Ryan v. Labour Ready Temporary Services, Ltd., 2016 HRTO 1425

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roger Ryan Applicant

-and-

Labour Ready Temporary Services, Ltd. Respondent

INTERIM DECISION

Adjudicator: Ken Bhattacharjee Date: November 2, 2016 Citation: 2016 HRTO 1425 Indexed as: Ryan v. Labour Ready Temporary Services, Ltd.

APPEARANCES

Roger Ryan, Applicant Self-represented

Labour Ready Temporary Services, Ltd., Respondent Nolan Lim, Representative

1The purpose of this Decision is to decide whether the Application should be dismissed on a preliminary basis.

2On September 2, 2015, 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 disability. Specifically, he alleged the following:

• On May 7, 2015, he applied for a job as a general labourer with the respondent, and was told that he had to complete an integrity test.
• On May 11, 2015, he arrived at 9:30 a.m. to do the test. He told the staff person that he might need extra time because he had a learning disability. The staff person “huffed”, and told him that there was no time limit.
• He then completed the test, which was electronically administered. The test asked simple integrity questions on matters such as violence and stealing, and he was confident that he answered the questions correctly.
• Another staff person then told him that he did not qualify for employment because of his test results.

3On November 26, 2015, the respondent filed a Response, which denied the allegation of discrimination. The respondent stated that it did not hire the applicant solely because he did not pass the integrity test.

4On February 16, 2016, 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.

5The summary hearing took place on May 30, 2016. Both parties made oral submissions. At the end of the hearing, I directed the respondent to disclose the applicant’s test results, and provided the parties with the opportunity to file written submissions if they deemed it necessary. The respondent stated that because the test was administered by a third party, it could disclose the results, but not the questions.

6Following the summary hearing, the respondent disclosed the test results, and the applicant filed further written submissions. The test results do not have the applicant’s name, and indicate the test was taken at 7:38 a.m. on May 11, 2015.

7In his submissions, the applicant stated that his theory of discrimination is that after he disclosed that he had a learning disability, the respondent decided not to hire him, and falsely claimed that he did not pass the integrity test.

8In its submissions, the respondent maintained that the sole reason that it did not hire the applicant was because he failed the integrity test.

9Rule 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 at paras. 8-9:

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.

10I am not satisfied at this preliminary stage that there is no reasonable prospect that the Application will succeed. Rule 19A.6 of the Tribunal’s Rules states that where the Tribunal decides not to dismiss an Application following a summary hearing, it need not give reasons. However, I will point out that the respondent’s position that the Application should be dismissed because it has no reasonable prospect of success is reliant upon the Tribunal accepting its version of the facts, which the Tribunal cannot do at this preliminary stage, particularly where the applicant’s name is not on the test results that the respondent disclosed, the questions and answers on the applicant’s test have not been disclosed, and there is a discrepancy between the time the applicant stated that he took the test, and the time that is indicated on the test results disclosed by the respondent. Furthermore, assuming without deciding that the applicant’s version of the facts is true, it cannot be said that the Application has no reasonable prospect of success.

11In its Response, the respondent indicated that it is agreeable to trying mediation, but in his Application, the applicant did not. If the applicant is now agreeable to trying mediation, he should contact the Tribunal’s Registrar within one week of the date of this Interim Decision. If the applicant does not contact the Registrar or notifies the Registrar that he is not agreeable to trying mediation, the Tribunal will schedule a one-day hearing of the merits of the Application.

12The Tribunal therefore makes the following order and directions:

1. The Application is not dismissed on a preliminary basis.
2. If the applicant is agreeable to trying mediation, he should contact the Tribunal’s Registrar within one week of the date of this Interim Decision.
3. If the applicant does not contact the Registrar or notifies the Registrar that he is not agreeable to trying mediation, the Tribunal will schedule a one-day hearing of the merits of the Application.

13I am not seized of this matter.