Layla Farah v. Hudson's Bay Company, 2014 HRTO 1083

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Layla Farah Applicant

-and-

Hudson’s Bay Company Respondent

DECISION

Adjudicator: David Muir Date: July 24, 2014 Citation: 2014 HRTO 1083 Indexed as: Farah v. Hudson’s Bay Company

APPEARANCES

Layla Farah, Applicant Self-represented

Hudson’s Bay Company, Respondent Sarah Parchello, Counsel

Introduction

1This Application alleges discrimination in employment on the basis of ancestry, creed, race and colour.

2In a Case Assessment Direction issued on February 28, 2014 the Tribunal directed that a summary hearing be held to determine whether this 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.

3Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

4Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 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.

5A summary hearing was held on July 23, 2014 by telephone conference call. All parties participated.

6The Application is dismissed.

7The applicant was a sales associate with the respondent, a large retailer. The respondent asserts that the applicant was identified by its loss preventions systems as being involved in a significant number of inappropriate sales transactions over a short period of time involving one customer. The applicant does not dispute that these inappropriate transactions might have occurred.

8The respondent conducted an investigation of these transactions. The respondent asserts that the investigators would have known nothing about the applicant’s personal characteristics while conducting their investigation. The applicant does not dispute that this is the case.

9The investigation concluded with a meeting with the applicant and the investigators. It is this meeting that is at the centre of the applicant’s allegations. She was asked about these transactions and her understanding of the proper way to have conducted the transactions in question. The investigation meeting concluded. The applicant was subsequently dismissed from her employment on June 28, 2013.

10In the Application the applicant alleges that at the meeting she felt that she was being interrogated and, accordingly, felt uncomfortable. She also alleges at first that she did not recall the transactions because they had occurred almost two months prior. She states that she did not feel like a person and felt unable to defend herself. The applicant also asserts that she had begun to wear a Hijab about this time and links this to what she considers to be unfair treatment by the investigators in the investigation meeting.

11At the summary hearing the applicant re-articulated the essence of the narrative above. She argued that during the investigation her rights were overlooked. That when she was called into the investigation meeting she felt that she was being attacked and she did not have an opportunity to defend herself. She argued that she felt like the respondent believed that she had planned the incidents to defraud them which she would never do. She stated that she believed that she was simply providing good customer service and that if there was something wrong with what she had done it would have been fair to warn her or negotiate with her about it. The applicant also argued that what she had done may have been wrong, but she did not know.

12As was indicated in the Case Assessment Direction directing the summary hearing the Tribunal does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground on a balance of probabilities. To show discrimination, an applicant must prove a link between a respondent’s alleged actions and a Code ground.

13In this case the applicant has been unable to point to any direct evidence of discrimination. That is there is no direct evidence that the applicant was treated any differently than any other employee of the respondent would have been in the circumstances. I asked the applicant if she disputed the central allegation of the respondent and she did not, but, as indicated believed that the way in which the investigation was handled was unfair.

14The applicant also could not point to anything in the circumstances that would tend to support her claim that an inference might be drawn that a factor in the investigation and subsequent decision to dismiss her were influenced in any way by a prohibited ground of discrimination under the Code. The applicant argued that she began to wear the hijab around this time, however that fact in and of itself is insufficient to establish the required link. I also observe that the applicant does not dispute that the genesis of the respondent’s investigation of her was legitimate and that the individuals involved in that investigation would not have been aware of her background or that she had begun to wear a hijab.

15In conclusion I agree with the respondent that there is nothing in the circumstances which would tend to establish a link between the grounds cited by the applicant and the decisions of the respondent. Essentially the applicant claim is that she was treated unfairly in the investigation and that the punishment for her infraction was harsh and unfair. The applicant’s view of this flows from her conviction that she did not intend to do anything wrong but simply made a mistake in trying to assist a customer. Assuming this to be the case there remains no connection between these allegations of unfairness and the Code. For these reasons I find that this Application must be dismissed because the applicant can point to no evidence or any evidence reasonably available to her that would tend to support any connection to the Code grounds claimed.