Anthony James v. The Corporation of the City of Mississauga and Ashleigh Cleva, 2016 HRTO 13

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anthony James

Applicant

-and-

The Corporation of the City of Mississauga and Ashleigh Cleva

Respondents

DECISION

Adjudicator: Laurie Letheren Date: January 6, 2016 Citation: 2016 HRTO 13 Indexed as: James v Mississauga (City)

APPEARANCES

Anthony James, Applicant Self-represented

The Corporation of the City of Mississauga and Ashleigh Cleva, Respondents Graham Walsh, 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 reprisal.

OVERVIEW

2In a Case Assessment Direction (“CAD”) issued on May 21, 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 intended to rely on to show the link between the respondents’ actions and his race.

3The summary hearing was held on September 23, 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.

4During the summary hearing, I heard submissions from the applicant and from counsel for the respondent. The applicant and the individual respondent also answered questions that were put to them.

THE FACTS

5For 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.

6The applicant applied for a position as a transit operator with the respondent corporation. He stated that he submitted his application through an online portal and then received an email from the respondent. He found the email to be a bit confusing as he understood it to have a link and that if he clicked on this link it would withdraw his application. Because the email was not clear to him, he contacted the corporate respondent and spoke to the individual respondent.

7He stated that he got an “uneasy feeling” when he spoke to the individual respondent.

8When he was asked to explain what he meant by “uneasy feeling”, the applicant stated that it was hard to explain but he just felt that there was something about his treatment of him during the call.

9The applicant was invited and did attend a testing session on January 14, 2014.

10The applicant went through the testing on January 14, 2014. On this day, he met the individual respondent who was there to oversee the testing, provide more information about the job and the hiring process and answer questions.

11It was the applicant’s understanding that if he were successful at this testing stage he would be invited to have a phone interview. He also understood that after the testing he was to receive information about job shadowing, an information sheet about the transit operator position with a union summary, and a description of benefits that was to be brought to the interview. He claims that he did not receive this package on January 14, 2014.

12He stated that he believed that others were given this information when he was not. The applicant was asked how he knew this. In response he stated that he was not sure that others who were at the January 14, 2014 testing had actually received the information. It was his understanding that the respondent had standard practices, rules and policies that were to be followed throughout so that all candidates were treated consistently. He stated that he believed these were not followed in January 2014 because he was treated differently than others.

13The applicant stated that he could bring witnesses to a hearing to demonstrate that the procedure they went through was different from what he went through. He stated that he briefly spoke to one person. When asked if that person told him that he had gone through a different process for the same transit operator job, he responded, “No I did not cover that with him.”

14The applicant states that he had dealt with this type of recruitment before but on January 14, 2014 he got the sense that something was wrong about his interactions with the individual respondent. He stated that he did not address it at the time because he did not feel it was the right time or place so he just did the test, picked up some information and left.

15On January 20, 2014 the applicant was contacted by the individual respondent for the telephone for interview. During the telephone interview he was asked a number of questions that related to this type of licence, his employment history and his driving record.

16He stated that it was his belief that the respondents would have much of the information that was asked in the phone interview through his driver’s abstract that would have been obtained by the respondents at the January 14, 2014 testing. He understood that if he did not have clear record he would not be invited for testing. He stated that he was surprised by the questions he was asked and in listening and answering questions he got more of the feeling that something was wrong with the way he was being treated differently.

17He stated that he believed that others had been given an in-person rather than a phone interview. When asked why he had this belief, the applicant stated that he spoke to others but he was not sure when they had had the in-person interview. He was not sure whether the people he spoke to had gone through the same application process that was subject of his Application to the Tribunal.

18On January 23, 2014 the applicant spoke with the individual respondent again. He was told that he was not successful and that there were candidates who were more qualified for the job. He stated that he found it hard to accept what he had been told because he has had a D licence for more than 25 years, has done 15 years transit and school bus driving, has had many experiences with customers, and has dealt with hard to serve students as child and youth worker.

19When asked how he would demonstrate that this differential treatment was connected to his race, the applicant stated that he identified as a Black man. There were 20 people in the room on January 14, 2014 and he was the only Black man. He stated that from his interaction with the individual respondent and from the fact that she had not given him all the required information, the only thing that he can see clearly is that she did not give all the needed information to him because he is Black. He believes the other people who were there on January 14, 2014 got the information and moved forward in the process.

20The applicant stated that the individual respondent told him that she controlled the process and decided who moved on to the next stages of the recruitment process. This led him to believe that her treatment of him was all pre-meditated. She carried this out from the first time he called her about the email until she called to say others were more qualified. She is the one who made the decision as to who would move on and she did not allow him to move on because he was Black.

21The respondents deny that the applicant was treated any differently in the recruitment process. They submit that the applicant has failed to demonstrate how he could produce any evidence to connect his race with the decision not to hire him.

22The respondents submit that the applicant went through the same recruitment process as the other candidates. All candidates attended on January 14, 2014 to do an assessment test. They had to register with the individual respondent and provide a driving abstract. All candidates were given the same package and the individual respondent provided an explanation of the documents. There was a power point presentation that described position and the recruitment process.

23The respondents submit that those who passed the first assessment were given a telephone interview. All candidates were asked the same questions during the telephone interview and a transcript of the questions and answers was created. After this phone interview, some candidates were invited to an in-person interview. The job shadow forms and references were collected at the in-person interview stage.

24The respondents submit that the applicant was not recommended to progress to the in-person interview stage because of issues with his driving record and his work history.

25The respondents submit that the applicant is relying on his own subjective belief that he experienced discrimination and his subjective belief is not sufficient to demonstrate that he will have a reasonable prospect of succeeding in proving his Code rights were breached. The applicant must prove not only that he was mistreated during the interview process but, as well, that the mistreatment is connected to his race.

26The respondents referenced a number of Tribunal decisions in which the Tribunal has found that in order to prove the Application has a reasonable prospect of succeeding, the applicant must demonstrate that he is capable of proving a link between his alleged mistreatment and his race. See: Patterson v. Mississauga (City), 2013 HRTO 395 at paragraph 50; Exil v. Liberte Brand Products, 2012 HRTO 382 at paragraphs 19 and 26.

ANALYSIS

27Rule 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.

28In 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.

29I 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. As well, the applicant has made no allegations that could be found to be reprisal as defined under the Code.

30In 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.

31In 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.

32The applicant’s allegations of discrimination as set out in the Application, and as stated during the summary hearing, are based his belief that he was not given the documents he needs to succeed at each step of the process and that he was asked different interview questions than the others.

33The applicant has made general allegations based on his own belief that the individual respondent was determined not to hire him because he is a Black person. The applicant has not provided any information about the evidence he will have to prove that he was treated differently because of his race. Even if I were to accept that he could demonstrate that he was treated differently, without any evidence that this treatment was connected to his race, I cannot find that he has a reasonable prospect of proving the link between his race this alleged differential treatment. 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.

34The applicant has pointed to nothing beyond his own belief to suggest that his race was a factor in the respondents’ decision not to recommend that he proceed to the in person interview stage.

35The Response states that after considering the information provided by the applicant during the telephone interview about his past work history and his driving history, there were a number of reasons to decline the applicant an offer of employment.

36The applicant made no submissions on the position taken in the Response during the summary hearing and did not challenge the respondents’ submissions and conclusion.

37While I appreciate the applicant’s frustration and disappointment in not being offered a transit operator position, he has pointed to no evidence or prospective evidence to show that his race was a factor in the respondents’ decision to not offer him a position.

38The 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.

39Having 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.