HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Carey Morrison

Applicant

-and-

TD Securities and Pamela Beauchamp

Respondents

DECISION

Adjudicator: Jennifer Scott

Date: August 12, 2014

Citation: 2014 HRTO 1208

Indexed as: Morrison v. TD Securities

APPEARANCES

Carey Morrison, Applicant

Self-represented

TD Securities and Pamela Beauchamp, Respondents

Rhonda Jansen, Counsel

BACKGROUND

1This Application, filed on March 11, 2014, alleges discrimination with respect to employment contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). Although the applicant cites numerous grounds of discrimination in the Application, she believes her race was a factor in the decision to terminate her employment.

2By Case Assessment Direction dated April 8, 2014 (the “CAD”), the Tribunal directed that a summary hearing be held to determine whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that it will succeed.

3The summary hearing was conducted by teleconference on August 7, 2014.

Summary Hearing Process

4The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

5The Tribunal has held on many occasions that it does not have jurisdiction over general claims of unfairness unrelated to the Code. Discrimination under the Code generally involves an allegation of adverse treatment because of one or more of the grounds listed in the Code. Adverse treatment is not discriminatory in the legal sense unless there is proof that one or more of the personal characteristics listed in the Code was a factor in the treatment the applicant experienced.

6The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment she experienced. The 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.

7However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why she was treated adversely. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from the evidence the applicant is able to point to, either in her possession or evidence that may be reasonably available to her, which tend to support the applicant’s belief that she has experienced discrimination or reprisal under the Code. Although the applicant may point to evidence that support her allegations, there are no findings made at the summary hearing stage in relation to that evidence.

8The 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 adverse treatment allegedly experienced by the applicant with the grounds of discrimination 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 or reprised against. In such a situation, applications may be found to have no reasonable prospect of success. For an application to continue in the Tribunal’s process following a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code.

9Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this case as set out in this Application.

The Facts

10The applicant commenced employment with the respondent as an assistant to the individual respondent on August 29, 2013.

11The applicant alleges that during her employment, the individual respondent engaged in bullying behaviour for which the applicant sought counselling through the respondent’s Employee Assistance Program. The applicant alleges further that the individual respondent treated other assistants in a similar way.

12The applicant alleges the individual respondent saw the applicant having lunch with her sister on October 22, 2013. The applicant states she and her sister are mixed race, however their mixed race is more apparent with the applicant’s sister. The applicant states her sister’s skin is darker and her hair is worn curly. The applicant’s skin is lighter and she wears her hair straight.

13The applicant’s employment was terminated on October 24, 2013.

analysis

14The question the Tribunal must decide is whether there is evidence that the applicant has or is likely to have that will establish a link between the applicant’s race and the termination of her employment.

15The applicant states her termination was connected to her race for the following reasons:

a. The applicant’s employment was terminated two days after the individual respondent saw the applicant’s sister and became aware of the applicant’s mixed race;

b. The individual respondent did not give the applicant a reason for the termination other than to say the applicant was not a “good fit”;

c. The applicant had done good work for the individual respondent prior to her termination.

16There are several assumptions built into the connection that the applicant has made between her race and the termination of her employment. The applicant has assumed the individual respondent was not aware of her mixed race until she saw the applicant with her sister. The applicant has assumed further that because the termination occurred two days later, the decision must have been influenced by the discovery of the applicant’s mixed race. Finally, the applicant has assumed that because no reasons for termination were given, her race must have been a factor. These assumptions reflect the fact that it is the applicant’s belief that her race was a factor in the termination.

17I have no doubt that the applicant honestly believes that her employment was terminated because she is mixed race. However, the applicant’s belief is not evidence that the respondents did so. It is not open to the Tribunal to make a finding of discrimination based only on the applicant’s assertions, feelings or beliefs. The Tribunal cannot find that the respondent discriminated against the applicant unless there are facts alleged that, if true, would allow the Tribunal itself to conclude that the respondents’ actions towards the applicant were linked to a prohibited ground of discrimination under the Code. There are no such facts alleged here.

18In the absence of any real or cogent facts linking the applicant’s termination with her race, the claim is essentially a bald allegation of discrimination based on the applicant’s suspicion and speculation. The Tribunal has dismissed applications in similar circumstances and it must do so here. See Mitchell v. Kerry’s Place Autism Services, 2012 HRTO 834.

19For these reasons, I must dismiss the Application as having no reasonable prospect of success.

ORDER

20The Application is dismissed.