Brooks v. LifeLabs LP, 2016 HRTO 995

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Celia Brooks

Applicant

-and-

LifeLabs LP and Carol Ford

Respondents

DECISION

Adjudicator: Mark Hart

Date: July 28, 2016

Citation: 2016 HRTO 995

Indexed as: Brooks v. LifeLabs LP

APPEARANCES

Celia Brooks, Applicant

Ayoob Khan, Counsel

LifeLabs LP and Carol Ford, Respondents

Rhonda Shirreff, Counsel

1This is an Application dated January 29, 2015, alleging discrimination by the respondents LifeLabs LP and Carol Ford with respect to contracts and employment because of race, colour, place of origin and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2In brief, the applicant was employed by the respondent company commencing in June 2000 until the termination of her employment on July 22, 2014. Following the termination of her employment, the applicant signed a Full and Final Release in favour of the respondent company releasing it from all claims against the respondent company and its employees, including any claims arising out of or in any way related to her employment with the respondent company. There is no dispute between the parties that this Release bars the applicant from alleging a violation of the Code by, or seeking any remedy from, the respondents in relation to events that occurred prior to the termination of the applicant’s employment.

3The principal issue raised in this proceeding relates to employment sought by the applicant following the termination of her employment with a third-party employer, Dynacare. The applicant states that she applied for a position at Dynacare and was interviewed for this position on October 22, 2014. The applicant states that she was contacted by Dynacare three days later and, from this conversation, understood that she had been offered the position subject to a reference check. The applicant states that she provided Dynacare with the names of two references. The applicant states that on October 28, 2014, she received a further call from Dynacare advising that a reference check had been completed with one of her references, but that the other person given as a reference had not returned the call. The applicant states that she then gave the name of her former manager, the personal respondent, at the respondent company as a reference.

4The applicant states that she followed up with Dynacare a few days later, and was told to call back the following week. The applicant states that when she did so, she was told, “Celia I am sorry based on what Carol your last manager told us about you, we have taken the job back from you and given to another”. The applicant states that she asked if she could re-apply, and was told, “yes, but now that we have this information on you we wouldn't hire you and I am the head person that all resumes go through, so you wouldn't get another interview”.

5The allegation raised as against the respondents in this proceeding is that the applicant’s race, colour, place of origin and/or ethnic origin was a factor in what the applicant believes was a negative and unfair reference given by the personal respondent as her former manager and which prevented the applicant from obtaining employment with Dynacare.

6A teleconference hearing in this matter was held on November 24, 2015 to address the preliminary issue of the impact of the Full and Final Release on the allegations raised in the Application and to assess whether the applicant’s allegations have a reasonable prospect of success. At the teleconference hearing, I noted that much in this case would turn on the evidence of the Dynacare representative who spoke with the personal respondent.

7Accordingly, by Case Assessment Direction dated November 24, 2015, I directed the applicant to request from Dynacare a statement from the person who took the reference from the personal respondent, setting out in her own words what she was told by the personal respondent regarding the applicant, together with a copy of any documents, notes or records of this discussion. I indicated that, if Dynacare was not willing to do this voluntarily, the applicant should serve and file a Request for Order during Proceedings (Form 10) requesting an order against Dynacare pursuant to Rules 1.7(p) and (q) to provide such statement and documents, on notice to Dynacare and the respondents.

8By letter dated November 30, 2015, counsel for the applicant wrote to the Dynacare representative to request the details of what the personal respondent told this person about the applicant in this person’s own words, together with copies of any documents or records she may have of this discussion.

9Applicant counsel received a response from Dynacare by letter dated December 9, 2015, in which Dynacare denied that the applicant had ever been offered a position and stated that her former employer had confirmed her employment position and tenure and had not said anything discriminatory or negative. Dynacare did not provide a statement in her own words from the Dynacare representative who had spoken with the applicant and the personal respondent, nor did Dynacare provide a copy of any documents or records it may have regarding the Dynacare representative’s discussion with the personal respondent.

10As a result, the applicant filed a Request for Order with this Tribunal seeking an order compelling Dynacare to produce and deliver a statement from the Dynacare representative who had checked the applicant’s references and any notes or records she may have of her discussions regarding the applicant. This Request for Order was served on Dynacare by fax on December 30, 2015.

11By Interim Decision dated February 8, 2016 (2016 HRTO 174), I ordered Dynacare to provide a statement in her own words from the Dynacare representative who had spoken with the applicant and checked her references regarding her discussions with or regarding the applicant about a potential position with Dynacare during the period from October 22, 2014 to in or about early November 2014, including any discussion she may have had with the personal respondent or any other person at LifeLabs LP regarding the applicant. I further ordered Dynacare to produce any documents or records of any nature, including typewritten or handwritten notes, regarding any such discussions with or regarding the applicant.

12This material was served on the parties and filed with the Tribunal on February 19, 2016. In accordance with my Interim Decision, the parties were afforded an opportunity to file submissions in writing regarding this material and its impact on the issues addressed at the teleconference hearing, and did so.

13The statement from the Dynacare representative indicates that she completed the pre-screening of the applicant’s résumé and contacted the applicant to move forward in the interviewing process. The Dynacare representative has provided a copy of the applicant’s résumé with her notes of her discussion with the applicant. The applicant attended an interview with the hiring manager on October 24, 2014 (incorrectly referenced as 2015 in the statement) and was selected to proceed to the reference check phase. The Dynacare representative states that she communicated to the applicant that she was moving forward in the recruitment process and that the next step would be the reference stage. Contrary to the applicant’s assertion, the Dynacare representative states that at no time did she indicate that the applicant was the final or successful candidate.

14The Dynacare representative states that the applicant was hesitant to provide a reference from her last employer, the respondent company. She states that the applicant provided two references, but only provided a reference from her last employer when one of the two original references could not be reached. She confirms that the applicant provided the personal respondent’s name and contact information.

15The Dynacare representative states that she contacted the personal respondent and was provided with a reference that confirmed the applicant’s employment. She states that at no time during the call did the personal respondent make any discriminatory comments. She attached a copy of her notes of her discussion with the personal respondent, which indicate that the personal respondent identified herself as the applicant’s former manager and confirmed the applicant’s employment as a laboratory technician. When asked how she would compare the applicant to others with the same roles or responsibilities, the personal respondent is recorded as saying that she could not answer that question. When asked why the applicant left the position, the personal respondent is recorded as saying that she could not disclose that. When asked if she would re-hire the applicant or work with her again, the personal respondent is recorded as saying that she could not answer that question.

16The Dynacare representative states that at the time she communicated to the applicant Dynacare’s decision not to proceed further with the applicant’s candidacy, she told the applicant that the hiring manager had decided to move forward with another candidate, and states that no further reasons were provided. This again is contrary to the applicant’s assertion about what she was told by the Dynacare representative, as set out above.

17The applicant submits that, from the documentation provided by Dynacare, it is clear that the personal respondent had refused to answer simple questions without any valid reason. That, strictly speaking, is not an accurate statement. The Response filed on behalf of the respondents states that the respondent company’s practice is only to confirm employment and not to provide additional information. This is a relatively common practice among employers. The letter of confirmation of employment provided to the applicant by the respondent company, which only confirms her employment, tenure, position and rate of pay, is consistent with this practice. So is the personal respondent’s refusal to provide information beyond confirming the applicant’s position and employment. One of the reasons that employers adopt such a practice is precisely to avoid the kinds of allegations raised by the applicant in the instant case and the potential for litigation or liability.

18The applicant further submits that the personal respondent’s negative reference caused Dynacare to change its mind about the applicant. That is not what is stated by the Dynacare representative. First, there is nothing in the statement submitted by the Dynacare representative or in the attached record of her discussion with the personal respondent that can fairly be characterized as a negative reference. Rather, the personal respondent confirmed the applicant’s employment and position and said she could not provide further information, which was in accordance with the respondent company’s stated practice. This, in my view, is more fairly characterized as a neutral reference, as opposed to a negative reference.

19Second, the Dynacare representative does not state that the personal respondent’s reference for the applicant changed Dynacare’s mind. Rather, she states that the hiring manager decided to move forward with another candidate.

20The applicant further submits that Dynacare’s statement that the applicant was not offered the position is not correct, and the applicant stands by her version of the facts as stated in the Application and as set out above.

21While I appreciate that the applicant disagrees with the statement provided by the Dynacare representative, the issue for me to consider is whether the applicant’s allegation against the respondents has any reasonable prospect of success in light of the material before me. In order to succeed before this Tribunal with her allegation against the respondents, the applicant would need to be able to prove that the personal respondent provided a negative reference to Dynacare because of the applicant’s race, colour, place of origin and/or ethnic origin.

22One of the things this Tribunal assesses on a summary hearing is what evidence an applicant has or that is reasonably available to her to prove the allegations at any in-person hearing. With regard to the alleged negative reference, the applicant herself has no direct evidence as to what the personal respondent said to the Dynacare representative. She can only testify, if permitted to do so, as to what the Dynacare representative told her was said by the personal respondent. In order to prove her case, the applicant would be required to call the Dynacare representative as a witness in support of the alleged negative reference. And, on the basis of the statement and documentation provided, the Dynacare representative would not support the applicant’s allegation that the personal respondent provided a negative reference. As a result, in light of the statement and documentation provided by the Dynacare representative, I find that the applicant has no reasonable prospect of proving the alleged negative reference.

23As I have found that, in light of the statement and documentation provided by the Dynacare representative, the applicant does not have a reasonable prospect of proving her allegation that the respondents discriminated against her by providing a negative reference to Dynacare, it is not necessary for me to address the respondents’ position that the terms of the Full and Final Release signed by the applicant prevent her from relying upon evidence regarding alleged acts of discrimination that she says occurred during the course of her employment with the respondent company.

ORDER

24For the foregoing reasons, the Application is dismissed as having no reasonable prospect of success.