Chandrowty De Nicola v. Toronto Community Housing Corporation and Paul Chisholm, 2015 HRTO 1653

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Chandrowty De Nicola

Applicant

-and-

Toronto Community Housing Corporation and Paul Chisholm

Respondents

DECISION

Adjudicator: Aida Gatfield

Date: December 7, 2015

Citation: 2015 HRTO 1653

Indexed as: De Nicola v. Toronto Community Housing Corporation

APPEARANCES

Chandrowty De Nicola, Applicant

Self-represented

Toronto Community Housing Corporation and Paul Chisholm, Respondents

Joanne Kraczek, Paralegal

Introduction

1This is an Application filed 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, race and age. The purpose of this decision is to address the following, whether the Application should be dismissed in whole or in part on the basis that it has no reasonable prospect of success.

PROCEDURAL BACKGROUND

2The Application was filed on November 13, 2014. The Respondent filed a Response and a Request for Summary Hearing on the basis that the Application has no reasonable prospect of success. The Applicant filed a Reply and a Response to the Request for Summary Hearing. Subsequently, the Tribunal issued a Case Assessment Direction dated April 17, 2015, directing that a summary hearing be scheduled for this matter pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The summary hearing was held by teleconference on July 22, 2015.

Summary Hearing

3The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure as well as the Tribunal’s Practice Direction on Summary Hearing Requests. The purpose of a summary hearing is to consider, early in the proceeding, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the Application will succeed. It is important that this be determined at the earliest opportunity, where appropriate.

4The Tribunal cannot address general allegations of unfairness, unrelated to the Code, in areas such as employment, services or accommodation. Discrimination generally involves an allegation of unfair treatment on the basis of one or more of the grounds under the Code, such as race, gender or disability. Unfair treatment is not discriminatory in the legal sense unless there is proof that one or more of these personal characteristics were a factor in the treatment the applicant experienced.

5The test that is applied at a summary hearing is whether an application should be dismissed in whole or in part because it has no reasonable prospect of success. At the summary hearing stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment they experienced. Indeed, many experiences of unfairness, which are not defined as discrimination in the legal sense, can leave a person with significant financial and emotional damage.

6The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary. In some cases, for example, the applicant will not dispute the respondent’s version of one or more of the facts.

7Accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why they were treated unfairly. The purpose of the summary hearing is to determine if reasonable inferences can be drawn from any facts or evidence the applicant is able to point to which tend to support the applicant’s belief that they have experienced discrimination.

8The question that the Tribunal must decide at a summary hearing is whether there is likely to be sufficient direct or indirect evidence available to connect the unfair treatment experienced by the applicant with the applicant’s personal characteristics. If the applicant is unable to point to circumstances beyond their own assumptions or belief, the Application may be found to have no reasonable prospect of success.

9The parties are given an opportunity to make submissions, usually on a telephone conference call, during a summary hearing. These submissions are often helpful in clarifying the nature of the allegations.

10The primary focus in the summary hearing is on the applicant’s evidence. The respondent’s explanation may be considered where there is no dispute about the facts or where it is plainly obvious that a fact must be true. However, the Tribunal is very careful to ensure that an application is not dismissed at the summary hearing stage simply because the respondent has an alternative explanation of the events.

11The Tribunal is also mindful of the fact that in some cases the Application must proceed further in the hearing process because the respondent is the party who has control over the evidence which could assist the applicant’s case.

12Having set out the basic framework for determining whether an application should be dismissed in whole or in part for no reasonable prospect of success, I now turn to the facts of this particular case.

ANALYSIS

13The applicant was given an opportunity to make submissions to assist the Tribunal in determining whether the Application should proceed. Specifically the applicant was asked to assist the Tribunal in understanding the connection between the respondent’s alleged actions and the prohibited ground of discrimination alleged in her Application. The respondent also made submissions in support of dismissing the Application.

14The applicant’s Application sets out the following facts in support of her Application. She alleges that the General Manager of Toronto Community Housing Corporation (“TCHC”) has made comments unrelated to her work. She did not provide specifics. Further, she alleges that, at a staff meeting, he asked her “when do you plan to leave the organization?” She also sets out an incident which occurred on September 5, 2014, where she misplaced her cell phone. She realized on the way home from work that her cell phone was missing. She returned to the workplace to retrieve the phone. Upon arrival, she was advised that her phone was given to a Supervisor of TCHC; He had placed it in his office. The Supervisor had left the workplace and she could not gain access to his office. The applicant then telephoned the General Manager of Toronto Community Housing Corporation who told her he could not assist. She asked him to provide her with the Supervisor’s telephone number, which he did. She called the Supervisor; he asked that she call him back in 5 minutes, which she did. The Supervisor told her that he could not help. She asked that they arrange to meet on the weekend; he stated that he could not as he had plans for the weekend. The applicant made several other telephone calls but received no assistance.

15The applicant alleges that she was distraught at not having her phone. She was not reachable to her husband. She was also moving residences the following day. She worried about the move and not having a cell phone as she had no landline at the new address. She states that she felt overwhelmed and confused; she fell down the stairs (at home). Ultimately, she was taken to hospital and diagnosed with a concussion. She was off work for a period of time.

16The applicant was seen by her family physician on September 18, 2014, who recommended a return to work on modified hours. She alleges that upon her arrival at work on September 18, 2014, she was summoned to a disciplinary meeting. At the meeting, the applicant alleges that she was pressured into giving information about the September 5, 2014 incident. She states that she was still “delicate” and could not recall all of the details. Given her lack memory, the respondent then expressed concern about her ability to work and said it would prepare a letter requesting more detailed medical information about her concussion and memory loss.

17The applicant also alleges that the respondent “forced” her to attend a meeting on November 7, 2014. At this meeting the applicant was given a letter regarding her conduct on September 5, 2104 in relation to the cell phone incident. The letter states that the applicant’s behaviour was inappropriate and violated several employer policies. It is evident that the applicant disagrees with the contents of the letter. It is the applicant’s position that the respondent “constructed these false allegations to force her out of the work force.” Further, she views the letter as disciplinary. I note that the letter is entitled as a “Letter of Expectation”. It expressly states “Ms. De Nicola, please be advised that this letter will serve as a non-disciplinary Letter of Expectation and will be placed on our personnel file.”

18The applicant also states that she had in the past filed a successful WSIB claim and a human rights complaint, which was settled, and that it is her belief that this could be the reason for the false allegations.

19In the course of the summary hearing, she was asked what evidence she would be relying on to establish a nexus between the respondent’s conduct and each of the prohibited grounds enumerated in her Application. Each is discussed in turn below.

Race

20The applicant states that she asked the respondent to reschedule the November 7, 2014 meeting; this request was denied. It is her belief that if she had been “a white person” the request would have been granted. She stated that she sees her white counterparts being treated differently. However, she did not provide further details or evidence she would rely on at the hearing in support of this. Emails provided by the applicant show that the applicant, through her union representative, asked that the meeting be rescheduled because the applicant would find having a meeting with the employer late Friday afternoon to be extremely stressful. The respondent replied that it was within its rights to schedule a meeting during working hours and that unless there was additional information as to why the meeting should not proceed, the meeting would go ahead as scheduled. No additional information was provided. The meeting took place as scheduled. At the summary hearing the applicant indicated that she wanted the meeting changed to a different date because she sustained the concussion on a Friday (some two months earlier) and she was feeling overwhelmed.

21While the applicant may have preferred to have the meeting at a different time, I find that the applicant has not pointed to any evidence to connect the respondent’s refusal to reschedule the meeting to the prohibited ground of race. Accordingly, there is no reasonable prospect that the Application will succeed on the ground of race.

Age

22With respect to alleged discrimination on the basis of age, the applicant stated that the respondent understood the difficulties she was experiencing with her health and wanted to get her out the door. She also relies on the meeting of September 26, 2014. In addition, she states that “no one checked in on her to see how she was feeling” despite the respondent being provided a medical note indicating that she had a concussion. When asked what evidence she would be relying on in support of the age discrimination claim, she stated that she did not have evidence but relies on her age and her health issues.

23I find that there is no evidence to connect the applicant’s treatment to the prohibited ground of age. The applicant’s age was not raised during the meeting. Further, nowhere in her Application does the applicant refer to any incident where her age was commented upon or action taken based on her age. Further, the applicant acknowledged that she has no evidence to support this allegation other than her age. More than simply being of a certain age is needed to establish a link between the respondent’s actions and the prohibited ground. Accordingly, I find that there is no reasonable prospect that the Application will succeed on the ground of age.

Reprisal

24In order to prove reprisal at a hearing, there must be evidence to establish a threat or an action was intended as retaliation for asserting Code rights.

25With respect to the reprisal allegation, the Applicant states that it is the manner in which she was dealt with and disciplined with respect to the cell phone incident that amounts to reprisal. This includes the meetings of September 26, 2014 and November 7, 2014. She alleges that the respondent made the accusations set out in its letter of November 7, 2014 because the applicant had previously filed a WSIB claim, which was approved and successful on appeal. She believes that the respondent “feels like it lost” as a result. In addition, it is her belief that the respondent was retaliating because she also filed a prior human rights application with the Tribunal, which was settled in 2014.

26It was the respondent’s submission that a meeting was held on September 26, 2014 with the applicant and her union representative with respect to the applicant’s actions in relation to the cell phone incident. The purpose of the meeting was to obtain the applicant’s recollection of events which took place on September 5, 2014. The applicant advised that she could not recall the events of September 5th due to her concussion. In light of the applicant’s memory loss, the respondent queried whether the memory loss impacted the applicant’s work. The respondent indicated that it may require further medical documentation in light of the applicant’s position that she had memory loss. This was so that it could determine whether any accommodation was needed.

27Upon concluding its investigation, a second meeting was scheduled for November 7, 2014 to discuss the findings with respect to the September 5, 2014 incident. The applicant, through her union representative, requested that the meeting be rescheduled because the applicant was finding the late Friday afternoon time to be extremely stressful. The respondent responded that it was within its rights to schedule a meeting during work hours and that if there was no further information as to why the meeting should not proceed, the meeting would go ahead as scheduled. No information was provided and the meeting went ahead as scheduled. The applicant received the November 7, 2014 letter referred to above. The WSIB claim the applicant refers to had already been “put to bed”.

28The reprisal section of the Code only applies to actions that are intended as a reprisal for asserting one’s human rights. See Noble v. York University, 2010 HRTO 878 at para. 31. As such, at the hearing, the applicant would need to be able to prove that the calling of the September 26, 2014 meeting and the issuance of the November 7, 2014 letter were intended by the respondent to reprise or retaliate against her for having filed her prior human rights application, as opposed to her WSIB claim.

29To proceed with an allegation of reprisal, there must be a reasonable basis to believe that the applicant could establish such intention and a link between the ground of reprisal and the respondent’s alleged actions.

30The applicant has not provided a reasonable basis to believe that she could establish that the respondent’s meetings about the September 5, 2014 incident and/or the November 7, 2014 letter were intended as a reprisal for asserting her human rights. The respondent had a basis for conducting the meetings. The applicant disagrees with the outcome of those meetings. However, the applicant has not provided evidence or pointed to any evidence that is reasonably available to her that would support a basis on which it could be found that the respondent intended to reprise against her. Accordingly, I find that there is no reasonable prospect that the Application will succeed on the ground of reprisal.

31Before leaving this issue, I will address the applicant’s allegation that the September 26, 2014 meeting and the November 7, 2014 letter were reprisal or retaliation against her for having previously filed a successful WSIB claim. While such an allegation does not fall within the reprisal protection under s. 8 of the Code (unless the WSIB claim raised Code issues), this allegation could potentially fall under the Code protection against discrimination in employment because of disability, given that the definition of “disability” at s. 10 of the Code includes an injury or disability for which benefits were claimed under the WSIA. The Application as currently drafted does not raise any allegation of discrimination because of disability. However, even if it had, I find that the applicant similarly has no reasonable prospect of establishing that her prior WSIB claim was a factor in the holding of the September 26, 2014 meeting or the issuance of the November 7, 2014 letter, given the circumstances in which these actions were taken by the respondent as described above.

ORDER

32The Application is dismissed.