HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Elizabeth Wintermans
Applicant
-and-
Hamilton Police Service
Respondent
DECISION
Adjudicator: Douglas Sanderson
Indexed as: Wintermans v. Hamilton Police Service
WRITTEN SUBMISSIONS
Elizabeth Wintermans, Applicant
Self-represented
1This is an Application filed on 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 reprisal or threat of reprisal.
2By letter dated May 5, 2014, the Tribunal provided the applicant with a Notice of Intent to Dismiss the Application (the “Notice”) because the applicant alleged discrimination based on “reprisal or threat of reprisal”, but did not explain how the respondent’s behaviour was related to: claiming or enforcing a right under the Code; instituting or participating in proceedings under the Code; or, refusing to infringe the right of another person under the Code. The Tribunal directed the applicant to provide written submissions on this issue by June 4, 2014.
3The applicant filed written submissions by e-mail on May 30, 2014. The applicant summarized several negative workplace incidents, including loss of an Acting Supervisor position, failure of her union to assist her, reduction in pay, accusations of insubordination and dismissal of job applications for a promotion.
Analysis and Decision
4At this stage in the processing of the Application, the Application may be dismissed if it is “plain and obvious” that the Application does not raise an issue that the Tribunal has the jurisdiction to decide.
5The 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, however, is distinct from allegations of discrimination because an applicant must establish the respondent intended to punish or retaliate against the applicant. The prohibition against reprisals is set out in section 8 of the Code, which states as follows:
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.
6The Tribunal set out the elements of a successful reprisal application in Noble v. York University, 2010 HRTO 878 at paragraphs 33 and 34, as follows:
Thus, in a complaint or application alleging reprisal, the following elements must be established:
a. An action taken against, or threat made to, the complainant;
b. The alleged action or threat is related to the complainant 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.
In addition, the following principles are relevant:
a. There is no strict requirement that the complainant has filed a complaint or application under the Code, and
b. There is no requirement that the Tribunal find the respondent did in fact violate the complainant’s substantive rights to be free from discrimination.
7In her Application, the applicant described several incidents that had negative consequences for her in her employment relationship with the respondent. The applicant did not assert, either in the Application or in her submissions in response to the Notice, that she had claimed or tried to enforce her Code rights or that the respondent’s alleged actions were intended to retaliate against the applicant for claiming or enforcing her human rights. There is no indication in any of the applicant’s materials that she refused to infringe upon anyone else’s human rights. In these circumstances, the applicant’s allegations cannot amount to a reprisal under section 8 of the Code, and, as a result, I find that it is plain and obvious that the Application does not come within the Tribunal’s jurisdiction.
8The Application is dismissed.
Dated at Toronto, this 3rd day of June, 2014.
“Signed by”
Douglas Sanderson
Vice-chair