Patricia Baichan v. Assante Capital Management Ltd. and Dixie Allen, 2014 HRTO 592

Human Rights Tribunal of Ontario

Between:

Patricia Baichan Applicant

-and-

Assante Capital Management Ltd. and Dixie Allen Respondents

Decision

Adjudicator: Ken Bhattacharjee Date: April 28, 2014 Citation: 2014 HRTO 592 Indexed as: Baichan v. Assante Capital Management Ltd.

Appearances

Patricia Baichan, Applicant Sajjad A. Najem, Representative

Assante Capital Management Ltd. and Dixie Allen, Respondents K.C. Wysynski, Counsel

Introduction

1The applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the "Code"), which alleged that the respondents subjected her to discrimination and reprisal.

2The purpose of this Decision is to decide whether the Application should be dismissed on a preliminary basis because it is untimely and has no reasonable prospect of success. The parties attended a summary hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed this issue. I have decided to dismiss the Application. The following are my reasons for the dismissal.

BACKGROUND

3The individual respondent operates a financial services business under the banner of the organization respondent. The applicant worked for the individual respondent in the area of client administration during two time periods: first, between 1999 and 2003 or 2004, and second, between 2005 and November 2011.

4In early November 2011, the applicant's employment with the individual respondent ended. There is a dispute between the parties as to when and how the applicant's employment ended. The individual respondent alleges that the applicant resigned on November 2, 2011. The applicant, on the other hand, alleges that the individual respondent fired her on November 4, 2011.

5On September 27, 2012, the applicant filed an Application with this Tribunal, which alleged that the respondents had discriminated against her with respect to employment because of her race, colour, ethnic origin, and creed, and subjected her to reprisal. No other Code grounds were checked off in the Application.

6In the narrative of her Application, the applicant self-identified as "West-Indian/black" with respect to race, "East Indian" with respect to ethnic origin, and "Hindu" with respect to creed, and identified the individual respondent as having a similar background, but a different creed (Christian).

7The applicant also made the following specific allegations of harassment and discrimination:

1. The individual respondent demanded that the applicant provide her with all the computer passwords that the applicant used for private client documents, and the applicant was not allowed to change the passwords.

2. The individual respondent often forced the applicant to prepare documents that were outside the scope of her regular job duties and expertise.

3. The individual respondent harassed the applicant if she was not available to pick up her clothes from the dry cleaner.

4. The individual respondent did not allow the applicant to take home complimentary gifts, letters and cards from clients, and kept them in the office for herself instead.

5. Whenever the individual respondent was upset, she would find a fault or an error in something that the applicant had done, and tell her to leave the office, but would later pretend that nothing had happened.

6. In March/April 2011, the individual respondent interviewed candidates for a new position, and then hired her niece, whom the applicant trained. The individual respondent's behaviour and attitude towards the applicant then rapidly changed.

7. On November 2, 2011, the individual respondent asked the applicant to do personal tasks for her, which she knew would upset her, and then humiliated her by telling her that she should do them on the same day and not be a lazy employee as she usually is.

8. On November 4, 2011, the individual respondent told the applicant to leave the office because she was fired.

8The applicant explained that the above incidents were related to her race, colour, ethnic origin, and creed for the following reasons:

1. The individual respondent subjected the applicant to ill treatment and "foul talk" related to her race, and told her that she reminded her of her past.

2. The individual respondent subjected the applicant to ill treatment because she did not like her skin colour, and hired a person of a different skin colour.

3. Whenever the applicant celebrated her ethnic events, the individual respondent made demeaning jokes or "foul talk" about those events.

4. The individual respondent made ill comments about the applicant's faith because she did not believe in her faith. The individual respondent also often asked the applicant why she attended temple, and when there were lunch invitations for work, the individual respondent told the applicant that she had to attend, even if she was fasting.

9The applicant provided similar explanations for the Code grounds of ancestry, place of origin, and citizenship, and briefly mentioned harassment and discrimination because of gender, but, as noted in para. 5 above, these grounds were not checked off in her Application.

10The applicant did not provide an explanation as to how the respondents subjected her to reprisal.

11On December 6, 2012, the individual respondent filed a Response, which denied the allegations of discrimination and reprisal, and requested that the Application be dismissed on a summary basis because it did not provide a factual basis to sustain a valid claim of discrimination.

12On January 24, 2013, the applicant filed a Reply, which objected to the individual respondent's request to dismiss her Application on a summary basis, and requested that the individual respondent be ordered to produce all documents in her possession related to the applicant's employment in order to allow her to establish the facts of her case.

13The only additional particulars that the applicant provided in support of the allegations in her Application were that the individual respondent often mentioned that the applicant reminded her of her abusive father, and that was the reason for her behaviour towards the applicant.

14On July 26, 2013, the individual respondent filed a Request for an Order During Proceedings ("RFOP"), which requested that the Tribunal order the applicant to provide full material facts and particulars in support of her allegations of harassment, discrimination and reprisal.

15On August 15, 2013, the applicant filed a Response to the RFOP, which stated that she had already provided all the facts relating to the incidents of harassment, discrimination and reprisal, including dates and times.

16On August 28, 2013, the Tribunal issued an Interim Decision, 2013 HRTO 1466, which made the following finding and direction at paras. 4-5:

(...) I agree with the respondents that the Application is largely devoid of particulars of alleged discrimination and this should be remedied before the Application proceeds further in the Tribunal process. The applicant must provide full particulars of the general allegations she has made. This will include a description of the thing done or said to or about her, by whom these things were done and when these things were said or done.

The applicant is directed to deliver and file complete particulars of her allegations of alleged discriminatory treatment she claims to have experienced while employed by the respondents....

17On October 2, 2013, the applicant filed written submissions, which stated that the applicant can remember the events that took place, but the individual respondent has the documents that show when the events took place. She also stated that there is no exact date or time for all the events that took place because they happened during the entire duration of her employment.

18The applicant also provided the following additional particulars in support of the allegations in her Application:

1. The individual respondent often made fun of, and disliked, the applicant's appearance and food because it reminded her of her father and her past.

2. The individual respondent believes that the applicant's appearance and food are the lowest of all.

3. The individual respondent would not allow the applicant to bring her kind of food to the office because it was not to her standard.

4. The individual respondent told everyone else in the office that the applicant smelled bad because she smoked.

5. When the applicant wore Indian clothing, the individual respondent would ask her what religious events she was attending.

6. When the individual respondent brought food items into the office, she would hand them to other employees, but throw them on the applicant's desk.

19On November 13, 2013, the individual respondent filed a Request for Summary Hearing, which requested that the Application be dismissed on a preliminary basis because it is untimely and has no reasonable prospect of success. Specifically, she stated that the applicant has not pled that any of the incidents that took place prior to the alleged termination of her employment occurred within the one-year time limit in the Code; the applicant has failed to plead any material facts that would link the individual respondent's alleged unfair conduct to unlawful discrimination; and the applicant has failed to provide particulars with respect to her allegation of reprisal.

20On December 23, 2013, the applicant filed a Response to the Request, which opposed holding a summary hearing. The applicant stated that a summary hearing would not resolve the issues before the Tribunal because the individual respondent has not yet disclosed all the documents relating to the applicant's employment. She also stated that the individual respondent is trying to mislead the Tribunal by using the word "unfair" instead of "discrimination", which are technically the same.

21On January 8, 2014, the Tribunal issued a Case Assessment Direction ("CAD"), which granted the individual respondent's Request, and directed that a summary hearing be held by teleconference to decide whether the Application should be dismissed on a preliminary basis because it is untimely and has no reasonable prospect of success. The CAD also noted that the organization respondent had not filed a Response to the Application, and directed it to do so unless the applicant indicated that she did not intend to proceed with the Application against it.

22On February 28, 2014, the organization respondent filed a Response, which requested that it be removed as a respondent to the Application because it had no direct or indirect legal relationship with the applicant, and had been improperly named in the Application.

23The summary hearing took place on April 7, 2014. On the respondents' side, both the respondents and their counsel called into the hearing. However, on the applicant's side, only the applicant's representative called in. The applicant's representative stated that he did not believe it was necessary for the applicant herself to be present during the hearing.

ANALYSIS

Timeliness

24The first issue to decide is whether the Application should be dismissed in part because of a lack of timeliness. The statutory time limit for filing an application with the Tribunal and the circumstances under which a late application will be accepted are set out in subsections 34(1) and (2) of the Code:

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.

25The Application was filed on September 27, 2012. The parties agree that the allegations related to the end of the applicant's employment in November 2011 fall within the one-year time limit in the Code. The specific issue to be decided is whether the other alleged incidents of harassment and discrimination fall within the one-year time limit, and if they do not, whether the applicant's delay in filing her Application with respect to these alleged incidents was incurred in good faith, and whether substantial prejudice will result to any person affected by the delay.

26In their submissions, the respondents stated that, with the exception of the allegations related to the end of the applicant's employment, the alleged incidents of harassment and discrimination in the Application should be dismissed as untimely because the applicant has failed to provide particulars about when these alleged incidents occurred, despite being requested to do so by the individual respondent and ordered to do so by the Tribunal.

27In her submissions, the applicant simply took the position that her whole Application is timely because incidents of harassment and discrimination occurred throughout her 10 years of employment, and those incidents are linked to the termination of her employment in November 2011. She stated that she is unable to provide the exact dates or times when the incidents leading up to the termination occurred because the respondents have the documents with that information, and have not disclosed them to her. She did not address whether her delay in filing an Application with respect to these incidents was incurred in good faith.

28In my view, all of the alleged incidents of harassment and discrimination in the Application, except for those related to the end of the applicant's employment, are untimely. Although the respondents may have documents which would assist the applicant in establishing when exactly these alleged incidents of harassment and discrimination occurred, in order to meet her onus of establishing that these alleged incidents are timely the applicant must, at a minimum, provide the estimated dates when they occurred. As the respondents correctly pointed out, she has failed to do so despite being asked for, or ordered to provide, such particulars at several junctures in the process before this Tribunal.

29Therefore, I find that the alleged incidents of discrimination which relate to the end of the applicant's employment (see para. 7, 6) - 8) above) are timely because the applicant provided estimated or specific dates when they occurred (March/April 2011, November 2, 2011, and November 4, 2011), but the other alleged incidents of harassment and discrimination (see para. 7, 1) - 5), para. 8, 1) - 4), and para. 18, 1) - 6) above) are untimely because the applicant failed to provide particulars (specific or estimated dates) when these incidents occurred.

30Although the applicant essentially submitted that there was a series of incidents, she failed to provide particulars showing that any of these latter alleged incidents of harassment and discrimination occurred between March/April 2010 and November 4, 2011. Generally, incidents have not been considered by the Tribunal to be part of a series of incidents if there is a break of more than one year between incidents. See, for example, Savage v. Toronto Transit Commission, 2010 HRTO 1360 at para. 9.

31In the absence of an explanation from the applicant for the delay in filing an Application with respect to these latter alleged incidents, I am not satisfied that the delay was incurred in good faith, and it is not necessary to consider whether substantial prejudice will result to any person affected by the delay.

32Accordingly, the allegations of harassment and discrimination in the Application, which are set out in para. 7, 1) - 5), para. 8, 1) - 4), and para. 18, 1) - 6) above, are dismissed.

Reasonable Prospect of Success

33The second issue to decide is whether the remaining allegations, which relate to the end of the applicant's employment, have a reasonable prospect of success. These allegations relate to ss. 5, 8, and 9 of the Code, which provide:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

6. 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.

7. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

34Rule 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. The 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 ("Dabic") at paras. 8-10:

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.

In 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.

35The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal's process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code. See Forde v. Elementary Teachers' Federation of Ontario, 2011 HRTO 1389 ("Forde") at para. 17.

36The focus at the summary hearing was on the second branch of the Dabic test, namely, whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that the respondents discriminated against her because of the Code grounds listed in her Application, and subjected her to reprisal as defined in the Code.

37I will begin with that the applicant's allegation that the respondents discriminated against her because of her race, colour, ethnic origin, and creed when they terminated her employment.

38In their submissions, the respondents stated that this allegation has no reasonable prospect of success because it is devoid of any facts linking the end of the applicant's employment to discrimination. Rather, the respondents stated, the applicant has made general allegations of unfairness.

39In her submissions, the applicant stated that this allegation has a reasonable prospect of success because of all the incidents of harassment and discrimination over a 10-year period before the termination of her employment. She stated that the termination cannot be viewed in isolation from what happened before. She also stated that the respondents have the documents that show that there was discrimination, and have not disclosed them to her.

40In my view, this allegation does not have a reasonable prospect of success because the applicant has not pointed to any material evidence that can show a link between the end of her employment and her race, colour, ethnic origin, and creed. To begin with, the applicant stated that allegations of "unfairness" and allegations of "discrimination" are technically the same. This statement is incorrect. As set out in Dabic and Forde, above, "unfairness" and "discrimination" are not the same, technically or otherwise, and the Tribunal only has the power to deal with allegations related to the latter. Furthermore, the evidence that the applicant pointed to either does not show a link to a Code ground (see para. 7, 1) - 8) above), or, where there is a putative link, it is vague and lacking in particulars (see para. 8, 1) - 4) and para. 18, 1) - 6) above). The applicant also referred to documents that the respondents allegedly have that show that there was discrimination, but again, she did not particularize what documents the respondents have and how those documents will show a link between the end of her employment and a Code ground.

41I therefore find that there is no reasonable prospect that evidence that the applicant has or that is reasonably available to her can show a link between the end of her employment and her race, colour, ethnic origin, and creed.

42I now turn to the applicant's allegation that the respondents subjected her to reprisal. In Noble v. York University, 2010 HRTO 878, the Tribunal held at para. 33 that in an application alleging reprisal, the following elements must be established, on a balance of probabilities:

a) An action taken against, or threat made to, the applicant;

b) The alleged action or threat is related to the applicant having claimed, or attempted to enforce a right under the Code; and

c) An intention on the part of the respondent to retaliate for the claim or attempt to enforce the right.

43In her submissions, the applicant did not point to any evidence that can show that the respondents terminated her employment because she claimed or attempted to enforce her rights under the Code, and that the respondents intended to retaliate against her for claiming or attempting to enforce her rights under the Code. As such, I find that the applicant's allegation of reprisal has no reasonable prospect of success.

44Accordingly, the allegations of discrimination and reprisal in the Application relating to the end of the applicant's employment are dismissed.

Request to Remove Organization Respondent

45In view of my decision dismissing the Application, it is not necessary to address the organization respondent's request to be removed as a respondent to the Application.

ORDER

46The Application is dismissed.