Redden v. Wal-Mart Canada Corp., 2014 HRTO 687

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Helen Redden

Applicant

-and-

Wal-Mart Canada Corp.

Respondent

INTERIM DECISION

Adjudicator: David Muir

Date: May 13, 2014

Citation: 2014 HRTO 687

Indexed as: Redden v. Wal-Mart Canada Corp.

APPEARANCES

Helen Redden, Applicant

Andrew Kerr, Counsel

Wal-Mart Canada Corp., Respondent

Jason Thomas, Counsel

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

2In a Case Assessment Direction issued on November 26, 2013, the Tribunal directed on its own initiative that a summary hearing be held to determine whether or not this Application should be dismissed, in whole or in part, because it has no reasonable prospect of success.

3Rules 19A.1 and 19A.2 of the Tribunal’s Rules of Procedure read as follows:

19A.1 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.

19A.2 Rules 16 and 17 do not apply to summary hearings. The Tribunal may give directions about steps the parties must take prior to the summary hearing, including disclosure or witness statements.

4Having reviewed the material filed to date in this case and after hearing the submissions of the parties, I am unable to conclude that this Application has no reasonable prospect of success. Tribunal Rule 19A.5 provides that where the Tribunal is unable to conclude that an Application has no reasonable prospect of success it need not provide reasons; however, in these circumstances the following comments are appropriate.

5In her Application the applicant stated that she was a good employee of the respondent. The applicant alleges that she was overworked in her position and could not respond to all of the competing demands upon her. She alleges that she was unfairly disciplined and then transferred to another position resulting in a reduction of hours. The applicant believes that this treatment was based in part on her age. The applicant also alleges, without particulars, that since the arrival at the store where she worked of the new assistant manager L.N., other long-time employees left the workplace or had their hours reduced.

6As is clear from this summary of the allegations in the Application, the applicant has no direct evidence of discrimination. At the hearing I asked the applicant to point to the evidence available to her which would tend to support the inference that her age was a factor in the respondent’s decisions about her. The applicant stated that within a year of the arrival of L.N., the new assistant manager, five other “elderly” employees in addition to the applicant either left the workplace or were moved departments with reduced hours. The applicant alleges that these individuals may provide further circumstantial evidence in support of her belief that the applicant’s age was a factor in her treatment. The applicant is able to identify these five individuals but has been unable to contact only one of them because she does not have contact information for them at this point. The one individual who she has contacted would not speak to her about her experience and advised that she had made a claim against the respondent but had settled the case.

7The respondent argued correctly in my view that there is really nothing in the Application as drafted that would tend to support the contention that the applicant’s treatment was informed in whole or in part by her age. The applicant pointed out that at the time she filed the Application the applicant was represented. The respondent argued that the new information provided at the hearing was not in the Application and should have been. The respondent also argued that the new information does not

8However, the question at this preliminary stage of the proceeding is whether or not there is no reasonable prospect of the applicant leading evidence that would tend to support an inference that her age was a factor in her treatment. The applicant has identified five individuals who she believes will be able to provide similar fact evidence which would tend to support her case.

9While recognizing the potential difficulties facing the applicant’s reliance on what appears to be potentially similar fact evidence, it is in my view appropriate to allow this Application to proceed further in the Tribunal’s process. Obviously the fact that I have not been able to conclude that this Application has no reasonable prospect of success does not suggest that it will succeed, particularly given the nature of the evidence the applicant’s case appears to rest on, which despite my conclusions remains somewhat speculative. Given the nature of the evidence the applicant will attempt to rely upon, it may be appropriate to revisit the question of whether or not this Application can succeed at a later stage.

10Both parties have agreed to mediation. The Registrar will schedule a mediation in due course.

11I am not seized.