Deokinandan v. Freeman Formalwear Ltd., 2012 HRTO 852

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kaminie Deokinandan

Applicant

-and-

Freeman Formalwear Limited

Respondent

DECISION

Adjudicator: Judith Allen

Date: April 27, 2012

Citation: 2012 HRTO 852

Indexed as: Deokinandan v. Freeman Formalwear Ltd.

APPEARANCES

Kaminie Deokinandan, Applicant ) Mir Kaml, Counsel

Freeman Formalwear Limited, Respondent ) Luke Saites, Counsel

INTRODUCTION

1This is an Application under section 34(1) 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 ethnic origin.

2By Case Assessment Direction dated May 10, 2011, the Tribunal, on its own initiative, directed that the matter be scheduled for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The Application relates to an allegation that the applicant’s employment was terminated on the basis of ethnic origin. The applicant was directed to make argument and point to evidence which would support a connection between the alleged actions of the respondent and the prohibited ground of ethnic origin.

ANALYSIS

Summary Hearings

3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure. The issue in a summary hearing 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 part of the Application will succeed.

4In Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10, 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.

In considering what evidence is reasonably available to the applicant, the Tribunal must be attentive to the fact that in some cases of alleged discrimination, information about the reasons for the actions taken by a respondent are within the sole knowledge of the respondent. Evidence about the reasons for actions taken by a respondent may sometimes come through the disclosure process and through cross-examination of the people involved. The Tribunal must consider whether there is a reasonable prospect that such evidence may lead to a finding of discrimination. However, when there is no reasonable prospect that any such evidence could allow the applicant to prove his or her case on a balance of probabilities, the application must be dismissed following the summary hearing.

5As the Tribunal noted in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, at para. 17:

The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code or the intention by a respondent to commit a reprisal for asserting one’s Code rights.

Application to the Facts

6The applicant alleges that she was terminated from her employment because during her confirmed absence “someone (maybe to harm [her]) punched her time card to show that she was at work.” The applicant does not indicate “who” she thinks may have punched her time card. Nor does she indicate what ethnic background the alleged mystery puncher of the clock is nor does she indicate any link to ethnic origin with respect to her employer. She states that she is of West Indian descent and alleges that she was unfairly and wrongfully dismissed.

7The respondent states that on two occasions in August of 2009, the applicant’s time card was punched when she was not at work and on both occasions she received pay based upon the time card for time when she was not at work. Both cards had been signed by the applicant as an accurate reflection of hours actually worked. It also states that when given an opportunity to respond, the applicant had no explanation for the two discrepancies. The respondent notes that the applicant makes no allegation of discrimination in her Application. Rather, the applicant alleges “someone” other than her punched the time cards and the Tribunal is to speculate that “someone” was motivated by discrimination because of the applicant’s ethnic origin.

8Even if I accepted the applicant’s allegations, there is no evidence to connect the applicant’s experience to the prohibited grounds cited in her Application. She was not able to point to any evidence that exists, or may exist, that would suggest a connection between her ethnic origin and the time card punching. The Application at its highest is purely speculative, fails to disclose the requisite element of discrimination on a prohibited ground under the Code, and appears on its face to deal with perceived unfairness and a perceived wrongful dismissal.

9Accordingly, there is no reasonable prospect that the Application will succeed and it is dismissed.