Bowie-Fair v. County of Bruce - Gateway Haven, 2012 HRTO 796

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anne-Elizabeth Bowie-Fair

Applicant

-and-

County of Bruce - Gateway Haven and Charles Young

Respondents

decision

Adjudicator: Brian Cook

Date: April 19, 2012

Citation: 2012 HRTO 796

Indexed as: Bowie-Fair v. County of Bruce - Gateway Haven

APPEARANCES

Anne-Elizabeth Bowie-Fair, Applicant ) Self-represented

County of Bruce Gateway Haven and ) Chris Eames, Counsel

Charles Young, Respondents )

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 discrimination in employment on the basis of race, colour and ethnic origin.

2In a Case Assessment Direction dated January 11, 2012, the Tribunal directed, on its own initiative, that a summary hearing be held to determine if there is no reasonable prospect that the Application in whole or in part could succeed. The summary hearing was heard by telephone conference call on April 16, 2012.

3The summary hearing process 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.

4In 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.

Background

5The applicant is a Registered Nurse and is employed at the Gateway Haven nursing home. The personal respondent is the Administrator of the facility.

6The applicant alleges that she has been treated unfairly during her employment and believes that her colour, race and ethnic origin must be the underlying reasons for the unfair treatment. The applicant self-identifies as a Black woman of African, Caucasian and Native descent.

7The Application identifies three specific incidents which the applicant alleges show discrimination.

8The first arose in December 2010 when she left a voice message for the respondent’s Environmental Services Manager about an upcoming “silent fire drill”. The Manager responded on an internal intranet portal used by the supervisory staff in the following terms:

Reg. Staff I’m SURE that the Ministry of Health or the Fire Chief in Wiarton couldn’t care less if you had done last month’s silent fire drill and had to do it again this month. If that fire drill is on the calendar to be done that night it’s your responsibility to make sure it gets done. Don’t pass the buck.

9The applicant replied on the same portal in a manner that was somewhat sarcastic. She was not formally disciplined but was reprimanded in the presence of her union representative.

10The second incident arose a few days after the fire drill incident. It concerned a requirement that the applicant check the temperature of the facility’s hot water system to make sure it was not too hot. The applicant raised some health and safety concerns about this requirement.

11A meeting with the applicant and her union representative was held to discuss this matter. The meeting also discussed the earlier fire drill incident and its aftermath. The employer did not agree that there were health and safety concerns relating to checking the water temperature. The issue was not pursued further.

12In February 2011, issues arose when the applicant called in sick. On or about February 15, 2011, the applicant was involved in a verbal altercation with another nurse related to the applicant calling in sick. The applicant alleges that the other nurse, who the applicant identifies as a White woman, used foul language and was very disrespectful. The applicant believes that the nurse should have been disciplined for her behaviour. After this encounter, the applicant went off work on a medical leave. She is currently still off work on a maternity/parental leave. The respondents advise that both the applicant and the other nurse appeared to have been upset after this confrontation and it was not possible to determine that either was at fault or that discipline was appropriate.

13In addition to these specific incidents, the applicant alleges that she was in general harassed by the respondents. This took the form of watching her more carefully than others and criticizing her for things that, if they were done by other staff, would not have resulted in criticism.

14The applicant concedes that she was never subject to any comments that directly or indirectly involved her race, colour or ethnic origin. However, she is convinced that these discriminatory factors are the only explanation for the treatment she has received because she cannot identify any other explanation.

Analysis and Conclusions

15The Tribunal does not have the authority to provide remedies for unfair treatment generally and does not have the general power to decide whether the respondent treated the applicant fairly and appropriately. The Tribunal only has jurisdiction if there is an allegation that the unfair treatment resulted because of a Code-protected ground. An Application can only succeed if the applicant can prove a connection between the alleged unfair treatment and a Code-protected ground. Proving this connection requires more than the applicant’s belief that the Code-protected ground must be the reason for the unfair treatment because she has been unable to identify any other reason. For the purposes of a Summary Hearing, the applicant’s general impression that she was treated differently than others and her inability to identify any reason other than the Code-protected grounds is also not sufficient to establish a reasonable prospect that Application will succeed in whole, or in part, in the absence of some actual evidence that supports the applicant’s theory.

16In this case, the applicant alleges that she was treated differently than others and treated unfairly. She has not identified any evidence that she would be able to produce or point to that would support her theory that the different and unfair treatment was related to a Code-protected ground.

17In these circumstances, I must conclude that there is no reasonable prospect that the Application will succeed and it is dismissed on that basis.