Taylor v. Merivale Medical Imaging, 2013 HRTO 1010

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Leanne Taylor

Applicant

-and-

Merivale Medical Imaging and Lynn Marriner

Respondents

DECISION

Adjudicator: Dawn J. Kershaw

Date: June 6, 2013

Citation: 2013 HRTO 1010

Indexed as: Taylor v. Merivale Medical Imaging

Introduction

1This Application, which was filed on April 5, 2013, under section 34 of the Human Rights Code, R.S.O. 1990, c.H.19 as amended (the “Code”), alleges reprisal or threat of reprisal as well as discrimination and harassment in employment.

2On April 12, 2013 the Tribunal issued a Notice of Intent to Dismiss (“NOID”) the Application as it appeared that the Application was outside the Tribunal’s jurisdiction because:

a review of the Application and the narrative setting out the incidents of alleged discrimination fails to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondents.

The NOID directed the applicant to provide submissions as to whether the Tribunal has the jurisdiction to consider her Application. The applicant provided no written submissions with respect to this issue although she did submit answers to parts of her formerly incomplete Application.

3I have reviewed the Application. The applicant is a former employee at the respondent’s business who alleges that she was subjected to unreasonable scrutiny of her work in contrast to the scrutiny of the work of other employees.

ANALYSIS AND DECISION

4An application will only be dismissed at a preliminary stage, before it is delivered to the respondent, if it is “plain and obvious” on the face of the application that it does not fall within the Tribunal’s jurisdiction. See, for example, Masood v. Bruce Power, 2008 HRTO 381.

5Having considered the applicant’s Application I find that the applicant has failed to make any allegations of Code-related discrimination.

6A claim for harassment in employment is based on subsection 5(2) of the Code, as follows:

Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

7The applicant does not allege that the harassment in her workplace was due to any Code grounds. The applicant does not allege any differential treatment on the basis of a Code ground.

8The workplace behaviour, which she describes as unfair, appears to be in the nature of a workplace dispute, unrelated to any ground under the Code. The applicant’s allegations are that the personal respondent excessively scrutinized the applicant’s work, centred her out and bullied her. The Tribunal has no jurisdiction to deal with her claim.

9With respect to the allegation of reprisal, section 8 of the Code states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal.

To successfully make out a claim of reprisal, the applicant must demonstrate that she experienced reprisal for:

• claiming or enforcing a right under the Code;
• instituting or participating in proceedings under the Code; or
• refusing to infringe the right of another person.

10The applicant has not asserted that the workplace conduct was related to a ground under the Code, and her attempts to remedy this conduct cannot be said to be either “claiming” or “enforcing” a right under the Code. The applicant did not disclose in her Application any threat made by her to institute or participate in a proceeding under the Code for which the apparent reprisal was made. The applicant also did not assert that her job was terminated because she had refused to infringe the Code rights of another person.

11Based on the information before me I find it plain and obvious that the allegations of discrimination, which are not linked to a Code ground, and of reprisal or threat of reprisal do not fall within the Tribunal’s jurisdiction .

12This Application is dismissed.