HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Karol Serrano
Applicant
-and-
Le Chateau Inc. and Yuan Reir
Respondents
INTERIM DECISION
Adjudicator: Eric Whist
Indexed as: Serrano v. Le Chateau Inc.
APPEARANCES
Karol Serrano, Applicant
Grace Permaul, Counsel
Le Chateau Inc. and Yuan Reir, Respondents
Sarah Graves, Counsel
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 family status, disability and reprisal.
2On May 23, 2012 the Tribunal issued a Case Assessment Direction (“CAD”) directing that a summary hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. The Tribunal will conduct a summary hearing to determine whether an Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed. If, following a summary hearing, the Tribunal finds that an application has no reasonable prospect of success, it will be dismissed. In the absence of such a finding, the Application will continue to be processed by the Tribunal.
3The summary hearing was held on September 6, 2012. I need only to refer briefly to the submissions that were made and to the information that was before me for the purposes of my decision.
4The applicant was employed by the corporate respondent as an assistant store manager. On April 20, 2011 she was interviewed by a member of the corporate respondent’s loss prevention unit who accused the applicant of having taken store merchandise.
5The applicant denied the accusation. The applicant alleges that during this interview she provided explanations to account for the merchandise she was accused of having taken.
6The applicant alleges that during this interview the loss prevention representative noted that the applicant was a single mother. The applicant alleges that this representative proceeded to recount to the applicant examples of other corporate respondent staff who were single mothers who had financial difficulties and who had been caught taking money or merchandise from the corporate respondent. The applicant submits that the loss prevention representative persisted in believing the applicant had taken merchandise notwithstanding the applicant’s explanations and, in the applicant’s view, a lack of evidence to support the loss prevention representative’s accusation. The applicant’s theory of the case is that the loss prevention representative’s conclusion that the applicant had taken store property was, in some measure, because the applicant was a single mother.
7The respondents submit that the decision to investigate the applicant followed a determination made on April 13, 2012 that the applicant was in possession of store merchandise that did not appear on the applicant’s personal purchase file. This was reported to loss prevention by the personal respondent, a junior assistant manager who worked in the same store as the applicant. The respondents take the position that there were legitimate reasons to conduct an investigation of the applicant that were identified before April 20, 2012 and that cannot be tied to a Code ground. The respondents further dispute the applicant’s claim that the applicant provided persuasive explanations during her interview on April 20, 2012 that accounted for the merchandise the corporate respondent was concerned about. They maintain that during the April 20, 2012 interview the applicant did not account for certain merchandise the loss prevention representative asked about and that the applicant committed to providing receipts for other merchandise of concern that the applicant never did.
8I was provided with further information and submissions about the role of the personal respondent and whether she may have held stereotypic views of the applicant because the applicant was a single mother as well as events that took place after April 20, 2012 when the applicant was suspended as a result of the loss prevention investigation.
9The applicant further alleges that the corporate respondent’s failure to respond to her request to investigate how the April 20, 2012 interview was conducted by the loss prevention representative constitutes reprisal. The applicant further alleges that the corporate respondent’s actions including the way in which it conducted the April 20, 2012 interview and its subsequent suspension of the applicant led to the applicant becoming ill. The applicant submits that this constitutes discrimination based on disability.
10In this case, it is clear that there are a number of issues in dispute including why and how the investigation and interview of the applicant took place and on what basis the respondents determined that the applicant appeared, in their view, to be responsible for missing merchandise. In my view resolving these issues requires findings of fact and credibility. In my view a finding in favour of the applicant’s account of events could lead to a finding of a Code violation. Accordingly, the Application will continue to proceed through the Tribunal’s procedure. Of course, deciding that the Application can continue to proceed is not a final decision on the merits of the Application.
11I would note that the applicant’s allegation of discrimination based on disability is not an allegation that she was treated differently by the respondents because she had a disability but rather that the respondents’ actions have caused the applicant to become ill. Consequently, even if this allegation was found to be true I see no reasonable prospect that it would lead to a finding of discrimination. Accordingly, the allegation of discrimination based on disability is dismissed.
DIRECTION
12The Application will continue in the Tribunal’s process.
13The respondents are directed to file their Responses to the Application within 35 days of receiving the above-noted materials from the applicant.
14The applicant may file her Reply to the Responses within 14 days of receiving the Responses in accordance with the Tribunal’s Rules.
15I am not seized of this matter.
Dated at Toronto, this 14th day of September, 2012.
“Signed by”
Eric Whist
Vice-chair```