HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Rowena Lunar
Applicant
- and-
Canadian Real Estate Investment Trust
Respondent
decision
Adjudicator: Ian R. Mackenzie
Indexed as: Lunar v. Canadian Real Estate Investment Trust
APPEARANCES and wRITTEN SUBMISSIONS
Rowena Lunar, Applicant ) Self-represented
Canadian Real Estate Investment )
Trust, Respondent ) Hadiya Roderique, Counsel
1Rowena Lunar filed an Application under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of age and family status. The applicant was 49 years of age at the time of the alleged discrimination and alleges that a younger person was hired to replace her after her termination of employment. She also alleges that her employment was terminated because she had taken bereavement leave and other leave after the death of her father.
2The respondent requested a summary hearing of the Application and this was granted in a Case Assessment Direction (CAD) issued on June 9, 2011. In the CAD, the applicant was advised that to succeed in the Application she must be able to prove on a balance of probabilities that there is a link between the actions of the employer and a prohibited ground of discrimination. The CAD stated: "Having reviewed the Application and Response, it appears that the applicant may be unable to prove such a link".
Overview
3The applicant's employment with the Canadian Real Estate Investment Trust as a senior property accountant was terminated on March 22, 2010, on a without cause basis. The applicant's employment was terminated upon her return from a period of leave following the death of her father (bereavement leave, personal leave and vacation). The applicant states that she was replaced by a younger employee.
4The respondent states that the termination of employment was as a result of a reorganization of the workplace that had been recommended in early January of 2010. The recommendation was to terminate the employment of two junior property accountants and one senior property accountant (the applicant) and to hire two senior property accountants. The respondent submitted that it had concluded that the applicant was the least productive property accountant. The reorganization proposal, including the termination of the applicant's employment, was approved by the respondent on February 4, 2010. The delay in implementing the reorganization was due to the search for a replacement for the applicant.
5On February 1, 2010, the applicant requested compassionate leave to care for her father from March 15 to May 10, 2010. This request was granted by the respondent. Shortly before her leave, the applicant's father passed away. The applicant amended her request to two weeks of leave (bereavement leave, personal leave and vacation leave), which was approved. On her return to work on March 22, 2010, her employment was terminated.
6The applicant disagreed with the assessment of her performance by the respondent. She also submitted that people over the age of 50 were terminated and then younger people were hired. The applicant also submitted that she was on compassionate leave and was grieving at the time of her termination of employment.
7The respondent submitted that there were no alleged facts or available evidence that demonstrated a link between the termination of employment and the alleged prohibited grounds of discrimination. The respondent submitted that the reasons for the termination of employment were clearly set out for the applicant and although she disagrees with those reasons, she has not demonstrated that the termination of employment was discriminatory.
8The respondent submitted that the person hired to replace the applicant may have been younger than her but there is no obligation to match the age of the person being replaced. The respondent stated that it had hired older employees and that the age range was from 38 to 58.
Analysis and Decision
9For the reasons that follow, I have determined that the Application should be dismissed as showing no reasonable prospect of success.
10The nature of a summary hearing has been set out in Dabic v. Windsor Police Services, 2010 HRTO 1994. The focus of this hearing is whether or not there is a reasonable prospect that evidence the applicant has or that is reasonably available to her can show a link between what happened to her and the prohibited grounds of sex or family status.
11The Tribunal does not have the power to address allegations of unfairness, in the general sense. It can only address allegations of discrimination based on the grounds set out in the Code.
12It is important to note here that the applicant's employment was terminated on a without cause basis. In an application before the Tribunal, the onus is not on the respondent to justify its decision to terminate the applicant's employment. Rather the Code prohibits discrimination and harassment with respect to employment on the basis of the prohibited grounds specified in the Code, and if this Application were to proceed to a hearing on the merits the onus would be on the applicant to show a link between the termination of employment and discrimination under the Code.
13In my view, the applicant has no reasonable prospect of establishing the necessary link between the termination of her employment and the prohibited grounds of age or family status. With regards to age, her only allegation is that a younger person was hired to replace her. Even if the applicant was able to establish that the person hired to replace her was younger than she, this single fact would not be a sufficient basis on which the Tribunal could draw an inference that the respondent’s treatment of her was based on her age. A simple difference in age from the person subsequently hired is not sufficient to demonstrate age discrimination. The applicant must make more than a bald allegation of discrimination.
14With regards to family status, the respondent approved the applicant's request for leave for, initially, taking care of her father and, subsequently, for bereavement. The timing of the termination of her employment must have been difficult for the applicant, as it occurred on her first day back from her bereavement-associated leave. However, she has not been able to show any facts or evidence, which if proven, would establish a link or connection between her taking that leave and her termination of employment. Without such evidence, her allegation of discrimination on the basis of family status cannot succeed.
15I find that there is no reasonable prospect that the Application would succeed.
Decision
16Accordingly, the Application is dismissed.
Dated at Toronto, this 6th day of January 2012..
”signed by”
Ian R. Mackenzie
Vice-chair