Human Rights Tribunal of Ontario
B E T W E E N:
Arlene Kelly Applicant
- and -
Humber River Regional Hospital Respondent
Interim decision
Adjudicator: Brian Cook Date: March 7, 2012 Citation: 2012 HRTO 475 Indexed as: Kelly v. Humber River Regional Hospital
APPEARANCES / WRITTEN SUBMISSIONS
Arlene Kelly, Applicant ) Self-represented
Humber River Regional Hospital, ) Respondent ) Joseph Cohen-Lyons, ) Representative/Counsel
Introduction
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 harassment and discrimination in employment on the basis of disability and reprisal.
2In a Case Assessment Direction dated December 8, 2011, the Tribunal directed that a summary hearing be held. In 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 of the Application will succeed. The summary hearing process is authorized by 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.
19A.6 Where the Tribunal decides not to dismiss an Application following a summary hearing, it need not give reasons.
3In 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.
4The summary hearing was held by telephone conference call on March 6, 2012.
Background
5The applicant was employed by the respondent in a non-union administrative position. She started her employment in August 2007.
6In April 2010, the applicant made a complaint of harassment under the respondent's harassment policy. A third-party investigator was appointed to investigate and concluded that there was no evidence of harassment under the policy.
7In April 2011, the applicant experienced further difficulties at work and made another complaint of harassment.
8On April 28, 2011, the applicant went on sick leave. There were a number of issues concerning the sick leave.
9On June 16, 2011, the applicant's employment was terminated by the respondent on the grounds that her position had been eliminated because of budget pressures. The respondents assert that two other individuals in similar administrative positions were let go at approximately the same time. The applicant claims that her position was subsequently advertised. The respondent denies this.
10In her Application the applicant alleges that she experienced harassment at work, that she experienced reprisal for raising the harassment allegations, that she experienced discrimination after she went off work on sick leave in April 2011, and that her disability was a factor in the decision to terminate her employment.
Conclusions
11For the reasons that follow, I find that there is no reasonable prospect that the applicant could establish that she experienced harassment contrary to the Code and that aspect of the Application is dismissed. However, I find that the allegations of discrimination on the grounds of disability and the allegation that the termination of employment was influenced by the applicant's disability cannot be dismissed at this time on the grounds that there is no reasonable prospect of success.
Harassment
12Section 5(2) protects employees from certain types of harassment in employment:
Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.
13"Harassment" is defined in section 10:
"harassment" means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome
14The Code thus does not protect employees against all forms of harassment in employment. It only provides protection against harassment for one of the Code grounds set out in section 5(2).
15In this case, the applicant complained in April 2010 and again in April 2011 that she was experiencing harassment. However, the harassment that she alleged was not harassment because of any of the grounds set out in section 5(2). The applicant does not dispute this. However, she notes that the employer has a comprehensive policy about harassment. She feels that if the employer has a harassment policy that is broader than the way harassment is defined in the Code then employees should get the benefit of that broader policy in respect of Applications to the Tribunal.
16The Tribunal must apply the provisions of the Code. In this case, it is clear that the applicant's allegations of harassment in employment were not allegations of harassment on Code-protected grounds. Accordingly, the Tribunal does not have jurisdiction to deal with them and there is no reasonable prospect that the Application could succeed in respect of the allegations of harassment and that aspect of the Application is dismissed.
Reprisal
17Section 8 of the Code concerns reprisals:
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 for so doing.
18The Code thus does not protect a person against all forms of reprisal. It only provides protection to a person against reprisal with regard to Code-protected rights. The applicant alleges that she was reprised against for having raised her allegations of harassment. However, as noted, the allegations or harassment were not allegations relevant to Code-protected rights. The earliest that the applicant could be said to have raised Code-related allegations was in April 2011 at the time she went off on sick leave.
19The allegations that the applicant experienced reprisal for having raised her allegations of harassment do not relate to the Code and so there is no reasonable prospect that this aspect of the Application could succeed and this aspect of the Application is therefore dismissed.
Discrimination because of disability
20The allegations of discrimination on the grounds of disability with respect to the events in April 2011 and subsequently, including the termination of employment, are not dismissed at this time. As discussed in Rule 19A of the Tribunal's Rules of Procedure, the Tribunal is not required to give reasons if it decides not to dismiss an Application following a summary hearing.
Mediation
21At the summary hearing, the applicant confirmed that she is prepared to try mediation at the Tribunal if the Application were to proceed.
Order
22The Application is dismissed in part.
23The Application as it relates to allegations of harassment and reprisal for having raised those allegations is dismissed because there is no reasonable prospect that they will succeed.
24The Application as it relates to allegations of discrimination because of disability with respect to the events in April 2011 and subsequently, including the termination of employment are not dismissed at this time
Dated at Toronto, this 7th day of March, 2012.
"signed by"______________
Brian Cook Vice-chair