Byrd-Clarke v. Hawthorne Place Care Centre, 2013 HRTO 635

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Evelyn Byrd-Clarke Applicant

-and-

Hawthorne Place Care Centre, Dorie Dulay and Christine Murad Respondents

DECISION

Adjudicator: Leslie Reaume
Date: April 16, 2013 Citation: 2013 HRTO 635 Indexed as: Byrd-Clarke v. Hawthorne Place Care Centre

APPEARANCES

Evelyn Byrd-Clarke, Applicant Self-represented

Hawthorne Place Care Centre, Dorie Dulay and Christine Murad, Respondents Mary Kokosis, Representative

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 and reprisal with respect to employment because of race, colour and ethnic origin.

2By Case Assessment Direction dated September 12, 2012, the Tribunal scheduled this matter for a Summary Hearing. The hearing took place by conference call on January 19, 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 Tribunal cannot address general allegations of unfairness, unrelated to the Code, in areas such as employment, services or accommodation and it is important that this be determined at the earliest opportunity, where appropriate. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, gender or disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced.

5The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success. At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. Indeed, many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant financial and emotional damage.

6The test of no reasonable prospect of success is determined by assuming the applicant’s version of events 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.

7Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that they have experienced discrimination.

8The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics.

9Support for that connection may come in a variety of forms: the timing of a person’s dismissal or discipline; comments alleged to have been made by the respondent; comparisons with how other people were treated. These are just some examples of the circumstances, which are often contained in the narrative to the application, that play a role in assisting the Tribunal in determining whether the application has a reasonable prospect of success. However, if the applicant is unable to point to circumstances beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.

10The parties are given an opportunity to make submissions, usually on a telephone conference call, during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.

11The primary focus in the summary hearing is on the applicant’s evidence. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events.

12The Tribunal is also mindful of the fact that in some cases the application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could favour the applicant’s case.

13Having set out the basic framework for determining whether an application should be dismissed in whole or in part for no reasonable prospect of success, I now turn to the facts of this particular case.

ANALYSIS

14The applicant is a personal support worker and has worked for the organizational respondent since 1990. The individual respondents work in management with the organizational respondent.

15It is clear from the narrative of her Application that the circumstances the applicant is complaining about relate to a dispute over seniority. She alleges that on October 14, 2011, she was sent to work on the second floor of the facility while another worker, who had less seniority and who was of a different race and ethnicity, was permitted to work on the first floor. The applicant alleges that she was not given the required two-week’s notice of this change nor was an explanation provided to her.

16While the applicant perceives the decision by her employer to be unfair because it was not based on seniority, the applicant is unable to point to any evidence which would be reasonably available to her to prove that her race, colour or ethnic origin played any role in the decision to move her from the first to the second floor. She is also unable to point to any evidence which would establish adverse treatment given that all of the terms of her employment remained unchanged.

17Accepting the applicant’s allegations as true and that she was moved without notice and without regard to seniority, I find that there is no reasonable prospect that she can succeed under the Code. This finding is based on the fact that there is no evidence, either direct or indirect evidence, to support the claim that the actions of the employer and the individual respondents are in any way connected to a prohibited ground under the Code

18Accordingly, the Application is dismissed as against all respondents.