HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Stacey Harrison

Applicant

-and-

Loblaw Companies Limited, Michael Burns, Michael McInnis and Constantina Tsilimigras

Respondents

DECISION

Adjudicator: Ken Bhattacharjee

Date: November 24, 2011

Citation: 2011 HRTO 2126

Indexed as: Harrison v. Loblaw Companies Limited

appearances

Stacey Harrison, Applicant ) Self-represented

Loblaw Companies Limited, Respondent ) Zoe King, Counsel

Michael Burns, Respondent ) Daniel Condon, Counsel

Michael McInnis and Constantina ) Jeffrey Andrew and Andrew Tsilimigras, Respondents ) MacIsaac, Counsel

INTRODUCTION

1The purpose of this Decision is to decide whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

BACKGROUND

2The applicant worked at a Loblaw store between December 2003 and August 2007, when her employment was terminated.

3On August 21, 2008, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondents subjected her to sexual harassment and sexual solicitations and advances with respect to employment.

4On April 8, 2009, the parties executed Minutes of Settlement, and the Tribunal subsequently issued an order disposing of the Application.

5On November 18, 2009, the applicant filed a new Application under s. 34 of the Code against the same respondents, which alleged that they subjected her to reprisal with respect to employment.

6Specifically, she alleged that (a) the “individual respondents” and others made harassing and threatening comments to her, including death threats, outside the unit of her building and in various public places on multiple occasions, and (b) the “respondents” breached the confidentiality provision of the Minutes of Settlement by disclosing confidential information about her to third parties. Her allegations did not specify the names of the “individual respondents” or anyone else who committed these acts of reprisal.

7The respondents all filed Responses in March 2010, which denied the allegations of reprisal, and stated that the allegations were difficult to respond to because of their lack of particulars. The individual respondents to this Application all denied that they had any contact with the applicant since the Minutes of Settlement were executed. Two of the individual respondents, Mr. McInnis and Ms. Tsilimigras, also attached time sheets to their Responses, which appear to show that they were at work when some of the alleged acts of reprisal occurred.

8On December 17, 2010, the Tribunal issued an Interim Decision, 2010 HRTO 2508, which ordered the applicant to serve on the respondents and file with the Tribunal particulars of her allegations, including the names of the individuals who were alleged to have committed the acts of reprisal.

9On December 23, 2010, the applicant filed particulars which, in significant respects, contradicted the allegations in her original Application. Specifically, in seven of the allegations in her original Application, she identified the “individual respondents” as the offending parties, but in her particulars she named other individuals instead. Two of the other individuals whom she named were “Marco Tavoleri”, whom she identified as Ms. Tsilimigras’ “partner” and “Lucy Dantos”, whom she identified as Mr. Burns’ “live in partner”.

10In January 2011, the individual respondents all provided submissions in response to the applicant’s particulars. Mr. Burns denied knowing anyone named Lucy Dantos and denied that Ms. Dantos was his live in partner. Ms. Tsilimigras denied knowing anyone named Marco Tavoleri and denied that Mr. Tavoleri was her partner.

11On August 9, 2011, the Tribunal issued a Case Assessment Direction (“CAD”), which directed that a summary hearing be held by teleconference to determine whether the Application should be dismissed on that basis that there is no reasonable prospect that it will succeed. The CAD also directed the parties to deliver to each other and file with the Tribunal any documents or cases that they intended to rely upon no later than 14 days prior to the hearing.

12On September 15, 2011, the Tribunal issued a Notice of Summary Hearing to the parties which informed them that the hearing was scheduled for November 21, 2011. The applicant did not file any supporting documents with the Tribunal prior to the hearing.

13The summary hearing took place by conference call as scheduled. I heard submissions from the applicant, and dismissed the Application with written reasons to follow. The following are my reasons:

ANALYSIS

14Rule 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.

15Furthermore, 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.

16With respect to allegations of reprisal, in Noble v. York University, 2010 HRTO 878, the Tribunal held at para. 33 that the following elements must be established:

a) An action taken against, or threat made to, the applicant;

b) The alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and

c) An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

17In her oral submissions, the applicant stated that she will be able to prove her case in a number of ways. First, she stated that she contacted the police when some of the incidents occurred. However, she also admitted that the police never became formally involved, and she did not provide the Tribunal with any documents from the police, despite the fact that her allegations include death threats. Second, she stated that there were witnesses to the incidents. However, she refused to identify the witnesses because she stated that she wanted to protect them. Third, she stated that she saw comments that the individual respondents made about her on the internet. However, she did not provide a copy of those comments to the Tribunal.

18I also asked the applicant to explain the contradictions between her original Application and the particulars that she later filed. She stated she did not understand how to write her Application for the Tribunal.

19I also asked the applicant how she would prove that Mr. Burns had a live in partner named Lucy Dantos and Ms. Tsilimigras had a partner named Marco Tavoleri, given that both Mr. Burns and Ms. Tsilimigras denied that they either knew or had partners with those names. The applicant stated that she has information from the internet that can prove these allegations, but again, she did not provide any such information to the Tribunal.

20In my view, there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that her Code rights were violated. Her allegations are incredible and internally inconsistent in significant respects. In addition, she refused to identify any of her potential witnesses, and claimed to have documentary evidence to support her allegations, but failed to provide any such documents to the Tribunal despite being directed in the August 9, 2011 CAD to deliver to the respondents and file with the Tribunal any documents she intended to rely upon no later than 14 days prior to the hearing. In short, the applicant did not demonstrate that there is a reasonable prospect that evidence she has, or that is reasonably available to her, can show that the respondents took actions and made threats against her for claiming her rights under the Code, and an intention on the part of the respondents to retaliate against her for claiming her rights under the Code.

ORDER

21The Application is dismissed.