Veronique Susan Nyonzima v. Idlewyld Manor, 2012 HRTO 2409

Human Rights Tribunal of Ontario

B E T W E E N:

Veronique Susan Nyonzima

Applicant

-and-

Idlewyld Manor

Respondent

INTERIM DECISION

Adjudicator: Naomi Overend

Date: December 28, 2012

Citation: 2012 HRTO 2409

Indexed as: Nyonzima v. Idlewyld Manor

APPEARANCES

Veronique Nyonzima, Applicant

Francois Sauvageau, Counsel

Idlewyld Manor, Respondent

Jane M. Gooding, Counsel

Introduction

1A summary hearing was held on December 17, 2012 to determine whether this Application should be dismissed in whole or in part, on the basis that there is no reasonable prospect that it would succeed. In addition, two other preliminary matters were raised at the summary hearing, which I also address in this Interim Decision.

Decision and analysis

Amendment of the Application

2The applicant filed her Application on July 25, 2011 alleging discrimination in employment on the basis of reprisal, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). At the summary hearing, counsel for the applicant submitted that I could not rely on the current Application as it was poorly drafted and contained incomplete allegations.

3I would note that the applicant had not, as of the date of the summary hearing, filed a Request for an Order During Proceedings (Form 10) asking to amend and so I did not have a full set of allegations before me on which I could make any determination. In the event that the applicant files a Form 10 on or before January 15, 2013, the Tribunal will determine whether it will allow these amendments.

4As it stands now, the Application, which was filed with the Tribunal on July 25, 2011, alleges that the applicant was subject to reprisal during the period from June 24, 2011 to July 15, 2011, for having filed and participated in proceedings concerning two Applications to this Tribunal in 2009. The allegations can be summarized as follows:

1. The applicant asked to be removed from the schedule on July 5 and 6, 2011 in order to attend a hearing of two earlier Applications on July 5, 2011. She was required to produce proof that the hearing was scheduled on July 5, 2011, which was harassment. Moreover, she was not removed from the schedule on July 6, 2011, despite having requested it off. When she did not attend work on that date, the respondent left her a voice-mail message asking where she was.

2. On July 8, 2011, when she returned to work, the applicant was followed around by a co-worker who monitored her actions and then told her that the respondent was powerful and looking for ways to terminate the applicant’s employment.

3. Other co-workers refused to work with the applicant, which put the applicant under a great deal of stress.

4. On July 14, 2011, the respondent falsely accused the applicant of abusing a resident on July 13, 2011 at the respondent facility. She was then suspended and escorted her out of the building when she tried to speak to a couple of co-workers.

On July 15, 2011, the applicant commenced a four-week stress leave as a result of the “continuous retaliation and abrupt suspension and harassment.”

5Although the Application was filed with the Tribunal in July, it was not served on the respondent until November 4, 2011. In the meantime, the applicant’s employment with the respondent was terminated on September 4, 2011. The applicant would like to add this event to her Application.

6In addition, counsel for the applicant states that his client believes that these events were not simply reprisal, but also discrimination on the basis of race and disability. During the summary hearing, the applicant stated that the same co-worker who said that management was looking for ways to terminate her employment also told her that the respondent did not like working with blacks, that “black employees were not welcome.”

7The allegation of disability discrimination is based on the fact that the applicant went off work on the stress leave in mid-July, 2011. The applicant took the position during the summary hearing that one of the reasons for the termination of her employment was that she took this leave; indeed, that she had not returned to work in mid-August as originally anticipated, but that she continued to be on leave when her employment was terminated on September 4, 2011.

Removal of Individual Respondent

8In both its Response and in its submissions on the summary hearing, the respondent noted that, at minimum, the individual respondent should be removed as there were no allegations against her. I asked counsel for the applicant why the individual respondent was named, and after conferring with his client, he indicated that the applicant was consenting to her removal. I then issued an oral ruling removing Cindy Perroudou as a respondent to this Application.

No Reasonable Prospect of Success

9The Tribunal issued a Case Assessment Direction (“CAD”) directing that a summary hearing would be held under Rule 19A of the Tribunal’s Rules of Procedure. Rule 19A.1 reads as follows:

19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of whether an 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.

10The issue that Rule 19A requires me to determine is whether this Application has no reasonable prospect of success. If a finding is made that this Application has no reasonable prospect of success, then it is dismissed. In the absence of such a finding, this Application will continue to advance through the Tribunal’s process.

11In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal stated:

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 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.

12The CAD specifically directed the applicant to “point to the evidence on which the applicant will establish intention to commit a reprisal and a link to the respondent’s alleged actions.” Despite the fact that the applicant now wishes to amend her Application to include subsequent events and grounds other than reprisal, the gist of the direction remains the same; namely, what evidence can the applicant point to that will establish a link between the incidents described and the grounds listed in the Code.

13The applicant indicated that she will testify that she had asked for July 5 and 6, 2011 off work and believed that both dates had been granted. She will also testify that she was compliant with management’s direction that she leave the facility during the investigation of the client abuse matter and that she was cleared of all charges by the Ministry of Health inspector who investigated the matter. Finally, she will testify that she did not work for a different employer during her subsequent medical leave from work.

14The applicant also indicated that she intends to subpoena her co-worker, Kami Prematilake, to testify that she advised the applicant that management intended to get rid of the applicant. Similarly, she intends to obtain the document, if it exists, from the Ministry of Health and Long-Term Care that shows she was exonerated in the investigation of the elder-abuse incident, and will call the Ministry of Health inspector, Bernadette Susnik, to support this assertion.

15On the basis of the applicant’s representations concerning the evidence she will call, I cannot conclude at this stage that she has no reasonable prospect of establishing a link between the incidents described and the ground of reprisal. I would note that the Ministry of Health document produced by the respondent does not specifically name the applicant, but refers only to a “PSW”.

16I do not agree with counsel for the applicant’s submission that the matter should be allowed to proceed to a hearing because much of this evidence in support of the applicant’s position will come out during cross-examination of the respondent’s witnesses and documentary disclosure by the respondent. The respondent produced 22 documents for the summary hearing, none of which the applicant pointed to as providing assistance for her position. Given the nature of the allegations, it is not appropriate for the applicant to conduct what would amount to a fishing expedition in order to establish her case.

17The respondent made many arguments about why the applicant’s position is not credible. While it would be premature for me to make credibility findings at the summary hearing stage, I am sufficiently concerned about the issues raised by the respondent that I do not think it would be fair to require the respondent to fulfill its obligations under Rules 16.2 and 17 of the Tribunal’s Rules of Procedure before hearing the applicant’s case.

18I am, therefore, directing that the hearing be set down for one day, at which time, the applicant will be required to call her case. If at the conclusion of her case it is appropriate, the question of reasonable prospect of success can be re-visited. In the event that the applicant is found to have no reasonable prospect of success at that stage, the Application will be dismissed. If, instead, a decision is made allowing the hearing to proceed, further dates will be set so that the respondent might call its case.

order

19In sum, I am making the following orders/directions:

a. The applicant has until January 15, 2013 to file a Form 10 requesting to amend her Application;

b. This matter will proceed to a one-day hearing, at which time the applicant will be required to call her case;

c. All parties will be required to disclose their arguably relevant documents in compliance with Rule 16.1;

d. Only the applicant will be required to disclose and produce the documents she intends to rely on at the hearing in compliance with Rule 16.2;

e. Only the applicant will be required to produce a witness list and summaries of evidence in compliance with Rule 17;

f. At the conclusion of the applicant’s case, the Tribunal may re-visit the question of whether the applicant has no reasonable prospect of success if appropriate;

G. In the event that the Application is not dismissed at that stage, the Tribunal will give further direction to the parties concerning the respondent’s case, including its disclosure obligations under Rule 16.2 and Rule 17.