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HRTO confirms co-op student’s right to pursue interests

right to pursue interestsAlthough not often the subject of discussion, the “Code” can apply to co-op placements. Such was the case in a recent decision involving a high school student.

The applicant, a high school student seeking a co-op placement, filed an application alleging discrimination with respect to employment because of sex, contrary to the “Code”.

The matter

A female high school student interested in working in the auto mechanics industry applied for a co-op position with the respondent, an automotive body shop.

During the course of the interview, the applicant alleged that she was asked questions she believed would not have been asked of a male applicant. Further, she was eventually denied the position, in spite of past male students from the same school being accepted at the respondent’s shop.

Most of the evidence was based oral testimony.

The applicant spoke of being interested in auto mechanics and although her school did not provide such courses, she had taken courses in carpentry and some electrical work. [i]

The applicant testified that this is what had been explained to the respondent, during her interview for the placement. The applicant alleged that she was asked questions that she didn’t believe would be asked of a male, and was subsequently offered clerical work such as answering the phone and filing. The applicant testified that one of the questions asked was, if she really wanted to get her hands dirty because his shop was dirty.” [ii]

As the applicant had refused the jobs offered to her, according to her testimony, she was refused the placement.

Analysis

The respondent and owner of the business, gave testimony. Under cross-examination his  testimony appeared less credible due to inconsistencies and omissions in his Response when compared to his testimony. The respondent also admitting that he told the applicant that she could be a secretarial co-op student. [iii]

The respondent’s Response continued to undermine his credibility when he stated he was willing to train someone, yet was unable to explain why his Response stated that he was not looking for someone for the body shop but only to do office work. Further, the respondent did not deny he had asked whether she wanted to get her hands dirty.

In the final decision the Human Rights Tribunal of Ontario wrote:

When I have had to assess credibility, I have been guided by the well-established principles stated by the British Columbia Court of Appeal in Faryna v. Chorny,[1952] 2 D.L.R. 353 (“Faryna”), which is often quoted by this Tribunal. The Court held:

“The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize is reasonable in that place and in those conditions.”

The Tribunal found in favour of the applicant writing, “I find the respondent discriminated against the applicant when she attended for her interview in anticipation of obtaining a co-op placement.”

The decision

The respondent was ordered to pay to the applicant the amount of $7,000.000 as well as to take a human rights online training course.

The takeaway

Co-op students may be covered by the “Code”, and should be afforded the same inalienable rights as all other employees during a potential interview or  co-op placement.


[i] 2017 HRTO 1001

[ii] Ibid., paragraph 21

[iii] Ibid., paragraph 33

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Kevin Sambrano, Sambrano Legal Services

Kevin Sambrano, B.A.A. is a paralegal who is passionate about law. Kevin has the distinction of being the first paralegal candidate to participate in the Community Legal Aid Services Programme at Osgoode Hall Law School. Sambrano Legal offers legal representation in human rights, landlord and tenant, employment, and Small Claims Court matters within the GTA. Kevin has been a regular contributor to First Reference Talks since 2014 with over 44 published articles relating to human rights and employment law.Read more
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