HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Karoline Bourdeau
Applicant
-and-
Kerry’s Place Autism Services
Respondents
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Bourdeau v. Kerry’s Place Autism Services
APPEARANCES
Karoline Bourdeau, Applicant
, Self-represented
Kelly’s Place Autism Services, Respondent
David Ross, 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 disability.
Background
2The applicant identifies herself as being legally blind. She states that she was seeking employment with the respondent as Director Services and Supports for the respondent, but discovered she was “ineligible to apply” because one of the requirements listed on the job posting was a valid Class G driver’s licence. The applicant cannot obtain a driver’s licence because of her disability. The applicant states in the Application that she is “eminently qualified” for the position, although she did not describe her qualifications.
3The respondent filed a Response in which it raised several issues. First, it notes that the applicant never actually applied for the position, which the respondent submits indicates that the applicant did not have a bona fide interest in the job. Second, the respondent notes that the job posting for the Director of Services and Supports explicitly stated that the respondent was committed to diversity and inclusion in its hiring practices and was also committed to accommodating people with disabilities. This portion of the job posting ended with this sentence: “If you require accommodation, we will work with you to meet your needs.” The respondent submits that, by not applying, the applicant did not give it the opportunity to provide accommodation, which in the respondent’s view further demonstrates a lack of a bona fide interest in the job. The respondent also states that the applicant was not qualified for the position. Based on internet research regarding the applicant, the respondent submits that the applicant has no related experience with supporting people with autism. As a result, the applicant would not have been considered for the position based on her credentials alone. The applicant’s lack of apparent qualifications is again, in the respondent’s view, a clear indication that the applicant had no real interest in the position. In any event, the respondent states that having a driver’s licence is a bona fide occupational requirement because the Director of Services and Supports is often called upon to transport clients, e.g., where they are unable to use public transport, or when, as sometimes occurs, a client must be taken to the hospital.
Hearing
4In a Case Assessment Direction dated March 8, 2017, the Tribunal ordered that a summary hearing be held to determine whether this 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 19, 2017.
Submissions
5At the outset of the hearing I described the summary hearing process and invited the applicant to address the issues identified in the Response, as described above.
6The applicant submitted that she has relevant qualifications not listed on the internet. Specifically, the applicant stated that she has experience working as a crisis counsellor, where she worked with victims of abuse as well as individuals with mental health and communication disabilities. The applicant stated that she is a fast learner and can quickly learn the requirements of a job. The applicant stated that she felt that she would not be considered without a driver’s licence. The applicant submitted that the position appeared to be primarily a “desk job” and that the requirement of a driver’s licence excluded people who cannot drive. The applicant submitted that she understood that all the respondent’s employees were required to have a driver’s licence. The applicant submitted that the only way to get direction about these issues was to file an Application to the Tribunal.
7The respondent submitted that it continued to rely on its Response submissions, and would not reiterate them at the hearing. The respondent submitted that the applicant’s belief that all of the respondent’s employees are required to hold driver’s licences is incorrect, but the applicant would not know that because she never contacted the respondent. The respondent submitted that it exists to assist people with disabilities and explicitly offers accommodation in its hiring process. The respondent submitted that the applicant had difficulty explaining why she believed she was disqualified from the position or whether having a driver’s licence was a bona fide requirement because she made no attempt to contact the respondent to learn more about the position or the respondent’s practices.
8The respondent submitted that the Director of Services and Supports does have administrative responsibilities, but is not a “desk job.” Rather, the position requires field work, including direct involvement with families. The respondent also submitted that the need for a driver’s licence is not theoretical, as the Director is required to transport clients, including to the hospital on occasion. The respondent submitted that the applicant’s submissions clearly indicate that she is not qualified for the position, since it requires field experience dealing with people on the autism spectrum and experience in administrative tasks such as managing, budgeting and planning. The applicant has none of these skills.
9The respondent submitted that whether the applicant was qualified for the position is in any event not the key issue. The respondent submitted that the applicant is attempting to challenge the requirement for a driver’s licence in general. However, as the applicant did not apply for the position, there is no prima facie case of discrimination because she has not experienced any adverse treatment. The respondent submitted that discrimination occurs when a person attempts to do something, e.g., secure employment, and is prevented from doing so because of a prohibited ground of discrimination such as disability. In this case, the applicant did not do anything with a view to securing the position, e.g., applying or inquiring about accommodation.
Analysis and Decision
10Rule 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.
11Section 11 of the Code states as follows:
- (1) A right of a person under Part I is infringed where a requirement, qualification or factor exists that is not discrimination on a prohibited ground but that results in the exclusion, restriction or preference of a group of persons who are identified by a prohibited ground of discrimination and of whom the person is a member, except where,
(a) the requirement, qualification or factor is reasonable and bona fide in the circumstances; or
(b) it is declared in this Act, other than in section 17, that to discriminate because of such ground is not an infringement of a right.
(2) The Tribunal or a court shall not find that a requirement, qualification or factor is reasonable and bona fide in the circumstances unless it is satisfied that the needs of the group of which the person is a member cannot be accommodated without undue hardship on the person responsible for accommodating those needs, considering the cost, outside sources of funding, if any, and health and safety requirements, if any.
(3) The Tribunal or a court shall consider any standards prescribed by the regulations for assessing what is undue hardship.
12Section 5(1) of the Code provides that “every person has a right to equal treatment with respect to employment without discrimination because of … disability”
No Reasonable Prospect of Success
13In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments 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.
14At 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. The issue in this case is whether the applicant’s allegations amount to a violation of the applicant’s Code rights.
15The threshold issue in this case is whether the requirement to have a driver’s licence had the effect of excluding the applicant from employment as the respondent’s Director of Services and Supports. That question cannot be answered because the applicant did not apply for the position. The respondent was never put in the position of having to consider whether the applicant’s disability could be accommodated, assuming she was qualified for the position. The most that can be said is that the driver’s licence requirement might have excluded the applicant from obtaining this position. For the purposes of a human rights analysis there are no facts at all – nothing happened. Consequently, there is no evidence that the applicant suffered any exclusion or adverse impact because of the requirement to have a driver’s licence, without which this Application has no reasonable prospect of success. The Tribunal’s jurisdiction does not include theoretical breaches of the Code.
16In coming to this conclusion, I have rejected the applicant’s assertion that she was “ineligible to apply” because she does not have a driver’s licence. The applicant pointed to no evidence or any evidence that may be reasonably available to the applicant that indicated that the respondent would not consider candidates without drivers’ licences. The only evidence on this point is that the respondent explicitly invited people with disabilities to apply for the position and indicated that it would work with candidates with disabilities to accommodate their needs. In these circumstances, I find that the applicant has no reasonable prospect of showing that she was unable to even apply for the position.
17The Tribunal has also found that no adverse treatment arises in hiring situations when the applicant does not have a bona fide interest in securing the position in question. See Cenanovic v. 2332489 Ontario Inc., 2014 HRTO 1811. In this case, there are strong indications that the applicant was not actually interested in employment with the respondent. Unlike in Cenanovic, the applicant did not even apply for the position. The applicant’s submissions revealed that she has little idea of the actual functions of the Director of Services and Supports and, with all due respect, that she does not have qualifications that would make her a serious candidate for the position. In these circumstances, the applicant has no reasonable prospect of demonstrating that she had a bona fide interest in the Director of Services and Supports position. Rather it seems that the applicant seized upon a requirement in the job posting as an opportunity to file an Application to this Tribunal.
18The Application is dismissed.
Dated at Toronto, this 25^th^ day of July, 2017.
“Signed By”
Douglas Sanderson
Vice-chair```