HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Emmersen Scott
Applicant
-and-
Mitchell Hoffman
Respondent
INTERIM DECISION
Adjudicator: Jacek Janczur
Indexed as: Scott v. Hoffman
APPEARANCES
Emmersen Scott, Applicant
Self-represented
Mitchell Hoffman, Respondent
Sari L. Springer, Counsel
Introduction
1This Application alleges discrimination with respect to employment 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”).
2By Case Assessment Direction (“CAD”), the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed because there appears to be no connection between the allegations against the respondent and a Code-protected ground. I heard the parties' submissions on July 17, 2017. For the reasons below I have decided that the Application should proceed.
FACTUAL BACKGROUND
3The applicant is a student who is pursuing an M.A. in economics at the University of Toronto.
4The applicant responded to an e-mail inviting applications for a position as a research assistant for the respondent.
5The respondent did not hire the applicant.
6After being advised that she had not been hired, the applicant made enquiries of the respondent with respect to her candidacy. She specifically wanted to know the difference between her qualifications and those of the successful applicant.
7The respondent did not respond to her enquiries.
8Because the respondent did not respond to her enquiries, the applicant contacted the university administration.
9Eventually, she had a meeting with the Director of Human Resources. She was advised, among other things, that the successful candidate had been a Ph.D. student with higher marks and that no M.A. student could compete successfully against a doctoral student for the position in question.
10The applicant subsequently learned, and this is not in dispute, that a student in the M.A. program had been hired. Eventually she learned that there had been nine applicants and that three had been hired.
11When learning of this, the applicant contacted the Director of Human Resources again, pointing out that an M.A. student had been the successful candidate.
12The Director of Human Resources acknowledged her email but did not address her concerns. The applicant then contacted the manager of the Director of Human Resources.
13After contacting the manager of the Director of Human Resources, she received another written communication from the Director of Human Resources in which he acknowledged that she had been qualified for the position, but that the successful candidates were chosen on the basis of a higher level of education, i.e. in a Ph.D. program, higher overall grades, experience, a greater number of academic awards, and previous research assistant experience.
14The respondent contends that it could not have discriminated against the applicant because the M.A. student with whom she compares herself is of the same racial and ethnic origin as the applicant.
Analysis and Decision
15The Tribunal’s jurisdiction is limited to enforcement of the Code. To fall within the Tribunal’s jurisdiction, an application must contain allegations that connect a respondent’s conduct to one or more prohibited grounds of discrimination. The Application and the applicant’s submissions deal with allegations of discrimination on the basis of race, colour, ancestry, place of origin, and ethnic origin.
16In order to proceed beyond the summary hearing stage, the applicant must be able to point to evidence she would be able to call in a hearing that could establish a link between the actions of the respondent and the prohibited grounds of race, colour, ancestry, place of origin, and ethnic origin cited in the Application.
17The Applicant identifies as Chinese. When she made enquiries as to why her candidacy had been unsuccessful, she was told that no Master’s student could have been successful. She then discovered, and this is not disputed by the respondent, that a Master’s student had been among the successful candidates.
18At the summary hearing stage, the allegations of the applicant are assumed to be true and the Tribunal must be sensitive to the limitations on the availability of evidence to the applicant. In addition, the Tribunal will not dismiss an application simply because the respondent has an alternative explanation of events.
19Assuming the allegations to be true, the explanation provided to the applicant by the Director of Human Resources for her failure to qualify for a position appears to be false or misleading.
20Evidence linking a respondent’s actions to a Code-protected ground can come in many forms. In this case, the provision of a false or misleading explanation to justify the respondent`s hiring decision could support an inference that the explanation was a pretext masking a discriminatory decision. The fact that one of the successful candidates shared the applicant's personal characteristics, as asserted by the respondent, does not preclude the possibility that the hiring decision was discriminatory.
21While it may be difficult for the applicant to prove discrimination if the Application proceeds to hearing, it cannot be said at this stage that the Application has no reasonable prospect of success.
order
22Accordingly, the Application will proceed. As both parties have agreed to mediation, that will be the next step in the Tribunal`s process.
Dated at Toronto, this 21st day of September, 2017.
“Signed by”
Jacek Janczur
Vice-chair