Philp v. North York General Hospital, 2014 HRTO 427

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Aludia Philp Applicant

-and-

North York General Hospital and Gladys George Respondents

INTERIM DECISION

Adjudicator: Kathleen Martin Date: March 26, 2014 Citation: 2014 HRTO 427 Indexed as: Philp v. North York General Hospital

APPEARANCES

Aludia Philp, Applicant Self-represented

North York General Hospital and Gladys George, Respondents Scott T. Williams, Counsel

Introduction

1This is an Application filed under s. 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 and reprisal.

2By Case Assessment Direction dated September 12, 2013, the Tribunal directed, on its own initiative that a summary hearing would be held pursuant to Rule 19A of the Tribunal’s Rules of Procedure 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 will succeed. The respondents were not required to file a Response.

3At the outset of the summary hearing, I sought clarification from the applicant as to the scope of her allegations. The applicant clarified that she was not alleging reprisal. In the circumstances, the allegation of reprisal is removed from the Application.

4The applicant, who self-identified as having African-Jamaican background, submitted that she was alleging that she was discriminated in her termination from employment on April 18, 2013 and in prior discipline issued to her on various dates in the preceding two years.

5As the respondents have not yet filed a response, I have based my decision below only on the allegations made in the Application and the submissions made during the summary hearing.

Background

6The Application arises out of the applicant’s employment as a personal support worker at North York General Hospital. The applicant was employed for 12 years with the hospital respondent. The applicant was terminated on April 18, 2013 following an incident on March 14, 2013 arising from the care of a resident. Among other things, the letter of termination states that the applicant’s behaviour demonstrated negligence and that the applicant had admitted to influencing and pressuring her colleague (who was also involved with the resident) to provide a false statement. The termination letter also references four other incidents involving practice and performance issues resulting in a disciplinary written warning on May 5, 2011, a disciplinary suspension on April 5, 2012, a counselling letter on May 30, 2012 and a disciplinary suspension on September 11, 2012.

7The Application was filed against the applicant’s former employer and Ms. George, the Director of Care, who I presume oversaw the area where the applicant was employed. Ms. George is also the author of the termination letter and was identified as being the individual who disciplined the applicant in two other incidents (the applicant was unable at the time of the summary hearing to recall the details of the two other incidents).

8At the summary hearing, I asked the applicant to explain how she would prove a link between the incidents relied on and race, and in particular, to point to the evidence that she would present to prove that her race was a factor in why she was terminated and in the earlier incidents.

9The applicant submits that in the incident that led to her termination, her colleague who is white also admitted to everything he did (which was described as being inconsistent with proper protocol), but he was not terminated. The applicant describes her colleague as a “new” employee. The applicant submits that she believes that she was treated differently because she is black.

10The applicant also relies on a statement that Ms. George allegedly made that she does not like to work with “black people”. The applicant states that this statement was reported to her after she was terminated by a former colleague. She alleges that the purported statement was made during a meeting attended by a union representative and that Ms. George allegedly qualified her remark by stating that she did “not mean it like that”. The applicant states that at a hearing, she would be calling the union representative and her former colleague as witnesses.

11The applicant also states that Ms. George did not like her very much and had asked staff that if the applicant did anything to report back to Ms. George.

12In response, the respondents argue that the applicant had not presented sufficient information on which the Tribunal could conclude there was a reasonable prospect that the applicant would be successful at hearing. Among other things, the respondents argue that although the applicant’s colleague involved in the incident was white, the mere claim that the applicant was singled out is insufficient to establish discrimination particularly when the applicant has not pointed to any evidence that she and her colleague had a similar record. Further, the respondents point to aspects of the alleged incident such as the applicant’s counselling to hide information as being relevant and reasonable for the respondents to take into account. Finally, in response to the alleged comment, the respondents submit that in the absence of contextual details, there is not enough information to know if there is a connection between the statement and the termination.

Decision

13At this stage, the applicant’s allegations are considered on the basis of the Application and the submissions made. The facts alleged are assumed to be true for purposes of the summary hearing.

14Having considered the factual allegations submissions made, I am unable to conclude that the applicant has no reasonable prospect of success in establishing a link between the events alleged to have occurred and race.

15The Application will continue in the Tribunal’s process.

16The applicant is required to put the additional factual allegations made in the summary hearing in writing (i.e. the alleged comments referenced in paragraph 10) so that the respondents may respond to all of the applicant’s allegations when they file their Response(s) to the Application. For clarity, within 14 days of the date of this Case Assessment Direction, the applicant shall file details in writing of what happened, when the alleged comment(s) were made and who was allegedly involved and provide a copy of the same to the respondents.

17The respondents are directed to file their Responses to the Application within 35 days of receiving the applicant’s subsequent particulars.

18The applicant may file her Reply to the Responses within 14 days of receiving the Responses in accordance with the Tribunal’s Rules.

Summary of Orders and Directions

19The Tribunal orders and directs:

• The allegation of reprisal is removed from the Application;
• The Application will continue to be processed;
• Within 14 days of the date of this Case Assessment Direction, the applicant shall file details in writing of the alleged incident referred to in the summary hearing and summarized in paragraph 10 of this Interim Decision including what happened, when the alleged comment(s) were made and who was allegedly involved and provide a copy of the same to the respondents.
• Within 35 days of receiving the applicant’s particulars, the respondents are directed to file their Responses (Form 2) to the Application; and
• Within 14 days of receiving the Response(s), the applicant may file her Reply to the Responses in accordance with the Tribunal’s Rules of Procedure.

20I am not seized.