Carl Boakye v. Woodbridge Foam Corporation, 2016 HRTO 177

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carl Boakye

Applicant

-and-

Woodbridge Foam Corporation

Respondent

DECISION

Adjudicator: Mary Truemner

Date: February 9, 2016

Citation: 2016 HRTO 177

Indexed as: Boakye v. Woodbridge Foam Corporation

APPEARANCES

Carl Boakye, Applicant

Self-represented

Woodbridge Foam Corporation, Respondent

Sunil Kapur and Matthew Demeo, Counsel

Introduction

1The applicant filed an Application alleging that the respondents discriminated against him because of his ancestry contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The Application was deferred for some time, pending the outcome of a grievance proceeding related to the allegations in the Application. Upon reactivation, the Tribunal issued a Case Assessment Direction (“CAD”), directing that a summary hearing be held to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

3As explained more fully below, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code. Even if I accept all of the facts alleged by the applicant as true, the applicant has not been able to point to any evidence beyond his own suspicions that the respondent disciplined him and terminated his employment because of his ancestry.

Summary Hearing Process

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) 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 and usually before a Response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction or power is limited to claims of discrimination that are linked to the protections set out in the Code.

6The 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 or she experienced. The test of no reasonable prospect of success is determined by simply assuming the applicant’s version of events is true, without making a finding that they are true.

7However, assuming the applicant’s story about what happened is true, does not include accepting the applicant’s assumptions about why it happened, or why he was treated unfairly. The purpose of the summary hearing is to determine if the applicant is able to point to any information which tends to support his belief that he experienced discrimination under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant to connect the protections in the Code with the unfair treatment allegedly experienced by the applicant.

8As 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 a breach of the Code.

9Having set out the basic framework for determining whether an application should be dismissed because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

10The applicant staged and tended various production lines in the respondent’s factory. He describes in his Application several instances in 2014 when he was unfairly blamed for things going wrong in his work areas. The Application states that the reason the applicant believes his ancestry was why he was unfairly blamed is because “what history says concerning men that look like me is that we don’t know anything.” The applicant describes himself as Black, dark skinned and African-Canadian.

11The respondent filed a Response which denied the allegations and claimed that the reasons for disciplining the applicant and terminating his employment were performance-related only. The Response outlined the incidents in 2014 on the applicant’s production lines, and attached written warnings the respondent gave to the applicant for those incidents, for insubordination, and for not taking responsibility for his actions.

12At the Summary Hearing, the applicant did not offer any explanation of how he would prove that being blamed and treated unfairly was because of his ancestry as he claimed. He said that his physical appearance makes people think that he is a thug, and his supervisors must have seen him that way. He explained that he could not understand why he lasted almost two years, especially given that some people who were hired with him were let go soon after they began. He said that he talked back to his supervisors because they didn’t like the way he was performing, but, at the same time, they would tell him how to get better and the applicant would take notes and improve. He does not understand what happened, but it became clear to him near the end that his supervisors were looking for a reason to get rid of him, and they would not accept his explanations for problems on the production lines where he worked. He said that they realized that he was complaining about all of them not being fair, and they wanted to get rid of him before he made them look bad.

13Although the Application does not allege reprisal as defined by the Code, given his above comment, I asked the applicant if he ever complained to someone with the respondent that the allegedly unfair treatment was because of his ancestry or a Code ground. He answered that the Application to the Tribunal was the first time.

Findings

14Even if I accept the facts put forward by the applicant as true and provable, I must find that the Application has no reasonable prospect of success under the Code. The applicant provided no explanation about how he would prove that the disciplinary actions by the respondent and the termination of his employment were related to his ancestry.

15As noted above, for an Application to advance to a full hearing on the merits, an applicant must be able to point to some evidence, beyond his or her own suspicions, that could make out a link to the Code. The Tribunal has repeatedly said that an applicant’s belief, no matter how strongly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311. The applicant was unable to point to any evidence that would prove any violation of the Code, and I find that his allegations of discrimination because of ancestry are based merely upon the applicant’s belief. The applicant may keep his belief of why the respondent’s supervisors treated him as they did, but it is not enough for the Application to advance to a full hearing.

Order

16For the above reasons, the Application is dismissed.