Irene Pereira v. Humber River Regional Hospital and Ontario Nurses' Association, 2012 HRTO 1680

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Irene Pereira

Applicant

-and-

Humber River Regional Hospital and Ontario Nurses’ Association

Respondents

INTERIM DECISION

Adjudicator: Douglas Sanderson

Date: September 6, 2012

Citation: 2012 HRTO 1680

Indexed as: Pereira v. Humber River Regional Hospital

APPEARANCES

Irene Pereira, Applicant Patrick James, Counsel

Humber River Regional Hospital, Respondent Carolyn Cornford Greaves, Counsel

Ontario Nurses Association, Respondent Colin Johnston, Counsel

1This is an Application filed on October 6, 2011 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 and with respect to membership in a vocational association because of race, place of origin and ethnic origin.

2In a Case Assessment Direction (“CAD”), dated January 6, 2012, the Tribunal ordered a summary hearing to determine whether the Application should be dismissed because it has no reasonable prospect of success. The hearing was conducted by telephone conference on April 23, 2012.

The Application

3The applicant is a registered nurse who works part time in the respondent Hospital’s Children’s Health Program at its Finch site. The applicant identifies herself as a white woman of Portuguese origin. In her Application, the applicant alleges that she was subjected to racial and ethnic harassment and discrimination by members of African-Canadian and Filipino “cliques” in the workplace. In support of her allegations, the applicant described incidents occurring between March 15, 2008 and June 25, 2009, as follows. The applicant stated that members of these cliques openly favour nurses sharing their ethnic or racial characteristics regarding work assignments, to the disadvantage of those who do not. The applicant alleged that members of these cliques have unilaterally and without authority cancelled her shifts, as well as the shifts of other nurses outside the cliques, on several occasions. The applicant described incidents of alleged harassment when members of the cliques called her a “cry baby” and informed her that she “smelled bad”. The applicant also alleged that members of the cliques often required her to take on the most difficult assignments. The applicant states that she raised her concerns about racial harassment by both cliques, but the Hospital refused to take action to address her concerns.

4The applicant alleges that she was subject to a reprisal by the respondent Ontario Nurses Association, the trade union representing nurses at the Hospital (the “Union”). According to the applicant, she sought the Union’s assistance to file a grievance regarding the racial and ethnic harassment she was experiencing. She met with Michael Howell, the bargaining unit president, who she alleges attempted to deflect her concerns because she was complaining about fellow union members. The applicant suggested he might have a conflict of interest in the circumstances, to which Mr. Howell responded that the applicant was the problem, not the Hospital.

5On April 9, 2011, the applicant sent an e-mail message to Mr. Howell to inform him that she did not appreciate his comments during the meeting and wished to proceed with a grievance. The applicant alleges that her shifts on April 9, 10 and 17, 2011 were all cancelled without notice or explanation.

6The applicant went to another union representative and requested grievance forms in order that she could file her harassment and discrimination grievances. However, she received a sharply written e-mail message from Mr. Howell on May 3, 2011, in which he accused the applicant of dishonesty and advised her that he had informed the Hospital of this misconduct. According to the applicant, Mr. Howell also stated that he advised the Hospital to refuse any grievance she attempted to file regarding workplace harassment and discrimination, and that the Union would similarly refuse any grievance the applicant attempted to file. The applicant alleges that the Union’s conduct amounts to a reprisal for seeking to enforce her Code rights.

7The applicant states that she received a disciplinary letter from the Hospital, dated May 3, 2011. The applicant alleges that the letter purported to discipline the applicant for defending herself when she was subject to harassment and discrimination, which she characterized as a reprisal.

The Hospital’s Response

8Both respondents filed comprehensive and detailed Responses to the Application that contradict the applicant’s allegations. The Hospital’s Response states that the applicant had complained to the Hospital of the incidents allegedly occurring between March 15, 2008 and June 25, 2009 and sets out the steps it took to investigate and address the allegations. The Hospital noted that it agreed to review the investigation of incidents occurring in 2008 and agreed to re-open the investigation it conducted in 2009 at the Union’s request. The Hospital found all the applicant’s allegations of discrimination and harassment to be unsubstantiated. The Hospital also concluded that her work assignments had been appropriate and her shifts had not been cancelled improperly. The Hospital concluded that the incidents occurring in 2008 had been investigated and addressed appropriately.

9The Hospital stated that the applicant complained that on March 27, 2011 a Team Lead yelled at her in front of patients and other nurses. The Hospital investigated and concluded that both the Team Lead and the applicant had yelled at each other and behaved unprofessionally. On May 10, 2011, both received non-disciplinary letters of counselling informing them that their behaviour had been unacceptable (the letter the applicant received was dated May 3, 2011). The applicant filed a grievance challenging the letter and the Hospital and Union settled the grievance is a manner that protected the applicant’s right to grieve the letter if the Hospital later relied upon it to support future discipline.

The Union’s Response

10The Union’s Response indicates that the Union encouraged the applicant to file internal complaints with the Hospital regarding her allegations of discrimination and harassment, but she did not do so until September 8, 2009. The Hospital investigated the allegations dating back to 2008 and concluded the complaint was unfounded. The applicant asked the Union to file a grievance regarding the investigation, but did not identify any errors or discrepancies in the investigation when asked to do so. The Union, however, supported her later request to reopen the investigation to interview three new witnesses and the Hospital agreed. The Hospital interviewed the new witnesses, but concluded that their evidence did not support the applicant’s allegations. The Union declined to file a grievance regarding the investigation because there was insufficient evidence to support the applicant’s allegations.

11The Union states that on April 1, 2011 the applicant demanded that the Union file a grievance because another registered nurse had spoken rudely to a registered practical nurse. The Union discovered, however, that it had been the applicant who had berated another nurse in front of the staff. Both the applicant and the other nurse received letters of counselling regarding the incident.

12The Union states that in a meeting held on April 7, 2011, to discuss the incident, the applicant accused Mr. Howell of siding with the Hospital and questioned his integrity. During the discussion, Mr. Howell stated that the Union’s information was that the problems in the applicant’s unit were not all caused by her colleagues. The applicant was offended by this statement and left the meeting. The Union filed a grievance on the applicant’s behalf challenging the counselling letter. The parties settled the grievance by agreeing to hold it in abeyance to protect the applicant should the Hospital seek to rely on the letter for disciplinary purposes in the future.

13According to the Union, Mr. Howell later learned that the applicant approached another Union representative at a different location and informed her that Mr. Howell sent her to get a blank grievance form, which was not true. Mr. Howell therefore sent an e-mail message to the applicant on May 31, 2011, in which he expressed his displeasure with the applicant’s deception and advised her that he would inform the Hospital that the Union would not recognize any grievance it had not sanctioned.

Submissions

The Applicant

14The applicant submitted that the Application disclosed a prima facie case of discrimination. The applicant noted that for the purposes of the summary hearing her statements of fact are presumed to be true.

15The applicant submitted that the Application alleged that her workplace was highly racialized and marked by differential treatment based on race and ethnicity. The applicant pointed to allegations that members of the racial or ethnic cliques would cancel her shifts without authority. In addition to her own evidence, the applicant stated that a fellow nurse, Ms. Popat, witnessed the discussion that led to the cancellation of the applicant’s shifts on April 9, 10 and 17, 2011, which Ms. Popat believed was racially or ethnically motivated. The applicant also pointed to allegations of derogatory race based comments such as “you smell bad”.

16The applicant noted that the minutes of a staff meeting held on February 9, 2010 indicate that concerns related to race, harassment and discrimination were “too numerous and too similar to not have validity”. The applicant submitted that this issue was raised because of complaints the applicant made to management and are in effect an admission that the workplace was riven by racial and ethnic discrimination.

17The applicant submitted that the Application contained statements to the effect that she raised concerns about being racially harassed by members of both cliques to the Hospital on several occasions, but the Hospital refused to take action to address her concerns.

18The applicant submitted that the Union advised her that it would not proceed with her discrimination grievances because it would be a conflict of interest for the Union.

The Hospital

19The Hospital submitted the dispute was not about discrimination or harassment, but about co-workers who do not get along with one another for reasons not related to the Code.

20The Hospital submitted that the applicant had not described evidence that would support the conclusion that the Application has a reasonable prospect of success. The Hospital noted that it had conducted two investigations regarding the incidents complained of in the Application and concluded that the applicant’s allegation were unsubstantiated. The Hospital took preventative measures during these investigations, including the meeting of February 9, 2010, which it submitted should not count against it. Rather, the meeting shows that the Hospital took the applicant’s concerns seriously and took action, even before it investigated the concerns she had articulated.

21The Hospital submitted that the witness statements filed by the applicant (for herself and the fellow nurse) describe incidents that are neither new nor connected to her Application.

The Union

22The Union submitted that the Application discloses no violation of the Code by the Union even if one assumes that every allegation in the Application is true. The Union noted that it is the employees’ representative in the workplace to whom the employees may bring concerns. The applicant came to the Union in 2009 with concerns regarding harassment and discrimination. The Union advised the applicant to inform the hospital of these concerns and if the Hospital took no action, then the Union would file a grievance.

23In June 2009, the applicant wanted to have a grievance filed, but after reviewing the allegations and meeting with her the Union concluded there was not enough evidence to find discrimination or harassment under the Code. The applicant eventually complained to the Hospital, which investigated her concerns, but found no evidence to support her allegations. The Union supported her request to re-open the investigation, to which the Hospital agreed. Again, the Hospital found no basis for her claims.

24The Union also investigated on its own the applicant’s allegation that the Program Manager targeted her, but found no basis for the allegation. Accordingly, the Union informed the applicant that it would not file a grievance regarding this incident by letter dated July 25, 2011.

25The Union submitted that Mr. Howell met with the applicant on April 7, 2011 to discuss a verbal confrontation between her and another nurse on March 27, 2011. Mr. Howell explained to the applicant that in matters involving two Union members in conflict the Union normally assigns different representatives to advise them and that he may not be the person representing her. Mr. Howell shared his impression that it was not always the applicant’s colleagues who were the problem, which implied that the applicant was sometimes the instigator.

26The Union submitted that Mr. Howell learned that on April 9, 2011 the applicant approached a Union representative at the Church Street site and informed her that Mr. Howell told her to get a grievance form from her. Mr. Howell said no such thing and therefore sent an e-mail message to the applicant regarding this incident. The e-mail message Mr. Howell sent to the applicant on May 3, 2011 did no more than voice his displeasure that she had deceived a fellow Union member and advised her that she cannot file a grievance without the Union’s approval. The message further informed her that the Union advised the Hospital not to accept any grievance she filed on her own.

27The Union submitted that there is no evidence that discrimination was a factor in its treatment of the applicant. The Union submitted that the applicant was not happy with the direction the Union took regarding her complaints, but noted that dissatisfaction does not amount to a violation of the Code.

Reply

28In reply, the applicant reiterated that she sought assistance from both respondents and has brought her case to the Tribunal as a last resort. The applicant stated that this decision was not merely because she was “unhappy”, but because she concluded the Union would block any discrimination grievance she attempted to file and made the Hospital aware of this. The applicant submitted that blocking the applicant’s grievances in this way amounts to discrimination. The applicant submitted that the Union had clearly failed the applicant and advised that she would challenge the investigations conducted by the respondents.

29The applicant also reiterated that she would lead evidence that will prove that the cancellation of her shifts on April 9, 10 and 17, 2011 amounts to discrimination contrary to the Code. According to the applicant, the evidence will include e-mail messages regarding the incident; the schedule for the dates in question, which will show that it was amended by hand; and evidence of an atmosphere of harassment and discrimination as described in the witness statements of Ms. Popat and the applicant.

Analysis and Decision

30The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paragraphs 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.

31In the CAD ordering the summary hearing in this matter, the Tribunal pointed out that the respondents filed Responses in which they provided explanations for the events in questions, but the applicant did not file a Reply. Rule 9.1 of the Tribunal’s Rules of Procedure states as follows:

An Applicant who intends to prove a version of the facts different from those set out in a Response must deliver and file a Reply in Form 3 setting out the different version, unless it is already contained in the Application. An Applicant may also reply to any other matter raised in the Response.

In the CAD, the Tribunal directed the applicant to “point to the evidence on which the applicant will prove a link between the respondents’ actions and the grounds cited, given the explanation of events in the Response”. The applicant stated that the Tribunal will assume the evidence to which the applicant points is true when determining whether an Application has no reasonable prospect of success. I do not disagree with this statement, but an applicant cannot rely upon bare assertions. This is especially true where a respondent presents a contradictory explanation and the applicant has not filed a reply that addresses the new facts raised by the respondent.

The Hospital’s Investigation

32With respect to the incidents alleged occurring between March 15, 2008 and June 25, 2009, the Tribunal’s jurisprudence is clear that an employer is obliged to take reasonable steps to address complaints of discrimination or harassment in the workplace and may avoid liability by doing so. See Laskowska v. Marineland of Canada Inc., 2005 HRTO 30. The Hospital’s Response indicates that the applicant complained of the alleged incidents of discrimination and harassment described in the Application. The Hospital states that it investigated, and in some cases re-investigated, each of the complaints and the Hospital’s Response sets out a detailed description of the steps it claims to have taken. The Hospital’s investigation did not uncover evidence of racial or ethnic harassment or discrimination, but the Hospital states that it nonetheless took action to ensure a respectful workplace. This explanation contradicts the applicant’s bare assertion set out in the Applicant that the Hospital refused to take action to address her concerns. The applicant did not file a Reply and at the summary hearing the applicant merely reiterated the bare assertion that the Hospital refused to act. Consequently, the applicant pointed to no evidence that she has or that is reasonably available to her that would demonstrate that the Hospital did not respond reasonably and investigate all of the incidents she complained of nor did the applicant point to evidence that the Hospital’s investigation was deficient, or that it otherwise did not behave reasonably in its investigation and actions. In that regard, the Minutes of the staff meeting on February 9, 2010 cannot in my view be taken as evidence that would establish discrimination on the basis that the Hospital failed to address the applicant’s concerns or that the applicant herself was subject to discrimination and harassment, contrary to the Code, since the investigation of the applicant’s concerns was ongoing at that point. Ultimately the Hospital’s investigation found her specific allegations to be unsubstantiated. Accordingly, I find the applicant has no reasonable prospect of proving that the Hospital failed to take reasonable steps when presented with the applicant’s allegations of harassment and discrimination as described in the Application.

33The applicant’s allegation of a failure to investigate is therefore dismissed as are the specific incidents from March 2008 - June 2009 that formed the basis for this allegation. I would note that the parties were not required to address timeliness at the summary hearing, which on the face of the Application is an issue given that section 34(1) of the Code provides for a one year time limit for filing Applications. The incidents of harassment and discrimination the applicant alleges created a poisoned work environment occurred more than two years prior to the filing date of the Application on October 6, 2011 and nearly two years prior to the next alleged incidents of discrimination in April 2011. Given my finding that these allegations have no reasonable prospect of success, however, it is not necessary to direct a hearing on this issue.

Reprisal Allegations

34As noted in the CAD, the reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights: Noble v. York University, 2010 HRTO 878 at paragraph 31. Accordingly, there must be a reasonable basis to believe the applicant could establish such an intention and a link to the respondent’s alleged actions.

35The applicant’s allegations set out in the Application that the Union committed a reprisal because it prevented her from filing harassment and discrimination grievances is contradicted by the Union’s Response. The Union states that Mr. Howell informed the applicant the Union would not recognize any grievance that it had not sanctioned. Again, the applicant did not file a Reply and during the summary hearing pointed to no evidence that would suggest the Union’s characterization is incorrect. The e-mail message in question makes no reference to any particular kind of grievance (e.g., a discrimination or harassment grievance) and simply states that the Union decides which grievances to pursue and it had advised the Hospital not to accept grievances the applicant filed without the Union’s approval. The applicant pointed to no evidence during the summary hearing indicating either that the Union’s explanation was incorrect or that the Union’s actions were intended to punish her for attempting to enforce her human rights. In the circumstances, I find that the applicant’s reprisal allegations against the Union have no reasonable prospect of success.

36The applicant’s allegation that the disciplinary letter, dated May 3, 2011, the Hospital gave her amounted to reprisal is a bare allegation. The Application contains no particulars regarding the human rights she attempted to defend or the circumstances in which she alleges she stood up for her human rights. In its Response, the Hospital explained that the applicant received the letter of May 3, 2011, which it described as non-disciplinary, for her part in a verbal confrontation between her and a co-worker, which occurred on March 27, 2011. The applicant did not address the Hospital’s position in a Reply and did not address this issue at all during the summary hearing. The Application does not provide any details or explanation of the March 27, 2011 incident that led to this letter. Consequently, the applicant has pointed to no evidence that she has or is reasonably available to her that would support a finding that she was subject to a reprisal for attempting to enforce her Code rights. In these circumstances, I find the applicant has no reasonable prospect of success in proving the Hospital committed a reprisal against her.

New Allegations

37The applicant did not complain to the respondents regarding the alleged cancellation of her shifts on April 9, 10 and 17, 2011. Consequently, neither respondent took any action to investigate or address this allegation. At the summary hearing, the applicant pointed to evidence that she has or is reasonably available to her that arguably could support a finding, assuming the evidence is accepted, that the cancellation of her shifts amounts to racial or ethnic discrimination for which the Hospital is vicariously responsible. This evidence and theory, however, is a significantly different description of the cancellation of these shifts than is contained in the Application. In the Application, the statement that the applicant’s shifts on April 9, 10 and 17, 2011 were cancelled is contained under the heading “Reprisals by Vocational Association, the Ontario Nurses Association, and by the Hospital” where the applicant sets out her allegations that the respondents committed reprisals against her. Specifically, the Application sets out that the three shifts were cancelled after she informed Mr. Howell on April 9, 2011 that she did not appreciate his comments during their previous meeting and wished to proceed with a grievance, which form part of her reprisal allegations against the Union. The allegation is not set out under the “Examples” heading of the Application where the applicant described the alleged incidents of discrimination and harassment she experienced in the workplace.

38The applicant therefore seeks to pursue this allegation based on entirely different facts, a different legal characterization and against a different respondent. Consequently, the allegation is in substance an entirely different allegation than that set out in the Application and is in effect a new allegation. In my view, this amounts to a significant amendment to the Application for which the applicant has made no request. In the circumstances, the most fair, just and expeditious procedure is to require the applicant to make submissions explaining why the Tribunal should permit this amendment, including an explanation for the delay in making this allegation, i.e., more than one year after the incidents allegedly occurred.

Order

39The Application is dismissed with the exception of the new proposed amended allegations that the cancellation of the applicant’s shifts on April 9, 10 and 17, 2011 amount to racial or ethnic discrimination. Within 14 days of the date of this interim decision, the applicant shall file with the Tribunal and deliver to the respondents written submissions explaining why the Tribunal should allow her to amend her allegations regarding these incidents to include wholly new and different facts and a different legal characterization against a different party. The applicant shall also explain her delay in raising these allegations. The respondents may respond to the applicant’s submissions by filing written submissions with the Tribunal and delivering them to the other parties within 14 days of receiving the applicant’s submissions.

Request for Order

40The applicant filed a Request for Order During Proceedings on Friday, April 20, 2012 seeking to amend the Application by adding two incidents that occurred in early 2012. The parties addressed the Request in their submissions during the summary hearing, but I shall reserve my decision on this issue pending determination of whether any part of the original Application is permitted to continue.