HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Daline Napolitano
Applicant
-and-
Friendly Times Child Care Centre
Respondent
decision
Adjudicator: Ian R. Mackenzie
Indexed as: Napolitano v. Friendly Times Child Care Centre
APPEARANCES
Daline Napolitano, Applicant ) Dory Chalhoub, Representative
Friendly Times Child Care Centre, ) Daniel Lublin, Counsel
Respondent )
1Daline Napolitano 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 sex. She alleges that her employment was terminated as a result of her taking maternity leave. The respondent alleges that her employment was terminated for performance-related reasons.
2The Tribunal issued a Case Assessment Direction (CAD) granting the respondent’s Request for a Summary Hearing. The CAD stated:
The Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). To succeed in an Application, an applicant must be able to prove, on a balance of probabilities, a link between a respondent’s alleged actions and a Code ground. Having reviewed the Application and Response, it appears that the applicant may be unable to prove such a link.
…The applicant will proceed first during this summary hearing. The applicant shall address the respondent’s arguments in the Request for Summary Hearing, and 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 respondents’ actions and the grounds cited, given the explanation of events in the Response.
3Both parties made oral submissions. The respondent also relied on written submissions filed in support of its Request for a Summary Hearing.
4The applicant was a supervisor at Friendly Times Child Care Centre for six years. She went on maternity leave on June 1, 2010. A replacement for the applicant was hired on a one-year contract (the length of the maternity leave). On August 4, 2010, the applicant was advised that her employment was being terminated on a without cause basis.
5The respondent submitted that the applicant’s employment was terminated because of her failure as supervisor to ensure compliance with government regulations and requirements.
6In her Application, the applicant alleges that two other employees of the respondent had their employment terminated in the same week. She stated that she had a clean employment record. She also alleged that the employee hired to fill her position temporarily “seize[d] the opportunity to influence the board members and take my position as a permanent day care supervisor”.
7The applicant submitted that had she not taken maternity leave, she would still be employed by the respondent. She submitted that the respondent did not have cause to terminate her employment and the reasons given for the termination were clearly fabricated. She stated that if she had not been on maternity leave she would have been able to address the issues raised by the compliance audit. She submitted that this leads to the conclusion that the termination of employment was conducted because the applicant was on maternity leave.
8The respondent submitted that the applicant had not pointed to any facts that showed a connection between her termination of employment and a prohibited ground of discrimination. The applicant stated in her Application that other employees were also terminated. The respondent submitted that this also demonstrates that there was no connection between the termination of employment and her pregnancy. The respondent stated that it had provided a credible explanation for its actions and that this was a full answer to the Application.
9During the course of the summary hearing, the applicant alleged also that the respondent’s filing of a Small Claims Court proceeding against her was a reprisal under the Code. The respondent submitted that the Small Claims Court proceeding was filed against the applicant for an alleged breach of the terms of her employment contract and had no connection to the Application.
Decision
10For the reasons set out below, I have concluded that the Application has no reasonable prospect of success.
11During the hearing, the applicant raised the additional ground of reprisal for exercising her rights under the Code. This ground was not relied upon in the Application. However, even if the Application was amended to include a reprisal, I would find that there was no reasonable prospect of success of such a claim. The legal proceeding commenced against the applicant relates to her contract of employment. The applicant has raised no allegations or facts that would connect the commencement of a legal proceeding to her filing of the Application.
12The 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.
13The 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.
14In my view, the applicant has no reasonable prospect of establishing the necessary link between the termination of her employment and the prohibited ground of sex. In essence, her argument is that if she had not been on maternity leave, her employment would not have been terminated. Although that supposition may be correct, it does not establish a link between the actions of the respondent and a prohibited ground of discrimination. The applicant has pointed to no evidence that would demonstrate that her employment was terminated because she was on maternity leave. In fact, she has alleged that an employee of the respondent seized the opportunity of her absence from the workplace to take her job. If true, this still does not show a link between the actions of the respondent and a prohibited ground. At most, it shows that her absence from the workplace had an effect on her employment.
15Individuals on maternity leave can have their employment terminated for reasons not related to that leave. The applicant has been treated no differently than if she was on a leave unrelated to maternity, such as a vacation or other extended absence. At a hearing, the burden will lie with the applicant to show, on a balance of probabilities, that the respondent’s actions were based, in whole or in part, on discriminatory grounds. The applicant has not made any allegations or referred to any available evidence that would show that the respondent’s decision was based, in whole or in part, on the fact that she was on maternity leave, other than the fact of the timing of the termination of employment (see Anderson v. Henry, 2012 HRTO 213 at paras. 17-18).
16The applicant will not be able to demonstrate that there is a nexus or link between her termination of employment and her pregnancy and subsequent maternity leave. As a result, there is no reasonable prospect of success of the Application.
17Accordingly, the Application is dismissed.
Dated at Toronto, this 23rd day of March, 2012.
”signed by”
Ian R. Mackenzie
Vice-chair