HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Adel Mekhail
Applicant
-and-
Dufferin-Peel Catholic District School Board
Respondent
DECISION
Adjudicator: Laurie Letheren
Indexed as: Mekhail v. Dufferin-Peel Catholic District School Board
APPEARANCES
Adel Mekhail, Applicant
Self-represented
Dufferin-Peel Catholic District School Board, Respondent
Dianne Jozefacki, 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, colour, ethnicity, place of origin and ethnic origin.
OVERVIEW
2In a Case Assessment Direction (“CAD”) issued on March 5, 2015, 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 intends to rely on to show the link between the respondents’ actions and the grounds of discrimination he has alleged.
3The summary hearing was held by teleconference on June 11, 2015. A language interpreter was present at the teleconference. At the commencement of the summary hearing, I asked the applicant and the interpreter to have a brief conversation to confirm that they were able to fully understand one another. I also requested that despite the applicant’s level of facility with spoken English, the interpreter was to interpret all words spoken in English by me or the respondent’s counsel and the applicant was to speak his first language and allow for interpretation of his spoken words into English.
4I explained to the parties 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 respondent’s acts amount to discrimination under the Code.
5During the summary hearing, I heard submissions from the applicant and from counsel for the respondent. The applicant and counsel for the respondent also answered questions that I put to them.
6For the purpose of a summary hearing, the Tribunal is to accept that the facts as alleged are true or capable of being proved. 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.
Applicant’s Submissions
7The applicant applied for the building operator job that was posted by the respondent in May 2013. Near the end of July 2013, the applicant received a letter from the respondent’s human resources department in which it was stated that he did not have the required experience to be considered for the job.
8A grievance of the decision that he did not have enough experience was filed. As a result of this grievance, the applicant was offered the opportunity to write the respondent’s Building Operator Test. It was further agreed that if the applicant succeeded in receiving a grade of at least 60% on the test, he would be considered to have the required experience to be considered for the job.
9The applicant completed the Building Operator Test in September 2013. He received a grade of 42%.
10The applicant requested an opportunity to review his test and later in September 2013 a meeting was held with the applicant, his union representatives and several representatives from the respondent. The applicant states that during that meeting he tried to ask the respondent’s representatives to compare his answers on the Building Operator Test with the answers contained in materials from the college he had attended. He stated that when he stood to give the college materials to the respondent’s representatives, they all looked terrified. He says that the union representative pulled his hand and shouted to tell him to sit down. The applicant stated that he believes everyone in the meeting reacted this way because they are afraid of all Arabs, the ethnic origin that the applicant identifies with, who they think are violent and dangerous.
11The applicant stated that he wanted to go through each of the questions on the Building Operator Test during the grievance but he was not permitted to do this. He believes that if he had gone through all the questions, his grade would have been higher. He stated that this shows that the he experienced discrimination because the test was marked not according to his knowledge but that he was marked lower because his ethnic origin is Arabian.
12When asked what made him believe he had been treated differently in the test marking because of his ethnic origin, the applicant stated that he knew by the looks the respondent’s representatives gave each other in the grievance meeting. He believed that the reaction of the people in the room would have been captured on camera. He also stated that he has known one of the respondent’s representatives, who was at the meeting, for many years and that he knows this person does not like Arabs because he thinks they are violent and he does not like the way the they speak. When asked how he knows that person has those believes, the applicant did not provide any details or examples.
13The applicant stated that on January 14, 2014, the building operator job was awarded to someone from outside the respondent