Mr. Vadavia and Mr. Ahmed, and the August 20-21, 2012 email exchange between the applicant and Mr. Ahmed, which occurred prior to the meeting, show that they were aware that the applicant might have significant disability-related mobility issues. The applicant did not dispute the authenticity of these emails.
46Third, the applicant’s evidence is that Mr. Ahmed and Mr. Vadavia asked him inappropriate questions about his disability, such as how long it had affected him and whether it was painful, but he did not explain in any detail how asking such questions was related to the termination of his employment.
47Fourth, the applicant’s evidence is that Mr. Ahmed and Mr. Vadavia offered to rent him an apartment owned by Mr. Vadavia prior to the meeting, but then unilaterally decided it was not accessible and would not suit him without even showing it to him. However, the applicant did not point to evidence that, in response, he asked them to see the apartment, or that he told them that he would have been able to use the washroom in the apartment with only slight alterations. Moreover, the August 19, 2012 email exchange between Mr. Vadavia and Mr. Ahmed shows that the former was willing to spend money to modify the apartment to meet the applicant’s disability-related needs, but he was concerned that if it was necessary to terminate the applicant’s employment, it may have been more difficult to do if he was occupying the apartment. The applicant did not dispute the authenticity of these emails.
48Fifth, the applicant’s evidence is that Mr. Ahmed and Mr. Vadavia asked him if he could work from his home in Toronto rather than in the office in Brossard, but in his online job ad which Mr. Ahmed responded to, he had indicated that he preferred to telecommute, and in his human rights Application, he also stated that he “happily agreed” to their request.
49Sixth, the applicant’s evidence is that Mr. Ahmed and Mr. Vadavia asked him if he could work on a contract basis instead of as an employee, but there is no dispute that he would be working remotely from his home in another province, and that he agreed to this arrangement.
50Seventh, the applicant’s evidence is that after discussing various matters about his employment with him, Mr. Vadavia then seemed more interested in talking to his brother about unrelated business than to him, but he did not explain in any detail how this was related to the termination of his employment.
51Eighth, the applicant’s evidence is that on January 5, 2013, Mr. Ahmed inadvertently sent him an email, which showed that the respondent was trying to fill the position that he had vacated after being fired, and in May 2013, a new employee, A.B., began working for the respondent. However, the applicant is not disputing that the respondent did not hire a new employee until seven months after his employment was terminated.
52Having evaluated the evidence that is proposed to be called, my conclusion is that the applicant’s theory of discrimination is largely speculative, and there is no reasonable prospect evidence that evidence he has or that is reasonably available to him can show a link between the respondent’s decision to terminate his employment and his disability. The evidence that he pointed to is vague, lacks a clear connection to the termination of his employment, or is undercut or contradicted by other evidence (including some of his own statements and actions) that he does not dispute the authenticity of. The Application is therefore dismissed as having no reasonable prospect of success.
53In view of this decision, it is not necessary to address the applicant’s request to add Mr. Ahmed and Mr. Vadavia as respondents to the Application.
ORDER
54The Application is dismissed.
Dated at Toronto, this 29th day of July, 2015.
“Signed By”
Ken Bhattacharjee
Vice-chair