HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Robert Leach
Applicant
-and-
Her Majesty the Queen as represented by the Ministry of Advanced Education and Skills Development
Respondent
INTERIM DECISION
Adjudicator: Douglas Sanderson
Indexed as: Leach v. Ontario (Advanced Education and Skills Development)
APPEARANCES
Robert Leach, Applicant
Self-represented
Ontario (Advanced Education and Skills Development), Respondent
Meagan Williams, Counsel
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”) alleging discrimination with respect to contracts because of race, sex, gender identity and reprisal.
Background
2The applicant alleges that an employment counsellor, KM at Northumberland Futures Development Corporation (“Northumberland”) made sexual advances to him. When, the applicant rebuffed these advances, KM delayed his application to the Ontario Self Employment Benefit (“OSEB”) program. The applicant states that Northumberland contracted with the respondent Ministry to administer the OSEB program. The applicant states that he complained of KM’s conduct to Northumberland and a representative of the Ministry, EA. The applicant states that he was not permitted to participate in the investigation and has not been informed of the result of the investigation. The applicant describes himself as a white male and alleges that KM, who is a First Nations woman and EA, who is a black woman, discriminated against him because he is a white man. The applicant asked EA to provide a different service provider for the program. Instead, EA advised that he had to leave the program and incorrectly characterized his exit as voluntary. The applicant states that he was removed from the program after complaining about harassment.
3The respondent filed a Response in which it submitted the Application should be dismissed. The respondent states that the applicant applied for and was granted funding under the OSEB program to assist him in starting a business, subject to complying with the requirements of the program. The respondent submits that this arrangement is not a contract, as the respondent received no consideration. The OSEB program was delivered by third party service providers, such as Northumberland. The respondent states that employees of such service providers are neither employees nor agents of the respondent. Third party service providers employed “OSEB Coordinators who were responsible for engaging with OSEB applicants to determine if they were eligible for the program and to assess whether their proposed businesses were suitable for OSEB. The OSEB Coordinators would make recommendations to the respondent which would then decide whether to approve applications and, if approved, to provide funding.
4The applicant applied to participate in the OSEB program through an OSEB Coordinator employed by Northumberland with a view to starting a paralegal business. The Ministry entered into an OSEB agreement in January 2015, with an effective date of December 31, 2014. One of the conditions of the OSEB program is that participants work full-time to develop their businesses and, accordingly, participants are limited to working a maximum of 20 hours per week. In April of 2015, the applicant made inquiries about exceeding the 20 hour limit because he had accepted employment exceeding the limit during the Pan Am Games. The applicant stated that the OSEB Coordinator gave him permission to exceed the limit, but never provided any documentation to support this claim. The respondent did not grant the applicant permission to exceed the 20 hour limit. In this time period, the applicant was also not complying with his obligations, including an on-site visit and business reporting.
5On July 6, 2015, representatives of the respondent met with the applicant to address concerns regarding the applicant’s participation in the OSEB program. At this meeting, the applicant alleged that the rules regarding part-time employment changed only after he complained of harassment by the OSEB Coordinator. The respondent’s representatives were not aware of this allegation and advised the applicant to follow up with Northumberland. The respondent’s representatives also offered the applicant an opportunity to provide them with a written account of his allegations, so that they could investigate and follow up with Northumberland. The applicant did not avail himself of this offer. The respondent states that the applicant chose to leave the program because the respondent’s representatives advised him that he must focus on his business plan on a full-time basis and because they could not approve his request to exceed the 20 hour per week limit in time for him to begin working at the Pan Am Games the next week.
Summary Hearing
6In a Case Assessment Direction dated February 28, 2017, the Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed, in whole or part, because it has no reasonable prospect of success. The Tribunal held the summary hearing by teleconference on July 18, 2017.
Submissions
7The applicant submitted that the respondent’s representative, EA, knew about his sexual harassment complaint with Northumberland because he had described all of his allegations to her when they met. The applicant advised EA that a manager at Northumberland was conducting an investigation. EA did not offer to investigate the matter. The applicant submitted that the respondent was vicariously liable for the acts of Northumberland’s employees, since the respondent had contracted with Northumberland to provide services. The applicant submitted that KM stated that as an OSEB Coordinator she was a representative of the respondent. The applicant submitted that KM told him that he was allowed to work at the Pan Am Games if the respondent approved. This arrangement changed after KM made sexual advances towards the applicant. The applicant asserted that there was no investigation of KM’s conduct. In his Reply, the applicant states that KM was acting on biases because she is single and divorced. The applicant submitted that he contacted both his local Member of Provincial Parliament and the responsible Minister, but received no reply.
8The applicant submitted that he was working as a security guard at Fleming CREW (“Fleming”), which is another provider of employment related services. The applicant asserted that after he complained about KM he was scheduled for fewer shifts. The applicant submitted that he believed there had been communication between the respondent and Fleming that resulted in the reduction in his shifts.
9I asked the applicant to address the other grounds of discrimination he relies upon. The applicant stated that KM is a First Nations person and was going through a divorce and EA is a black woman. The applicant stated that they must have been trying to degrade and harass him. The applicant stated that KM had asked him to use hand sanitizer at some point when they met. The applicant submitted that this might have been because KM thought he was gay and/or was disgusted by the appearance of his hands. The applicant submitted that two female participants in the OSEB program who were also paralegals were not subjected to similar behaviour. When asked how he knew this, the applicant stated that both completed the program.
10The respondent submitted that KM is employed by Northumberland, not the respondent. Therefore, the respondent is not vicariously liable for KM’s actions. The respondent submitted that the applicant ought to have filed an application against Northumberland to address KM’s alleged conduct. Nonetheless, the respondent offered to investigate the applicant’s concerns, but the applicant did not take it up.
11The respondent submitted that the balance of the applicant’s concerns amount to speculation and bare assertions. The respondent submitted that the fact that KM and EA are racialized women was not sufficient to establish that the applicant’s race and sex were factors in their actions towards him. Similarly, the mere fact that female paralegals completed the OSEB program is not evidence that the applicant experienced discrimination. The respondent submitted that the example given by the applicant regarding hand sanitizer was his own speculative interpretation and no basis for a Code breach. The respondent submitted that to the extent the applicant’s complaint is about the operation of the OSEB program it is outside the Tribunal’s jurisdiction.
Analysis and Decision
12Section 3 of the Code provides as follows:
Every person having legal capacity has a right to contract on equal terms without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.
13Section 7(3) of the Code provides as follows:
Every person has a right to be free from,
(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.
14Section 8 provided as follows:
Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.
15Section 46.3(1) provides as follows:
For the purposes of this Act, except subsection 2 (2), subsection 5 (2), section 7 and subsection 46.2 (1), any act or thing done or omitted to be done in the course of his or her employment by an officer, official, employee or agent of a corporation, trade union, trade or occupational association, unincorporated association or employers’ organization shall be deemed to be an act or thing done or omitted to be done by the corporation, trade union, trade or occupational association, unincorporated association or employers’ organization.
16Rule 19A.1 of the Tribunal’s Rules of Procedure provides:
The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an Application should be dismissed in whole or in part on the basis that there is no reasonable prospect that the Application or part of the Application will succeed.
17In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments regarding the concept of no reasonable prospect of success at paragraphs 8-10:
In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.
In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.
In considering what evidence is reasonably available to the 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 of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.
18The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201, and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, colour or ethnic origin. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced. In a summary hearing, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.
19At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.
20The applicant asserts that this Application concerns contracts under section 3 of the Code, although it appears that it may also engage services under section 1. Neither section 3 nor section 1 includes a prohibition regarding harassment, but section 7(3), provides protection from sexual advances, regardless of the social area engaged. However, allegations under section 7 of the Code are exempted from the deemed or vicarious liability provision set out in section 46.3(1). Consequently, neither Northumberland nor the respondent can have vicarious liability for KM’s alleged sexual advances.
21The Tribunal's jurisprudence indicates that an employer is required to take reasonable action to address complaints of harassment or discrimination for which it is not vicariously liable, failing which it may be in breach of its obligation to ensure a workplace free of discrimination and/or harassment. See, Laskowska v. Marineland of Canada Inc., 2005 HRTO 30. This obligation has been found to apply to allegations of harassment outside the social area of employment. See Welykyi v. Rouge Valley Co-operative Homes Inc., 2016 HRTO 299 at paragraph 165. In my view, this duty would extend to allegations of sexual solicitation with respect to contracts or services.
22As the respondent submitted, the threshold issue regarding the allegations of sexual solicitation and advances attributed to KM is whether the respondent had a duty to investigate KM’s actions. There is no dispute that KM was not an employee of the respondent when she allegedly made sexual advances to the applicant. In most cases, a respondent would not be obliged to investigate the actions of someone not in its employ. The applicant, however, states that KM made representations that she represented the respondent. More importantly, the respondent’s own submissions indicated that the delivery of the OSEB program was shared between it and third parties such as Northumberland. Significantly, the respondent states that EA, the respondent’s representative, offered to investigate the applicant’s allegations if he put them in writing, which implies that respondents had the authority and arguably a duty to investigate Northumberland. I appreciate that the respondent’s position is that the applicant did not take up this offer, which may indicate that the applicant did not expect the respondent to investigate. However, whether EA made the offer at all is disputed, which shall require a hearing to determine. In these circumstances, I cannot find that the applicant has no reasonable prospect of establishing that the respondent had a duty to investigate the applicant’s allegations regarding KM.
23On the other hand, the applicant’s other allegations race, sex, gender identity and reprisal have no reasonable prospect of success. The applicant did not point to evidence that he has or has reasonably available to him that would connect the respondent’s actions to his race, sex. I note that the protection against discrimination because of gender identity is intended to protect people whose gender identity does not conform to traditional social norms, e.g., transgender people. See, Vanderputten v. Seydaco Packaging Corp., 2012 HRTO 1977. The applicant did not describe himself as transgender or point to any evidence that would indicate that his gender identity was ever an issue when dealing with the respondent. Accordingly, there is no basis for his claim that he experienced discrimination because of gender identity. The applicant complained that the respondent did not treat him fairly regarding the OSEB program, e.g., by not allowing him to work for more than 20 hours. However, rather than point to evidence that would connect the respondent’s actions to this alleged unfairness, the applicant submitted only that EA and KM must have wanted to degrade and harass him because they are racialized women. The applicant stated that KM may have harboured biases against men because she is divorced and a single mother. The applicant submitted that KM may have thought he was gay because she asked him to use hand sanitizer. These submissions amount to no more than speculation and bald assertions and could not provide a proper basis for findings of discrimination. The fact that two women pursuing similar businesses completed the OSEB program is not proof that his inability to complete the program was discriminatory. As a result these allegations have no reasonable prospect of success.
24The ground of reprisal under section 8 of the Code requires an applicant to prove that a respondent intentionally retaliated or threatened retaliation because the applicant tried to enforce his or her Code rights or refused to violate the Code rights of another person. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 paragraph 23, and Noble v. York University, 2010 HRTO 878 at paragraph 31. The applicant states that he was forced out of the OSEB program after complaining about KM’s alleged sexual advances. The only evidence the applicant could point to was the fact that the respondent deemed him to have voluntarily left the program after he described KM’s behaviour to EA. The applicant pointed to no evidence that would indicate that the respondents removed him from the OSEB program because he raised human rights concerns or that his removal was intended to punish him for doing so. In light of the respondent’s position that EA offered to investigate his concerns, I find that it is unlikely that the respondent will provide the applicant with any evidence, e.g., through cross-examination, to support this reprisal claim. The applicant also asserted that he received fewer shifts working at Fleming CREW after he complained about KM’s alleged sexual advances. The basis for this claim was entirety speculative, as the applicant pointed to no evidence that the respondent contacted Fleming CREW and directed it to give the applicant fewer shifts. Consequently, the applicant described no evidence that the respondent was any way involved in the reduction in shifts he allegedly experienced or that the shift reduction was intended to punish him for making a complaint about a Northumberland employee. In these circumstances, the applicant’s reprisal claims have no reasonable prospect of success.
Order
25The Tribunal orders as follows:
The Application shall continue with respect to the allegations that the respondent failed to properly address the applicant’s complaint of sexual advances by KM. The issues to be addressed include whether the applicant made a complaint to the respondent, whether the respondent offered to investigate the applicant’s concerns and whether the respondent had a duty to investigate the alleged conduct of KM; and,
The remainder of the applicant’s allegations are dismissed.
Next Steps
26In its Response, the respondent indicated that it would be willing to participate in mediation. The applicant did not select mediation in his Application. Within 14 days of the date of this Interim Decision, the applicant shall advise the Tribunal if he wishes to participate in mediation. If the applicant agrees to mediation, the Tribunal shall schedule a mediation session. If he does not, the Tribunal shall schedule this matter for a one day hearing.
27I am not seized.
28Dated at Toronto, this 26th day of September, 2017.
“Signed By”
Douglas Sanderson
Vice-chair