Darvill v. Vaughan (City), 2013 HRTO 372

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Anna Darvill

Applicant

-and-

The Corporation of the City of Vaughan

Respondent

DECISION

Adjudicator: David Muir

Date: March 5, 2013

Citation: 2013 HRTO 372

Indexed as: Darvill v. Vaughan (City)

WRITTEN SUBMISSIONS

Anna Darvill, Applicant

Self-represented

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 family status, record of offences and reprisal.

2In her Application the applicant identified a number of individual respondents but given the disposition below I find that there were would be no purpose in identifying them and accordingly the sole respondent at this stage is the organizational respondent, the applicant’s former employer.

3The Application was filed with the Tribunal on January 11, 2013. It relates to a number of events said to have occurred between October 2007 and April 10, 2010 when the applicant’s employment was terminated. Although the applicant asserts in the Form 1 that the last incident of discrimination occurred on October 1, 2012, there do not appear to be any particularized allegations of incidents of discrimination subsequent to her termination from employment in April 2010.

4The Application describes a series of incidents of what the applicant describes as reprisal. The allegations do not appear to relate to any of the Code grounds cited but appear to be in the nature of alleged harassment and bullying of the applicant by a manager who she has been instructed to investigate on behalf of management.

5On January 25, 2013 the Tribunal issued a Notice of Incomplete Application and Notice of Intent to Dismiss (“NOID”). The NOID advised the applicant that the Application may be outside of the Tribunal’s jurisdiction because it appeared that the Application failed to identify any specific acts of discrimination within the meaning of the Code allegedly committed by the respondent. The applicant was not asked to explain why the Application should not be dismissed for delay.

6The applicant responded to the NOID by filing a revised Application which largely reiterates the allegations as originally framed. The allegations remain largely as described above – allegations of personal harassment and abuse of the applicant by a member of management who the applicant believes was aware that the applicant had participated in an investigation of alleged misconduct by this individual.

7At this preliminary stage before the Application has been delivered to the respondent and a Response (Form 2) has been filed, the Tribunal will only dismiss an Application where it is plain and obvious that it is outside the its jurisdiction. However in my view it is plain and obvious that the applicant’s complaints of unfairness, harassment and bullying in the workplace have no connection to the grounds of discrimination she has claimed.

8As indicated the applicant claims discrimination in employment on the basis of record of offences but acknowledges in her Application that she has not been convicted of a criminal offence. It is clear that the applicant has misunderstood the nature of this ground of discrimination and in my view it is plain and obvious that there is no basis to the claim and it is accordingly dismissed.

9The other claim of discrimination is reprisal. The applicant provides detailed examples of alleged reprisal by a member of management who she has been tasked with investigating. However it is clear – and the applicant is straightforward about this – that the alleged reprisals are a consequence, in the applicant’s view, of her having participated in an investigation of alleged workplace misconduct by this individual. There is no mention of any Code complaint being made by the applicant or any attempt by her to vindicate her Code rights that is in any way implicated in the workplace bullying and harassment

10As the Tribunal has noted on many occasions it does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground. In this case the applicant must establish that the individual implicated in her allegations engaged in the conduct of which she complains with the intent of reprising against her for having sought to vindicate a Code right.

11To the extent that the Application might be seen as including a claim that the alleged bullying and harassment were discriminatory apart from the reprisal claim, it is similarly plain and obvious that they are not. As indicated, the applicant’s claim is that the complained of behaviours were a consequence of her being involved in an investigation(s) of the harrassor. There is no claim that the behaviour was informed in any way by any of the Code protected grounds. It is clear that the applicant believes that the Code protects individuals from bullying and harassment. It does not, except to the extent that the harassment is related to one of the Code protected grounds – race, colour, sex, disability etc.

12For all of these reasons I am satisfied that it is plain and obvious that this Application raises no potential Code claim and therefore is outside of the Tribunal’s jurisdiction and must be dismissed for that reason.