Hasan v. 2217789 Ontario Inc., 2015 HRTO 701

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Sabrina Hasan

Applicant

-and-

2217789 Ontario Inc., o/a Parkway Forest Foodland and Gabriel Lobo

Respondents

DECISION

Adjudicator: Jo-Anne Pickel Date: May 28, 2015 Citation: 2015 HRTO 701 Indexed as: Hasan v. 2217789 Ontario Inc.

APPEARANCES

Sabrina Hasan, Applicant

Maruf Hasan, Representative

2217789 Ontario Inc., o/a Parkway Forest Foodland and Gabriel Lobo, Respondents

Pamela Hofman, Counsel

Introduction

1The applicant filed an Application alleging that the respondent discriminated against her contrary to the Human Rights Code, R.S.O. 1990 c. H. 19, as amended (the “Code”). She set out a number of allegations of harassment by her former line manager and the respondent’s franchise owner. In the initial version of her Application, the applicant selected “record of offences” as a ground of discrimination. The applicant later added the ground of reprisal to her Application. At the summary hearing, the applicant indicated that she no longer wished to proceed with the ground of record of offences but that she was instead alleging discrimination on the ground of race.

2By Case Assessment Direction (“CAD”), the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed.

3For the reasons that follow, I find that the Application must be dismissed on the basis that it has no reasonable prospect of success under the Code. Although the applicant is clearly alleging that she was the subject of harassment, the Code does not provide protections against general harassment. It only provides protections against harassment that is based on one of the grounds protected under the Code. I find that there is no reasonable prospect that the applicant will be able to link the harassment she alleges to her race or to any other ground protected under the Code.

4Similarly, the Code does not provide general protections against all forms of retaliation or reprisal. It provides protections against reprisal for asserting or claiming one’s rights under the Code. For the reasons set out below, I must find that the applicant has no reasonable prospect of making out a claim of reprisal as that term is defined under the Code.

Summary Hearing Process

5The summary hearing process is described in Rule 19A of the Tribunal’s Rules of Procedure (“Rules”) 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 and usually before a Response is filed, whether an application should be dismissed in whole or in part because there is no reasonable prospect that the application will succeed.

6The Tribunal cannot address allegations of unfairness or of general harassment that is unrelated to the Code. Many experiences of unfairness, harassment, or reprisal that are not linked to the Code, can leave a person with significant financial and emotional damage. However, the Tribunal’s jurisdiction is limited to claims of discrimination, harassment and reprisal that are linked to the prohibited grounds set out in the Code.

7The test that is applied at the summary hearing stage is whether an application has no reasonable prospect of success. At this stage, the Tribunal is not determining whether the applicant is telling the truth or assessing the impact of the treatment he or she experienced. The 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 or the evidence is not disputed by the applicant.

8However, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why he or she was treated unfairly. The purpose of the summary hearing is to determine applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination, harassment or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any direct or circumstantial evidence, or any evidence that may be reasonably available to the applicant to connect the unfair treatment allegedly experienced by the applicant with a ground protected under the Code.

9As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389 (“Forde”), for an Application to continue in the Tribunal’s process following a summary hearing, 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.

10Having set out the basic framework for determining whether an application should be dismissed in whole or in part because it has no reasonable prospect of success, I now turn to the facts of this particular case.

Factual Background

11The applicant was employed as a cashier and supervisor with the respondent for approximately seven years. She claimed that she was subject to various types of harassment in the year prior to the termination of her employment. She alleged that the harassment began when her line manager, Ms. Nguyen, hired a relative or friend of hers as a cashier. The applicant believes that her line manager began harassing her at that point in order to get her to leave so that she could promote her relative or friend. The applicant alleged that her line manager harassed her by yelling at her and accusing her of stealing money that had been collected to buy a gift for one of her co-workers.

12The applicant claimed that, when she told the franchise owner about the situation, he did nothing to improve it but instead blamed her. When I asked the applicant’s representative whether the applicant had alleged to the franchise owner that she was being discriminated against because of her race or another Code ground, he stated that she had not. However, he stated that the applicant complained that the franchise owner was not fulfilling his obligation to ensure a harassment free workplace. In her Application, the applicant alleged that she told the franchise owner that it was the law that no one could yell at anyone in the workplace. She claimed that he responded by saying “Don’t show me law. I know the law.”

13The applicant claimed that the franchise owner terminated her employment. The applicant made a complaint to the respondent’s head office after her alleged termination because she felt that the franchise owner had not properly addressed the situation. She claimed that the respondent’s head office also did not take any steps to address her allegations of harassment.

Findings

14Even if I accept the facts put forward by the applicant as true and provable, I find that she has provided no information that can reasonably establish a link to the grounds set out in her Application or any other ground protected under the Code.

Harassment Claim

15The applicant’s main claim is that she was subject to harassment in the workplace. It is a common misconception that the Code provides broad protections against all forms of general harassment. This is inaccurate.

16While some legislation and workplace policies prohibit broader forms of personal or workplace harassment (see, for example, Occupational Health and Safety Act, R.S.O. 1990, c. O.1, Part III.0.1), the Code’s harassment protections are specifically linked to the grounds referenced in the Code. As noted above, the applicant initially selected the ground of “record of offences” on her Application form but indicated for the first time at the summary hearing that she intended to claim discrimination on the ground of race.

17When asked what evidence the applicant would seek to rely upon to support her claim that she was discriminated against or harassed because of her race, the applicant’s representative noted that the applicant had worked for the respondent without incident for six years before the new cashier was hired. The applicant alleged, both in her Application and at the summary hearing that the alleged harassment began to occur after her line manager hired her friend or relative as a cashier. At the summary hearing, the applicant sought to tie the alleged harassment to the fact that her line manager and the new cashier are of the same race, a race or ethnic origin that is different from her own.

18The applicant is of Bangladeshi origin. The applicant’s representative initially stated that the applicant’s line manager, Ms. Nguyen, and the friend or relative she hired were both of “Asian” origin. He then clarified that he believed that Ms. Nguyen and the new cashier were both of Chinese origin, possibly from Taiwan or Hong Kong.

19The applicant’s representative also claimed that the respondent had no cause to terminate her employment and that it had done so without following proper procedure and without paying her termination or severance pay. Her representative claimed that, since the respondent had no reason to terminate the applicant, the only logical conclusion or inference was that the applicant was discriminated or reprised against contrary to the Code.

20Based on the information contained in the Application and the information provided at the summary hearing, I must find that the applicant’s claim of racial discrimination has no reasonable prospect of success. Even accepting all of the facts alleged by the applicant as true and provable, I find that the applicant has provided no information or evidence that could reasonably support her contention, raised for the first time at the summary hearing, that her race played a part in the way her line manager and/or the franchise owner treated her.

21I note that the applicant did not allege that the franchise owner terminated her employment because of her race. She only claimed racial discrimination in regards to the line manager. However, it is not clear that the line manager and the new cashier are in fact of the same race or ethnic origin. Even assuming for the purposes of the summary hearing that they are of the same ethnic origin, the applicant provided no information that could reasonably support her belief that their shared ethnic origin played a role in the way her line manager treated her.

22As noted above, in order for an Application to continue in the Tribunal’s process beyond a summary hearing, there must be a basis beyond mere speculation and accusations to believe that an applicant will be able to establish discrimination or harassment based on a ground protected under the Code. Even if I were to accept that the applicant’s line manager and the new cashier are of the same ethnic origin or race, the applicant has failed to provide any basis beyond speculation to support her claim that her line manager harassed her because she was not of that same race or ethnic origin.

23In addition, the fact that the respondent did not pay the applicant termination or severance pay is not proof of a violation of the Code. If the applicant believes she was owed termination or severance pay, she may file a claim with the Ministry of Labour under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”). This Tribunal does not have jurisdiction to enforce the ESA. As well, even if it were true and provable that the respondent terminated the applicant’s employment without cause, this does not in itself establish a violation of the Code absent a connection to a ground of discrimination protected under the Code.

24Finally, as noted above, the applicant’s representative submitted that, since the applicant allegedly had no performance issues at work, there was no other reason for the respondent to have terminated her employment other than discrimination or reprisal. The Tribunal has found in many cases that it is not enough for an applicant, in a summary hearing, to suggest that he or she can think of no other reason for the respondents’ actions and therefore they must amount to discrimination or reprisal. See, for example, Gerrick v. Ceva Logistics, 2011 HRTO 712 and Richter v. Ontario (Community and Social Services), 2014 HRTO 970 at para. 29. In order to establish that the Application should not be dismissed at the summary hearing stage, the applicant must show that there is evidence, or evidence that may be reasonably available to the applicant, to support her belief that there is a connection between the respondent’s conduct and the prohibited ground she has alleged. The applicant has not pointed to any evidence that can reasonably make this connection in this case.

25For the reasons set out above, I find that there is no reasonable prospect that the applicant will be able to establish a link between the events set out in her Application and her race or any other ground protected under the Code.

Reprisal Claim

26The applicant also claimed that the respondent reprised against her when it terminated her employment. Just as there are common misconceptions relating to the scope of the Code’s harassment protections, there exists a common misconception that the Code protects against all forms of reprisal or retaliation. This also is inaccurate. The reprisal protections in the Code protect against reprisals for having claimed and enforced rights under the Code.

27Section 8 sets out the Code’s protections against reprisal. It states as follows:

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.

28In order to make out a claim of reprisal, the applicant must be able to establish that the respondents intended to reprise against him for claiming or enforcing his rights under the Code. See Noble v. York University, 2010 HRTO 878.

29The applicant claimed that the respondent reprised against her when it terminated her employment on September 4, 2014. On that date, the applicant complained to the franchise owner that her line manager was harassing her. Her representative conceded at the summary hearing that she did not allege that her line manager was discriminating or harassing her due to her race or any other ground protected under the Code. He claimed that although the applicant did in fact believe this at the time she was reluctant to make this allegation to the franchise owner.

30In these circumstances, it cannot reasonably be found that the franchise owner terminated the applicant’s employment as a reprisal for the applicant claiming or enforcing her rights under the Code. If the applicant did not claim at the time that the line manager was harassing her due to her race, she cannot reasonably be found to have been claiming or enforcing her rights under the Code. Therefore, any actions taken against the applicant cannot reasonably be found to amount to a reprisal for claiming or enforcing her rights under the Code.

31Sometime after her termination, the applicant filed a complaint to the respondent’s head office. However, this complaint also cannot ground a claim of reprisal since it was made after the incident of alleged reprisal -- that is alleged termination of the applicant’s employment.

32For these reasons, although the applicant believes that the franchise owner retaliated against her for making harassment complaints, the applicant’s claim has no reasonable prospect of success of establishing reprisal within the meaning of the Code.

Order

33It is clear that the applicant strongly believes that she was subject to harassment and that the respondent terminated her employment for complaining about it. The difficulty with the applicant’s claim is that there is an absence of any evidence or information that could reasonably link the alleged facts in her Application to the Code’s protections. Even accepting all of facts alleged as true, I find that there is no reasonable prospect that the applicant would be able to establish that the alleged harassment she experienced was linked to her race or that her termination was a reprisal within the meaning of the Code.

34For the above reasons, the Application must be dismissed.