Miranda Marques v. Supercuts and Zarrin (Zohre) Mirzajani, 2014 HRTO 1784

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Miranda Marques

Applicant

-and-

Supercuts and Zarrin (Zohre) Mirzajani

Respondents

INTERIM DECISION

Adjudicator: Brian Eyolfson Date: December 15, 2014 Citation: 2014 HRTO 1784 Indexed as: Marques v. Supercuts

APPEARANCES

Miranda Marques, Applicant

Catherine Harbridge, Representative

Supercuts and Zarrin (Zohre) Mirzajani, Respondents

Luther Winchell, Representative

Introduction

1This Application was filed under s. 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), on August 20, 2013, and alleges discrimination with respect to employment and contracts, on the basis of race.

2This Interim Decision follows a summary hearing.

The applicant’s allegations

3It appears that the applicant worked as a hair stylist for the respondent, Supercuts, for approximately six or seven years. The individual respondent, Ms. Mirzajani, was her manager. It also appears from the parties’ materials and submissions that the applicant left her employment with Supercuts shortly after the Notice of Application in this matter was issued.

4In her Application, the applicant states that she is from a Portuguese background, and that she speaks English and Portuguese. The narrative in the Application includes the following allegations:

a. In September 2012, the applicant approached Supercut’s owner with concerns about Ms. Mirzajani and two other co-workers speaking Farsi in front of customers throughout the entire day. The applicant let the owner know how it made her feel. Shortly after, a notice was posted with respect to the importance of everyone speaking English in the workplace so as to not offend any customers or co-workers (the notice was posted for approximately one year).

b. The next day, Ms. Mirzajani was very angry and expressed that she can do what she wants, and no one can stop her from speaking her language. Ms. Mirzajani and the other two co-workers gave no regard to the notice and continued to speak Farsi on a daily basis; however, when Ms. Mirzajani left at the end of the day, the other two co-workers would speak English and include the applicant in conversations.

c. On March 6, 2013, the applicant was called to take her minor child to the hospital as she was badly hurt, but Ms. Mirzajani refused to let her leave as there were two new workers who did not know how to close the store. The applicant called her husband who called his mother to take their child to the hospital.

d. On May 7, 2013, Ms. Mirzajani and one of the applicant’s other co-workers were providing services to a customer and continued talking in their own language throughout the entire time. After the applicant mentioned to them how it made her feel, and how it may make customers feel, they ignored her for most of the day. On May 8, 2013, the applicant mentioned to them again that she was offended by their conduct. They continued speaking in their own language.

e. The behaviour of Ms. Mirzajani and the applicant’s two other co-workers continued on a daily basis. On May 14, 15 and 16, 2013, they spoke in their own language all day long.

f. On May 21, 2013, at approximately 3:30 p.m., Ms. Mirzajani and the applicant’s two co-workers were in the back room talking, not having spoken to the applicant all day. Even when the applicant was busy with a customer, they tended to slip away into the back room to talk, leaving a lot of extra work for the applicant to do. Every day, the entire time Ms. Mirzajani was there, the applicant’s existence in the salon was not acknowledged by Ms. Mirzajani or the others.

g. An employee “has been hired for three weeks, and now a new one will be hired as she is Persian”, and Ms. Mirzajani “will fire” the new employee. “This is a problem, because now there are 4 Persian employees and [Ms. Mirzajani] will hire another one, leaving two white Caucasian” employees, the applicant and one other.

h. The applicant has never received a raise. She is expected to train new stylists, and do banking and the majority of the cleaning. One of the applicant’s co-workers who speaks Farsi is an assistant manager and has been employed for four to five years. The applicant is still left with no promotions.

5Elsewhere in the Application, the applicant alleges that she believes that she was discriminated against because only the people in the salon who are Persian, and speak Farsi, advance to new positions. She alleges that she has been there for seven years and that she is finally permitted to train on style cuts, whereas new employees are training after a period of three months. She also refers to another employee, who has been there the same amount of time as her, now being a manager at a new location (this appears to be the same co-worker who is referred to above as an assistant manager).

6Both Supercuts and Ms. Mirzajani provided Responses to the Application. Supercuts explained that a memo regarding speaking English was posted for a short period of time, but was removed on the basis that all employees are treated equally and all languages are accepted at the store. Both Supercuts and Ms. Mirzajani deny the allegations of discrimination.

SUMMARY HEARING

7Rule 19A.1 of the Tribunal’s Rules of Procedure, states 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.

8In Dabic v. Windsor Police Service, 2010 HRTO 1994 the Tribunal made the following comments about summary hearings, 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.

9In a Case Assessment Direction (“CAD”) dated June 9, 2014, the Tribunal directed, on its own initiative, 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.

Reasonable prospect of success

10At the summary hearing, the applicant’s representative submitted that, for Persian employees arriving late, Ms. Mirzajani would “punch in” their card as if they already arrived, but she would not do so for employees who do not speak Farsi. Similarly, for employees who speak Farsi and leave early, Ms. Mirzajani would punch their card after they leave, but not for employees who do not speak Farsi.

11The applicant also submitted that Ms. Mirzajani plans to get all stylists from Persia, and that if you do not speak Farsi at the salon, “you are not going to last”. She alleged that Ms. Mirzajani said she wants all her staff to speak Farsi, and if they do not speak Farsi “they are gone”. She submits that witnesses have heard that Ms. Mirzajani has said that everybody at the salon will be speaking Farsi, and, if they are not Persian, she does not want them.

12In advance of the summary hearing, the applicant provided a letter from a former customer. In the letter, the former customer states that she went to the salon in 2012, and that she overheard Ms. Mirzajani and another woman speaking their language and making fun of the applicant.

13The applicant also provided an unsigned witness statement from a former employee, who appears to have worked at the salon for a short period of time. The former employee states, among other things, that Ms. Mirzajani was telling everyone in the salon that she wanted it to be a Persian store. She also states that Ms. Mirzajani and two other co-workers were chatting in Farsi and ignoring the applicant. She states that she said to the applicant, “I can’t believe how they treat you here, you do everything like a manager”, and Ms. Mirzajani just sits and talks with the other Persian employees for most of the day, unless one of her regular clients makes an appointment to come in.

14The applicant also submitted that the allegations related to March 6, 2013, when the applicant was called to take her minor child to the hospital, are not based on discrimination. The applicant explained that, rather, this has to do with “poor management”, and was included just to give an “atmosphere” of what was going on.

15At the summary hearing, the respondents disagreed that there was any discrimination, and strongly disagreed with the applicant’s assertions concerning the treatment of employees who do not speak Farsi.

16At this stage of the proceeding, prior to having heard any evidence, it is not appropriate to make findings with respect to the applicant’s allegations. In my view, the applicant may be able to establish a link between the alleged events and Code grounds, and I do not find, at this stage, that the Application has no reasonable prospect of success.

CONCLUSION

17At this stage of the proceeding, prior to hearing any evidence, the Application is not dismissed on the basis that it has no reasonable prospect of success.

18I am not seized.