Potvin v. Hydro One Networks, 2009 HRTO 2123

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lucy Potvin

Applicant

-and-

Hydro One Networks Inc.

Respondent

-and-

Canadian Union of Skilled Workers

Intervenor

DECISION

Adjudicator: Sherry Liang

Date: December 8, 2009

Citation: 2009 HRTO 2123

Indexed as: Potvin v. Hydro One Networks

APPEARANCES:

Lucy Potvin, Applicant ) Glen Morrison, Representative

Hydro One Networks Inc., Respondent ) Dana McDonald, Counsel

Canadian Union of ) Skilled Workers, Intervenor ) Carolyn Hart, Counsel

1This is an Application filed on September 16, 2008, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2A hearing was held on November 2, 2009, at which time the applicant presented her evidence in support of the Application. At the conclusion of her evidence, the respondent requested that the Tribunal dismiss the Application on the basis that the applicant has not established a prima facie case of discrimination to which it must respond.

3The intervener took no position on the merits of the Application and participated in the hearing to a limited extent, with leave of the Tribunal.

4For the reasons that follow, the Tribunal dismisses the Application.

BACKGROUND

5The Application as filed alleges that the since the applicant commenced her employment with the respondent in 1992, she has “been the victim of a series of protracted harassment and discrimination on the ground of her sex (gender), which is ongoing.”

6The applicant alleges that since September 2007, she has been working in a workplace “which is fundamentally poisoned.” She states that she has attempted to tolerate and resolve the stressful and poisoned workplace situation through discussions with her union representative and Human Resources personnel but that “despite her tremendous efforts absolutely nothing was done to assist her.”

7The applicant alleges that the respondent’s conduct limited her opportunity in employment and that she was denied advantages available to male employees.

8Despite the breadth of the allegations, the applicant provided very few details in her Application about the incidents said to have constituted harassment or other violations of the Code by the respondent.

9The respondent objected to the lack of particularity in the Application and by Case Assessment Direction dated August 7, 2009, the Tribunal ordered the applicant to provide particulars.

10The applicant’s particulars of August 27, 2009, set out the following incidents:

• A conversation between the applicant and a senior foreman in August, 2007 about the respondent’s zero tolerance drug and alcohol policy;

• An incident regarding a black co-worker on September 17, 2007;

• A warning given to the applicant on September 26, 2007, about talking to a worker from another crew;

• Three occasions in October 2007 when a particular co-worker drove his vehicle at a high rate of speed close to the applicant;

• An incident on October 29, 2007, when the applicant’s sub-foreman used profanity when she asked him to put his seatbelt on;

• An allegation that a female co-worker had filed a formal complaint of harassment against another co-worker;

• An allegation that in November 2007, a male co-worker was abusing the time keeping system without reprimand and that she consistently smelled alcohol on the breath of her male sub-foreman, neither of whom suffered any employment consequences as a result;

• On November 8, 2007, she received a written warning for insubordination;

• On November 16, 2007, she was reprimanded for using the telephone during work time to discuss a health and safety issue with the workplace health and safety officer.

11The respondent objected to some of the particulars provided. At the hearing, I ruled that the applicant could not call evidence about the complaint made by a female co-worker. Based on the applicant’s description of this matter, I was not satisfied that this evidence met the standard of similar fact evidence. I allowed the applicant to give evidence about the other matters referred to in her particulars.

THE EVIDENCE

12The applicant works as a journeyman electrician in the construction industry, and is covered by a collective agreement between the intervener Canadian Union of Skilled Workers (“CUSW’) and Hydro One Inc. Under this agreement, the CUSW refers tradespersons to work for the respondent. The applicant has worked at various worksites on various construction projects for the respondent since 1992.

13The applicant testified that on or about August 24, 2007, she was pulled aside by her foreman and warned that the respondent had a zero tolerance policy towards drug and alcohol at the workplace. Three days later, the same foreman asked her if she had been stoned the week before and warned her again about the zero tolerance policy. She also testified that the foreman might have approached her because of the prominent bags under her eyes, which is a physical feature that runs in her family. She told the foreman that she was tired.

14The applicant described an incident in September 2007, when she overheard yelling between several white co-workers and a black co-worker (referred to in this decision as I.D.). She did not hear the content of the exchange. Later that day, her supervisor assigned the black co-worker to work with her for the afternoon. She stated that she had the impression that the reason for the assignment was that the black co-worker felt he had experienced racism from the other workers. Later, she was interviewed by management over a complaint made by I.D. While she acknowledged that she did not give any specifics, she states that during this interview, she expressed her opinion that the workplace was “poisoned” and that favouritism existed.

15In September 2007, the applicant was reprimanded by a supervisor for conversing with a dump truck driver on the worksite, and told that she should not talk to anyone for any length of time other than her own crew members. The applicant is certain that she is the only person who has been given such an instruction.

16The applicant testified that on three occasions in October 2007, a co-worker drove by her, on a company vehicle, at a high rate of speed. She felt the speed was excessive and that the vehicle came too close to her. The co-worker was a labourer, on a different crew from the applicant. After the third occasion, she spoke to her sub-foreman about it, stating that if there was a repeat of the incident, she would report it to the police. She is not aware of what action was taken by her sub-foreman in response to her complaint, but she states that there were no further such incidents involving that co-worker. She did not report the matter to her union steward or her health and safety representative.

17The applicant stated that on October 29, 2007, she noticed a co-worker lifting a very heavy reel of cable with a forklift. She was concerned about the possibility of the forklift tipping, and yelled out at the co-worker to put his seatbelt on. The co-worker answered her with a profanity and then stated “if this thing goes over I’m not going with it.” The applicant was asked by her representative if she believes the co-worker would have responded in the same way if a male colleague had given the same advice, and she answered that she could not say.

18The applicant testified that over about a three-week period in November 2007, she noticed that one of her male co-workers was arriving late and leaving early regularly. She does not believe that the co-worker was disciplined for his behaviour. The applicant also stated that she is sure that if it had been her, her employment would have been terminated. She testified, however, that she has been late on occasion and has never been disciplined for it. She did not report her co-worker’s lateness to management.

19During the same period of time, the applicant stated that, more than once, she smelled alcohol on the breath of her sub-foreman. She cannot say if he was impaired, and she did not report it.

20The applicant testified that on November 8, 2007, she was given a verbal warning for alleged insubordination. She stated that it related to an incident in which her sub-foreman directed her not to drive a particular “gator”, which is a small vehicle commonly used on the respondent’s worksites to carry tools. Despite the direction, she decided that she needed the use of the vehicle on that date, and continued to use it. She did not believe the direction to be reasonable. The applicant testified that she did not believe that other workers have been disciplined over such a minor incident. The union did not wish to file a grievance over the verbal warning.

21The applicant testified that on or around November 16, 2007, she was reprimanded for spending about two hours during a workday trying to contact a health and safety representative to discuss certain concerns she had about the workplace. She was told that the respondent would impose a two-hour pay deduction. The applicant testified that to the best of her knowledge, no other co-workers have been disciplined for using the phone to discuss health and safety matters. She also stated that her supervisor asked if the way she was feeling that day would affect the health and safety of other workers on site, and she replied no, and that she felt intimidated by the conversation. The applicant testified that she made the phone call because she had concerns for her safety on the job and did not trust the other workers on the site.

22The applicant was asked by her representative if, over the years of her employment, she has seen similar unfair treatment towards male co-workers. She answered that she has observed unfair treatment and harassment towards other individuals, without specifying their gender.

23The applicant testified that she believes that her supervisors and management were aware that she was being harassed at the workplace, and did nothing to address it. But apart from the conversation that took place during the investigation of the complaint by I.D., she did not state that she had raised these issues directly with them. The applicant testified that she believes she was harassed and discriminated against at work because she is a woman. She stated her belief that other female co-workers probably had similar experiences at work, just because they are women.

24The applicant confirmed that there have been occasions on the job when she has been assigned to work as a sub-foreman for a period of time, with an increase in pay. She also confirmed that when there was an opportunity to apply for the position of Electrical Foreman in Training, she decided not to apply.

DECISION

25It is well-established in human rights law that the onus is on an applicant to establish a prima facie case of discrimination. In Ontario (Human Rights Commission) v. Simpsons-Sears, [1985] 2 S.C.R. 536, 1985 CanLII 18 (S.C.C.), at para. 28, a prima facie case was described as one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a finding in the applicant’s favour in the absence of an answer from the respondent.

26Rule 1.7(g) of the Tribunal’s Rules provides that the Tribunal may, in order to provide for the fair, just and expeditious resolution of any matter before it, determine the order in which issues in a proceeding will be considered and determined. In some cases, the Tribunal has considered the issue of whether an applicant has presented a prima facie case of discrimination requiring a response from the respondent at a preliminary stage, before any evidence is heard. In Arias v. Centre for Spanish Speaking Peoples, 2009 HRTO 1025, for example, the Tribunal dismissed an application against one of the respondents after hearing the oral submissions of the parties on whether the allegations against that respondent, even if true, could establish a violation of the Code.

27In Jagait v. IN TECH Risk Management, 2009 HRTO 779 the Tribunal considered the issue of whether the applicant had established a prima facie case of discrimination after hearing the applicant’s evidence. In other cases, the Tribunal determines the issue after hearing evidence from both the applicant and the respondent.

28In assessing whether or an applicant has met his or her initial onus, or determining at what stage of the proceeding to consider this issue, the Tribunal must take into account the difficulties of proving discrimination. In Jagait, a case involving a dismissal from employment, the Tribunal stated:

It is well-established that the threshold for establishing a prima facie case of discrimination is not high, discrimination is often not overt, the employer may have knowledge of facts or possess evidence of discrimination that is not accessible to an employee whose employment is terminated, and that in many, if not most, cases the burden will shift to the respondent to provide a non-discriminatory reason for its actions. On the other hand, where the applicant has failed to establish a prima facie case, it is neither legally correct nor, in my view, fair, just and expeditious to shift the burden to the respondent to provide a non-discriminatory reason for its actions.

29In Potocnik v. Thunder Bay (City) (No. 3) (1996), 1996 CanLII 20066 (ON HRT), 29 C.H.R.R. D/333, at para. 16 the adjudicator put the issue thus: “In simple terms, there must be something that would make a reasonable person say that the employer has some explaining to do.”

30In assessing whether or not the applicant in this case has met her burden of establishing a prima facie case of discrimination, the starting point must be her allegations, and the nature of discrimination alleged. Here, the applicant alleges a pattern of harassment and discrimination in the workplace based on her gender. Some of the incidents about which she complains involve co-workers whom she has not named as respondents. Her assertion with respect to those incidents is that the respondent, her employer, failed in its duty to address the harassment. Other incidents involved supervisors and her assertion about those is that she was treated differently and disadvantaged because she is a woman.

31I am satisfied, after hearing the evidence of the applicant, that she has not established an arguable case of discrimination on the basis of sex. To begin with, I have some doubts as to whether some of the incidents can be viewed as discrimination or harassment at all. The Supreme Court of Canada stated that discrimination can be described as

. . . a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, 1989 CanLII 2

32Therefore, in order to find discrimination, the Tribunal must be satisfied both that an applicant experienced adverse treatment in relation to others, and that it was based on a ground enumerated in the Code such as, in this case, gender. A conversation about the company’s zero tolerance policy on drugs and alcohol that does not result in any discipline, for instance, is not in itself discriminatory in that there was no disadvantageous treatment. Neither can it be viewed as harassment. The allegation about the co-worker whom the applicant believed to be a reckless driver may certainly give rise to concerns about health and safety but in the absence of any evidence that the applicant raised this as an issue of gender harassment with the respondent, it is hard to see how the respondent could be liable under the Code. The evidence was also that there were no repetition of these incidents after the applicant brought them to the attention of her supervisor. As well, the isolated incident of a profanity directed at the applicant over a refusal to wear a seatbelt cannot, in the context, be viewed as harassment, regardless of gender.

33On my review, the evidence does not support the conclusion that the applicant was singled out in the events described, much less singled out because of her gender, as alleged. With respect to incidents that the applicant viewed as disciplinary, the applicant’s evidence at its highest was that she did not know of other workers (without specifying gender) who had been treated in a similar manner. For instance, regarding the dump truck driver, the applicant testified only that she was certain that other workers had not been advised not to speak to members of other crews. With respect to the reprimand for using the phone during work time to speak to a health and safety representative, the applicant’s evidence was that to the best of her knowledge, no co-workers had ever been disciplined for using the phone to discuss a health and safety matter. In other parts of her evidence, the applicant did not even venture a conjecture as to whether another worker, female or male, might have experienced the same treatment.

34With respect to some of the incidents described, therefore, there is no evidence to support the conclusion that the applicant was treated any differently from her co-workers. With respect to other incidents, even if I accept the applicant’s evidence as establishing that she was disciplined or spoken to about incidents that did not lead to similar action against her co-workers, I cannot infer that any difference in treatment was based on her gender.

35The applicant urged me to find that the events amounted to a “pattern of harassment and discrimination” on the basis of gender. I find, however, that the events are so distinct from each other that they do not form any “pattern” that might raise a question about whether the applicant was being targeted in the workplace on the basis of her gender. The events are linked only by the fact that they occurred to the applicant, who is a woman. This does not by itself provide a basis for a finding of a pattern of harassment or discrimination.

36The applicant’s representative submitted that at the end of the day, the Tribunal must ask itself whether or not on the balance of probabilities, a male worker would have been treated the same way as the applicant. It was submitted that as discrimination is rarely overt, the Tribunal must draw inferences from the available evidence. In this case, the applicant works in a predominantly male workplace. The applicant, it was submitted, gave evidence that she was singled out in a way that male co-workers were not.

37There is no doubt that the applicant works in a male-dominated environment, in a field of work that has traditionally been the purview of men. The Tribunal can also accept without specific evidence that women working in such an environment likely face some degree of discrimination and sexist attitudes, whether from co-workers or management. However, in order to establish liability under the Code, the applicant must still show how her particular experience supports a conclusion that the respondent has discriminated against her or harassed her because she is a woman.

38In this case, the broad sociological context cannot, even when put together with the rest of the applicant’s evidence, establish a prima facie case of discrimination on the basis of sex. Whether taken separately or together, the events about which the applicant testified do not give rise to an inference that she was treated differently and disadvantageously on the basis of her gender. In short, although the applicant testified about a general belief that the incidents were related to her being a woman in the workplace, there is an insufficient objective basis from which discrimination can be inferred.

39In conclusion, I find that the evidence of the applicant is not complete and sufficient to justify a finding in the applicant’s favour. Her evidence does not establish a prima facie case of discrimination under the Code. I am also satisfied that this is not a case where it is unfair to arrive at this assessment in the absence of any evidence from the respondent. The Application is therefore dismissed.