Congdon v. Govinda Galleries, 2013 HRTO 1230

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Becky Congdon

Applicant

-and-

Govinda Galleries and Gloria Stroud

Respondents

DECISION

Adjudicator: Paul Aterman

Date: July 15, 2013

Citation: 2013 HRTO 1230

Indexed as: Congdon v. Govinda Galleries

APPEARANCES

Becky Congdon, Applicant

Self-represented

Govinda Galleries, Respondent

Gloria Stroud, Respondent

Gabor Fisher, Representative

Self-represented

1The applicant alleges discrimination with respect to employment because of sexual orientation, age and record of offences, contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). She worked for the corporate respondent as a sales assistant from September 2012 until her employment was terminated on February 2, 2013. Her job included assisting with sales of framed pictures and giftware, pricing inventory and keeping the corporate respondent’s store clean and orderly.

2The narrative portion of the Application describes a conflict that the applicant had with the owner of the store over how she managed the placing of an order by a customer. The applicant alleges that the owner phoned the customer and, in the course of explaining the reason for his call to the customer, he referred to the applicant as a “young lady”.

3The narrative goes on to describe a conflict between the applicant and the owner over whether she had neglected to price items in the store when she had time to do so. Then the narrative describes a conflict between the applicant and the personal respondent, who is the store manager, over the same issue. Finally, the narrative outlines a sequence of events in which the applicant was informed of the termination of her employment.

4There is no description in the narrative of events that might be understood as constituting discrimination on the basis of sexual orientation or record of offences. It is also unclear on the face of the narrative how the reference to the applicant as a “young lady” constitutes age discrimination. Accordingly, the Tribunal directed that a summary hearing be held pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Application has a reasonable prospect of success.

5At the outset of the summary hearing I asked the applicant what connection she saw between her sexual orientation and the events that she identified as the basis of her Application. She indicated that there was no connection. She also indicated that she was no longer alleging discrimination on the basis of a record of offences. However, the applicant maintained that the owner’s reference to her as a “young lady” was discriminatory because she is 36 years of age and describes herself as not being young. She did not like the fact that the remark was made.

6I asked the applicant to explain what disadvantage she believed she suffered as a result of this alleged remark. The applicant could not point to any disadvantage arising from the remark having been made. She then indicated that she believed her employment was terminated because she was outspoken and did not hesitate in expressing her views. In her view, her outspoken nature should be protected under the Code as a matter of freedom of speech, and that is why she filed this Application.

7While I have no doubt that the applicant was personally offended by the reference to her as a “young lady”, this is not an allegation which would meet the legal test of discrimination under the Code. In the absence of any evidence that the term was linked to any form of disadvantageous treatment, the use of the term “young lady” on its own does not create the kind of disadvantage which is contemplated by the Code. In Ontario (Disability Support Program) v. Tranchemontagne, 2010 ONCA 593, the Court of Appeal defined discrimination in this way:

In the human rights context, in most instances, it will be evident that a prima facie case of discrimination has been established based solely on the claimant’s evidence showing a distinction based on a prohibited ground that creates a disadvantage (in the sense of withholding a benefit available to others or imposing a burden not imposed on others). An inference of stereotyping or of perpetuating disadvantage or prejudice will generally arise based on that evidence alone. (para. 90)

8The applicant could not point to any evidence which she had or could reasonably obtain that would show that she was being treated differently because of her age, nor could she identify any evidence that a benefit was withheld from her which is available to others or a burden imposed upon her which is not imposed on others.

9In the absence of any evidence that the applicant can point to that could support a finding of discrimination this Application has no reasonable prospect of success. As a result it is dismissed.

order

10The Application is dismissed as it has no reasonable prospect of success.