Konesavarathan v. Ontario Public Interest Research Group – Guelph, 2017 HRTO 1256

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kovarthanan Konesavarathan

Applicant

-and-

Ontario Public Interest Research Group - Guelph or University of Guelph

Respondent

DECISION

Adjudicator: Leslie Reaume

Date: September 25, 2017

Citation: 2017 HRTO 1256

Indexed As: Konesavarathan v. Ontario Public Interest Research Group – Guelph

APPEARANCES

Kovarthanan Konasavarathan, Applicant

Self-represented

Ontario Public Interest Research Group - Guelph or University of Guelph, Respondent

Robert Tarantino, Counsel

1This Application was filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to employment on the basis of race, colour, ethnic origin, place of origin, disability, sex and association with a person identified with one of those grounds.

2The applicant self-identifies with the prohibited grounds cited in the Application as a man who is dark-skinned, South Asian, Tamil and originally from Sri Lanka. He also describes his disability as an “articulation issue.” He is a member of the respondent organization and applied to become a member of the respondent’s voluntary board of directors. The applicant was one of three candidates for two positions on the board. He was interviewed but not chosen for one of the positions, a decision which he alleges to be discriminatory.

3The applicant argues that in choosing two women, both racialized, one of whom also self-identifies as queer, the respondent inappropriately relied on considerations associated with gender and race and valued the gender and race of the successful candidates more than the applicant’s gender and race.

4In a Case Assessment Direction (“CAD”) dated October 14, 2016, the Tribunal set this matter for a summary hearing. The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The explanation set out in the CAD for holding a summary hearing for this Application is that it appears that the applicant may be unable to prove that there is a connection between what the respondent is alleged to have done, and the grounds cited in the Application. In other words, although the applicant may believe that the conduct of the respondent is connected to the grounds, it is not clear that there is evidence available to the applicant to prove that connection. The focus of the summary hearing is on the evidence the applicant has or may be able to obtain to support his beliefs.

5The Tribunal is not empowered to remedy general allegations of unfairness in areas such as employment, services or accommodation. Unfair treatment is not discrimination unless there is proof that the personal characteristic was a factor in the treatment the applicant experienced.

6The test that is applied at this stage is whether an application should be dismissed in whole or in part because there is no reasonable prospect that the applicant will be able to prove discrimination. To establish discrimination under the Code requires proof of some form of disadvantage which is based, at least in part, on ground under the Code. In other words, the ground must somehow be a factor in treatment experienced by the applicant. Where an application appears to be missing this connection, or where it would assist the Tribunal in understanding the allegations, the parties are asked to participate in a summary hearing by teleconference.

7At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. The test of no reasonable prospect of success is determined by assuming the applicant’s allegations are true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts. Accepting that someone experienced adverse treatment does not include accepting the applicant’s assumptions about why they were treated this way. The purpose of the summary hearing is to determine if there is evidence in the applicant’s possession or that may be reasonably available to the applicant to support the applicant’s belief that they have experienced discrimination.

8The primary focus in the summary hearing is on the applicant’s submissions. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events. The Tribunal is mindful of the fact that in some cases an application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.

9There is no evidentiary or legal burden of proof assigned to either party in a summary hearing and as a result, it is not up to the applicant to demonstrate that an application has a reasonable prospect of success. Summary hearings generally occur at an early stage in the process prior to the exchange of disclosure. It is the role of the Tribunal to examine the allegations, apply its expertise, and determine whether or not an application should move ahead in the hearing process or be dismissed on the basis of no reasonable prospect of success.

10The parties participated in the summary hearing by teleconference on May 9, 2017 and filed materials in advance of the hearing. I considered all of their oral and written submissions in determining this matter.

THE APPLICANT’S POSITION

11The applicant indicates that he was interviewed for a board position in January 2016. On February 17, 2016, the applicant wrote to one of the board members who participated in the interview with the following email:

I have not heard back from both of you after the interview. I believe you have already selected a candidate for the Board member position. Please remember I asked you to provide me with the non-discriminatory reasons when you make the hiring decision. So, please provide me with the non-discriminatory reason for rejecting my application and for accepting the application of the successful candidate.

12The email of February 17, 2016 contains the applicant’s third reference to human rights proceedings. Prior to his interview the applicant mentioned in an email the fact that he was in the midst of filing legal documents with the Tribunal in another matter. The applicant then put the respondent on notice at the time of his interview that if he was not chosen he would expect the respondent to provide him with a non-discriminatory reason for that decision.

13The applicant received a response on March 9, 2016 explaining that the respondent had previously written the applicant about the results of the competition. It appears that the applicant did not receive that email. In the March 9, 2016 email, the respondent addresses the applicant’s question as follows:

To reiterate, ultimately, it is the case that OPIRG’s mandate is heavily oriented towards anti-oppressive (not only non-discriminatory) practices and values. The other candidates who applied were simple able to articulate an anti-oppressive standpoint that was more inline with the organizational mandate and mission statement. We also heavily value lived experiences of oppression (gender and race based) as an asset. Both of our other applicants were able to articulate the ways in which their identities, experiences, and knowledge together help to produce an anti-oppressive approach, while at the same time, recognizing the intersectional realities of oppression, and thus, the care that needs to be taken at all times to produce accountable space in social justice organizations, regardless of one’s positionality.

We truly valued your time and interest in our board, and we were genuinely impressed with the work that you do and we hope to continue to nurture that relationship in the future.

14The applicant replied with an email on March 9, 2016. The email contained the following reference line: “Re: Please provide me with the non-discriminatory reasons for your hiring decision on the Board member position _ Law Suit Alert”. In the text of the email the applicant states:

Based on your response, I found the following issues:

You must have preset interview questions and answers guide to apply equally to all candidates. We answered based on your questions. It looks like you gave race and gender based extra consideration for candidates that you preferred to select. You assigned less value to my race and gender based lived experience of oppression.

Race and gender are code protected characteristics. Questions related to race and gender are not normally asked in the interviews. However, an exception for this is special employment. Even in this case, those race and gender related questions should be asked similarly from every candidates. I do not recall you asking me such questions.

In addition, it looks like you assessed the ability to articulate. I do not know when doing so if you accommodated the intersectoral barriers of my race and disability and found even after the accommodation, I was not able to perform the task in question.

These are serious issues. It need to be fully investigated and resolved. You need to disclose the interview notes of all candidates, the criteria you used to select, and the decision making process. I seek your cooperation in this regard. If you do not cooperate with me, I will file a Human Rights application against you.

You can either choose to cooperate with me in the investigation and remedy me if I find any discrimination in your hiring process and decision or choose to resolve this matter through a Human Rights application. If I do not receive any response by the end of March, thereafter, I will file an application with the Human Rights Tribunal of Ontario, in which I will name you as the respondent. If you think someone else or the university should be named instead of you or in addition to you as respondents, please advise me their names and contact information.

15The respondent emailed on March 10, 2016 suggesting a meeting with the applicant offering a number of times. The applicant responded to the email as follows:

Thanks for your email. I can do Monday 1:00 pm to 2:00 pm. Please be clear about what you want to talk to me. I do not have time to spend on hearing just denials and resistance. If you want to show me your evidence (interview notes and answer guide) that you did not discrimination me in the process and in the actual decision, we can meet. If it is going to be your words against my words, it is not going to be very much helpful to both of us. If you are not able to use the opportunity that I give you to resolve the issue internally, I will have to go with my second choice.

16The applicant alleges that he was not selected because of a preference on the part of the respondent for “their desired race and gender.” The applicant argues that this outcome is indicative of a preference on the part of the respondent for certain genders and races, although this is difficult to reconcile with another argument made by the applicant that the board has historically lacked diversity. He argues that the respondent board is “composed predominantly of white people” apart from “one person from the black community only for tokenism.” The applicant argues that the Tribunal should conduct a full hearing so that he can examine the evidence of the respondent to determine whether or not the respondent’s explanation is credible.

17In his Application the applicant described the effect of the experience which he alleges to be discriminatory:

It created emotional distress and deterioration of my mental condition. I was not respected as a human being. My inherent dignity and self-worth was insulted. I was discredited. I was not equally treated. I was forced to feel inferior and worthless. All my intersecting Code grounds were affected to enhance my sufferings. I was worried that I was not able to equally participate in and contribute to the society.

THE RESPONDENT’S POSITION

18The respondent denies the applicant’s allegations of discrimination. The respondent is a not-for-profit organization concerned with issues of environmental protection and social justice. The respondent states that the same pre-set questions were asked of each candidate including a question about their willingness to participate in anti-oppression training. All of the documents relevant to the recruitment process have been disclosed to the applicant and the Tribunal. I have not evaluated those documents in any way. I simply note that the respondent has made efforts to explain its decision to the applicant, including releasing the documents relevant to the recruitment process.

19The respondent argues that the applicant is unable to point to any evidence which would support his belief that disability, race, colour, ethnic origin, place of origin, sex and or association were factors in why he was not selected for a board position. The respondent argues that the applicant requested and received an explanation about why the other two candidates were chosen and that the applicant’s allegations are based solely on his own perceptions and speculations. He speculates, for example, that the candidates were asked different questions than he was at the interview, an allegation which the respondent denies. The respondent also points out that the applicant did not indicate that he had a disability of any kind or that he required accommodation at any point in the process. The reference to the successful candidate’s ability to “articulate” was a reference to the content of their answers not their physical ability to speak.

ANALYSIS

20The applicant was not selected for a position on the Board. Two women were selected, both of whom were racialized, one of whom identifies as queer. These are the only facts the applicant has to rely on. Everything else is based on speculation. He put the respondent on notice early in the recruitment process that he would be expecting a non-discriminatory explanation in the event that he was not chosen. The respondent’s attempts to provide the applicant with an explanation were rebuffed on the basis of the applicant’s assumptions. The underlying assumption in his approach is that the onus is on the respondent to demonstrate that the decision was made for non-discriminatory reasons. In fact, at a hearing before the Tribunal, the onus is on the applicant to demonstrate, with clear and cogent evidence, that one or all of the prohibited grounds he relies on were factors in the respondent’s decision to hire other candidates for the two available board positions. At a summary hearing, there is no onus because the Tribunal does not evaluate the evidence. However, the applicant must be able to point to evidence in his possession or that may be reasonably available to him to support his allegations. In this case, his allegations are based on speculation rather than evidence.

21I recognize that proving discrimination in a recruitment process is particularly difficult because the respondent is in possession of most of the material the applicant would need to prove his case. However, even in those cases, there must be some basis for alleging discrimination. In this case the applicant is unable to explain how the selection of the other candidates raises a concern that the recruitment process was somehow tainted by discrimination.

22Fundamentally, the applicant is unhappy that he was not selected for a board position. His allegations are based on the belief that the respondent has the onus to prove to him that the recruitment process was devoid of discrimination. Remarkably, despite the applicant’s conduct in threatening human rights proceedings, the respondent has reached out several times to try and explain the basis of its decision, including releasing to the applicant all of the documents relevant to the recruitment process. The Tribunal has no jurisdiction over general allegations of unfairness, unless the applicant is able to point to evidence in his possession or that may be reasonably available to him to support his allegations of discrimination. Even if the Tribunal accepted the applicant’s perception that he was treated unfairly, he can point to no evidence which would support his perception that he experienced discrimination.

23The applicant also accuses the Tribunal of engaging in “gross oppressive” conduct by setting this matter down for a summary hearing. He accuses the Tribunal, without any foundation, of giving preferential treatment to the respondents because they are represented by counsel. He also accuses counsel for the respondent, again, without any foundation, of incompetent practice. The applicant also made submissions in relation to section 24(1) of the Code in his submissions despite the fact that this section is not relevant to this matter. All of these issues arise from the same lack of understanding about the role of the Tribunal as the allegations against the respondent. There is no indication that the Tribunal, in controlling its own processes, followed anything other than the normal process for determining whether to hold a summary hearing. The Tribunal’s CAD provided the applicant with a full explanation of the summary hearing process to assist the applicant in his preparation for the hearing.

24Accepting the applicant’s factual allegations as true, which I am required to do at this stage, I find that there is no reasonable prospect that he can succeed under the Code against any of the respondents for the reasons that follow. The applicant is unable to point to evidence in his possession or that would be reasonably available to him, to support his speculation that his race, colour, ethnic origin, place of origin, disability, sex or association with a person identified with one of those grounds were factors in the decision not to offer the applicant a position on the Board.

25Accordingly, the Application is dismissed.