Karen Franceschina v. Essar Steel Algoma Inc., 2014 HRTO 1265

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Karen Franceschina

Applicant

-and-

Essar Steel Algoma Inc.

Respondent

DECISION

Adjudicator: Alison Renton

Date: August 27, 2014

Citation: 2014 HRTO 1265

Indexed as: Franceschina v. Essar Steel Algoma Inc.

APPEARANCES

Karen Franceschina, Applicant

Self-represented

Essar Steel Algoma Inc., Respondents

William LeMay, Counsel

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

2The applicant is a bargaining unit employee who is represented in the workplace by the United Steelworkers Local 2251 ("the union"), which was granted intervenor status in Interim Decision, 2012 HRTO 1397. The intervenor status was removed in Interim Decision, 2013 HRTO 1753, upon request by the union to withdraw from the proceedings.

3An in-person hearing was held on November 4, 5, and 6, 2013. The hearing was bifurcated upon the respondent's request, and on consent of the applicant, meaning that the Tribunal would reconvene the hearing to hear evidence pertaining to remedies in the event that a Code violation was established. At the commencement of the hearing, the Tribunal spent quite a bit of time hearing submissions from the parties in relation to the 12 witnesses the applicant intended to call. The applicant had originally identified more than 30 witnesses that she intended to call. During a conference call on October 22, 2013, this number was reduced to 13, including the applicant. Given my finding that the Application is dismissed, the oral rulings that I issued about the applicant's witnesses need not be set out here. I note that some of the applicant's witnesses were going to be called in relation to remedies for which she was seeking.

4The Tribunal heard evidence from Peter Corbett, a witness called by the applicant and who testified before the applicant because of his limited availability, and the applicant, who testified in examination-in-chief. Mr. Corbett is an employee of the respondent, who also holds positions within the union, including being the union representative on the respondent's contracting out committee, the joint health and safety committee, and a member on the union's grievance committee.

5On the third day, at the conclusion of the applicant's examination-in-chief and before the applicant's cross-examination commenced, the respondent advised that it would be requesting that the Tribunal dismiss the Application for no reasonable prospect of success. The parties agreed that submissions on this issue would take place by telephone on December 19, 2013 ("the conference call"). A Case Assessment Direction dated November 21, 2013 ("the November CAD") was issued by the Tribunal setting out a timetable for the filing of materials before the conference call.

6The conference call was held on December 19, 2013, and both parties participated. The parties also filed materials in advance of the conference call.

7The Application, Response, Reply, 34 documents that were entered as exhibits during the hearing, testimony of Mr. Corbett and the applicant, the submissions made by the parties during the hearing, witness statements filed by the parties, the materials filed in advance of the conference call, and the submissions made during the conference call have all been carefully considered by the Tribunal.

8For the reasons set out below, I find that the Application has no reasonable prospect of success and it is dismissed.

background

9The applicant is a long term employee, with approximately 30 years of service, and works at the respondent's workplace located in Sault Ste. Marie. In 1989, she had a workplace injury for which she received benefits under the predecessor legislation to the Workplace Safety and Insurance Act, 1997, S.O. 1997, Sch. A, as amended ("the WSIA"). She continues to receive payments from the Workplace Safety and Insurance Board ("WSIB"), has a permanent 25% non-economic loss ("NEL") award, and requires accommodation in the workplace. She was terminated in 2005, although she continued to work pursuant to a justice and dignity clause in the collective agreement, and was reinstated pursuant to a 2007 arbitration award. She was terminated again in or around July 2009, but was subsequently reinstated to full employment. She has had various leaves of absence during her employment, some which were leaves without pay, and some of which were medical leaves. The applicant has sought compensation through the WSIB and/or the respondent's insurance company for some of these absences.

10A demerit point system is used in the workplace by the respondent when issuing discipline to its unionized employees. Employees have the ability to file grievances under the collective agreement with respect to discipline that they feel was unjustly imposed upon them.

11The applicant works in the position of crane operator and works on the 3:00 p.m. to 11:00 p.m. shift. She alleges that the workplace is male dominated and that she has been subjected to "systemic discrimination" because of her sex (gender) in the workplace over the years. While she uses the term "systemic discrimination" that is not really what she is alleging given the nature of her allegations as set out in para. 19.

12The applicant asserts that she has a disability, as defined under the Code, because of her 1989 workplace injury. She alleges that she has been subjected to discipline and reprisal by the respondent as an employee with a disability.

13At the hearing, the respondent confirmed that the applicant had a WSIB injury, which would meet with the Code's definition of disability, but denied that the applicant had a Code disability beyond the WSIB injury and within the time period of her timely allegations. It denied that it discriminated against the applicant on the basis of disability or sex (gender) or that it reprised against her. For the purposes of this Decision, I am proceeding on the basis that the applicant has a disability within the meaning of the Code.

14In Interim Decision, 2012 HRTO 1634, the Tribunal restricted the applicant's allegations to the period from October 2010 to April 2011 and from July to August 2011 ("the relevant time period") and ruled that allegations that pre-dated the relevant time period were untimely. During the proceedings, the applicant was very eager to tell the Tribunal a lot of information about her work history, such that her information and evidence, and the questions she asked Mr. Corbett in his examination-in-chief, seeped beyond the relevant time period. Frequently, the Tribunal reminded the applicant to concentrate on the relevant time period and denied her the ability to go beyond the relevant time period, including denying her the ability to produce documentation beyond the relevant time period. The only exception to this was in relation to evidence about a December 2011 grievance meeting, about which several documents were entered as exhibits, which was an extension of some of the applicant's allegations pertaining to the alleged unfair discipline.

15Furthermore, the applicant's evidence was very detailed and unfocussed as she jumped from one issue and/or time frame, to another, sometimes within the same train of thought. Her evidence was difficult to follow. I recognize that this was part of the applicant's eagerness to tell me everything that she thought was relevant to her allegations, as well as the fact that she was representing herself in a legal proceeding.

16Approximately half of the applicant's examination-in-chief was given without any reference to documentation. I requested that she review the extensive documentation that the parties had filed with the Tribunal in compliance with their disclosure obligations, and loaned her a copy of the materials that had been filed with the Tribunal when she was uncertain what had been filed, to identify what, if any, documents she wanted entered as exhibits. She did this at the conclusion of the second day and at the beginning of the third day. Ultimately 34 documents were marked as exhibits. The applicant was given time to testify about these exhibits.

17I ruled that the applicant could not introduce some documentation that had not previously been produced, including some that the applicant sought to introduce during the third day of the hearing. Some of the documentation was prior to the relevant time period, some was not relevant to the issues before me, some was not produced prior to the hearing. Other documentation would pertain to remedy which could be relevant, and entered, if the Application was upheld.

18Before the applicant concluded her evidence, I asked specifically if there was any further evidence that she wanted to give in relation to the Application, Response, Reply, as well on each of the Code grounds upon which her Application was based and within the relevant time periods. The applicant confirmed that she had given all her testimony with respect to these.

19The applicant's allegations, as I understand them, that are relevant to this Decision and within the relevant time period are:

1. She was subjected to differential treatment on the basis of sex (gender) when she was observed more closely and threatened with discipline or issued higher demerit points than her male co-workers for infractions that occurred. Specifically, she was threatened with discipline for taking longer breaks in April 2011, because of a "near miss", and was issued demerit points for booking her July 29, 2011 shift off and for her conduct during an August 31, 2011 meeting. She was brought into frequent meetings with one of the supervisors about safety and performance issues;

2. She was treated differently at the security gate because she was female and had a disability. Specifically, the security officers would hold down the gate, prevent her swipe pass from working, or cause her to swipe her card 20 to 30 times before the gate would open which aggravated her disability; the security guards also raised concerns about her driving, behaviour and failure to punch out properly;

3. Human resources failed to investigate into her harassment claims;

4. Peter McNichol, the respondent's claims manager, compensation, wrote to her doctor on April 18, 2011;

5. Mr. McNichol made defamatory allegations about the applicant when he wrote to WSIB objecting to her claim for a period of absence; and

6. She was reprised against because she raised concerns during an off-site meeting in December 2010.

the evidence

20The following is what I understand her evidence to be based upon Mr. Corbett's testimony, the applicant's examination-in-chief, the exhibits, the pleadings, and the witness statements filed by the parties.

being issued discipline or threatened with discipline

The Threatened Discipline

a) Longer Coffee Breaks

21The applicant testified that on April 5, 2011 she was on a "spelled" coffee break and she was accused by John Cornacchio, her supervisor, of taking a longer coffee break than that to which she was entitled. She did not receive discipline for this. She testified that Mr. Cornacchio relied upon hearsay information from a new foreman, Shawn Spooner, who had relied upon inaccurate information from another employee. The respondent was setting her up for something to happen. Mr. Spooner told Mr. Cornacchio that employees reported that the applicant was taking longer coffee breaks than those to which she was entitled and was late returning back from breaks. An email about this was entered as an exhibit.

22The applicant provided an explanation during these proceedings about why she was late returning from her coffee break, although at times this explanation was hard to follow. She testified that another employee, who is friends with Mr. Cornacchio, was late in returning from his break, such that it made her late in taking her break and then returning from her break. She also testified that she was trying to help another employee get caught up with his work.

23She asserts that she believes that if she were a male, she would have been "greeted with a pat on the back, rather than a nasty email saying that I wasn't at my job". Her efforts saved the respondent money, for which she was never thanked.

24She did not receive any discipline for this, but believes that the raising of this issue with her, essentially a warning, was because she is female. She is fearful of going on her coffee breaks, thinking that this will happen again.

b) The "Near Miss"

25The applicant testified about another example for which the applicant was threatened with discipline when a "near miss" occurred. In that situation, she saw a male who was walking towards her while she was working in the crane position. The respondent later alleged that she was close to hitting him with her crane, called a "near miss", and that the male employee had initiated a work refusal and refused to work with the applicant. The applicant disputed these allegations and testified that she was not moving her crane at the time and she saw him. She did not receive any discipline for this encounter. Emails dated May 31 and June 1, 2011 were entered as an exhibit, as were minutes of a meeting dated June 29, 2011.

Issued Discipline

a) Taking off July 29, 2011 shift

26The applicant had a niece who was getting married in Ottawa. The applicant could not afford to attend the wedding, but when someone offered to pay for her hotel room 2 days before the wedding, at the last minute the applicant decided to attend and booked off her shift, July 29, 2011, the same day that she was supposed to work.

27On that day, she called into work, spoke with Shawn Spooner, and booked off her shift. Mr. Spooner did not ask why she was booking off her shift. The applicant testified that if he had asked the reason why she was booking off, she would have told him. When she returned to work, she was issued 25 demerit points for booking off the shift at the last minute.

28She filed a grievance about this discipline because she thought the discipline was unfair. On the grievance form, it mentions a union steward, Mr. King, who had not been in the position for 23 months and was not involved with the union because he had been absent from work due to injury and returned to work on light duty. The applicant testified that her main concern was not about the 25 demerit points, although she thought that was unfair but rather that it was fraudulent to have Mr. King's name on the grievance form and that she cannot have a defence against people who appear to be approving things, or signing things, but are not in attendance at the meeting.

b) August 31, 2011 meeting

29In a meeting held with management on August 31, 2011 about booking off her July 29 shift at the last minute, the applicant admitted to banging her chair, mumbling "a not so nice thing on my way out", for which she apologized during the meeting, and leaving the meeting. In her Reply she admitted to saying "Fing AssHole" and some of the reports completed by other employees this day confirm that she used profanity. She was given 25 demerit points for her conduct at this meeting too. She filed a separate grievance about this discipline.

c) The grievance meeting

30A grievance meeting was held on December 8, 2011 to discuss the two grievances that the applicant had filed about the demerit points. Mr. Corbett attended as a union representative. He testified that normally, there is one meeting per grievance. In his cross-examination, he could not recall if human rights issues were discussed at this meeting. The grievances were denied.

31Mr. Corbett testified that during the meeting Sharon Nadeau, labour relations representative in human resources, asked the applicant to confirm that she was confrontational during a health and safety training meeting that had been held, off-site, by the union in 2010. The applicant denied that she had been confrontational. Mr. Corbett recalled that Ms. Nadeau asked the applicant about this and was quite firm in directing the applicant to answer if there had been a situation at the off-site meeting. Mr. Corbett recalled that the applicant was shocked because she did not feel that she had done anything to warrant the off-site issue being raised.

32A March 22, 2012 letter was introduced as an exhibit, written by human resources, and confirming that the 25 demerits points for the applicant's behaviour on August 31, 2011 were being removed from her file. The applicant testified that she did not know whether these demerit points had been removed from her file. Mr. Corbett testified that he recalled that the applicant was required to attend a number of anger management meetings, which she did, before the demerit points would be removed. He did not recall if the 25 demerit points were removed, but he could not confirm this.

Meetings with John Cornacchio

33The applicant alleges that Mr. Cornacchio would frequently pull her into meetings as she walked by his office. It might happen once or twice a week. He would tell her that they were safety meetings and not disciplinary meetings so she did not require union representation. They were not scheduled. Sometimes they were held in the boardroom and it would make her nervous. She would never know when these meetings would occur.

34Sometimes the reasons for the meeting she found to be ridiculous and other times belittling. He would raise concerns about her performance, question her about, amongst other things, production levels and the level of plates that went through the piler, and would become upset when she did not answer how he wanted her to answer. She did not receive discipline following these meetings.

35During one meeting, he told her that the security department had concerns with her driving on the respondent's premises and her behaviour towards them. This included allegations that she sped, drove unsafely, swore at them, and punched out incorrectly. Several emails about this from late 2010 were introduced as exhibits. She asserts that these are false allegations against her.

the applicant's allegations about the security gate and her swipe card

36The applicant testified that she had number of concerns with security, and particularly the difficulties she was experiencing using her swipe card which she used on the security gate to gain entrance to the respondent's premises. She alleged that the security guards knew that she was an injured worker and accused them of deliberately and continuously holding down the security gate, while she used her swipe card to activate the gate, to prevent her from immediate access to the premises.

37She testified that she would swipe her swipe card up to 30 times, which aggravated her neck, shoulder, and arm injuries, and then put her head on her steering wheel and start to cry, before the security officers would then activate the gate and open it.

Raising harassment allegations with human resources

a) April 11, 2011 meeting with Ms. Nadeau

38On or about April 11, 2011, the applicant approached Ms. Nadeau in relation to her claim that she was experiencing harassment in the workplace with Mr. Cornacchio's frequent meetings with her and the difficulties she was having with the security officers and the security gate. She also raised concerns about the issues that the security department had raised with Mr. Cornacchio about the applicant. In her Reply, the applicant submitted that she wanted Ms. Nadeau to defend her against untrue allegations.

39The applicant testified that she was not confrontational. She thanked Ms. Nadeau, told her she was starting to relax, and expressed hope that the harassing behaviour would now start to slow down. The applicant started to gather documentation in support of her harassment allegations. Ms. Nadeau scheduled a meeting for April 15, 2011 to discuss her harassment allegations.

40Ms. Nadeau's notes of her meeting with the applicant on April 11, 2011 were introduced as an exhibit on consent of the parties. The applicant asserts that they are wrong, but did not specifically identify how they were wrong.

b) The April 15, 2011 meeting

41The applicant was shocked, she testified, that the meeting on April 15, 2011 was not about her harassment allegations, but, instead, a complaint that had been received about the applicant's behaviour. This complaint was not identified by the applicant. In this meeting, Mr. Cornacchio spoke to her in a loud, stern voice, pointed his finger towards her, and scolded her. She claimed that Ms. Nadeau told her that the harassment, such as the meetings, would stop if she dropped the harassment charge. Ms. Nadeau's notes of the April 15, 2011 meeting were introduced as an exhibit. They do not reflect this allegation.

42The applicant takes issue with how Ms. Nadeau responded to her harassment complaint. She asserts that despite scheduling a meeting for April 15, 2011 to discuss the harassment allegations, Ms. Nadeau dismissed her complaint without investigation. She alleged that Ms. Nadeau's notes of her April 11 and 15, 2011 meetings were wrong, but did not identify how they were wrong. She took exception to the notes Ms. Nadeau took of a meeting she had with another female employee on April 8, 2011, during which the other employee raised concerns about the applicant's outburst during a coffee break. The applicant denied this outburst in her evidence and testified that the other employee denied speaking with Ms. Nadeau. She did not contact that employee to testify at the hearing once issues about that employee's proposed evidence were raised earlier in the proceeding.

43Mr. Corbett confirmed, in his evidence, that a union representative, whom he identified, was present at the April 15, 2011 meeting. He testified that, in his opinion, Ms. Nadeau may not have followed the harassment policy about how to address harassment allegations. He said that the union learned, at some point, that employees were going to human resources with allegations, which were not addressed. The process changed such that employees would go first to the union with harassment allegations, the union and management would both conduct investigations and then would meet to compare the results of their respective investigations. He did not recall which process was being followed in April 2011. In his cross-examination, he agreed that the process changed in 2013 and that he was not involved in April 2011 with issues pertaining to the applicant. In his experience, normally the respondent contacts a complainant after the investigation as follow up.

44On April 15, 2011, the same day that she had a meeting with Ms. Nadeau and others, and after that meeting, the applicant went to the security department and spoke with one of the security guards, who shall be identified as R.D. She did not accuse R.D. of harassment but rather claimed that other security guards were holding down the gate while she used her swipe card which exacerbated her injuries. She testified that R.D. showed her how they could remotely hold down the gate. In her Reply, she identified a female employee, P.W., as being present when R.D. showed her this.

45Ms. Nadeau then arrived in the security department. With Ms. Nadeau present, R.D., the applicant alleges, then told the applicant that they did not have the means to hold down the gate, or override it, while someone was using their swipe card. The applicant said that if R.D. did not tell human resources what he had told her, then she would call him a liar. She also said that what the guards were doing to her was disgusting. She tried her swipe card on April 15, 2011 in front of R.D. and human resources, without any problem.

46An internal report from R.D. dated April 15, 2011 was entered as an exhibit, as was a statement by another guard, A.V. dated April 15, 2011. The applicant testified that she had a problem with A.V.'s statement because he was not around when she was in the security office. This report and this statement indicate that security cannot hold down the gate. R.D. was identified as a witness by the respondent and a witness statement was filed on his behalf. In it, he says that he told the applicant that the security department has no way of stopping the gates from opening when someone uses their swipe card and that the only way to stop the gate from opening is to cut the power to the gate.

47The applicant did not identify P.W. as being a witness.

c) Mr. McNichol's April 18, 2011 letter to the applicant's doctor

48Instead of investigating her harassment allegations, the applicant alleges that Mr. McNichol wrote a letter to her doctor raising concerns with the applicant's mental health because of her behaviour on April 15, 2011. The applicant testified that she was shocked that Mr. McNichol wrote the letter because he was not present at the April 15, 2011 meeting. She testified that she "has a problem with it [the letter]" because Mr. McNichol was not at the meeting and because he relies upon hearsay in writing to her doctor. She learned about the letter during an appointment with her doctor as she was not sent a copy of it by the respondent.

49The applicant testified that at the April 15, 2011 meeting, Ms. Nadeau told her to stay home for two weeks. Because the applicant did not want to stay at home, she booked an appointment with her doctor for the Tuesday following the meeting. During this appointment, she asked if she could return to work and she learned about Mr. McNichol's letter to her doctor.

50The applicant testified that her doctor asked if things were okay at work, to which she responded yes. She told him that she felt that she was being harassed because of injury, told him about the April 15, 2011 meeting, and told him that she thought that it was a good meeting and that the respondent might be trying to help her. Her doctor informed her that he had received a letter from the respondent and observed, after reading out loud a couple lines of the letter, that maybe things were not fine at work. She returned to work, with medical clearance, after being away for a week.

51The applicant's witness statement for her doctor indicated that the doctor would confirm that he received the April 18, 2011 letter and that he "hoped things would work out".

d) Ms. Nadeau's May 3, 2011 letter

52A few days later, the applicant testified, she received another letter from Ms. Nadeau which she described as "character bashing". This letter is dated May 3, 2011 and pertains to her alleged behaviour on April 15, 2011 and a subsequent meeting on May 2, 2011. The applicant testified that she disagrees with the characterization of her behaviour on April 15, 2011, but did not provide details about how she disagrees with its contents. The letter was entered as an exhibit.

the respondent's objection to the applicant's claim for wsib benefits for a leave of absence taken in 2009 to 2010

53The parties agreed, in an agreed statement of fact, that in 2009 the applicant was issued 25 demerit points, with the applicant asserting that they were issued unfairly and the respondent asserting that they were issued fairly. Following their issuance, the applicant was off work for medical reasons. She attempted to claim compensation from WSIB and the respondent's insurance company for the period of time that she was off work. She was unsuccessful in obtaining benefits from either.

54In 2011, the applicant learned that the respondent opposed her claim for WSIB benefits for this leave of absence. The applicant testified that Mr. McNichol, by filing documentation with WSIB disputing that the applicant was off work for medical reasons, defamed her and discriminated against her.

55A copy of Mr. McNichol's statement to WSIB was entered as an exhibit.

reprisal

56The applicant asserts that the security guard's conduct and statements pertaining to April 15, 2011 may be in retaliation or reprisal for having a meeting the same day pertaining to her harassment allegations.

57She also testified that her difficulties with security and the demerit points that were issued against her for booking off her July 29, 2011 shift and for her behaviour at the August 30, 2011 meeting may be reprisals for her raising issues during the union's off-site health and safety training session in December 2010. She testified that the respondent blamed her for the Ministry of Labour attending the premises and conducting an inspection. During his evidence, Mr. Corbett confirmed that the off-site training session was about occupational health and safety issues.

the parties' submissions about whether or not the application should be dismissed

The Respondent's Submissions

58As the respondent requested that the Tribunal dismiss the Application for no reasonable prospect of success, its submissions are set out first.

59The respondent submits that although the bar is not high for the applicant to demonstrate a prima facie case that her allegations, for the relevant time period, support a Code violation, the applicant's allegations fail to provide any evidence, even by inference, that the Code was violated, such that the Application should be dismissed. The respondent notes that much of the applicant's evidence and concerns flow from events outside of the relevant time period and/or were irrelevant to the Application.

60Instead, the respondent submits, what the applicant is able to prove is that she believes that she was treated unfairly. Being treated unfairly does not ground a Code violation.

61Furthermore, the respondent submits, the onus of proving a violation of the Code lies with the applicant. The applicant cannot use the hearing process to prove his or her case. The applicant cannot merely assert, without something more, that she was subjected to harassment or discrimination on the basis of sex (gender) or disability. She has not established that she was subjected to reprisal, within the meaning of the Code, because she has not established that she either asserted or tried to assert her Code rights.

62The respondent reviewed, in some detail, the evidence given by the applicant and Mr. Corbett, as well as the documents entered as exhibits. It submits that the applicant believes that she has experienced harassment and discrimination, believes that some members of management are out to get her, but that the applicant has failed to establish that she has been subjected to differential treatment on a Code ground. The applicant merely asserts that she was subjected to differential treatment because she is female, or has a disability, without anything more.

The Applicant's Submissions

63The applicant submits that her Application should not be dismissed. She recounted some of the evidence that had been tendered during the hearing, particularly about security's alleged concerns with her, and some of the performance issues that had been raised with her and how this demonstrates that the respondent intentionally discriminated on the basis of her sex (gender). She re-asserted some of her allegations.

64She submits that Ms. Nadeau mishandled and ignored her harassment allegations, did not believe the applicant, and spent more time writing notes about her behaviour issues than focussing on the harassment allegations. She takes issue with the role that the union representative played at the April 15, 2011 meeting. She continues to dispute why the respondent wrote to her doctor, and asserted that the intention was to use her disability against her doctor so that he would remove her driver's license and her right to have a swipe card to access the security gate. It was not clear that this last point had been in the applicant's evidence during the hearing.

65She disputed the reasons why demerits points were issued to her in the first place and noted that she was threatened with more discipline at the conclusion of the disciplinary letters, namely, words to the effect that similar behaviour will result in further discipline.

66She focussed, to some extent, on the role the union played during the April 15, 2011 meeting, as well as the off-site health and safety meeting held in December 2010.

LAW AND ANALYSIS

67The relevant sections of the Code are sections 5(1),(2), 8, and 10(1) (definition of "disability"). They state:

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

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

8 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.

10(1) In Part I and in this Part,

"disability" means,

(a) any degree of physical disability, infirmity, malformation or disfigurement that is caused by bodily injury, birth defect or illness and, without limiting the generality of the foregoing, including diabetes mellitus, epilepsy, a brain injury, any degree of paralysis, amputation, lack of physical co-ordination, blindness or visual impairment, deafness or hearing impediment, muteness or speech impediment, or physical reliance on a guide dog or other animal or on a wheelchair or other remedial applicant or device;

(e) an injury or disability for which benefits were claimed or received under the insurance plan established under the Workplace Safety and Insurance Act, 1997.

68Rules 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.

69Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994, at paras. 8 - 10:

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.

70In Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777, the Tribunal considered for the first time, with its then Associate Chair, whether or not a merits hearing that had already commenced could be dismissed as having no reasonable prospect of success.

71In concluding that it could, the Tribunal determined, at para. 18, that the principle upon which Rule 19A, the summary hearing rule, was based, that an application should be dismissed because it has no reasonable prospect of success, should not be limited to the initial early stage of the Tribunal's process. It held, at para. 5, that the Tribunal can determine whether an application should be dismissed during a merits hearing after some, but not all, proposed evidence has been heard. This is consistent with the applicant's burden to prove discrimination on a balance of probabilities, as well as principles of fairness and flexibility in the Tribunal's hearing process.

72Whether or not an application should be dismissed as having no reasonable prospect of success should be considered in light of the evidence that has been heard and that which is reasonably expected to be presented. At para. 30 of Pellerin, then Associate Chair Wright commented that this involves a consideration of whether, in light of the pleadings, witness statements, documents relied upon, and evidence that has been heard, there is a reasonable prospect that the applicant can meet his or her burden of proof.

73In considering the materials that have been filed in this case, including the pleadings, witness statements, exhibits, evidence, and submissions made, I have determined that the Application has no reasonable prospect that the applicant can meet her burden of proof and accordingly, her Application is dismissed.

74In a number of decisions, the Tribunal has considered what elements are required in order to demonstrate a finding of discrimination. In Keith v. College of Physicians and Surgeons of Ontario, 2013 HRTO 1646, at paras. 51 and 52, the Tribunal noted:

Although discrimination is not defined in the Code, it has been consistently defined by the Tribunal and the courts to mean adverse treatment or a distinction which creates a disadvantage, on the basis of a prohibited ground of discrimination. See Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143; Ontario (Director of Disability Support Program) v. Tranchemontagne, 2010 ONCA 593 at para. 90; Hendershott v. Ontario (Community and Social Services), 2011 HRTO 482 at para. 41.

The Applicant must do more than provide an opinion that the distinction on the Register devalues CPSO specialists in an abstract way because of the make-up of the group. He must adduce evidence that the distinction on the Register results in adverse treatment because [of] his place of origin.

See also, for example, Contini v. Rainbow District School Board, 2012 HRTO 295 at para. 17; and A.B. v. Toronto Police Services Board, 2013 HRTO 447 at para. 59.

75In order to prove discrimination, the Tribunal has held that an applicant must satisfy three separate points:

a. That she is a member of a group protected by the Code;

b. That she has been subjected to adverse treatment in the workplace or in respect of her employment; and

c. That this adverse treatment occurred as a result of the applicant's membership in that protected group.

See, Peel Law Association v. Pieters, 2013 ONCA 396 at para. 56.

76The applicant, like all applicants before the Tribunal, must prove on a balance of probabilities that she was subjected to harassment or discrimination. In this case, the applicant needs to establish this on the grounds of sex (gender), disability and reprisal, as alleged in her Application. There must be some evidence, direct or by inference, to support her assertion that her Code rights have been violated. In my opinion, she has not to date presented this evidence, and I find that she cannot based on the anticipated or remaining evidence of both parties filed with the Tribunal.

77First of all, the applicant seemed to take issue during the conference call with the union, specifically the role it played during the April 15, 2011 meeting and at the December 2010 off-site health and safety meeting. The union is not named as a respondent and accordingly the Tribunal will not be making any determinations in relation to the union.

78The applicant is a member of two groups protected by the Code. She is a female and she has a disability as defined by the Code given her workplace injuries for which she received WSIB benefits, as well as her claim for WSIB benefits for any mental health issues that she had pertaining to a leave of absence.

79However, the applicant has not provided evidence to date, or pointed to any anticipated evidence, that she had been subjected to adverse treatment in the workplace or in respect to employment with respect to a number of her allegations. Apart from the 25 demerit points that she received for booking off her July 29, 2011 shift at the last moment and the 25 demerit points that she received for her conduct at a meeting on August 31, 2011, which, since they are discipline, I assume can fit within the meaning of "adverse treatment".

80Based upon the evidence before me, discussions about taking longer coffee breaks and the near miss, her meetings with Mr. Cornacchio about safety and production issues, concerns raised by security and her conduct and driving, her issues with the security department, raising harassment allegations with human resources, and Mr. McNichol writing to her doctor and objecting to her WSIB claim would not amount to adverse or differential treatment in the workplace or with respect to employment because of a Code ground.

81However, even if, along with the discipline, the applicant's allegations do amount to adverse treatment in the workplace or in respect to employment, there is no evidence that I heard or any anticipated evidence that this adverse treatment occurred as a result of the applicant's sex (gender) or her disability.

The Demerits Points That Were Issued

82With respect to the discipline that was issued, the applicant admitted that she booked off her July 29, 2011 shift that day and that she did not tell Mr. Spooner the reason for booking off the shift because he did not ask. As for the discipline issued to her for her conduct at the August 31, 2011 meeting, she admitted that she banged her chair, mumbled "a not so nice thing", which she identified in her Reply as "Fing AssHole" and left the meeting. She has not pointed to any evidence which would support her claim that she was discriminated against, directly or indirectly, by the issuance of discipline on either occasion because she was either female or has a Code related disability. She may feel that the discipline is unfair, and may dispute the respondent's decision to discipline her, but the Tribunal has stated in numerous decisions that it cannot rule on general allegations of unfairness. See Forde v. Elementary Teachers' Federation of Ontario, 2011 HRTO 1389 at para. 17.

Mr. Cornacchio's Meetings With The Applicant

83The applicant's evidence about the meetings that Mr. Cornacchio held with her and the details of those meetings, apart from taking extended coffee breaks and the near miss, was vague and hard to follow. Despite this, and combined with her more specific evidence about the extended coffee breaks and the near miss, the applicant cannot point to any evidence that these meetings amount to discrimination, directly or indirectly, because she was a female and/or has a disability. The fact that management raises or questions an employee about performance or production issues if not, by itself, discriminatory. The fact that the applicant speculates that a male employee would not be treated like this is not sufficient to show that she was discriminated against on the basis of her sex (gender). The applicant has failed to point to any evidence how these meeting would constitute discrimination either on the basis of sex (gender) or disability.

Extended Coffee Breaks

84The focus of the applicant's submissions on this point pertained to her sex (gender) rather than disability. The applicant appeared to agree that she was taking extended coffee breaks, and provided an explanation as to why she did. But her claim that her lateness was discussed with her because she is female and if she were a male she would have been "greeted with a pat on the back, rather than a nasty email saying that I wasn't at my job" is, by itself, speculation that she was treated differently because of her sex (gender). Speculation is not sufficient to demonstrate that her claims have a reasonable prospect of success. With no evidence, there is no reasonable prospect of success.

The Near Miss Situation

85Similarly, the applicant disputed the facts pertaining to the near miss situation, and again seemed to suggest that discussing this situation with her was unfair. I find that this claim does not have a reasonable prospect of success on either the grounds of sex (gender) or disability.

Security Gate and Swipe Card Difficulties

86The applicant testified about the difficulties she had with activating the security gate with her swipe card. She testified that she believed that the security guards were holding down the gate to prevent it from opening because she was an injured worker, that she had to swipe her card 20 to 30 times before the gate would open, which aggravated her injuries, and that when she went to the security location to tell them about her concerns, they told her that they could not hold down the gate. She was invited to use her swipe card on April 15, 2011, and when she did, it worked easily.

87I can appreciate that the applicant was extremely frustrated when her swipe card would not activate the security gate, particularly as she testified that she would often be in a hurry to arrive in time for her shift. Again, I cannot see how I can conclude that there is a reasonable prospect of success with respect to these allegations.

88The applicant testified that R.D. told her on April 15, 2011 that the security gate can be held down, which admission he withdrew when Ms. Nadeau also attended the security department. In his witness statement, R.D. maintains that he did not tell the applicant that the security guards could hold down the gate and the only way to prevent the gate from opening is to cut the power source to the gate. I have not heard R.D. testify, but given the applicant's evidence and R.D.'s proposed evidence from his witness statement, it appears that there will be conflicting evidence on what R.D. told the applicant on April 15, 2011 before Ms. Nadeau attended the meeting. This conflicting evidence would require the Tribunal to make credibility findings on this part of the evidence between the applicant and R.D.

89However, without hearing R.D.'s evidence, and without resolving potential conflicts in the evidence, I do not see how the applicant can meet her onus of proving discrimination on the basis of disability in relation to the security gate.

90First of all, and assuming the applicant's evidence to be true, in reviewing all of the information that is before the Tribunal, there are no particulars about the specific dates on which the security department is alleged to have held down the gate, and no specific security guards have been identified of this alleged conduct. The applicant testified that she did not accuse R.D. himself of holding down the gate when she tried to enter using her swipe card.

91Second, apart from her speculation, there is no evidence that the applicant has been tendered, or anticipated to be tendered from the materials that have been filed, to show a connection between the applicant's disability and her allegation that some unnamed security guards, on unspecified dates, held down the security gate deliberately because she was a disabled employee. There is also no evidence before me, and no anticipated evidence, that the security guards knew that she was a disabled employee. I come to the same conclusion even if I accept the applicant's evidence, at this stage, that R.D. did show her that the gate could be held down remotely. This assertion by itself, in the absence of further evidence, is not sufficient to satisfy her onus that she was disadvantaged because of her disability.

92For these reasons, the applicant cannot point to any evidence already presented, or anticipated, in support of her assertion that the security department discriminated against her on the basis of disability. These allegations have no reasonable prospect of success.

93In addition, while the applicant identified P.W. as being present when R.D. allegedly showed her that the security gate could be held down remotely, the applicant did not file a witness statement for this individual and did not otherwise indicate that this individual would testify for her in this proceeding. This is an additional factor in determining that her allegations against the security department have no reasonable prospect of success.

Security Department's Concerns About The Applicant

94As for the concerns that the security department raised about the applicant, in the form of speeding, driving unsafely, swearing at them, and punching out incorrectly, again while the applicant may factually disagree with those assertions, and feel that they were unfairly raised, there is nothing that she can point to in support of her position that they were raised because she was female and/or has a disability, or establish that these unfounded concerns constitute discrimination, either direct or indirect.

Mr. McNichol Writing Directly To The Applicant's Doctor

95With respect to the letter that Mr. McNichol sent directly to the applicant's doctor, as stated in Macan v. Strongco Limited Partnership, 2013 HRTO 841 at para. 115, based upon the circumstances of that case, "I am not prepared to find that the respondent's unilateral communication with the applicant's doctor, without her consent or knowledge, was a separate violation of the Code, as the applicant submitted". Similarly, based upon the circumstances of this case, I find that the unilateral communication with the applicant's doctor does not have a reasonable prospect of success. This is not to say that a practice of unilaterally writing to an applicant's doctor is a practice to endorse, and in some circumstances could amount to a violation of the Code. However, in the particular circumstances before me, it does not have a reasonable prospect of success.

96The letter, which was entered as an exhibit, is about the applicant's behaviour at the April 15, 2011 meeting. Mr. McNichol was not present at the meeting, although he signed the letter. The letter expresses the respondent's concern about the applicant's behaviour given the safety sensitive position she holds, indicates that she is off work, advises that there is no interruption in her wages, and states that she was recommended to follow up with the doctor. The letter does not require any information from the doctor, although it requests that he assess the applicant about her current medical status, noting that she will remain off work until such time that it is his opinion that she can safety return to work.

97The doctor's witness statement states that the doctor has never received a letter about a patient's behaviour in the workplace and that the applicant disagreed with the characterization of her behaviour.

98The applicant takes exception to Mr. McNichol writing the letter because he was not present at the April 15, 2011 meeting and is relying upon hearsay in writing it. Further, she disagrees with the characterization of her behaviour at the April 15, 2011 meeting. In her Reply, she alleged that the letter was hurtful to her reputation.

99Although Mr. McNichol was not present at the April 15, 2011 meeting, and appears to rely upon others as the source of information about the applicant's behaviour at that meeting, this does nothing in establishing that the applicant was discriminated against on the basis of disability and/or because of sex, even if the applicant objects to the characterization of her behaviour and even if the doctor has never received this type of letter about a patient before. This allegation has no reasonable prospect of success.

Human Resources Failure to Investigate into her Allegations and the April 15, 2011 meeting

100The applicant's Reply states that at the April 15, 2011 meeting, Ms. Nadeau told her to stay at home for two weeks, which she confirmed in her testimony. The applicant testified that she did not want to stay at home and went to see her doctor who wrote her a note permitting her return to work. She returned after one week of absence. The note was not introduced as an exhibit. Further, during her evidence, the applicant testified that human resources failed to investigate into her harassment allegations. This allegation was not clearly raised until during the hearing.

101I do not see how the applicant's allegations on this issue have a reasonable prospect of success.

102The applicant did not put much emphasis upon her removal from the workplace as being discrimination on the basis of either disability or sex (gender). I recognize that "perceived disability", which may fit the respondent's perception of the applicant on this date, falls within the meaning of "disability" under section 10 of the Code. See McLean v. DY 4 Systems, 2010 HRTO 1107 at para. 49. However, the applicant does not allege that there was a perceived disability at this point. She testified that she did not want to be off work, she wanted to work, and that her doctor cleared her to return to work saying she was of "sound mind". She returned to work the following week. Furthermore, the focus in her evidence and her allegations was not on the removal from the workplace, as much as it was about her concerns with Mr. McNichol signing the letter and her disagreement over the characterization of her behaviour in that letter. She does not provide any evidence that the physical disability from which she suffered played any part in this exchange.

103With respect to her claim that human resources failed to investigate into her harassment claims, I find that these too have no reasonable prospect of success. While she testified that she took exception to Ms. Nadeau's April 11 and 15, 2011 notes, and claimed that there were errors in them, it was not clear to me from her evidence exactly she claimed those errors to be. Since I have not heard evidence at this point in the proceeding from Ms. Nadeau, the author of these notes, I do not place any weight on them.

104Regardless of what the notes indicate, it is clear from the applicant's evidence that Ms. Nadeau arranged a meeting for April 15, 2011 to discuss the applicant's harassment allegations. The evidence is that a meeting was held and that a union representative, as well as various management representatives, attended this meeting to discuss the applicant's concerns, even if other issues were also discussed.

105Further, once the meeting with management members and the union representative finished, however abruptly that may have ended, the applicant's evidence is that Ms. Nadeau met her in the security department where the applicant was also present and asking R.D. about the ability to hold down the security gate while a card is being swiped. I appreciate that the applicant disputes R.D.'s anticipated evidence denying what he told her before Ms. Nadeau attended, but the applicant's evidence is that Ms. Nadeau was in the security department and received information from R.D. that the security department could not hold down the security gate while an individual was trying to swipe in.

106While I do not have any evidence before me whether human resources communicated to the applicant after April 15, 2011 about her harassment allegations, it is clear that there was some effort by human resources to consider her allegations.

107Furthermore, I have considered the applicant's evidence about what she told her doctor the week after the April 15, 2011 meeting. She testified that she told her doctor that she was being harassed because of injury, told him about the April 15, 2011 meeting, and told him that she thought that it was a good meeting and that the respondent might be trying to help her. The applicant's own evidence refutes her suggestion that human resources failed to investigate into her allegations.

108In her Reply, and on her way to the security department on April 15, 2011 and after meeting with Ms. Nadeau, management representatives and the union representative, the applicant wrote, "I was not upset and still believing that she [Ms. Nadeau] was going to help me".

109Accordingly, in my opinion, I do not see how the applicant can discharge her onus of proving that human resources failed to investigate into her harassment allegations and/or that it failed to do so on the basis of Code ground of sex (gender) or disability. Accordingly, this allegation has no reasonable prospect of success and is dismissed.

Mr. McNichol's Communication to WSIB About The Applicant's Leave Of Absence

110The applicant's allegations about the communication that Mr. McNichol filed with WSIB objecting to her leave of absence do not have a reasonable prospect of success. The WSIA contains mechanisms by which employers can challenge claims filed by an employee. There is nothing inherently discriminatory about the respondent writing to the WSIB and objecting to or challenging a claim filed by the applicant under the WSIA about a period of absence, even, if the applicant asserts, the respondent's information contains "falsehoods". Furthermore, the Tribunal cannot decide entitlement issues under the WSIA, when that determination is within the WSIB's jurisdiction. See, for example, Baird v. Workplace Safety and Insurance Appeals Tribunal, 2009 HRTO 99 at para. 12. The applicant has the ability to appeal WSIB's decision about her entitlement to benefits for the period of absence in accordance with the appeal options set out under the WSIA. There is no reasonable prospect of success for this allegation.

Reprisal

111As noted above, section 8 of the Code contains a very specific definition about reprisal. In the oft-cited decision pertaining to reprisal, Noble v. York University, 2010 HRTO 878, at para. 33, the Tribunal held that there needed to be three elements in establishing reprisal: 1. An action taken against, or threat made to, an applicant; 2. The alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and 3. An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

112The applicant focuses her reprisal allegations specifically against the security department when it interfered with her efforts to use her swipe card to activate the security gate and raised unfounded allegations about her driving, behaviour, and failure to properly punch out. Furthermore, she asserts that she was reprised against because of concerns that she raised at the union's off-site meeting in December 2010.

113These allegations do not meet the definition of reprisal under the Code. The evidence is clear that the December 2010 meeting was health and safety training by the union and there is absolutely no evidence that it pertained to Code issues. Furthermore, there is no evidence that the applicant attempted to claim or enforce Code rights at the December 2010 meeting or when she was attempting to use her swipe card to open the security gate.

114The applicant's allegations with respect to reprisal also have no reasonable prospect of success.

conclusion

115For the above-noted reasons, the Application is dismissed in its entirety.

116I would like to express my appreciation to the applicant and the respondent's counsel who treated each other, and the Tribunal, with courtesy and respect during the hearing process.