Russell v. Forever Living Products Canada, Inc., 2014 HRTO 434

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Janette Russell Applicant

-and-

Forever Living Products Canada, Inc. Respondent

INTERIM DECISION

Adjudicator: Aida Gatfield Date: March 27, 2014 Citation: 2014 HRTO 434 Indexed as: Russell v. Forever Living Products Canada, Inc.

APPEARANCES

Janette Russell, Applicant Jo-Ann Seamon, Counsel

Forever Living Products Canada, Inc., Respondent Andre Nowakowski, 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, ethnic origin and age. The purpose of this decision is to address two issues:

1. whether the Applicant’s Request for an Order During Proceedings (“RFOP”) to amend her Application ought to be granted; and
2. whether the Application should be dismissed in whole or in part on the basis that it has no reasonable prospect of success.

PROCEDURAL BACKGROUND

2The Application was filed on April 18, 2013 alleging discrimination with respect to employment because of race, ethnic origin, and age. Following the receipt of a Response and a Reply, the Tribunal issued a Case Assessment Direction dated July 13, 2013 which directed on its own initiative, that a summary be scheduled for this matter pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The summary hearing was scheduled for December 3, 2013. On November 13, 2013 the applicant filed a RFOP seeking to add the ground of disability to her Application. The Respondent filed a Response to the RFOP on November 27, 2013. By letter dated November 28, 2013 the Tribunal advised the parties that submissions with respect to the applicant’s RFOP would be heard on December 3, 2013 as part of the summary hearing. Parties were given an opportunity to provide oral submissions with respect to the RFOP at the summary hearing on December 3, 2013.

Request for an Order During Proceedings

3Rule 1.7(c) of the Tribunal’s Rules of Procedure states that in order to provide for a fair, just and expeditious resolution of any matter before it, the Tribunal may “allow any filing to be amended”.

4In determining requests to amend applications under s.34 of the Code, the Tribunal generally considers the nature of the proposed amendments, the reason for the amendments, the timing of the request to amend, and prejudice to the respondent. (See, Dube v. Canadian Career College, 2008 HRTO 336, Wozenliek v. 7-Eleven Canada Inc., 2009 HRTO 926 and Selinger v. Icon Property Management Ltd., 2013 HRTO 932).

5The applicant submits that she is not claiming that she has a disability as defined in the Code. Rather, the applicant claims that she was perceived to have a disability by the respondent. Pursuant to section 10(3) of the Code a person who is not disabled may claim a breach of the Code where he or she is perceived to be disabled and is subject to discriminatory treatment because of that belief. The applicant submits that the facts about discrimination on the basis of disability or perceived disability are included in her Application, where she refers to two health-related absences and her supervisor asking her, after the second absence, if she was able to continue doing her job. Counsel for the applicant who was retained after the Application was filed with the Tribunal submits that disability ought to have been included as a ground of discrimination in light of the facts set out in the Application. The applicant also submits that the RFOP is made at an early stage in the proceedings and does not seek to add any new allegations. Given the foregoing, the applicant submits that there is no real prejudice to the respondent.

6The respondent submits that the RFOP ought to have been filed in a timelier manner; counsel for the applicant was retained on October 8, 2013 yet the RFOP was not filed until November 13, 2013. The timing of the RFOP results in prejudice to the respondent, as it has not had sufficient time to address it. The respondent also submits that the fact the applicant did not initially include disability as a ground of discrimination highlights the fact that she did not believe she had been discriminated on this ground.

7I am satisfied that the applicant should be permitted to amend the Application to include the additional ground of disability. The applicant seeks to add the ground of disability or perceived disability based on allegations already set out in the Application.

8The Request is made at an early stage in the proceedings and within one year of the last incident. No new facts need to be pleaded. The respondent made both written and oral submission with respect to the Request. In my view, allowing the amendment would not prejudice the respondent.

9In the event that I allowed the amendment, I directed the parties to make submissions on whether the Application should be dismissed in whole or in part because it has no reasonable prospect of success on the ground of disability. This is discussed below.

Summary Hearing

10The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed. It is important that this be determined at the earliest opportunity, where appropriate.

11The Tribunal cannot address general allegations of unfairness, unrelated to the Code, in areas such as employment, services or accommodation. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, gender or disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics was a factor in the treatment the applicant experienced.

12The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success. At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. Indeed, many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant financial and emotional damage.

13The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts.

14Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that they have experienced discrimination.

15The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. If the applicant is unable to point to circumstances beyond their own assumptions or belief, the application may be found to have no reasonable prospect of success.

16The parties are given an opportunity to make submissions, usually on a telephone conference call, during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.

17The primary focus in the summary hearing is on the applicant’s evidence. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events.

18The Tribunal is also mindful of the fact that in some cases the application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could assist the applicant’s case.

19Having set out the basic framework for determining whether an application should be dismissed in whole or in part for no reasonable prospect of success, I now turn to the facts of this particular case.

Analysis

20The applicant was given an opportunity to make submissions to assist the Tribunal in determining whether the Application should proceed. Specifically the applicant was asked to assist the Tribunal in understanding the connection between the respondent’s alleged actions and the prohibited ground of discrimination alleged in her Application. The respondent also made submissions in support of dismissing the Application.

21The applicant worked as a packer for the respondent. Her employment was terminated on January 18, 2013.

22The applicant is a black Jamaican woman who was 49 years old at the time of termination. The applicant’s supervisor was Chinese Canadian. The applicant alleges that in the last several months of her employment she was absent from work due to health related concerns on two occasions. One absence was in July 2012 after she hit her head against metallic-iron shelves in the warehouse. The other absence was on December 4, 2012 as she was not feeling well and called in sick.

23The Application alleges that after returning to work on December 5, 2012, the applicant’s supervisor asked the applicant what was wrong; the applicant replied that it could be her low iron levels. The supervisor is alleged to have said, “I am now in my forty (sic) and I tell myself I only have another 5 years here because I cannot be lifting these boxes.” The applicant asked the supervisor if she was questioning her ability to do her job. The supervisor responded, “Can you?” When the applicant said she could, the supervisor asked, “Are you sure?”

24The applicant also alleges that on or about December 10, 2012 a young Chinese woman had started working as a packer. Prior to this, there had been two packers: the applicant and a Chinese Canadian man. The applicant alleges that from the time the new packer started, everything the applicant did “was now wrong for Amy [her supervisor]”. The applicant was disciplined for errors made. The applicant states that the errors identified were the responsibility of others, specifically the person who picked the order and the person who double-checked the order. She further alleges that prior to this she had not been disciplined.

25The respondent argues that the two health-related absences were not due to disability, as defined in the Code, and that both absences were accommodated by the respondent. It further argues that there are no facts pleaded or evidence that the applicant has pointed to that links any of the Respondent’s actions to the applicant’s age. It argues that the context of the conversation in which the supervisor made comments on the topic of age makes it clear that the comment in no way infringed the Code. In its response, the respondent provides a different version of facts as to the contents of the conversation. The respondent also submitted that it had identified performance issues with the applicant in April 2012. It addressed the concerns with the applicant on May 4, 2012, November 22, 2012 and December 12, 2012. The applicant denies that concerns had been raised with her performance prior to December 12, 2012.

26I find that the facts set out in the Application establish a connection between the respondent’s alleged actions and the applicant’s age and disability. The alleged conversation between the applicant and her supervisor questioned the applicant’s ability to do her job after a health related absence. It also contained age-related comments. Furthermore, the timing of the discipline and termination in relation to the conversation establishes the necessary connection for the purposes of the summary hearing to the prohibited grounds of age and disability sufficient to allow the Application to continue. While the respondent has provided an alternative version of events, this will need to be resolved by findings of credibility at a hearing.

27At this stage I find that it cannot be said that there is no reasonable prospect that the Application could succeed on the grounds of age and disability. In making this determination, I am making no finding on whether the Application will ultimately succeed. I am only finding that at this time it cannot be said that there is no reasonable prospect of success.

28The applicant’s allegations of discrimination on the basis of race and ethnic origin are based on the fact that the new packer hired was a Chinese Canadian like the supervisor and the other packer. She, in essence, alleges that from that point on the supervisor started scrutinizing her work more and also started giving some of her duties to the new packer. She believed that the new packer was her replacement. The respondent denies the allegations and provides an alternative version of events. It was not disputed that the new packer was brought in through an employment agency and that she left before the applicant was terminated.

29Even if I accept the applicant’s allegations as true, there is no evidence to connect the applicant’s treatment to the prohibited grounds of race and/or ethnic origin. The applicant was black when hired and, on her account, appears to have worked for the respondent without difficulties prior to December 2012. The hiring of a Chinese agency worker who left the respondent’s employ before the applicant was terminated does not provide a basis for the applicant’s allegations or account for the alleged change in how she was being treated. Accordingly, there is no reasonable prospect that the application will succeed on the ground of race and/or ethnic origin.

ORDER

30The Application is amended to include the ground of disability.

31The Application will continue in the Tribunal’s process with respect to the grounds of age and disability.

32Should the respondent wish to amend its response to address this new ground of discrimination it may file an amended response within 14 days of the date of this decision. The applicant will have 14 days from the date of the amended response to file an amended reply if she wishes to do so.

33The parties have 14 days from the date of this decision to indicate whether they wish to participate in mediation. If both parties agree the Registrar will set a mediation date.

34I am not seized.