Reece v. Toronto (City), 2017 HRTO 1644

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leonard Reece Applicant

-and-

The City of Toronto Respondent

DECISION

Adjudicator: Douglas Sanderson Date: December 11, 2017 Citation: 2017 HRTO 1644 Indexed as: Reece v. Toronto (City)

APPEARANCES

Leonard Reece, Applicant Self-represented

City of Toronto, Respondent Sharmila Clark, 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 employment because of race, colour and ethnic origin.

background

The Application

2The applicant states that he applied for a caseworker position with the respondent in its Employment and Social Services department. On April 4, 2016, the applicant received an invitation for a written assessment, scheduled on April 6, 2016. The applicant attended the testing location and completed the tests in the allotted time. The tests covered three areas: Basic Computer Literacy, Data Entry and a written test. On April 8, 2016, the applicant received an e-mail message from Reka Marton, a Human Services Associate employed by the respondent. In the message, the applicant was invited to participate in an oral interview on April 16, 2016 and was asked to confirm his attendance, which he did.

3On April 11, 2016, Helen Sotiropoulos, a Human Resources Consultant with the respondent, called the applicant. Ms. Sotiropouls informed the applicant that he was invited to the interview in error because he had not been successful in the written assessment. Specifically, she advised the applicant that he had failed the Data Entry test. The applicant disputed that he had failed the test. The applicant advised Ms. Sotiropoulos that he would take legal action if the matter was not resolved in three business days. The applicant sent an e-mail message to Ms. Sotiropoulos, copying the Premier of Ontario, the Minister of Community and Social Services and the Mayor of Toronto. None of those copied became involved in the dispute.

The Response

4Generally, the respondent’s position is that the applicant does not set out any evidentiary link between the fact that he was not hired and the Code grounds on which the Application is based.

5The respondent agreed that the applicant applied for a caseworker position. The applicant was one of 3,253 applicants for 75 permanent and 130 temporary positions. The applicant was invited to attend a Written Assessment, consisting of three components: Basic Computer Literacy, Data Entry Alphanumeric and a written test. The first two components are standard automated tests that are scored by a computer system called “Skill-Check.” To be entitled to proceed to the oral interview stage, a candidate must pass all three components of the assessment. The applicant did not pass the data entry test and therefore was not entitled to proceed to the oral interview stage.

6On April 8, 2016, a division support person sent the applicant an invitation to an oral interview in error. Ms. Sotiropoulos subsequently called the applicant by telephone to advise him of the error. She apologized and explained that he had been unsuccessful in the data entry test. Ms. Sotiropoulos followed up with an e-mail message, confirming her conversation with the applicant.

Procedural History

7The Application was referred to a summary hearing, which was held on November 23, 2016. The Tribunal declined to dismiss the Application following the summary hearing because there were evidentiary issues that required a merits hearing to resolve. The Tribunal noted that the respondent was not precluded from requesting another summary hearing. See, Interim Decision, 2016 HRTO 1494. The respondent did request another summary hearing. The Tribunal denied the request, but advised that the respondent could raise the issue of whether the Application has no reasonable prospect of success after the conclusion of the applicant’s evidence. See, Interim Decision, 2017 HRTO 1153.

The hearing

8The Tribunal held the hearing of this matter on September 11, 2017. The applicant testified, after which the respondent submitted that the Application should be dismissed because it has no reasonable prospect of success.

The Applicant’s Evidence

9The applicant was affirmed and gave the following evidence.

10The applicant had previously been employed by the respondent. In 2007, the applicant decided to leave this employment to work for himself, as he was disturbed by the manner in which clients were treated. The applicant began a non-profit organization to assist clients in accessing services from the respondent. The applicant has filed complaints against various agencies, staff and the police in the context of this advocacy. In 2015, the applicant decided to seek a job as a caseworker with the respondent.

11The applicant applied for the position of Caseworker, Employment and Social Services. The applicant received Exhibit 1, which is an e-mail message inviting him to a written assessment. The test was scheduled for April 6, 2016. The applicant attended the testing location and completed the test. He asked one of the individuals administering the test when he would be advised of the results and was advised it would be approximately two weeks. On April 8, 2016, he received an e-mail message advising him that he had passed the written assessment and was invited to an oral interview on April 16, 2016. The e-mail message was sent by Reka Marton, a Human Services Unit Associate, on behalf of Helen Sotiropoulos, Human Resources Consultant. The applicant responded by e-mail the same day to accept the invitation.

12At 2:40 p.m. on April 11, 2016, Ms. Sotiropoulos contacted the applicant by telephone. She informed the applicant that the interview invitation had been sent to him in error, as he had not been successful in the written assessment. Specifically, the applicant had failed the data entry test. The applicant explained that he had used the computer program involved in the test before; therefore, there was no way that he had failed the test. The applicant asked Mr. Sotiropoulos to sort out the matter and respond to him.

13At 4:20 p.m. on April 11, 2016, the applicant received Exhibit 5, which is an e-mail message from Ms. Sotiropoulos. The message confirmed their discussion earlier that afternoon. That is, Ms. Sotiropoulos stated that the invitation to an oral interview had been sent to the applicant in error because he did not pass all three components of the written assessment. The applicant replied to the message protesting the decision not to interview him. The applicant copied the message to the Minister of Community and Social Services, the Premier of Ontario and the Mayor of Toronto. The Ministry replied to the message, but referred the applicant back to the city, as it stated that it was not involved in the hiring process.

14I asked the applicant if there was any evidence that Ms. Sotiropoulos knew he was black. The applicant stated that he had never met her before. However, he had attended the testing centre and the staff administering the test would have seen that he is black. Accordingly, they could have identified him. The applicant also stated that he was readily identifiable in the media and social media. He was also known as an advocate. The applicant stated that it was hard to believe that he was the only person who made a similar mistake.

15The applicant reviewed some of the documents disclosed by the respondent. Exhibit 7 is entitled “Caseworker job call, Job ID 2180457x, Leonard Reece – Data Entry Alphanumeric and Basic Computer Literacy Test outcome.” This document contains two spreadsheets setting out the applicant’s results in the “Data Entry/Ten Key Test” and “Standard Tests.” In the Data Entry/Ten Key Tests spreadsheet, the last column is entitled “Performance description.” The performance description recorded for the applicant is “POOR.” According to the applicant, the fonts on the document are different.

16The applicant also stated that the External Applicant List, disclosed by the respondent, appears to have been altered. The applicant stated that the contents of the document appear to have been cut and pasted. The applicant also stated that the fonts were different on the document. The document records the applicant’s test scores in the written assessment. Exhibit 9 is another document setting out the applicant’s scores for the Data Entry Test – Alphanumeric. The applicant’s score is recorded as “POOR.” The applicant stated that the font was different for his score and that he believed the document was altered. Under the title “Performance Overview”, the document records the speed and accuracy of his data entry. The document indicates that the applicant’s “Net Data Entry Speed” was 12 words per minute and that average score (based on 3741 total scores) was 20 words per minute. The applicant stated that the criteria for passing were not disclosed. He noted that the document records that he made only four errors and his accuracy was 91%. The applicant also noted that the “Adjusted Errors per Hour” was recorded at 144. The applicant stated that he did not understand the score because this portion of the test was not an hour long. The applicant stated that he was never told that the outcome would be based on the number of words per minute he produced. In his view, this raised questions about the testing and the outcome.

17Exhibit 10 is an e-mail message dated April 8, 2016 from Ms. Sotiropoulos to Ms. Marton into which two spreadsheets or parts of spreadsheets have been copied. The first is a list of people to be invited to an interview. The applicant’s name appears on the list; all other names are redacted. In the fourth column (over which there is no title) results are recorded for each candidate. The applicant’s result is listed as “Poor.” The results for all the other candidates are Average, Good, Very Good and Excellent. Based on the material before me, it is evident that this column records the results of the Data Entry Alphanumeric test. The second spreadsheet is of candidates (names redacted) who were not invited. The applicant noted that these candidates were marked as failed. The applicant stated that the document does not support the respondent’s position, as it shows the applicant was singled out.

18I asked the applicant what evidence he had that this alleged treatment was related to his race. The applicant stated that this was hard to prove, but offered that Ms. Sotiropoulos could have found out from others that he is a black man.

19In cross examination, the applicant confirmed that he knew he did not fail the data entry test. He restated that he believed he was singled out, which amounted to discrimination. The applicant clarified that he did not say that the respondent knew him from the internet, but that he easily could have been seen on the internet. The applicant agreed that there was nothing in the Application indicating that anyone at the testing centre recognized him.

20In re-examination, the applicant stated that the respondent’s position is that a mistake was made, but there was no way such a mistake was made. The applicant stated that he was given special treatment because he was put on the list of interviewees and then singled out when Ms. Sotiropoulos called him to retract the invitation.

Analysis and Decision

21Section 5(1) of the Code provides as follows:

Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

22Rules 19A.1 of the Tribunal’s Rules of Procedure provides as follows:

19A.1 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.

23The applicant has the onus of proving that the respondents violated his Code rights on a balance of probabilities, i.e., that it is more likely than not that the respondent discriminated against him, on the basis of race, colour, or ethnic origin, contrary to the Code. Clear, convincing and cogent evidence is required to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paragraph 46. To establish discrimination, the applicant must establish that he is a member of group protected under the Code, that he was subject to adverse treatment and that a Code ground was a factor in the adverse treatment. See Peel Law Association v. Pieters, 2013 ONCA 396. However, the applicant need not prove that the prohibited ground of discrimination was the sole factor leading to the discriminatory conduct. See Phipps v. Toronto Police Services Board, 2009 HRTO 877.

24Pursuant to Rule 19A, the Tribunal may hold a summary hearing to determine whether an application should be dismissed for having no reasonable prospect of success. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 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.

25The Tribunal has stated on several occasions that it does not have the power to deal with general allegations of unfairness. An applicant must present evidence that the respondent’s actions are connected to a prohibited ground of discrimination. See, Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at paragraph 17.

26The Tribunal usually holds summary hearings at an early stage in a proceeding. However, in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, the Tribunal concluded that the criterion of no reasonable prospect of success is not limited to the initial early stages of the Tribunal’s process and can be applied during a hearing after some, but not all, of the expected evidence has been heard. When the evidence that has been called or is proposed to be called makes it clear that the application has no reasonable prospect of success, the application should be dismissed.

27The applicant has confirmed that he has called all the evidence that he is relying on for the hearing. The applicant is a racialized person who experienced an adverse or negative outcome when the respondent, through Mr. Sotiropoulos, rescinded his invitation to an oral interview. However, the applicant has not, in my view, presented any evidence that could connect the Code grounds upon which he relies to the respondent’s actions.

28The applicant’s evidence was that he and Ms. Sotiropoulos had not met when the incidents in question occurred, i.e., April 2016. The applicant’s evidence was that it was possible Ms. Sotiropoulos was aware of his race because of his presence on the internet or that someone at the test centre, who would have seen the applicant, informed Ms. Sotiropoulos of the applicant’s race or colour. Such speculation is not a proper basis for finding that Ms. Sotiropoulos was aware that the applicant is a racialized person. This is particularly so in light of the expected evidence that she had not met the applicant and that he was not known to her, directly or indirectly. In the absence of evidence that Ms. Sotiropoulos was even aware of the applicant’s race, colour or ethnic origin, I find the applicant has no reasonable prospect of establishing discrimination on these grounds.

29The respondent’s position is that a third party was responsible for marking the Data Entry tests, and that the third party sent the results to the respondent. The applicant’s evidence was that he believed the results had been altered. This belief was based on his observation that in some cases fonts were different and that information seemed to cut and pasted into documents. I have reviewed the documents in question, and I do not share these observations. In my view, there is simply no indication that the documents have been altered. In Exhibits 7 and 9 the applicant’s result is recorded in capital letters “POOR” and, on my review, it does not appear that a different font was used. Nothing else in this document is recorded in capital letters, but this is not a sufficient basis to support the serious allegation that the document was altered.

30In these circumstances, I find that the Application has no reasonable prospect of success.

31The Application is dismissed.