Legere v. Storm Roll & Coil Repair Limited, 2016 HRTO 1689

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leo Legere

Applicant

-and-

Storm Roll & Coil Repair Limited,

Outotec (Canada) Ltd. and ArcelorMittal Dofasco

Respondents

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: December 29, 2016

Citation: 2016 HRTO 1689

Indexed as: Legere v. Storm Roll & Coil Repair Limited

APPEARANCES

Leo Legere, Applicant

Self-represented

Storm Roll & Coil Repair Limited, Respondent

Moira Wallace, Counsel

Outotec (Canada) Ltd., Respondent

Jennifer Fantini, Counsel

ArcelorMittal Dofasco, Respondent

Kathryn Bird, Counsel

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 that the respondent Storm Roll & Coil Repair Limited (“Storm”), failed to hire the applicant because of race, age and association with a person identified by a prohibited ground.

2The applicant filed this Application against the respondent Storm only. Outotec Canada Ltd. (“Outotec”) and ArcelorMittal Dofasco (“AMD”) were identified as potential respondents by the respondent Storm.

3Outotec was contracted by AMD until November 2014 to provide coil repair and other services. The applicant was employed by the respondent Outotec for 12 years. In the Application, the applicant describes his work in coil repair and as a team leader trainer, labourer and scheduler. He also indicates that he served as the main contact between Outotec and AMD. In early 2014, Outotec advised AMD that it would not continue to provide those services under its contract beyond October 2014. The applicant alleges that he and eight other employees lost their jobs as a result.

4AMD then contracted with Storm for coil repair services to commence November 1, 2014. The applicant alleges that all of the employees previously employed in coil repair with Outotec were subsequently employed by Storm, except for the applicant himself. The applicant alleges that he was surprised by this turn of events because he had been told by his contact at AMD to tell the other Outotec employees that Storm was taking over the contract and would be hiring all of the displaced Outotec employees. The applicant alleges that those assurances were repeated a number of times.

5Outotec argues that it had no role in the employment decisions made by Storm. Similarly, AMD argues that it had no control or influence of the hiring, recruitment or employment decisions of Storm. AMD also denies that it was in a position to make representations regarding the future employment prospects of former Outotec employees. In any event, the employee who is alleged to have spoken with the applicant would be available to testify if the Tribunal considered his evidence relevant to the allegations of discrimination.

6Storm acknowledges that it arranged a meeting with the applicant hoping to get an opportunity to meet individually with each Outotec employee to assess their suitability for employment with Storm. Storm argues that the applicant failed to follow through in connecting the employees with Storm, and as a result, it was determined that he was not a good fit for the company. The respondent denies that discrimination on any prohibited ground played a role in the determination not to hire the applicant and provides some background in the Response on the diversity of its workforce.

7The applicant denies these allegations and alleges that he contacted each employee and confirmed their willingness to work with Storm. In his Application the applicant also provided information on the age of each employee hired by Storm. According to his chart, the applicant is between 50 and 60 years of age, one employee is between 30 and 40 years of age and seven others are be between 20 and 30 years of age.

8By Case Assessment Direction (“CAD”) dated May 20, 2016, the Tribunal set this matter for a Summary Hearing. The CAD indicated that the Tribunal would hear submissions in relation to the test of “no reasonable prospect of success”.

9The 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.

10The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation. Unfair treatment is not discrimination unless there is proof that the personal characteristic was a factor in the treatment the applicant experienced.

11The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because there is no reasonable prospect that the applicant will be able to prove discrimination. To establish discrimination under the Code requires proof of adverse or unfair treatment which is based, in whole or in part, on a person’s race, gender, disability or other prohibited ground under the Code. In other words, the ground must somehow be a factor in the adverse treatment. Where an application appears to be missing this connection, or where it would assist the Tribunal in understanding the allegations, the parties are asked to participate in a summary hearing by teleconference. The Tribunal may schedule a summary hearing on its own initiative or in response to a request from a respondent.

12At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s allegations are true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts.

13Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if there is evidence the applicant can point to or that may be reasonably available to support the applicant’s belief that he/she has experienced discrimination and/or reprisal.

14The primary focus in the summary hearing is on the applicant’s submissions. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events. The Tribunal is mindful of the fact that in some cases an application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.

15There is no evidentiary or legal burden of proof assigned to either party in a summary hearing and as a result, it is not up to the applicant to demonstrate that an application has a reasonable prospect of success. Summary hearings generally occur at an early stage in the process prior to the exchange of disclosure and are determined on the basis that the applicant’s allegations are accepted as true. It is the role of the Tribunal to examine the allegations, apply its expertise, and determine whether or not an application should move ahead in the hearing process or be dismissed for no reasonable prospect of success. The applicant’s role is to explain, by referring to evidence in his or her possession or evidence that may be reasonably available to the applicant, how he or she intends to prove that there is a connection between the conduct of the respondent and the prohibited grounds cited in the application.

16The parties participated in the summary hearing by teleconference on September 30, 2016.

17I have considered the submissions of the parties and their written materials. There is no allegation that either Outotec or AMD engaged in discrimination against the applicant. Only Storm was named as a respondent in the original Application. Outotec and AMD are involved in the factual background, but the discrimination allegation relates to the failure to hire the applicant by Storm. For that reason, there is no reasonable prospect that the Application will succeed against Outotec and AMD and they should be removed from the Application.

18The allegations against Storm require evidence and analysis by the hearing adjudicator to resolve. The purpose of a summary hearing is to enhance the fairness of the Tribunal’s process for both applicants and respondents. That purpose is not achieved by dismissing applications because the allegations are difficult to prove, or the respondent is likely to be able to prove a defence. The test of no reasonable prospect of success should be considered in only the clearest of cases since it can significantly delay the hearing on the merits and add procedural layers to the proceeding and additional burdens on the parties.

19Accepting the applicant’s allegations as true, I cannot find that there is no reasonable prospect that he can succeed under the Code on the prohibited ground of age against Storm. However, there is no evidence which the applicant can point to which would reasonably be available to him to prove allegations of discrimination on any other ground.

20By making this finding I am not suggesting that the Application is likely to be successful. In fact, the allegations will be very difficult to prove. However, at this stage in the process, it would be premature to dispose of this Application given the fact that the applicant has established that there will be some evidence which is reasonably available to him which could support his allegations of discrimination on the basis of age. Pursuant to Rule 19A.6, I do not consider it necessary or useful to provide further reasons. The presiding adjudicator will be in the best position to determine the scope of the evidence and issues at the hearing.

21Accordingly, the Application will continue to the next stage in the hearing process against Storm on the basis of the prohibited ground of age.

Directions

22I make the following directions:

• Outotec and AMD will be removed as respondents to this Application. All future decisions and correspondence from the Tribunal will be amended accordingly;

• The Application will continue against the respondent Storm on the basis of the prohibited ground of age;

• The Registrar is requested to set this Application for a two-day hearing; and,

• If the parties wish to participate in mediation they may advise the Registrar within 14 days of the date of this Interim Decision.

23I am not seized of this matter.

Dated at Toronto, this 29^th day of December, 2016.

“Signed by”

_________________________________

Leslie Reaume

Vice-chair