HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Ninoska Garcia-Ortiz Applicant
-and-
Maison Mère Sœurs De La Charité d’Ottawa Respondent
-and-
Canadian Union of Public Employees Intervenor
INTERIM DECISION
Adjudicator: Maureen Doyle
Indexed as: Garcia-Ortiz v. Maison Mère Sœurs De La Charité d’Ottawa
APPEARANCES
Ninoska Garcia-Ortiz, Applicant Self-represented
Maison Mère Soeurs De La Charité d’Ottawa, Respondent George Vuicic, Counsel
Canadian Union of Public Employees, Intervenor Stefane Lalonde, Representative
Introduction
1This Application alleges discrimination with respect to employment because of ethnic origin contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The Tribunal issued a Case Assessment Direction (CAD) on January 16, 2015, directing that a summary hearing be held in this matter, noting that it appeared that the applicant may be unable to prove a link between the respondent’s alleged actions and the cited ground.
3The summary hearing by teleconference took place and all parties participated. A bilingual interpreter provided translation for the parties at the summary hearing.
DECISION
4For the reasons that follow, I find that most of the allegations in this Application have no reasonable prospect of success.
ANALYSIS
Summary Hearings
5In a summary hearing, the issue is whether the Application should be dismissed, in whole or in part, on the basis that there is no reasonable prospect that the Application or a part thereof will succeed. It is outlined in Rule 19A of the Tribunal’s Rules of Procedure:
19A.1 The Tribunal may hold a summary hearing, on its own initiative or at the request of a party, on the question of 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.
6In Dabic v. Windsor Police Service, 2010 HRTO 1994 at paras. 8 and 9, the Tribunal made the following observations on the type of inquiry that may be involved in a summary hearing:
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.
The Alleged Facts
7The respondent operates a home for the care of elderly francophone nuns. The applicant is an employee at the respondent since February 2014, where she worked providing care to older francophone nuns. In her Application, she states that on September 23, 2014, she read a note written in the communication book by a manager stating that the only language permitted to be spoken in the building is French. She indicated that this rule extended to the staff room. She states that during her unpaid lunch break that day, she and another employee were speaking English and a senior staff member advised them that they must speak French only, or they would be reported. She alleges that she was also told that the reading material she was discussing also might be “an issue”, as it is in English. She alleges that on October 2, 2014, the unit manager and the Human Resources department called a staff meeting at which employees were informed that the new rule restricting language was official and that it was not discriminatory. She alleges that they stated that the reason for the rule was to create an environment of “acceptance and tolerance” and that if everyone spoke the same language, no one would worry that they were being “talked about”. There was a concern that the francophone nuns may not understand what was being said in a language other than French. She alleges that because of this rule, she had to leave the break room and cross the street to have a telephone conversation with her family.
8At the summary hearing, the applicant alleged that shortly after the note was written, in September 2014, there was a meeting where someone from human resources, the respondent and a unit manager informed staff that this was a rule that was being implemented and that any staff found speaking a language other than French would be disciplined. She also alleged that the unit manager wrote a note in the staff communication book, stating that the rule was being implemented in the entire institution. She alleged that the respondent indicated that no language other than French could be spoken on break time, and all telephone conversations had to be in French. Further, if staff needed to make a phone call to their families, they had to leave the building. Finally, she alleged that the rules were enforced by the union representatives. She stated that her concern was with the fact that she was not allowed to speak any language other than French during her unpaid break time at the respondent.
9The respondent states in its Response, that the September 23, 2014 note did not indicate that only French could be spoken in the break room. They assert that the note was written following complaints to their management that some employees were speaking a language other than French in front of elderly and vulnerable nuns who are in care at the establishment. They assert that there was a meeting with CUPE regarding this and that there were also employees who felt intimidated when others were speaking a language other than French at break times and that this generated a climate of mistrust and conflict. They also state that a union official intervened in an English conversation in the break room and reminded the workers of the policy. They also indicate that the food services manager mentioned that in order to respect the resident nuns, the policy should always be respected, including in the break room. They indicate the union official apologized for the comments. They also state that at a training meeting on October 2, 2014, the human resources director reminded the participants of their health and safety obligations to the nuns and to each other and the importance of maintaining an accepting and tolerant workplace. In any event, they state that no manager ever spoke directly to the applicant or to other employees about not speaking English or other languages on the premises, and certainly never spoke to them about not using other languages on the telephone. They state that no disciplinary measure or notice was ever imposed on the applicant or other employees in respect of this policy. They state they did nothing to require the applicant to cross the street to have a telephone conversation with her family.
10The respondents state that the establishment where the applicant worked was a retirement house for nuns of a French congregation, and that the language used at the mother house is French. They assert that there were incidents where employees were talking to each other in languages other than French, and that this created a difficult environment for the nuns who are old, being on average 85 years of age. They assert that the nuns are a vulnerable population and that in order to maintain a good environment for the nuns, a rule was put in place that only French would be used. They state that this was to ensure a welcoming and tolerant environment for the nuns, in their own language. They assert that this was communicated to the employees, and that no measure was taken against the applicant. They deny the allegation that employees were threatened with discipline for speaking a language other than French and they deny the allegation that they told employees to leave the premises if they wished to speak English.
11At the summary hearing, the respondent submitted that the applicant’s allegations do not indicate that she could establish discrimination because language is not a protected ground under the Code. The respondent submitted that the applicant has not indicated that she will present the necessary evidence to show differential treatment and therefore cannot show discrimination. It submitted that the establishment adopted a practice of using French as the language for communication, applied this expectation to all employees. It submitted that there is no suggestion of differential treatment and no allegation that the directive constitutes a substitute or indirect way of discriminating on the basis of ethnic origin.
12With respect to whether language is a ground of discrimination under the Code, the respondent cited Chau v. Olymel 2009 HRTO 1386 (“Chau”), Woolrich v. Royal LePage Relocation Services 2010 HRTO 670, and Howard v. 407 ETR Concession (“Howard”) 2011 HRTO 1511. The respondent submits that even if the applicant is able to establish unfair treatment, she will not be able to establish direct discrimination contrary to the Code, nor will she be able to establish that the directive was indirect discrimination on the basis of ethnic origin.
13The union made no submissions.
Decision
14The applicant, who speaks at least three languages, including French and English, asserts that she is being discriminated on the basis of her ethnic origin, which she identifies as “Hispanic/Latina”. The applicant has chosen to work in a workplace where the language of work is French. Essentially, at the summary hearing, she took the position that she prefers not to have to speak French at the workplace, during her break times. Language is not a ground protected by the Code, though the Tribunal has recognized that in certain circumstances, it may be a proxy for some protected ground, such as ancestry, place of origin, race or ethnic origin. See for example Howard: “It can be a defining characteristic of ethnicity or race and as a consequence can give rise to interests protected under the Code” and the discussion in Islam v. Big Inc., 2013 HRTO 2009, starting at para. 251. The Tribunal has also stated that in this regard, “The onus is on the applicant, however, to present sufficient facts to support a finding that language is being used as a proxy for racial or ethnic discrimination” (Chau). Although given an opportunity to do so, at the summary hearing, the applicant did not allege that she was prevented from speaking Spanish, only that she was required to communicate in French. Given that the applicant self-identified as “Hispanic/Latina”, with the very narrow exception noted below, I do not find that the applicant has made allegations capable of establishing language as a proxy for discrimination on the basis of ethnic origin or any related grounds such as place of origin or ancestry.
15In her Application, the applicant states that she was not able to communicate on shift in her “mother-tongues of Spanish or English”. The only particularized incident is the above-noted reference to a conversation in English with a co-worker and the reference to the book she was reading in English. She has not linked English to her ethnic origin (or place of origin or ancestry), but instead self-identified as “Hispanic/Latina” which on its face indicates a link to a Spanish-speaking place of origin. She has indicated that both English and Spanish are “mother tongues” for her, though she has not indicated what language she sought to speak on the telephone. The focus of her submissions at the summary focused on the fact that communication had to be in French.
16But for the narrow exception noted below, the Applicant has not alleged facts that would establish this rule of general application can be said to have an adverse impact on her due to her ethnic origin or other Code-protected grounds. Accordingly, for the majority of the allegations she makes, she has not been able to indicate on what basis she would be able to establish that the promulgation and enforcement of this rule had an adverse effect on her due to her ethnic origin or other Code-protected grounds.
17The power of the Tribunal is limited to dealing with applications alleging a violation of the Code, which prohibits discrimination on specific grounds. It does not have the power to deal with all claims of unfairness or all disputes between parties. Even if it were to be found to be unfair for the respondent employer to limit the language spoken in the break room of this French workplace to French, that is not sufficient to establish a violation of the Code.
18The CAD issued in this matter indicated clearly that at the summary hearing the applicant was to indicate what evidence she would rely upon to prove a link between the respondent’s alleged actions and the grounds cited. In the course of the summary hearing, the applicant was given the opportunity to provide this explanation but was unable to do so for the majority of her allegations.
19The applicant must be able to show that in instituting a “French only” rule in the workplace, the respondent has treated her differently due to her ethnic origin or another Code protected ground for her Application to be successful. With the very narrow exception noted below, she has not, however, been able to identify any evidence which would, if proven, establish a connection between the “French only” policy at the workplace and her ethnic origin or another Code-protected ground. Without such evidence, her allegations cannot succeed.
20While the respondent employer denies having required individuals to leave the premises to talk on the telephone with their families in a language other than French, such a credibility finding as between the parties is not appropriate for determination at a summary hearing, and as the applicant identifies Spanish as one of her “mother tongues”, and as she alleges that she had to leave the premises to speak on the telephone with her family, I do not find that it is appropriate to dismiss this one allegation only at this point as having no reasonable prospect of success. Rather, this one allegation only and the question of whether in the circumstances of this applicant, language may be a proxy for discrimination because of ethnic origin, will proceed to be determined at a hearing.
21I find that there is no reasonable prospect that the majority of the allegations made in this Application will succeed and they are dismissed. The only matter which will proceed to hearing is the allegation that the applicant was required to leave the premises to make telephone calls to her family.
ORDER
22The Registrar will schedule a one day hearing into the one remaining allegation, namely that the applicant was required to leave the premises to make telephone calls to her family.
Dated at Toronto, this 6th day of July, 2015.
“Signed By”
__________________________________
Maureen Doyle
Vice-chair