Rutnam v. The Governing Council of the Salvation Army in Canada, 2011 HRTO 2196

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Isha Rutnam

Applicant

-and-

The Governing Council of the Salvation Army in Canada

Respondent

DECISION

Adjudicator: Judith Keene

Date: December 6, 2011

Citation: 2011 HRTO 2196

Indexed as: Rutnam v. The Governing Council of the Salvation Army in Canada

Appearances

Isha Rutnam, Applicant ) Christopher Rutnam, Representative

The Governing Council of the ) Christine LeBlanc, Counsel Salvation Army in Canada, Respondent )

1This is a decision in respect of an Application filed on July 8, 2010, under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The respondent filed a Response on October 5, 2010, and the applicant filed a Reply. The parties undertook mediation, but no settlement was reached.

2Pursuant to a Case Assessment Direction (“CAD”) dated July 14, 2011, the Tribunal directed, on its own initiative, that a summary hearing be held under Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure, to determine whether this Application should be dismissed on the basis that there is no reasonable prospect that it would succeed.

3A teleconference summary hearing was held on December 1, 2011. I heard evidence from the applicant, who was assisted by her brother, Mr. Christopher Rutnam, who also made representations on her behalf. The respondent made representations upon which the applicant was allowed to comment. I have concluded for the reasons that follow that the Application has no reasonable prospect of success.

4The applicant alleges discrimination with respect to employment on the grounds of ethnic origin and record of offences. In particular, the applicant alleges that the respondent discriminated against her contrary to the Code in pressing her to resign and in denying her reinstatement.

5The applicant was employed in a thrift store operated by the respondent from September 17, 2005 until March 5, 2010. The parties agree that on February 21, 2010, applicant alleged that the store manager was engaging in fraudulent activity at the store (taking donated items and not paying for them, overpricing merchandise so that it would not be bought and she could buy it and giving the staff excessive discounts). The applicant complained to the area manager who supervises the store manager. The area manager informed the human resources department, which scheduled meeting on March 5, 2010, with the applicant, the area manager, and representative of the human-resources apartment, Ms C. Lane.

6The respondent’s view was that the discussion at the meeting was friendly and cooperative; the applicant says that it was heated. The parties agree that the applicant resigned from her position as she could no longer work with the store manager. The respondent indicated that both the store manager and the area manager asked the applicant not to resign, but the applicant reiterated that she could no longer work at the store. At the hearing, the applicant indicated that she had no other choice but to resign. She said that she had been “accused of” giving the regional manager’s name to a customer, but she did not explain this remark.

7The respondent asserted, and the applicant did not deny, that later on the afternoon of the meeting the applicant called Ms. Lane to thank the store for offering her a cab ride home at the conclusion of the meeting. The applicant gave no indication that she had reconsidered her decision to resign. The respondent also asserts that the applicant called Ms. Lane on Monday, March 8, 2010, to confirm her resignation and to reiterate that she could no longer work with the store manager. During the telephone call the applicant made further allegations about other members of the storage management including allegations against the regional Director and other staff members.

8The respondent indicated that it conducted an audit to investigate the allegations raised by the applicant. The respondent found no evidence to support allegations of misappropriation or other fraudulent activities, but identified some weaknesses in procedures.

9The applicant submitted a Reply, which focuses largely on whether the store manager committed fraud.

10The parties differ in respect of the date on which the applicant requested to be reinstated; with the applicant saying that she did so on March 11, 2010, and the respondent stating that the request was not made until almost a month later. However, that is not the focus of this Decision. The focus here is whether there is a reasonable prospect that the applicant can establish that she was pressed to resign, or denied reinstatement, wholly or in part because of her ethnic origin or record of offences.

11Section 10 of the Code defines “record of offences” as follows:

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.

12I questioned the applicant about how she defined “record of offences”, and she indicated only that she had been involved in a matrimonial matter. She gave no evidence that she had a record of offences as defined by the Code. The respondent indicated that it does not do criminal records checks of its employees, and that it was never aware that the applicant might have a record of offences until it received the Application. The applicant suggested no reasons why the respondent might suppose that she had a record of offences. It appears that, in filing her Application, the applicant misunderstood “record of offences”, and consequently, it appears that the Application does not pertain to a record of offences as defined under the Code.

13The respondent indicated that it gave the applicant a reasonable opportunity to reconsider her March 5, 2010 resignation, and did not “process” the resignation until March 9, 2010. It hired someone to replace the applicant.

14The respondent asserts that it was not aware that the applicant wanted reinstatement until April 6, 2010, when the applicant sent an e-mail to another department that was forwarded by that department to the respondent’s human resources office. The respondent submitted a copy of a reference letter, dated April 22, 2010, that it sent the applicant with her Record of Employment. The letter praises the applicant’s dedication and work ethic.

15At one point, both the applicant and Mr Rutnam stated that they assumed that the respondent’s actions or omissions were linked to the applicant’s ethnic origin. The applicant could supply no evidence nor did she indicate any evidence that might reasonably be available to her that would indicate that her ethnic origin might have influenced the respondent’s decisions regarding the applicant’s resignation or the failure to reinstate the applicant.

16As noted in the CAD, the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove, on a balance of probabilities, a link between a respondent’s alleged actions and a Code ground. The applicant did not point to any evidence to link her experiences of alleged unfairness to the prohibited grounds of ethnic origin 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. I find that there is no reasonable prospect that the Application can succeed.

18The Application is dismissed.