HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Andrea Anderson
Applicant
-and-
Thomas Gold Pettingill LLP and Robert Half International
Respondents
DECISION
Adjudicator: Ken Bhattacharjee
Indexed as: Anderson v. Thomas Gold Pettingill LLP
appearances
Andrea Anderson, Applicant ) Self-represented
Thomas Gold Pettingill LLP, Respondent ) Lambert Boenders, Counsel
Robert Half International, Respondent ) James D. Heeney, Counsel
INTRODUCTION
1The purpose of this Decision is to determine whether the Application should be dismissed on a preliminary basis.
BACKGROUND
2The applicant worked as a temporary legal assistant with Thomas Gold Pettingill LLP from April to June 2009. She obtained the position through Robert Half International, which is a staffing firm.
3On December 31, 2010, the applicant filed an Application under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents discriminated against her because of her race, place of origin and marital status, and subjected her to reprisal, all with respect to employment.
4The applicant also filed two related Applications against her former employer, Lerners LLP, and her subsequent employer, Stieber Berlach LLP. The Tribunal dismissed her Application against Lerners LLP after a summary hearing on September 1, 2011. See Anderson v. Lerners LLP, 2011 HRTO 1654.
5On April 8, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) with respect to the Application at hand, which directed that a summary hearing be held by teleconference to determine whether the Application should be dismissed. The CAD set out two issues to be determined at the summary hearing: (i) whether there is a reasonable prospect that the applicant can show a link between her treatment by the respondents and the Code grounds cited, and (ii) whether the Application is outside the Tribunal’s jurisdiction on the basis that it was filed beyond the one-year statutory deadline.
6On June 8, 2011, the Tribunal issued a Notice of Rescheduled Summary Hearing to the parties, which informed them that the hearing was scheduled for September 23, 2011.
7Between the date that the applicant filed her Application and the date of the summary hearing, the applicant filed correspondence and Requests for Orders During Proceedings (“RFOPs”), which requested that the Tribunal defer consideration of her Application and allow her to amend her Application by adding new Code grounds (disability, sex, family status, and association with a person identified by a Code ground) and new allegations of discrimination.
8The summary hearing took place by conference call as scheduled. At the beginning of the hearing, the applicant withdrew her deferral Request, and the respondents consented to the applicant’s Request to amend her Application. Accordingly, the Tribunal granted the applicant’s Request to amend her Application.
9I heard submissions from the applicant, and dismissed the Application with written reasons to follow. The following are my reasons.
REASONABLE PROSPECT OF SUCESSS
10The sole issue that was addressed at the summary hearing was whether the Tribunal should dismiss the Application on the basis that there is no reasonable prospect that it will succeed.
11Rule 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.
12Furthermore, in Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 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.
13The applicant set out numerous allegations of unfair treatment in her Application, RFOPs and oral submissions, but her main Code-related allegation appears to be that she was not considered for a subsequent job opening at Thomas Gold Pettingill LLP after her three-month placement ended. She also appears to be believe that Robert Half International played some role in her failure not to be considered for the job.
14In her oral and written submissions, the applicant stated that her Application has a reasonable prospect of success for a number of reasons, the most significant of which are the following.
15First, she stated that she can prove that she performed well during her three-month placement with Thomas Gold Pettingill LLP. Specifically, she stated some of Thomas Gold Pettingill LLP’s lawyers and staff told her that they were pleased with her work performance, and that no negative feedback about her performance was provided to Robert Half International.
16Second, she stated that she can prove that Lerners LLP passed on discriminatory information about her to Thomas Gold Pettingill LLP and Robert Half International. Specifically, she stated that Lerners LLP staff perceived her as having marital problems because her husband had been out work since her family immigrated to Canada from the United Kingdom, and also perceived her as having a disability because she was accused of sending “crazy” emails. She stated that she believes that this information was passed on because there are staff in the two law firms who know each other, and an employee at Thomas Gold Pettingill LLP raised her perceived marital problems with her, even though she never told that employee that she had marital problems.
17Third, she stated that some of the staff at Thomas Gold Pettingill LLP implied that she was like the main character in the book and film, Eat, Pray, Love: One Woman's Search for Everything Across Italy, India and Indonesia. Specifically, she stated after she returned from a trip to Italy she met with some of her former co-workers and they compared her to the main character in Eat, Pray, Love, who left her marriage and travelled to Italy, India and Indonesia. The applicant, who self identifies as Anglo Indian, also stated that her former co-workers knew that she was of Indian origin, and were making the comparison because the main character went to India.
18Fourth, she stated that some staff at Thomas Gold Pettingill LLP knew that her children had returned to the United Kingdom, and she therefore believes that the staff perceived that she would be joining her children, along with her husband, and not be available for the job in the long run.
19Fifth, she stated that Robert Half International’s staff were trying to put her off from applying for the job.
20Towards the end of her oral submissions, I asked the applicant whether she was alleging that the respondents subjected her to reprisal because section 8 of the Code provides that every person has a right to claim and enforce her rights under the Code and to institute and participate in proceedings under the Code without reprisal or threat of reprisal for so doing, but there are no allegations in the Application that fall within this definition. The applicant stated that she did not know, and would leave this issue up to the Tribunal.
21The applicant concluded by stating that the discrimination began at Lerners LLP, and then followed her like a bad smell to her subsequent employers, Thomas Gold Pettingill LLP and Stieber Berlach LLP, as well as to Robert Half International.
22The applicant also submitted a number of documents as evidence supporting her allegations of discrimination. Some of the documents are emails exchanged between the applicant and staff at Thomas Gold Pettingill LLP, in which staff acknowledge that there may be a job opening in the future. Other documents are emails exchanged between the applicant and staff at Robert Half International, which discuss alleged negative feedback that Robert Half International received from another law firm about the applicant’s work performance. Finally, there is an email from the applicant to Lerners LLP, which accuses the firm of spreading malicious gossip about her that resulted in her losing the job at Thomas Gold Pettingill LLP.
23I find that there is no reasonable prospect that the Application will succeed.
24The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code, or an intention by a respondent to commit a reprisal for asserting one’s Code rights. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17.
25In my view, there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that her Code rights were violated. Although the applicant provided an elaborate theory of how she was discriminated against by the respondents, her allegations and supporting documents are merely speculative and accusatory. The applicant has not demonstrated that there is a reasonable prospect that evidence she has, or that is reasonably available to her, can show a link between either Thomas Gold Pettingill LLP’s alleged failure to consider her for a job opening, or Robert Half International’s alleged attempt to put her off from applying for the position, and any Code grounds.
26With respect to her allegations of reprisal, the applicant did not allege that the respondents retaliated against her for claiming or enforcing her rights under the Code, or instituting and participating in proceedings under the Code. As such, what she alleged cannot be reasonably considered to amount to a Code violation.
ORDER
27The Application is dismissed.
Dated at Toronto, this 28th day of September, 2011.
”signed by”______________
Ken Bhattacharjee
Vice-chair