Murray v. YouthLink, 2015 HRTO 1694

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Nadine Murray

Applicant

-and-

YouthLink

Respondent

-and-

Canadian Union of Public Employees and its Local 2192

Intervenor

DECISION

Adjudicator: Ken Bhattacharjee

Date: December 16, 2015

Citation: 2015 HRTO 1694

Indexed as: Murray v. YouthLink

APPEARANCES

Nadine Murray, Applicant

Aleem Baksh, Representative

YouthLink, Respondent

Kathryn Bird, Counsel

Canadian Union of Public Employees and its Local 2192, Intervenor

Alycia Shaw, Counsel

Introduction

1The purpose of this Decision is to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success. The parties attended a summary hearing where they had the opportunity to make oral submissions and present documents and cases, which addressed this issue. I have decided to dismiss the Application. The following are my reasons for the dismissal.

BACKGROUND

2The respondent is a social service agency, which provides services to vulnerable young people, including a residence for young women. In May 2013, the applicant began working for the respondent in the residence as an overnight asleep worker/sleep night counsellor. On September 26, 2013, the respondent terminated the applicant’s employment within her probationary period.

3On September 25, 2014, the applicant filed an Application under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), which alleged that the respondent discriminated against her with respect to employment because of her race, colour, ancestry, and ethnic origin, and subjected her to a reprisal for claiming her rights under the Code. Specifically, she alleged that the respondent terminated her employment because (1) she had telephoned an on-call manager at 12:45 a.m. to explain that the residents were extremely noisy and she was exhausted, and (2) she had requested that she be paid for the hours that she was kept awake.

4In her Application, the applicant identified as a Canadian of Caribbean origin, but she did not clearly explain how the termination of her employment was related to her race, colour, ancestry, and ethnic origin. In section A13 (“Explain why you believe you were discriminated against because of your race, colour, ancestry… or ethnic origin”), she merely stated: “There is no other rational basis for [the] cruel, unjust treatment.” She also did not clearly explain how her termination was a reprisal for claiming her rights under the Code. In section A41 (“Please explain why you believe you were reprised against”), she merely stated that the respondent had no respect for the rights of workers (especially minorities), no respect for human rights, was very cliquish and unprofessional, and felt that it could run roughshod over her because she was on probation.

5On November 24, 2014, the Tribunal’s Registrar issued the applicant a Notice of Intent to Dismiss (“NOID”), which informed her that the Application appears to be outside of the Tribunal’s jurisdiction because the Application and the narrative setting out the incidents of alleged discrimination fail to identify any specific acts of discrimination within the meaning of the Code, and fail to identify how the respondent subjected her to a reprisal within the meaning of the Code.

6On January 6, 2015, the applicant filed written submissions in response to the NOID, which stated that her “reality” of the treatment by the respondent was that it was racist. She stated that “one knows” when discrimination happens, especially in the absence of any justifiable basis for the treatment. The applicant also stated that the termination was a reprisal because it followed as soon as she indicated that she was complaining to the Tribunal.

7On January 20, 2015, the Tribunal issued a Case Assessment Direction, which directed that a summary hearing be held to decide whether the Application should be dismissed on a preliminary basis because it has no reasonable prospect of success. The summary hearing by teleconference took place on December 14, 2015.

ANALYSIS

8The Application relates to sections 5, 8 and 9 of the Code, which provide:

5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.

6. 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.

7. No person shall infringe or do, directly or indirectly, anything that infringes a right under this Part.

9Rule 19A of the Tribunal’s Rules of Procedure provides for a summary hearing, following which an application may be dismissed, in whole or in part, if the Tribunal finds that there is no reasonable prospect that the application or part of the application will succeed. The approach to deciding whether an application has a reasonable prospect of success following a summary hearing was explained as follows in Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”) at paras. 8-10:

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

10The Tribunal does not have the power to deal with general allegations of unfairness. For an Application to continue in the Tribunal’s process, there must be a basis beyond mere speculation and accusations to believe that an applicant could show discrimination on the basis of one of the grounds alleged in the Code. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

11The focus at the summary hearing was on the second branch of the Dabic test, namely, whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that the respondent discriminated against her because of her race, colour, ancestry, and ethnic origin, and subjected her to a reprisal for claiming her rights under the Code, when it terminated her employment.

12In her submissions, the applicant argued that her Application has a reasonable prospect of success by essentially repeating what was in her Application and written submissions in response to the NOID. Specifically, she stated that the respondent terminated her employment because she had called a manager for help, and had requested that she be paid for the hours that she was awake. She also stated that minorities know when they are experiencing discrimination.

13In my view, there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that the respondent terminated her employment because of her race, colour, ancestry, and ethnic origin. She pointed to very little evidence that could show a link between the termination and any Code grounds. She emphasized that she is a racialized person and knows discrimination when she experiences it, but her perception of discrimination is not evidence. It is not open to the Tribunal to make a finding of discrimination based on the applicant’s feelings or beliefs. See Hui v. EPM Global Services, 2011 HRTO 2121 at para. 14.

14In my view, there is also no reasonable prospect that the applicant can prove, on a balance of probabilities, that the respondent terminated her employment as a reprisal for claiming her rights under the Code. In Noble v. York University, 2010 HRTO 878, the Tribunal held at para. 33 that in an application alleging reprisal, the following elements must be established, on a balance of probabilities:

a) An action taken against, or threat made to, the applicant;

b) The alleged action or threat is related to the applicant 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.

15The Application does not contain a factual allegation that the applicant claimed her rights under the Code. In her written submissions in response to the Tribunal’s NOID, she stated that the termination was a reprisal because it followed as soon as she indicated that she was complaining to the Tribunal, but she did not provide any details, including whom she had told that she was complaining to the Tribunal. In her oral submissions, no further details were forthcoming. In these circumstances, I find this allegation has no reasonable prospect of success because it is simply too vague.

16The Application is therefore dismissed as having no reasonable prospect of success.

ORDER

17The Application is dismissed.