HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Veena Dass
Applicant
-and-
Extendicare Laurier Manor Nursing Home
Respondent
Decision
Adjudicator: David Muir
Indexed as: Vass v Extendicare Laurier Manor Nursing Home
APPEARANCES
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Veena Dass, Applicant ) Self-represented
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Extendicare Laurier Manor ) Andrew Zabrovsky, Counsel
Nursing Home, Respondent )
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Canadian Union of Public ) Sue Lott, Counsel
Employees, Intervenor )
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1This is an Application filed pursuant to section 34 of Part IV of the Ontario Human Rights Code R.S.O. 1990 c. H.19, as amended (the “Code”) alleging discrimination in employment on the basis of record of offences and reprisal . In a Case Assessment Direction (CAD) dated December 29, 2011 the Tribunal, on its own initiative, directed that an oral hearing be held to determine whether this Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.
2An oral hearing was held by telephone conference call on Tuesday May 8, 2012. All parties to the Application participated.
3As a preliminary matter, the status of the Canadian Union of Public Employees (“CUPE”) was addressed. CUPE filed a Request to Intervene on October 20, 2011. The applicant opposed CUPE’s request to intervene stating that CUPE did not assist her at the time of the events giving rise to the Application and should not be entitled to intervene in this case.
4CUPE, as the certified bargaining agent, represented the applicant and her colleagues in her former workplace. The Tribunal traditionally grants a trade union with bargaining rights for an applicant intervenor status when it is requested. As the representative of the applicant’s former colleagues in the workplace it has a significant interest in the potential outcome of this Application, including any potential remedy that might be ordered as these issues may have implications for the workplace beyond the immediate dispute between the parties. I was satisfied that it was appropriate to grant CUPE’s Request to intervene despite the applicant’s objection.
No Reasonable Prospect of Success
5Having heard the submissions of the parties I am satisfied that this Application has no reasonable prospect of success and should be dismissed.
6Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read 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.
19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.
7Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 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.
8The applicant was employed by the respondent employer for 19 years as a personal care worker. CUPE was the bargaining agent for the applicant and her co-workers. The narrative of the Application describes a significant degree of inter-personal conflict between the applicant and some of her co-workers. The applicant characterizes the behaviour of her colleagues as bullying and harassment. She felt singled out for mistreatment by a number of her colleagues.
9The applicant believes that several of her workplace colleagues made false accusations against her, which were believed by the respondent. Its response to the conflict was to move the applicant within the institution. The applicant believes that this response was unfair, in large part because she believes she was a good worker and the accusations made against her were false.
10Ultimately, the respondent imposed discipline on the applicant – first a five day suspension followed, not long thereafter, by the applicant’s dismissal. CUPE filed grievances on behalf of the applicant and attempted to resolve them with a settlement which would have required the applicant’s resignation. The applicant was not agreeable to the settlement offer being proposed by the respondent and urged on her by CUPE. In the end, CUPE determined that neither grievance was likely to be successful at arbitration and they were both withdrawn.
11The applicant alleges that her rights to be free of discrimination in employment on the basis of record of offences and reprisal were infringed by the respondent. There is no issue of record of offences, as defined by the Code, engaged by the Applicaiont. It appears that the applicant’s Application is based on a misunderstanding of the Code’s protections. Based on the narrative of the Application and the applicant’s submissions at the summary hearing the claim is not in relation to record of offences. Rather, the applicant is alleging that the respondent manufactured a record of discipline to justify her termination and that this was unfair because she had done nothing wrong. Rather than confine the analysis to the grounds claimed on the Application, I have considered the real claim of the applicant as set out above.
12However, as was pointed out in the CAD directing this summary hearing, 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 Code. To succeed in an Application under the Code, and at a summary hearing, an applicant must be able to prove, a link between a respondent’s alleged actions and a Code ground. Having reviewed the Application, and having heard the submissions of the parties, the applicant is unable to prove such a link.
13Despite the manner in which the applicant framed her claim in the Application, I attempted to have her articulate how her allegations engaged the Code more generally. I asked the applicant in several different ways to explain how the conduct she complained of related to any of the protected grounds under the Code. The applicant’s response was to repeat the allegations made in the Application and to state that no one had helped her and now the Tribunal had to help her deal with what she perceived to be bullying and unfair allegations made against her by co-workers with consequent discipline from the respondent.
14In my view, there is nothing in the Application, or the applicant’s submissions at the hearing that relates what she believes happened to her in this workplace to any of the other protected grounds of the Code. Accordingly, I find that this aspect of the Application must be dismissed there being no reasonable prospect that the applicant will be able to link any of her allegations with any of the Code’s protections.
15The other aspect of this case is the applicant’s allegation of reprisal. The applicant sets out no facts that would support a finding of reprisal. This conclusion flows largely from the fact that there are no human rights allegations made by the applicant as discussed above. As pointed out in the CAD, the reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights. See Noble v. York University, 2010 HRTO 878 at para. 31. To proceed with the Application, there must be a reasonable basis to believe that the applicant could establish such intention and a link to the respondent’s alleged actions.
16The applicant did not point to any assertion by her of a Code right at any point before her dismissal. Having heard the applicant’s submission, her inability to do so flows from the same problem as set out above. The applicant did not raise any Code concerns because there were none to raise.
17The applicant believes that the Code deals with issues of general unfairness in the workplace. She feels she was dealt with unfairly by co-workers, the respondent, and although she did not identify CUPE as a respondent, also believes that CUPE did not help her and that this too is discriminatory. At the end of the day, the applicant believes that the Tribunal is a court of last resort to deal with issues of unfairness. The Tribunal has no such power, and accordingly, I find that there is no reasonable prospect that the applicant will be able to show that the respondent intended to reprise against her for asserting a Code right, because she never asserted such a right.
18For all of these reasons the Application is dismissed.
Dated at Toronto, this 16^th^ day of May, 2012.
“signed by”
David Muir
Vice-chair