Jean-Pierre v. Office of the Ontario Ombudsman, 2013 HRTO 1884

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Edwige Jean-Pierre

Applicant

-and-

Office of the Ontario Ombudsman

Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw

Date: November 13, 2013

Citation: 2013 HRTO 1884

Indexed as: Jean-Pierre v. Office of the Ontario Ombudsman

APPEARANCES

Edwige Jean-Pierre, Applicant

Corinne Muccilli, Counsel

Office of the Ontario Ombudsman, Respondent

Glenn Christie, Counsel

Introduction

1This hearing dealt with two Applications filed pursuant to s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Tribunal file 2012-13598-I,, alleges discrimination with respect to employment because of race, colour, ancestry and place of origin ( “the first Application”). Tribunal file 2013-13447-I alleged reprisal in employment ( “the reprisal Application”.

2A summary hearing was held to determine the following issues:

whether there was any reasonable prospect of success with respect to either Application; and

whether an allegation occurring on January 26, 2010 in the first Application was timely.

BACKGROUND TO THE FIRST APPLICATION

3The applicant self-identifies as a black woman of Haitian and Congolese descent.

4The applicant was hired as a receptionist on a temporary basis in the respondent’s office on September 21, 2009 and on a full-time basis on April 1, 2010.

5The applicant alleges two primary incidents of discrimination. On January 26, 2010 an assistant manager announced he was going on a cruise. The applicant alleges he said he was making a “pit stop in Haiti … but not where all that cholera stuff is going on”.

6The second primary incident relates to a poster e-mailed on June 27, 2012 by a co-worker to approximately 86 employees soliciting participation in fundraising activities for the Cure for Cancer Run. It provided examples of services employees could auction, one of which was to be a “slave for a day”. The graphic showed several Caucasian men clutching and waving what appear to be dollar bills.

7On June 29, 2012, this phrase was changed to “gopher for a day” at the request of another black employee who complained. The second poster was not emailed but printed and left at the applicant’s desk. The applicant says this reminded her of “the systemic discrimination that’s being practised in the office”.

8The same co-worker sent an email dated July 24, 2012 which discussed starting bids for the auction and went on to comment on the earlier email as follows:

Why anyone would take offense [sic] is BEYOND ME and if you can’t see that, then you clearly have ISSUES”. (…) Why don’t we all chill out, stop acting all paranoid, and stop thinking people are out to get you. (…) And if this email makes you even more mad and offended, TOO BAD!!!!

BACKGROUND TO THE SECOND APPLICATION

9On the same day the applicant filed the first Application, the applicant requested three personal days off for “family care”, which were not granted as the applicant had used all her personal days.

10The applicant then provided a series of medical notes stating she could not return to work for medical reasons. She received short term disability (STD) commencing November 1, 2012.

11The respondent requested further details about her condition and a return to work date. When they were not provided on November 21, 2012 the respondent asked the applicant to allow its doctor to speak to her doctor to get further information. The applicant refused to sign the consent.

12The applicant’s union became involved on November 23, 2012. On November 27, 2012, the respondent sent further forms to the applicant for completion by her doctor, but was not satisfied with the information the doctor sent.

13The respondent advised the applicant on December 10, 2012 that her STD would be terminated on December 14, 2012 and she was expected to return to work on December 17, 2012.

14On December 13, 2012 the applicant provided a doctor’s note indicating she could not return to work due to a medical condition. The respondent issued the applicant with a Record of Employment on December 19, 2012.

15The applicant filed her reprisal Application on January 14, 2013 alleging her STD was terminated as a reprisal for having commenced the first Application.

DECISION

16Having reviewed all of the written materials and heard submissions from the parties, I find:

First Application

a. There is no reasonable prospect of success with respect to the comment made in 2010 in addition to which it is untimely. That aspect of the first Application is dismissed. I cannot find there is no reasonable prospect of success with respect to the remaining allegations and they will continue in the Tribunal’s process;

Reprisal Application

a. There is no reasonable prospect of success with respect to the reprisal allegations and that Application is dismissed.

ANALYSIS

First Application – No Reasonable Prospect – Barber Comment

17I address first the question of whether the first Application has a reasonable prospect of success, considering the principles set out in Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, and in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 7-10:

A summary hearing generally is ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

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 of success 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.

18Based on these Applications, the relevant provisions of the Code are as follows:

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.

19For an application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code. With respect to the 2010 comment, a mere statement that one is not going to the parts of Haiti where there is cholera raises no connection to a Code ground and this allegation is dismissed as there is no reasonable prospect of success. The Tribunal also notes that the allegation in any event appears to be untimely although given my finding of no reasonable prospect of success, I need not decide the timeliness issue.

First Application – No Reasonable Prospect – Slave for a Day Comment

20In order to proceed to a hearing, the applicant must satisfy me that she may be able to demonstrate that the comment (and follow-up email) poisoned her environment on the basis of the grounds enumerated in her Application. The applicant has satisfied me that she may be able to demonstrate that her right to work in an environment free from racial discrimination was infringed. I cannot find, therefore, that there is no reasonable prospect that this Application will not succeed.

21The key allegation is about the “slave for a day” e-mail sent out by an employee of the respondent about which another black employee complained. The applicant submits that although “an offhanded comment” about “slave for a day” may not be discriminatory, in this case the “entire context” is problematic because the poster not only was in colour and had Caucasian men holding dollar bills, but this incident also has to be looked at in the overall context of the treatment of the applicant within the workplace.

22In this case, taking the e-mail at face value, it contained potentially discriminatory language, and in fact was recalled and amended to exclude the “slave for a day” phrase. That, however, appeared to not be the end of the matter as evidenced by the follow up e-mail sent out by the same employee on July 24, 2012 that stated, among other things, “Why anyone would take offense [sic] is BEYOND ME and if you can’t see that, then you clearly have ISSUES”.

23Given the tone of this follow-up e-mail, the Tribunal will need to hear evidence about the circumstances under which it was sent, the reason(s) for sending it and the impact on the persons hearing it. As noted by the Tribunal in Dabic, sometimes the explanation for why a respondent acted in the manner that it did is in the mind of the individual taking the action, and requires an explanation from that person or persons.

Reprisal Application – No Reasonable Prospect of Success - Reprisal

24Section 8 of the Code states:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

25The applicant alleges that her short term disability (STD) benefits were terminated as a reprisal against her for raising a human rights claim. The respondent submits that the only evidence the applicant raises is one of timing, and she provides no evidence on which the Tribunal might conclude that the action taken by the respondent was reprisal.

26In order to find reprisal, I would have to be satisfied that the respondent did something with the intention of retaliating against the applicant for claiming or enforcing her rights under the Code; instituting or participating in proceedings under the Code; or refusing to infringe another person’s rights under the Code: Noble v. York University, 2010 HRTO 878.

27I find that the applicant has no reasonable prospect of success with respect to her reprisal claim. The applicant filed the first Application on September 19, 2012. The Application was not considered complete for delivery by the Tribunal to the respondent until December 17, 2012. The respondent advised the applicant of the termination of her STD benefits on December 10, 2012, a week prior to the first Application being delivered to it. Indeed, the respondent’s advised the applicant it was disputing her STD entitlement even earlier, in November, 2012.

28On the question of timing, the applicant states in her submissions that she believes that the respondent told the Union lawyer sometime prior to terminating the STD benefits that the applicant had commenced her first Application, even though the Application had not yet been delivered to it. Even assuming this to be true, the mere fact the respondent knew about the Application is not sufficient to show reprisal; the applicant was unable to point to any other evidence that the respondent took the actions it did in reprisal for her filing this Application.

29As stated in Dabic, above, 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, and 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.

30In this case, the Tribunal finds that the applicant has no reasonable prospect of success. It is mere speculation by the applicant that the termination of her STD benefits had anything at all to do with the filing of her first Application. Not only was the Application not delivered to the respondent until a week after her STD benefits were terminated, but the applicant is not able to point to any evidence with respect to intention.

order and direction

31The Tribunal makes the following order with respect to the first Application, 2012-12548-I:

a. The allegations with respect to the 2010 comment are dismissed;

b. The Application will proceed with respect to the remaining allegations.

32The Tribunal makes the following order with respect to the reprisal Application, 2013-13447-I:

a. The reprisal Application is dismissed.

33The parties are directed to advise the Tribunal within 7 days of receiving this Interim Decision whether or not they wish to mediate the first Application. If the parties are unwilling, it will be scheduled for a hearing in the normal course.