Manminder Jagait v. IN TECH Risk Management Inc., 2009 HRTO 779

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Manminder Jagait

Applicant

-and-

IN TECH Risk Management Inc.

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: June 5, 2009

Citation: 2009 HRTO 779

Indexed as: Jagait v. IN TECH Risk Management

appearances

Manminder Jagait, Applicant ) On her own behalf

IN TECH Risk Management Inc. and ) Caroline V. (Nini) Jones, Counsel

Fraser Roberts, Respondents )

INTRODUCTION

1The applicant, Manminder Jagait, filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on July 7, 2008, which alleges that the respondent, IN TECH Risk Management Inc., discriminated against her with respect to employment because of her race, colour, ancestry, place of origin, citizenship, ethnic origin, creed, sex, family status, marital status, and age. Specifically, she alleges that the respondent terminated her employment and denied her severance pay because of these grounds.

2The respondent filed a Response to the Application on August 21, 2008, which denies the allegations of discrimination. The Response states that the composition of the respondent’s staff is diverse. The Response also states that the respondent terminated the applicant’s employment for a non-discriminatory reason: poor work performance.

PRELIMINARY ISSUE

3At the outset of the hearing, counsel for the respondent requested that Fraser Roberts be removed as an individual respondent because the applicant did not name him as a respondent, and he was only named because the organization respondent erroneously identified him as an additional respondent in the Response to the Application. The applicant consented to the Request. Therefore, I ordered that Fraser Roberts be removed as an individual respondent, and that the style of cause be amended accordingly.

BACKGROUND

4The applicant was employed by the respondent as a risk management consultant from February 24, 2003 to August 21, 2007, when the respondent terminated her employment. The Application states that she was not provided with any prior notice of poor work performance. Therefore, in her view, the respondent terminated her employment and denied her severance pay because she is an immigrant of Indian descent, from England rather than Canada, the only Punjabi Sikh making a high salary, the only woman in her department making a high salary, single with no dependants, and young (33 years of age). The Application does not have any further particulars explaining why the termination was discriminatory.

5The Response to the Application states that the respondent terminated the applicant’s employment because of poor work performance, including complaints about the applicant from four of the respondent’s largest clients and internal complaints about her from other employees on her team. The Response further states that the respondent employed immigrants from all over the world, including the United Kingdom, the United States, Germany, Sri Lanka, Guyana, and India, at all levels of the company; in addition to the applicant, there were immigrants from China, Morocco and Peru in the risk management consultant position; there were employees who were Christian, Jewish and Muslim in the company; more than half of the respondent’s employees were female, including three out of seven of the risk management consultants; four out of seven risk management consultants were single and had no dependants; and more than half of the respondent’s employees were in their twenties and thirties, including two risk management consultants who were younger than the applicant.

6The applicant’s Reply to the Response included further particulars with respect to her allegations of discrimination. With respect to the grounds of race, colour, ancestry, place of origin, citizenship, and ethnic origin, the Reply states that she is unaware of the laws of employment in Canada because she is not Canadian and is new to the country, and the respondent used this fact against her. With respect to the ground of age, she states that at the time of her dismissal, the accounting clerk, who gave her a Record of Employment, told her that she will find new employment because she is young. The Reply further states that the respondent was downsizing, and terminated her employment to avoid paying her financial compensation.

7The hearing of the merits of the Application took place on May 19, 2009. At the outset of the hearing, counsel for the respondent requested that all or part of the Application be dismissed as failing to disclose a prima facie case of discrimination. I ruled that I would not hear the respondent’s request until after the applicant had presented her case.

8The applicant testified on her own behalf, and called two witnesses. She also requested that I hear from two other witnesses, but they were not immediately available to testify because she had just issued summonses to them. The applicant stated that they may appear the following day or at a future date. I denied the applicant’s request because she failed to provide a good reason why she had failed to issue the summonses in a timely manner, and it would not be fair, just and expeditious to delay or bifurcate the hearing.

EVIDENCE

9The applicant testified that on August 21, 2007 she was called into a meeting with Rory Roberts, the owner of the company, Fraser Roberts, a manager, and the accounts/payroll clerk. She stated that Rory Roberts said, “we have to part ways,” and she was then provided with a termination of employment letter. The letter stated that her employment was terminated because of “poor performance, incompetence, and conduct incompatible with the duties of a Risk Management Analyst.” The letter also stated that she had been “advised repeatedly of performance shortcomings and given ample opportunity [to] correct deficiencies, yet we are faced again with client complaints”.

10The applicant denied that her work performance was poor or that there were client complaints about her, or that she had been informed prior to the meeting of any such concerns. She stated that her work performance was excellent and that the respondent gave her raises during her term of employment. She also stated that the real reason why the respondent terminated her employment was because it saw her as expendable because she is an immigrant, from England rather than Canada, Sikh, a woman, single, young, and has no dependants. She further stated that if she was from Canada, male and Anglo-Saxon, the respondent would have provided her with adequate notice.

11After the applicant indicated that she had completed her testimony, I read out each Code ground that she listed in her Application, and asked her to identify the facts that she was relying upon to establish discrimination. The applicant’s response with respect to each ground was as follows:

• Race: She was the only “East Indian” in her department, and the rest were of Anglo-Saxon background.
• Colour: She was only East Indian female in her department.
• Ancestry: She was hired because she was a hard working immigrant, and fired because she was an immigrant.
• Place of origin: She was born in England, her first language is Punjabi, and her motherland is India.
• Citizenship: The respondent took advantage of the fact that she was new to Canada, having only lived here for 11 years, and was not aware of the law.
• Ethnic origin: The respondent used against her the fact that her heritage is from India and she was seen as not being Canadian.
• Creed: She was the only Sikh working in the company.
• Sex: She is a woman, which is a protected class, and was making a high salary.
• Family status: The respondent used against her the fact that she is not a parent and does not have children.
• Marital status: At a company Christmas lunch in 2004, Rory Roberts pointed out that she was single, and questioned whether there was something wrong with her. Furthermore, at the time of her dismissal, the accounts/payroll clerk told her that she would not have difficulty finding a new job because she is single.
• Age: At the time of her dismissal, the accounts/payroll clerk told her that she would not have difficulty finding a new job because she is young.

12In cross-examination, the applicant admitted that she filed a claim with the Ministry of Labour following the termination of her employment, that there were other employees, both in her department and in the company at large, who were racialized, immigrants, female, single, and/or childless, that she is a Canadian citizen, that she does not know if the comments that Rory Roberts made in 2004 were connected to the termination of her employment, and that she had not experienced discrimination in the workplace prior to the termination of her employment.

13The applicant called two witnesses. The first witness, Matthew Cook, was a Vice President with the respondent from December 2004 to December 2005. He testified that the applicant did not report directly to him and he never evaluated her performance, but, as far as he knew, her work performance was competent. He also stated that during the term of his employment, he had to deal with one complaint from a client about the applicant. He stated that the complaint was not serious, and he was able to resolve it. He also stated that at a Christmas party in 2004 Rory Roberts told the applicant: “We have to find you a husband”. He stated that although the comment was “badly put”, it was a pleasantry and not made with spite or malice.

14The second witness, Ken Williams, was a Vice President with the respondent from September 2005 to May 2006. He testified that the applicant did not report directly to him, he was in a different section of the company than her, and he never evaluated her performance, but he never heard anything negative about her work performance, and her ability to get loan approvals was better than average.

REQUEST TO DISMISS

15Following the applicant’s presentation of her case, counsel for the respondent requested that the Tribunal dismiss the Application on the basis that the applicant failed to establish a prima facie case of discrimination. Counsel submitted that the applicant listed almost all the grounds of discrimination in section 5 of the Code, and did not even attempt to establish a nexus between the termination of her employment and most of the grounds. Furthermore, even where she did attempt to establish a nexus, the evidence did not support her allegation.

16The applicant submitted that she did establish a prima facie case of discrimination. She stated that the evidence shows that she is member of a protected class under the Code, she was competent in her job, and she was fired without a reason, therefore, she has established that there was discrimination.

17Following the parties’ submissions, I made an oral ruling dismissing the Application and indicated that written reasons would follow. The following are my reasons.

ANALYSIS

18The onus is on the applicant to establish a prima facie case of discrimination. A prima facie case is 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: see Ontario Human Rights Comm. v. Simpsons-Sears, 1985 CanLII 18 (S.C.C.), at para. 28. Upon establishing a prima facie case, the burden shifts to the respondent to provide a credible and rational explanation demonstrating, on a balance of probabilities, that its actions were not discriminatory.

19It 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. In the case at hand, I am not satisfied, after hearing the applicant’s evidence, that she has established a prima facie case of discrimination.

20In her Application, the applicant listed 11 out of the 14 grounds in subsection 5(1) of the Code. The Tribunal receives very few applications that list as many Code grounds as this one, and, in my view, the applicant has failed to set out sufficient particulars of differential treatment for many of the listed Code grounds. Even for the grounds where she did attempt to set out more detailed particulars, I find that much of her evidence was not credible because it was illogical or internally inconsistent.

21The applicant did not make any allegations of differential treatment with respect to the termination of her employment and denial of a severance package. Specifically, she did not allege that the respondent terminated her employment, but retained other employees, who did not share her Code-related personal characteristics, or that the respondent provided severance packages to other terminated employees, who did not share her Code-related personal characteristics.

22In both her pleadings and her evidence at the hearing, the applicant discussed the grounds of race, colour, ancestry, place of origin, citizenship, ethnic origin, and creed as if they were intersectional. Therefore, I have considered these grounds together. The applicant alleges that the respondent terminated her employment because she was only East Indian in a department of Anglo-Saxon employees, the only Punjabi Sikh in the company, and she was unaware of employment laws in Canada because she was not Canadian and was new to Canada, having been here for only 11 years.

23The applicant’s allegation that she was the only non-Anglo-Saxon employee in her department is not credible. In cross-examination, she admitted that there were other racialized and immigrant employees throughout the company, including in her department.

24The applicant’s allegation that the respondent took advantage of her lack of awareness of the law because she is not Canadian and is new to Canada is also not credible. In cross-examination, the applicant admitted that she is a Canadian citizen. She has also lived in Canada for 11 years, which, in my view, does not meet the definition of someone who is “new” to Canada. In addition, the applicant immigrated to Canada from the United Kingdom, which has a similar legal system to Canada, and she is fluent in English. Furthermore, after the respondent terminated her employment, she filed a claim with the Ministry of Labour and her Application with this Tribunal, which indicates familiarity with employment laws in Canada.

25With respect to the aforementioned grounds, the only evidence that remains credible is her allegation that she was the only East Indian employee in her department, and the only Punjabi Sikh employee in the company. This evidence coupled with the fact the respondent terminated the applicant’s employment without a severance package is not sufficient to establish a prima facie case of discrimination because of race, colour, ancestry, place of origin, citizenship, ethnic origin, and creed.

26With respect to the ground of sex, the applicant alleged that she was the only woman in her department making a high salary. The mere fact that the applicant was the highest paid female in her department and the respondent terminated her employment without a severance package is not sufficient to establish a prima facie case of discrimination because of sex. In cross-examination, the applicant admitted that she was not the only female employee in her department. Furthermore, even if it is true that the respondent terminated the applicant’s employment because she had a high salary, that would not constitute a violation of the Code.

27The applicant also discussed the grounds of family status and marital status as if they were intersectional. Therefore, I have considered these grounds together. The applicant alleges that she was single and had no dependants, at a Christmas lunch in 2004, the owner of the company pointed out that she was single, and questioned whether there was something wrong with her, and at the time of her dismissal, the accounts/payroll clerk told her that she would not have difficulty finding a new job because she is single. In cross-examination, the applicant admitted that there were other employees in her department who were single and had no dependants. She also admitted that she is unsure if the comments that the owner made in 2004 were connected to the termination of her employment, and she had not experienced discrimination in the workplace prior to the termination of her employment. Furthermore, I prefer the evidence of the applicant’s witness, Mr. Cook, who was a disinterested observer, with respect what the owner said to the applicant at the Christmas lunch in 2004. I do not believe that the owner’s comments were hostile or that he said that there is something wrong with the applicant because she is single.

28The mere fact that the owner made a comment in 2004 about finding her a husband, and a non-management employee told her at the time of her dismissal that she would not have difficulty finding a new job because she is single is not sufficient to establish a prima facie case of discrimination because of family status and marital status.

29With respect to the ground of age, the applicant alleged that she was dismissed because she was young (33 years of age). She specifically alleged that, at the time of her dismissal, the accounts/payroll clerk told her that she would not have difficulty finding a new job because she is young. The applicant did not present any evidence that she was the youngest employee in her department. The mere fact that the respondent terminated the applicant’s employment without a severance package when she was 33 years of age, and a non-management employee told her at that time that she would not have difficulty finding a new job because she is young is not sufficient to establish a prima facie case of discrimination because of age.

30In dismissing the Application, I need not determine whether or not the respondent’s allegation that the applicant had poor work performance is true. Much of the applicant’s evidence sought to challenge the respondent’s statements about her. I understand her concern that such allegations may affect her reputation and ability to obtain future employment, but the Application is dismissed because the onus is on the applicant to establish a prima facie case of discrimination, and she has failed to do so. As a consequence, the burden does not shift to the respondent to establish a non-discriminatory reason for terminating her employment. If the applicant’s main concern is that the respondent wrongfully dismissed her and denied her a severance package, there are other legal forums where she can raise this issue.

ORDER

31The Application is dismissed.