Reese v. Bencak Family Dental Centre, 2012 HRTO 1244

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cathy Reese

Applicant

-and-

Bencak Family Dental Centre and Michael Bencak

Respondents

INTERIM DECISION

Adjudicator: Brian Cook

Date: June 25, 2012

Citation: 2012 HRTO 1244

Indexed as: Reese v. Bencak Family Dental Centre

APPEARANCES

Cathy Reese, Applicant

Self-represented

Bencak Family Dental Centre and Michael Bencak, Respondents

Mariana Bracic, Counsel

Introduction

1This is an Application filed 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 on the basis of age.

2By Case Assessment Direction dated September 20, 2011, the Tribunal directed that a summary hearing would be held. The summary hearing was directed by the Tribunal on its own initiative and on the basis only of the information in the Application. The respondents have not been required to file a Response.

3The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure. In a summary hearing, the issue 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 a part thereof will succeed.

4In Dabic v. Windsor Police Service, 2010 HRTO 1994, 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.

5The summary hearing was heard by telephone conference call on May 17, 2012. In the conference call I heard from the applicant and the respondents.

Background

6In the Application, the applicant states that she was employed as a receptionist at a dental practice, starting in 1992. In June 2009 the dentist she worked for retired and sold the practice to Dr. Bencak, the personal respondent. The applicant alleges that soon after Dr. Bencak purchased the practice there were significant personnel changes. In particular, she alleges that three long-term older staff, including the applicant, were effectively constructively dismissed. She indicates that one of the other employees will testify at a hearing as a witness. That employee has provided a written statement that supports the applicant’s allegations of age discrimination.

7In the Application, the applicant identified record of offences as one of the grounds of alleged discrimination. In the conference call she confirmed that she did this in error as she does not have a record of offences.

Analysis and Conclusion

8It is important to note that the test in a summary hearing is if there is no reasonable prospect that the Application could succeed. A decision by the Tribunal to allow an Application to proceed after a summary hearing, does not mean that the Application will succeed. It only means that the Tribunal is satisfied that there are allegations that, if proven, could result in a finding of a Code infringement and that the allegations are sufficiently plausible that it cannot be said that there is no reasonable prospect that they could be proved by the applicant. Rule 19A.6 provides that where the Tribunal decides not to dismiss an Application following a summary hearing, it need not give reasons.

9In my view, if proven, the applicant’s allegations could result in a finding that the applicant’s Code-protected rights were infringed. I am also satisfied that the allegations are sufficiently plausible that it cannot be said that there is no reasonable prospect that the Application, in whole or in part could succeed.

10I therefore find that the Application should not be dismissed on the grounds that there is no reasonable prospect of success.

11The Tribunal will continue to process the Application. The respondents are directed to file a Response to the Application within 35 days of the date of this Interim Decision.

Decision

12The Tribunal will continue to process the Application. The respondents are directed to file a Response to the Application within 35 days of the date of this Interim Decision.