HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
J.C. by her Next Friend D.C.
Applicant
-and-
McSound Investments Inc.
Respondent
DECISION
Adjudicator: Geneviève Debané
Indexed as: J.C. v. McSound Investments Inc.
APPEARANCES
J.C. by her Next Friend D.C., Applicant
D.C., Next Friend
McSound Investments Inc., Respondent
John David Middlebro and Fiona Hamilton, Counsel
Introduction
1This is an Application filed under s. 34(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging reprisal in employment. The Tribunal issued Interim Decision 2012 HRTO 1134, which amended the Application to include the ground of sex.
2The respondent filed a Response denying the allegations in the Application.
3In a Case Assessment Direction dated January 29, 2013, the Tribunal directed that a summary hearing be held to determine if the Application had no reasonable prospect of success.
The Summary Hearing
4On April 5, 2013, a summary hearing was held by way of telephone conference. At the commencement of the hearing I asked whether J.C. was a minor. D.C. confirmed that J.C. is a minor. I noted that D.C. had not indicated that information anywhere in the Application.
5I asked the respondent if it took any issue with respect to this omission and the respondent indicated that it knew that D.C. was the mother of J.C. and that she had the authority to commence the Application. On that basis the parties agreed that the Tribunal should proceed with the summary hearing.
6After hearing the position of the parties I was satisfied that I could proceed with the summary hearing and I advised that, in accordance with the Tribunal’s Rules, I would anonymize any reference to the applicant J.C. and her next friend, D.C. J.C. was not present at the summary hearing. The style of cause is accordingly amended to reflect that the Application was filed by D.C. as J.C.’s next friend.
BACKGROUND
7J.C. was employed by the respondent in a restaurant. The central issue in this summary hearing is whether the applicant has any reasonable prospect of establishing that the following interaction as explained in her own words in the Application, constitutes sexual harassment:
I went to make an ice cream cone as I was making the ice cream when S.W. whom I was working with pushed me out of the way and yelled at me that I was not making the ice cream cone in the proper way his manner was very demeaning and condescending.
8Present at this interaction on April 22, 2011 was the applicant’s next friend and her partner who left the restaurant. The applicant says that she was very upset by this incident and said that she was scared to work with S.W.
9On April 27, 2011, the applicant attended a meeting with the General Manager and Human Resources. The applicant told them that she had been subjected to violence and harassment in the workplace. The Application alleges that she was told that she was over reacting and she says she felt that she was being blamed for the incident. Management disciplined S.W. who was made to apologize to the applicant. The applicant was not satisfied that S.W. gave her a genuine apology.
10Thereafter, in August 2011, there was dispute as to whether the applicant failed to attend a scheduled shift. The applicant’s next friend believes that the applicant was reprised against by the reduction in her daughter’s work hours in the summer and in the termination of her employment by the respondent.
The Summary Hearing
11During the summary hearing, I asked the applicant’s next friend why there was no mention of the ground of sex or allegations of sexual harassment in the Application and asked why the focus and emphasis of the Application was with respect to violence in the workplace and employee rights pursuant to Bill 168. The applicant’s next friend explained that she did file a complaint with the Ministry of labour and she was told that the proper venue for the complaint was pursuant to the Code.
12After the Tribunal issued a Notice of Intent to Dismiss, the applicant’s next friend wrote in to assert that the original incident was a form of sexual harassment and that if the applicant had been male she would not have been pushed by S.W. When asked what evidence she had in support of these allegations the applicant’s next friend said that a few days before the summary hearing she met a former co-worker of the applicant’s at a local coffee shop. The applicant’s next friend alleges that this former co-worker told her that S.W. may have called other employees “bitch, slut and whore”. The applicant’s next friend could not particularize when or to whom these comments had been made.
The Law
13Details 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.
14With respect to the reprisal allegation, in the decision of Noble v. York University, 2010 HRTO 878, the Tribunal describes the legal elements of establishing a claim of reprisal under the Code at paragraph 3 and 4:
Thus, in a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and
c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.
15The Code defines sexual harassment as follows subsection 7(2):
Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.
16Harassment is defined at section 10 of the Code as follows:
means engaging in a course of vexatious comment or conduct that is known or ought reasonably to be known to be unwelcome
17The Dickson C.J of the Supreme Court of Canada discusses in Janzen v. Platy Enterprises Ltd. 1989 CanLII 97 (SCC), [1989] 1 S.C.R. 1252 the definition of sexual harassment at page 1284:
Without seeking to provide an exhaustive definition of the term, I am of the view that sexual harassment in the workplace may be broadly defined as unwelcome conduct of a sexual nature that detrimentally affects the work environment or leads to adverse job-related consequences for the victims of the harassment. It is, as Adjudicator Shime observed in Bell v. Ladas, supra, and as has been widely accepted by other adjudicators and academic commentators, an abuse of power. When sexual harassment occurs in the workplace, it is an abuse of both economic and sexual power. Sexual harassment is a demeaning practice, one that constitutes a profound affront to the dignity of the employees forced to endure it. By requiring an employee to contend with unwelcome sexual actions or explicit sexual demands, sexual harassment in the workplace attacks the dignity and self-respect of the victim both as an employee and as a human being.
Decision
18Having considered the allegations in the Application and the submissions of the parties, I find that the applicant has no reasonable prospect of establishing that the interaction of April 22, 2011 was discrimination on the basis of sex. Based on the applicant’s own account of the interaction there is simply no conduct which could reasonably be interpreted to constitute sexual harassment. There is no “course of vexatious comment or conduct” which is sexual in nature or that sexualized the workplace.
19There is no evidence to support the speculation that but for the fact that the applicant was a woman she would not have been pushed aside by S.W. The proposed evidence of the co-worker is not at all similar to the allegations in the Application and it is unlikely that this evidence would be admissible at the hearing. Regardless, the evidence of the applicant’s proposed witness, even if admitted by the Tribunal as admissible evidence, could not in itself reasonably support a finding that the applicant was treated in an adverse manner because of her sex. This proposed evidence, which lacked any particulars, was not directed at the applicant or witnessed by the applicant.
20With respect to the reprisal allegations I find that the applicant has no reasonable prospect of establishing that she claimed or attempted to enforce her rights under the Code. Though the applicant sought to enforce her rights pursuant to Bill 168, I am not satisfied that she will be able to establish that she claimed a right under the Code prior to the termination of her employment.
21Regardless, I have reviewed the applicant’s hours, and the allegations surrounding her termination from employment and I find that the applicant has no reasonable prospect of establishing that the respondent intended to retaliate against her. With respect to her hours of work I note that they fluctuated both before and after the incident in April 2011. With respect to her termination from employment this occurred over four months later.
22The Application is dismissed.
Dated at Toronto, this 20th day of June, 2013.
“signed by”
Geneviève Debané
Vice-chair