Sidhu v. Fitzpatrick, 2014 HRTO 676

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Narinder Sidhu

Applicant

-and-

Diane Fitzpatrick

Respondent

DECISION

Adjudicator: Dawn J. Kershaw

Date: May 13, 2014

Citation: 2014 HRTO 676

Indexed as: Sidhu v. Fitzpatrick

APPEARANCES

Narinder Sidhu, Applicant

Self-represented

Diane Fitzpatrick, Respondent

Erin Porter, Counsel

Introduction

1This Application alleges discrimination with respect to employment because of colour contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2Pursuant to a Case Assessment Direction (“CAD”) dated November 19, 2013, the Tribunal directed that a summary hearing be convened 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 was no reasonable prospect of success that the Application will succeed.

3Both parties made oral submissions at the summary hearing by teleconference.

FACTUAL BACKGROUND

4The applicant alleges her employment with the respondent was terminated because of her colour.

5The applicant was terminated from her job as a Registered Practical Nurse (“RPN”) for breach of trust on May 17, 2013. The respondent is the Executive Director of the long term care home (“the home”) where the applicant worked.

6The applicant was involved in an altercation with another employee, J.S., on February 26, 2013. Both employees were disciplined. The applicant was suspended for one day as the instigator of the altercation. The Union grieved and the outcome of that grievance, on April 16, 2013, was that the suspension was to be removed after six months if there were no further incidents.

7On May 8, 2013, the parent company that owns the home received a complaint from “Georgia” via the work email of Hunner Grewal, alleging she had witnessed certain negative events at the home while visiting her recently deceased aunt, and also maligning J.S., including making a reference to the altercation between J.S. and the applicant.

8When the respondent responded to the e-mail and asked for further details, she got no response, and therefore an investigation was launched. It was discovered that the e-mail had been sent from the work computer of the applicant’s daughter. The applicant was terminated for breach of trust in light of the investigation, which included interviewing the applicant.

9The Union grieved the termination, which included no allegations that the applicant felt she had been discriminated against on the basis of colour. After an assessment, the Union withdrew the grievance on July 18, 2013, having determined it would not be successful at arbitration.

DECISION

10The Application is dismissed on the basis that it does not have a reasonable prospect of success.

ANALYSIS

11This hearing was conducted pursuant to Rule 19A of the Tribunal’s Rules of Procedure. Rule 19A directs the Tribunal to determine is whether the Application has no reasonable prospect of success. In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paragraphs 9-10, the Tribunal provided the following guidance:

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. [Emphasis added]

12Other than alleging that the applicant had a feeling that her colour played a part in her termination and how the respondent had assigned work prior to her termination, the applicant could point to no evidence that would make a link between her termination and the ground claimed.

13The applicant did not identify any other evidence she might call to support her assertion that her colour was a factor in the respondent’s decision to terminate her employment. Neither the narrative in her Application nor her oral submissions for this summary hearing make this link – directly or by inference. When asked what evidence she had that the termination was due to her colour rather than due to the breach of trust allegations in the termination letter, she stated that the employer had made up the reason for termination. In her view the Union’s decision to withdraw the grievance was based on the fact she had only paid Union dues for two years and therefore had not paid the Union enough money for it to take her complaints seriously. This allegation is supposition on the applicant’s part.

14Even if the employer had been wrong in its decision to terminate the applicant, unfair treatment does not, in itself, constitute a violation of the Code. As the Tribunal points out in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17:

The 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.

15The applicant’s assertion that her colour was a factor is nothing more than a bald assertion or, to use the words in Forde, “mere speculation and accusations.”

16In addition, the Tribunal repeatedly has said that an applicant’s belief, even if honestly held, is not evidence upon which the Tribunal might find that discrimination has occurred. See for example Leong v. Ontario (Attorney General), 2014 HRTO 311.

17Given the absence of proposed evidence on which a link might be established, I must conclude that the applicant has no reasonable prospect of success of proving discrimination on the basis of the alleged ground.

ORDER

18The Application is dismissed.