Charpentier v. Metroland Media Group Ltd., 2013 HRTO 1002

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Cathy Ann Charpentier

Applicant

-and-

Metroland Media Group Ltd. and Gord Paolucci

Respondents

INTERIM DECISION

Adjudicator: Paul Aterman

Date: June 5, 2013

Citation: 2013 HRTO 1002

Indexed as: Charpentier v. Metroland Media Group Ltd.

APPEARANCES

Cathy Ann Charpentier, Applicant

Self-represented

Metroland Media Group Ltd., Respondent

Jason Green, Counsel

Gord Paolucci, Respondent

Carla Adams, Counsel

Introduction

1The applicant was an advertising salesperson with the corporate respondent. In November of 2010 she failed to adhere to the corporate respondent’s policy regarding sales of advertising space to clients whose accounts are in arrears. She was confronted by the personal respondent in what she alleges was a threatening and overbearing manner. She went to the police to complain of an assault, as the personal respondent is alleged to have grabbed her arm as she was leaving the room following this heated altercation. The criminal charge was resolved by the personal respondent entering into a peace bond.

2The applicant filed this Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of sex. She alleges that the personal respondent’s threatening actions towards her reflect a discriminatory attitude that he displays towards women, and that he would not have behaved in this way had she been a man.

3The Tribunal ordered a summary hearing to determine whether the Application should be dismissed because it has no reasonable prospect of success. This is because it is not clear on the face of the Application that there is any link between the alleged incident and a prohibited ground of discrimination under the Code.

4The applicant asserted during the summary hearing that there is evidence that the personal respondent has acted in an overbearing and abusive manner toward other women, that the corporate respondent has tolerated this and that this forms a pattern of behaviour which supports her allegations.

5She indicated that if this Application proceeds to a hearing, she would give evidence about the alleged incident, as well as another, earlier incident in which she alleges the personal respondent acted in a hostile and overbearing manner toward her. She also stated that she would introduce evidence from two other witnesses, Nicole Fletcher and Laurie McDonald, who would each testify to separate incidents in which the personal respondent allegedly acted in a similar manner toward them. The applicant maintained that Nicole Fletcher’s evidence would also be that the corporate respondent was aware of and condoned the personal respondent’s behaviour.

6As the applicant’s assertions about the evidentiary foundation of her Application were not clear on the face of the Application and were only explained during the summary hearing, I issued a Case Assessment Direction requiring her to provide witness statements in relation to these other alleged incidents.

7The statements provided by the applicant set out three incidents, in addition to the one cited in the Application, in which the personal respondent is alleged to have confronted the applicant and two other female employees of the corporate respondent in an aggressive manner.

8The corporate respondent argues that the Application has no reasonable prospect of success, as there is no basis in the statements or the Application for concluding that the personal respondent behaved aggressively towards these employees because they are women. The corporate respondent notes that the events referenced in the statement of Nicole Fletcher allegedly occurred about seven years ago, about four and a half years before the events referred to in the Application. The corporate respondent has also indicated by letter dated May 2, 2013 that, despite the statement provided by the applicant in the name of Laurie Macdonald, this person declined to provide a witness statement.

9The personal respondent argues that the witness statements should be disregarded because the applicant failed to mention in her Application that she was relying on evidence of the conduct of the personal respondent towards other women, and that considering this kind of evidence would unfairly allow the applicant to expand the scope of her original pleading. He also argues that the statements are not sworn statements and lack sufficient detail to be considered reliable. Finally, he echoes the argument of the corporate respondent to the effect that, even if they are assumed to be true, the alleged incidents do not support a conclusion that the personal respondent acted in a discriminatory way.

analysis

10Rule 19A.1 reads:

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 inquiry during a summary hearing was set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8-10:

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.

12For the purposes of this summary hearing, I am assuming that the facts set out in the Application and the witness statements provided by the applicant are capable of being proved. This entails assuming that the applicant could prove what is set out in the statement of Laurie Macdonald, notwithstanding the information provided by the corporate respondent as to whether she would testify on the applicant’s behalf.

13Based on this assumption, I conclude that the Application should be allowed to proceed at this stage. There is a reasonable prospect that evidence the applicant has or that is reasonably available to her can show a link between the applicant’s gender and the alleged events. Whether the applicant can ultimately establish, first that the alleged events occurred and, second, that sex discrimination (as opposed to generally aggressive behaviour) was a factor in the personal respondent’s conduct are matters for the adjudicator hearing the merits of this Application to decide. However, I cannot conclude that there is no reasonable prospect of success in proving discrimination in relation to both respondents.

14As to the argument of the personal respondent that these events should have been referenced in the Application, and that the applicant should be limited to advancing what she identified on filing her Application, the Tribunal does not take a restrictive view of the scope of original pleadings when dealing with matters in its summary hearing process. As was noted in Taylor-Cole v. Orangeville Police Association, 2011 HRTO 2285 at para. 14:

It must be remembered that the summary hearing process is intended to dismiss – typically at an early stage, before relevant documents, witness lists and witness statements have been exchanged by the parties – only those applications which would have no reasonable prospect of success if they were to proceed to a hearing on the merits. It is not intended as a mechanism by which to dismiss applications on the basis of technical deficiencies in the pleadings. Indeed, one of the central purposes of the summary hearing process is to afford the applicant an opportunity to point to the evidence by which she intends to establish a link between the disadvantageous treatment complained of in the application and a prohibited ground of discrimination under the Code: Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 9-10. In describing the evidence by which she intends to prove that her rights under the Code have been infringed, it is not uncommon for an applicant during a summary hearing, particularly summary hearings which take place at an early stage in the Tribunal’s process, to refer to particulars or factual allegations that are not contained in the application. Typically, these allegations are taken into account by the Tribunal in determining whether the application ought to be dismissed as having no reasonable chance of success: Basic v. Home Medical Equipment, 2011 HRTO 724; Ryckman v. Dollco Corporation, 2011 HRTO 2214; Forde v. Avon Maitland School Board, 2011 HRTO 1075; Sawula v. Best Western Orangeville Inn and Suites, 2011 HRTO 716; Westgarth v. Great West Life Assurance, 2011 HRTO 1189.

15I wish to be clear that at this stage I am not making any findings as to the merits of the applicant’s allegations, nor whether the evidence of the alleged incidents involving Nicole Fletcher and Laurie Macdonald is admissible as similar fact evidence. Those determinations will have to be made at a hearing of the Application. I am simply determining that the Application cannot be dismissed as having no reasonable prospect of success.

order

16The Application is allowed to proceed.

17The Registrar is requested to schedule a hearing of this Application.