Clarke v. Garderie Tunny’s Daycare, 2013 HRTO 325

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Roxanne Clarke

Applicant

-and-

Garderie Tunny’s Daycare and Carmen Perron

Respondents

-and-

Canadian Union of Public Employees and its Local 2204-15

Proposed Intervenor

DECISION

Adjudicator: Keith Brennenstuhl

Date: February 26, 2013

Citation: 2013 HRTO 325

Indexed as: Clarke v. Garderie Tunny’s Daycare

APPEARANCES

Roxanne Clarke, Applicant

Self-represented

Garderie Tunny’s Daycare and Carmen Perron, Respondents

Sébastien Huard, Counsel

Canadian Union of Public Employees and its Local 2204-15, Proposed Intervenor

Sue Lott, Counsel

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 discrimination with respect to employment because of ancestry and place of origin.

2The applicant was employed as a cook in the respondent daycare centre for a period of several years. The daycare is licensed to provide services in both official languages, English and French. The applicant’s first language is English. Her fluency in French is minimal. The applicant claims she was discriminated against during her employment at the centre because she was regularly addressed in French, meetings were in French as were training sessions. She alleges that this contributed to stress and that her inability to speak French was a factor in her termination.

3The respondents seek dismissal of the Application on the basis that language is not a protected ground under the Code and that the Application does not disclose a prima facie allegation of a breach related to the grounds identified in the Application, namely ancestry and place of origin.

4A half-day summary hearing was held by teleconference to hear submissions on whether the Application has a reasonable prospect of succeeding.

5For the reasons that follow, the Application is dismissed.

6In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paras. 8 – 10:

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.

7In this Application, the applicant alleges she experienced discrimination on the basis of ancestry and place of origin. At the hearing the applicant explained that her ancestry is English, as is her mother tongue, and her place of origin is Newfoundland. Her claim of discrimination is based on her allegation that she was marginalized at work because she could not speak French.

8The arguments raised at the hearing reinforced the same themes raised in the Application.

9The respondents argue, and I accept, that the Application does not disclose an arguable claim of discrimination in respect of employment on the basis of ancestry and place of origin or any other Code ground.

10The respondents relied on the cases of DeFazio v. Ottawa (City), 2011 HRTO 440, Arnold v. Stream Global Services, 2010 HRTO 424, and Thompson v. Co-opérative Régionale de Nipissing (Sud) Limited, 2012 HRTO 1855, for its proposition that the applicant’s inability to speak French in these circumstances is not a ground covered by the Code.

11Though language is not a prohibited ground of discrimination, it can be a defining characteristic of ancestry and place of origin which are grounds protected by the Code. The onus is on the applicant to present sufficient facts to support a finding that language is being used as a proxy for prohibited grounds of discrimination.

12In this case the applicant has not identified any proposed evidence which could lead to a finding that the respondents have infringed her rights under the Code. The applicant’s lack of fluency in French is not sufficiently related or linked to the Code grounds she has identified in the Application. Indeed, the applicant conceded during the hearing that her allegations are not related to ancestry or place of origin at all but rather to language.

13As such, the Application has no reasonable prospect of success and is therefore dismissed.