Tesseris v. Amey, 2014 HRTO 102

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Angelica Tesseris Applicant

-and-

Jessica Amey Respondent

DECISION

Adjudicator: Douglas Sanderson Date: January 23, 2014 Citation: 2014 HRTO 102 Indexed as: Tesseris v. Amey

APPEARANCES

Angelica Tesseris, Applicant Self-represented

Jessica Amey, Respondent Michelle Gibbs, Counsel

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 reprisal or threat of reprisal.

Background

2The applicant filed application 2013-14290-I against her employer and two individual respondents on April 25, 2013. In that application, the applicant alleged that the respondents made certain statements about her in a hearing regarding a physician before the College of Physicians and Surgeons of Ontario (the “College”). The respondent in this Application, Jessica Amey, is in-house counsel to the College. There is no dispute that the College sent a letter dated May 17, 2013, authored by the respondent, to the applicant. In that letter, the College advised the applicant that it had received a copy of application 2013-14290-I, that the application referred to evidence given at a discipline hearing before the College, and that it took the position that the applicant was not entitled to use such evidence as a basis for an application to the Tribunal, pursuant to the doctrine of absolute privilege and because it was inadmissible by virtue of section 36(3) of the Regulated Health Professions Act, 1991, 1991, S.O. 1991, c. 18 (the “RHPA”). The College requested intervenor status in application 2013-14290-I, which the Tribunal granted. See Tesseris v. Pellark Dental Practice, 2013 HRTO 1143.

3The applicant filed this Application against the respondent on May 27, 2013. In the Application, the applicant states that she believes that the respondent took personal revenge against her by sending the letter of May 17, 2013 to prevent her from expressing her concerns because she was a defence witness in a College discipline hearing for which the respondent was the prosecuting lawyer. In her Response, the respondent pleaded that she is protected by the doctrine of prosecutorial immunity and that no service relationship exists between the applicant and respondent and, as a result, the Tribunal has no jurisdiction over the subject matter of the Application. The respondent also pleaded that the College’s Request to Intervene cannot form the basis of an application to the Tribunal, that this Application amounts to an abuse of process, and that section 38 of the RHPA is a complete defence to the applicant’s claim for monetary damages against her personally. The respondent also filed a Request for Summary Hearing.

Summary Hearing

4By Case Assessment Direction dated July 17, 2013, the Tribunal granted the respondent’s Request for Summary Hearing to determine whether this Application should be dismissed, in whole or part, because there is no reasonable prospect that the Application or part of the Application will succeed. The Tribunal also noted that the Tribunal was in the process of scheduling application 2013-14290-I for summary hearing and directed that the summary hearing of these two applications be heard at the same time. The Tribunal held these summary hearings by teleconference on October 2, 2013.

Analysis and Decision

5Section 5(1) of the Code states as follows:

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, gender identity, gender expression, age, record of offences, marital status, family status or disability.

6Section 8 of the Code states as follows:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

7Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

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.

8In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments with respect to summary hearings at paragraphs 8-9:

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.

9The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201 and Badvi v. Voyageur Transportation, 2011 HRTO 1319. 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. 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 cause significant financial and emotional damage.

10At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true, unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The 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. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.

11A reprisal claim, under section 8 of the Code, is distinct from allegations of discrimination because an applicant must establish the respondent intended to punish or retaliate against the applicant because he or she asserted his or her Code rights. The Tribunal set out the elements for a reprisal application in Noble v. York University, 2010 HRTO 878 at paragraphs 33 and 34, as follows:

Thus, in a complaint or application alleging reprisal, the following elements must be established:

a. An action taken against, or threat made to, the complainant;

b. The alleged action or threat is related to the complainant having claimed, or attempted to enforce a right under the Code; and

c. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

In addition, the following principles are relevant:

a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and

b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.

12In my view, the applicant failed to establish that the Application has a reasonable prospect of success.

13At the hearing the applicant submitted that she had been on the defence side in a discipline hearing in which the respondent was the prosecuting lawyer. The applicant submitted that the respondent “took personally”, i.e., was offended by, the applicant’s participation in the discipline hearing. The applicant submitted that the letter of May 17, 2013 came from the respondent, not the College’s Registrar, and was threatening. The applicant submitted that she felt the respondent was attempting to prevent her from asserting her human rights. The applicant’s position, therefore, is that the respondent retaliated against her because of her participation in a disciplinary hearing before the College, not because she attempted to enforce her human rights, which does not amount to a reprisal under section 8 of the Code.

14The applicant also failed to establish that the relationship between her and the respondent falls within one of the five social areas covered by the Code. The applicant submitted that the respondent was interfering with her application regarding her employment issues, i.e. application 2013-14290-I. While I agree that the provisions of the Code must be interpreted broadly, the respondent’s actions relative to the application 2013-14920-1 cannot be said to be “with respect to employment”. The respondent took a position, in her capacity of in-house counsel to the College, regarding a legal issue arising out of application 2013-14920-I. The fact that this application related to her employment does not in my view create a nexus between the respondent’s actions and the applicant’s employment. The applicant did not suggest that the respondent provided services to her, but, in any event, this Tribunal has consistently held that the relationship between a lawyer and an opposing party does not fall within the ambit of services in section 1 of the Code. See, for example, Abi-Mansour v. Ontario College of Teachers, 2011 HRTO 601; Humphries v. General Electric of Canada, 2009 HRTO 1869; and Cooper v. Pinkofskys, 2008 HRTO 390.

15For the foregoing reasons, the Application is outside of the Tribunal’s jurisdiction because the allegations do not engage a social area under the Code and, even if it was within the Tribunal’s jurisdiction, it has no reasonable prospect of success. It is unnecessary for me to address the respondent’s other arguments. The Application is dismissed.