HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Milica Nikitovic

Applicant

-and-

Cawthra Gardens Long Term Care Community

Respondent

A N D B E T W E E N:

Milica Nikitovic

Applicant

-and-

Specialty Care Mississauga Road

Respondent

DECISION

Adjudicator: Sheri D. Price

Date: April 19, 2013

Citation: 2013 HRTO 661

Indexed as: Nikitovic v. Cawthra Gardens Long Term Care Community

APPEARANCES

Milica Nikitovic, Applicant ) Vanessa Richards- Thompson, Counsel

Cawthra Gardens Long Term Care Community, Respondent ) Pamela Leiper, Counsel

Specialty Care Mississauga Road, Respondent ) Joanne Aitkens, Representative

INTRODUCTION

1The applicant filed these Applications under s. 34 of the Human Rights Code, R.S.O. 1990, c. H. 19, as amended (the “Code”) alleging that she was subjected to a sexual solicitation or advance by a person in a position to confer, grant or deny a benefit or advancement to her contrary to s. 7(3)(a) of the Code; and subjected to reprisals for rejecting such solicitation or advance, contrary to s. 7(3)(b) of the Code.

2By Case Assessment Direction dated September 20, 2012, the Tribunal decided on its own initiative to convene a summary hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure to determine whether the Applications should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Applications or part of the Applications will succeed. In its Case Assessment Direction, the Tribunal advised the parties that the Tribunal would dismiss the Applications if, following the summary hearing, it found that the Applications had no reasonable prospect of success.

3The summary hearing was held by teleconference on January 22, 2013, and the applicant was given an opportunity to explain how she could prove her allegations that the respondents infringed her rights under the Code.

4For the reasons that follow, I find that the Applications have no reasonable prospect of success. The Applications are dismissed accordingly.

BACKGROUND

5Although the respondents indicated during the summary hearing in this matter that they deny many of the applicant’s factual allegations, they have not yet been required by the Tribunal to file Responses to the Applications. Accordingly, as in the normal course, this decision is based on the facts as asserted by the applicant.

6The applicant was hired as a registered nurse by the respondent Cawthra Gardens Long Term Care Community (“Cawthra Gardens”) in May 2011.

7On August 24, 2011, Cawthra Gardens terminated the applicant’s employment, while the applicant was still in her probationary period, on the stated basis that the applicant had not met the respondent’s requirements during her probationary period.

8In November 2011, the applicant was hired to work as a registered nurse at another long-term care facility, unrelated to Cawthra Gardens, the respondent, Specialty Care Mississauga Road (“Specialty Care”). The applicant started work at Specialty Care in February 2012.

9On or about April 19, 2012, the respondent Specialty Care indicated that it intended to terminate the applicant’s employment. In order to avoid getting fired, the applicant pre-emptively resigned from her employment on or about April 23, 2012.

10The applicant alleges that she was subjected to sexual solicitation and/or advances by a person in a position of authority while she was employed at Cawthra Gardens and that both Cawthra Gardens and Specialty Care reprised against her for rejecting those advances.

11In particular, the applicant alleges that Cawthra Garden’s Director of Care (“DOC”), who manages resident care and directs nursing staff at the long-term care facility, expected the applicant to have a romantic relationship with another member of the management team, her Assistant Director of Care (“Assistant DOC”), contrary to s.7(3)(a) of the Code.

12The applicant alleges that the respondent Cawthra Gardens mistreated and ultimately fired her because she would not have a relationship with the Assistant DOC. Although the applicant did not specifically state so in her Application, I understand her to be alleging that this alleged mistreatment and the termination of her employment by Cawthra Gardens were reprisals, contrary to s.7(3)(b) of the Code.

13The applicant alleges that certain of her co-workers at Specialty Care had previously worked and/or were continuing to work at Cawthra Gardens. Accordingly, the applicant submits, they knew what had transpired with the applicant at Cawthra Gardens. The applicant alleges that, because of her refusal to have a romantic relationship with the Assistant DOC at Cawthra Gardens, these individuals caused the applicant to be mistreated by management and co-workers at Specialty Care. In particular, the applicant complains that co-workers at Specialty Care mistreated her by criticizing her work, by misinforming her about doctors’ orders, by trying to get the applicant to do things that were not part of her job duties, by not letting her do things that were her responsibility as the in-charge nurse, by trying to get the applicant to call doctors unnecessarily in the middle of the night, and by trying to get her to make mistakes, among other things. Again, based on the applicant’s allegation that the above-noted mistreatment at Specialty Care was linked to her refusal to have a romantic relationship with the Assistant DOC at Cawthra Gardens, I understand the applicant to be alleging that such mistreatment constituted a reprisal by the respondent, Specialty Care, contrary to s.7(3)(b) of the Code.

14In addition, the applicant contends that Specialty Care’s decision to terminate her employment was linked to her refusal to have a sexual relationship with the Assistant DOC at Cawthra Gardens and was also a reprisal for rejecting a sexual solicitation or advance, contrary to s.7(3)(b) of the Code.

ANALYSIS AND DECISION

15The relevant provision of the Code is s.7(3) which states:

7.(3) Every person has a right to be free from,

(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or

(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person.

Sexual Solicitation or Advance

16As noted above, the applicant alleges that the respondent Cawthra Gardens infringed her right to be free from a sexual solicitation or advance by a person in a position to confer, grant or deny a benefit or advancement to her.

17There is no dispute that the DOC at Cawthra Gardens was in a “position to confer, grant or deny a benefit or advancement” to the applicant within the meaning of s.7(3) of the Code.

18However, the applicant has no reasonable prospect of proving that the respondent Cawthra Gardens infringed her rights under s.7(3)(a) of the Code because she has no reasonable prospect of establishing that the DOC suggested that the applicant have a sexual or romantic relationship with the Assistant DOC or otherwise subjected the applicant to a sexual solicitation or advance.

19At the outset, I should note that there is no allegation in this case that the Assistant DOC himself said or did anything to suggest that he was interested in a sexual or romantic relationship with the applicant or made sexual advances towards her. Nor does the applicant allege that the DOC ever explicity suggested that the applicant have a romantic or sexual relationship with the Assistant DOC or anyone else. Rather, the applicant alleges that, in June 2011, she “realized” that she was “expected” to have a “romantic relationship” with the Assistant DOC based on the innuendos and suggestions of the DOC.

20In particular, the applicant points to the following alleged facts as support for her claim that she was subject to sexual solicitation and/or advances while employed at Cawthra Gardens:

a. In July 2011, the applicant was called into the DOC’s office. The DOC allegedly “ranted and raved” at the applicant “for no particular reason”. During this meeting, the DOC allegedly told the applicant that she was not communicating and asked the applicant, “Open your heart and communicate with us.” During this meeting, the DOC also allegedly told the applicant that she felt that the communication problem was a “trust issue”.

b. Later in July 2011, the applicant was called into the DOC’s office again, after having a disagreement with a co-worker about a resident’s blood sugar test. The Assistant DOC was also present during this meeting. During this meeting, the DOC allegedly asked the applicant what was wrong with her and commented that the applicant never smiled. The applicant alleges that the DOC again told her, “Please communicate with us,” and “Open your heart and communicate.”

c. During the first week of August 2011, the DOC allegedly told the applicant that the applicant was not communicating and that she could see that the applicant had an attitude.

d. During the second week of August 2011, the DOC called the applicant into her office again and asked the applicant why she was “so professional” (suggesting this was a bad thing). During this meeting, the DOC also allegedly asked the applicant, “Why don’t you want to? Tell me. [The Assistant DOC] is not here.” Although the applicant acknowledges that the DOC did not specify what she was asking about, the applicant alleges that she “knew” the DOC was referring to the applicant not having a relationship with the Assistant DOC.

e. On the following shift, the applicant allegedly went to the DOC and told her that she would talk to the Assistant DOC, whereupon the DOC allegedly told the applicant not to talk to him, that the Assistant DOC did not want to talk to the applicant because she had not said good morning to him that day, and that the applicant could talk to the DOC instead.

21During the summary hearing, the respondent Cawthra Gardens indicated that the DOC denies having made many, if not all, of the comments attributed to her by the applicant. In particular, and among other things, the DOC denies having told the applicant to “open her heart”. Cawthra Gardens does, however, acknowledge that the applicant was spoken to by the DOC on a number of occasions about the need to improve her communication. Indeed, Cawthra Gardens alleges that the applicant’s failure to communicate effectively was one of the reasons that the applicant did not pass her probationary period. Cawthra Gardens submits that it was entirely appropriate for it to raise the perceived communication problem with the applicant, because, in a long-term care facility, it is vitally important to have good communication between the nursing staff and the DOC, who is ultimately responsible for resident care and the nursing staff.

22During the summary hearing, the applicant stated that, on one occasion, after being told by the DOC that she needed to improve her communication, she asked for an example of when she had failed to communicate properly. According to the applicant, the DOC referred to an incident earlier that morning when she had asked the applicant to get a wheelchair from the third floor. The applicant did not get it (because it was not where it was supposed to be) and did not tell the DOC that she had not gotten it. According to the DOC, the applicant should have communicated to her that she had been unable to locate the wheelchair as requested. However, the applicant disagreed. During the summary hearing, she explained her view that this was not the sort of thing to concern the DOC with. It was up to the nurses, she felt, to come up with a solution among themselves.

23Assuming all of the applicant’s allegations to be true, in my view, they do not provide a factual basis upon which the Tribunal might conclude that the DOC (and through her, the respondent Cawthra Gardens) sexually solicited the applicant or made sexual advances towards her within the meaning of s. 7(3)(a) of the Code.

24Assuming without finding that the DOC asked the applicant to “open her heart” and communicate, this is not a basis upon which the Tribunal might conclude that the DOC was making a sexual advance on the applicant or soliciting the applicant on behalf of the Assistant DOC. There was nothing sexual about the alleged invitation for the applicant to “open her heart and communicate”. Perhaps such a phrase, if it was used, was overly familiar. However, it falls far short of the sort of evidence that would be required for the applicant to establish that the DOC was making sexual advances, at least in the circumstances of this case. The fact that the DOC, when explaining how the applicant needed to improve her communication skills, gave an example related entirely to resident care also undermines the applicant’s claim that the DOC was really suggesting that the applicant have a relationship with the Assisant DOC. In my view, based on the facts alleged, there is no reasonable prospect that the Tribunal would conclude that references to the applicant’s failure to communicate were somehow related to an attempt to get the applicant to have a sexual relationship with the Assistant DOC.

25Similarly, the applicant has no reasonable prospect of success in proving that the DOC made sexual advances towards her when she told the applicant that she never smiled or that she had an attitude problem and/or trust issues. Again, even if these alleged statements upset the applicant or made her feel uncomfortable, there are not a basis upon which the Tribunal could find that the DOC made sexual advances towards the applicant or attempted to get her to have a sexual or romantic relationship with the Assistant DOC, at least not in the circumstances of this case.

26Indeed, I have difficulty understanding why the applicant herself concluded that the DOC, in making the alleged comments, was trying to get the applicant to have a romantic relationship with the Assistant DOC. As noted above, the applicant acknowledges that the Assistant DOC himself never said or did anything to indicate that he wanted to be sexually involved with the applicant. Nor does the applicant allege that the DOC ever said anything about the applicant having a romantic or sexual relationship with the Assistant DOC or even mention him on those occasions she allegedly urged the applicant to open her heart. In essence, the applicant’s claim that she was subjected to sexual solicitation or advances is that she “just knew” - even though the DOC did not come out and say so - that she “expected” the applicant to have a romantic relationship with the Assistant DOC. The applicant’s belief in that regard, however, even if honestly held, is not evidence upon which the Tribunal itself could conclude that the DOC “expected” the applicant to have a sexual relationship with the Assistant DOC, much less that she actually took steps to solicit the applicant for a sexual relationship, which is what would be required to establish that the applicant’s rights under s.7(3)(a) of the Code were infringed.

27In support of her claim that the DOC made sexual advances towards her and/or sexually solicited her on behalf of the Assistant DOC, the applicant also alleges that the DOC put her in situations where she had to “interact” with the Assistant DOC. However, I do not see anything improper in that. As a nurse at Cawthra Gardens, the applicant had a role in delivering resident care, and both the DOC and the Assistant DOC were responsible for overseeing resident care and managing the nursing staff. Against that backdrop, the mere fact that the applicant was required to interact with the Assistant DOC, taken alone or with the applicant’s other allegations, does not provide a basis to conclude that anyone expected anything other than a professional relationship between the applicant and the Assistant DOC. In coming to this conclusion, I should note that there are no allegations in this case that the applicant was put in situations requiring her to interact with the Assistant DOC in any inappropriate way unrelated to her job duties.

28The only occasions on which the DOC even allegedly mentioned the Assistant DOC to the applicant were in mid to late August, shortly before Cawthra Gardens terminated the applicant’s employment. I refer to the allegations in para. 20(d) and (e) above. I am not persuaded that such allegations, even if true, could be the basis for a finding that the applicant was subjected to sexual solicitation or advances. The applicant contends that even though the DOC did not specify what she was asking about when she asked the applicant “why she didn’t want to”, the applicant just “knew” she was referring to the applicant not wanting to have a romantic relationship with the Assistant DOC. As stated above, the applicant’s belief that this is what the DOC meant is not evidence. In my view, even if the DOC did make the comments attributed to her by the applicant (which she denies), the applicant’s evidence would not be sufficient for the Tribunal to conclude that the DOC was soliciting the applicant for a sexual relationship with the Assistant DOC or anyone. Similarly, the allegation that the Assistant DOC was upset with the applicant for not saying good morning to him, taken alone or with the other allegations in this case, is not a basis upon which the Tribunal could find that the applicant was being solicited for a sexual relationship with him.

29In sum, the applicant has not alleged any facts that, if true, would allow the Tribunal to conclude that the applicant was subjected to sexual solicitations or advances within the meaning of s.7(3(a)) of the Code. The applicant’s claim that the respondent Cawthra Gardens infringed her right to be free from sexual solicitation and advance from a person in a position to confer, grant or deny a benefit or advancement to her is dismissed accordingly.

Reprisal for Rejecting Sexual Solicitation or Advance

30The applicant also alleges that the both respondents reprised against her contrary to s.7(3)(b) of the Code by mistreating her and ultimately by terminating her employment with them because she refused to have a romantic relationship with the Assistant DOC at Cawthra Gardens.

31In particular, the applicant alleges that Cawthra Gardens mistreated her and ultimately fired her in August 2011 because of her unwillingness to have a romanitc relationship with the Assisant DOC there.

32In addition, the applicant has made many very detailed allegations (which need not be reproduced here) about mistreatment she allegedly experienced by co-workers and members of management at Specialty Care when she worked there from February to April 2012. She also alleges that Specialty Care’s decision to terminate her employment in April 2012 (pre-empted by the applicant’s resignation) was linked to her unwillingness to have a romantic relationship with the Assistant DOC at Cawthra Gardens.

33In my view, the applicant has no reasonable prospect of establishing that either of the respondents infringed her rights under s.7(3)(b) of the Code.

34In order to establish that her rights under s.7(3)(b) of the Code were infringed, the applicant would have to prove that “a person in a position to confer, grant or deny a benefit or advancement” to the applicant retaliated against her for rejecting a sexual solicitation or advance.

35Many of the applicant’s allegations concern the actions of co-workers, not persons in positions of authority over her. Although the applicant makes the bald assertion that management at Cawthra Gardens and Specialty Care was behind much if not all of the alleged mistreatment by co-workers, it is far from clear that the applicant would be able to establish that alleged retaliation by co-workers constituted retaliation by “a person in a position to confer, grant or deny a benefit or advancement” to the applicant. However, it is not necessary for me to address this issue, because even assuming that all of the mistreatment complained of in the Applications was carried out by a person in a position of authority over the applicant, the applicant has no reasonable prospect of success in her reprisal claim under s.7(3)(b) of the Code.

36Having determined that the applicant has no reasonable prospect of success in her claim that she was subjected to a sexual solicitation or advance, it follows that the applicant’s claim under s. 7(3)(b) of the Code must also be dismissed. The applicant has no reasonable prospect of proving that she was reprised against for rejecting a sexual solicitation or advance if she has no reasonable prospect of establishing that she was subjected to a sexual solicitation or advance in the first place. This alone is sufficient reason to dismiss the applicant’s reprisal claims.

37However, I would also note that there are no facts alleged in this case that would allow the Tribunal to conclude that the mistreatment that the applicant allegedly experienced from co-workers and management at Cawthra Gardens and/or Specialty Care was in any way linked to her alleged refusal to have a sexual relationship with Cawthra Garden’s Assistant DOC (and leaving aside that there is no suggestion that the applicant ever actually “refused” to have such a relationship; taken at its highest, the applicant’s claim is that she was “unwilling” to have a relationship that she believed was expected of her).

38The applicant submits that she can prove the requisite link by showing that some of the individuals at Specialty Care who mistreated her (or who were “behind” others’ mistreatment) knew of the applicant from their work at Cawthra Gardens. The applicant also submits that employees at Specialty Care must have known about what transpired with her at Cawthra Gardens because at least two of them made comments that were strikingly similar to those made by the Cawthra Gardens DOC (i.e. “Why don’t you ever talk unless you have to?” “You never smile.” “You are not communicating with us.”) However, even if the applicant were to prove that some at Specialty Care mistreated her (or caused others to mistreat her) based on their knowledge of her from Cawthra Gardens, that would not be reason to conclude that they mistreated the applicant because of her alleged unwillingness to have a sexual relationship with a manager at Cawthra Gardens, which is what would be required to prove a breach of s.7(3)(b) of the Code.

39For the reasons outlined above, I find that the applicant has no reasonable prospect of proving that she was harassed or mistreated in either of the respondent’s workplaces because of her rejection of a sexual advance by a person in a position of authority over her. The applicant’s claim that her rights under s.7(3)(b) of the Code were infringed is dismissed accordingly.

40For the reasons outlined above, I find that the Applications have no reasonable prospect of success. The Applications are dismissed accordingly.