Wang v. Lakeland Long Term Care, 2013 HRTO 1542

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Tie Jing Wang brought by James Scrimgeour

Applicant

-and-

Lakeland Long Term Care

Respondent

DECISION

Adjudicator: Naomi Overend

Date: September 13, 2013

Citation: 2013 HRTO 1542

Indexed as: Wang v. Lakeland Long Term Care

APPEARANCES

Tie Jing Wang, Applicant ) Self-represented

Lakeland Long Term Care, Respondent ) Robert Budd, Counsel

INTRODUCTION

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment because of race. The applicant self-identifies as a Chinese immigrant.

2By Case Assessment Direction (“CAD”), dated March 12, 2013, the Tribunal directed that a summary hearing be held. The hearing took place by conference call on July 8, 2013.

3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

4The test of no reasonable prospect of success is determined by assuming the applicant’s version of the facts is true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts.

5The parties are given an opportunity to make submissions during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.

6The CAD for this case notes that the summary hearing would address whether there is a reasonable prospect that the applicant could prove, on evidence reasonably available to her, a link between the event(s) and the prohibited grounds alleged in his Application.

7This Application was brought by the applicant’s husband on her behalf. Her husband was also listed as her representative. The applicant is a recent immigrant from China and speaks limited English. A Mandarin interpreter was requested and provided on the summary hearing teleconference to facilitate the applicant’s participation.

8On the day of the call, the applicant advised that her husband was not available as he was at training for the day and could not be excused. She said she wished to proceed in his absence. I advised her that if she found it difficult to participate through the interpreter, that she was to let me know. She said that she would. At no point in the proceedings did the applicant express any difficulty.

9The applicant was able to make full submissions through the interpreter and answer my questions. Accordingly, the summary hearing proceeded as scheduled. The respondent made full submissions and the applicant made brief reply submissions.

Decision and analysis

Factual Background

10The applicant worked as a Personal Support Worker (“PSW”) at the respondent’s long-term care facility from July 2011 onwards. The applicant was a recent graduate from one of the PSW programs and had not worked as a PSW before.

11The applicant passed her probation and successfully applied for a permanent part-time position with the respondent in October 2011. This position meant that she worked a guaranteed number of shifts (and could, and did, work more). It also meant that she was eligible to work on shifts where she would not be supervised.

12The Application describes a couple of incidents involving the applicant, for which she says she was “disciplined” for leaving residents unattended in a manner that the respondent said compromised their safety. She asserts that she was not spoken to about the first incident, which occurred early on in her employment, until three months after the incident. This involved leaving a resident alone in the shower room while she went to retrieve towels.

13The applicant describes a second incident in which she assisted a resident transfer to his wheelchair without additional staff assistance. She states she was aware that she was expected to do this transfer with assistance, but could not find a staff member to assist and the resident did not want to wait. On the same day as the second incident, in February 2012, there was a third incident about foot care of a resident.

14It is not necessary for me to detail these incidents, or make findings about whether the applicant was improperly sanctioned for her involvement. The parties agree that these issues were raised with the applicant at a meeting held on February 6, 2012, at which her union steward was also in attendance.

15At the summary hearing, the applicant acknowledged that she was told that other health-care workers at the respondent facility expressed concerns about her care of the residents. She did not dispute the respondent’s position that, in the period following her successful bid to the permanent part-time position, 30 of the 67 shifts she worked were “remedial orientation.”

16The parties agree that at the February 6, 2012 meeting, the Director of Nursing Care advised the applicant that she did not feel the applicant could work on her own. In order to ensure the applicant only worked on shifts where she would work under the direct supervision of other staff, the applicant was transferred from permanent part-time to casual status. She continued to be called in to work certain shifts, but the applicant worked fewer hours after February 2012.

17In addition to the change in status and reduction in hours, the applicant also alleges that she was not given an opportunity to present her side of the story with respect to the incidents, which she felt was unfair.

18The applicant states that she was treated differently than other workers and believes that the reason is because she is a Chinese immigrant. The applicant does not, however, assert that her command of English was a barrier or that she did not understand instructions given to her. With respect to the two incidents where the absence of a second staff person was an issue, she stated she understood the requirements but felt there were extenuating circumstances.

19In her Application, the applicant states that she concluded that race must have been a factor in the respondent’s treatment of her because she was the only Chinese person, and there was only one other “Asian,” working at the respondent facility. She asserts that she spoke to a “Chinese lady” who had previously worked for the respondent, and she reported similar problems, which resulted in her quitting her job. The applicant does not propose calling this individual as a witness.

20The applicant also asserted that she has found work in a new care facility, which is staffed by persons of many different ethnicities and she is not experiencing any problems.

No Reasonable Prospect of Success

21It is not clear from the applicant’s submissions that she will be able to establish that her treatment was unequal in the circumstances. The applicant’s acknowledgement that she was told that there had been complaints from other health-care workers about her care of residents, and that she had been given remedial assistance, must be considered in evaluating whether the respondent’s conduct towards her was even “unfair”. She has not suggested that there were other workers with similar work histories who were treated differently.

22Even assuming that the applicant is able to prove that she was treated unfairly, and in a manner that affronted her dignity, the applicant has no reasonable prospect of success in establishing the link between her status as a recent Chinese immigrant and this treatment. The applicant can point to no evidence, such as comments or other conduct from other persons at the respondent facility linking her treatment with her race or immigrant status. The treatment, on its face, is not so extraordinary to allow the Tribunal to draw an inference that it occurred, in part, because of the applicant’s race and/or place of origin (this latter ground was not pleaded).

23On its own, the fact that only two members at the respondent facility are “Asian” is, itself, not significant given the community (Parry Sound) in which the facility is located. The applicant’s anticipated testimony that her new workplace is diverse and she has not experienced any problems at it, thus far, has no probative value with respect to what took place at the respondent’s workplace.

24Given that the applicant does not intend to call the former employee, whom the applicant identifies as Chinese, the applicant’s hearsay testimony with respect to her conversation with this individual (assuming it is deemed admissible) is, likewise, unlikely to have any probative value.

25Having considered the applicant’s written and oral submissions, as well as her pleadings, I find that this Application has no reasonable prospect of success.

order

26This Application is dismissed.