HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Walter Strychowskyj
Applicant
-and-
Blue Line Transportation Ltd. and Rizutto Brothers Limited
Respondents
DECISION
Adjudicator: Geneviève Debané Date: May 28, 2015 Citation: 2015 HRTO 699 Indexed as: Strychowskyj v. Blue Line Transportation Ltd.
APPEARANCES
Walter Strychowskyj, Applicant
Charlene DaSilva, Representative
Blue Line Transportation Ltd. and Rizutto Brothers Limited, Respondent
Diane Laranja, Counsel
Introduction
1This Application, as originally filed, alleged discrimination with respect to employment because of age and reprisal contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code") as against the respondent Blue Line Transportation Ltd. ("Blue Line"). Blue Line filed a Response denying the allegations in the Application and further took the position that it is not in an employment relationship with the applicant.
2On June 17, 2014, the applicant filed a Request to amend the Application and to add Rizutto Brothers Limited ("Rizutto Brothers") for the purposes of establishing that both Rizutto Brothers and Blue Line are "one and the same" and are the applicant's employer. Rizutto Brothers filed a Form 11 in which it did not oppose being added as a respondent to the Application.
3In a Case Assessment Direction dated August 25, 2014 I granted the applicant's request to add Rizutto Brothers as a respondent. I find that it was appropriate to add Rizutto brothers as a respondent, first because it was unopposed and secondly because there was a genuine issue to be decided with respect to the identity of the employer and whether there was an employment relationship between Blue Line and the applicant.
4On October 8, 2014, the Tribunal directed that a summary hearing would be held in this matter to address a number of issues including whether the Application should be dismissed on the basis that it was not filed within one year of the last incident of alleged discrimination and because it had no reasonable prospect of success.
5The summary hearing was held on March 3, 2015, during which all of the parties were present.
6For the reasons that follow the Application is dismissed on the basis that it has no reasonable prospect of success. Given this determination I need not consider whether the Application was filed within one year of the last alleged incident of discrimination.
The applicant's allegations
7It is difficult to understand the allegations made by the applicant as described in the initial Application. There are a number of allegations which relate to the unfairness with respect to the manner that all taxicab drivers are treated by the respondents.
8It appears that the applicant specifically takes issue with the fact that he is charged a higher daily rate for the use of his taxicab than other drivers. Usually the changeover between drivers occurs at four o'clock for a twelve hour shift. In these circumstances each driver pays a 60 dollar daily fee. However, the changeover time between the applicant and the other driver that he shares a cab with used to be at 1:00 a.m. and it is now at midnight each day and because of this the other driver does not drive the taxicab during the night "bar rush". The applicant states in the Application that when the owner of the taxicab found out he raised his daily rate to 75 dollars. During the summary hearing the applicant stated that the other driver sometimes pays less than 60 dollars per day.
9During the summary hearing when I asked the applicant to explain why he links the fact that he is paid a higher daily rate to his age, the applicant's representative responded that the issue is not really "age" but more "seniority". The applicant's representative explained that there are individuals who are less senior then the applicant who pay a 60 dollars daily rate. None of these other drivers start work at midnight.
10With respect to the issue of reprisal the applicant explained that he feels that when he questions authority that this results in discipline against him. He states that this has been going on since 2007. In the Application the applicant did not indicate that he ever sought to exercise a right under the Code.
Decision
11The approach in a summary hearing was set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-10:
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.
12This case is of the second type. The issue at the summary hearing stage is whether there is no reasonable prospect that the applicant can prove that the respondent reprised against him or to link any of the respondents' alleged unfair conduct to his age.
13The decision of Noble v. York University, 2010 HRTO 878, the Tribunal describes the legal elements of establishing a claim of reprisal under the Code at paragraph 33:
Thus, in a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
14The only submissions on the issue of reprisal were that whenever the applicant questions authority it results in discipline. The applicant did not explain when and how he attempted to claim or enforce a right under the Code. In this case I find that the applicant has not proposed any evidence which would establish that he ever claimed, or attempted to enforce his rights under the Code prior to the filing of this Application or that the respondents' intended to retaliate against him. I find therefore that the applicant's allegation that he was reprised against has no reasonable prospect of success.
15With respect to the allegations of discrimination related to his age, the applicant did not suggest any evidence to support his assertion that he has been discriminated against on this ground. Having reviewed the Application and the applicant's submissions I find that though the applicant believes that he has been treated unfairly by the respondents there is no evidence proposed by the applicant to link this alleged unfairness to his age. I have considered that when the issue of the link between the applicant's allegations of unfairness and 'age' was put to the applicant's representative at the summary hearing, he suggested that the unfairness related to seniority rather than age. Age is not the same as seniority. Even if I were to consider that in some cases seniority might be a proxy for age no argument was even suggested for such a connection by the applicant or his representative in this case. Neither, in any event and to be clear, was there any evidence proposed from which I might draw an inference that the alleged unfairness of the differential fee was somehow related to seniority. Instead, the applicant's own evidence was that the allegedly unfair fee was instituted when the owner found out about the change in changeover time; a factor unrelated to seniority or age. The Tribunal does not have the jurisdiction to enquire into issues of unfairness that are not linked to the Code. In these circumstances, I find also that these allegations have no reasonable prospect of success.
Order
16The Application is dismissed because it has no reasonable prospect of success.
Dated at Toronto, this 28th day of May, 2015.
"signed by"
Geneviève Debané
Vice-chair