Reuela Lampitoc v. Activ8 Marketing Inc., 2015 HRTO 599

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Reuela Lampitoc

Applicant

-and-

Activ8 Marketing Inc.

Respondent

INTERIM DECISION

Adjudicator: Laurie Letheren

Date: May 8, 2015

Citation: 2015 HRTO 599

Indexed as: Lampitoc v. Activ8 Marketing Inc.

APPEARANCES

Reuela Lampitoc, Applicant

Self-represented

Activ8 Marketing Inc., Respondent

Meaghen Russell, Counsel

Introduction

1This is an Application filed under section 34 of Part IV of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant is alleging that she experienced discrimination in the course of her employment on the basis of her ethnic origin and that she experienced reprisal.

OVERVIEW

2In a Case Assessment Direction (CAD) issued on March 3, 2015 the Tribunal directed that a summary hearing be held by teleconference pursuant to Rule 19A of its Rules of Procedure. The issue to be determined in a summary hearing is 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. The CAD advised the applicant that during the summary hearing she should be prepared to explain what evidence she proposes to present at a hearing to demonstrate that a ground of discrimination played a role in what she experienced while employed by the respondent. The CAD also advised the applicant that at the summary hearing she should be prepared to explain what evidence she proposes to have to establish that the respondent reprised against her contrary to section 8 of the Code.

3The summary hearing was held on April 17, 2015. At the commencement of the teleconference hearing, I explained that the focus of the summary hearing was on the question of whether there is a reasonable prospect that the applicant can prove, on a balance of probabilities, that her Code rights were violated. I invited the applicant to explain why she believes the respondent’s acts amount to discrimination and reprisal under the Code.

4During the summary hearing, I heard submissions from the applicant and from counsel for the respondent. The applicant and the respondent also answered questions that I put to them.

THE FACTS

5For the purpose of a summary hearing, the Tribunal is to accept that the facts as alleged are true. The following summary of the facts is based on the allegations set out in the Application, the Response and the submissions made by the applicant and the respondent during the summary hearing.

6The applicant self-identifies as first generation Canadian, Pacific Islander.

7The applicant began her employment at the respondent Activ8 Marketing Inc. on December 17, 2013. The respondent provides marketing expertise to retail and financial institutions. The applicant was employed as a Field Sales Representative selling President’s Choice MasterCard products and services. This was a purely commissions based position and the amount of her compensation was determined by the number of new and supplementary card holder applications for MasterCard products and services she submitted and the number of insurance leads she originated.

8The applicant’s allegations about the discrimination she experienced are based primarily on comments and actions of one of the Senior Field Representatives employed by the respondent at the time of the applicant’s employment. Although this Senior Field Representative was not the applicant’s supervisor, it appears that he did at times have some control over her supplies, equipment and sales territory.

“Chinese girl” and Other Comments

9The Senior Field Representative provided training to new sales representatives. On the first day of training, another Field Sales Representative, whom the applicant describes as a former friend and with whom she had worked at another organization, told the applicant that the Senior Field Representative had asked him, “hey where is that Chinese girl?” The applicant did not hear the Senior Field Representative say this nor did the Senior Field Representative ever say this or any other comment, which she might find to be discriminatory, to her directly. The applicant states that she knows the Senior Field Representative referred to her as “that Chinese girl” because, on the first day of training, the other Field Sales Representative said to her “Watch out for that guy. He called you the Chinese girl”. The applicant says that the other Field Sales Representative knows her and knows how she would feel about this statement.

10The applicant often had to tell the Senior Field Representative and another supervisor how to pronounce the names of other racialized employees. She believes they were deliberately mispronouncing these names. At one point a supervisor called a sales representative “Apu” rather than his actual name. That employee did not say anything about being called “Apu” but the applicant thought it was not right.

11The applicant says she was told by her sales representative friend that he was driving with the Senior Field Representative one day and that the Senior Field Representative was saying fraudulent things about the applicant.

Shortage of Supplies, Low Sales Territories and Faulty Equipment

12Supplies for the Field Sales Representatives in the applicant’s area were delivered to and distributed by the Senior Field Representative. At times, the applicant was only given 50 percent of supplies and had to get supplies from other sales representatives. The applicant was told that the respondent did not deliver supplies to apartment buildings such as where she lived. She provided the address of the house of another sales representative; however, the supplies continued to be distributed by the Senior Field Representative and she continued to receive insufficient supplies. When asked what she would do if she did not have enough supplies, the applicant stated that she would share with others and that worked out fine as they often helped each other out.

13The applicant and another sales representative asked the Senior Field Representative if he could suggest stores that had a history of good sales success. The Senior Field Representative suggested stores in outer counties and they were not successful. The applicant says that after they were sent to these unsuccessful stores she wanted to test the Senior Field Representative’s integrity. Before they went to him with their actual sales numbers, she suggested to the other sales representative, “lets tell him we got 30”. The applicant says that when they told the Senior Field Representative that they got 30, his response was “that is impossible, that is my store. I tell you what store to go to”. The applicant believed that the Senior Field Representative was backtracking when he heard they had 30 sales as he had deliberately sent them to an unsuccessful sales territory. The applicant checked with her supervisor who told her that the Senior Field Representative did not control what stores she wanted to go to for potential sales.

14In February 2014, the applicant was to receive a tablet for use in her sales. All tablets were sent to and distributed by the Senior Field Representative. When they went for training on the tablets, the applicant’s tablet was the only one that was not working. Without a working tablet, the applicant had to continue to submit paper applications by courier to one of the respondent’s offices rather than submitting them on-line.

15The applicant was the only one sales representative without tablet when they were working up to an annual event called, “Endo” in March 2014. This is a 10 day event that the Field Sales Representatives hope to be invited to because there is potential for numerous sales. Invitations to the event were extended by the respondent to those who have the highest sales numbers in February 2014. According to the respondent’s numbers, the applicant ranked tenth in overall sales in February 2014 and as a result, was not invited to Endo. The applicant believed she had worked very hard and had helped others out and that with this work ethic, the respondent would deem her worthy of being invited to the Endo event. She believed that her numbers for February 2014 were better than a couple of the other Field Sales Representatives who were invited to Endo. She believed that perhaps the Senior Field Representative or her supervisor could have “fudged the numbers for Endo” to make sure she was not invited. However, she does not believe that her numbers, as represented in the document contained in the Response, misrepresent her numbers for sales in February 2014.

16The applicant made a written complaint to the respondent’s human resources department on March 10, 2014. The complaint raised a number of issues including problems with supplies and tablet; the respondent’s failure to invite her to Endo; and subtle forms of racism. In this complaint, the applicant also stated that, due to a number of things she had heard about the Senior Field Representative’s behaviours, she did not feel safe working with the Senior Field Representative.

17The respondent’s Human Resources Facilitator sent an email to the applicant on March 12, 2014 and responded to each of the issues raised in her complaint. The respondent recommended that she speak to her Manager about the issues. As well, it was recommended that she conduct her work in ways that would allow her to avoid having contact with the Senior Field Representative and arrangements were to be made so that the applicant did not have to have contact with him.

18The applicant and her Manager were to meet on March 21, 2014; however, the applicant notified her Manager prior to the meeting that she was not able to attend.

19Later on March 21, 2014 the applicant submitted her letter of resignation.

20At the summary hearing the applicant was asked again to indicate what evidence she would provide to demonstrate that actions of the respondent and its employees were related to her ethnic background. In response the applicant stated that it all starts with the statement, “That Chinese girl”. She believes that statement set the tone for how the Senior Field Representative looked at her and thought of her and how his actions were conducted towards her.

Reprisal

21During the summary hearing the meaning of reprisal under the Code was explained. The applicant was asked to describe the evidence she would bring to the hearing to demonstrate that the respondent had reprised against her or had threatened to reprise against her for attempting to enforce her rights under the Code or for protecting the Code rights of someone else.

22The applicant alleges that there was reprisal when the respondent’s human resources department breached her privacy or safety after she made the complaint. As she had stated in the complaint, she had heard about the Senior Field Representative’s conduct and she felt concerned for her safety. She alleged that the respondent’s human resources facilitator had told others in the company about her complaint. The applicant did not have and stated that she would not have any real evidence to show that her privacy had been breached. She admitted that she did discuss the complaint she had made with other Field Sales Representatives.

ANALYSIS

Should the Application be dismissed on a preliminary basis because it has no reasonable prospect of success?

23The 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 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.

24The Tribunal’s Rule 19A.1 allows the Tribunal to hold a summary hearing to determine whether there is a reasonable prospect that the Application will succeed.

25In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 7-9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:

A summary hearing is generally ordered at an early stage in the process. In some cases, the respondent may not have been required to provide a response. In others, the respondent may have responded but disclosure of all arguably relevant documents and the preparation of witness statements, which generally occur following the Notice of Hearing, will not yet have happened.

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.

26The 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.

27In order to establish a case of discrimination, the applicant must prove on a balance of probabilities 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.

28It follows therefore that for the purposes of the summary hearing where I must accept the applicant’s allegations as true, I must determine whether the applicant has no reasonable prospect of proving that her ethnic origin was a factor in the treatment she received which she alleges resulted in her inability to succeed as a commissioned employee of the respondent.

29Having heard the nature of the proposed evidence, I am unable to conclude that the applicant’s allegations with respect to discrimination in employment on the basis of ethnic origin have no reasonable prospect of success.

30My conclusion that the Application can continue with respect to the issue of the discrimination on basis of ethnic origin is not an indication of the merits of the claim or that any party’s facts or legal theory will be successfully established; it is simply a finding that, in light of the parties’ allegations and the anticipated evidence, I am unable to conclude at this stage that this aspect of the Application has no reasonable prospect of success.

Reprisal

31During the summary hearing, I asked the applicant to describe the reprisal she experienced when working for the respondent. The applicant responded that there was reprisal when the respondent’s human resources department breached her privacy or safety after she made the complaint. She alleged that the respondent’s human resources facilitator had told others in the company about her complaint.

32I find that the applicant has no reasonable prospect of succeeding on the allegation of reprisal and this aspect of the Application must be dismissed. The applicant stated that she did not have any evidence to show that this privacy breach had occurred and she stated that she had discussed the complaint she made to the respondent with other Field Sales Representatives. I find that the applicant is only speculating that the respondent breached her privacy.

33In addition, this is not a reprisal within the meaning of section 8 of the Code. In order to establish reprisal based on a Code ground there must be a) an action taken against, or a threat made to, the applicant; b) an alleged action or threat related to the applicant having claimed, or tried to enforce a Code right; and c) an intention on the part of the respondent to retaliate for the claim or the attempt to enforce the right. See Noble v. York University, 2010 HRTO 878 at para. 31. Whether or not the applicant’s privacy was breached, there is no evidence to demonstrate and the applicant has no reasonable prospect of proving that the respondent intentionally breached her privacy in response to the applicant having claimed or attempted to claim a Code right.

ORDER

34For the reasons set out above, I find as follows:

a. The part of the Application with respect to reprisal allegations is dismissed;

b. The Tribunal will continue to process the remainder of the Application.