Gu v. Habitat for Humanity Canada, 2015 HRTO 1281

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Ying (Sissy) Gu

Applicant

-and-

Habitat for Humanity Canada Habitat Pour L’humanite Canada and Habitat for Humanity Greater Toronto Area

Respondents

DECISION

Adjudicator: Kevin Cleghorn

Date: September 25, 2015

Citation: 2015 HRTO 1281

Indexed as: Gu v. Habitat for Humanity Canada

Ying (Sissy) Gu, Applicant

Self-represented

Habitat for Humanity Canada Pour L’Humanite Canada and Habitat for Humanity Greater Toronto Area, Respondents

Barbara Warner, Counsel

Introduction

1This is an Application brought under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19 as amended (the “Code”) alleging discrimination in employment based upon race, colour, place of origin and ethnic origin and that the respondents reprised against the applicant contrary to the Code.

2By Case Assessment Direction dated March 4, 2015, the Tribunal directed that a summary hearing be held in this matter by teleconference. It states as follows at paragraphs 2 and 9 (in part):

Having reviewed the file, the Tribunal has decided to hold a summary hearing to determine whether this 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.

…

No witnesses will be called during the summary hearing but the Tribunal will hear the parties’ arguments about whether all or part of the Application should be dismissed because it has no reasonable prospect of success. The applicant will generally proceed first during this summary hearing and must be prepared to address the issues discussed above.

3By e-mail dated June 9, 2015, the parties were also asked to address whether the Application is barred under s. 34 (11) of the Code as a result of commencement of a civil action by the applicant against the same parties named in the Application.

ANALYSIS

Summary Hearings

4Rule 19A of the Tribunal’s Rules of Procedure reads 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 of witness statements.

5The test is whether an application, in whole or in part, has no reasonable prospect of success. If, after considering the submissions and arguments made by the applicant, she has been unable to point to any information, which tends to support her belief that she has experienced discrimination or reprisal under the Code, the Application will be dismissed as having no reasonable prospect of success. If some or all of the allegations are not dismissed at this stage, they will continue in the Tribunal’s process and might be considered at a merits hearing in which all evidence shall be presented and witnesses heard from in the ordinary course.

6In Dabic v. Windsor Police Service 2010 HRTO 199 at paras. 8-10, the Tribunal commented on the type of inquiry that is involved in a summary hearing:

In some cases, the issue at a summary hearing may be whether, assuming all of 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 the 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.

S. 34 (11)

7s. 34 (11) of the Code reads as follows:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

8In Fera v. Arista Homes Limited, 2014 HRTO 1285, this Tribunal states at para. 12:

In any event, in my view, s. 34(11) of the Code does not afford this Tribunal with a discretion to allow an Application to continue if a civil action has been commenced seeking a Code remedy on the basis of the same allegations. While s. 34(11) uses the word “may” in its opening phrase, the context of the use of this term does not operate to confer a discretion on the Tribunal to defer an Application pending the result of the civil action, but rather refers to the person filing the Application and means that such person is not allowed to file an Application with this Tribunal in the circumstances described in s. 34(11).

BACKGROUND

9The applicant was hired by Habitat for Humanity Greater Toronto Area Inc. (“Habitat GTA”), formerly Habitat for Humanity Toronto Inc., on July 12, 1999. She was terminated from her employment as of July 31, 2014, by letter dated June 5, 2014. At the time of her termination, she was serving as the Director, Finance and Administration. The explanation provided to her for her termination was that the financial affairs of Habitat GTA had become sufficiently complex to require a formal accounting designation, which the applicant lacked. The applicant maintains that she was fully capable of doing her job notwithstanding that she did not have the necessary designation.

10The applicant was given 8 weeks of working notice and 15 weeks of severance pay. She questioned the Chief Executive Officer, Ene Underwood, about the basis and rationale for her termination. She alleges that she was discriminated against and unfairly targeted by her employer for termination. Despite her request, there was no investigation launched into the reasons given to her for her termination. The applicant states that she was denied a pay increase and a “long service” bonus in 2014. She claims that she was profiled and treated unfairly in comparison to other managers who had been terminated by her employer in recent years. She advises that she was the only foreign born and visible minority person working in a senior management position for Habitat GTA. It is her belief that the Chief Financial Officer of Habitat GTA, Bruce Johnston, wanted her out of her position for inappropriate reasons. She claims that Mr. Johnston used racist language with her approximately three months before her termination and would not speak to her subsequent to that conversation.

11The applicant asserts that Habitat GTA had a duty to investigate her complaint. She further alleges that she was reprised against by her employer when she was asked to leave the premises in a humiliating fashion, which reprisal was in response to her complaint of discriminatory treatment. She notes that her employer has control over all documents and evidence which could be utilized by her in support of this Application.

12The applicant commenced legal action against all of the parties named in her application, along with Grant Thornton LLP, National Toronto, in the Superior Court of Justice sitting in Toronto under court file number CV-15-528995. She claimed punitive, aggravated and bad faith damages of $300,000.00 and special damages of $10,000.00, among other relief. The Statement of Claim was issued on May 26, 2015. All of the facts outlined in the Statement of Claim, save and except for the relief claimed as against Grant Thornton, is virtually identical to those facts set out in the Application before this Tribunal.

13The respondent, Habitat GTA, argues that there is essentially nothing new in the submissions of the applicant. It has all been set out in her Application previously. The respondent asserts that the new position of controller created by Habitat GTA required an accounting designation and the applicant simply lacked the requisite qualifications for the position. The applicant was terminated, according to Habitat GTA, due to an internal re-structuring. There was neither discrimination nor reprisal in any decisions made by Habitat GTA in relation to the termination of the applicant’s employment. Habitat GTA points out that the allegation of racist remarks being made by Mr. Johnston is not explicitly stated in the Application.

14In terms of the civil action, Habitat GTA argues that the Application involves the same facts and claims in all respects.

THE LAW

15The Application itself and the submissions of the applicant have few particulars of any differential treatment or reprisal per se. The argument of the applicant is essentially that there can be no other basis for her termination of employment but her race, colour, place of origin or ethnic origin.

16It is not sufficient to make bald assertions to establish discrimination or differential treatment: see Sosoo v. Winners Merchants 2010 HRTO 1367; Jagait v. IN TECH Risk Management 2009 HRTO 779; and Howard v. 407 ETR Concesssion 2011 HRTO 1511. Despite the belief of the applicant, the initial onus is on her to establish that there is some evidence to support her allegations of discrimination in the absence of any such link in her Application: see Sosoo v. Winner’s Merchants at paras. 66-67 and Howard v. 407 ETR Concession at para. 13. The threshold for establishing a reasonable prospect of success at the summary hearing stage is, however, a low one provided there is some foundation upon which the Tribunal can find that the applicant was discriminated against, and that the discrimination is linked to a prohibited ground under the Code: see Sosoo v. Winner’s Merchants at para. 71 and Howard v. 407 ETR Concession at para. 17.

17In the instance case, there is minimal evidence of discrimination put forward by the applicant; either direct or circumstantial. There is some evidence, however, that, if believed, could lead to the conclusion that the applicant did experience differential treatment at the hands of her employer, Habitat GTA. The alleged use of racist language by the Chief Financial Officer, the subsequent treatment of the applicant by him and the termination of the applicant in close proximity to those events amount to evidence in support of her allegations which, if believed, could result in success on her Application. On a general basis, there is some evidence offered by the applicant that links a prohibited ground under the Code with the treatment afforded to her by the respondent, Habitat GTA. On the other hand, the applicant offered no evidence whatsoever that might implicate, directly or indirectly, the respondent, Habitat for Humanity Canada Pour L’Humanite Canada, in any type of Code violation.

18As the Tribunal noted in Morales v. Inquattro Fashion Group Corporation, 2013 HRTO 1140, at paras. 9 and 10:

The Tribunal does not hear evidence in a summary hearing. It instead hears what evidence the applicant expects to be able to call if the Application proceeds to a hearing on the merits. The Tribunal must then assess whether the evidence that the applicant proposes to call is likely to establish that the discrimination alleged occurred.

In some cases, the evidence that the applicant proposes to call is her own testimony about what happened. After hearing this information, the Tribunal may determine that even if the applicant’s evidence is true, the applicant has not made out a case of discrimination and the Application may be dismissed on that basis. However, at the summary hearing stage the Tribunal does not generally assess whether the applicant’s testimony at a hearing will be found to be credible. Assessment of credibility is generally only done when evidence is heard and is subject to cross-examination by the respondent and questioning by the Tribunal. This does not occur in a summary hearing

19If I accept the facts as alleged in the Application and based upon her submissions, I conclude that the determination of this case requires an assessment of credibility. I cannot find, at this time, that there is no reasonable prospect that the Application will not succeed as against Habitat GTA. I make no finding whatsoever as to whether this Application will ultimately succeed, save and except that I conclude that there is a complete absence of any evidence or proposed evidence as against the respondent, Habitat for Humanity Canada Pour L’Humanite Canada. As such, while I would dismiss the application as against the respondent, Habitat for Humanity Canada Pour L’Humanite Canada as having no reasonable prospect of success, I cannot conclude that there is no reasonable prospect of success as against the respondent, Habitat GTA.

20The applicant, however, commenced a civil law suit against the same parties, claiming essentially the same heads of damages (albeit in higher amounts) and alleging the same facts and circumstances. She acknowledged the similarity of the two proceedings but points out that she has added a new party (Grant Thornton LLP) in the civil suit. She expressly seeks “a declaration that the Defendants discriminated against (her) in the termination of her employment”. The applicant requests a deferral of this Application until completion of her civil suit.

21Although the applicant does not specifically plead the Code in her Statement of Claim, it is apparent that she is pursuing Code remedies and additional relief in her civil suit. As previously noted in Fera v. Arista Homes Limited, this Tribunal lacks the discretion to defer or delay an Application when a civil proceeding has been commenced seeking Code remedies and where it is based on the same facts and circumstances. It is also irrelevant that the civil proceeding was commenced after initiation of the Application before this Tribunal: see Fera v. Arista Homes Limited at para. 9 and Grogan v. Toronto District School Board, 2011 HRTO 954, upheld in Grogan v. Toronto District School Board, 2012 ONSC 319, released February 10, 2012 (unreported).

22In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, this Tribunal states:

Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant’s ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered by the applicant’s decision to raise the Code and seek remedies for its violation in a court action.

To find that s. 34(11) only applies if s. 46.1 is specifically pleaded in the civil action, but not when the Code is the basis for punitive or bad faith damages would be an overly technical interpretation that would defeat the purpose of s. 34(11). I am satisfied that the section applies in the present circumstances, where the facts and issues in a court action are the same as those in the Application, and where this plaintiff has asked the court to find an infringement of her rights under the Code and sought damages based on that alleged infringement

23I find that the civil suit is indeed seeking the same relief as permitted by the Code and that amounts to a repetition of identical claims. The applicant cannot involve the same parties in identical legal proceedings and request the same relief, notwithstanding the few, largely inconsequential, differences. There are sound policy reasons for this approach. It is designed to avoid inconsistent results emanating from multiple processes. It permits parties to focus on, and allocate resources to, one process which will resolve all of their differences. To not accede to this approach, and to ignore the clear direction set out in s. 34 (11) of the Code, would amount to an abuse of process.

24As previously stated, the civil suit commenced by the applicant against the respondents expressly claims damages available under the Code, and repeats those allegations raised in the Application as a basis for seeking such damages. As a result, I find that the applicant is, by implication, seeking an order in the civil proceeding under section 46.1 of the Code with respect to the violations alleged in her Application before this Tribunal. The civil proceeding has not been finally determined or withdrawn. Accordingly, I find that this Application is barred by s. 34(11) of the Code.

DECISION

25For all the foregoing reasons, I have concluded that the Application is barred by s. 34 (11) of the Code. Therefore, the Application is dismissed.