Eileen Lane v. Walmart Canada, 2011 HRTO 1990

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eileen Lane Applicant

-and-

Walmart Canada Respondent

DECISION

Adjudicator: Ena Chadha Date: November 3, 2011 Citation: 2011 HRTO 1990 Indexed As: Lane v. Walmart Canada

APPEARANCES

Eileen Lane, Applicant (Self-represented) Walmart Canada, Respondent (Christopher McClelland, Counsel)

1This Application was filed on February 11, 2011 under section 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 record of offences.

BACKGROUND

2On March 16, 2011, the Tribunal issued a Notice of Intent to Dismiss (“NOID”) indicating that it appeared that the Application did not raise an issue the Tribunal had the jurisdiction (power) to resolve because the Application did not describe how the respondent’s alleged behaviour was related to the Code ground of “record of offences”.

3On April 1, 2011, the applicant filed submissions in response to the NOID. These submissions indicated that the applicant believed that she experienced age discrimination.

4By way of Interim Decision 2011 HRTO 708, the Tribunal directed the applicant to file a detailed statement in response to Question 8 of Form 1 of the Application describing each element of the respondent’s alleged conduct that she believed constituted discrimination.

5On April 20, 2011, the applicant filed documents reproducing some of the materials that were originally filed with the Application setting out why she believed she was wrongfully dismissed. The applicant’s submissions indicated she believed she was unfairly punished by the respondent for workplace infractions which were not entirely her fault.

6By Case Assessment Direction dated May 13, 2011, the Tribunal, on its own initiative, directed that the matter be scheduled for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. A hearing by teleconference was held October 24, 2011. The applicant and counsel for the respondent participated on the call.

ANALYSIS

7Rule 19A of the Tribunal’s Rules of Procedure states that the Tribunal may hold a summary hearing on its own initiate or at the request of a party on the question of whether whether the 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.

8In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-9, the Tribunal made the following observations about the lines of inquiry involved in a summary hearing:

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 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.

9When the applicant originally filed her Application she indicated that “record of offences” was the ground upon which the respondent discriminated against her. However, on the relevant part of the Application form, the applicant answered “no” to the questions “Do you believe you were discriminated against because of your record of offences under a federal law (Criminal Code offence)?” and “Do you believe you were harassed or discriminated against because of your record of offences under provincial law (such as the Highway Traffic Act)?”.

10“Record of offences” is specifically defined in section 10 of the Code as follows:

“record of offences” means a conviction for,

(a) an offence in respect of which a pardon has been granted under the Criminal Records Act (Canada) and has not been revoked, or

(b) an offence in respect of any provincial enactment.

11It appears that, in filing her Application, the applicant misunderstood “record of offences” to cover issues of workplace infractions and employment disciplinary processes. During the conference call, the applicant acknowledged that she did not have a criminal conviction for which a pardon has been granted. Consequently, it appears that the Application does not pertain to a record of offences as defined under the Code.

12In her written submissions in response to the NOID, the applicant alleged that she experienced age discrimination. However, in those written submissions, the applicant did not allege or articulate any specific concerns or incidents which highlighted how, when and on what basis the applicant perceived that the respondent’s actions were connected to her age.

13At the Summary Hearing conference call, the applicant was given the opportunity to describe any evidence she has and to explain how it establishes a link to a prohibited ground of discrimination, in particular, the protected ground of age. The applicant asserted that it was self-evident and self-explanatory that, given the legitimate explanations she had that refuted the respondent’s criticisms of her performance, the only reason for her dismissal, therefore, would have to be her age.

14The applicant was requested to clarify the nexus between the events that she alleged to be mistreatment and her age. Aside from making speculative claims that she was “set up” by her co-workers and broad denials of any performance concerns on her part, the applicant did not explain how the respondent’s treatment of her, in particular the employment coaching for alleged infractions, were in any way connected to Code grounds. In fact, the applicant repeatedly stated that she was “not saying it was age discrimination”, but since she did not agree that the respondent had valid grounds for the coaching and dismissal, she was “suspicious” it was age discrimination. The applicant appeared to suggest that she was entitled to have a Tribunal hearing to investigate her suspicion.

15The Tribunal’s jurisdiction is based on the Code, which prohibits discrimination in specific areas (for example, employment, housing, contracts, etc.) on the basis of specific protected grounds listed in the Code (for example, disability, gender, race, etc.). The Tribunal does not have a general power to inquire into claims of workplace unfairness outside of the grounds listed in the Code. For example, in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, the Tribunal stated at para. 17:

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 the intention by a respondent to commit a reprisal for asserting one’s Code rights.

16The applicant has not identified any evidence to indicate that either age discrimination or discrimination on the basis of record of offences were factors in her workplace experience. The applicant clearly feels that she has been treated unfairly, but she did not explain how the alleged mistreatment occurred in connection to the Code grounds. The applicant did not point to any evidence to link her experiences of alleged unfairness to the prohibited grounds of age or record of offences.

17In conclusion, the applicant has not demonstrated that there is a reasonable prospect that any evidence she has, or that is reasonably available to her, can show a link between the respondent’s alleged mistreatment and Code grounds.

CONCLUSION

18At the outset of the conference call, the applicant indicated that she was tape recording the hearing. The Tribunal advised that, in accordance with the Tribunal’s Practice Direction on Recording Hearings, the applicant was required to obtain permission in advance to record a hearing and that the Tribunal does not normally record its proceedings, subject to issues of accommodation. The Tribunal explained that parties may record hearings using their own equipment only with the consent of the panel and provided that a copy of the recording is supplied to the other party and the Tribunal. The applicant expressed dissatisfaction that she was not notified of this earlier. The Tribunal noted that it appeared that the applicant had not made any such inquiries with the Registrar’s office and that the Tribunal’s Rules of Procedure, Guides to its processes, and practice directions are available on the Tribunal’s website.

19At the conclusion of the conference call, the applicant indicated that her friend, Peter, wanted to make submissions to the Tribunal; however, both the applicant and the applicant’s friend refused to provide the Tribunal with the friend’s full name and identity. The applicant’s friend made brief remarks about the applicant’s character and the respondent’s alleged unfair treatment of the applicant. The respondent declined to make any submissions in response to the applicant’s friend’s comments. The Tribunal indicated that no weight would be accorded to the individual’s remarks given the applicant’s and her friend’s refusal to provide his full name. In any event, the information provided by the applicant's friend does not persuade me that the Application has a reasonable prospect of success.

20For the reasons stated above, there is no reasonable prospect that the Application will succeed and, accordingly, it is dismissed.