Akther v. Lord Dufferin Community Daycare, 2013 HRTO 768

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ayeasha Akther Applicant

-and-

Lord Dufferin Community Daycare Respondent

DECISION

Adjudicator: Brian Cook

Date: May 8, 2013

Citation: 2013 HRTO 768

Indexed as: Akther v. Lord Dufferin Community Daycare

APPEARANCES

Ayeasha Akther, Applicant Self-represented

Lord Dufferin Community Daycare, Respondent Peigi Ross, Counsel

Introduction

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 race, ancestry, place of origin and record of offences.

2After reviewing the Application, the Tribunal determined on its own initiative that a summary hearing was appropriate to determine if the Application should be dismissed on the grounds that it may have no reasonable prospect of success.

3The Tribunal issued a Case Assessment Direction dated January 16, 2013. The Case Assessment Direction set out Rules 19A of the Tribunal’s Rules of Procedure:

19A.1 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.

4The Case Assessment Direction also referred to Dabic v. Windsor Police Service, 2010 HRTO 1994, in which the Tribunal made the following observations about the type of inquiry that may be 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.

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.

5The Case Assessment Direction directed that the summary hearing be conducted by telephone conference call. The telephone conference call hearing took place on April 18, 2013.

6At the hearing, the applicant provided information about the history of her employment with the respondent and the termination of that employment in November 2012. The applicant explained that she experienced many difficulties with co-workers and one co-worker in particular. The applicant alleges that she was unfairly criticized on a regular basis and that she was abruptly fired with no prior notice that there were any concerns. The respondent alleges that the applicant’s employment was terminated because of ongoing conflict between the applicant and her co-workers.

7The applicant’s description of the conflicts with co-workers that she experienced indicated that the conflicts were about such things as lesson plans and work schedules.

8The applicant was asked to clarify how her allegations of unfair treatment at work relate to the Code, and in particular to the grounds she identified in the Application, which were race, ancestry, place of origin, ethnic origin and record of offences. With respect to record of offences, the applicant confirmed that she has never had a record of offences and that this ground therefore is not applicable.

9The applicant indicated that one day she forgot to wear her hijab. Before she was able to find a suitable head covering, one of her co-workers said that the applicant could “go to hell” because of her forgetfulness. The applicant indicated that this co-worker was of the Muslim faith before coming to Canada but that she now is not religious.

10The applicant indicated that on another occasion the same co-worker said something to the effect that “people from your country don’t know how to behave properly.” She indicated that the same co-worker may have also said something like “people from your country have no culture.”

11Counsel for the respondent advised that the employer was not made aware of these alleged comments during the period of the applicant’s employment and the applicant did not dispute this.

ANALYSIS

12It is very clear that the applicant feels that she was treated unfairly during her employment and feels that the termination of her employment was unfair and unjustified. As discussed at the telephone conference call hearing, this Tribunal does not have the power to deal with all allegations of unfair treatment in workplaces or allegations of unfair termination of employment. The Tribunal can only determine if a person has experienced discrimination or harassment contrary to the Code. The Application lists the grounds of race, ancestry, and place of origin as grounds of alleged discrimination but provides no suggestion that the unfair treatment she alleges was influenced in any way by these factors.

13Section 5.1 of the Code establishes a person’s right to equal treatment in employment without discrimination:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or disability.

14To show that she experienced discrimination contrary to the Code, the applicant would have to show that she was treated differently because of a Code-protected ground.

15Section 5(2) establishes the right to be free from harassment in the workplace:

(2) Every person who is an employee has a right to freedom from harassment in the workplace by the employer or agent of the employer or by another employee because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, age, record of offences, marital status, family status or disability.

16“Harassment” is defined in section 10 of the Code:

Harassment means engaging in a course of vexatious comment or conduct that is known or ought reasonably be known to be unwelcome.

17To show that she was harassed contrary to the Code, the applicant would have to show that she was subjected to a course of vexatious comment or conduct that is known or ought be known to be unwelcome and that the course of vexatious comments or conduct was related to a Code-protected ground.

18In the telephone conference call hearing, the applicant referred to the comments that she alleges were made by one of her co-workers. However, her explanation of the history of the matter concerned her allegations of unfair treatment related to such things as scheduling and lesson planning. It is clear that the applicant was engaged in significant interpersonal conflict with co-workers. While this conflict may have included some of the comments that the applicant referred to in the telephone conference call hearing, it seems clear that the overriding issues were interpersonal conflicts not related to any Code-protected ground. While the applicant alleges that she was treated unfairly by her employer and supervisor, she did not identify any evidence that could potentially show that the employer’s and supervisor’s actions or decisions were influenced by discrimination on a Code-protected ground.

19The co-worker comments that the applicant referred to could potentially involve Code-protected grounds. However, it appears that the applicant did not bring these to the attention of the employer and her co-worker has not been named as a respondent to this Application.

20On the basis of the information provided by the applicant it does not appear that there is a reasonable prospect that the applicant could show that she was treated differently by her employer because of race, ancestry or place of origin or that the employer could be held liable for the comments of her co-worker, even assuming they amounted to a course of vexatious comments and therefore harassment.

21For these reasons, the Application is dismissed.