Norouzian v. Young Women’s Christian Association of Greater Toronto, 2012 HRTO 435

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Bahareh Norouzian Applicant

-and-

Young Women’s Christian Association of Greater Toronto Respondents

-and-

Canadian Union of Public Employees, Local 2189 Intervenors

INTERIM DECISION

Adjudicator: Maureen Doyle

Date: February 29, 2012

Citation: 2012 HRTO 435

Indexed as: Norouzian v. Young Women’s Christian Association of Greater Toronto

APPEARANCES

Bahareh Norouzian, Applicant ) Self-represented

Young Women’s Christian Association ) of Greater Toronto, Respondent ) Frances Gallup, Counsel

1This is an Application filed on July 27, 2010 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”). The applicant alleges that the respondents discriminated against her in employment on the basis of colour, place of origin, age and reprisal or threat of reprisal.

2Following a review of the Application, a Case Assessment Direction (“CAD”) was issued on August 23, 2011, directing that a Summary Hearing take place.

3On September 12, 2011, the applicant filed a Request for an Order During Proceedings (RFOP), in which she requested leave to amend her Application.

4This decision deals with the applicant’s September 12, 2011 RFOP and the question posed in the Case Assessment Direction, being whether this Application should be dismissed as having no reasonable prospect of success.

5The Summary Hearing was held by telephone conference call on January 17, 2012.

6I note that at the Summary Hearing, the intervenor union indicated that its only interest in this Application related to the remedy requested and it made no submissions with respect to the applicant’s RFOP or the question of whether the Application should be dismissed as having no reasonable prospect of success.

DECISION

7The applicant’s Request to amend her Application is dismissed, but this matter is not dismissed on the basis that it has no reasonable prospect of success.

ANALYSIS

Background

8The applicant was employed by the respondent, first in the capacity of a relief worker and finally on a limited term contract as a maternity leave replacement, ending April 30, 2010. In her Application, the applicant alleges that her manager discriminated against her. In particular, she alleged as follows:

• She alleged that on February 2, 2010, her manager spoke about her at a team meeting, in her absence, and that this was done to humiliate her. The applicant alleged that the behaviour was discriminatory and indicates hostility toward her.
• She also alleged that the same day, the manager made remarks directly to her that were critical of her.
• The applicant alleged that the manager had accepted complaints about her from co-workers when the workplace policy requires co-workers to first speak to each other regarding any concerns. The applicant alleged that the fact that the manager required her to follow these policies but had not required co-workers with complaints about her to follow them is discriminatory behaviour.
• She alleged that on April 26, 2010, her manager met with her and advised her that she could work as a relief worker providing coverage for a co-worker who was to take vacation. She alleged that she accepted the offer of relief work but that when she came to work on April 29, 2010, she noted that others had been asked to fill in for the vacationing co-worker for the first week in May, 2010. She alleged that she emailed her manager that day reminding her of the offer extended on April 26, 2010, but that her manager did not respond to the email. She alleged that when she spoke with her manager later that day, the manager asked her if she had completed the necessary paperwork to perform relief work at other sites of the employer. The applicant alleged that when she advised the manager that she had completed the necessary paperwork, the manager denied having offered her relief work for the vacationing co-worker and stated that she did not want the applicant working at that site.
• The applicant alleged that on April 26, 2010, the manager also told her that because she had made a complaint to the head office regarding “her discriminatory behaviour and ruined her reputation”, she would see to it that the applicant would not obtain a permanent position at the site and that she would do this by not granting her an interview.
• The applicant alleged that when she applied for a housing counsellor position with the respondent employer on May 11, 2010, she sent a copy of her job application to the director. She alleged that the director asked her to call her on May 18, 2010 and that the director stated that she and the manager had decided not to grant her an interview and would not give her any relief shifts at the site due to the complaint she made about the manager to head office and they did not feel that she was a “good fit for the environment”.

9Additionally, in Form 1A, in answering why she believes she was harassed or discriminated against on the basis of race, colour, ancestry, place of origin, citizenship or ethnic origin, she stated:

I strongly believe that I have been harassed/discriminated against my place of origin, colour, and threat of reprisal from my manager, because she always tend to tell me in a private meeting in a friendly language that you people from third world country are very smart. Immigrating to new country start from beginning, learning new language, finishing your studies at high level and getting all good jobs and living in an easy street.

10Also in Form 1A in answering why she believes she was harassed or discriminated against based on her age, she stated:

Because my manager tend to tell me in each meeting that I have had with her that I am still young and I have many other work opportunities that I could apply for. This organization might not be a good fit for me. [sic]

11By way of remedy, the applicant initially only sought appointment to the permanent position for which she applied.

12On July 27, 2010, the respondent filed its Response with the Tribunal, denying any discrimination. In particular, the respondent submitted:

• After a team meeting on February 9, 2010, the applicant’s manager learned that the applicant had submitted a letter of complaint to Heather McGregor, the CEO of the respondent, on February 8, 2010 and that the applicant “falsely accused the manager of ‘discriminatory behaviour, mental harassment and abusive language’”. The respondents alleged that Diane Low, the acting Director of Human Resources met with the Applicant “to review her complaint and the YWCA’s Workplace Discrimination and Harassment Policy”. The respondents alleged that in accordance with YWCA policy and the applicant’s wishes, Ruth Crammond, the Director to whom the manager reported, convened a meeting on February 25, 2010, between the applicant and her manager to “discuss and resolve the complaint’. The respondent alleged that an agreement was reached for the applicant and her manager to “check in with each other regularly to ensure that they understood each other”. The respondent alleged that despite the manager’s best efforts, the applicant continued to “misunderstand her and challenge her authority”.
• The respondent alleged that the applicant called Ruth Crammond on or about May 18, 2010 to complain about not being called for relief shifts. The respondent alleged that the applicant was told at that time that she would not be called for relief shifts, nor would she be interviewed for the position for which she had applied as “there had not been a good fit between the Applicant and her manager and they had not seen eye-to-eye on many issues”. The respondent alleged that Ms. Crammond advised that she was upholding the manager’s decision not to hire her. The respondent further alleged that there were approximately 90 applicants for the position for which the applicant applied and that many, including the successful candidate, were better qualified than she.
• The respondent also alleged that the employer had performance concerns with the applicant during the course of her employment.

13With its Response, the respondent provided documentation which included a February 8, 2010 letter from the applicant to Heather McGregor of the respondent. The letter contains many of the same allegations contained in the Application regarding treatment by her manager: she alleged her manager made comments critical of her at a staff meeting on February 2, 2010 in her absence; made a comment critical of her directly to her on February 2, 2010; and required the applicant to follow policy by approaching fellow staff members with concerns prior to going to the manager with them, but permitted fellow staff members to go directly to the manager with concerns prior to discussing them with the applicant. She alleged in the letter that she had been harassed and discriminated against by her manager, though she does not state on what Code-related grounds she believes she was discriminated against. In the letter she also stated, in part, as follows:

Initially your organization appeared to be growing in a direction which parallels my interests and my career goals. I was in an impression that your organization operates from Anti-Harassment, Anti-oppression, Anti-Discrimination, and maintain Code of Conduct that protects Human Rights. [sic]

At this point that I am writing to you I am very disappointed, in a lot of pain, in tears, and with broken heart that I have experienced not what I have experienced initially. I have been experiencing Discrimination Behaviour, Mental Harassment, and Abusive Language towards me from my manager Carla Neto. [sic]

I have been working in this organization for less than six months and if I want to continue revealing to you as what has happened to me so far and the challenges I have been encountered by my manager and the Business Administrative, I have to write a book. In addition, I do not wish to use a manipulative attitude to survive in this organization, and it is still my honour to work in this organization, certainly not when Anti-Harassment, Anti-oppression, and Anti-discrimination policies has been abused by some individual in this organization.[sic]

I would like to have a private meeting with you to further discuss this matter. In advance, I would like to thank you for your consideration in this matter and I am looking forward to hear from you soon. [sic]

14Also included in the respondent’s documentation is a copy of a portion of its Administrative Manual, dealing with the respondent’s Workplace Harassment and Discrimination Policy. It states that it has as its foundation the Ontario Human Rights Code, “which provides every person the right to equal treatment without discrimination” and that the respondent and the intervenor union are:

committed to creating and maintaining a work environment for employees, residents and program participants that is free of discrimination and harassment as stipulated in the Ontario Human Rights Code. This commitment also extends to mediation and investigation of any workplace discrimination and/or harassment complaint and to taking corrective action to remedy the situation.

15The applicant filed a Reply to the Response. In it, she alleged that following the February 8, 2010 letter to Ms. McGregor, she met with Diane Low of the respondent on February 12, 2010, that Ms. Low took notes and that it was agreed that a meeting would be convened with the applicant, her manager and the director to whom her manager reported to discuss “the complaint”. She alleged that such a meeting occurred on February 25, 2010 and that they discussed “the events”. She also alleged that she sent a further email to Ms. Low “to further discuss the respondent discriminatory behaviour and how the respondent was practicing favouritism in the shelter” in mid-March, 2010. She alleged that her manager used “other techniques to harass” her and on March 30, 2010, she met with Ms. Low and “discussed the way the respondent was treating me differently at the shelter”. She alleges that she heard nothing back from Ms. Low, nor did she hear from her following an April 30, 2010 email when she asked Ms. Low to give “close attention to [her] concerns”.

16The respondent wrote to the Tribunal noting that the applicant had incorrectly identified individuals as respondents in the Reply, whereas the YWCA of Toronto is the only respondent named in the Application. Additionally, the respondent objected to the Reply to the extent that it purports to raise new matters of complaint not raised in the Application or Response, including the allegation regarding “new techniques to harass” and that the applicant and that Ms. Low ignored her complaints. The respondent submitted that these allegations ought not be entertained by the Tribunal.

17On September 26, 2010, the applicant filed a Request for an Order During Proceedings (RFOP), seeking to amend her Application. In particular, she sought to amend the remedy sought and wanted to add a financial remedy and a Public Interest remedy.

18On October 6, 2010, the respondent filed a Response to the RFOP, objecting to the applicant’s Request to amend her Application. In the event the Tribunal permitted her to amend her Application the respondent sought the opportunity to amend its response.

19On March 23, 2011, the applicant filed a further RFOP, seeking once again to amend her Application. In particular, she asked to increase the amount of financial remedy sought.

20The respondent did not file a Response to the March 23, 2011 RFOP.

21On April 20, 2011, the Tribunal issued an Interim Decision regarding the applicant’s RFOPs, Norouzian v. Young Women’s Christian Association of Greater Toronto, 2011 HRTO 792. In the decision, the Tribunal granted the applicant’s request to amend her Application and gave the respondents an opportunity to file an amended Response. The Tribunal also directed that notice of the Application be given to the union. The union subsequently made a request to intervene, which was granted by the Tribunal in an Interim Decision dated July 20, 2011, Norouzian v. Young Women’s Christian Association of Greater Toronto, 2011 HRTO 1369.

22On May 4, 2011, the respondent filed an amended Response. It maintained its position as outlined in the original Response and responded to the remedial orders requested by the applicant. Additionally, it noted that after filing her Application, the applicant filed materials containing new allegations, such as the ones in the Reply, to which it had already objected. The respondent denied the additional allegations and to the extent to which they were made outside the time frame contemplated by s. 34 of the Code, maintained that the Tribunal has no jurisdiction to consider them.

23The applicant filed a Reply to the amended response, submitting, among other things, that she has not raised new matters but simply replied to new matters raised by the respondent.

24As noted above, subsequent to the Tribunal issuing the Case Assessment Decision directing that a Summary Hearing pursuant to Rules 19 A.1 and 19 A.2, the applicant filed a further RFOP seeking to amend her Application on September 12, 2011. She stated that she was requesting that the Tribunal permit her to “amend my application in whole”. In stating the reasons for her Request, she stated that at the time she filed her Application she “did not have full knowledge of human rights procedures and rules” and that she “missed to connect the respondent’s actions and the grounds cited”. She stated that she thought that she would be “asked in tribunal process to show the link between the respondent’s actions and the grounds cited”.

25The respondent filed its Response in opposition to the RFOP on September 26, 2011. It noted that this was the third request by the applicant to amend her Application and submitted that she has put forward no good reason which would justify the respondent being put to the further trouble and expense of filing yet another Response. It noted that the Rules were available on the Tribunal website when the Application was filed and noted that Form 1, which the applicant completed, contains specific instructions regarding how to make an Application. In particular, it stated that at section 8 the Form directs applicants to “detail each event she believes to be discrimination and to give details of every incident of discrimination you want to raise in the hearing” [emphasis from respondent’s submissions]. The respondent submitted that the applicant’s excuse of not having full knowledge of human rights procedures and rules is incomprehensible in light of the information readily available to her. Further, the respondent noted that according to the CAD, the applicant would be given the opportunity at the Summary Hearing to point to the evidence upon which she would rely to prove a link between the respondent’s actions and the grounds cited.

26On September 29, 2011, the applicant wrote in reply to the respondent’s Response, submitting that the respondent had caused her a good deal of pain and suffering, maintaining she did not have full knowledge of human rights rules and procedures and submitting that as the respondent has had a lawyer, she should have an opportunity to amend her application as she has “gained more knowledge throughout the course of my application”.

27In advance of the Summary Hearing, on December 9, 2011, the applicant filed submissions in addition to various other documents. In her submissions, she reiterated her position that her manager’s actions were discriminatory on the basis of her place of origin and age and she reiterated her allegation that the respondent retaliated against her for having complained about her manager. She repeated many of the allegations from her Application and Reply, including her allegation that her manager had discriminated against her on the basis of age. In her Application, she stated that her manager told her on several occasions that she was young and could apply for other jobs and may not be a good fit at the respondent. In her submissions prior to the summary hearing, she alleged that the manager stated:

sometimes some employees does not fit in some work environment cause of their age, as it is in your case, this organization might not be a good fit for you, this kind of jobs are for people way older than you, gained more experience throughout their life as they aged, have proven communication and interpersonal skills, and need this salary to run their family and to pay their bills. [sic]

28Additionally, however, the applicant included a series of new allegations of discrimination in her submissions and certain of the other documents provided by her relate to the new allegations. In particular, the applicant made new allegations which may be generally described as allegations that the manager treated the applicant and another Persian employee in a discriminatory fashion because of their place of origin, allegations that the manager looked at her with an angry face and responded to her angrily when she would greet and respond warmly to other staff, allegations that she was unfairly criticized by the manager for working in the kitchen instead of in her office, allegations that others noted that the manager did not like her and told her not to bother applying for jobs there, allegations that the manager spread rumours about her work performance and interaction with colleagues, allegations regarding meeting minutes, allegations that her manager belittled her opinions in front of staff, allegations around pay issues, allegations regarding errors on her time sheets, allegations regarding a conversation between the Business Administrator and a co-worker regarding an individual who had resigned, allegations regarding issues around reimbursement for travel expenses and allegations that she felt her manager was stalking her.

29At the Summary Hearing into this matter, the applicant submitted that she should be permitted to amend her Application as at the time she completed the original Application, she was traumatized and had not been able to obtain legal assistance. She also indicated that she does not intend to pursue her claim of discrimination on the ground of colour.

30With regard to the evidence she would use to establish a link between the respondent’s actions and the grounds of discrimination she alleges, she submitted that she would rely upon documentation she submitted including the April 30, 2010 email she sent to Diane Low as well as subsequent emails to and from Ms. Low regarding her complaints about her manager, wherein she sought Ms. Low’s attention to the matter and asked that something be done “in regards to human rights to fairness and given equal opportunity to everyone” [sic]. Other documentation included emails to and from Ms. Low regarding applying for the posted permanent position, the hiring process, requesting relief shifts and emails from May 18, 2010 regarding a telephone call she had with Ruth Crammond earlier that day and her intention to file a Human Rights complaint as well as an affidavit regarding that telephone call She also pointed to emails and documents regarding disputes about travel expenses pay and hours, an email advising her she was not the successful candidate for the position she sought and her performance review. She indicated that she would call as a witness another employee of the same place of origin who would testify about having been treated in the same way the applicant alleges she was treated, in particular having been told that she had difficulties communicating. The applicant also submitted that at the meeting she had with Ms. Low regarding her complaints, she made the same complaints outlined in her Application.

31I note that at various points in her submissions, the applicant has alleged that the “respondent/s” have said or done certain things, whereas in fact, the only respondent in this matter is the YWCA. For clarity, no individuals have been named as respondents to this Application.

32In advance of the Summary Hearing, on January 3, 2010, the respondent filed written submissions and various other documents with the Tribunal. The respondent submitted that the Application should be dismissed at the Summary Hearing as having no reasonable prospect of success and also submitted that the Tribunal should not consider new allegations raised for the first time in the applicant’s December 12, 2011 submissions. The respondent submitted that the new allegations were untimely, dating back some 1 ½ to 2 years ago, were contrary to Rule 6.2 which requires applicants to set out “all of the facts that form the substance of the allegations of discrimination”, the applicant had the benefit of instructions on the Application form itself, the applicant had already made requests to amend her application without making these new allegations in an expeditious fashion, and the respondent has suffered prejudice as a result of the applicant’s delay, with the manager being unavailable to respond to the new allegations until January 9, 2012 and the Human Resources manager no longer being employed by the respondent. In support of its submission that the Tribunal should not consider these allegations, the respondent cited Zaki v. Ontario (Ministry of Community and Social Services), 2011 HRTO 1797 at paragraphs 21 and 22 and Preddie v. Saint Elizabeth Health Care, 2011 HRTO 2098 at paragraphs 23 and 24.

33The respondent also submitted that the applicant has not established any link between the protected ground of place of origin, colour or age and the allegations regarding the respondent’s actions. The respondent cited Villella v. Brampton (City), 2011 HRTO 1085 at paragraph 10, Dabic v. Windsor Police Service, 2010 HRTO 1994 paragraphs 6 to 9, Afiouni v. Tradition Fine Foods, 2011 HRTO 396 at paragraphs 8 and 9 and Reid v. Molson Coors Canada, 2011 HRTO 427 at paragraph 8, stating that the Tribunal does not have the jurisdiction to address allegations of unfair treatment generally.

34With regard to the applicant’s allegation of reprisal, the respondent cited Noble v. York University, 2010 HRTO 878 at paragraph 33, stating that the applicant must establish three elements for a finding of reprisal: an action was taken against or a threat was made to the applicant; the alleged action or threat is related to the applicant having claimed or attempted to enforce a right under the Code; and an intention on the part of the respondent to retaliate for the applicant’s claim or attempt to enforce a right protected by the Code. The respondent denied that the applicant’s complaint was the reason for the fact that she did not get any further relief shifts or an interview for the new position for which she had applied. In addition, however, the respondent submitted that the applicant’s February 8, 2010 letter of complaint “does not allege facts that could establish a breach of the Code”, but rather simply “alleges that her manager treated her unfairly”. The respondent noted that in the letter the applicant states that she has been experiencing “Discrimination Behaviour”, but stated that the “letter does not allege a link between the treatment and her place of origin, age, colour or any other protected ground.” Further, the respondent stated that the letter “does not allege any discriminatory comments”. The respondent submitted, therefore, that the applicant cannot be said to have been attempting to exercise her rights under the Code, and therefore the alleged retaliation is not related to the exercise of her rights under the Code.

35At the Summary Hearing, the respondent relied upon and repeated its written submissions.

36The respondent relied on the cases noted above and in addition relied upon Shakhnazarov v. George Brown College, 2011 HRTO 1917 (“Shakhanazarov”) and Matthews v. Chrysler Canada Inc., 2011 HRTO 1939 (“Matthews”).

37With regard to the question of whether the application should be dismissed as having no reasonable prospect of success, the respondent submitted that the applicant has not established a link between the allegations as set out in the Application and any alleged actions of the respondents.

38With regard to the allegation of reprisal for having filed a complaint, the respondent relied on its written submissions and also submitted that the applicant’s documentation from May 17, 2010, regarding her lack of relief shifts, proves that the respondent was not assigning relief shifts to her before she mentioned the human rights proceedings. The respondent submitted that the applicant should not be permitted to make any allegations regarding what she discussed in meetings with Ms. Low, as that was not referenced in the original Application. The respondent submitted that the applicant has not pointed to evidence which links the respondent’s alleged actions and reprisal under the Code.

Amendment to the Application

39Rule 1.7(c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and expeditious resolution of any matter before it, the Tribunal may “allow any filing to be amended”.

40The applicant’s request to amend her Application “in whole” is denied for the following reasons.

41In her RFOP, the applicant provided no detail regarding what amendments she sought to make. In determining requests to amend Applications under s. 34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the timing of the request to amend and the prejudice to the respondent (see Dube v. Canadian Career College, 2008 HRTO 336, Wozenilek v. 7-Eleven Canada Inc., 2009 HRTO 926 and Dunford v. Holiday Ford Sales, 2009 HRTO 1563). A request as vague as the one stated in the RFOP cannot be considered in any meaningful way.

42The Tribunal stated in Shakhnazarov at paragraphs 22 and 23:

Section 34 of the Code provides as follows:

34.(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

While s. 34(1) of the Code applies only to when a person may apply to the Tribunal and not to when s/he can seek amendments, s. 34 does set out the Tribunal’s expectation that applicants will act in an expeditious manner and not unduly delay alerting respondents to new allegations so that they may know the case against them. It also acknowledges that the Tribunal, in exercising its discretion, can take into account whether respondents are prejudiced (Khokher v. Intercon Security Limited, 2011 HRTO 1493).

43At question #8 on the Application Form, applicants are instructed to “Describe each event” they “believe was discrimination”, are told to be sure to state “what happened, who was involved, when it happened…where it happened”. Applicants are instructed to “Be as complete and accurate as possible” and to “Be sure to give details of every incident of discrimination you want to raise in the hearing”.

44Though she has not particularized what amendments she seeks to make in the RFOP, in the submissions the applicant filed December 9, 2011, prior to the Summary Hearing, she makes a number of new allegations of discrimination. While the applicant submitted that she should be permitted to make amendments to include new allegations because she was devastated at the time she filled out the original Application, I note that in her Application she was able to provide details regarding events which she believed were discrimination. The amendments she now seeks to include are allegations which relate to events prior to the filing of her Application, the details of which would have been known to her at the time she completed her Application. I also note that subsequent to filing the Application, she made two requests to amend her Application, both relating to the remedy she sought, and neither relating to additional allegations. It is evident, therefore, that the applicant was aware of the possibility of filing a request to amend her Application and how to go about making such a request, but chose not to raise these additional allegations earlier. Given the fact that she was capable of providing details regarding allegations of discrimination in her Application and she took the opportunity on two earlier occasions to request to amend her application at an earlier stage, I do not accept that she was unable to make these allegations in a more timely fashion and I do not find that she has provided a good faith explanation for not doing so.

45Additionally, the applicant submitted that she should be permitted to make amendments to her Application at this stage because she did not have a legal representative when she filled out the Application and she has learned through the course of these proceedings. I note however that in her Reply, she indicated that she has completed her BA, is a “law student”, has obtained a college diploma as a paralegal and another as an Immigration Consultant, has done legal research, attended court cases and has knowledge of the legal system. She does not describe herself as an unsophisticated litigant or as someone who would not be capable of understanding and complying with the directions provided on the Application Form itself, and in the circumstances I am not persuaded that the lack of legal assistance provides her with a good faith explanation for not having completed her Application in full, or at a minimum, requested the opportunity to amend and include further allegations at an earlier stage in this process.

46The respondent has already filed two responses to this Application: its original response and an amended response after the applicant’s first two requests to amend her Application were granted. Permitting the applicant to amend her Application to include the additional allegations at this stage would require the respondent to file a third response and it would be responding to allegations that relate to events at least 1 ½ to 2 years old.

47The applicant did not seek to include additional allegations until after the case had advanced as far as the Tribunal issuing a Case Assessment Direction directing a Summary Hearing take place to consider whether there was no reasonable prospect that the Application would proceed.

48While the nature of the allegations she seeks to include at this point are not entirely dissimilar to the kind of allegations she made in the original Application, I find that the applicant has not shown that the delay in raising these allegations was in good faith, and I do not find that at this stage of the proceedings, with the respondent already having filed two responses and with a CAD directing a Summary Hearing, permitting the applicant to further amend her Application would provide for a fair, just and expeditious resolution of this matter and her RFOP is denied. For greater clarity, the applicant is not permitted to amend her Application “in whole”, nor is she permitted to amend her Application to include the allegations made for the first time in the materials she filed prior to the Summary Hearing, as listed at paragraph 28 above.

49It must also be noted, however, that the Summary Hearing presents applicants with the opportunity to point to evidence which they will rely upon to establish a link between the discrimination they allege and the actions of the respondents. I find that in describing follow-up emails and meetings with the respondent regarding her complaint about her manager, the applicant properly provides detail which relates to her original allegation of reprisal following her complaint to management at the respondent. In its response, the respondent itself provided information regarding follow-up and where the applicant is pointing to evidence relating to the allegation of reprisal following her complaint, her submissions are appropriately considered for the purposes of this Summary Hearing.

Whether There Is “No Reasonable Prospect of Success”

50In 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. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:

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.

51In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

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 these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

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.

52In Form 1 of her Application, the applicant attributed remarks to her supervisor about individuals from “third world countries” working and ending up on “easy street” which could, if proven, provide a link between the respondent’s alleged actions and discrimination. The applicant may be able to establish that the remark itself, if made, was discriminatory and that it provides a context linking the respondent’s alleged actions to discrimination on the basis of place of origin. Accordingly, I cannot find that the Application with regard to this allegation has no reasonable prospect of success on the basis of place of origin.

53In her Application, the applicant stated that the respondent had discriminated against her on the basis of age because her manager had told her more than once that she is still young and would have many other work opportunities she could apply for, though the respondent organization might not be a good fit for her. Though she did not make reference to this allegation in her oral submissions, in her written submissions for the Summary Hearing, she alleged that the manager had made statements indicating that her age was the reason she was an unsuitable candidate for positions at the respondent. These allegations, if proven, could provide a link between the respondent’s alleged actions and discrimination on the basis of age. Accordingly, I cannot find that the Application with regard to this allegation has no reasonable prospect of success with respect to an allegation of discrimination on the basis of age.

54With regard to the allegation that she has been subject to reprisal following a complaint to management, the respondent submitted that there is nothing in the February 8, 2010 complaint which alleges facts which could establish a breach of the Code. While it is true that the body of that complaint appears to catalogue her concerns with “unfair” treatment by her manager, it is significant that in her initial email on February 8, 2010, the applicant indicated that she believed she had been subject to “Discrimination Behaviour” contrary to the respondent’s Anti-Harassment, Anti-Oppression and Anti-Discrimination policies. The respondent indicated that her complaint was dealt with according to that policy and that the policy was discussed with the applicant. The respondent’s Workplace Harassment and Discrimination Policy indicates that it has its foundation in the Code and that the respondent seeks to create and maintain a work environment “free of discrimination and harassment as stipulated in the Ontario Human Rights Code.” According to the respondent, following receipt of the email, Diane Low met with the applicant to review her complaint and the respondent’s Workplace Discrimination and Harassment Policy. The respondent also advised that subsequently, Ruth Crammond and the applicant’s manager met with the applicant in accordance with the respondent’s policy and the applicant’s wishes.

55Section 8 of the Code , which prohibits reprisals or threats of reprisals, states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.

56A relevant question here, therefore, is whether the applicant can be said to have been attempting to enforce her rights under the Code in the complaint she made to management at the respondent. The respondent takes the position that the complaint was simply a series of allegations regarding unfair treatment by her manager, but did not allege discrimination contrary to the Code. Though her February 8, 2010 email does not allege discrimination on a particular Code-related ground, given its reference to the respondent’s own policy which is grounded in the Code, a reasonable person may conclude that the applicant was alleging discrimination contrary to the Code and attempting to enforce her rights under the Code. The applicant has indicated that she will point to evidence that management at the respondent stated that she would receive no further relief shifts and was not the successful candidate for the position for which she applied, due to her complaints regarding her manager. Accordingly, it cannot be said that there is no reasonable prospect of success with regard to the question of reprisal.

57I have reviewed the remaining allegations and the applicant’s submissions in detail, and do not find that the applicant has been able to point to evidence upon which she would rely to establish a link between the respondent’s alleged actions and the grounds of discrimination she alleges. Accordingly, the Application as it relates to the remaining allegations is dismissed as having no reasonable prospect of success. In particular, I find that there is no reasonable prospect of success with respect to the applicant’s allegation of discrimination relating to her manager’s alleged actions on February 2, 2010 or her manager’s alleged acceptance of complaints about her from coworkers, nor do I find that there is a reasonable prospect of success with respect to the applicant’s allegation, which was not particularized, that her manager used “other techniques to harass her”.

58The applicant must be able to show that the respondent has treated her differently as compared to others based on her age and/or place of origin and/or reprisal for her Application to be successful. I am satisfied that in the Application and in her submissions she has pointed to evidence upon which she will seek to rely which may, if proven, show that she was treated differently on these bases in respect of certain allegations. Accordingly, I do not find that it can be said that there is no reasonable prospect that the Application will succeed.

ORDERS:

The Application will continue to be processed on the following basis:

1. The applicant’s request to amend her Application “in whole” is denied;
2. The applicant’s attempt to amend her Application with the addition of new allegations, as described at paragraph 28 above, made in the materials she filed prior to the Summary Hearing, is denied;
3. The applicant’s allegations relating to her manager’s alleged actions February 2, 2010, and relating to her manager’s alleged acceptance of complaints about her from coworkers and relating to her allegation that her manager used “other techniques to harass” her, are dismissed as having no reasonable prospect of success.
4. The Application as it relates to alleged comments from the applicant’s supervisor regarding individuals from “third world countries” working and ending up on “easy street” and as it relates to alleged comments from her manager regarding her age as a reason she was an unsuitable candidate for positions at the respondent, and as it relates to alleged reprisal by the respondent, is not dismissed as having no reasonable prospect of success and will continue to be processed by the Tribunal.