Norrie Brown v. Southwest Chrysler Dodge Inc., 2014 HRTO 1048

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Norrie Brown Applicant

-and-

Southwest Chrysler Dodge Inc. Respondent

INTERIM DECISION

Adjudicator: Dawn J. Kershaw Date: July 17, 2014 Citation: 2014 HRTO 1048 Indexed as: Brown v. Southwest Chrysler Dodge Inc.

APPEARANCES

Norrie Brown, Applicant Self-Represented

Southwest Chrysler Dodge Inc., Respondent Andrew F. Camman and Joyce M.D. Thomas, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of sex, including harassment, and creed contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code").

2The hearing in this matter commenced on March 31, 2014. The applicant testified and was cross-examined. At the end of the applicant’s testimony, I granted the respondent’s request to argue that Application should be dismissed as having no reasonable prospect of success. I received written submissions from both parties.

Legal Principles

3The relevant provisions of the Code are as follows:

5(1) Every person has a right to equal treatment with respect to employment without discrimination because of creed [and] sex (…).

7(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex (…) by his or her employer or agent of the employer or by another employee.

No Reasonable Prospect of Success

4The Tribunal is not limited to dismissing an application because it has no reasonable prospect of success only at an initial stage of the Tribunal’s process. The Tribunal has concluded that it can decide this issue after some but not all of the proposed evidence has been called. See, for example, Pellerin v. Conseil Scolaire de district catholique Centre-Sud, 2011 HRTO 1777. As stated in Pellerin at para. 32:

An applicant who cannot prove the foundations of the claim that depends on his or her evidence as in Jagait [v. IN TECH Risk Management, 2009 HRTO 779] cannot proceed with the case and this may be analysed as a lack of prima facie case and/or no reasonable prospect of success.

5The 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.

6The question that the Tribunal must decide is whether there is likely to be sufficient direct or indirect evidence available to connect the adverse treatment allegedly experienced by an applicant with the grounds alleged in the application. Sometimes, applicants are not in a position to point to any evidence beyond their own suspicions to support their belief that they have been discriminated against. In such a situation, applications may be found to have no reasonable prospect of success.

Background

7The applicant worked at the respondent as a salesperson from April 7, 2008 to August 30, 2011. Her employment was terminated allegedly because of an incident in which she was alleged to have made a lewd gesture and comment in response to yet another disagreement with the man with whom she had to share an office.

8The applicant alleges that during her employment she was discriminated against on the basis of her sex, including harassment, by her supervisor because he treated her differently than he treated the male sales staff.

9The applicant’s allegations with respect to discrimination on the basis of creed included that other salespeople got time off and her supervisor gave her a hard time about time off for religious observances, particularly when she was required to sit Shiva for her brother and to leave work in time to be in Toronto before sundown on Jewish holidays.

Decision

10The parties are not precluded from raising the arguments they made on this motion at the continuation of the merits hearing, but at this stage, I am not prepared to dismiss the Application.

11Having carefully considered the applicant’s evidence, I find it necessary to hear the evidence of the respondent’s witnesses.

Direction

12Within 14 days of the receipt of this Interim Decision, the respondent’s counsel is directed to contact the applicant to identify two consecutive mutually-available days after August 29, 2014, and before October 31, 2014, for the continuation of this hearing, and to provide this information to the Tribunal by no later than August 5, 2014.