Adrian O’Brien v. The Corporation of the City of Kingston and Sherry Cruise, 2015 HRTO 572

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adrian O’Brien

Applicant

-and-

The Corporation of the City of Kingston and Sherry Cruise

Respondents

-and-

Canadian Union of Public Employees and its Local 109

Intervenor

DECISION

Adjudicator: Laurie Letheren Date: May 5, 2015 Citation: 2015 HRTO 572 Indexed as: O’Brien v. Kingston (City)

APPEARANCES

Adrian O’Brien, Applicant Self-represented

Corporation of the City of Kingston and Sherry Cruise, Respondents Susan Nicholson, Counsel

Canadian Union of Public Employees and its Local 109, Intervenor Sue Lott, 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 race and age.

OVERVIEW

2On May 13, 2014, the Tribunal issued Interim Decision 2014 HRTO 678 granting the request to intervene made by Canadian Union of Public Employees. In that same decision, the Tribunal denied the respondents’ request that the Application be dismissed on the basis that the substance of the Application had been appropriately dealt with in another proceeding.

3In a Case Assessment Direction (“CAD”) issued on October 6, 2014 the Tribunal directed that a summary hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. The issue to be determined in a summary hearing is whether an application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the application or part of the application will succeed. The CAD advised the applicant that during the summary hearing he would need to make submissions about why the Application should not be dismissed for having no reasonable prospect of success and would need to provide details of the evidence he intended to rely on to show the link between the respondents’ actions and the grounds of discrimination he has alleged.

4The summary hearing was held on April 14, 2015. At the commencement of the summary hearing, I explained that the focus of the summary hearing was on the question of whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his Code rights were violated. I invited the applicant to explain why he believes the respondents’ acts amount to discrimination under the Code.

5During the summary hearing, I heard submissions from the applicant and from counsel for the respondents. The applicant and the personal respondent also answered questions that I put to them.

THE FACTS

6For the purpose of a summary hearing, the Tribunal is to accept that the facts as alleged are true. The following summary of the facts is based on the allegations set out in the Application, the Response and the submissions made by the applicant and the respondents during the summary hearing.

7The applicant is a transit employee with the respondent, City of Kingston. Up until April 3, 2013 the applicant was also a “volunteer” firefighter with the corporate respondent on a part-time basis. Although part-time firefighters at the corporate respondent are called “volunteer”, they are in fact paid for this part-time work. The applicant stated that he had been a part-time firefighter with the corporate respondent for over 12 years.

8The applicant applied for a full-time probationary fire fighter position with the Kingston Fire and Rescue Services in October 2012.The application process begins with a standard application form. The corporate respondent stated that this form does not ask for information about an applicant’s age or race. The application process involves four physical tests and an in-person interview. Upon completion of each step, a candidate is informed about whether they will be invited to participate in the next stage of the process and will be provided details of the dates and times of the next steps. According to the respondent, those who are part of the interview panel would only be informed that the candidate passed the physical portions of the process and although the candidates had to provide identification when completing the physical tests, that identification would not have been shared with the interview panel members.

9The applicant succeeded through the first three stages of the application process. The fourth stage was a swim test. All candidates, including the applicant, who passed the third physical test, were verbally informed on November 8, 2012 that the swim test would be held on November 19, 2012. The respondents submit that it was up to the candidates to arrange with their employer for the time off to complete each part of the process. On November 13, 2012, the applicant received a written notice that congratulated him for making it to the physical fitness test and informing him that the swim test would be held on November 19, 2012 at 1:30 pm.

10On November 17, 2012 the applicant asked the transit manager for time off during his lunch hour to complete the swim test. The transit manager is alleged to have refused this request because there was a meeting with an insurance adjuster scheduled for November 19, 2012 and the applicant was required to attend that meeting.

11The applicant called in sick for work in the transit department on November 18 and 19, 2012. On November 19, 2012 he successfully completed the swim test. Between November 20 and 22, 2012 all candidates who had successfully completed the swim test were called to arrange a personal interview. The interviews were to be held between November 26 and 30, 2012.

12The Response states that on November 20, 2012 the personal respondent, who is the corporate respondent’s Manager of Recruitment and Selection, received a telephone call from the Deputy Chief of Kingston Fire and Rescue. The Deputy Chief informed the personal respondent that Kingston Transit had called the Kingston Fire and Rescue to advise that the applicant had called in sick on the day of the swim test.

13The applicant called the personal respondent on November 20, 2012 and told her that he had been disciplined for calling in sick on the day he completed the swim test. The applicant asked if this would affect his interview and says that he was told that it would not because it was two different departments.

14The applicant says that near the end of the in-person interview he was asked, “Adrian what happened at work? Why did you have to take a day off to do the swim test?” The applicant says that when he was asked that question he explained about the discipline he had received for calling in sick on the day he completed the swim test. The applicant says that he knew then that his chances of getting the job were slim because he had to explain to her why he had to take the day off. The applicant received a letter dated December 17, 2012 informing him that he would not be moving forward in the recruitment and selection process for the Probationary Fire Fighter competition.

15The Response states that the interviews are conducted through a structured interviewing process called “Targeted Selection”. Those who were conducting the interviews were trained in this interviewing process and each member of the interviewing panel had predetermined interview questions assigned to them. The respondents state that although the questions are predetermined, it is not unusual for there to be follow-up questions to obtain sufficient information to evaluate the candidate.

16The applicant alleges that when he was asked this question by the personal respondent, this was deviating from the line of questioning. He claims that he is the only candidate in the history of the Kingston Fire and Rescue to have been asked this question although conceded he does not have evidence to support this claim. He alleges that this was not due process and he was not given equal opportunity. He states that Kingston Fire and Rescue has never hired a qualified person who is over the age of 45-47 and that he is the only Black Fire Fighter with 12 years’ experience.

17During the summary hearing the applicant stated that he felt the transit manager was blocking him from getting a job as fire fighter.

18During the course of the summary hearing, the applicant was asked a few times about the evidence he has or will obtain to demonstrate that his experiences during the fire fighter recruitment process were linked to his race or age. He stated that he had been a volunteer fire fighter for 12 years and that he was the only Black man who was a volunteer with the Kingston Fire and Rescue Service. He believes that he should have been recognized for all he has done and this should have been considered for the hiring decision. He stated that he believes that there are not many fire fighters who work for the respondent who are over or at age 50 and that generally fire departments will not hire someone who is over the age 50. The applicant was asked if he has or will have evidence of the ages of those hired into fire fighter position by the respondent and it was explained that a finding of fact cannot be based on beliefs of the parties. The applicant stated that he does not have that evidence, but that he thinks that evidence is out there. He stated that he also thought that there is evidence that there has never been a Black person hired. When asked, he stated that he did not know whether another Black person had ever applied for a fire fighter position with the respondent.

19The applicant states that the connection between his own experiences in the recruitment process and his race and age are that he was not given an equal opportunity when he was asked the question about the day of the swim test. He understood that the interview panel was not to deviate from the line of questions but because of who he is, he was asked that question. He says that the panel knows the applicants’ ages from the information provided during the recruitment process and “they know who you are”. He states that they knew he had been a volunteer for 12 years, that he has evidence to show that he was qualified for the job, but he was overlooked for the position.

ANALYSIS

20Rule 19A.1 reads as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.

21In Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”) at paras. 7-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

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.

22I find that the applicant does not have a reasonable prospect of proving that his rights under the Code have been violated by establishing a link between the respondents’ actions and his race and age.

23In considering these issues, I am mindful that the Tribunal does not have the general power to inquire into claims of unfairness outside the areas and grounds listed in the Code. Importantly, the Tribunal’s mandate is not to correct general unfairness, but to deal with alleged discrimination on Code grounds: Dabic, above. In addition, as the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, for an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

24The applicant’s allegations of discrimination as set out in the Application, and as stated during the summary hearing, are based on the incident during the in-person interview when he was asked a follow-up question about what happened at work on the day of the swim test. The applicant stated that in answering the question he explained that he had been disciplined for calling in sick on the day he completed the swim test. He also stated that he knew that his chances in getting the job were slim after having to explain how he had taken the day off.

25The applicant has made some general allegations based on his own observations that the respondent has never hired a Black fire fighter and does not have many fire fighters over the age of 50. The applicant does not presently have any evidence or proof that any evidence is available to demonstrate the racial backgrounds or ages of persons who have applied for fire fighters’ positions with the respondent. However, even if I were to accept that he would present such evidence it does not demonstrate that he has a reasonable prospect of proving the link between his race and/or age and his experience of being asked the question about attendance at work on the swim test day and then not getting the job. As the Tribunal explained in Preddie v. Saint Elizabeth Health Care, 2011 HRTO 2098 at para. 25:

(…) discrimination based on race or colour can indeed be subtle and hard to detect, but an applicant must provide some reasonable basis for making allegations of such discrimination. It is not sufficient to claim discrimination as a member of a group protected under the Code and to look to a hearing process before the Tribunal as the means to discover whether such discrimination occurred; there must be some reasonable prospect that evidence the applicant has or that is reasonably available to her can show a link between the events alleged and the alleged prohibited ground.

26The applicant has pointed to nothing to suggest that his race or age were factors in the personal respondent’s decision to ask the applicant the follow-up question about his attendance at work on the day of the swim test. I find that the applicant’s allegations about the history of the corporate respondent’s hiring practice and that his race and age were factors in the way the recruiting process was conducted are speculative in nature.

27The Response states that each candidate was asked questions about attendance at work including: When we call your current supervisor for a reference what are they likely to tell us in regards to your attendance? The respondents submit that when he did not mention the discipline issue, the follow-up question was asked. The respondents submit that the personal respondent had a valid reason for asking that question as she was aware of the discipline incident both because the Deputy Chief had called her and because the applicant himself had called her and told her about the fact he had been disciplined for taking a sick day on the day of the swim test. The respondents submit that a candidate’s history of maintaining punctuality and good attendance in the workplace is one of the competencies that the Targeted Selection process is designed to assess. The corporate respondent submits that it has one human resources department for all employees including employees of Kingston Fire and Rescue Services and Kingston Transit. As such, the human resources department has access to the attendance information of all employees.

28The applicant made no submissions on these comments in the summary hearing and did not challenge the respondents’ submissions and conclusion. In fact, the applicant appears to have recognized that his history of punctuality and attendance were important factors in the recruitment when he stated that he knew that his chances of getting the job were slim because he had to explain what had happened in taking the day off for the swim test.

29While I appreciate the applicant’s frustration and disappointment in not being offered a full-time fire fighter position, particularly because he had volunteered as a fire fighter for 12 years, he has pointed to no evidence or prospective evidence to show that his race or age were factors in the respondents’ decision to not offer him a position.

30The alleged treatment must be linked in a substantive way to a Code ground. As the Tribunal stated in another decision on a summary hearing, Villella v. Brampton (City), 2011 HRTO 1085, at para. 10:

The applicant must show more than mere subjective suspicion to establish a link between the respondent’s alleged conduct and the grounds pleaded. There must be at least some objective facts and circumstances to support the theory linking the respondents’ action with the Code. Here, I do not see that the applicant has alleged any facts that would be capable of establishing such a link.

31Having considered all the information before me, I find that there is no reasonable prospect that the Application will succeed and the Application is therefore dismissed.