E.C. v. Ready Employment Agency, 2016 HRTO 1630

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

E.C. Applicant

-and-

Ready Employment Agency (aka Ready Jobs) Respondent

DECISION

Adjudicator: Alison Renton Date: December 19, 2016 Citation: 2016 HRTO 1630 Indexed as: E.C. v. Ready Employment Agency

APPEARANCES

E.C., Applicant Self-represented

Ready Employment Agency (aka Ready Jobs), Respondent No one appearing

1The issue in this case is whether the respondent discriminated against the applicant when, on December 2, 2014, it placed an ad on Kijiji looking for a “responsible and reliable woman to fill receptionist position”. The applicant alleges that the ad discriminated against her on the basis of sex, gender identity and gender expression contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In a previous Interim Decision, 2015 HRTO 1342 (“the Interim Decision”), the Tribunal anonymized the applicant with the initials E.C.

3A hearing was scheduled for September 23, 2016. The applicant attended the hearing, but the respondent did not. The Tribunal held down the start of the hearing until 10:00 a.m., and with the respondent still not in attendance, the hearing commenced. The respondent did not attend the hearing or otherwise communicate with the Tribunal.

the respondent’s failure to participate in the tribunal’s process

4Initially, the Application was against two respondents, this respondent, an employment agency, and a company.

5This respondent has failed to participate in the Tribunal’s process.

6On May 1, 2015, the Tribunal issued a Notice of Application to the respondents and directed that the respondents file Responses. The company filed a Response, but this respondent did not. Upon receipt of the company’s Response, the applicant advised that she did not wish to proceed against the company. The company was removed as a respondent in the Interim Decision.

7On June 25, 2015, the Tribunal wrote to this respondent advising that an Application had been filed and that it had not filed a Response. The Tribunal directed this respondent to file a Response and warned about the consequences of failing to file a Response.

8On June 26, 2015, the Tribunal received an email from Readyemployment@yahoo.ca, requesting a copy of the Application. On the same day, the Tribunal responded to the email, and emailed this respondent a copy of the Application, a copy of its June 25, 2015 letter and other materials. This respondent has not contacted or communicated with the Tribunal since June 26, 2015.

9A Case Assessment Direction dated August 20, 2015 (“the CAD”) was sent to the respondent directing it to file a Response. The respondent did not do so.

10In the Interim Decision, the Tribunal determined that the respondent had notice of the proceeding and had refused to or chosen not to participate in the proceedings. The Tribunal ordered that the respondent was deemed: (1) to have accepted all the allegations in the Application; and (2) to have waived all rights with respect to further notice or participation in the proceeding. The Interim Decision was sent by regular mail and email and was not returned to the Tribunal as being undeliverable.

11A Notice of Hearing was issued by the Tribunal on May 13, 2016 advising that the hearing was scheduled for September 23, 2016. This was sent to this respondent by mail and email and was not returned to the Tribunal as being undeliverable. The Tribunal sent another copy of the Notice of Hearing by courier, with a signature required, on September 13, 2016. It was returned to the Tribunal by Purolator advising that the delivery was refused.

12In these circumstances, I am satisfied that the respondent had notice of the proceedings and the hearing and chose not to participate or attend.

the evidence

13As the respondent did not participate in the hearing, the evidence of the applicant was not contested. The applicant adopted the allegations in the Application as her evidence, and provided supplementary information.

14The applicant self-identifies as a male-to-female transsexual person. She was assigned male at birth, but is a naturally gender-variant person and has begun the process of formal gender transition to reconcile her legal gender and her gender expression with her psychological gender identity of female. Prior to filing the Application, the applicant changed her legal gender marker on her birth certificate from male to female. After filing her Application, she applied to change her legal name, with a male first name, to first and middle names that she felt are traditionally female. At the hearing, she produced her birth certificate and documentation verifying that her gender marker and name have legally been changed.

15The applicant saw an employment ad posted on Kijiji for a full-time receptionist position with a company located within the Greater Toronto Area. The job said, “Looking for responsible and reliable woman to fill receptionist position”. It described the duties required for the position and concluded with “Just so we dont waste each others time this position is available through a job agency…” [errors in the original]. Interested persons were directed to call a telephone number for more information and to forward a résumé to apply for the position. This posting was entered as an exhibit.

16The applicant believed that she had the requisite job skills for the position and was in the process of applying when the ad was removed from Kijiji. Because it was removed, she did not apply for it.

17The applicant said that she is not litigious and would usually not pursue an issue, but this caught her eye. The applicant asserts that the respondent did not directly discriminate against her, but did intend to discriminate against her and anyone who was not a female at birth, contrary to sections 13 and 23(1) of the Code. In support of her position, she contrasts the December job ad with one the respondent posted on November 17, 2014, for the same position with the same tasks and activities. That posting said, “Looking for responsible and reliable person to fill receptionist position”. The November posting was also entered as an exhibit. The inclusion of the word “woman” in the December posting makes it clear, the applicant submitted, that the respondent intended to discriminate.

18The applicant submits that the ground of discrimination is most likely “gender identity” rather than sex or gender expression. Some people may accept her as a woman and some may view her as a man in a dress. She spoke about the difficulties that she has had trying to find employment as a trans-woman.

the law and analysis

19While this respondent has chosen not to participate in the Tribunal’s proceedings, the applicant still has the burden of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not that a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53 at para. 46.

20In order to establish a case of discrimination, an applicant must prove that: (1) she was a member of a group protected by the Code; (2) that she was subjected to adverse treatment; and (3) that her sex, gender identity or gender expression were factors in the adverse treatment. See Shaw v. Phipps, 2010 ONSC 3884 at para. 47, upheld 2012 ONCA 155, and Peel Law Association v. Pieters, 2013 ONCA 396 at para. 56.

21This Application pertains to sections 5, 9, 13(1) and 23 of the Code. Those sections state:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of …. sex, … gender identity, gender expression ….

6. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

7. (1) A right under Part I is infringed by a person who publishes or displays before the public or causes the publication or display before the public of any notice, sign, symbol, emblem, or other similar representation that indicates the intention of the person to infringe a right under Part I or that is intended by the person to incite the infringement of a right under Part I.

8. (1) The right under section 5 to equal treatment with respect to employment is infringed where an invitation to apply for employment or an advertisement in connection with employment is published or displayed that directly or indirectly classifies or indicates qualification by a prohibited ground of discrimination.

(4) The right under section 5 to equal treatment with respect to employment is infringed where an employment agency discriminates against a person because of a prohibited ground of discrimination in receiving, classifying, disposing of or otherwise acting upon applications for its services or in referring an applicant or applicants to an employer or agent of an employer.

22Section 23(1) of the Code is the relevant provision in this case, not section 13 as the applicant submits, as section 23(1) is specific to advertisements for employment. Its purpose is to prevent employers, or employment agencies, from discriminating against prospective employees by classifying them or assessing their qualifications on the basis of prohibited grounds of employment. It states that the right to equal treatment with respect to employment under section 5 is infringed where there is an advertisement for employment that directly or indirectly indicates job qualifications by a prohibited ground of discrimination. See Visic v. Elia Associates Professional Corporation, 2011 HRTO 1230 at para. 66 and Cenanovic v. 2332489 Ontario Inc., 2014 HRTO 1811 at para. 35 (“Cenanovic”).

23Section 23 operates in tandem with section 5. In order to prove a violation of the Code, the applicant must establish that she has a characteristic protected from discrimination, has experienced adverse treatment, and the protected characteristic was a factor in the adverse treatment. See Moore v. British Columbia, 2012 SCC 61.

24“Gender identity” and “gender expression” were added to the Code in 2012 pursuant to Toby’s Act (Right to be Free from Discrimination and Harassment Because of Gender Identity or Gender Expression), 2012, which received Royal Assent on June 19, 2012. The purpose in adding these grounds to the Code was to address a perceived gap in the protection afforded to transgendered or other gender non-conforming persons. The Tribunal explained it in Browne v. Sudbury Integrated Nickel Operations, 2016 HRTO 62 at paras. 34 to 35 as:

I say that this was a perceived gap in the Code on the basis that the Commission in 2000 had taken the position that gender identity was already covered under the protected ground of sex, and the case law of this and other human rights tribunals already had recognized that discrimination against a person because they are transgendered or gender non-conforming was prohibited by the Code: see XY v. Ontario (Government and Consumer Services), 2012 HRTO 726 and the cases cited at para. 88. However, there was some uncertainty as to the appropriate protected ground to rely upon and there was not yet clear judicial consideration of this issue. As a result, Toby’s Law received the support of all parties in the Legislature to ensure beyond any doubt that the rights of transgendered and other gender non-conforming persons were protected under the Code.

That it was the Legislature’s intention to ensure the protection of the rights of transgendered and gender non-conforming persons by enacting Toby’s Law is abundantly clear from a review of Hansard and the legislative debates on this Act. In particular, repeated emphasis was placed on the severe social, economic and historical disadvantage experienced by this community. This severe disadvantage is reflected in the Commission’s Policy, which also states: The grounds [of gender identity and gender expression added as a result of Toby’s Act] make it clear that trans people and other gender non-conforming individuals are entitled to legal protections in the same way that people are protected from discrimination and harassment based on race, age, disability and all other prohibited grounds.’

25The Tribunal has recognized that transgendered persons have historically been a disadvantaged group who face extreme social stigma and prejudice in our society. See, for example, XY v. Ontario (Government and Consumer Services), 2012 HRTO 726 at para. 165.

26I accept that the applicant has characteristics protected from discrimination under the Code. She self-identifies as a male-to-female transsexual and, as such, falls under the protected grounds of sex, gender identity, and/or gender expression. I also accept that as a transgendered woman, she is part of a historically disadvantaged group.

27However, I cannot find that the applicant experienced adverse treatment by the respondent. The ad was looking for a “woman” and the applicant self-identifies as a woman. While I understand her concern that she may not be accepted as a woman by some, the non-acceptance may occur when a person meets the applicant. There was no meeting in this situation.

28Furthermore, there was no adverse impact as the applicant did not apply for the position before it was removed.

29This is similar to the situation in Cenanovic, above. In that case, the respondents placed an ad on Kijiji for a female server at their fast food restaurant. The applicant, a male, alleged that he was discriminated against because he was denied the opportunity to be considered for the position because of his male gender. The Tribunal, in Cenanovic, above, found that the respondents contravened the applicant’s rights under sections 5 and 23 of the Code when they advertised for female servers in the Kijiji ad, but that the applicant failed to establish the opportunity to be considered for the job because of his gender. The Tribunal accepted the respondents’ evidence that they did not hire anyone in response to the job ad, as the ad was placed on Kijiji after a male server was hired. The hearing was bifurcated on remedy.

30In the Cenanovic decision on remedy, 2015 HRTO 833, the Tribunal ultimately did not make an award for monetary compensation. At para. 14, it held that there was an absence of sufficient evidence from the applicant concerning the impact of the job ad coupled with the fact that, on the facts of that case, it was questionable as to whether the applicant was a bona fide job applicant.

31In the Application before me, I do not question the bona fide of the applicant and I accept that she was genuinely upset to see this job ad and an arguably qualified candidate. However, she was not prohibited or discouraged from applying because of sex, gender identity or gender expression, but rather, she did not apply because the job ad was removed from Kijiji. In light of my finding that the applicant was not subjected to adverse treatment, the Application is dismissed.