Kim v. Camenietzki, 2013 HRTO 1590

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Eunice Kim

Applicant

-and-

Shalom Camenietzki

Respondent

DECISION

Adjudicator: Brian Cook

Date: September 20, 2013

Citation: 2013 HRTO 1590

Indexed as: Kim v. Camenietzki

APPEARANCES

Eunice Kim, Applicant

Self-represented

Shalom Camenietzki, Respondent

Amanda Smallwood, Counsel

CUPE, Interested party

Fred Ho, Representative

Introduction

1This Decision follows a telephone conference call hearing on July 26, 2013. The hearing was scheduled to hear submissions on the issue of whether the Tribunal has jurisdiction to deal with the Application. For the reasons that follow, I find that the Tribunal does not have jurisdiction to deal with the Application because the allegations do not engage one of the social areas covered by the Code.

Background

2The applicant is a Case Manager at the Workplace Safety and Insurance Board (WSIB). She self-identifies as a Canadian of South Korean ancestry. The respondent is a psychologist, licensed to practice in Ontario. The Application was filed on October 16, 2012, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

3The Application arises out of the applicant’s adjudication of an injured worker’s claim for benefits under the Workplace Safety and Insurance Act, 1997, one of the issues in the worker’s claim was whether the worker had entitlement to benefits for a psychological disability. The respondent was treating the worker for a psychological disability and felt that the treatments were properly the responsibility of the WSIB because he believed that the disability arose as a result of the worker’s work-related injuries. As the Case Manager assigned to adjudicate the worker’s claim for benefits, the applicant was required to make a decision on this issue. She determined that the worker was not entitled to benefits for his psychological disability but was entitled to a time-limited period of psychological treatment which was provided by the respondent.

4In approximately June 2012, the applicant concluded that the injured worker was not entitled to health care benefits from the WSIB in respect of continuing psychological treatment. She spoke to the respondent about this decision by telephone. The respondent took exception to the decision. On June 15, 2012, the respondent wrote a letter to the President of the WSIB. The letter expressed the respondent’s disagreement with the applicant’s decision regarding the injured worker’s entitlement to benefits for continuing treatments. In the letter he indicated that during his telephone conversation, he indicated to the applicant that he would hold the WSIB responsible if the injured worker were to harm himself. He alleged that the applicant told him that he could not hold the WSIB responsible. In his letter, he stated that this was “a statement bordering on the bizarre, given that I live in Canada and not in North Korea…”

5The WSIB provided a copy of the respondent’s letter to the applicant.

6On July 19, 2012, John Slinger, the WSIB’s Chief Operating Officer, wrote to the respondent. Among other issues, Mr. Slinger’s letter informed the respondent that WSIB takes the treatment of its staff very seriously and that the applicant had been very upset by the respondent’s reference to North Korea. Mr. Slinger stated that the applicant had felt denigrated by the comment on the basis of her Asian background. The letter informed the respondent that the comment was inappropriate and unwelcome and asked him to refrain from making comments of this kind to any WSIB staff in the future.

7On July 26, 2012, the applicant filed a complaint with the College of Psychologists of Ontario (“the College”). The complaint was about the respondent’s June 15, 2012 letter to the WSIB.

8On August 2, 2012, the applicant filed this Application with this Tribunal.

9The respondent filed a Response in which he asserts that the comment about North Korea had nothing to do with the applicant or her place of origin and that instead the reference to North Korea was a political statement about authoritarian government. The Response asked the Tribunal to defer further consideration of the Application pending the conclusion of the proceeding before the College.

10In Interim Decision 2012 HRTO 2230, the Tribunal deferred consideration of the Application pending the conclusion of the proceeding before the College.

11The complaint to the College was considered by the Inquiries, Complaints and Reports Committee of the College. It released a Decision on February 4, 2013. The Committee made its decision on the basis of written submissions only and an oral hearing was not held. With regard to the comment about North Korea, the Committee determined that discipline was not appropriate or required but it provided “Advice” advising the respondent to “exercise caution” in his choice of words.

12After receiving the Decision of the College Committee, the applicant filed a Request for Order During Proceedings with this Tribunal, asking that her Application be re-activated. The Request was opposed by the respondent, who argued that the Application should be dismissed under section 45.1 of the Code which provides that the Tribunal may dismiss an Application if another proceeding has appropriately dealt with the substance of the Application.

13I issued a Case Assessment Direction directing a telephone conference call hearing to deal with the issue of whether the section 45.1 issue and also with the issue of whether the Tribunal has jurisdiction to deal with the Application at all because it was not clear that the allegations engage one of the social areas covered by the Code. This hearing was held on July 26, 2013. The applicant participated. The respondent did not personally participate but he was represented by counsel. The applicant’s union was identified as an interested party in the Application. Fred Ho, a representative from CUPE, was present for the telephone conference call hearing but did not participate or make any submissions.

Findings

14The Code does not deal with all allegations of discrimination that arise in society. It deals with only specified social areas. These are employment, accommodation (e.g. housing), goods services and facilities, contracts, and membership in a vocational association (e.g. a union). For the Code to apply to an interaction between individuals that allegedly involved a discriminatory action or comment, the interaction must have occurred within one of these social areas. If the interaction did not occur within one of these social areas, the Code does not apply, even if the interaction did involve discriminatory actions or comments, and the Tribunal does not have jurisdiction to deal with the Application, see: Dallaire v. Les Chevaliers de Colomb, 2011 HRTO 639, paragraph 24.

15In this case, the Application indicated that the social area was employment. In my Case Assessment Direction, I invited submissions on whether the facts of this case arose in an employment context. I noted that if there was not an employment context, there could arguably be a “services” context and I invited submissions on that as well.

Employment

16Section 5 of the Code provides:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

(2) 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, age, record of offences, marital status, family status or disability.

17Section 5 provides a right to be free from discrimination “with respect to employment”. In this case, there was no employment relationship between the applicant and the respondent. The respondent is not the applicant’s employer, supervisor or co-worker, but rather a third party the applicant was required to have dealings with in the course of her employment.

18Section 5 creates a positive obligation on an employer to ensure that an employee’s right to equal treatment in employment without discrimination or harassment on the enumerated grounds is not infringed. This has been found to mean that if an employee experiences discrimination or harassment on an enumerated ground in the course of her employment, including from a person who is not the employer, the employer’s agent or another employee, the employer is required to do something (see, Laskowska v. Marineland of Canada Inc., 2005 HRTO 30).

19For example, if a sales clerk in a store is subject to racial harassment by a customer of a store, the clerk is entitled to expect her employer to take appropriate steps, which could include insisting that the customer stop the harassment. If the store failed to take appropriate steps, the Tribunal could find that the employer had failed to ensure the clerk’s Code-protected right to work free from discrimination and harassment (see, for example, Ankamah v. Chauhan Food Services, 2010 HRTO 20240).

20However, the Code would not apply to the customer who was the harasser and the employee could not bring an Application against the customer. This would also be true if the customer happened to be in the course of his employment at the time of the alleged harassment.

21In this case, the applicant felt that she had been subject to racial harassment or discrimination by the respondent, and she complained to her employer about it. Her employer in turn wrote to the respondent to convey that the applicant was upset about the comment and to ask him to refrain from making such comments in the future. The applicant confirmed that she has no complaint about the manner in which her employer responded to her concerns.

22For section 5 of the Code to apply, there must be an employment connection or relationship between an employee and the person the employee alleges discriminated against her. The respondent is not the WSIB’s agent or another employee of the WSIB and there was no employment connection or relationship between the applicant and the respondent within the meaning of section 5 of the Code. As a result, section 5 of the Code does apply.

Services

23During the telephone conference call hearing the applicant indicated that she understood that there was likely not an employment connection between herself and the respondent for the purposes of section 5 of the Code. However, she submitted that there may have been a connection with respect to services.

24Section 1 of the Code concerns services:

1. Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability.

25In Braithwaite v. Ontario (Attorney General), 2005 HRTO 31, the Tribunal discussed the interpretation of “with respect to services” in section 1. At paragraph 22, the Tribunal held:

“service” must mean something which is of benefit that is provided by one person to another or to the public.

26This was cited with approval by the Divisional Court on appeal: (2007) 2007 CanLII 56481 (ON SCDC), 88 O.R. (3d) 455 at para. 39.

27In this case, there was a connection “with respect to services” between the respondent and the injured worker who was his patient. It could also be argued that there was a connection with respect to services in regard to the respondent’s medical treatment of the injured worker and the WSIB because, as the “insurer” the WSIB was paying for the psychological services that the respondent was providing (or in this case, wished to provide) to the injured worker. However, I cannot see a connection with respect to services between the applicant and the respondent. If the respondent was providing services to the WSIB through his treatment or proposed treatment of the injured worker, he was clearly not providing services to the applicant.

28For this reason, I find that there was no connection with respect to services between the applicant and the respondent and so section 1 of the Code does not apply.

Conclusions

29For the above reasons, I find that the Code does not apply to the circumstances of this case.

30The Application is dismissed because the Tribunal does not have jurisdiction to deal with it.