Anita Nijjer v. Cheryl Ann Brodie-Achaibar, 2012 HRTO 1762

Human Rights Tribunal of Ontario

Between:

Anita Nijjer, Applicant

-and-

Cheryl Ann Brodie-Achaibar, Respondent

Interim Decision

Adjudicator: Leslie Reaume Date: September 18, 2012 Citation: 2012 HRTO 1762 Indexed as: Nijjer v. Brodie-Achaibar

Appearances

Anita Nijjer, Applicant Self-represented

Carol-Ann Brodie-Achaibar, Respondent No one appearing

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 contracts because of sex.

2By Case Assessment Direction ("CAD") dated March 19, 2012, the Tribunal, on its own initiative, scheduled this matter for a Summary Hearing by teleconference pursuant to Rule 19A of the Tribunal's Rules of Procedure.

3The Summary Hearing process is described in Rule 19A of the Tribunal's Rules of Procedure. The issue in a Summary Hearing 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 part of the Application will succeed.

4In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, the Tribunal observed that in some cases, the focus of the summary hearing will be on the legal analysis and whether the allegations could reasonably be considered to amount to a Code violation. In other cases, the focus will be on the applicant's ability to point to evidence which is reasonably available which would demonstrate a link between the actions of the respondent and the prohibited grounds alleged by the applicant. The Tribunal also emphasized the importance of being attentive to the fact that in some cases of alleged discrimination, the respondent may be in possession of most or all of the evidence related to the applicant's allegations and it may be appropriate to give the applicant the opportunity to acquire that evidence through disclosure and cross-examination of the respondent's witnesses.

5As the Tribunal noted in Forde v. Elementary Teachers' Federation of Ontario, 2011 HRTO 1389, at para. 17, the Tribunal does not have the power to deal with general allegations of unfairness and that there must be a basis for the allegations beyond mere speculation.

Analysis

6The applicant was given an opportunity to make submissions to assist the Tribunal in determining whether her Application should proceed.

7The hearing was scheduled for 9:30 a.m. on June 6, 2012. The respondent did not participate in the call. The Confirmation of Summary Hearing dated March 20, 2012, was sent to the last known address of the respondent and not returned to the Tribunal. The respondent was not in attendance by 10:00 a.m. and there was no indication that the respondent had contacted the Tribunal to explain her absence. Therefore, I have concluded that respondent elected not to participate in the call.

8The applicant alleges that the respondent was her business partner and that when she announced that she was pregnant, the respondent began to take responsibilities away from her. She also alleges that the respondent refused to accommodate her when she required assistance. She gave one example involving an employee who had failed to show up to work. The applicant had covered for the employee and had been at work for 12 hours. The respondent refused to accommodate the applicant's need to rest because of her pregnancy.

9Having reviewed the materials and considered the oral submissions of the applicant, I have concluded that this matter should move forward to a full hearing where the presiding adjudicator can dispose of the Application on a final basis. The applicant's oral submissions during the summary hearing made the basis for her Application and the connection between her pregnancy and the respondent's conduct somewhat more clear.

10Pursuant to Rule 19A.6, I do not consider it necessary to provide further reasons for this Decision. I cannot determine that the Application has no reasonable prospect of success. Accordingly, the Application will move on to the next stage in the hearing process.

11The parties have filed an application and response and participated in mediation. The Registrar will schedule the matter for a one-day hearing.

12I am not seized.