Barsoum v. Oakport Media Group Inc., 2017 HRTO 1054

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Michael Barsoum

Applicant

-and-

Oakport Media Group Inc., Oakport Media Group Inc. o/a Snap Burlington, Oakport Media Group Inc. o/a Snapd Hamilton and Oakport Media Group o/a Snap Hamilton

Respondents

INTERIM DECISION

Adjudicator: Jo-Anne Pickel

Date: August 14, 2017

Citation: 2017 HRTO 1054

Indexed as: Barsoum v. Oakport Media Group Inc.

APPEARANCES

Michael Barsoum, Applicant

Anna Kalinichenko, Counsel

Oakport Media Group Inc., Oakport Media Group Inc. o/a Snap Burlington, Oakport Media Group Inc. o/a Snapd Hamilton and Oakport Media Group o/a Snap Hamilton, Respondent

Michael Feric, Representative

1In his Application, the applicant alleged that the respondents discriminated against him because of his race, colour, place of origin and ethnic origin contrary to the Human Rights Code, R.S.O. c. H. 19, as amended (the “Code”). Specifically, the applicant alleged that the respondents discriminated against him when they decided not to hire him for positions for which he had applied and been interviewed. By Request for Order During Proceedings (“RFOP”) filed subsequent to the Application, the applicant sought to amend his Application to, among other things, add particulars to the events outlined in the Application.

2By Case Assessment Direction (“CAD”), the Tribunal directed that the matter be scheduled for a summary hearing by teleconference. The parties were directed to address the issue of whether the Tribunal should dismiss the Application on the basis that it has no reasonable prospect of success under the Code, even if the applicant’s request to amend the Application were granted.

3The Tribunal held a summary hearing to hear oral submissions on these issues. Having considered the parties’ submissions and the applicable case law, I find that the Application cannot be dismissed at this stage. Although the applicant may face challenges in making out discrimination based on the alleged facts in this case, I cannot find that the Application stands no reasonable prospect of success.

request to amend application

4Before the Tribunal delivered the Application to the respondents, the applicant requested permission to amend the Application to add certain alleged facts, to amend the remedy sought in the Application and to add three companies that are related to the corporate respondent named in the Application.

5At the summary hearing, the respondents’ representative did not oppose the amendment request. In my view, it is appropriate to grant the request since it was made before the Tribunal delivered the Application to the respondents. Therefore, in my view, there is no prejudice to the respondents arising from the applicant’s short delay in requesting the amendments.

Summary Hearing Process

6The 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 the application will succeed.

7The Tribunal has stated in several decisions that it does not have jurisdiction to address general allegations of unfairness or adverse treatment unrelated to the Code. Many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant emotional and financial damage. However, the Tribunal’s jurisdiction is limited to claims of discrimination and reprisal under the Code. Discrimination under the Code generally involves an allegation of adverse treatment because of one or more of the grounds listed in the Code. Adverse treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code were a factor in the treatment the applicant experienced.

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 or uncontested evidence to the contrary.

9However, 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 if the applicant is able to point to any information which supports his or her belief that he or she has experienced discrimination or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with a ground protected under the Code.

10The question that the Tribunal must decide at a summary hearing is whether there is likely to direct or indirect evidence available to connect the adverse treatment allegedly experienced by the applicant with the grounds alleged in the application. 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 discrimination on the basis of one of the grounds alleged in the Code.

11Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background alleged in the application

12In light of my finding that the Application should not be dismissed at this preliminary stage, I provide only a brief summary of the factual background to the Application.

13The applicant identifies as Egyptian Canadian and he lives in Burlington Ontario. The respondents are related corporations that publish Snapd, a community based publication that is published in various communities in Ontario.

14In the fall of 2016, the respondent was hiring for several positions in its different offices, including the Burlington and Hamilton offices. The applicant applied for the position of Sales and Community Account Manager. The applicant made it very deep into the respondents’ application process. Indeed, he even alleges that the respondents made him an offer of employment that it later retracted. This is disputed by the respondents who submit that they never made an offer of employment to the applicant. Whether the respondents made a job offer to the applicant or not, my point is that the applicant got very far into the respondents’ application process in spite of their knowledge of his race, colour, ethnic origin and place of origin. However, the respondents ultimately did not hire the applicant citing concerns about whether he was a “good fit” for the organization. It is clear that the applicant was upset about what he alleges was a retracted offer of employment as he had quit his other job upon either receiving this alleged offer or, at least, positive indications about his chances of receiving an offer of employment.

finding

15Rule 19 A.6 of the Tribunal’s Rules of Procedure provides that, where the Tribunal decides not to dismiss the Application, it need not provide reasons. However, I find it appropriate to provide the following brief reasons for my conclusion that the applicant’s discrimination allegations cannot be dismissed at this stage.

16In the past, the Tribunal has dismissed Applications alleging racial discrimination in hiring if applicants cannot point to any evidence reasonably available to them that could establish discrimination. In considering what evidence is reasonably available to an applicant, the Tribunal must be attentive to the fact that, in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge or possession of a respondent.

17The Tribunal’s powers are limited in a summary hearing since these types of hearings do not involve the hearing of any evidence (e.g. testimony under oath). In my view, in order to address the applicant’s allegations and the respondents’ response to those allegations, a hearing on the merits must be held in which the Tribunal hears evidence from the parties.

18In this case, it is not disputed that the respondents’ owner asked the applicant where he was from in his interview with the applicant. The applicant submitted that, under the Tribunal’s case law, such a question would breach s. 23(2) of the Code which states as follows:

The right under section 5 to equal treatment with respect to employment is infringed where a form of application for employment is used or a written or oral inquiry is made of an applicant that directly or indirectly classifies or indicates qualifications by a prohibited ground of discrimination.

19At the very least, the issue of whether the respondents have breached s. 23(2) of the Code must continue in the Tribunal’s process. It is also not disputed that the respondents were concerned about whether the applicant would be a “good fit” for their organization. The Tribunal has held in the past that it must be careful to examine an employer’s assertions that an employee is not a “good fit” in order to ensure that no discriminatory reasons underlie this judgment.

20In this case, the applicant may face challenges in establishing that the respondents used the notion of “fit” as a pretext for discrimination given how far he made it into the respondents’ hiring process. To the extent that the applicant is upset about what he alleges is a retracted offer of employment, such a retraction does not amount to a violation of the Code unless it is linked to a protected ground of discrimination. In spite of the challenges the applicant may face in this case, I cannot find that the Application has no reasonable prospect of success due to the possible breach of s. 23(2) of the Code in this case.

ORder

21For the reasons set out above, the Tribunal orders as follows:

a. The applicant’s request to amend his Application is granted. The application is amended to include the additional alleged facts and the remedies set out in his April 11, 2017 RFOP. In addition, the three corporate respondents named in the RFOP are added as respondents to the Application;

b. The Application is not dismissed and will continue in the Tribunal’s process; and

c. The Respondents must file a full Response (Form 2) no later than 35 days from the date of this Interim Decision.