HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Hilda Crick McDermott
Applicant
-and-
Four Seasons Hotels Inc.
Respondent
DECISION
Adjudicator: Alison Renton
Indexed as: McDermott v. Four Seasons Hotels Inc.
APPEARANCES
Hilda Crick McDermott, Applicant
Self-represented
Four Seasons Hotels Inc., Respondent
Jeremy Hann, Counsel
1This is an Application filed on December 31, 2012, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination with respect to employment because of race, colour, and ethnic origin. The applicant self-identifies as African Canadian.
2A Case Assessment Direction (“CAD”) was issued dated June 27, 2013, in which the Tribunal determined, on its own initiative, that a summary hearing would 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 the Application, or part of it, will succeed. In this regard, the Tribunal also noted that the respondent provided an explanation of the events in question, to which the applicant had not filed a Reply, and stated that the applicant should be prepared to respond to the arguments in the respondent’s Response. Further in the CAD, the Tribunal also noted that some of the allegations may be untimely and stated that it would give the parties the opportunity to make submissions on whether the Application is outside the Tribunal’s jurisdiction for this reason.
3A conference call hearing (“the call”) was held on October 24, 2013. During the call, the Tribunal gave the parties the opportunity to file submissions subsequent to the call about two issues, the familiarization trip and the individuals with whom she raised her concerns. Both parties subsequently filed submissions on those two issues.
4The pleadings, submissions made during the call, and additional submissions have all been carefully considered by the Tribunal.
The allegations
5In the Application, the applicant alleges that she was subjected to differential treatment or comments, on the basis of race, colour, and ethnic origin, as follows within specified time frames:
a. In late 2008, when she was promoted into the position of owner services representative (“the promotion”), the salary she was paid was $5,000 less than what she had been told she would receive in the position;
b. In late 2008, when she was promoted she became disentitled from taking a familiarization trip;
c. In the spring of 2009, she was asked “how did you get this job?” by the director of human resources. She reported this comment to the director of finance;
d. From late 2008 until June 2011, she was subjected to harassment and discrimination by her manager who, amongst other things, made comments asking if the applicant had any “common sense”, sat behind the applicant and watched her work, directed her to use the washroom, and yelled at her, in the presence of others, not to take so long a break and generally yelled at her. The applicant raised concerns about her manager’s conduct with members of human resources, and other members of management, at the end of 2009 or early 2010 and in June 2011, but nothing was done to stop her manager’s conduct and those management members did not provide further response to the applicant;
e. On nine to twelve occasions from February 2009 until April 2012, when the applicant was on the elevator, employees would push the 6th floor button for her assuming that she worked in the call centre which was located on the sixth floor (“the elevator treatment”). The applicant asserts that “the majority of blacks” work in the sixth floor call centre, whereas “about a handful of blacks work from floors 1-5”. The applicant used to work in the call centre prior to her promotion. The applicant raised the elevator treatment with members of management, along with issues about her manager, but nothing was done about this;
f. In April 2012, the chef assumed the applicant worked in the call centre and told the applicant she could take leftovers to her department. When the applicant told her she worked in another location, the chef apologized and stated that she thought the applicant worked on the 6th floor;
g. In April 2012, the applicant learned that her co-worker earned more than her despite having the same position as the applicant and receiving it at the same time; and,
h. Because of the respondent’s conduct, the applicant resigned from her position in April 2012. At the time of her resignation, she told the new director of human resources (“the director”) about the differential treatment to which she had been subjected. The director expressed remorse for what the applicant had gone through and how her co-worker did not share that experience, and that it should have been resolved earlier. She confirmed the value of having the applicant work for the respondent.
brief conclusion
6The allegations set out in para. 5 a, b, c and d are dismissed as being untimely. The allegations set out in para. 5 e, f, and g are dismissed as having no reasonable prospect of success.
Delay
The applicant’s submissions
7The allegations in para. 5 a, b, c, and d run from late 2008 until June 2011. As the Application was filed on December 31, 2012, the allegations in para. 5 a, b, c, and d are, on their face, untimely. During the call, the applicant addressed the issue of delay pertaining to these allegations. She stated that she reached out to different managers to resolve her workplace issues, but the conduct continued. She explained that she wanted to speak with someone outside of the respondent but was fearful of losing her job so she decided not to do that because she needed her job.
The respondent’s submissions
8In response to this, the respondent submitted that the allegations in para. 5 a, b, c, and d are not a “series of incidents” within the meaning of section 34(2) of the Code as they are different in character, about different actions, and involve different people. With respect to the applicant’s rationale that she reached out to different management members to raise her concerns, the respondent submits that this does not constitute good faith as required by section 34(2) of the Code. The respondent submitted that it is prejudiced by the applicant’s delay in filing her Application pertaining to para. 5 a, b, c and d. In addition to the passage of time and related fading memories, the respondent submits that it is prejudiced as the applicant’s former manager and the director of human resources, both of whom have allegations directly about them, no longer work for the respondent and the respondent does not know where they are now located.
Law and Analysis
9Section 34(1) of the Code provides:
34(1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,
(a) within one year after the incident to which the application relates; or
(b) if there was a series of incidents, within one year after the last incident in the series.
(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.
10In Garrie v. Janus Joan Inc., 2012 HRTO 1955, a panel of the Tribunal commented on a “series of incidents” within the meaning of section 34(1)(b) of the Code in relation to continuing wage payments that the applicant alleged were discriminatory, but had received, without objection, for more than 10 years. The Tribunal stated, at para. 30:
A review of the Tribunal’s jurisprudence under section 34(1) suggests that the following factors will generally be relevant to the Tribunal’s determination of whether or not allegations of discrimination are timely because they relate to a “series of incidents”:
a. What is the last alleged incident of discrimination to which the Application relates?
b. Do the allegations relate to a series of separate and independent incidents of discrimination or do they relate to the continuing effect of a single incident of discrimination?
c. What is the nature or character of the alleged discrimination and is it part of a pattern or series of incidents of a similar nature or character?
d. What is the temporal gap between alleged incidents of discrimination?
11If an applicant seeks to rely upon an untimely allegation, he or she must satisfy the Tribunal that the delay in raising the allegation was incurred in good faith pursuant to section 34(2) of the Code. The Tribunal has set a fairly high onus on applicants to provide a reasonable explanation for the delay, while recognizing that there will be legitimate circumstances that justify exercising the discretion under section 34(2). See Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241.
12I do not find that the applicant’s allegations that pre-date December 31, 2011 fall either within a “series of incidents” pursuant to section 34(1)(b) of the Code or that the applicant has provided a good faith explanation for her delay in raising them.
13I do not find that the allegations contained in para. 5 constitute a “series of incidents” within the meaning of section 34(1)(b) and within the parameters of Garrie above. The allegations are different in nature and character, ranging from a salary lower than the applicant was told she would receive upon promotion, not being entitled to take a business trip, her manager’s comments and conduct towards her, a comment by the director of human resources, members of management not following up with the applicant’s concerns, other employees assuming she worked on the call centre floor, and being paid a different amount from her co-worker. The salary the applicant received upon promotion and the differential in pay between the applicant and her co-worker, although both pertain to pay, are different in character as the allegation pertaining to the applicant’s salary upon being promoted is based upon what she was told she would earn and the allegation about the pay differential is just that – a difference in pay between colleagues. Furthermore, the allegations in the Application pertain to different people.
14Even if the allegations pertaining to the applicant’s pay are of the same nature or character, which I find above they are not, there is a temporal delay between them. The salary upon promotion occurred in late 2008 and the pay differential with the colleague was first detected in April 2012. The Tribunal has held that generally a gap of more than one year breaks the series. See Shahin v. Snap on Tools – Snap on Equipment, 2012 HRTO 2140 at para. 17.
15While the applicant explained that she did not pursue her Code rights external to the respondent because she was fearful about losing her job, the Tribunal has held fear of reprisal, by itself, is not a good faith explanation for a delay in filing an Application. See Peltier v. 1243564 Ontario Limited o/a Total Scrap Management, 2013 HRTO 1756 at para. 39.
16Furthermore, this explanation is apparently inconsistent with the applicant’s submissions that she approached other members of management, including senior members of management, to raise concerns about, particularly, her own manager’s conduct towards her. The Tribunal has held that efforts to pursue one’s rights without filing an Application have not, without more, been held by this Tribunal to justify a waiver of the one-year limitation period under section 34(2). See Kelly v. CultureLink Settlement Services, 2010 HRTO 508; Miller v. Prudential Lifestyles Real Estate, 2009 HRTO 1241; and Gagne v. Maximum Mining, 2010 HRTO 689 at para. 12.
17The Tribunal has held that in the absence of a finding of a good faith explanation for the delay, it does not have to consider whether the respondent is prejudiced by the delay. See Esanu v. Georgetown Men’s Non-Contact Hockey League, 2009 HRTO 579 at para. 16; and Colhoun v. Hydro One Networks Inc., 2014 ONSC 163 at para. 12.
18Accordingly, the allegations as set out in para. 5 a, b, c, d, and the concerns the applicant raised with the director about her former manager in h are untimely and are dismissed. The allegations set out in para. 5 e, f, and g are addressed below.
No reasonable prospect of success
The applicant’s submissions
19During the call, the Tribunal specifically asked the applicant to address each paragraph in her Application to explain how her allegations could establish a violation of the Code, what Code ground, and what evidence she would use to provide that discrimination occurred.
20With respect to the allegations summarized in para. 5 e, during the call, the applicant stated that there were two to three times the number of black employees who worked on the sixth floor of the respondent’s offices than those who worked between the first and fifth floors. She alleges that on approximately 9 to 12 occasions from February 2009 until April 2012, when she got onto the elevator, different employees would push the elevator button for the sixth floor as they assumed and expected that, because of her race, she worked there. The Tribunal asked the applicant if she recalled the names of employees who pushed the sixth floor button, but she did not. She could not recall the exact dates that this happened.
21Although it was not in her Application, the applicant relayed an incident where she went to pick up some items that had been purchased at a sale held at the respondent. She did not indicate the date this occurred. The woman from whom the applicant was picking up the items looked into the records of the worldwide reservations office (“WRO”) department and when the applicant told her that she worked in the finance, not WRO, department, the woman told the applicant she had never seen her before and assumed that the applicant worked in the WRO department because “that’s where the blacks work”. She then apologized to the applicant, looked in the correct records, found the applicant’s information and the applicant collected the order.
22Further, during the call, the applicant said that she raised the elevator treatment, along with other issues about her manager, with various members of senior management. This included Bjorn Thies, Sandip Rana, Paul Revill, Greg Dick, John Davidson, and Mary Sullivan. She does not recall, she stated in her subsequent submissions, whether she claimed that she was discriminated against in her discussions with Mr. Thies or Mr. Dick. She does not allege that she told Mr. Rana that she was discriminated against. She alleges that she told Mr. Revill and Mr. Davidson about the elevator treatment, amongst other issues. Mr. Davidson, in November 2011, said that he would get back to her, but never did. She does not claim that she told Mary Sullivan about the elevator treatment or the chef’s comments. She spoke with Mary Sullivan at the time she tendered her resignation and stated that Ms. Sullivan expressed remorse for the treatment she received from her former manager and explained that she was working on eliminating the pay differential.
23With respect to the allegation summarized in para. 5 f, the applicant said that the chef, who had worked for the respondent for a year, asked the applicant to take the leftover food to the kitchen of the sixth floor call centre. The chef did this, the applicant submitted, because she assumed the applicant worked in the department where “blacks and minorities” worked.
24As for the allegation contained in para. 5 g, the applicant submitted that when she learned that her co-worker earned more than she did, the applicant felt sick and that the differential pay validated the lies that the respondent had told her about her salary upon her promotion. The applicant said that she believed that if she looked like her white co-worker, she would have been paid the same salary as it was a brand new position in Canada.
25The applicant did not address, in either her submissions or her Reply, the respondent’s position set out in its Response that the wage differential, which had almost evened out by the time of the applicant’s resignation, was based upon the fact that the co-worker came to the owner service representative position with significantly more service and had been employed in a higher-level position than the applicant. In her reply submissions made during the call, the applicant acknowledged that she had less service than her co-worker, but that they were hired at the same time and should be paid the same wage.
The respondent’s submissions
26The respondent submits that the applicant has not been able to establish a link between her allegations and a Code ground or identified the evidence upon which she would use to demonstrate a Code violation. Instead, the respondent submits, the applicant is merely speculating about why she feels that she was treated unfairly and this is not sufficient for the Application to continue to proceed.
27With respect to allegations about the pay differential between the applicant and her co-worker, the respondent notes that the Response set out, in detail, the reasons for the differences in their salaries, including the co-worker’s longer tenure with the respondent and the fact that she held a more senior position than the applicant before becoming an owner services representative. It submitted, in the Response, that the co-worker’s salary was red-circled upon obtaining the owner service representative’s position so that the applicant’s salary could catch up to it. Further, it set out, in detail, the salaries for American employees holding the same position, which showed that the applicant earned more than her American counterparts in the same or similar positions. The respondent submits that the applicant should be put to more of a test to rebut this information than assert that discrimination occurred.
28As for the allegations pertaining to the elevator button being pushed for the sixth floor, the respondent submits that it cannot respond in any meaningful manner to the applicant’s allegations as the applicant cannot identify any employees who did this, or the dates upon which this is alleged to have occurred. It notes that the applicant worked on the sixth floor for three years prior to being promoted in 2009.
29The respondent did not make any submissions about the allegations pertaining to the chef.
30With respect to the applicant’s assertions that she raised these concerns with members of management, who are identified as Greg Dick, Sandip Rana, Paul Revill, and John Davidson, the respondent submits some of those allegations are untimely. Mr. Rana left the respondent in April 2010 and Mr. Revill left in July 2011.
31Most importantly, the respondent denies that the applicant told any of these individuals that she had been discriminated against and denies that she raised the elevator treatment with them.
Analysis
32Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed.
33The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 to 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.
34In 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.
35In this Application, there are three timely allegations, set out in para. 5 e, f, and g, above, that the Tribunal must determine whether they have a reasonable prospect of success.
36In Battlefords and District Co-operative Ltd. v. Gibbs, 1996 CanLII 187 (SCC), [1996] 3 S.C.R. 566 at para. 20, the Supreme Court of Canada addressed what it called “the appropriate definition of discrimination”, and quoted with approval from pp. 173-75 of Andrews v. Law Society of British Columbia, 1989 CanLII 2 (SCC), [1989] 1 S.C.R. 143:
What does discrimination mean? The question has arisen most commonly in a consideration of the Human Rights Acts and the general concept of discrimination under those enactments has been fairly well settled. There is little difficulty, drawing upon those cases in this Court, in isolating an acceptable definition…. I would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.
37As the Tribunal has stated on a number of occasions, merely alleging discrimination is not sufficient. The applicant must demonstrate a connection between the Code and the alleged discrimination.
38The first allegation pertains to unidentified employees who, on nine to twelve occasions over a three-year period, pushed the elevator button to the sixth floor when the applicant was on it. Assuming, without determining, that these allegations are a series of incidents within the meaning of section 34(1) of the Code, and are thus timely, do these allegations, without something more, have a reasonable prospect of success? In my opinion, they do not.
39While I understand the applicant’s position that “the majority of blacks” work on the sixth floor and she self-identifies as being African Canadian and no longer worked on the sixth floor when these incidents took place, there is no reasonable prospect that these allegations will succeed. When pressed during the call, the applicant could not provide the names of the employees, or the dates upon which they happened. Furthermore, she provided no context, including whether she was alone or with others in the elevator, and her failure to provide this information becomes important as her allegations about this treatment commence in February 2009 shortly after she was promoted. Even if I accept her explanation that she tried to block these situations from her mind, hoping that they would go away, at best, her allegations on this issue are speculative and vague, such that the respondent could not possibly be capable of now responding to her allegations.
40Further, the applicant did not specify how such conduct constitutes differential or adverse treatment within the meaning of “discrimination” as outlined above.
41As for the allegations that the applicant raised this issue with senior management, who did not investigate further, I find that this also has no reasonable prospect of success notwithstanding a factual dispute between the parties on this issue. In this regard, I note that the applicant alleges that she told Mr. Revill and Mr. Davidson about the elevator incident, with the respondent denying that she raised this issue with them. The role of the Tribunal, on a summary hearing, is not to resolve factual disputes or make findings of credibility as no witnesses have testified.
42Even if I accept for the purposes of this summary hearing that the applicant did tell Mr. Revill and Mr. Davidson about the elevator incidents, which the respondent denies, that such allegations are timely, despite Mr. Revill leaving the respondent in July 2011, and that the respondent failed to investigate into her concerns, I find that this does not have a reasonable prospect of success. The basis for my conclusion is that the applicant’s complaints about the elevator treatment are so general and vague given that the applicant is not able to recall dates, employees involved, and/or context, and did not claim that she provided these details to the respondent, that I find that there is no reasonable chance of success that the respondent’s alleged failure to investigate would violate the Code.
43Accordingly, her allegations pertaining to para. 5 e have no reasonable prospect of success and are dismissed.
44Para. 5 f, above, describes the chef’s instructions to the applicant about taking leftovers to the call centre, where the chef assumed the applicant worked. This allegation also has no reasonable prospect of success and is dismissed.
45Here, even assuming the allegations in para. 5 f to be true, the applicant did not point to any disadvantage or adverse impact that she experienced in this situation. Accordingly, the allegation in para. 5 f is dismissed as having no reasonable prospect of success.
46Even if I were to consider the allegations in para. 5 e and f together as being part of a general allegation that there was a poisoned work environment, which can manifest itself in very subtle ways, I do not find that there is a reasonable prospect of success. Again, this is based upon the lack of details pertaining to the elevator treatment and the assumptions upon which the applicant has based the chef’s comments. For these reasons I conclude that the applicant has no reasonable prospect of establishing a poisoned working environment occurred.
47With respect to the allegations about the wage differential between the applicant and her co-worker, as summarized in para. 5 g and discussed with the director in 5 h, above, I find that they also have no reasonable prospect of success and are dismissed.
48In the Response, the respondent set out a variety of reasons why the applicant and her co-worker had different salaries, including the co-worker having considerably more service with the respondent than the applicant did, and the co-worker holding a higher position than the applicant did prior to becoming an owner service representative. The respondent also asserted that the co-worker’s salary was red-circled upon obtaining the owner service representative position, such that she did not receive any salary increases, and that over the years the applicant’s wages were increased to bring her salary in line with the co-worker’s. The applicant did not address any of these points in her Reply. In the CAD, the Tribunal advised the applicant to be prepared to respond to the arguments in the Response to the Application. During the call, the applicant acknowledged that the co-worker had more service than she did before her promotion, but she did not address these other points.
49While it is not the role of the Tribunal during a summary hearing to determine the veracity of information contained within a Response, which can only be determined following a hearing on the merits, there are times when the information in the Response becomes relevant in a summary hearing. For example, in Kandiah v. Morrison Lamothe Inc., 2012 HRTO 1725 at para. 31, the applicant alleged that he had been laid off in a discriminatory manner and had not been recalled. In its response, the respondent submitted that the collective agreement contained language pertaining to layoffs and recalls based upon seniority and skills and ability in explaining both the applicant’s lay off and his failure to be recalled. In dismissing that part of his Application, the Tribunal noted that the applicant’s failure to respond to this part of the respondent’s response contributed to its finding that his allegations had no reasonable prospect of success.
50Similarly, the applicant’s failure to address the respondent’s reasons for the pay differential between her and her co-worker becomes relevant in determining whether this allegation has a reasonable prospect of success. The applicant acknowledged during the call that the co-worker had longer service working for the respondent, but she did not address or challenge the respondent’s other rationales, such as the higher position held by the co-worker, behind the pay differential. Accordingly, the applicant is left acknowledging that the respondent paid a more senior employee a higher wage, and yet claiming that she received a lower wage for discriminatory reasons. In my opinion, this assertion, by itself, is not sufficient to prove a connection to the Code for a wage differential between the applicant and her co-worker. Accordingly, this allegation, as well as her allegation about her discussion with the director in paragraph 5 h above is dismissed as having no reasonable prospect of success.
51The Application is dismissed.
Dated at Toronto, this 7th day of March, 2014.
“Signed by”
Alison Renton
Vice-chair