Mitchell v. Kerry’s Place Autism Services, 2012 HRTO 834

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sharon Mitchell

Applicant

-and-

Kerry’s Place Autism Services

Respondent

Decision

Adjudicator: Alan G. Smith

Date: April 24, 2012

Indexed as: 2012 HRTO 834

APPEARANCES:

Sharon Mitchell, Applicant ) Ayoob Khan, Representative

Kerry’s Place Autism Services, Respondent ) M. David Ross, Counsel

BACKGROUND

1The applicant filed an Application with the Tribunal alleging discrimination in employment on the basis of race, colour, place of origin and ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The applicant alleges that the respondent discriminated against her by terminating her employment.

3Pursuant to section 43(2) of the Code and Rule 19A of the Tribunal’s Rules of Procedure, a summary hearing by teleconference was held before me on April 16, 2012. The purpose of the summary hearing was to determine whether the Application should be dismissed, in whole or in part, on the basis that there was no reasonable prospect that it would succeed.

4The parties both made oral submissions during the summary hearing. The Application and the respondent’s written submissions were also considered by me.

FACTS

5Most material facts are not in dispute. The applicant self-identifies as a “black female Canadian of African origin”. She was hired by the respondent in November 2006.

6On November 15, 2011, the applicant and a fellow employee were involved in an incident where an autistic individual under their care went missing on an outing. The missing individual was later located with the assistance of police.

7The fellow employee is described by both parties as Caucasian.

8The respondent investigated the incident including interviewing both the applicant and the fellow employee. Both employees were found culpable by the respondent and their employment was terminated.

9One material fact is in dispute: the applicant claims that her fellow employee had a poor work record, “many issues with management” as the applicant put it in her Application. The respondent denies this assertion, indicating that both the applicant and her fellow employee had a similar, largely unblemished, employment record. The respondent says both workers were terminated solely due to the seriousness of the November 15th incident.

ANALYSIS

10As noted above the hearing was convened pursuant to Rule 19A of the Tribunal’s Rules of Procedure. This Rule reads, in part, 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.

11The issue that Rule 19A directs the Tribunal to determine is whether the Application has no reasonable prospect of success. In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal provided the following guidance at para 8 and 9:

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.

12To find that an application has a reasonable prospect of success, an application must at least contain sufficient facts that, if accepted as true, could reasonably lead to a finding of discrimination. Otherwise, an application has no reasonable prospect of success at a hearing and will be dismissed. This does not mean that, at this early stage, the applicant must be able to prove that the allegations are true. The applicant only has to establish that there is some supporting evidence or a reasonable prospect that such evidence is likely to come to light. See the decisions in, Macyshyn v. Toronto Catholic District School Board, 2011 HRTO 1068, Dobric v. Brookfield Residential Services, 2012 HRTO 171 and Kubarie v. Labourers’ International Union of North America 2012 HRTO 352.

13It is also important to keep in mind that Code is concerned with remedying discrimination in certain social areas on the basis of proscribed grounds. It does not deal with general allegations of unfairness or other social ills. See, Flores v. Sunnybrook Health Sciences Centre 2012 HRTO 222 and Abdul v. York University, 2011 HRTO 1851

14The applicant’s allegation is that, by reason of her race and colour she was treated in a discriminatory manner by the respondent. She asserts in her Application that she, “strongly believes that no white workers would have been treated in the same manner and her termination was not based on performance issues but based on her Race, Colour, Place of origin and Ethnic origin”. She alleges that her fellow employee, being Caucasian, would not have been terminated except for her poor employment record. The applicant says she didn’t deserve to be terminated along with her fellow employee.

15In oral submissions the applicant admitted that there was no direct evidence of racism by the respondent. The applicant advised that her case was entirely based on circumstantial evidence.

16Having reviewed the materials filed by the parties and hearing the parties' submissions, I find that the Tribunal has before it only a bald allegation of discrimination devoid of any real or cogent particulars. Even if her fellow employee’s work record was substantially worse than that of the applicant, that fact alone does not help establish that the applicant’s termination was tainted by Code-related factors. The Tribunal has dismissed applications in similar circumstances. See Arthur v. Cara Operations Limited, 2012 HRTO 454. The applicant, in essence, is arguing that the respondent terminated her fellow employee’s employment in part because of a poor work record and terminated her employment in part because of her race. The problem is that the applicant can point to no evidence linking either of these speculative theories to the terminations and at the same time it is undisputed that there was a serious workplace incident for which both the applicant and her fellow employee were found liable immediately prior to both of their terminations. I find that the applicant's allegations of discrimination are based on unsupported suspicion and speculation, and, as a result, the Application does not have a reasonable prospect of success. See Sheahan v. Ottawa Police Services Board, 2011 HRTO 420.

ORDER

17The Application is dismissed.