Huntley v. Hydro One Networks Inc., 2015 HRTO 347

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Kerrilyn Huntley

Applicant

-and-

Hydro One Networks Inc.

Respondent

DECISION

Adjudicator: Ken Bhattacharjee

Date: March 18, 2015

Citation: 2015 HRTO 347

Indexed as: Huntley v. Hydro One Networks Inc.

APPEARANCES

Kerrilyn Huntley, Applicant

Carolyn Hart and Lisa Triano, Counsel

Hydro One Networks Inc., Respondent

Daniel McDonald, Counsel

Introduction

1The applicant, who is employed by the respondent, was an unsuccessful candidate in a job competition to be promoted. She 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 denied her the promotion for two Code-related reasons: (1) because she is a woman, and (2) as a reprisal for having made allegations of gender-based harassment against male co-workers prior to the competition. The respondent filed a Response, which denied the allegations of discrimination and reprisal.

2The parties attended a hearing of the merits of the Application where they had the opportunity to call witnesses, present documents, and make submissions. I have decided after hearing the applicant’s evidence and some of the respondent’s evidence to dismiss the Application on the basis that it has no reasonable prospect of success. The following are my reasons for the dismissal.

BACKGROUND

3The applicant works for the respondent as an Electrician in its Construction Services division. The Vice-President of the division, Michelle Morrissey-O’Ryan, is a woman, but the rank and file and supervisory positions in the division are largely held by men.

4The applicant began working for the respondent in 2004 as an Electrician Apprentice. In 2009, she became a fully qualified Electrician Journeyperson. In 2010, she was promoted to the position of Electrician Sub-Foreperson, which is the first supervisory level position. The next supervisory level position is Electrical Foreperson in Training (“EFIT”), which is followed by Electrical Foreperson, and then Senior Electrical Foreperson.

5In 2011, the respondent held a job competition for six EFIT positions. The applicant and 14 other Electricians, who were all men, applied for the six positions. The hiring committee was composed of three men and one woman: Tom Schueler, Darrin Bradley, and Shayne Apted, who were Area Construction Superintendents (“ACSs”) in the Construction Services division, and Heather White, who was the Human Resources Consultant for the division. Most of the candidates were interviewed by two ACSs and Ms. White. The applicant was interviewed by Mr. Schueler, Mr. Bradley, and Ms. White.

6The hiring committee interviewed the 15 candidates, scored them, and ranked them from 1 to 14 based on their total scores (one of the candidates was taken out of the competition prior to the ranking). The hiring committee ranked the applicant number seven, and did not offer her one of the six positions.

7On April 27, 2012, the applicant filed an Application with this Tribunal, which alleged that the respondent discriminated against her with respect to employment because of her sex, and subjected her to a reprisal for claiming her rights under the Code. Specifically, she alleged the following.

8First, the applicant alleged that the respondent denied her a position in the EFIT job competition because she is a woman. In support of this allegation, she stated the following:

1. Successful candidates #1-6 were all men.

2. She had better qualifications, including more seniority, than some of the successful candidates.

3. Successful candidate #2 lacked the basic qualification of being an Electrician Sub-Foreperson.

4. She had “extensive” outside work experience, but Mr. Apted told her that she was not successful in the competition because she did not have enough outside work experience.

5. A Senior Electrical Foreperson (Rob Routledge) told her that Mr. Bradley had told him that she was denied the position because the respondent “was not ready for a female supervisor.”

6. Following the competition, A.B. and C.D., who were male Electrician Journeypersons, were promoted from Electrician Sub-Foreperson to Electrical Foreperson without having to work as an EFIT.

9Second, the applicant alleged that the respondent denied her a position as a reprisal for having made allegations of gender-based harassment against male co-workers prior to the competition. In support of this allegation, she stated the following:

1. Since she began working for the respondent, some of her male co-workers have made comments to her indicating that they do not welcome women in their workplace.

2. In November 2007, she complained to the respondent that she had been subjected to inappropriate sexual comments by several male co-workers and inappropriate touching by one male co-worker while attending a first aid course. Following an internal investigation, the respondent informed the applicant that her allegations could not be substantiated.

3. Following the investigation, the male co-workers and their friends expressed hostility towards her.

4. She has worked on work sites where some of her male co-workers have used and vandalized the female washrooms.

5. When she complained to her supervisors about the comments and the state of the female washrooms, she was told, “this is construction, get used to it,” and to “pick your battles”. On occasions where she stood up for herself, she was reprimanded for having a bad attitude.

6. In May 2011, following the competition, she requested a transfer to a different work site, and, although her request was ultimately granted, Mr. Bradley initially resisted granting it on the basis that he did not wish to transfer a “problem”.

10On June 18, 2012, the respondent filed a Response, which denied the applicant’s allegations of discrimination and reprisal. The respondent stated that the job competition for the EFIT positions was merits-based, that being female in a male-dominated workplace is insufficient to demonstrate that the applicant was denied a position because she is a woman, and that none of the members of the hiring committee were involved in, or had direct knowledge of, her 2007 internal complaint and the subsequent investigation. The respondent further stated that, although the applicant was upset because she was not one of the successful candidates, several of the unsuccessful male candidates were also upset.

11On July 20, 2012, the applicant filed a Reply, which provided further particulars and details with respect to the alleged facts in support of her allegations of discrimination and reprisal.

12On October 25, 2013, the Tribunal issued an Interim Decision, 2013 HRTO 1807, which set out the scope of the evidence that the parties would be permitted to call at the hearing.

13The applicant and the other candidates in the job competition were members of the Canadian Union of Skilled Workers (the “union”). The Tribunal delivered the Application to the union, and informed it that it may file a Request to Intervene in the proceeding. The union did not file such a Request, but a union representative was present as an observer during the hearing.

14The hearing took place over four days. At the outset of the hearing, the respondent took the position that there may be a procedural defect in the proceeding because the outcome of the hearing may affect the successful candidates in the job competition, but they have not received notice of the proceeding. I noted that the successful candidates were members of the union, which had received notice of the proceeding, and decided not to intervene. However, to be cautious, I directed that the hearing be bifurcated between liability and remedy issues.

15During the hearing on liability, I admitted into evidence a number of documents, including the job competition file. The applicant testified and called one witness, Mr. Routledge, who was one of her supervisors around the time she was an unsuccessful candidate in the EFIT job competition.

16In her testimony, the applicant made a number of positive statements about Mr. Schueler, including describing him as a “great guy”. Furthermore, the competition file shows that Mr. Schueler scored the applicant considerably higher than Mr. Bradley and Ms. White, and within the range for being a successful candidate. For clarification, I asked the applicant whether she was alleging that Mr. Schueler subjected her to discrimination and reprisal, and she answered that she was not. She stated that she believes that Mr. Bradley and Ms. White were the two members of the hiring committee who subjected her to discrimination and reprisal.

17After the applicant closed her case, the respondent called two witnesses: Mr. Bradley and Ms. White. The respondent then requested that the Tribunal dismiss the Application, without hearing further evidence, on the basis that the Application had no reasonable prospect of success. I heard submissions from the parties on the respondent’s motion, and reserved my decision.

EVIDENCE

Incidents Prior to Job Competition

18The applicant testified that during her employment with the respondent, she has been subjected to sexist comments by some of her male co-workers. She stated that during her apprenticeship a male co-worker, E.F., constantly bugged her, including asking her to get coffee for him, and telling her that she should be at home in the kitchen. She stated that she put up with it for a while, but eventually told him to grow up, stop being an asshole, and get used to the fact that women were here to stay. She stated that E.F. then went and complained to their supervisor, Wade Lalonde, who, in turn, called her in, told her that she had a bad attitude, and gave her a verbal warning. She stated that Mr. Lalonde did not discipline E.F.

19The respondent tendered into evidence two progress/assessment reports on the applicant’s work performance in 2007, which were completed by Mr. Lalonde when she was under his supervision during her apprenticeship. In all categories, including “works well with co-workers”, he graded the applicant as meeting or exceeding expectations. In the written comments sections, he described her as a “great person” and stated that he liked having her on his crew. The applicant did not dispute the accuracy of these reports.

20In 2007, the applicant filed an internal human rights complaint, which alleged that during a first aid course, several of her male co-workers had subjected her to inappropriate sexual comments and one male co-worker had subjected her to inappropriate touching. The respondent assigned a third party to investigate the complaint, but the investigation did not substantiate the complaint.

21The applicant testified that, subsequently, friends, and friends of friends, of the male co-workers whom she complained against stared at her, called her “trouble”, and told her fellow Electricians to be careful around her. Specifically, she stated that G.H., who was a labourer, stared at her and made intimidating gestures, and I.J., who was also a labourer, told members of her crew that she was a liar. She stated that she reported their behaviour to several supervisors, including Mr. Routledge and Mr. Schueler, who told her that they would not stand for it and would try to keep her away from them. However, she stated, her supervisors also told her to ignore their behaviour and pick her battles.

22The respondent tendered into evidence several more progress/assessment reports on the applicant’s work performance in 2007 and 2008, which were completed by other supervisors (Ronald Chung, Mr. Routledge, and Andrew Banks) during her apprenticeship. In most categories, including “works well with co-workers”, they graded the applicant as meeting or exceeding expectations. In the written comments sections, they made very positive comments about her work performance, including her ability to work with others. The applicant did not dispute the accuracy of these reports.

23The applicant testified that she has always had problems with the washrooms on work sites. She stated that in 2009 and 2010, some of her male co-workers would use the female washroom, urinate everywhere, and leave it in a disgusting state. She stated that she complained to her supervisors, Ed Bultje and Mr. Banks, who put a lock on the female washroom, but some of her male co-workers still used it. She stated that she continued to complain to her supervisors, but nothing further was done.

24The applicant testified that at a meeting in January 2011, which was being facilitated by Ms. Morrissey-O’Ryan, G.H. and I.J. sat beside her at the next table. She stated that they whispered with other people at their table, and everyone at the table stared at her. She stated that G.H. then stood up and asked Ms. Morrissey-O’Ryan why certain people get put on the same crew when they start trouble.

25The applicant testified that shortly thereafter, she made an appointment to meet with Ms. Morrissey-O’Ryan to let her know what was going on, and tell her about her experience as a woman in the workplace. She stated that they met within two weeks of the January 2011 meeting, and she told her about the 2007 incident, the subsequent problems she was having with G.H. and I.J., the sexist comments that she was being subjected to, the state of the female washrooms on work sites, and the difficulties she was having working with men who did not like to take directions from her. She stated that she also told her that she had raised these issues with her supervisors, but nothing had changed. She stated that Ms. Morrissey-O’Ryan seemed genuinely upset about what she was going through, but responded that she could not fight her battles for her, and advised her to keep raising incidents with her supervisors, and to pick her battles.

Job Competition

26The job competition for the six EFIT positions took place between February and April 2011. The applicant and 14 other Electricians applied for the six EFIT positions. The applicant was the sole female candidate. The respondent set up a hiring committee, which interviewed all the candidates. Following the interviews, the hiring committee ranked all the candidates. The top six candidates were all men. The hiring committee ranked the applicant number seven, and did not offer her one of the six positions. The seven unsuccessful candidates were comprised of one woman (the applicant) and six men.

27The criteria for selecting EFITs were the subject of a Letter of Understanding between the respondent and the union. The main pre-requisite to apply for an EFIT position was to be presently working as an Electrician Sub-Foreperson. The criteria for this job competition were the following:

(1) Experience, Work Background, Control Meter Relay and Annunciation, Outside Work, and General Experience - 10 points;

(2) Safety - 10 points;

(3) Leadership – 5 points;

(4) Job Planning – 4 points;

(5) Costing/Estimating – 3 points;

(6) Materials/Drawings – 3 points;

(7) Scheduling – 3 points;

(8) Administration – 3 points;

(9) Decision Making – 4 points;

(10) Environmental – 2 points;

(11) Human Resources/Collective Agreements – 3 points;

(12) Customer Service – 3 points;

(13) Interpersonal Skills/Discipline – 3 points; and

(14) Communication – 3 points.

28Mr. Bradley testified that after the interviews with the candidates were completed, the hiring committee met, reviewed all the candidates’ scores, and discussed the selection of successful candidates. He stated that the total scores of candidate #6, candidate #7 (the applicant), candidate #8, and candidate #9 were all close, so the hiring committee had a discussion about the strengths and weaknesses of each candidate, and ultimately decided that candidate #6, who had a higher total score than the other three candidates, should be awarded the last EFIT position. He also stated that the members of the hiring committee who were ACSs also discussed what they could do to assist the unsuccessful candidates, and with respect to the applicant, decided that she should be assigned more outside work to get more experience in that area.

29Ms. White testified that her role on the hiring committee was to ensure that diversity principles and a formal process were followed. She stated that the applicant’s main weaknesses were that she was very nervous and appeared to lack confidence during the interview, and that she had more inside work experience than outside work experience.

30The applicant testified that she was more qualified for the EFIT position than successful candidates #1, #2 and #5. Based on the applicant’s and these candidates’ résumés, the hiring committee’s interview notes on the answers given by them, and documents on their employment history with the respondent, I would summarize each of their paper qualifications as follows.

31The applicant began working for the respondent as an Electrician Apprentice in 2004. She began working as an Electrician Sub-Foreperson for the respondent in March 2010.

32Successful candidate #1 began working for the respondent as an Electrician Apprentice in 2001. He began working as an Electrician Sub-Foreperson for the respondent in October 2008.

33Successful candidate #2 is a licensed Electrician. He started working as an Electrician in the private sector in 1996. He worked as an Electrical Lead Hand for 10 years and as an Electrical Shop Foreperson for one year in the private sector. He worked for the Ontario Power Generation (“OPG”) for one year. He began working for the respondent in 2008. He began working as an Electrician Sub-Foreperson for the respondent in December 2009.

34Successful candidate #5 has a Bachelor’s degree in Automation of Electric Power Systems and a Master’s degree in Electrical Machinery. He worked as an Electrician for a provincial power corporation in China for 13 years. He worked for private companies for three years. He began working for the respondent in 2002. He began working as an Electrician Sub-Foreperson for the respondent in January 2009.

35In cross-examination, the applicant admitted that she was not fully aware of the paper qualifications of successful candidates #1, #2 and #5 until the proceeding before this Tribunal, when she received their résumés and other documents as part of the disclosure process prior to the hearing. With respect to successful candidate #1, the applicant agreed that he had worked longer as an Electrician than she had, and had become an Electrician Sub-Foreperson before her, but she stated that what makes a good Electrician is more than what is on paper. With respect to successful candidate #2, she agreed that his experience as an Electrical Lead Hand and an Electrical Shop Foreperson was relevant for the EFIT position, but she stated that he was less skilled on the job than she was. With respect to successful candidate #5, she agreed that his paper qualifications were outstanding, but she stated that he speaks English with a “bad accent” that no one can understand, which would make him a safety risk in a supervisory position.

36The applicant testified that in late April 2011, Mr. Apted informed her that she was not a successful candidate in the job competition because that she lacked the outside work experience that was needed. During apprenticeships, Electrician Apprentices are assigned both inside and outside work. Inside work involves, among other things, panel wiring, pulling and terminating control cables, and installing lighting and heating/air conditioning distribution systems. Outside work involves, among other things, assembly and erection of steel, rigging and craning, assembling power transformers, moving power transformers, and installing power cables.

37The notes that Mr. Schueler and Ms. White took during their interview with the applicant were entered into evidence. (The respondent was unable to locate Mr. Bradley’s interview notes.) Under the question, “Years of outside work experience?” they both wrote that the applicant had answered one and a half years. The notes that the hiring committee took during their interviews with successful candidates #1 and #5 indicate that for the same question, those successful candidates answered seven years and two years, respectively. It is unclear from the interview notes what answer successful candidate #2 gave for that question.

38The applicant testified that during her interview she told the hiring committee that she had three years of outside work experience, and she cannot explain why they wrote down that she only had one and a half years of outside experience. In cross-examination, when asked why Mr. Schueler, whom she described as a “great guy”, wrote down that she had one and a half years of outside work experience, she stated that she did not know.

39The respondent tendered into evidence progress/assessment reports on the applicant’s work performance in 2007 and 2008, which indicated that the applicant was doing more inside work than outside work, that she wanted to do more outside work, and that her supervisors recommended that she be given the opportunity to do more outside work.

40The applicant testified that she did too much inside work, and that even when she requested outside work, she was kept on inside work because she was told that she was good at it. In cross-examination, when referred to a progress/assessment report in which her supervisor stated that she “should get more skills other than panel wiring,” the applicant agreed that it was an issue during her apprenticeship that she was doing mostly inside work, and needed to gain more skills and experience in outside work. She also agreed that she had a reputation for being highly skilled in inside work, particularly wiring. Mr. Routledge testified that the applicant is one of the most skilled Electricians in the workplace in wiring panels. In re-examination, the applicant stated that she was told that she was good at wiring because she had small hands, and that most female Electricians did inside work.

41Mr. Bradley testified that there are both female and male Electricians who do more inside work than outside work. He also stated that some male Electricians spend their entire career primarily performing inside work.

42Mr. Routledge testified that he also spoke with Mr. Apted following the job competition. He stated that Mr. Apted told him that the applicant had come close to obtaining an EFIT position, and that one of the hiring committee’s concerns was that she did not have as much outside work experience as they would have liked her to have. Mr. Routledge stated that he agreed with Mr. Apted that the applicant needed more outside work experience, and told him that he would try to get her more outside work experience.

43The applicant testified that following the job competition, Mr. Routledge told her that Mr. Bradley had told him that the respondent was not ready for a female Foreperson. In his testimony, Mr. Routledge agreed that he had spoken to Mr. Bradley, and then told the applicant about his discussion with Mr. Bradley, but he denied that Mr. Bradley had told him that the respondent was not ready for a female foreperson, or that he told the applicant that Mr. Bradley had made such a statement. Rather, he stated, the applicant complained to him that Mr. Bradley denied her an EFIT position because he is sexist, and he told her that Mr. Bradley would not have done that because his wife was an Electrician who had experienced sexism, and she is now a high-level employee.

44In his testimony, Mr. Bradley denied that he told Mr. Routledge that the respondent was not ready for a female Foreperson. He stated that his wife is an Electrician, she has had struggles working in a male-dominated workplace, and she has risen through the ranks to become the respondent’s Director of Sustainment Investment Planning Asset Management. The respondent tendered into evidence a biography of Mr. Bradley’s wife, which contains this information, and is posted on the respondent’s website.

45The applicant and Mr. Bradley both testified that they had never met each other prior to the job competition. Mr. Bradley also testified that he was not aware that the applicant had filed an internal human rights complaint in 2007. Ms. White testified that she was aware that the applicant had filed a complaint in 2007, but stated that an external consultant had investigated it. In cross-examination, Ms. White denied that the hiring committee had discussed the applicant’s 2007 complaint. She also denied being aware that the applicant had raised harassment and discrimination issues with Ms. Morrissey-O’Ryan. Both Mr. Bradley and Ms. White denied that the applicant was not offered an EFIT position because she is a woman, or as a reprisal for having made allegations of gender-based harassment against male co-workers prior to the competition.

Incidents Following Job Competition

46During the course of presenting her evidence, including her testimony-in-chief, the applicant did not squarely address the allegation in her Application that following the job competition, A.B. and C.D., who were male Electrician Journeypersons, were promoted from Electrician Sub-Foreperson to Electrical Foreperson without having to work as an EFIT. However, in cross-examination, the applicant confirmed that she was alleging that it was unfair that A.B. was promoted to an Electrical Foreperson position.

47Mr. Bradley testified that A.B. had applied for one of the six EFIT positions and was interviewed, but that the respondent needed an Electrical Foreperson immediately, and promoted A.B. to the position. Ms. White testified that the respondent lost an Electrical Foreperson unexpectedly, and that A.B. was slotted into the position because of his ability, experience, and work history.

48A.B.’s résumé and the hiring committee’s interview notes on the answers given by him during the job competition for the six EFIT positions were entered into evidence. I would summarize his paper qualifications as follows. He is a licensed Electrician. He began working for the respondent as an Electrician in 2004. He was then an Electrical Foreperson at OPG for more than four years between 2005 and 2009. He rejoined the respondent in 2009, and at some point became an Electrician Sub-Foreperson.

49C.D.’s paper qualifications were not in evidence before me. In cross-examination, the applicant’s counsel asked Ms. White whether C.D. was promoted into an Electrical Foreperson position following the EFIT job competition, and she answered that she was not aware of that.

50Following the EFIT job competition, the applicant was assigned to a new work site. Mr. Routledge testified that he initiated the new assignment because he needed an Electrician Sub-Foreperson at that site, and it was an opportunity for the applicant to get more outside work experience.

51A.B. was the Electrical Foreperson at the new work site. The applicant testified that she found it difficult working with him. She stated that he blamed her for things that she was not responsible for, and that he obviously had a problem with her for some reason. Therefore, she stated, she spoke to Mr. Routledge, and requested that she be transferred to a different work site. She stated that Mr. Routledge spoke with Mr. Bradley about her transfer request, and then told her that Mr. Bradley had told him that he did not want to transfer a “problem”, and to fix it.

52In his testimony, Mr. Routledge agreed that he had spoken to Mr. Bradley, and then told the applicant about his discussion with Mr. Bradley, but he stated that Mr. Bradley told him he does not believe in transferring “a person who is having a problem” to someone else, and he passed on the same message to the applicant. He stated that his understanding of Mr. Bradley’s response was that the problem should be resolved on the work site with the people involved.

53When Mr. Bradley testified, neither the respondent’s counsel nor the applicant’s counsel asked him questions about this matter. It is undisputed that the applicant’s transfer request was eventually granted.

ANALYSIS

Should the Application be dismissed because it has no reasonable prospect of success?

54The Application relates to ss. 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… sex….

(…)

8. 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.

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

55The applicant has the onus of proving on a balance of probabilities that a violation of the Code has occurred. A balance of probabilities means that it is more likely than not a violation has occurred. Clear, convincing and cogent evidence is required in order to satisfy the balance of probabilities test. See F.H. v. McDougall, 2008 SCC 53 at para. 46.

56The Tribunal does not have the power to deal with general allegations of unfairness. The applicant must establish discrimination on the basis of one of the grounds alleged in the Code, or reprisal as defined in the Code. See Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 at para. 17.

57In order to establish a case of discrimination, the applicant must prove that (1) she is, or was perceived to be, a member of a group protected by the Code; (2) she was subjected to adverse treatment; and (3) a Code ground was a factor in the adverse treatment. See Shaw v. Phipps, 2010 ONSC 3884 at para. 47, upheld 2012 ONCA 155, and Communications, Energy & Paperworkers' Union of Canada (CEP), Local 789 v. Domtar Inc., 2009 BCCA 52 at para. 36.

58In the case at hand, there was no dispute that the applicant is a woman, and that she received adverse treatment by not being awarded an EFIT position in the job competition. The main dispute is whether her sex was a factor in the adverse treatment.

59In assessing allegations of discrimination, the following principles are applicable:

(a) The prohibited ground or grounds of discrimination need not be the sole or the major factor leading to the discriminatory conduct; it is sufficient if they are a factor;

(b) There is no need to establish an intention or motivation to discriminate; the focus of the enquiry is on the effect of the respondent's actions on the complainant;

(c) The prohibited ground or grounds need not be the cause of the respondent's discriminatory conduct; it is sufficient if they are a factor or operative element;

(d) There need be no direct evidence of discrimination; discrimination will more often be proven by circumstantial evidence and inference; and

(e) Stereotyping will usually be the result of subtle, unconscious beliefs, biases and prejudices.

See Peel Law Association v. Pieters, 2013 ONCA 396, 116 OR (3d) 81 (Ont. C.A.) at paras. 111-114.

60In order to establish a case of reprisal, the applicant must prove the following elements:

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.

See Noble v. York University, 2010 HRTO 878 at para. 33.

61However, Rule 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. Typically, summary hearings are held at a relatively early stage in the Tribunal’s process and involve receiving the applicant’s submissions on his or her legal theory and what evidence he or she anticipates calling at the merits hearing in support of the allegations.

62The principle that an application can be dismissed because it has no reasonable prospect of success is not limited, though, to the initial early stage of the Tribunal’s process, and can be heard during the merits hearing. See Pellerin v. Conseil scolaire de district catholique Centre-Sud, 2011 HRTO 1777 (“Pellerin”) at para. 18. In some cases, the Tribunal will hear submissions on this issue at the outset of the hearing before the calling of any evidence. In other cases, the Tribunal will hear submissions on this issue after the applicant has called his or her evidence. And in yet other cases, the Tribunal will hear submissions on this issue after the applicant has called his or her evidence, and the respondent has called some, but not all, of its evidence.

63When a general evaluation of the evidence that has been called and is proposed to be called makes it clear that the Application has no reasonable prospect of success, the Application should be dismissed. It is neither appropriate nor principled that the hearing continue when there remains only a theoretical possibility and no reasonable prospect that evidence that could meet an applicant’s burden of proof will come forward. See Pellerin, above, at paras. 18, 20 and 26.

64The approach to deciding whether an application has a reasonable prospect of success was explained in Dabic v. Windsor Police Service, 2010 HRTO 1994 (“Dabic”) at paras. 8 and 9:

In some cases, the issue… 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… 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.

65The focus of the parties’ submissions 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 denied her a position in the EFIT job competition because she is a woman, and as a reprisal for having made allegations of gender-based harassment against male co-workers prior to the competition.

66Having evaluated the evidence that has been called and the evidence that is proposed to be called, it is clear to me that the Application has no reasonable prospect of success, and should be dismissed. The following are my specific reasons.

67In view of the fact that the respondent has not yet called any evidence in response to the applicant’s evidence about the incidents that occurred prior to the EFIT job competition, I will assume without deciding that the applicant’s factual allegations are true. It is also undisputed that all six successful candidates in the competition were men. Beyond these facts, however, there is little evidence of probative value that has been called, or that is proposed to be called, which would establish that a violation of the Code has occurred.

68The main problem with the applicant’s case is that she initially relied on allegations of fact about the job competition, which were then largely shown to be untrue during the hearing, and then when faced with that reality, she tried to rely on new allegations of fact which she had never raised before, and which have little probative value. Therefore, there was insufficient probative evidence called and proposed to be called to establish that the respondent denied the applicant an EFIT position because she is a woman, or as a reprisal for having made allegations of gender-based harassment against male co-workers prior to the competition.

69In her Application, the applicant alleged that she had better qualifications, including more seniority, than some of the successful candidates. However, in my view, the evidence that was called shows that the successful candidates whom she alleged that she was more qualified than for the EFIT position had better paper qualifications than she did. Successful candidate #1 began working for the respondent approximately three years before she did, and began working as an Electrician Sub-Foreperson approximately a year and a half before she did. Successful candidate #2 began working for the respondent approximately four years after her, but became an Electrician several years before she did, and, more importantly, had 10 years of Lead Hand and one year of Foreperson experience in the private sector that she did not have. He also became an Electrician Sub-Foreperson three months before she did. Successful candidate #5 began working for the respondent approximately two years before she did, and began working as an Electrician Sub-Foreperson more than a year before she did. He also had 13 years of experience working for a provincial power corporation in China, which she did not have, and he has a Bachelor’s degree and a Master’s degree in the electricity field, which she does not have.

70When faced with the superior paper qualifications of successful candidates #1 and #2 at the hearing, the applicant essentially testified she was a better worker than they were. The applicant’s personal opinion that she was a better worker than successful candidates #1 and #2 has little probative value.

71When faced with the vastly superior paper qualifications of successful candidate #5, the applicant essentially attacked his ability to communicate in English by testifying that he speaks English with a “bad accent” that no one can understand, which would make him a safety risk in a supervisory position. The applicant’s personal opinion about successful candidate #5’s ability to communicate in English has little probative value. She did not raise this factual allegation prior to the hearing, and did not provide any details or examples about successful candidate #5’s poor communication skills, or how his communication skills would make him a safety risk in a supervisory position. While health and safety issues are clearly very important in the workplace, any allegation of a worker’s inability to communicate effectively to the point of resulting in a risk to health and safety must be examined carefully. Here, there is no evidence to support such an allegation, only the bald assertion that candidate #5 has a “bad accent” and would therefore be a safety risk in a supervisory position. Furthermore, I am mindful of the fact that discrimination against immigrants from non-English speaking countries, including China, can occur because of perceived English language communication difficulties based on an accent. See, for example, Liu v. Everlink Services Inc., 2014 HRTO 202.

72In her Application, the applicant also alleged that successful candidate #2 lacked the basic qualification of being an Electrician Sub-Foreperson. The respondent disclosed documents, which were entered into evidence at the hearing, which show that this factual allegation was untrue. The applicant did not dispute the accuracy of those documents.

73In her Application, the applicant also alleged that she had “extensive” outside work experience, but was told that she was not successful in the competition because she did not have enough outside work experience. However, when she called Mr. Routledge as a witness, he testified that he agreed with the hiring committee she needed more outside work experience. Furthermore, in cross-examination, when the applicant was confronted first with the hiring committee’s interview notes (including those of Mr. Schueler), which indicated that she had answered that she had one and a half years of outside work experience, and then with several progress/assessment reports on her work performance, which indicated that she was doing more inside work than outside work and wanted to do more outside work, she retreated from her factual allegation that she had “extensive” outside work experience. Instead, in re-examination, she essentially testified to the opposite effect, namely, that she was doing too much inside work and not getting enough outside work experience because of stereotypes of female Electricians having small hands and being better at inside work. Given the applicant’s complete reversal on this point, her new alleged facts have little probative value.

74In her Application, the applicant also alleged that Mr. Routledge told her that Mr. Bradley had told him that she was denied the position because the respondent “was not ready for a female supervisor.” However, when she called Mr. Routledge as a witness, he explicitly denied that he had told her that, and testified that he had, in fact, told her that Mr. Bradley would not have denied her an EFIT position because she was a woman. Mr. Bradley also denied having made such a comment to Mr. Routledge. The applicant did not request that Mr. Routledge be declared a hostile witness, did not ask him questions to impeach the credibility of his testimony, and did not indicate that she would be calling reply evidence to challenge the credibility of his testimony.

75In her Application, the applicant also alleged that following the competition, A.B. and C.D., who were male Electrician Journeypersons, were promoted from Electrician Sub-Foreperson to Electrical Foreperson without having to work as an EFIT. However, at the hearing, the applicant presented very little evidence about A.B., and no evidence about C.D. Mr. Bradley and Ms. White then testified that the respondent unexpectedly needed an Electrical Foreperson, and A.B., who was a candidate for one of the six EFIT positions, was promoted into the position because of his ability, experience, and work history. The applicant did not challenge their testimony on this point, or propose to call evidence to contradict their testimony. Furthermore, in my view, the evidence that was called showed that A.B. had better paper qualifications for the Electrical Foreperson position than she did. Specifically, he had more than four years of experience working as an Electrical Foreperson at OPG, which the applicant did not have.

76Finally, in her Application, the applicant alleged that following the job competition, she requested a transfer to a different work site, and, although her request was ultimately granted, Mr. Bradley initially resisted granting it on the basis that he did not wish to transfer a “problem”. In her testimony, the applicant clarified that Mr. Routledge spoke with Mr. Bradley about her transfer request, and then told her that Mr. Bradley had told him that he did not want to transfer a “problem”. However, when she called Mr. Routledge as a witness, he testified that that Mr. Bradley had told him something quite different, namely, that he does not believe in transferring “a person who is having a problem” to someone else. Mr. Routledge then explained that he understood this to mean that the problem should be resolved on the work site with the people involved. Obviously, there is a marked difference between characterizing the applicant as a “problem” and characterizing her as “a person who is having a problem”. Again, the applicant did not request that Mr. Routledge be declared a hostile witness, did not ask him questions to impeach the credibility of his testimony, and did not indicate that she would be calling reply evidence to challenge the credibility of his testimony. She also did not ask Mr. Bradley questions in cross-examination about this matter.

77As mentioned above, I am assuming without deciding that the applicant’s factual allegations about incidents that occurred prior to the job competition are true. As such, I am assuming that the applicant has been subjected to sexist comments by some of her male co-workers since the beginning of her employment; has been subjected to harassment and identified as “trouble” by some of her male co-workers because she filed an internal human rights complaint in 2007; and has been subjected to using female washrooms on work sites which some of her male co-workers have used and left in a disgusting state. I am also assuming that the applicant has complained to her supervisors about the aforementioned incidents, and while some steps have been taken to address them, she has also been reprimanded, and overall, the incidents have not been addressed. I am further assuming that shortly before the EFIT job competition, the applicant met with Ms. Morrissey-O’Ryan, who is the Vice-President of the respondent’s Construction Services division, and told her about the aforementioned incidents.

78In my view, however, this evidence has some, but not much, probative value because the applicant has not called any evidence to establish that Mr. Bradley and Ms. White, whom she identified as the two members of the hiring committee who subjected her to discrimination and reprisal, knew about most of these incidents, or that their knowledge of any such incidents was a factor in their evaluation of the applicant as a candidate in the EFIT job competition.

79The applicant and Mr. Bradley both testified that they had never met each other prior to the job competition. Mr. Bradley also testified that he was not aware that the applicant had filed an internal human rights complaint in 2007, and his testimony on this matter was not shaken in cross-examination. The applicant also did not call any evidence or elicit any testimony from Mr. Bradley in cross-examination to show that he knew about the other incidents. Furthermore, the applicant did not indicate that she would be able to elicit any further evidence about his knowledge of the 2007 complaint and the other incidents from the respondent’s other witnesses, or in her reply evidence.

80Ms. White testified that she was aware that the applicant had filed an internal human rights complaint in 2007, but denied being aware that the applicant had raised harassment and discrimination issues with Ms. Morrissey-O’Ryan. She also denied that the hiring committee had discussed the applicant’s 2007 complaint. The applicant did not call any evidence or elicit any testimony from Ms. White in cross-examination to show that she knew about the other incidents, or that her knowledge of the 2007 complaint was a factor in her evaluation of the applicant as a candidate in the job competition. Furthermore, the applicant did not indicate that she would be able to elicit any further evidence from the respondent’s other witnesses, or in her reply evidence, that Ms. White knew about the other incidents, or that her knowledge of the 2007 complaint was a factor in her evaluation of the applicant as a candidate in the job competition.

81I therefore find that there is there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that the respondent denied her a position in the EFIT job competition because she is a woman. Even if it is true that the applicant experienced sexism in the workplace, and the sexism was not fully addressed by her supervisors, that, along with the fact that the six successful candidates in the job competition were all men, falls far short of establishing that there is a reasonable prospect that she can prove, on a balance of probabilities, that her sex was a factor in denying her an EFIT position.

82I also find that there is there is no reasonable prospect that the applicant can prove, on a balance of probabilities, that the respondent denied her a position in the EFIT job competition as a reprisal for having made allegations of gender-based harassment against male co-workers prior to the competition. Even if it is true that the applicant was identified by some of her male-coworkers and supervisors as a troublemaker because she had claimed her right not to be discriminated against in the workplace because of her sex, this falls far short of establishing that there is a reasonable prospect that she can prove, on a balance of probabilities, that Mr. Bradley and Ms. White intentionally retaliated against her for claiming her rights under the Code by scoring her so low that she was denied her an EFIT position.

ORDER

83The Application is dismissed.