Seyoum v. Evertz Microsystems Ltd., 2015 HRTO 883

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Gabriel Seyoum

Applicant

-and-

Evertz Microsystems Ltd.

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: July 2, 2015

Citation: 2015 HRTO 883

Indexed as: Seyoum v. Evertz Microsystems Ltd.

APPEARANCES

Gabriel Seyoum, Applicant

Self-represented

Evertz Microsystems Ltd., Respondent

Alexander Kowal and Erin Payne, Counsel

Introduction

1The 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 summary 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

2The applicant identifies as a Black man who is originally from Ethiopia. He was 48 years-old at the time of the incidents at issue in the Application.

3In the spring of 2014, the applicant applied for the position of Java Programmer with the respondent. He submitted a résumé which indicated that he had a Bachelor of Engineering degree and a Master of Applied Science degree from Carleton University (undated), and set out his work experience in the software field since 1998. He received a form email in response, which stated that candidates selected for an interview would be contacted by the respondent’s Human Resources (“HR”) department and that candidates with less than five years of work experience would be required to submit academic transcripts.

4The applicant was subsequently contacted by an HR Administrator, who conducted a non-technical interview with him by telephone on May 28, 2014. She then asked him to attend a two to three hour interview at the respondent’s office with three of its engineers.

5On June 19, 2014, the applicant attended the respondent’s office and was met by the HR administrator, who brought him to a meeting room. One engineer came and asked him questions about Java programming. The engineer then left the room, and a different staff person subsequently came and told the applicant that the interview was over and he should leave the building.

6On December 3, 2014, the applicant filed an Application 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 with respect to employment because of his race, colour, ancestry, place of origin, ethnic origin, and age. Specifically, he alleged that the respondent excluded him from further consideration for the Java Programmer position when it found out at the job interview that he is Black, from East Africa, and middle-aged.

7On December 29, 2014, the Tribunal issued a Case Assessment Direction, which directed that a summary hearing be held to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success.

8A summary hearing by teleconference took place on March 31, 2015. After I set out the order for the parties to make their submissions, the respondent stated that it had been told by a Tribunal staff person that only the applicant would be permitted to make submissions. Whether this was actually said or the respondent misinterpreted what was said, the Tribunal’s expectation was that both parties would make submissions. The applicant and the respondent then both made oral submissions, but to be fair to the respondent who had not prepared in advance, I issued a direction for the parties to provide supplementary written submissions following the hearing. The respondent filed submissions, but the applicant did not.

ANALYSIS

9The Application relates to sections 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.

(...)

9. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

10Rule 19A of the Tribunal’s Rules of Procedure 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 following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”) 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.

11The 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 one of the grounds alleged in the Code. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

12The focus at the summary hearing 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 discriminated against him because of his race, colour, ancestry, place of origin, ethnic origin, and age when it excluded him from further consideration for the Java Programmer position.

13In his submissions, the applicant stated that his Application has a reasonable prospect of success because of the following evidence, which will prove a link between the respondent’s decision to exclude him for further consideration for the Java Programmer position and his race, colour, ancestry, place of origin, ethnic origin, and age:

1. When he was sitting in the waiting room of the respondent’s office before his interview, he did not see very many minorities and no Black people among the people coming in and out of the office.

2. The résumé that he had submitted to the respondent when he applied for the job did not indicate “in any way” what his race, colour, ancestry, place of origin, ethnic origin, and age were. The HR administrator and the interviewer were both “shocked” when they met him in person because, for the first time, they realized that he was Black, from East Africa, and middle-aged.

3. The HR administrator informed him in advance of the interview that three engineers would interview him for two to three hours, but he was only interviewed by one engineer and the interview only lasted 10-15 minutes.

14In its submissions, the respondent stated that the Application does not have reasonable prospect of success because the applicant’s allegations are based on subjective beliefs and unsupported assertions rather than evidence that he has or that is reasonably available to him that can show a link between excluding him from further consideration for the Java Programmer position and his race, colour, ancestry, place of origin, ethnic origin, and age.

15In its supplementary written submissions, the respondent also stated that the applicant was excluded from further consideration for the Java programmer position because he had failed a verbal test during the interview. Specifically, the interviewer showed the applicant a sample of a Java code and asked him to point out what would cause an error when running the code, but the applicant was unable to identify any of the three simple errors in the code, and was only able to identify one of the three critical errors in the code.

16Despite being given the opportunity to provide supplementary written submissions in response to the respondent’s submissions, the applicant did not file any submissions. In his Application, the applicant merely stated that he had answered “most” of the questions that the interviewer had asked him about Java programming language.

17In my view, there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that his Code rights were violated. The evidence that he pointed to is insufficient to establish that he has a reasonable prospect of proving a link between the respondent’s decision to exclude him for further consideration for the Java Programmer position and his race, colour, ancestry, place of origin, ethnic origin, and age.

18First, the applicant’s observation about the racial composition of the people coming in and out of the respondent’s office when he was sitting in the waiting room has little probative value. He seems to be suggesting that the people coming in and out were all or mostly employees, and were a representative sample of the respondent’s workforce, but he did not explain how he knew that either of those two things were accurate. Furthermore, in my experience adjudicating Applications involving allegations of racial discrimination, a layperson’s conclusion about the “race” of an individual whom he or she observes, is often unreliable, and especially so in brief observations, as in the case at hand.

19Second, the applicant’s observation that the HR administrator and the interviewer were both “shocked” when they saw him in person because, for the first time, they realized that he was Black, from East Africa, and middle-aged has little probative value. He did not explain how they were shocked. I also do not agree with him that his résumé did not indicate “in any way” what his race, colour, ancestry, place of origin, ethnic origin, and age were. His résumé had his surname, “Seyoum”, which would have indicated that he was of non-Western descent and also set out his work experience in the software field since 1998, which would have indicated that he was near or at middle age. Furthermore, the HR administrator had conducted a telephone interview with him prior to meeting him in person, and would have known from his accent that he had come to Canada as an immigrant.

20Third, the applicant’s evidence that the HR administrator informed him in advance of the interview that three engineers would interview him for two to three hours, but he was only interviewed by one engineer and the interview only lasted 10-15 minutes, has little probative value. The respondent filed written submissions indicating that he failed a verbal test during the interview, but the applicant then failed to provide written submissions in response. All that is before me is his statement in the Application that he answered “most” of the questions that the interviewer asked him about Java programming language. This seems to be an admission that he did not answer some of the questions.

21The Application is therefore dismissed as having no reasonable prospect of success.

ORDER

22The Application is dismissed.