Debby Reiner v. The City of Sarnia and the Canadian Union of Public Employees, Local 2713, 2014 HRTO 498

Human Rights Tribunal of Ontario

Between:

Debby Reiner Applicant

-and-

The City of Sarnia and the Canadian Union of Public Employees, Local 2713 Respondents

Decision

Adjudicator: Douglas Sanderson Date: April 9, 2014 Citation: 2014 HRTO 498 Indexed as: Reiner v. Sarnia (City)

Appearances

Debby Reiner, Applicant Self-represented

City of Sarnia, Respondent Steven Wilson, Counsel

Canadian Union of Public Employees, Local 2713, Respondent Paul O’Ryan, Counsel

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 sexual orientation and reprisal.

Background

2In her Application, the applicant describes herself as being gay and living in a same-sex relationship with another employee of the respondent City (the "City"). The applicant is a seasonal employee for the City, working between approximately April to October each year. The applicant asserts that she worked on the "Ball Crew" in the 2012 season, but was assigned to work in an arena in 2013. The applicant states that she complained of being isolated in this position because she started her work days at a different location than the rest of the crew she worked with and her supervisor found this arrangement to be inefficient. The applicant, who stated that she is trained in horticulture, asserts that she was refused a horticultural position for which she applied. The applicant alleges that while assigned to the arena she was subject to open discrimination by other arena workers. The applicant states that her shoes would be hidden, coworkers would "snicker" and gossip as she walked past. The applicant alleges that this behaviour amounts to discrimination because of sexual orientation and reprisal for a previous application to the Tribunal (see below), although she acknowledged in the Application that she did not know whether her sexual orientation and the fact that she is in a same-sex relationship was the basis for the discrimination she experienced.

3The applicant states that Sean Keck, the president of Canadian Union of Public Employees Local 2713 ("CUPE”), filed a complaint against the applicant with the City and then purported to represent her in grievance proceedings. The applicant states that this amounted to a conflict of interest and that he should have recused himself. As a result, she was left with no union representation regarding her issues with the City.

4In its Response, the City noted that the applicant had worked at the Germain Park Greenhouse, but had been removed from that location in April 2011 following an investigation of complaints about her from coworkers. The City assigned the applicant to Canatara Park for the 2011 season. CUPE grieved at this work assignment on the applicant's behalf, which the parties settled. The applicant, however, was not returned to Germain Park. The issue of removing applicant from the Germain Park Greenhouse was an issue in a previous application to the Tribunal, 2012-11300-I, filed by the applicant, which had been heard, but not decided at the time the pleadings in this matter were filed.

5The City acknowledged that it assigned the applicant to what she described as the Ball Crew in 2012, which included looking after the buildings at sports fields. The City also acknowledged that in this assignment the applicant started her work day at Clearwater Arena, rather than the Germain Maintenance Yard with the rest of the crew, because of the proximity to Germain Park Greenhouse. The City acknowledged that the applicant expressed that she felt isolated by this arrangement and that her supervisor was concerned about the inefficiency of having the applicant start each day apart from the rest of the crew. To address these concerns, the City assigned the applicant to Clearwater Arena for the 2013 season, where she would work with the same crew all day and in the same location. The City states that the applicant was not selected for a gardening position working at City Hall because the position was based out of the Germain Park Greenhouse, which eliminated the applicant from consideration. The City denies that any of its actions amount to discrimination or reprisal under the Code.

6CUPE also provided an account of the history to the dispute, which does not differ significantly from the City's and is unnecessary to repeat. CUPE states that it was not responsible for any of the work assignments the applicant received and, accordingly, could not have breached the applicant's Code rights in this regard. CUPE also submitted that the applicant provided no particulars regarding her allegations. CUPE states that the allegations directed at Mr. Keck relate to whether he represented the applicant properly in his capacity as President of the Local Union. CUPE submitted that union representation is a matter outside the Tribunal's jurisdiction. CUPE denies that it or Mr. Keck were involved in having the applicant removed from the Germain Park Greenhouse and submitted that, in any event, that issue formed part of her earlier application to the Tribunal.

7Both respondents submitted that the applicant's allegations regarding her work assignment in 2012 are outside of the one-year time limit in section 34(1) and are untimely. The respondents state that this work assignment was given to the applicant in April 2012, but she did not file the Application until May 27, 2013.

Decision in Application 2012-11300-I

8On September 11, 2013, the Tribunal released its decision in Reiner v. Sarnia (City), 2013 HRTO 1520, in which the Tribunal dismissed application 2012-11300-I, the applicant's earlier application, in its entirety. In that application, the applicant alleged that she had been subject to harassment by co-workers and supervisors, that co-workers fabricated a complaint against her, that the investigation into the complaint was tainted by discrimination, that the City did not investigate her allegations of discrimination and harassment and that she was improperly transferred to Canatara Park. Amongst other things, the Tribunal found that the evidence did not establish that the complaint against the applicant was fabricated for discriminatory reasons or that the applicant's coworkers harassed her because of her sexual orientation, and that the decision to transfer the applicant to Canatara Park in 2011 was not discriminatory. The Tribunal also found that the decision to transfer the applicant away from Canatara Park (to the Ball Crew) the next season, i.e., 2012, was the result of a personality conflict between the applicant and the lead-hand for that location and was also not discriminatory under the Code.

Summary Hearing

9By Case Assessment Direction (“CAD”) dated September 17, 2013, the Tribunal ordered a summary hearing to determine whether the Tribunal should dismiss this Application, in whole or part, because it has no reasonable prospect of success or for delay. The Tribunal held a summary hearing by teleconference on January 15, 2014.

Analysis and decision

Reasonable Prospect of Success

10Rule 19A.1 of the Tribunal’s Rules of Procedure provides:

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.

11In Dabic v. Windsor Police Service, 2010 HRTO 1994, the Tribunal made the following comments at paragraphs 8-9:

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.

12The Tribunal has stated on many occasions that it does not have a general power to deal with allegations of unfairness. See for example: Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, Szabo v. Office of a Member of Parliament of Canada, 2011 HRTO 2201 and Badvi v. Voyageur Transportation, 2011 HRTO 1319. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, colour or ethnic origin. 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. At the summary hearing stage, the Tribunal does not determine whether the applicant is telling the truth or assess the impact of the treatment they experienced. There is no question that acts of unfairness that are not legally discriminatory can cause significant harm.

13At a summary hearing, the test the Tribunal applies is that of no reasonable prospect of success, which is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The mere fact that a person identified by a prohibited ground of discrimination experiences some kind of disagreeable or unfair treatment is not generally sufficient to support an inference of discrimination. The 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. However, if the applicant is unable to point to circumstances beyond his or her own assumptions or belief, the application may be found to have no reasonable prospect of success.

14Section 8 of the Code provides:

Every person has a right to claim and enforce his or her rights under this Act, to institute and participate in proceedings under this Act and to refuse to infringe a right of another person under this Act, without reprisal or threat of reprisal for so doing.

The prohibition against reprisal protects individuals from intimidation and retaliation that might deter them from claiming and enforcing their rights under the Code. A reprisal claim is distinct from allegations of discrimination because an applicant must establish at a hearing on the merits of the application that the respondent intended to punish or retaliate against an applicant because he or she asserted his or her Code rights. Accordingly to proceed beyond a summary hearing, the applicant must point to some evidence that could establish such an intention and a link to the respondent’s alleged actions.

15The applicant filed the Application on May 27, 2013. Accordingly, the incidents allegedly occurring after May 27, 2012 come within the one-year time limit in section 34(1). The incidents involving the City in this timeframe are (1) that she was subject to harassment during the 2012 season, (2) that she was not selected for a horticultural position working at City Hall, and (3) she was transferred from the Ball Crew to Clearwater Arena in 2013.

16The harassment the applicant alleges came in the form of "snickering" as she went past coworkers, gossiping, and hiding or moving her shoes. The applicant identified the person alleged to be moving her shoes and in her submissions during the hearing she indicated that this activity had stopped following a complaint to her supervisor. The applicant, however, made very little in the way of other submissions regarding these allegations. In particular, the applicant did not point to any evidence that she has or has reasonably available to her that would connect this behaviour to her sexual orientation or that would support the inference that the impugned behaviour was intended as retaliation for the applicant asserting her human rights by filing an application to the Tribunal. Consequently, I find these allegations have no reasonable prospect of success.

17The applicant submitted that she made the City aware that she wished to work outside and applied for the horticultural job working at City Hall. The applicant stated that she never received a response regarding either issue. The applicant also submitted that she has the most seniority of the seasonal workers and therefore should have been awarded the gardening job at City Hall. The respondent acknowledged that the applicant was not placed in this position, but explained that the position required daily attendance at Germain Park Greenhouse, which was not feasible in light of the outcome of the complaint/investigation of the applicant. In Reiner, above, the Tribunal found that the decision to transfer the applicant away from the Germain Park Greenhouse was not discriminatory, and that the complaint and investigation leading to the transfer were also not tainted by discrimination. The applicant pointed to no evidence contradicting the City’s description of the position’s requirements or any new evidence that would indicate that the City’s decision to keep her out of the Germain Park Greenhouse was related to her sexual orientation or was intended as retaliation for her earlier application to the Tribunal. The fact that the City did not respond to her may have been unprofessional or unfair, but without evidence linking these omissions to a prohibited ground of discrimination the applicant has no reasonable prospect of demonstrating that the decision not to select her for this position violated her Code rights.

18In her Reply and in her submissions during the summary hearing, the applicant stated that the assignment to Clearwater Arena was extremely unpleasant for her because she was required to perform indoor maintenance/cleaning duties rather than working outside with flowers, her chosen vocation. The applicant also submitted that she had performed well in the Ball Crew the previous season and received no explanation for the assignment to the arena in 2013. The applicant therefore understood the assignment to be a reprisal. The applicant clearly did not enjoy working at Clearwater Arena, but this and the fact that she received no explanation for the assignment alone would not in my view suffice to establish an intention to retaliate. The applicant was required to point to evidence that could establish that the City’s actions were intended as retaliation for asserting her human rights, i.e., her previous application to the Tribunal, but did not. In any event, there is no dispute that the applicant complained about being isolated from the other members of the Ball Crew because she did not begin the day with them at the Germain Maintenance Yard and that her supervisor found the division of the crew in this manner to be inefficient. The City states that it solved this mutual problem by assigning the applicant to the Clearwater Arena where she could be part of the crew there without having to attend at the Germain location. The applicant pointed to evidence that the City hired three new seasonal employees for the Ball Crew in 2013, but she had already complained about the arrangements necessary for her to work in that assignment. The applicant did not point to any other potential work assignment that was both available and did not require attending at the Germain location. The applicant did not like the City's solution to her complaint, but in my view she has no reasonable prospect of success in showing that the assignment to Clearwater Arena was retaliation for asserting her human rights.

19The applicant submitted that Mr. Keck, the Local President, was meeting with the City’s Human Resources Department about her at the same time as he purported to represent her in her work-related disputes with the City. When I asked the applicant to describe the link between this alleged behaviour and the Code, the applicant stated that she did not know why Mr. Keck acted in this manner, but in her view he was working against her. The applicant submitted that the only explanation for his behaviour was discrimination. Assuming the applicant’s allegations to be true, it may be that Mr. Keck did not represent the applicant properly, but such impropriety comes within the Tribunal’s jurisdiction if, and only if, there is evidence linking it to a Code ground. The applicant did not point to any such evidence that she has or has reasonably available to her and simply made the bare assertion that the only explanation is discrimination. In these circumstances, I find that the allegations against CUPE have no reasonable prospect of success.

Delay

20Section 34(1) and (2) state as follows:

(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.

21The applicant also asserts, somewhat ironically, that assigning her to the Ball Crew in 2012 was discriminatory. Work assignments for seasonal employees, however, occur in April of each year and during the summary hearing the applicant estimated that she received the assignment on or about April 15, 2012. Accordingly this incident did not occur within one year of the date on which the applicant filed the Application, May 27, 2013. The applicant submitted that the incident of assigning her to the Ball Crew in 2012 formed part of a series of incidents with the timely incidents of alleged discrimination in the Application. I have found, however, that the other timely allegations in the Application have no reasonable prospect of success and the Tribunal has held that an allegation which has no reasonable prospect of success cannot form part of a series of incidents for the purposes of section 34(1) of the Code. See: Chappell v. Securitas Canada Limited, 2012 HRTO 874 and Garland v. Canusa-CPS, 2012 HRTO 1309. Consequently, the assignment to the Ball Crew does not form a series with a timely incident. The applicant made no submissions to the effect that the delay in bringing this allegation was made in good faith. Accordingly, the allegations regarding the applicant's assignment to the Ball Crew 2012 are dismissed for delay.

22I also note that the Tribunal already found that the applicant’s work assignment in 2012 was not discriminatory in Reiner, above. Accordingly, this allegation may well have been dismissed as an abuse of process and/or pursuant to section 45.1 of the Code. The parties were not required to address these issues at the summary hearing and given my conclusion that this allegation must be dismissed for delay it is unnecessary to address them.

23The Application is dismissed.