Wood v. Recondo Faveo Inc., 2016 HRTO 1239

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Jihan Wood

Applicant

-and-

Recondo Faveo Inc. o/a Storesupport

Respondent

INTERIM DECISION

Adjudicator: Jennifer Khurana
Date: September 22, 2016
Citation: 2016 HRTO 1239
Indexed as: Wood v. Recondo Faveo Inc.

APPEARANCES

Jihan Wood, Applicant Self-represented

Recondo Faveo Inc. o/a Store Support, Respondent Robert Scullion, 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”).

2By Case Assessment Direction dated April 12, 2016, the Tribunal directed that a summary hearing would be held by teleconference to determine whether this 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 would succeed.

3The summary hearing was heard by telephone conference call and both parties made submissions.

Summary Hearing Process

4The summary hearing process is outlined in Rule 19A of the Tribunal’s Rules of Procedure as well as in the Tribunal’s Practice Direction on Summary Hearing Requests. In 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.

5The Tribunal cannot address allegations of unfairness that are unrelated to the Code. The Tribunal’s jurisdiction is limited to claims of discrimination that are linked to the protections set out in the Code.

6The 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.

7However, and significantly, 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 if the applicant is able to point to any information which tends to support his or her belief that he or she has experienced discrimination or reprisal under the Code. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant, to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.

8As the Tribunal indicated in Forde v. Elementary Teachers’ Federation of Ontario, 2011 HRTO 1389, 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 a breach of the Code.

BACKGROUND

9In the Application, the applicant states that she was employed by the respondent to work at a Rona store on September 14, 2015 as a merchandiser. The applicant alleges that a new team lead began to treat her and another colleague adversely and unfairly. The applicant and her colleague, Keren Jackson, were the only Black employees on the renovation job. In particular, the applicant alleges that she and Ms. Jackson were given the worst jobs to do, were talked down to, and were isolated from the rest of the team. When the applicant complained of this treatment to the respondent, she alleges that her concerns were overlooked. The applicant suffered a workplace injury and filed a WSIB claim. The following day, on September 29, 2015, the applicant and Ms. Jackson were taken off the Rona job following an incident in which the women were accused of sitting down on the job during a walk-through by Rona executives. The respondent terminated the applicant on October 13, 2015.

10The respondent disputes that the applicant was treated adversely and denies that her removal from the job site at Rona was related to a Code ground. The respondent’s position is that the applicant did not appear to like the work she was assigned and that she was removed from the renovation because she was unproductive.

11I note that in the Application, the applicant checked off ethnic origin as the ground of alleged discrimination however the applicant makes allegations about differential and adverse treatment that appear to be based on her race and/or colour.

ANALYSIS AND DECISION

12It is important to note that the test in a summary hearing is if there is no reasonable prospect that the application could succeed. A decision by the Tribunal to allow an application to proceed after a summary hearing does not mean that the application will succeed. It only means that the Tribunal is satisfied that there are allegations that, if proven, could result in a finding of a Code infringement and that the allegations are sufficiently plausible that it cannot be said that there is no reasonable prospect that they could be proved by the applicant. Rule 19A.6 provides that where the Tribunal decides not to dismiss an application following a summary hearing, it need not give reasons.

13In my view, if proven, the applicant’s allegations could result in a finding that the applicant’s Code-protected rights were infringed. I therefore cannot find that there is no reasonable prospect that the Application, in whole or in part, could succeed.

14The Application will continue to the next stage in the hearing process.

ORDER

15The Tribunal will continue to process the Application.

16The respondent filed a Response to the Application and the applicant filed a Reply. The applicant has agreed to mediation but the respondent did not do so in the Response. If the respondent agrees to participate in mediation, it must confirm its intention in writing to the Tribunal and to the applicant within 7 days of this Interim Decision. If the respondent does not wish to participate in mediation or if it does not respond within 7 days of this Interim Decision, the Tribunal will proceed to schedule the matter for a two-day hearing.