Gooden v. Durham District School Board et al., 2016 HRTO 44

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Rueben Gooden

Applicant

-and-

Durham District School Board (Durham Continuing Education), CSH Wynfield Retirement Residence Inc., The Regional Municipality of Durham (Income and Employment Support Division), Rob Harvey, Gaynor Blake, Anne LeBlanc, Lynn Bell and Diane Goldhawk

Respondents

DECISION

Adjudicator: Jay Sengupta

Date: January 12, 2016

Citation: 2016 HRTO 44

Indexed as: Gooden v. Durham District School Board et al.

APPEARANCES

Rueben Gooden, Applicant

Self-represented

Durham District School Board (Durham Continuing Education), Lynn Bell and Dianne Goldhawk, Respondents

Casey Dockendorff, Counsel

The Regional Municipality of Durham (income and Employment Support Division),Gaynor Blake and Anne LeBlanc, Respondents

Soojin Lee, Counsel

CSH Winfield Retirement Residence Inc. and Rob Harvey, Respondents

Pamela Leiper, Counsel

Introduction

1This Application alleges discrimination with respect to employment and services because of race, disability, age and that the applicant was subject to reprisal contrary to the Human Rights Code, R.S.O, 1990, c. H.19, as amended (“the Code”).

2The respondents, through their respective counsel, filed Requests for Summary Hearing, Form 26’s. The applicant did not file a Form 11, Response to a Request for Order During Proceedings but, instead, sent in an email requesting that a hearing be scheduled.

3The Tribunal directed that a preliminary hearing be held to determine whether this Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or part of the Application will succeed and, if the Application was to proceed, to address the respondents’ requests to remove the individual respondents.

4A half-day conference call hearing was held on October 14, 2015.

5Although the parties made submissions on whether the individual respondents should be removed, given my findings on the main issue of whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed, if is unnecessary for me to rule on this issue.

6For the reasons that follow, this Application is dismissed.

NO REASONABLE PROSPECT THAT THE APPLICATION OR PART OF THE APPLICATION WILL SUCCEED

7In the instant case, the applicant has alleged that he was subjected to differential treatment on the basis of Code grounds that resulted in disadvantage to him.

8The applicant was a student in the respondent school board’s continuing education department. He was offered a co-op placement at the respondent retirement residence’s maintenance department and received employment counselling services from the respondent regional municipality. He has also named as personal respondents a number of people who interacted with him in their professional capacities at the three organizations.

9Specifically, he asserts that his teachers and employment counsellors did not tell him in advance that he would need to get pre-employment testing for tuberculosis, but that he was made to undergo the testing because of his age and because he is a black man who originates from a Caribbean country.

10He also asserts that he was treated with disrespect by his supervisor who treated him like, in the applicant’s words, “he had a mental disability”, because he was slow at changing light bulbs and made a mess while painting. He says his supervisor made a comment that “at the end of the day, I feel like killing someone”. Finally, he says that his supervisor took a vacation when he knew the applicant needed additional hours to complete his program.

11When he reported the supervisor’s comment, which he interpreted as a threat, he was not taken seriously and, according to the applicant, his employment counsellors laughed and said the supervisor had been joking. He made a complaint to the region that was also not dealt with.

12He also asserts that he was told he was “high risk” and not allowed to clean in certain areas. Then his employers changed their story and said the area was high risk, which he did not believe. He attributes the restriction regarding areas where he could not work to the fact that he is a black man and believes that he was treated as though he was a thief because of his colour.

13The applicant says that he was denied letters of recommendation and that one of his counsellors hid from him during the graduation ceremony and did not congratulate him personally. He attributes this to the fact that he is a black man and was considered a danger to others and was treated unfairly as a result.

14In the instant case, the applicant, by his own admission, received several letters of reference, completed his program, receiving a grade of 86% and obtained a certificate for the program in question.

15Even assuming without finding that the applicant was unexpectedly required to undergo pre-employment testing for tuberculosis before being able to work at a retirement home, that his supervisor treated him badly, made what he considered a threatening comment, his counsellors laughed, a complaint about a worker at the region was not accepted and one of his teachers avoided him and did not congratulate him upon his graduation, there is no link between these events and the grounds under the Code identified by the applicant other than his own speculation.

16The Tribunal does not have the power to deal with or remedy general allegations of unfairness. The Tribunal only has the power to deal with discrimination, harassment or reprisal that is prohibited by the Code. Discrimination in the legal sense requires proof that the respondents' adverse treatment of the applicant is based, at least in part, on the applicant’s race, age, disability or other prohibited ground under the Code. In other words, the prohibited ground must be connected to the adverse treatment.

17At a summary hearing, unless there is some clear evidence to the contrary, the Tribunal assumes the facts alleged by the applicant to be true. For example, if an applicant alleges he or she was fired from his or her employment or denied a service, the Tribunal will assume this to be true for the purposes of the summary hearing. However, accepting that someone experienced adverse treatment does not include accepting the applicant’s assumptions or belief about why they were treated this way.

18The purpose of the summary hearing is to determine if there is evidence available to support the applicant’s belief that the disadvantageous treatment he experienced arises from discrimination. In order to warrant proceeding to a full hearing of the merits some evidence must exist, which goes beyond the applicant’s feeling or belief that a prohibited ground of discrimination played a role in what he/she experienced.

19The applicant has not persuaded me that any evidence exists to establish such a connection beyond his strongly held belief that any and all disadvantage that he experienced is attributable to differential treatment because of the Code grounds he has identified. Nor is there evidence available to him of reprisal contrary to the Code.

20Accordingly, the Application is dismissed.