HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Estelita Vivas

Applicant

-and-

Metropolitan Hotels and Isabel Carreiro

Respondents

UNITE Here Local 76

Intervenor

INTERIM DECISION

Adjudicator: Brian Cook

Decision Date: June 26, 2012

Citation: 2012 HRTO 1248

Indexed as: Vivas v. Metropolitan Hotels

APPEARANCES

Estelita Vivas, Applicant

Self-represented

Metropolitan Hotels and Isabel Carreiro, Respondents

Michelle Alton, Counsel

UNITE Here Local 75, Intervenor

Heather Ann McConnell, 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. The Application as originally filed identified record of offences and reprisal as the grounds of alleged discrimination.

2The Tribunal issued a Case Assessment Direction dated February 3, 2012. It directed that a summary hearing be held to determine if the Application should be dismissed in whole or in part on the grounds that there is no reasonable prospect that the Application or a part of the Application could succeed. In particular, the Case Assessment Direction noted that it was not clear that the applicant could establish a connection between the incidents she described in the Application and the grounds of record of offences and reprisal. The summary hearing was scheduled for May 10, 2012.

3On April 27, 2012, the applicant filed a Request for Order During Proceedings (“the Request”) seeking to amend the Application to add the grounds of disability and sexual harassment.

4The summary hearing was held by telephone conference call on May 10, 2012. The applicant participated. The respondents participated and were represented by Ms. Alton. The applicant is a member of Unite Here, Local 75 (the “union”). The union was represented by Ms. McConnell. The union has asked to intervene in the Application. This request is not opposed and is granted.

5At the summary hearing the applicant indicated that at the time she filed the Application she was self-represented. She has since obtained assistance from the Human Rights Legal Support Centre and this led to the request to amend the Application.

6At the summary hearing, Ms. Alton pointed out that the respondents had not had an opportunity to file a Response to the applicant’s request that she be allowed to amend the Application. It was agreed that the respondents would file that Response and that I would then deal with both the issue of whether the Application should be dismissed on the grounds that there is no reasonable prospect of success, and the issue of the request to amend the Application. The respondent’s Response has now been received and reviewed.

Analysis

[7] The 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.

[8] In 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.

9It 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.

10In this case, the Application as originally filed identified only Record of Offences and Reprisal as the grounds of alleged discrimination. As discussed in the Tribunal’s Case Assessment Direction of February 3, 2012, it was not clear how the applicant could establish a link between the respondents’ alleged actions and these grounds of alleged discrimination. Specifically, the Case Assessment Direction noted, at paragraphs 5 and 6:

Under the Code, record of offences is defined as follows:

“record of offences” means 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;

The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights. See Noble v. York University, 2010 HRTO 878, at para. 31. To proceed with the Application, there must be a reasonable basis to believe that the applicant could establish such intention and a link to the respondent’s alleged actions.

11The applicant’s Request to amend the Application indicates that the applicant wishes to add the grounds of sexual harassment and disability to the areas of discrimination she alleges.

12The test that the Tribunal generally applies to requests to amend an Application are:

• Whether the amendment would occasion actual prejudice to the other party;

• Fairness;

• The conduct of the party seeking the amendment; and

• The impact of the proposed amendment on the course of the hearing and other parties.

Odell v. Toronto Transit Commission, [2001] O.H.R.B.I.D. No. 2; Wozenilek v. 7-Eleven Canada, 2010 HRTO 407.

13The Request pertains mostly to the request to add disability to the grounds of alleged discrimination. I note that the original Application contained a number of allegations relating to disability and that the Response responded to those allegations.

14In regard to sexual harassment, the Request states as follows:

The Applicant alleges that she brought to the attention of the Corporate Respondents that she had been sexually harassed by one of her coworkers. The event took place in his apartment on May 2006. She was subject to discriminatory treatment by the respondents in the investigation and decision-making regarding this incident. The investigation concluded that there was no basis for the client’s allegations. The Applicant alleges that the investigation conducted was biased and one sided, as none of her witnesses were interviewed.

15No further details are provided and there is no allegation that the alleged sexual harassment or alleged failure to properly investigate had any continuing discriminatory effect after 2006. There is no suggestion that these alleged events are in any way related to the allegations of discrimination or harassment because of disability or reprisal.

Conclusions

16I conclude that it is appropriate to permit the applicant to amend the Application to include disability as a ground of alleged discrimination. The original Application raised allegations relating to disability and the respondents were able to respond to those allegations in the Response.

17I conclude that it is not appropriate to permit the applicant to amend the Application to include sexual harassment as a ground. This was not raised in the original Application and seems to be completely unrelated to the allegations that were mentioned in the Application and also completely unrelated to the allegations about discrimination on the grounds of disability. The allegations relate to events in 2006, several years before the Application was filed and I accept the respondent’s submission that their ability to respond to these allegations would be prejudiced by this passage of time.

18Based on the Application as amended, I find that it is not appropriate to dismiss the Application at this time because there is no reasonable prospect that the Application could succeed. The Application as amended includes allegations that, if true, could result in a finding of a Code infringement and the allegations are sufficiently plausible that it cannot be said that there is no reasonable prospect that they could be proved by the applicant.

19The Tribunal will continue to process the Application leading to a one day hearing on the merits. At the hearing, the parties will be offered the opportunity to engage in settlement discussions with the assistance of the Tribunal adjudicator, pursuant to Rule 15A of the Tribunal’s Rules of Procedure.

Order

20The applicant’s Request to amend the Application is granted in part. The applicant is permitted to amend the Application to include disability as a ground of alleged discrimination but is not permitted to amend the Application to include sexual harassment as a ground of alleged discrimination.

21Based on the Application as amended, the Application is not dismissed at this time because there is no reasonable prospect of success. The Tribunal will continue to process the Application, leading to a one-day hearing on the merits.