HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Gloria Preddie
Applicant
-and-
Saint Elizabeth Health Care, Jean Piccinato, Kathy Craddock, Rachel McAuley, Lori Ranchik, Susan Donison, Mary Beth Lucas and Shirlee Sharkey
Respondents
DECISION
Adjudicator: Eric Whist
Indexed as: Preddie v. Saint Elizabeth Health Care
APPEARANCES
Gloria Preddie, Applicant ) Aldo Forgione, Counsel
Saint Elizabeth Health Care, Jean Piccinato, ) Kathy Craddock, Rachel McAuley, ) Lori Ranchik, Susan Donison, Mary Beth Lucas) and Shirlee Sharkey, Respondents ) Christopher Andree, Counsel
1The applicant filed an Application on March 23, 2010 under section 34 of the Ontario Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application alleges discrimination in employment on the basis of race, colour and age.
2On June 2, 2011, the Tribunal issued a Case Assessment Direction (“CAD”) directing that a summary hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. The issue to be determined in a summary hearing is 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. The summary hearing in this file was held on November 7, 2011. During the summary hearing, I heard submissions from counsel for the parties and briefly from the applicant.
BACKGROUND
3The applicant was a Registered Practical Nurse (“RPN”) working for the institutional respondent, Saint Elizabeth Health Care (“SEHC”), in the Metropolitan Toronto area when she applied to transfer to a position with SEHC in its Windsor office. SEHC provides in-home nursing, rehabilitation, and personal support services from a number of regional centres across Ontario. The applicant began working in Windsor in January, 2009.
4The Application provides an account of the applicant’s experiences with SEHC’s Windsor office and itemizes a number of instances in which the applicant believes she was inappropriately treated. These include allegations that SEHC was lax in its efforts to communicate with her prior to her beginning work in Windsor and that on the first day of her employment the applicant had to wait in the reception area for an extended period of time and was not introduced to any of the staff at that time or at later staff meetings. The Application alleges that for several weeks the applicant was not assigned any home visits and remained in the Windsor office during which time she had to work on a computer to complete some assignments. The Application states that the applicant was given no assistance when she had difficulties working with the computer, sometimes being left to wait several hours for help. The Application states that the applicant was not sent out for a home visit until February 11, 2009 and recounts that on one occasion the applicant was given three clients that required her to drive an excessive distance (156 kilometres) and for which she was not paid mileage. The Application alleges that the applicant was, on several occasions, required by the respondents to make medical and non-medical decisions in relation to clients that she did not feel were suitable. The Application further states that the applicant was not paid in a timely fashion and eventually was under financial stress because of a lack of work assignments and, in retrospect, regrets that she left her employment in Toronto to take this position.
5The Application alleges discrimination based on race, colour and age. The Application identifies the applicant as a West Indian Canadian female who was 65 years old at the time she began working for SEHC in Windsor. However, the Application’s account of events makes no specific reference to discriminatory treatment. The only explicit and clear reference to discrimination in the Application is in Section A13 where the applicant is asked to explain why she believes she has been harassed or discriminated against because of her race and colour and she responds “Basically I think everything that happen what they did to me was a plan to get rid of me base on my age.” The Application also asks the applicant to explain in section A34 why she believes she has been harassed or discriminated against because of her age to which she refers to having to ask several times for a transfer from Toronto to the position in Windsor.
6The respondents filed their Response on May 3, 2010. The Response states that at the time of the transfer request the Windsor office was experiencing pressures, hence the problems in effectively communicating with the applicant at that time. It maintains that once in Windsor the applicant was required to complete a number of on-line nursing certificates and that she had considerable difficulty completing these, in part because she had limited computer skills. It maintains that the applicant’s job in the Windsor office was decidedly different from the one the applicant was used to in Toronto as it required the applicant to work as a general nurse (as opposed to a foot care specialist). It also required greater travel and it relied on different scheduling and communication practices. The Response states that the applicant had difficulties with using the communication tools required for her job, such as voicemail and email, and she had difficulties using the required scheduling system. The Response refers to the applicant having to be removed from providing palliative care to a client because the client’s family complained about the applicant being aggressive, rude, and abrupt.
7The Response further states that there was a drop in the number of visits conducted by the SEHC out of its Windsor office with the result that in March 2009 twelve nurses were laid off, including the applicant. It suggests that after this date SEHC had difficulty contacting the applicant when it did have available work and that she only worked sporadically after this date until March 2010 when the applicant apparently did not renew her license with the College of Nurses of Ontario. The Response states that after the applicant did not respond to an enquiry about her RPN status from the SEHC, the SEHC deemed her to having resigned from her position.
8The respondents acknowledge that there were tensions between the applicant and SEHC but maintain that these were related to the applicant’s frustrations in performing a new job with different requirements and ultimately having reduced work. The respondents deny that any of the respondents’ actions can be characterized as discrimination or harassment based on race, colour or age.
9The respondents filed a Request for a Summary Hearing in which they submit that while the applicant was clearly dissatisfied with her position in Windsor, there is nowhere in the substance of her Application in which the applicant raises any facts that connect these allegations to a ground of the Code. They submit that the only reference to a protected ground of discrimination is the applicant’s answer to question A13 where she states, “Basically I think everything that happen what they do to me was a plan to get rid of me base on my age” but the respondents submit that this allegation, absent any fact to support it, does not make out a prima facie case of discrimination and consequently the Application should proceed to a summary hearing and be dismissed.
10The applicant filed a Form 10 response to this Request for a Summary Hearing in which she seeks to proceed to a hearing.
HEARING SUBMISSIONS
Applicant’s Submissions
11The applicant’s counsel submits that there were specific instances in which the applicant was subject to discriminatory treatment between when she began work in the Windsor office in January 2009 and when she was laid off in March 2009. Counsel submits that the reason the applicant was not introduced to staff on the first day of her work in Windsor was because she was Black, a fact that staff would have only known upon her arrival. Counsel submits that the applicant was unfairly given less desirable job assignments, for example, when she was sent to see three clients requiring her to travel 156 kilometers, and that this could have been because of her race and colour. Counsel submits that the complaint about the applicant from the family of a client that the respondents referred to in their Response may have been an instance in which the SEHC accommodated a request from a client who did not want to be served by a Black nurse.
12The applicant’s counsel submits that the respondents knew or ought to have known that as an older person the applicant would not have been computer literate and that they needed to do more to accommodate the applicant when she had difficulty in completing her on-line computer assignments. This failure, according to the applicant’s counsel, constitutes discrimination based on age.
13The applicant’s counsel is of the view that the applicant’s March 2, 2009 letter to the respondent in which the applicant complains that she had not been treated equitably was significant. Counsel notes that it was shortly after this letter that the applicant was subject to a layoff and he raised the issue of whether her employment rights were violated in this regard. Counsel also notes that the applicant was one of the few Black employees in the Windsor office and was noticeably older, and for these reasons was likely being treated inequitably. Counsel suggests that a hearing in which the respondents’ witnesses would be cross-examined could well reveal the discriminatory practices of the respondents.
14Counsel further submits that the applicant had prepared her own Application which might account for why it did not more explicitly refer to specific incidents as being discriminatory. He also submits that it is difficult to discern racial discrimination given its subtlety and the fact that it may not be intentional, as has been found in a number of human rights decisions. See Bertrand v. Primary Response Inc. and Meredith Cranswick, 2010 HRTO 186; and Radek v Henderson Development (Canada) and Securiguard Services (No. 3 ) [2005] BCHRT 302.
Respondents’ Submissions
15The respondents’ counsel submits that the allegations of discrimination based on race and colour made at the hearing are not ones that were made in the Application and that the applicant should not be allowed to make further factual submissions that are not contained in the Application. Moreover, the respondents’ counsel submits that the allegations of discrimination based on race and colour made at the hearing are speculative in nature without any factual basis. The respondent’s counsel argues that there is, for example, no foundation for the contention that the complaint made by a client’s family that the applicant was aggressive, rude, and abrupt was related to the applicant’s race and colour, or that the applicant’s work assignments were somehow tainted by discriminatory considerations. The respondents’ counsel submits that the applicant’s counsel was making bald assertions that discrimination may have taken place so that a hearing on the merits would be convened at which time he could cross-examine the respondents’ witnesses in the hopes of uncovering discriminatory behaviour. The respondents’ counsel submits that this amounts to a fishing expedition and should not be allowed as no factual basis has been established to suggest such discrimination may have occurred.
16The respondents’ counsel argues that the applicant has not established that the respondent had a duty to accommodate the applicant by providing further support to her when using her computer because of her age. The respondents submit that it would be inappropriate to assume that persons of a certain age do not have computer skills.
17Finally, the respondents’ counsel submits that the applicant’s March 2, 2009 letter of complaint that the applicant wishes to rely on makes no allegations of discriminatory treatment and the Tribunal is not the right forum if the applicant wants to argue that her employment rights were violated in the layoff process.
ANALYSIS AND DECISION
18Rule 19A.1 reads as follows:
19A.1 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.
19In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 7-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:
A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.
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.
20I find that the applicant does not have a reasonable prospect of proving that her rights under the Code have been violated by establishing a link between the respondents’ actions and the applicant’s race, colour and age.
21In her Application the applicant provides a detailed account of events and clearly expresses her frustrations with the way she was treated by the respondents. However, when required to explain the connection between the respondents’ actions and her rights under the Code, the applicant provides only the most general of comments. She alleges that all of the respondents’ actions are tainted by considerations of her age. She makes no identifiable allegations of discrimination based on race and colour. In Zaki v. Ontario (Commuity and Social Services) 2011 HRTO 1797 the Tribunal states that the Rules of the Tribunal require an application or response to “set out all the facts that form the substance of the allegations of discrimination including the circumstances of what happened, where and what happened”. In my view the applicant has not provided in her Application an account that explains what the links might be between the respondents’ actions and a possible violation of her rights under the Code, whether based on based on her age or her race and colour.
22At the summary hearing the applicant made a number of specific allegations of discrimination. However, I find it significant that these allegations are not consistent with the general thrust of the Application. In the Application the applicant suggests that all of the respondents’ actions are tainted by considerations of her age, including a further reference to age being a consideration when she was endeavouring to transfer her job from Toronto to Windsor. At the hearing the applicant made only one allegation related to age, which is basically that the respondent failed to provide accommodation for the applicant when she had difficulty performing tasks on a computer. At the hearing, the applicant’s counsel specifically stated that the applicant is not alleging discrimination in relation to the transfer of her position to Windsor: that her allegations of discrimination are only in relation to events that occurred between January and March 2009. At the summary hearing the applicant principally relied on a number of allegations of discrimination based on race and colour that are not made in the Application. I do find this shift in focus troubling. Why has the applicant’s theory of the case changed so significantly from her Application to her theory of the case as presented at the hearing?
23The applicant’s counsel did submit that the applicant would have identified that certain incidents described in her Application were incidents of discrimination based on race and colour but the applicant was not represented at the time she filed her Application and did not appreciate how to appropriately make her complaint. I am not persuaded by this submission. The applicant was able to describe in detail a number of incidents in which she felt she was unfairly treated by the respondents. I do not see why, if the applicant had reasons for believing that this unfair treatment was because of her race and colour, that she could not have recorded these reasons in her Application in some form, particularly given that the Application explicitly asks for such reasons.
24Moreover, even if the Application was amended to include these specific allegations of discrimination based on race and colour, the applicant has not shown any foundation for them as they are speculative in nature. The applicant has not provided any facts to explain why, for example, she is of the view that she was given less desirable work assignments because of her race and colour and that the claim from a client’s family about the applicant’s conduct was because the family did not want a Black nurse. The applicant’s counsel acknowledged, in my view, the speculative nature of these allegations when he suggested that the respondents may have considered the applicant’s race and colour in its decision making and that he wished to cross-examine respondents’ witnesses as a means to determine what did occur.
25I accept the argument of the applicant’s counsel that discrimination based on race or colour can indeed be subtle and hard to detect, but an applicant must provide some reasonable basis for making allegations of such discrimination. It is not sufficient to claim discrimination as a member of a group protected under the Code and to look to a hearing process before the Tribunal as the means to discover whether such discrimination occurred; there must be some reasonable prospect that evidence the applicant has or that is reasonably available to her can show a link between the events alleged and the alleged prohibited ground. I cannot find, based on the Application and the submissions of the applicant and her counsel, that there is a reasonable prospect that the applicant can prove that she was discriminated against by the respondents based on her race and colour.
26I also do not find that there is a reasonable prospect that the applicant can establish that requiring her to work with a computer was age discrimination and the respondents’ alleged failure to subsequently assist the applicant was a failure to accommodate. The applicant was essentially relying on an argument that requiring persons to use computers has an adverse effect on older workers because of their lack of computer skills and that the respondents had a duty to accommodate the applicant because of her lack of computer skills, which they failed to meet. I had no information before me to support the contention that requiring the applicant to use a computer was adverse effect discrimination based on age. I do not have to consider the applicant’s further contention that the respondents failed to accommodate the applicant. The duty to accommodate is not a free standing obligation under the Code. The duty to accommodate only arises if an applicant has been subject to adverse effect or direct discrimination, and as stated, there is no information to indicate that requiring an older person to use a computer is adverse discrimination based on age.
27The applicant is clearly concerned about the treatment she received. However, the alleged treatment must be linked in a substantive way to a Code ground. As the Tribunal stated in another summary hearing, John Villella v Corporation of the City of Brampton and Susan Bauman, 2011 HRTO 1085, at para. 10:
The applicant must show more than mere subjective suspicion to establish a link between the respondent’s alleged conduct and the grounds pleaded. There must be at least some objective facts and circumstances to support the theory linking the respondents’ action with the Code. Here, I do not see that the applicant has alleged any facts that would be capable of establishing such a link.
28Having considered all the information before me, I find that there is no reasonable prospect that the Application will succeed and the Application is therefore dismissed.
Dated at Toronto, this 22nd day of November, 2011.
”signed by”_____________
Eric Whist
Vice-chair