Lewis v. Canadian Mental Health Association – Niagara Branch, 2014 HRTO 391

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

David Lewis

Applicant

-and-

Canadian Mental Health Association – Niagara Branch and Kelly Falconer

Respondents

DecisION

Adjudicator: David Muir

Date: March 19, 2014

Citation: 2014 HRTO 391

Indexed as: Lewis v. Canadian Mental Health Association – Niagara Branch

APPEARANCES

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David Lewis, Applicant ) Self-represented

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Canadian Mental Health Association – ) Natasha Skupsky, Counsel

Niagara Branch and Kelly Falconer, )

Respondents )

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1This is an Application filed on September 12, 2013 pursuant to section 34(1) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleging discrimination in employment on the basis of sex.

2In a Case Assessment Direction issued on October 7, 2013 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 it will succeed.

3A summary hearing was held on March 10, 2014 by telephone conference call. All parties participated. Counsel for the Canadian Union of Public Employees, Local 1287, the applicant’s union and a potentially affected party, was also present on the call.

4The Application is dismissed for the following reasons.

5Rules 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.

6Details about the nature of a summary hearing were set out as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9:

In some cases, the issue at the summary hearing may be whether, assuming all the allegations in the application to be true, it has a reasonable prospect of success. In these cases, the focus will generally be on the legal analysis and whether what the applicant alleges may be reasonably considered to amount to a Code violation.

In other cases, the focus of the summary hearing may be on whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that his or her Code rights were violated. Often, such cases will deal with whether the applicant can show a link between an event and the grounds upon which he or she makes the claim. The issue will be whether there is a reasonable prospect that evidence the applicant has or that is reasonably available to him or her can show a link between the event and the alleged prohibited ground.

7The applicant is a peer support worker employed by the respondent in a transitional home setting. The applicant was assigned to work with a client who after a number of face to face interactions with the applicant made a complaint about him on or about September 8, 2013. The client revealed during the investigation of the complaint that she had experienced trauma at the hands of a male person in the past and was uncomfortable with the applicant, a male, being in her housing unit. At a team meeting on September 9, 2013 a number of workplace issues were discussed including the assignment of the applicant to work with this client.

8The entry for this issue in the Minutes of this meeting is reproduced here:

Client was written up as the result of recent disrespectful behaviour with Dave. Given client’s report of past trauma with males and discomfort around Dave after recent incident, as well as her admission of aggression issues, Kelly directed Dave to not enter the client’s Step Up Unit. Brandee recommended that Dave not put himself in a position where he would be alone with the client at all. Follow up meeting with the client to discuss plan will be held tomorrow at 1:30 pm with Brandee and Kelly present.

The respondent asserts that this direction was pending further investigation but the applicant claims that he was not told this. At this meeting the applicant indicated that he felt that this decision was discriminatory.

9The Application was filed within a day or two of this meeting although there is no indication that the respondents were made aware of this fact until the Application was delivered to them on October 9, 2013.

10Subsequent to the filing of the Application there were at least two meetings between the applicant and respondents related to this Application. In one meeting on September 16, the applicant met with the respondents to discuss his behaviour at the September 10, 2013 meeting. This meeting was described by the respondents as non-disciplinary and was requested for the purpose of discussing the applicant’s behaviour at the September 9, 2013 team meeting. The minutes of that meeting indicated that a number of issues arising in the September 9 meeting were discussed. The issue with respect to the applicant’s claim of discrimination appeared to be not that the applicant had raised the concern but that he raised it in the context of a team meeting. The respondents believed that it was not appropriate to raise the issue in that context, the applicant disagreed. It appears that the substance of the applicant’s complaint was also canvassed. The applicant states his position, which he repeated at the hearing, that the client knew that there were males in the workplace with whom she might come into contact and accordingly if she had or developed an issue with a male support worker she should have declined the services offered by the respondents. The respondents stated their position that the decision was taken for the safety of the staff member and would stand. The minutes also reflect the fact that the applicant believed that the September 16 meeting was disciplinary notwithstanding the assurances of the respondents to the contrary.

11A second meeting involving the same participants took place immediately after and dealt specifically with the client complaint. The minutes of this meeting record a discussion of the interaction between the applicant and the client. At the conclusion of the meeting the applicant is recorded as asking if the complaint could lead to discipline. The respondent Falconer is recorded as saying “not at this time”.

12The respondents assert that on September 17, 2013 the applicant was advised that he had done nothing wrong and that there would be no discipline. The applicant denies being told this.

13I accept the applicant’s assertion that his being directed not to have contact with this client might have been somewhat distressing for him and in some sense unfair, however as the Tribunal has explained on many occasions it does not have the general power to deal with allegations of unfairness. It can only deal with alleged discrimination or harassment on the grounds set out in the Code. To succeed in an Application, an applicant must be able to prove discrimination on the basis of a Code ground. Although the applicant might have reasonably worried about discipline at the time he filed the Application – although that discipline might have been for issues unrelated to the Code issues – it is clear that in fact the applicant was not disciplined and suffered no tangible adverse consequences – he was re-assigned from one duty to another.

14The applicant argues that he was treated differently than a female staff person would have been if the roles were reversed. However I observe that the applicant has no evidence that this is the case – it is an assertion.

15The applicant also argues that he was singled out in respect of his alleged disrespectful behaviour at the September 9 team meeting. The applicant asserts that others of his colleagues behaved inappropriately at this meeting. He did concede however that he does not know whether or not any one else was invited to such a meeting. In any case, even if somehow related to his having raised a Code issue at the September 9 meeting, which is far from clear at this stage, the applicant suggested nothing that could lead me to conclude that the respondents’ issue was not with the various issues raised by the applicant but the way in which the issues were raised. To be clear the raising of a Code issue by an employee does not entirely insulate them from the consequences of how they might have raised the issue. I also note in this regard that the applicant believes that the respondents’ concern was that he had invited a union representative to the meeting to ensure compliance with the collective agreement in respect of some of the non-Code issues being discussed. Even accepting the applicant’s belief that this was the case it raises no Code issues.

16At the end of the day while unfortunate and as indicated above in some sense unfair for the applicant, what occurred here was not discriminatory under the Code. In considering these issues, context, as always, is critical. In this case the respondents were required to respond to circumstances raised by a client in need of their assistance and protection as well as protect the well-being of their employee, the applicant. In the particular circumstances of a vulnerable woman who asserted a level of discomfort with an unescorted male being in her dwelling unit, I find that the applicant has no reasonable prospect of establishing that the respondents’ response was discriminatory under the Code. I also agree with the respondents that the applicant’s solution to the problem – that the client decline the services offered by the respondents or move out when the issue arose – would not be appropriate in these circumstances.

17For all of these reasons the Application has no reasonable prospect of success and is dismissed.