Cherukuri v. Diversified Transportation Ltd. o/a Milton Transit, 2017 HRTO 1365

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aswani Cherukuri Applicant

-and-

Diversified Transportation Ltd. o/a Milton Transit Respondent

DECISION

Adjudicator: Jennifer Scott

Date: October 17, 2017

Indexed as: Cherukuri v. Diversified Transportation Ltd. o/a Milton Transit

APPEARANCES

Aswani Cherukuri, Applicant Self-represented

Diversified Transportation Ltd. o/a Milton Transit, Respondent Ryan Campbell, Counsel

Introduction

1This Application relates to the respondent’s driver-training program. The applicant participated in the driver-training program and was unsuccessful.

2The applicant makes a number of complaints relating to the training program, many of which are not related to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). However, among these complaints is the applicant’s assertion that during the training, he was criticized for his accent when speaking English. The applicant believes that one reason for his lack of success was that his accent when speaking English was not acceptable.

3The applicant frames his complaint as one of reprisal in the Application. He states that he was reprised against because of his accent. The alleged reprisal is the respondent’s decision to fail him in the training program. Although the applicant checked off reprisal in the Application, his claim is not one of reprisal. Rather, it is one of discrimination. The applicant believes his accent when speaking English was one of the reasons why he failed the training program. The applicant believes there is a connection between his accent and his race, place of origin, ethnic origin and/or ancestry.

4The respondent states the applicant failed the training program because he was an unsafe driver.

the facts

5The applicant was born in India and immigrated to Canada in 2003. He became a Canadian citizen in 2008. The applicant self-identifies as a visible minority. English is not the applicant’s first language.

6The applicant applied for the position of transit operator with the respondent on January 29, 2015. Attached to his application was a copy of his Educational Equivalency from the University of Toronto dated July 19, 1999. The University of Toronto confirmed the applicant obtained his university degree in 1984 at Andhra University, in Waltair, India.

7The applicant subsequently completed an application for employment with the respondent on April 24, 2015. In the application for employment, the applicant indicated that he obtained a bachelor degree at Andhra University in Waltair, India.

8On April 24, 2015, the applicant was interviewed for the transit operator position by Rick Wiebe, the manager of the respondent. On April 30, 2015, he was given an offer for training.

9The applicant commenced his training program on May 19, 2015. The training program was scheduled to end on June 1, 2015. On May 30, 2015, the applicant’s training was extended for an additional week. The applicant alleges that on the day his training was extended, his trainer, Cam Boyd, told him that he has an accent when speaking English.

10On June 5, 2015, Mr. Wiebe made the decision to discontinue the applicant’s training. This decision was communicated to the applicant by Mr. Boyd.

11On June 7, 2015, the applicant sent an email to Mr. Wiebe about his experiences in the training program. In the email, the applicant made reference to a comment made by Mr. Boyd about his “English speaking accent”.

12The applicant filed this Application on August 31, 2015. There was one allegation regarding a comment by Mr. Boyd about his accent. He described the allegation in this way:

30 May 2015 7:00 a.m. Mr. Cam [Cam Boyd] started criticizing my driving habits with some weird comments in a demoralizing way and said I have an accent in speaking English. I felt bad and dismayed at his discouraging comments.

analysis

13In the Application, the applicant makes a number of allegations about comments that were made during his training, the majority of which have no connection to the Code. The only comment that may be related to the applicant’s place of origin, ethnic origin or race is when his trainer, Mr. Boyd, told him that he has an accent when speaking English. This comment was allegedly made on May 30, 2015, the day his training was extended.

14During his evidence, the applicant attempted to expand his allegations in the Application by asserting Mr. Boyd commented on his accent many times and in doing so, created a difficult training environment. I did not permit the applicant to expand his allegations in this way because of the prejudice that would result to the respondent. Mr. Boyd died on August 10, 2016 and the respondent was unable to respond to the applicant’s new allegations. I directed the applicant to confine his evidence to the comment set out in the Application.

15The applicant provided further detail about Mr. Boyd’s comment during his evidence. He testified that Mr. Boyd told him that he has an accent when speaking English and that people have difficulty understanding him. Mr. Boyd asked the applicant to copy his instructions word for word.

16Language is not a prohibited ground of discrimination under the Code. However, language can be a defining characteristic of place of origin, ethnic origin or ancestry, all of which are grounds protected under the Code. As a consequence, differential treatment because of language can give rise to discrimination under the Code. However, the onus is on the applicant to establish a nexus between the respondent’s actions and a ground protected under the Code. The Tribunal’s jurisprudence is clear: an applicant’s perception of discrimination is insufficient to establish such a claim. See Liu v. Everlink Services Inc., 2014 HRTO 202 at para. 9.

17The applicant testified that Mr. Boyd told him he has an accent when speaking English and that he was difficult to understand. While I do not have Mr. Boyd’s evidence, I have his written response to the Application. The response does not say unequivocally that he did not comment on the applicant’s accent. I accept the applicant’s evidence that Mr. Boyd commented on his accent because it is the best evidence that I have.

18I also accept for the purposes of this Decision that the applicant’s accent is linked to his place of origin. However, the issue before me is whether the applicant has established that his accent/place of origin was a factor in the respondent’s decision to fail him in the training. For the reasons that follow, I find the applicant has failed meet that burden.

19One, the respondent selected the applicant for training knowing that he had competed his university degree in India in 1984. At the very least, this fact would have raised the possibility that the applicant was also born in India.

20Two, Mr. Wiebe interviewed the applicant before he was selected for the training. The applicant’s accent when speaking English would have been apparent to Mr. Wiebe during that interview. Mr. Wiebe would have known the applicant is a “visible minority”, as he self-identifies. Thus, the applicant was selected for training by Mr. Wiebe knowing he is a “visible minority” and knowing that he has an accent when speaking English.

21Three, the applicant had a partner during the training program, Ron Carpio. Mr. Carpio commenced the training at the same time as the applicant. Mr. Carpio is from Peru and his first language is Spanish. Mr. Carpio testified during the hearing and he speaks English with an accent. Mr. Carpio successfully completed the training on May 30, 2015 and went on to become a transit operator with the respondent.

22Four, the applicant’s training was extended on May 30, 2015. Mr. Wiebe testified that the applicant’s training was extended because of concerns related to his distracted driving. By this time, the applicant had been in the training program since May 19, 2015 and his accent was well known. If the respondent wanted to terminate his training, in part because of his accent, it would not have extended his training for an additional week.

23Five, Mr. Wiebe testified about the diversity of the respondent’s workforce. Sixty-five percent of the respondent’s employees are non-white. The diverse make-up of the workplace was seen in the evidence of two employees called by the respondent to give evidence about the applicant’s unsafe driving.

24Sadia Malik is a transit operator with the respondent. She was born in Pakistan and her first language is Urdu. Nancy Sharma is also a transit operator with the respondent. She was born in India and her first language is Hindi. Ms. Malik and Ms. Sharma gave evidence during the hearing and both speak English with an accent.

25The only evidence to support the applicant’s claim of discrimination is an isolated comment by Mr. Boyd regarding the applicant’s accent when speaking English and the fact that he is difficult to understand. This comment alone is insufficient to establish discrimination. There is no additional evidence to support a connection between the applicant’s place of origin – India – and the respondent’s decision to terminate the training. In light of this finding, it is not necessary to consider whether he failed the training because he was an unsafe driver.

26The applicant has failed to meet his onus of establishing that his accent/place of origin was a factor in the decision to fail him in the training. It is for this reason that the Application is dismissed.

decision

27The Application is dismissed.