Zavarella v. Antonucci, 2013 HRTO 647

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Milena Zavarella Applicant

-and-

Gerry Antonucci Respondent

INTERIM DECISION

Adjudicator: Ena Chadha Decision Date: April 18, 2013 Citation: 2013 HRTO 647 Indexed as: Zavarella v. Antonucci

APPEARANCES

Milena Zavarella, Applicant Wade Poziomka, Counsel

Gerry Antonucci, Respondent Helen Pelton, Counsel

Introduction

1This Application was filed on May 4, 2012 under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging reprisal.

2The respondent filed a Response on June 28, 2012 denying the allegations.

3By way of Case Assessment Direction dated July 31, 2012, the Tribunal directed that this matter be scheduled for a Summary Hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure (“Rules”).

4Rule 19A of the Tribunal’s Rules states that the Tribunal may hold a Summary Hearing on its own initiative, or at the request of a party, on the question of whether an application should be dismissed in whole, or in part, on the basis that there is no reasonable prospect that the application, or part of the application, will succeed.

5A hearing by teleconference was held on November 20, 2012. Counsel for the parties participated in the teleconference hearing and filed submissions after the conference call.

6For reasons that follow, I find that the Application will continue to be processed by the Tribunal.

BACKGROUND

7The applicant alleges that respondent reprised against her for filing an employment-related application with the Tribunal in April 2011. In the previous application, the applicant alleged that she was sexually harassed while working as a realtor for a new homes development. The alleged sexual harasser, the owner/partner of the real estate development company, is the husband of the individual respondent in the current Application.

8The alleged incident giving rise to the present Application occurred on November 25, 2012 while the previous sexual harassment application was underway in the Tribunal process. On that evening, the applicant and her date attended a local Home Builders’ President’s Ball. The Ball is a social awards gala for home builders, sales representatives, suppliers and trades people. The respondent and her husband also were in attendance at the Ball.

9The applicant alleges that during the event the respondent approached her in the presence of her date and made loud and aggressive remarks referencing the applicant’s sexual harassment application. Specifically, the applicant alleges the respondent stated “You did not put in your human rights complaint that you slept with Vince twice in the model home.” The applicant alleges that when she stated “excuse me?”, the respondent repeated the same comment and then looked at the applicant’s date and said “I feel sorry for you.”

10The applicant alleges that the comments were made within earshot of other real estate industry people. The applicant argues that the comments were intended to humiliate her and harm her professional reputation and personal relationship.

11The respondent disputes the allegation of reprisal. The respondent alleges that she approached the applicant when the applicant and her date were alone. The respondent alleges that, since the music was loud, she leaned into the applicant’s ear and asked why the applicant omitted to note in her human rights complaint the fact that the applicant had a sexual relationship with her husband. The respondent alleges that she spoke only the truth and only to the applicant.

12The respondent denies that the alleged comments were made in public fashion and, among other things, argues that any such statements come within the ambit of freedom of speech. The respondent also contends that a person who is not a party to the original case cannot be a respondent in a subsequent reprisal claim and, in the alternative, the alleged incident does not constitute reprisal.

DECISION

13In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8-9, the Tribunal made the following observations about the lines of inquiry involved in a summary hearing:

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.

14In a summary hearing with respect to the issue of reprisal, an applicant is required to describe what evidence the applicant has, or is reasonably available to her, that could support the alleged facts and demonstrate an intention to reprise. For a reprisal application to continue in the Tribunal process, there must be a basis upon which the applicant can show, beyond mere speculation and accusations, that a factor in the respondent’s behaviour was an intention to retaliate against the applicant for having asserted her Code rights.

15In the present case, the parties vigorously dispute whether or not other people were within earshot of the alleged exchange and whether the impugned remarks were intended to cause damage. The applicant asserts that at a full hearing she will call witnesses, in particular her date on that evening, to substantiate the public and defaming nature of the comments. The respondent refutes the applicant’s claim of public humiliation and asserts that she will call witnesses to testify that no one was close by.

16Given that the applicant has referenced potentially relevant testimony that she claims she will be able to produce, I find that the Application must proceed to a full hearing on its merits. I understand that the respondent strongly believes that alleged remarks constitute constitutionally protected freedom of speech and, in any event, do not amount to reprisal. However, the purpose of the summary hearing inquiry is to consider whether an applicant has a reasonable prospect of proving, based on anticipated evidence, the allegations. A summary hearing is not intended to dismiss applications simply because there may be competing legal rights at play.

17Having heard the nature of the proposed evidence, I am unable to conclude that the applicant’s allegations have no reasonable prospect of success. My conclusion that the Application can continue is not an indication of the merits of the case or that any party’s facts or legal theory will be successfully established; it is simply a finding that, in light of the parties’ allegations and the anticipated evidence, I am unable to conclude at this stage that the Application has no reasonable prospect of success.

18Accordingly, the Tribunal will continue to process this Application.