Patel v. Quick Shoe Shine Limited, 2016 HRTO 211

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ishack Ajam Patel

Applicant

-and-

Quick Shoe Shine Limited

Respondent

DECISION

Adjudicator: Naomi Overend

Date: February 17, 2016

Citation: 2016 HRTO 211

Indexed As: Patel v. Quick Shoe Shine Limited

APPEARANCES

Ishack Ajam Patel, Applicant

Alessandra Ottaviano, Counsel

Quick Shoe Shine Ltd., Respondent

Brian Silva, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect to employment because of family status and age. By Case Assessment Direction, the Tribunal directed that the matter be scheduled for a summary hearing by teleconference.

2The 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 it will succeed.

3For the reasons set out below, I find that there is no reasonable prospect that the applicant will be able to establish a link between the respondent’s alleged actions and the ground of age set out in the Application. Moreover, I find that the allegation of discrimination on the basis of family status is not within the Tribunal’s jurisdiction.

Factual Background

4The applicant worked for the respondent business, which was owned by his wife’s uncle. He alleges there was some family dispute over property commencing in 2011, which did not involve him directly but did involve his wife’s family. On January 3, 2014, he was fired. For the three years leading up to the termination of his job, the applicant alleges he was being eased out of his job. Another family member was hired to replace him. The applicant states that this person was younger than him.

5The respondent denies the applicant’s allegation that he was fired on account of a family dispute, but for the purposes of this summary hearing, I am deciding the issues on the basis that this assertion can be established. I would note that the respondent provided an employee list setting out the age of its employees, which the applicant accepts as accurate, save for the possible addition of one additional employee who the applicant thought worked part-time on weekends (when the applicant was not working). Including this additional employee, the respondent employed six employees older than the applicant and six employees who were younger than the applicant.

Decision and analysis

6The ground of “family status” is defined in s. 10(1) of the Code as the “status of being in a parent and child relationship.” The applicant acknowledges that he is not in a parent and child relationship with the owner of the company, nor is his wife, but submits that the Ontario Human Rights Commission Policy and Guideline on Discrimination Because of Family Status recommends that “employers, housing providers, and service providers recognize and accommodate a broader range of familial relationships than those described by the grounds of marital and family status.” I would note, parenthetically, that this comment is in relationship to caregivers. In any event, the recommendation in the Policy cannot broaden the jurisdiction of the Tribunal, which is limited to enforcing the protections enumerated in the Code.

7The mere fact that the applicant may have been replaced by someone younger is not sufficient to establish discrimination on the basis of age. When specifically asked what evidence he might call at a hearing to prove that age was a factor in the respondent’s decision to fire him, the applicant could not point to anything in his possession or that may be reasonably available to him. It was suggested that the applicant may be able to obtain evidence from the respondent in cross-examination, but in the absence of anything suggesting a possible link, it would be improper to use the Tribunal’s process to engage in this type of fishing expedition.

8In the absence of any jurisdiction to deal with the alleged differential treatment on the basis of the applicant’s familial relationship with the respondent’s owner, and in the absence of any proposed evidence which might prove a link between the ground of age and the allegations, I find that this Application has no reasonable prospect of success.

order

9The Application is dismissed as having no reasonable prospect of success.