HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Eugenia Morales
Applicant
-and-
Inquattro Fashion Group Corporation
Respondent
INTERIM DECISION
Adjudicator: Brian Cook Date: July 2, 2013 Citation: 2013 HRTO 1140 Indexed as: Morales v. Inquattro Fashion Group Corporation
APPEARANCES
Eugenia Morales, Applicant Self-represented
Inquattro Fashion Group Corporation, Respondent Erica Cappello, Counsel
Introduction
1This is an Application filed under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging reprisal and discrimination with respect to employment because of sexual orientation. The respondent operates a fashion business. The applicant self-identifies as a gay woman. The applicant alleges that during her employment with the respondent she was discriminated against and harassed and that she had to quite her employment because she could no longer tolerate the discrimination and harassment.
2The alleged reprisal relates to an allegation that the respondent refused to report a work-related injury to the Workplace Safety and Insurance Board (WSIB).
3At the time the Application was filed, the applicant was represented by a para-legal although she is now self-represented.
4The respondent denies that the applicant was discriminated against or harassed. The respondent states that the applicant never complained of discrimination or harassment during her employment and that when she quit the employment, the stated reason was that she felt that the salary was not adequate.
5After reviewing the Application and the Response, the Tribunal directed that a summary hearing be held to determine if the Application should be dismissed as having no reasonable prospect of success. The summary hearing was directed in a Case Assessment Direction dated April 3, 2013. The summary hearing was held by telephone conference call. The applicant participated. The respondent was represented by counsel but did not otherwise participate in the hearing.
6Prior to the summary hearing, the applicant had requested an adjournment because of mobility issues related to recent surgery. The adjournment request was denied because it was not clear how this problem would restrict the applicant’s ability to participate in a telephone conference call hearing. The applicant was advised that she could raise her concern at the hearing if she wished. The applicant did not do this and appeared content to have the matter proceed.
The Summary Hearing Process
7The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure. In Dabic v. Windsor Police Service, 2010 HRTO 1994, 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.
8A summary hearing is thus an opportunity for the applicant to explain to the Tribunal what the Application is about and the evidence that the applicant expects will be available at a full hearing on the merits. The Application may be dismissed following a summary hearing if the Tribunal is not satisfied that the applicant will be able to provide evidence to substantiate her allegations or that the evidence that will be presented will not show that the applicant experienced discrimination contrary to the Code.
9The Tribunal does not hear evidence in a summary hearing. It instead hears what evidence the applicant expects to be able to call if the Application proceeds to a hearing on the merits. The Tribunal must then assess whether the evidence that the applicant proposes to call is likely to establish that the discrimination alleged occurred.
10In some cases, the evidence that the applicant proposes to call is her own testimony about what happened. After hearing this information, the Tribunal may determine that even if the applicant’s evidence is true, the applicant has not made out a case of discrimination and the Application may be dismissed on that basis. However, at the summary hearing stage the Tribunal does not generally assess whether the applicant’s testimony at a hearing will be found to be credible. Assessment of credibility is generally only done when evidence is heard and is subject to cross-examination by the respondent and questioning by the Tribunal. This does not occur in a summary hearing.
Background
11The applicant was employed by the respondent from February 2009 to April 2, 2012, when she resigned.
12According to the Application, the applicant resigned because she could no longer tolerate “discriminatory, demeaning and inhuman treatment”. This allegedly included falsely being accused of losing a credit card, sarcastic comments, re-scheduled vacation time, and unfair allotment of lunch and break times