HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Martha Fiallos
Applicant
-and-
PWD-Division of InStore Focus Inc.
Respondent
INTERIM DECISION
Adjudicator: Naomi Overend
Indexed as: Fiallos v. PWD-Division of InStore Focus Inc.
APPEARANCES
Martha Fiallos, Applicant
Self-represented
PWD-Division of InStore Focus Inc., Respondent
Barbra H. Miller and Fiona Brown, 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"), on February 25, 2015. The Tribunal issued a Case Assessment Direction on May 27, 2015, indicating that it would hold a summary hearing by teleconference to determine whether the Application should be dismissed as having no reasonable prospect of success and/or on the basis of delay. The summary hearing took place by teleconference on August 19, 2015.
decision and Analysis
Delay
2This Application alleges discrimination with respect to employment because of disability and race. The applicant worked for the respondent as a product demonstrator. In both the narrative of her Application and in her oral submissions at the summary hearing, the applicant alleges that there were three incidents of discrimination occurring in December 2012, February 2013 and May 2014. The Application was filed on February 25, 2015.
3Section 34 of the Code states in part:
(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.
4As noted in Corrigan v. Peterborough Victoria Northumberland and Clarington Catholic District School Board, 2008 HRTO 424, to determine that a delay in pursuing one's Code rights was incurred in good faith, the applicant must provide a reasonable explanation for why she did not pursue her Code rights in a timely manner.
5The applicant acknowledges that the first two incidents, which occurred more than a year before the last incident and more than two years before the Application was filed, are out of time. She does not assert that her delay in pursuing her rights with respect to these incidents was incurred in good faith (as that term is interpreted in the Tribunal's cases), but says that she would like to rely on them for the purpose of proving that the most recent (timely) incident was discrimination based on a Code ground. I leave it to the adjudicator hearing this matter to determine the extent to which this evidence is admissible.
6The respondent argues that it has been prejudiced by the delay because memories have faded (so that the persons named in the incidents cannot remember who was present when they occurred) and potential witnesses have left the employ of the respondent. Again, I leave it to the adjudicator hearing the merits to weigh the prejudice with respect to individual pieces of evidence.
No Reasonable Prospect of Success
7Rules 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.
8In this summary hearing, the focus was on whether the applicant had evidence reasonably available to her that could show a link between the respondent's treatment of her and the grounds of disability and race.
9I would start by noting that, although the applicant lists race as the ground, her allegations are that the respondent treated her differently because of her "Spanishness." I explained to the applicant that this may not be encompassed by the ground she has selected and that perhaps the grounds of ethnic origin or place of origin might be more appropriate. In any event, the respondent did not assert that it is unable to discern the basis for the applicant's claim.
10The applicant was able to clarify at the summary hearing that her allegations with respect to the final incident are as follows:
She was required for medical reasons to be off work from March 8-April 14, 2014.
Following her recovery, she notified the respondent that she was ready to return to work, however, the first shift she worked was May 13, 2014.
She was "harassed and intimidated" by the supervisor during this shift.
She concluded her demonstration at 6:50, and did not get back to the office until 7:00 because her disability made her slower than other employees.
When she got to the office, the supervisor shouted at her for being late, and sent the applicant's co-workers home, so that the applicant had to wash the dishes from the demonstration by herself, which is not the usual protocol.
When the applicant attempted to talk to management about this behaviour, they at first ignored her and then said they did not believe the applicant and took the supervisor's side.
The applicant chose not to continue to work for the respondent because she knew it would be unbearable.
11The respondent has a different interpretation of the events, but for the purpose of the summary hearing the Tribunal will rely on the applicant's version of the facts for determining whether there is no reasonable prospect of success.
12The purpose of a summary hearing is not to assess evidence and draw the necessary inferences, but simply to determine whether the applicant has a basis for his allegations beyond mere speculation. In this case, there is a sufficient nexus to the ground of disability that I cannot conclude there is no reasonable prospect that the applicant will prove a link to the Code. It is necessary for the Tribunal to hear at least the applicant's evidence before making a final determination regarding the remaining alleged incident of discrimination in the Application.
13The link between this conduct and the applicant's "Spanishness" is less clear. However, I am not prepared to exercise my discretion to remove that ground since race is not the only ground listed in the Application. The Tribunal will be required to hear evidence concerning the event in question, at which point the link between the applicant's "race" and the treatment she experienced might become more apparent.
order
14I make the following orders:
a. The allegations of discrimination in the Application relating to the period from December 2012 to February 2013 are dismissed for delay
b. The respondent's request that the Tribunal dismiss the remaining allegation of discrimination (from May 2014) on the basis that it has no reasonable prospect of success is denied.
15As the parties have not all consented to mediation, the next stage is to schedule a hearing. A Notice of Hearing will be sent to the parties in due course.
16I am not seized of this matter.
Dated at Toronto, this 21th day of August, 2015.
"Signed By"
Naomi Overend
Vice-chair