Jongazma v. Saputo Dairy Products GP, 2016 HRTO 724

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ahmad Jongazma Applicant

-and-

Saputo Dairy Products GP and Scott Canon Respondents

DECISION

Adjudicator: Bruce Best Date: May 27, 2016 Citation: 2016 HRTO 724 Indexed as: Jongazma v. Saputo Dairy Products GP

APPEARANCES

Ahmed Jongazma, Applicant Ayoob Khan, Representative

Saputo Dairy Products GP and Scott Canon, Respondents Ranjan Agarwal, Counsel

Introduction

1This Application alleges discrimination with respect to employment and contracts because of race, colour, ancestry, place of origin and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c.H.19, as amended (the “Code”).

2The Application was deferred in March 2014 pending the completion of a related grievance arbitration proceeding. The Application was subsequently reactivated by the Tribunal in Interim Decision 2015 HRTO 690. The respondent subsequently sought to have the Application dismissed under s.45.1 on the basis that the arbitrator’s decision had appropriately dealt with the substance of the Application.

3By Case Assessment Direction (“CAD”), the Tribunal directed that a preliminary hearing be held to determine whether the Application should be dismissed under s.45.1. The CAD further directed that the hearing would address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

4As 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 or beliefs that support his assertions that the treatment he received had any connection to the grounds of race, colour, ancestry, place of origin, or ethnic origin cited in the Application.

5As I have found that the Application must be dismissed under Rule 19A, it is not necessary for me to address the request to dismiss the Application under s.45.1.

Summary Hearing Process

6The 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, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

7The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

8The 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 assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

9However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine whether the applicant is able to point to any information which tends to support his or her belief that he or she has 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 unfair treatment allegedly experienced by the applicant with the Code’s protections.

10As 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.

11Having 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

12The applicant, through a corporation of which he was the sole owner and director, had a contract with Neilson Dairy for the distribution of its products to retail outlets, working out of its Georgetown plant. Under the agreements in place with Neilson, the applicant and the other distributors were considered dependent contractors. The distributors were also represented by the Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Teamsters Local Union No. 647 (“the union”), who had negotiated a collective agreement with Neilson Dairy.

13The organizational respondent, Saputo, purchased Neilson Dairy in 2008. After the acquisition, Saputo implemented a number of changes to the former Neilson facilities on a rolling basis, and as a result required all their distributors to sign new distribution agreements. Changes to the Georgetown distribution facility began in late 2012. Pursuant to the collective agreement and a memorandum of understanding with the union, one of the changes was a switch from the dependent contractor model used by Neilson to an independent contractor model which Saputo used with its distributors in its existing operations elsewhere in the country. The individual respondent, Scott Cannon, was the Distribution Manager for Saputo starting in mid-2012.

14As part of the transition, the existing distributors were all notified in the fall of 2012 that they were required to obtain coverage from the Workplace Safety and Insurance Board (“WSIB”) as independent operators, and provide Saputo with a WSIB clearance certificate.

15As of May 2013, the applicant had not applied for a WSIB clearance certificate. At that time, Saputo gave him a further 4 weeks to do so, following which he applied for the certificate. The WSIB, however, ruled that he was a worker, not an independent operator, and refused to issue the certificate. As he was unable to obtain the certificate, Saputo was entitled under the collective agreement and MOU with the union to terminate the contract with the applicant, and it did so in June 2013.

16The applicant subsequently filed this Application alleging the termination was discriminatory, and the union filed a grievance challenging the dismissal on the basis that the termination had been in bad faith. The Application was deferred pending the outcome of the grievance, which went to arbitration. The arbitration decision held that Saputo terminated the contract because the applicant was unable to obtain the WSIB certificate, and that it was entitled to do so under the collective agreement and MOU. The arbitrator also awarded a severance payment pursuant to the terms of the collective agreement of $16,800 less deductions.

17The Application was reactivated following the arbitration decision, and, following the filing of the Response and the Reply, the Tribunal issued the CAD directing a preliminary hearing, which was held on February 8, 2016.

Applicant’s Allegations

18The applicant’s primary Code allegation is that the changes in his dealings with Saputo from late 2012 on, leading to the cancellation of his contract in June 2013, were due to the fact that he is Iranian.

19His primary basis for this claim is that, in their first meeting in September 2012, Mr. Cannon asked him “where he was from”. When the applicant responded that he was a Canadian citizen, he alleges that Mr. Cannon pressed him further on the issue of his cultural background, and the applicant told him he was originally from Iran. He claims that Mr. Cannon then said “there are no other Iranians working in distribution.” Mr. Cannon acknowledges that at the September 2012 meeting he asked the applicant where he was from, but says that he did so because part of his job was to get to know his distributors. He denies ‘pressing’ the applicant, and claims that the applicant responded voluntarily that he was originally from the Middle East. For the purposes of the summary hearing, however, I assume that the applicant’s version of this event is true.

20The changes with respect to the distribution arrangements at the Georgetown plant began shortly after this meeting. The applicant suggests that some of the changes adversely affected him, and he asserts that these changes were connected to Mr. Cannon having learned about his ethnic origin. He claims the best routes were given to the other operators, who were all Caucasian. He was, however, not able to point to any evidence that would substantiate these claims beyond his own beliefs and assumptions.

21He claims that two Caucasians were hired as shunt drivers, but that when he inquired about a similar position he was told it was not possible. No further details of this particular incident were provided. He did not say when it occurred or what evidence would support the claim that this was Code related, either in the Reply, or at the summary hearing.

22He claims that while he was not the only distributor who was unable to obtain the WSIB clearance certificate, he was the only racialized distributor, and was also the only one terminated in June 2013. At the summary hearing, he put forward documents related to another distributor, who he claims was also not able to obtain the WSIB clearance certificate, but was nonetheless permitted to continue operating.

23The respondent objected to the applicant relying on these documents, as the facts respecting this specific contractor were not raised in the Application or Reply, but were only provided pursuant to the disclosure instructions in the CAD.

24I permitted the applicant to refer to the documents. In my view, it is not improper for an applicant to raise evidence or documents at the summary hearing which were not specifically raised in the pleadings. In fact, giving an opportunity to an applicant to put such evidence forward is one of the purposes of a summary hearing.

25The fact that the respondent may not have had an opportunity to review the proposed evidence in detail is not in and of itself a reason to refuse to consider that evidence at the summary hearing stage. The decision of whether an application should be dismissed at a summary hearing is primarily based on the proposed evidence put forward by the applicant, and it will not be dismissed simply because the respondent has an alternate explanation for the events. The purpose of a summary hearing is not to give respondents an opportunity to refute proposed evidence (though they may of course make submissions), but rather to give an applicant an opportunity to indicate what evidence he or she intends to present to support his or her claim. As noted by the applicant’s representative, at a summary hearing the tribunal does not put proposed evidence to the same level of scrutiny as it would at a hearing on the merits. The issue is whether there is a reasonable prospect of success, not whether success is assured. On that basis, I permitted the applicant to rely on the documents.

26The applicant attempted to point to situations where the applicant and the other distributor were treated differently in similar situations. For example, the applicant submitted that he was required to provide his WSIB clearance certificate by June 21, 2013, but the other distributor was given until August 15, 2013 to do so. This, however, is not what the documents say. Rather, the other distributor apparently had a WSIB clearance certificate at that time (though it was subsequently revoked); the August 15, 2013 deadline was for him to sign the new contract, which he apparently did.

27The applicant also noted that the other distributor was given additional opportunities to obtain his renewed WSIB certificate in the fall of 2013. The documents show that after his previous WSIB certificate was not renewed, Saputo gave the other distributor 4 weeks’ notice to obtain a new WSIB certificate. I note that when the applicant’s contract was terminated, he had also been given 4 weeks’ notice by Saputo that he had to obtain the certificate.

28The documents do reveal that the other distributor was subsequently given a further opportunity to comply with the requirements, an opportunity not given to the applicant. However, the other distributor’s circumstances were not the same. For example, at the time he was given another chance, the other distributor had already signed a new distribution agreement, whereas when the applicant was terminated he had not. The applicant and the other distributor were treated differently because they were in different situations. The applicant’s position that his ethnic origin was an element is simply speculation, and in my view there is no reasonable prospect that the proposed evidence respecting the other distributor could allow the applicant to prove his allegations that the termination of his contract was discriminatory.

29As 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 her or his 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. In my view, none of the evidence proposed by the applicant supports his allegations that the treatment he received from the respondents was contrary to the Code.

Order

30For the above reasons, the Application is dismissed.