Arthur v. Cara Operations Limited, 2012 HRTO 454

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Louise Pearl Arthur

Applicant

-and-

Cara Operations Limited (Montana’s Cookhouse)

Respondent

DECision

Adjudicator: Yasmeena Mohamed

Date: March 5, 2012

Citation: 2012 HRTO 454

Indexed as: Arthur v. Cara Operations Limited

APPEARANCES

Louise Arthur, applicant ) Self-Represented

Cara Operations Limited, Respondent ) Andy Balaura, Counsel

1This is 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 race, colour and ethnic origin.

2By Case Assessment Direction (the “CAD”) dated May 24, 2011, the Tribunal directed that a summary hearing be held in this matter by teleconference. The Tribunal stated the following at paragraph 5:

The Tribunal’s Registrar will schedule a half-day summary hearing by teleconference. The applicant will proceed first during this summary hearing. The applicant shall make argument about why the Application should not be dismissed as having no reasonable prospect of success, and point to the evidence on which the applicant will prove a link between the respondent’s action and the grounds cited.

Summary Hearings

3Rule 19A of the Tribunal’s Rules of Procedure 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure of witness statements.

4The test at the summary hearing is whether the applicant has no reasonable prospect of success. If, after considering the arguments made by the applicant, there is a basis to believe that there is no reasonable prospect of success, the Application shall be dismissed. Otherwise, the Application shall be moved forward in the process towards being considered at a merits hearing in which all the evidence shall be presented and witnesses heard from in the ordinary course.

5Details about the nature of a summary hearing were articulated in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paragraphs 8-9:

In some cases, the issue at a summary hearing may be whether, assuming all of 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 reasonable prospect that the 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.

The Applicant’s Submissions

6The crux of the applicant’s position is that she has been discriminated against by the respondent because of her ethnic and racial background being “black”. In summary, the applicant premised her position on the following grounds:

a) The respondent had indicated to the applicant that if she worked hard as a hostess, completed her probationary period and attained server experience, she would be promoted to a server position.

b) The applicant had been working for the respondent as a host for approximately six months and despite her seniority and hard work, she was not promoted to a server position.

c) The applicant’s “white” colleagues were promoted to server positions notwithstanding that they either lacked any restaurant or server experience or higher seniority status.

d) The applicant’s hours of work were summarily reduced to one shift per week, without the applicant’s prior knowledge or any explanation. The applicant’s “white” colleagues hours remained the same and/or were increased notwithstanding that they have lower seniority than the applicant.

e) The applicant’s “white” colleagues who were promoted to server positions have all acknowledged their promotions to server positions without restaurant or server experience.

f) The applicant received a poor performance review following her demand for an explanation regarding her lack of promotion for the server position and her reduction of hours of work. The applicant received a score of 2.4, on a scale from 1 to 4, in her performance review. The low review score were premised on the following:

i) The applicant lacked interaction with employees and guests;

ii) The applicant did not talk to staff and guests and, as a hostess she was expected to talk more frequently to staff and guests;

iii) The respondent received no positive customer feedback;

iv) The applicant failed to notify staff when she left work;

v) The applicant failed to wear a black belt to work; and

vi) The applicant failed to identify a health and safety issue.

g) The applicant received a poor performance review, without any prior knowledge that her performance was an issue. At no time did management, her colleagues and/or customers indicate to her that her performance was bad and/or that she was required to wear a black belt to work. The applicant submitted that she always received good reviews from customers.

7The applicant submitted that she has no witnesses to corroborate her allegations.

The Respondent’s Submissions

8The respondent denies all of the allegations made by the applicant. The respondent submitted that the applicant’s allegations that she was not promoted, received an unjustified and poor performance review and experienced a reduction in hours because of her racial and ethnic background are without any proof or merit.

9The respondent denies the allegation that the applicant’s “white” colleagues had received promotions and increased hours despite their lack of experience and seniority. The respondent submits that these allegations are without any proof or merit.

10The respondent submitted that there is no link between the conduct of the respondent and the applicant’s racial background and that the Application must be dismissed for failure to provide the evidentiary link between race and the reduction in hours and the poor performance review.

The Applicant’s Submissions in Response

11The applicant reiterated that the only reason she was not promoted to the server position was because of her ethnic background.

12The applicant submitted that notwithstanding that she had more experience and seniority over Shelby, a “white” colleague, Shelby was promoted to the server position.

13The applicant acknowledged that the restaurant business slows over the Christmas period. However, she submitted that others were scheduled their normal shifts while she was not scheduled any shifts.

14The applicant reiterated that at no time during the six months did she receive any performance review and that when she requested a performance review, she was given a poor review based upon conduct she had no knowledge of. The applicant cited as examples, that she was never previously informed that customers or staff complained about her attitude, or that she was required to wear a black belt, or that the employer regarded a failure to report a “bump” on the floor of the restaurant as a negative attribute or a health and safety risk.

15The applicant was asked directly by me for any information and/or particulars to substantiate her claims of differential treatment with respect to non-promotional opportunities, reduced work hours and an unfair performance review. In response, the applicant specifically admitted that:

a. She had no particulars or knowledge of her “white” colleague, Shelby’s work experience, either prior to or after her employment with the respondent. The applicant only suggested that Shelby’s commencement of employment after the applicant was indicative of Shelby’s lack of experience as a server.

b. She had no particulars or knowledge of when, who or how other employees were scheduled during the Christmas period or on what basis they were scheduled. The applicant only offered her own, but unverified, observation that she was not scheduled as many shifts as other employees were.

c. She had no particulars or knowledge of whether her “white” colleagues who had been promoted had in fact received good or negative performance reviews.

Analysis

16The Application, and the submissions of the applicant, was devoid of any real or cogent particulars of discrimination that substantiated how the applicant was treated differently on the basis of ethnic origin and racial background.

17The applicant has failed to point to any evidence or particulars that she has or which is reasonably available to her to substantiate her personal opinions or observations that her failure to be promoted to the server position, negative performance review and any arbitrary reduction in hours of work was on the basis of her racial and ethnic background. Specifically, despite my direct request for particulars, the applicant failed to provide any details or particulars of Shelby’s experiences that may have assisted her claim that Shelby lacked experience but received differential treatment in promotional opportunities. The applicant also failed to provide any details or particulars to substantiate her claim that she received differential treatment with respect to scheduling of her work hours and her performance review.

18Accordingly, there is no reasonable prospect that the applicant will be able to show a link or nexus between the respondent’s conduct and her allegations of discrimination based on race and ethnic origin.

Decision

19Therefore, based on the material before me and the submissions of the applicant, I find that there is no reasonable prospect that the Application will succeed.

20The Application is dismissed.