Josephine Wallenius v. Ontario Nurses’ Association and Colin Johnson, 2011 HRTO 683

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Josephine Wallenius

Applicant

-and-

Ontario Nurses’ Association and Colin Johnson

Respondents

DECISION

Adjudicator: David A. Wright

Date: April 8, 2010

Citation: 2011 HRTO 683

Indexed as: Wallenius v. Ontario Nurses’ Association

APPEARANCES

Josephine Wallenius, Applicant ) Self-Represented

Ontario Nurses’ Association and ) Colin Johnson

Colin Johnson, Respondents ) Counsel

1This is an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended, alleging discrimination because of age, which was filed on December 14, 2010. A Summary Hearing was held on April 8, 2011 to address whether the Application should be dismissed as having no reasonable prospect of success. The applicant filed a previous Application (Tribunal File 2010-05603-I) against the respondent Ontario Nurses’ Association (“ONA”), which was dismissed for delay: 2010 HRTO 2312. The Case Assessment Direction directing the Summary Hearing noted that the Application appeared to duplicate the previous Application and that there appeared to be no details about how the applicant linked her allegations against ONA to the ground of age.

2At the outset of the Summary Hearing, the applicant advised that it had been her intention to file a Request for Reconsideration of the previous decision, although she instead filed a Form 1 (Application). She stated that she had filed a Form 20 (Request for Reconsideration), although neither the Tribunal nor the respondents had a copy of that form.

3The respondents stated that they would not contest the timeliness of a Form 20 filed now if the applicant withdrew the new Application. The applicant stated that she wished to have her request for reconsideration heard during the call. The Tribunal declined to do so as such requests are generally heard in writing. The applicant indicated that she wanted to proceed with her new Application. Accordingly, this Decision deals with whether Tribunal File 2010-07647-I has no reasonable prospect of success. It remains open to the applicant to deliver to the respondent and file with the Tribunal a Request for Reconsideration (Form 20) of Tribunal File 2010-05603-I or to provide confirmation that it was previously delivered and filed, and the Tribunal will then process it.

4I turn now to whether Application 2010-07647-I has no reasonable prospect of success. In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal explained summary hearings as follows, at paras. 7-10:

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.

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.

5I find that this Application has no reasonable prospect of success. First, it duplicates the previous Application. It is barred by the principles of res judicata, which prohibits relitigation of matters that have been determined. Second, the applicant has provided no reasonable basis on which the conduct of ONA in representing her in her workplace or Colin Johnson, its counsel, could be proven to be linked with the ground of age. She makes only a bare allegation of ageism in the respondents’ representation of her with no basis to link that to the ground of age.

6The applicant indicated that she had recently become aware of or realized that during a meeting several years ago where she reviewed patient charts, portions of those charts were missing. She stated that this assists her in proving the abuse that she claims to have witnessed as an employee. In my view, however, this information has no relevance to the question of whether age was a factor in ONA’s representation of the applicant as her collective bargaining representative.

7Accordingly, the Application is dismissed.