Leonard Reece v. City of Toronto, 2016 HRTO 1494

Human Rights Tribunal of Ontario

BETWEEN:

Leonard Reece Applicant

-and-

City of Toronto Respondent

INTERIM DECISION

Adjudicator: Jennifer Scott Date: November 25, 2016 Citation: 2016 HRTO 1494 Indexed as: Reece v. Toronto (City)

APPEARANCES

Leonard Reece, Applicant Self-represented

City of Toronto, Respondent Sharmila Clark, Counsel

Introduction

1This Application alleges discrimination with respect to employment on the basis of race, colour and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction dated September 27, 2016, the Tribunal directed that a summary hearing be held to determine whether the Application has no reasonable prospect of success.

3The summary hearing was held on November 23, 2016.

Background

4The following facts are taken from the Application and the applicant’s submissions on the summary hearing.

5The applicant identifies as an African Canadian.

6On November 26, 2015, the applicant applied for a position with the respondent as a caseworker in Employment and Social Services.

7On April 4, 2016, the applicant was invited to complete a written assessment at the respondent’s Human Resources Assessment Centre.

8The applicant completed the written assessment on April 6, 2016. The assessment was divided into three parts: basic computer literacy, data entry (Alpha) and a written test.

9On April 8, 2016, the applicant received an email from the respondent’s Human Resources Department advising him that he had been successful in the assessment process and inviting him to participate in an oral interview on April 16, 2016.

10On April 11, 2016, the applicant received a phone call from the respondent’s Human Resources Department advising him that the April 8, 2016 email was a mistake because he had not been successful in the assessment. The applicant was told that he had passed the computer and written assessment, but had failed the data entry test.

11The applicant disputes that he failed the data entry test. He states that he has worked with the New York Social Services and the City of Toronto’s Social Services. The City of Toronto’s program is American and as such, the applicant believes that there is no way that he could have failed that test.

12During the summary hearing, the applicant stated that his name is well known to the respondent because he is a social worker who advocates for his clients and files complaints with the respondent about how they are treated. He also files complaints with the police. The applicant submits there is systemic racism in our society and biases in the welfare system. The applicant submits that when he put his address on the test, his identity became known. The applicant submits further that there is a simple solution to this complaint: the respondent can produce the data entry test. The test will show whether he passed or failed. Finally, the applicant submits that all of the information is in the hands of the respondent and it would be unfair to dismiss the Application when this is so.

13The respondent submits the Application should be dismissed because it does not indicate any evidentiary link between the applicant not being hired and the grounds of discrimination claimed, other than the fact that the applicant is a member of a protected group. The only evidence in support of the Application is the applicant’s bald allegation that there has never been fair job hiring practices for blacks in Canada and the City of Toronto.

Analysis

Reasonable Prospect of Success

14The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure 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.

15The Tribunal has held on many occasions that it does not have jurisdiction over general claims of unfairness unrelated to the Code. Discrimination under the Code generally involves an allegation of adverse treatment because of one or more of the grounds listed in the Code. Adverse treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code was a factor in the treatment the applicant experienced.

16The 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.

17However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he was treated adversely. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the evidence the applicant is able to point to, either in his possession or evidence that may be reasonably available to him, which tend to support the applicant’s belief that he has experienced discrimination or reprisal under the Code. Although the applicant may point to evidence that support his allegations, there are no findings made at the summary hearing stage in relation to that evidence.

18The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the adverse treatment allegedly experienced by the applicant with the grounds of discrimination alleged in the Application. Sometimes, applicants are not in a position to point to any evidence beyond their own suspicions to support their belief that they have been discriminated or reprised against. In such a situation, applications may be found to have no reasonable prospect of success. 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.

19In this case, the applicant points to a number of circumstances which lead him to believe that his race was a factor in the decision not to proceed any further with his job application. The applicant does not accept that he failed the data entry test. The applicant relies on his experience working with the New York Social Services and the City of Toronto Social Services. The applicant believes that he passed the data entry test and it was when his identity as an advocate for his clients was discovered that the decision was made to deny his application.

20The Tribunal does not hear evidence on a summary hearing and as such, I cannot determine whether the applicant passed or failed the data entry test. In the absence of this evidence, it is difficult to assess the other inferences that the applicant asks the Tribunal to draw. The applicant believes that he is well known by the respondent because of his advocacy for his clients in the welfare system and with the police. In the absence of evidence, the nature of this advocacy and whether it is connected to a prohibited ground of discrimination cannot be determined. Because key evidence is in the hands of the respondent - the data entry test - this is a case where the complaint should not be dismissed on a summary basis. This finding does not prevent the respondent from making a summary hearing request at a later time.

ORDER

21The Application is not dismissed.

22The respondent is directed to advise the Tribunal within two weeks of the date of this Interim Decision whether it consents to mediation. If it does, the Application will be placed in the mediation queue. If it does not consent to mediation, the Application will be placed in the hearing queue.