Tania Lee v. SCM Claimspro, Michael Korec and Jean Marion, 2011 HRTO 2245

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tania Lee

Applicant

-and-

SCM Claimspro, Michael Korec and Jean Marion

Respondents

INTERIM DECISION

Adjudicator: Jennifer Scott

Date: December 14, 2011

Citation: 2011 HRTO 2245

Indexed as: Lee v. SCM Claimspro

APPEARANCES

Tania Lee, Applicant ) Self-represented

SCM Claimspro, Michael Korec and ) M. David Ross, Counsel Jean Marion, Respondents )

1This Application arises from the applicant’s employment with the corporate respondent. The applicant alleges that the individual respondent, Michael Korec, discriminated against her on the basis of sex when he engaged in a pattern of harassing and bullying behaviour. The applicant alleges further that the corporate respondent and the other individual respondent, Jean Marion, failed to properly investigate her complaint. The applicant alleges the respondents have her infringed her right to be free from discrimination under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Application was filed with the Tribunal on April 18, 2011.

2The Response to the Application was filed on June 20, 2011. The respondents allege: (a) the Application does not disclose a prima facie case; and (b) the individual respondents should be removed from the Application.

3Pursuant to a Case Assessment Direction (“CAD”) issued on July 22, 2011, a summary hearing was held on December 7, 2011, to determine whether this Application should be dismissed in whole or in part, on the basis that there is no reasonable prospect that it will succeed.

4The CAD noted that “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. Having reviewed the Application, Response, and Reply it appears that the applicant may be unable to prove such a link”.

5Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

6The issue that Rule 19A requires me to determine is whether the Application has no reasonable prospect of success. If a finding is made that the Application has no reasonable prospect of success, then it is dismissed. In the absence of such a finding, the Application continues to proceed through the Tribunal’s procedure.

7In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal stated:

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.

8During the summary hearing, the applicant stated there were other female employees who experienced Michael Korec’s harassing behaviour. She relies on a formal complaint filed against Mr. Korec by another female employee, Ms. Lupinetti. In this complaint, Ms. Lupinetti complains about Mr. Korec’s behaviour towards her and states she witnessed similar behaviour towards the applicant and a third female employee. This complaint was filed six days after the applicant’s complaint. The applicant complains the corporate respondent and the individual respondent Mr. Marion failed to adequately investigate her complaint.

9The applicant produced the complaint by Ms. Lupinetti. During the summary hearing, the applicant advised that she intends to call three female employees, Ms. Lupinetti, Ms. Lewis and Ms. Hewitt, to testify about the pattern of behaviour that she alleges Mr. Korec engaged in towards female employees.

10The Response denies the applicant’s allegations and asserts she was subject to oversight by Mr. Korec and other supervisors because of significant performance problems. The respondents allege the applicant’s performance-related problems arose long before Mr. Korec became her supervisor. The respondents assert the corporate respondent and Mr. Marion attempted to investigate the applicant’s complaint, but that she refused to participate in the investigation.

11At the summary hearing, counsel for the respondents stated the applicant left her employment on March 17, 2011, and shortly thereafter went on short-term disability. She filed her complaint on March 21, 2011. Counsel stated Mr. Marion was sensitive to the fact that the applicant was on short-term disability. When the applicant resigned her employment on April 29, 2011, Mr. Marion approached her about her complaint. On May 17, 2011, the applicant advised Mr. Marion that she would not participate in his investigation.

12At this stage, it is not appropriate to make any findings with respect to the applicant’s allegations or the respondents’ defence. It is sufficient to say that the applicant has satisfied me that she may be able to establish a link between the events alleged to have occurred and the grounds upon which she made the claim. I cannot find that there is no reasonable prospect that this Application will succeed, and the Application is not dismissed.

13As both parties have indicated a desire to participate in mediation, this Application shall proceed to mediation. If mediation does not resolve the dispute between the parties, the respondents may raise their Request to remove the individual respondents from the Application at the appropriate time.

14I am not seized of this matter.