Tahereh Sheshgelani v. Jonan Pharmacy Ltd o/a “Shoppers Drug Mart and Mario Rodrigues, 2012 HRTO 121

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tahereh Sheshgelani

Applicant

-and-

Jonan Pharmacy Ltd o/a “Shoppers Drug Mart and Mario Rodrigues

Respondents

Decision

Adjudicator: Douglas Sanderson

Date: January 16, 2012

Citation: 2012 HRTO 121

Indexed as: Sheshgelani v. Jonan Pharmacy Ltd

Appearances

Tahereh Sheshgelani, Applicant ) Yuzma Akhcar, Representative and ) Ramin Nikpour, Student-at-law )

Jonan Pharmacy Ltd o/a ) Shoppers Drug Mart and ) Craig Colraine, Counsel Mario Rodrigues, Respondents )

1This is an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”), alleging discrimination in employment because of citizenship and ethnic origin.

2By Case Assessment Direction (“CAD”) dated November 3, 2010, the Tribunal, on its own initiative, directed that the matter be scheduled for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The Summary Hearing was held by teleconference on November 17, 2011.

The Application

3The applicant was employed by the respondent Jonan Pharmacy (“Jonan”) from February 26, 2002 until April 26, 2010. At the time of her departure from Jonan she held the position of Cashier Manager. The applicant alleges that for approximately three months before her employment terminated she was having difficulty with the respondent Mario Rodrigues (“Rodrigues”), the store manager, regarding scheduling changes. The applicant asserts that when she challenged Rodrigues about some of the changes, he would become angry and direct her to speak with him in the owner’s office. Once in the office Rodrigues would berate the applicant and make statements to the effect that she does not hear him or understand English. The applicant emigrated from Iran and her first language is Farsi, but she stated she understands English equally well. On Thursday, April 22, 2010, the applicant, Rodrigues and Rosheen, a cashier supervisor, were discussing the schedule for the next week. Rodrigues indicated that he needed some shifts covered because he would be away. The applicant stated that she could not work afternoons, but would work a week-end shift to provide cover and the conversation ended amicably.

4The next day at approximately 4 p.m., Rosheen informed the applicant that the applicant had been scheduled to work on Saturday afternoon, notwithstanding the applicant’s statement that she was not available for afternoon shifts. The applicant became upset and went home. When the applicant arrived at home, she called the store and Rosheen informed her that she was now scheduled to work Thursday afternoon as well. The applicant informed Rosheen that she was not able to work that shift and then attempted to reach Rodrigues on his cellular phone at approximately 6 p.m. She left a message for him to the effect that she could not work the Thursday afternoon shift, but would work the extra Saturday morning shift, as discussed.

5On Monday, April 26, 2010, the applicant arrived at work at 4 p.m. Rodrigues called a shift change meeting shortly after her shift started. The meeting was brief and towards the end of the meeting Rodrigues asked the applicant if she had a problem with the schedule. The applicant stated that she could not work Thursday evening, to which Rodrigues replied that she would have to take a vacation day or a day without pay to avoid working that day. The applicant objected and Rodrigues became angry and raised his voice “yelling and screaming” that “you don’t understand english (sic)”. The applicant reiterated that she could not work in the evening, but could assist on the week-end dayshift. Rodrigues responded loudly that “he didn’t need her then” and slammed the door. According to the applicant, she was frightened for her safety and in tears. She stated that she gave Rodrigues her keys, uniform, name tag and informed him that she could not work for someone who treats people in such a manner.

Summary Hearings

6The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing is whether the 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.

7In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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.

Applicant’s Submissions

8The applicant stated that she was a senior employee of Jonan who had never had any issue with any employee other than Rodrigues. In particular, she noted that her language skills had never been questioned in the past. In her view, Rodrigues’ behaviour towards her was harassing and suggested she did not understand the English language or her duties. Rodrigues amended the schedule without notice to her and she wanted an explanation for the changes he made. The applicant stated that he made no attempt to accommodate her by seeking other options to meet his needs and should have discussed the matter privately.

Analysis and Decision

9The Tribunal has noted in a number of cases that language is not a prohibited ground of discrimination and has also stated that a comment about an applicant’s English language proficiency is not sufficient to establish a prima facie case of discrimination (See for example, Howard v. 407 ETR Concession, 2011 HRTO 1511 and Chau v. Olymel S.E.C\L.P, 2009 HRTO 1386. However, in some cases language can be so inextricably linked to one’s place of origin that it can be a proxy for race, ethnicity or place of origin. For example, in Espinoza v. Coldmatic Refrigeration of Canada Inc. (1995), 1995 CanLII 18164 (ON HRT), 29 C.H.R.R. D/35 (Ont. Board of Inquiry) Spanish speaking employees from South and Central America were treated differently and ridiculed for using their common language. See also: Howard v. 407 ETR Concession, 2011 HRTO 1511, Woolrich v. Royal LePage Relocation Services, 2010 HRTO 670 and Chau v. Olymel S.E.C\L.P, 2009 HRTO 1386. In such circumstances the Code may prohibit discrimination linked to language. Therefore, the onus is on the applicant to present evidence that could lead to a finding that the respondents used language as a proxy for her ethnic origin or citizenship.

10In my view, the applicant did not meet this onus. She alleges that Rodrigues stated that she did not understand English, but she pointed to no evidence indicating that Mr. Rodrigues treated her first language, Farsi, as a proxy for her ethnic origin or citizenship. In fact, the applicant offered no evidence that Mr. Rodrigues’ comments were related to her ethnicity or citizenship in any way. Neither did the applicant point to anything in the circumstances surrounding Mr. Rodrigues’ comments that could support the inference that they were related to her ethnicity. For example, the applicant did not state that Mr. Rodrigues was aware that she is Iranian or speaks Farsi or explain how the Tribunal could infer that he did. Lacking such evidence, the applicant has no reasonable prospect of establishing that Rodrigues’ alleged statements about her understanding of English come within prohibited grounds of discrimination under the Code.

11The applicant also raised the issue of accommodation with respect to scheduling and Rodrigues’ failure to deal with the applicant in private. However, as the Tribunal noted in Baber v. York Region District School Board, 2011 HRTO 213, the duty to accommodate arises only pursuant to sections 11, 17 or 24 of the Code where a person is disadvantaged because of a prohibited ground of discrimination. The applicant made no submission to the effect that the schedule proposed by Rodrigues imposed a burden on the applicant related to a prohibited ground of discrimination. It may have been preferable for Rodrigues to speak to the applicant in private, but privacy is not an issue that comes within the ambit of the Code. The applicant seems to have used the term “accommodation” in an idiosyncratic manner not consistent with its use in human rights law. Consequently, the applicant presented no evidence that could amount to breach of the duty to accommodate under the Code.

12In light of the foregoing, I conclude that there is no reasonable prospect the Application will succeed and the Application is dismissed.