HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ghyslaine Turgeon Applicant
-and-
County of Renfrew Social Services, Cheryl Leigh and Karen Brisebois Respondents
-and-
Canadian Union of Public Employees (CUPE) and its Local 4989 Affected Party
DECISION
Adjudicator: Jay Sengupta Date: April 10, 2012 Citation: 2012 HRTO 713 Indexed as: Turgeon v. Renfrew (County)
APPEARANCES
Ghyslaine Turgeon, Applicant (Self Represented) County of Renfrew Social Services, Cheryl Leigh and Karen Brisebois, Respondents (Steven Menard, Counsel) Canadian Union of Public Employees (CUPE) and its Local 4989, Affected Party (Sue Lott, Counsel)
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”). The applicant alleges that she experienced discrimination in respect of employment on the basis of ancestry and reprisal or the threat of reprisal for attempting to pursue or enforce Code protected rights.
2In a Case Assessment Direction, dated July 5, 2011, the Tribunal directed, on its own initiative, that a summary hearing be held by conference call, with notice to the union (the proposed intervenor), to determine whether this Application should be dismissed on the basis that there is no reasonable prospect it will succeed.
3The summary hearing was held by teleconference on January 10, 2012. During the summary hearing, the parties were given an opportunity to make submissions on the issues outlined in the CAD. The applicant was given an opportunity to explain how she could establish that the respondents infringed her rights under the Code if the Application were to proceed and the respondent the opportunity to respond to those arguments. The affected party was present but made no submissions.
ANCESTRY
4The applicant describes herself as “a French speaking Canadian”. She is employed as an Ontario Works agent by the respondent. One of the personally named respondents, Karen Brisebois, is the applicant’s supervisor. Respondent Brisebois reports to the manager, Cheryl Leigh, who is also named as a personal respondent. The event underlying this Application is a competition for an external secondment to the Ministry of Community and Social Services (MCSS). The application for that post required that the candidate obtain the recommendation of the municipality that employed them. In this case, the applicant required a recommendation from respondent Brisebois, which, in the end, did not materialize.
5The applicant alleges that she was prevented from successfully obtaining that secondment opportunity by respondent Brisebois for discriminatory reasons. She says that she was told to remove bilingualism from her resume before her supervisor would give her a recommendation to proceed further with the secondment application process. She says that as she is the only French speaking employee that applied from her department, she assumes other internal employees applying for the same opportunity were not asked to remove their language skills from their resumes. She equates her language skills with her ancestry and intends to argue that she experienced differential treatment that caused her disadvantage on the basis of ancestry.
6The respondent argues that the secondment application process and requirements were applied equally to all potential candidates within the department. The opportunity to apply for a secondment was open to internal candidates, who were required to obtain a recommendation from their supervisors. They suggest that the applicant has a difficult relationship with respondent Brisebois for reasons unrelated to the Code. They point to the fact that the applicant competed for the supervisory position that respondent Brisebois now occupies.
7The respondents disagree that respondent Brisebois told the applicant to remove bilingualism from her application documents. The documents show that she wrote the word “communication” next to the sentence “I am bilingual, fluent in French and English”. They say this amounted to a suggestion and was related to a discussion between the parties about written communication and errors in spelling.
8In addition, they say the deadline of March 10th, 2010 was extended one day for the applicant. The applicant eventually missed the new deadline by a few hours and she was unable to obtain the letter of recommendation from respondent Brisebois.
9The respondents argue that respondent Brisebois gave unsolicited advice about ways to improve their resumes to all potential candidates and did not single out the applicant for this treatment. The respondents argue that this “coaching” by the personal respondent, while heavy handed, unwelcome and arguably unnecessary, does not amount to a breach of the Code.
10The respondent points to a number of decisions of the Tribunal that speak to the necessity of showing a link between the conduct described and characterized as discriminatory and a ground of the Code. See Basic v. Felix Sabayle, 2011 HRTO 802, Vinokur v. York Condominium Corporation #201, 2011 HRTO 962.
11The documents filed indicate some level of interpersonal conflict and disagreement between the applicant and the supervisor in question. However, the link between the conflict and the applicant’s ancestry is absent in my view. Although language can be a proxy for a Code ground under some circumstances, I find that is not the case in this instance. The written notation in the letter that the applicant points to does not support her contention that there was a demand that she remove all references to her language skills. In similar cases, such as Waigwe v. Easy Street Trading, 2011 HRTO 243 and Alleyne v. Toronto (City), 2011 HRTO 560, the Tribunal has found that rude treatment and a refusal of a transfer, while unpleasant and troubling for those involved do not, on their own, amount to a violation of the Code if a link to a ground is not established.
12I find, having reviewed the submissions of the parties, that the applicant cannot establish differential treatment causing her disadvantage in the supervisor’s handling of the secondment process and that she cannot establish that one of the reasons for the editorial changes suggested by the supervisor in question and the ultimate refusal of a letter of recommendation was her French speaking Canadian ancestry. Accordingly, there is no reasonable prospect that this Application can succeed on this ground.
REPRISAL
13Section 8 of the Code provides as follows:
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.
14In order to succeed in a claim of reprisal under the Code, the applicant would have to establish that the respondent did something with the intention of retaliating against her for claiming or enforcing her rights under the Code; instituting or participating in proceedings under the Code; or refusing to infringe another person’s rights under the Code: Noble v. York University, 2010 HRTO 878.
15The allegations relating to reprisal focus on the applicant’s strongly held belief that she was reprised against because of her role in organizing and participating in the unionization of the workplace. As counsel for the respondent points out, there are numerous references to interactions with the personal respondents in which the applicant alleges she is accused of “bringing the union in” and “if the union comes in (she) may regret it”.
16In her response to question A41 of the Application, the applicant states:
I truly believe that I was reprised against due, to the onset of the Local 4989. I was blamed for contacting CUPE union, which I believe resulted in my resume being denied advancement to the second level of the competition.
17As the motives she attributes to the respondents clearly relate to union organizing rather than claiming or enforcing her rights under the Code, instituting or participating in proceedings under the Code or refusing to infringe another person’s rights under the Code, there is no reasonable prospect that her Application can succeed on this ground.
18Accordingly, the Application is dismissed.
Dated at Toronto this 10th day of April, 2012.
”Signed by”_____
Jay Sengupta Vice-chair