Russell v. Toronto Transit Commission (TTC), 2016 HRTO 1392

Human Rights Tribunal of Ontario

B E T W E E N:

Wayne Russell Applicant

-and-

Toronto Transit Commission (TTC) Respondent

DECISION

Adjudicator: Laurie Letheren Date: October 27, 2016 Citation: 2016 HRTO 1392 Indexed as: Russell v. Toronto Transit Commission (TTC)

APPEARANCES

Wayne Russell, Applicant Self-represented

Toronto Transit Commission, Respondent Marni Tolensky, 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 age.

OVERVIEW

2In a Case Assessment Direction ("CAD") issued on February 18, 2016, 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 provide details of the evidence he intended to rely on to show the link between the respondent's actions and his age.

3The summary hearing was held on June 28, 2016. 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 the evidence he has or will have to make the connection that what the adverse treatment he experienced in the respondent's hiring process and his age.

4During the summary hearing, I heard submissions from the applicant and from the counsel for the respondent. They also answered questions that I 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 Reply, and the submissions made by the applicant and the respondent during the summary hearing.

6The applicant submitted his résumé to the respondent in March 2015 for a transit operator position. In August, 2015 he attended a Driver Information session and in September 2015, he received an email inviting him to an interview with the respondent and providing details of the time and place for the interview. He attended an in-person interview on October 5, 2015. He was interviewed by two people and the interview lasted approximately one and a half hours.

7On November 4, 2015, the applicant received an email which notified him that he would no longer be considered for the operator position. After receiving this email, the applicant responded and asked for a debriefing on why he would no longer be considered. One of the people who had interviewed him on October 5 responded and wrote, "as you are aware you are ranked mainly on the 12 behavioural interview questions. Some you did well in with your examples, but unfortunately, there were several that were okay, but not strong."

8The applicant responded to the explanation email asking how his years of experience in customer service and transit driving could be negated because of his answers on several of the behavioural questions. He did not receive any response to this last email.

9The applicant alleges that someone in senior management made a final decision to override a job offer because of his age. He alleges that the response he received with the explanation about the poor performance on the behavioural questions was a cover to protect someone in management who discriminated against him because of his age.

10The respondent states that age was not a factor in the decision that the applicant would not proceed further in the hiring process after the in-person interview. The applicant's actual age would have been known to the respondent as early as the date of the information session because he presented his driver's license and current driver's abstract at that session and both these documents contain his date of birth. These documents were shown again at the in-person interview.

11The applicant was asked the same questions as the other candidates during the interview. He scored 52% on the behavioural questions and the cut-off to proceed to the next stage of the interview process was 60%.

12During the course of the summary hearing, the applicant did not disagree with the respondent's position that he had scored below the cut-off in the behavioural questions. He was asked a few times about the evidence he has or will obtain to demonstrate that he did not progress beyond the in-person interview stage because of his age. In response, he stated that he planned to show that he was qualified for the job as he scored above average on the cognitive testing; he has a clean driving record on large vehicles and superior training; and he had received an award in his previous employment for customer service excellence. He claimed that given his excellent credentials, "it is unfathomable that all other candidates were more qualified".

13He did not detail a name or position for the person who might have had the authority to remove him because of his age and stated that he did not know who in the respondent's organization has such authority.

14He submits that either the respondent is totally incompetent in its hiring or he was discriminated and he believes that discrimination in more likely.

15He stated that he is basing his claim that he experienced discrimination because of his age on what he has observed in the respondent's hires for transit operators. He states that he has never seen anyone his age or older hired since he has been applying. He stated that it is a gut feeling that he did not progress because of his age as he has a hard time seeing any reasonable reason why the respondent would not have hired him when they are hiring his co-workers. He claims these co-workers are younger but did not have evidence of the ages of those who were hired. He believes there is "more to this story" and admitted that he is on a fishing expedition for the truth.

ANALYSIS

16Rule 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.

17In 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.

18I 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 respondent's actions and his age.

19The 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. In 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.

20The applicant has made some general allegations based on his own observations that the respondent has hired transit operators who are younger than he is. The applicant does not presently have any evidence or proof that any evidence is available to demonstrate the ages of persons who have been hired as transit operators by the respondent. However, even if I were to accept that he would present such evidence it does not demonstrate that he has a reasonable prospect of proving the link between his age and his experience of not progressing beyond the in-person interview stage of the hiring process. As the Tribunal explained in Preddie v. Saint Elizabeth Health Care, 2011 HRTO 2098 at para. 25:

(...) discrimination ... 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.

21The applicant has pointed to nothing beyond his "gut feeling" to suggest that his age was a factor in the respondent's decision. I find that the applicant's allegations about the history of the respondent's hiring practice and that age were factors in the way the recruiting process was conducted are speculative in nature.

22The 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.

23Having 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.