McMullen v. Maackon Corporation, 2012 HRTO 1289

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Betty McMullen

Applicant

-and-

Maackon Corporation and Grant Watkinson

Respondents

INTERIM DECISION

Adjudicator: Leslie Reaume

Date: June 29, 2012

Citation: 2012 HRTO 1289

Indexed as: McMullen v. Maackon Corporation

WRITTEN SUBMISSIONS

Betty McMullen, Applicant

Self-represented

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 with respect to employment because of age, marital status and reprisal.

2Rule 13.2 of the Tribunal's Rules of Procedure states that where it appears to the Tribunal that an Application is outside its jurisdiction, it shall, prior to sending the Application to the respondent, issue a Notice of Intention to Dismiss the Application ("NOID"). The NOID is only sent to the applicant, and requires the applicant to file written submissions.

3On May 4, 2012, the Tribunal Registrar sent an NOID to the applicant which noted that the Application appeared to be outside of the Tribunal's jurisdiction because it failed to identify any specific incidents of discrimination/discrimination allegedly committed by the respondents named in the Application based on any of the grounds listed in the Code.

4The Tribunal has not yet delivered the Application to the respondents. The purpose of this Interim Decision is to address the NOID. While I have determined that the matter should not be dismissed on the basis set out in the NOID, I have referred this matter the Tribunal's Summary Hearing process for the reasons that follow.

NoticE of Intent to dismiss

5The Tribunal does not adjudicate general claims of unfairness or harassment. There must be a nexus between the allegation of unfairness and/or harassment and a ground under the Code. In the absence of such a nexus, no violation of the Code can be found.

6An application will be dismissed at a preliminary stage, before it is served on the respondents, if it is "plain and obvious" on the face of the application that it does not fall within the Tribunal's jurisdiction.

7The Tribunal invited the applicant to provide written submissions on whether the Application is within the Tribunal's jurisdiction by no later than June 5, 2012, and the applicant filed submissions in response.

8The applicant begins her submission with the statement "my understanding is that if you were let go for a shortage of work, but the employer has hired someone else, that would be wrongful dismissal." The applicant alleges that while she was terminated, a friend or relative of an employee of the organizational respondent was hired in her place. However she also alleges that comments were made about her marital status and that she was not given increases in pay and promotions because she is a woman. It is therefore not plain and obvious that the subject-matter of the Application is not within the Tribunal's jurisdiction and the Application will proceed.

Summary Hearing

9Having considered the materials filed by the applicant, I find that it is appropriate that the Application proceed first to a Summary Hearing.

10Rules 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.

11Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9:

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.

12The Tribunal's Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first and should be prepared to answer the connection between what she experienced at work and the prohibited grounds she has alleged in the Application.

13If the Tribunal determines that the Application has no reasonable prospect of success, it will be dismissed. If the Tribunal does not find that the Application should be dismissed under Rule 19A, it will continue in the Tribunal process.

DIRECTION

14This Application has not been served on the respondents. In order to permit the respondents to participate in the summary hearing, a copy of the Application, all materials and correspondence between the applicant and the Tribunal regarding the Notice of Incomplete Application and NOID letter, and this Interim Decision will be sent to the respondents. The respondents are not required to file a response at this time. The respondents must write to the Tribunal, with a copy to the applicant, within 14 days of the date of this Case Assessment Direction, providing contact information for the person to whom documents should be delivered.

15The Registrar will schedule a half-day summary hearing by conference call. The parties shall deliver to each other and file with the Tribunal copies of any further documents or cases they intend to rely upon no later than 14 days prior to the teleconference.

16I am not seized.