Topan v. Unicco Facility Services Canada Company, 2012 HRTO 2268

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ghifta Topan Applicant

-and-

Unicco Facility Services Canada Company, Bennett Health Care Centre and Labourers’ Workers Union, LIUNA, Local 183 Respondents

DECISION

Adjudicator: Douglas Sanderson Date: December 4, 2012 Citation: 2012 HRTO 2268 Indexed as: Topan v. Unicco Facility Services Canada Company

APPEARANCES

Gifta Topan, Applicant Simiona Topan, Representative

Unicco Facility Services Canada Company, Respondent Melanie McNaught, Counsel

Bennett Health Care Centre, Respondent Brent Foreman, Counsel

Labourers’ Workers Union, LIUNA, Local 183, Respondent Tracey Henry, 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 and membership in a vocational association because of race, disability, age, record of offence and reprisal or threat of reprisal. The hearing of this matter took place on November 28, 2012.

2At the outset of the hearing, the applicant’s representative informed the Tribunal that the applicant would not testify because she was emotionally overwrought and found the prospect of testifying overwhelming. The applicant’s representative stated, however, that she intended to proceed with the hearing on the basis that other evidence could establish the applicant’s case. Each respondent argued that without the applicant’s testimony the Applicant could not succeed and submitted that the Tribunal should dismiss the Application. In light of the respondents’ submissions and following an attempt at mediation/adjudication, the applicant attempted to testify, but was uncomfortable and had difficulty focussing on the questions put to her. I advised the applicant and her representative that she needed to be more focussed in her answers, but also that the Tribunal would attempt to make her as comfortable as possible, e.g., by allowing her to take breaks as needed. I also briefly adjourned the hearing to allow the applicant to collect herself and to allow her and her representative to discuss the need to provide responsive answers. Following the adjournment, the applicant’s representative advised the Tribunal that the applicant decided to end her testimony and she was not cross examined. The applicant’s daughter testified about her interactions with the respondent Unicco Facility Services and the union representing the applicant, LIUNA Local 183, and the applicant’s husband testified regarding his observations of the effect the alleged violations of the Code had on the applicant.

3Following the applicant’s evidence, each respondent argued that the evidence adduced on the applicant’s behalf did not establish a prima facie case of a breach of the Code and submitted that the Tribunal should dismiss the case. Following the respondents’ submissions, the applicant’s representative conceded that the evidence adduced did not establish a prima facie case and acknowledged that the implication of this concession was that the Application must be dismissed. Consequently, I dismissed the Application and advised the parties that I would issue a written decision confirming my oral order. This is that decision.

4The Application is dismissed.