Jamie Huenemoerder v. Sears Canada Inc., 2012 HRTO 1771

Human Rights Tribunal of Ontario

Between:

Jamie Huenemoerder, Applicant

-and-

Sears Canada Inc., Respondent

Decision

Adjudicator: Brian Cook Date: September 19, 2012 Citation: 2012 HRTO 1771 Indexed as: Huenemoerder v. Sears Canada Inc.

Appearances

Jamie Huenemoerder, Applicant No one appearing

Sears Canada Inc., Respondent Shane Todd, 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 sexual harassment.

2The respondent requested that the Tribunal schedule a summary hearing and that request was granted in a Case Assessment Direction dated April 24, 2012. As noted in the Case Assessment Direction, 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. The issues typically dealt with in a summary hearing were discussed in Dabic v. Windsor Police Service, 2010 HRTO 1994.

3A Notice of Summary Hearing was issued on May 29, 2012. The summary hearing was scheduled to be heard by telephone conference hearing on September 7, 2012, starting at 1:30 in the afternoon. The Notice was issued using the contact information provided by the applicant and the respondent. The Notice was not returned as not deliverable, and there was no indication that it was not received by the applicant.

4In August 2012, the respondent advised the Tribunal that it had attempted to deliver documents to the applicant. The documents could not be delivered because the applicant had moved. The applicant has not advised the Tribunal of a change of address. The respondent communicated with the applicant by email and there was no indication that the email was not received.

5It appears that the applicant had notice of the summary hearing either in the form of the original notice or subsequent emails. If she did not in fact receive notice this was because she did not advise the Tribunal of a change in her contact information.

6On September 7, 2012, the respondent's representative called into the conference call. The applicant did not appear on the call. In accordance with the Tribunal's normal practice, I waited for half an hour for the applicant to call. The applicant had still not joined the call. On behalf of the respondent, Mr. Todd asked that the Application be dismissed.

Background

7In the Application, the applicant alleged that her employment with the respondent was terminated on June 21, 2011 because she disclosed to a co-worker that she is in a same sex relationship on June 16, 2011. She has started the employment on May 11, 2011.

8The Response denied that the applicant's sexual orientation had anything to do with the termination of her employment. The respondent asserts that the applicant's employment was terminated on June 21, 2011 because on June 17, 2011, she was observed removing a number of samples and testers from the cosmetics area where she worked. The respondent asserted that the incident was recorded on the store security surveillance system. The respondent further asserted that the individuals who made the decision to terminate the applicant's employment had no knowledge of the applicant's conversation with her co-worker on June 16, 2011 and no knowledge otherwise regarding the applicant's sexual orientation.

Decision

9The Notice of Summary Hearing stated the following with respect to the consequences of failing to attend a hearing:

If you fail to attend the hearing after receiving proper notice the HRTO may:

• proceed in your absence;
• determine you are not entitled to further notice of the proceedings;
• determine you are not entitled to present evidence or make submissions to the HRTO;
• decide the Application based solely on the materials before the HRTO;
• dismiss the Application as abandoned if the applicant fails to attend, and;
• take any other action the HRTO considers appropriate.

10I conclude that the Application should be decided based on the materials before the Tribunal at the time of the summary hearing. Based on those materials, it is apparent that there is a full and complete non-discriminatory reason for the termination of the applicant's employment and no reasonable prospect that the applicant could show that the termination of her employment was in any way related to her sexual orientation. For these reasons, the Application is dismissed.