Bangura v. Ontario (Ministry of Government and Consumer Services), 2016 HRTO 1322

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Osmand Bangura

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Government and Consumer Services and the Ministry of Community and Social Services

Respondent

DECISION

Adjudicator: Bruce Best

Date: October 12, 2016

Citation: 2016 HRTO 1322

Indexed as: Bangura v. Ontario (Ministry of Government and Consumer Services)

APPEARANCES

Osmand Bangura, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Ministry of Government and Consumer Services and the Ministry of Community and Social Services, Respondent

Henry Huang, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of reprisal contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the "Code").

2By Case Assessment Direction ("CAD"), the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed, that some of the allegations may have been appropriately dealt with in another proceeding, and/or that some of the allegations may be untimely. The hearing was held by teleconference on June 28, 2016.

3I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code. Even if I accept all of the facts alleged by the applicant as true, the applicant has not been able to point to any evidence beyond his own suspicions or beliefs that support his assertion that his failure to be hired was due to reprisal.

Summary Hearing Process

4The summary hearing process is described in Rule 19A of the Tribunal's Rules of Procedure ("Rules") as well as the Tribunal's Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he experienced. The test of no reasonable prospect of success is determined by assuming the applicant's version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

6However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant's assumptions about why he was treated unfairly. The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support his belief that he has experienced discrimination under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant, to connect the unfair treatment allegedly experienced by the applicant with the Code's protections.

7As 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 a breach of the Code.

8Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Analysis

Litigation history between the parties

9The applicant was a long-term employee of the respondent. He was dismissed in February 2010 from his position at the Family Responsibility Office ("FRO") at the Ministry of Community and Social Services. He challenged the termination by way of a grievance, and filed a human rights application with the Tribunal on the same grounds. The grievance was subsequently withdrawn. On March 21, 2013, the parties entered into minutes of settlement in the human rights application, which included the applicant resigning from his position, and the applicant releasing the respondent from any claims arising out of his employment.

10Several months after the settlement was signed, the applicant filed another application with the Tribunal (the "2013 Application"), this time naming the Ministry of Government Services (as it was called at the time) as the respondent, raising many of the same allegations from the settled application, along with additional claims that he had not been hired in a number of job competitions from 2010 through 2013 due to discrimination and reprisal. When the respondent sought to have the 2013 Application dismissed based on the minutes of settlement, the applicant filed a further application with the Tribunal alleging that the Ministry of Community and Social Services had contravened the confidentiality provisions of the settlement by sharing it with the Ministry of Government Services.

11Both Applications were dismissed by the Tribunal in Bangura v. Ontario (Community and Social Services), 2014 HRTO 1353 (the "2014 Decision"). First, the Tribunal found there was no breach of confidentiality between the ministries as the respondent was, in both cases, Her Majesty the Queen in Right of Ontario. Second, the allegations prior to the signing of the minutes of settlement were dismissed as being covered by the release. Third, at paras. 51-58 of the 2014 Decision, the allegations that the applicant was not successful in subsequent job applications due to discrimination and reprisal were dismissed on the basis that the applicant was not able to point to any evidence that would, if proven, establish a connection between his failure to obtain a position and the grounds cited, and because he was not able to point to any evidence of an intention to reprise against him. The Tribunal's findings with respect to reprisal were set out at para. 56:

The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one's human rights. See Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the Application, there must be a reasonable basis to believe that the applicant could establish such intention and a link to the respondent's alleged actions. The applicant has not been able to identify any evidence which, if proven, would establish that the respondents intended to reprise against him for asserting his human rights. The fact that the individual respondent knew the applicant's former Director would not be sufficient to establish intent to reprise against the applicant, and again, the applicant has made a bald assertion without being able to point to the evidence necessary to establish his claim.

Allegations of Reprisal

12Though he indicated that he had applied unsuccessfully for "a number" of positions since the minutes of settlement were signed, in the Application he only specifically identified three competitions, all of which occurred after the 2014 Decision, and within one year of the filing of the Application. These are:

1. Manager, Enforcement Services (MES) (Job ID: 75780) (applied March 1, 2015) ("enforcement position")
2. Manager, Mail Services Strategy and Administration (Job ID: 75287) (applied March 23, 2015), and ("mail services position")
3. ODSP Manager (Job ID: 79806) (applied August 21, 2015) (multiple positions) ("ODSP positions")

13The current Application was filed on November 23, 2015. The applicant argues in the Application that given his experience and qualifications, it was 'inconceivable' that he would not be considered qualified for the above positions, and the only explanation is that he was screened out as reprisal for having filed his earlier human rights applications.

With respect to the enforcement position, the respondent claims to have no record of the applicant having ever applied. With respect to the mail services position, it acknowledges the applicant applied, but indicates that a decision was made not to fill the position, and as such no interviews were conducted. With respect to the ODSP positions, the respondent indicates that the applicant was given an interview, which was held on November 24, 2015, the day after this Application was filed. The applicant argues that he did in fact apply for the first position and, for the purposes of this hearing, I assume that to be true.

14Section 8 of the Code provides as follows:

Reprisals

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

15As noted in the 2014 Decision at para. 56 (reproduced above in para. 11), the reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one's human rights, and the applicant must be able to point to evidence that would support this intention.

16The applicant points to several indicators which he asserts support an intention to reprise against him. First, he claims that he was successful in obtaining interviews and a position with other employers. Second, he raises many of the alleged incidents that were part of the previous applications, claiming that they would, if proven, support his present claim. Third, he argues that, with respect to the one competition for which he did obtain an interview, management at that office were aware of his previous human rights applications. Fourth, he claims that the respondent has provided false information in the materials filed with the Tribunal, and that the "obvious reason" for this is reprisal. I will address each of these in turn.

Success in other competitions

17The applicant claims that he did obtain interviews for other jobs with other employers, and in fact obtained and currently holds a management position with the federal government. Similar arguments were made in the 2013 Application, as noted at paras. 12 and 53 of the 2014 Decision, but these claims were not accepted by the Tribunal as being sufficient to establish discrimination or reprisal. As noted in the 2014 Decision, at para 57:

The simple fact that an individual obtains a job interview for one position he or she applies for and not for a different position that was applied for is insufficient, without more, to give rise to an inference that a Code ground was a factor in not obtaining a job interview for that second position.

18The applicant has not made any argument in the present Application that would support a different conclusion. I agree with the finding in the 2014 Decision, and find that the fact he had obtained interviews, and in fact obtained a job with another government, is not sufficient to support the allegation of reprisal.

Issues in Previous Applications

19Most of the narrative in the present Application raises allegations that were raised in the previous applications before the Tribunal, including the first application that was settled on March 21, 2013, and the 2013 Application which was dismissed by the Tribunal by the 2014 Decision. As it appeared that the applicant was intending to raise the same allegations again, the respondents argued that these allegations should be dismissed as an abuse of process, or under s.45.1 of the Code on the basis that they were resolved in the March 2013 settlement or addressed in the 2014 Decision.

20The applicant indicated that he is not seeking a remedy for any of the allegations prior to the date of the minutes of settlement. The applicant does, however, appear to be asking the Tribunal to make findings of discrimination with respect to these older allegations on the basis that such findings would support his present claim of reprisal; in particular, he noted several times at the hearing that an underlying basis for his allegations was that the 2010 termination of his employment was discriminatory, an issue which is not only disputed, but was resolved by the 2013 minutes of settlement.

21There is, in my view, a real question of whether the applicant would be entitled in a reprisal application to re-open allegations that have already been the subject of a settlement or determined in a prior proceeding. In the present case, however, I do not need to determine that issue, as I find that even if the previous allegations were determined in the applicant's favour, they would still not support his allegation that he was, years later, subject to reprisal.

22There is clearly no dispute that the applicant had previously raised Code issues. It is also well established that a claim of reprisal does not require the underlying claim to have been substantiated, provided the applicant had a genuine belief that he or she had been subject to discrimination. See Bertrand v. Primary Response, 2010 HRTO 186, at paras. 59 and 66. The only issue in this hearing is whether the applicant can point to any evidence that would support his allegation that his lack of success in the recent job competitions was due to an intention to reprise against him for having raised his earlier claims.

23At best, even if the allegations from the previous applications were proven, they would only establish an animosity towards the applicant in the previous litigation by certain individuals involved in those proceedings. He has not indicated what connection these individuals may have had with anyone involved in his subsequent job applications or interview. The applicant has not been able to point to how any findings on the issues raised in the previous applications would establish an intention to reprise against him with respect to the job competitions that are the subject of this Application.

Knowledge of previous Code allegations

24With respect to the ODSP positions, he argued that he was intentionally sent to interview at a location he had not requested, that the managers at that location were aware of his previous human rights applications, and that his failure to be given the position was therefore reprisal.

25When asked at the hearing what evidence he would present to connect this incident to an intent to reprise against him in 2015, he indicated that he had a witness, who did not want to be involved in these proceedings, who would testify that the staff at that location were aware of his 2010 human rights application. The details of this connection were that there was an individual whom he worked with at the FRO who was transferred to the ODSP office in 2010. The individual was subject to discipline while at that office, and apparently filed an internal complaint, in 2011, alleging that the discipline was taken against him because of his association with the applicant when they were at the FRO. He claims that the management at the ODSP office were therefore aware that the applicant had brought a human rights complaint against the respondent.

26At best, this proposed evidence would establish that it was known at the ODSP office, in 2011, that the applicant had filed a human right complaint respecting his termination from a position in a different division of the ministry. This proposed evidence, even if proven, falls far short of demonstrating that the applicant was not given the ODSP position in November 2015 because of an intention to reprise against him.

Allegation that Respondent is Misleading the Tribunal

27A significant portion of the applicant's submissions focus on disputing the accuracy of the Response. In particular, the Response indicated that according to the respondent's records the applicant had applied for eight positions from August 14, 2013 until November 24, 2015. In his submissions, the applicant claimed that this is false, and that he has in fact filed "at least" 15 job applications in that period. He suggests that the respondent is intentionally misleading the Tribunal by understating the number of positions he had applied for. The applicant claims, in his written submissions, that "the Respondents' (sic) failure to tell the truth has always been for obvious reasons. Reprisal is the motive."

28The evidence he proposed to support this claim comes from his allegations arising from the earlier applications, and specifically with respect to comments allegedly made by his former supervisor and by counsel for the respondent during the course of the earlier applications or grievance. He also relied on quotations of the former Information and Privacy Commissioner taken from the print media in 2013 respecting the deletion of emails related to the cancellation of two natural gas power plants in support of his assertion that the Ontario government should not be trusted when it says documents do not exist.

29The respondent claims that, after the applicant made this assertion, it investigated further and found that the applicant appears to have applied to a number of positions using different spellings or short forms of his name, and using different email addresses, and as such they were unable to produce an accurate list of the positions he had applied for. The applicant did not deny this claim at the hearing.

30I need not make any determination on the issue of whether the statements in the Response were intended to be misleading in order to determine this matter. Even if I accepted that this was true, the applicant has still not been able to point to any evidence that would support the claim that including incorrect or misleading information in the Response was intended as a reprisal.

Decision

31Based on the above, I find that this Application has no reasonable prospect of success.

32For an application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, beyond her or his own suspicions, that could make out a link to the Code. The Tribunal has repeatedly said that an applicant's belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311.

33The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one's human rights. To proceed with the Application, there must be a reasonable basis to believe that the applicant could establish such intention and a link to the respondent's alleged actions. The applicant has not been able to identify any evidence which, if proven, would establish that the respondents intended to reprise against him for asserting his human rights.

Order

34For the above reasons, the Application is dismissed.